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CIVIL APPELLATE JURISDICTION , Civil Appeal No. 194 of 1961. Appeal by special leave from the judgment and order dated July 28, 1959 of the Andhra Pradesh High Court at Hyderabad in C. M. A. No. 120 of 1956. Ram Reddy, for the appellant. R. Choudhri, E. Udayarathnam and V. C. Prashar, for the respondent. 1963. February 11. The Judgment of the Court was delivered by HIDAYATULLAH.J.-The respondent who is the wife of the appellant obtained a decree for maintenance on August 9, 1949, by which the appellant was ordered to pay Rs. 3,000/- per year to her on the 28th day of February of every year with interest at 6 per year if the payment was number made on the due date. The decree included ascertained amounts as arrears of past maintenance and other items to which detailed reference is number necessary. In addition to the personal liability the decree created a charge for past and future maintenance on three lots of properties. The respondent filed execution petition No. 91 of 1952 for execution of the maintenance decree and sought to bring the properties charged by the decree to sale. She purchased two items of the properties charged by the decree to sale. she purchased two items of the properties for a sum of Rs. 20,200 subject to her maintenance charge after obtaining the permission of the Court. Later she filed execution No. 43 of 1955 seeking to bring to sale properties other than those purchased by her in the earlier execution. The appellant also filed an application under s. 47 of the Code of Civil Procedure to record full satisfaction of the decree on the ground that the respondent by purchasing the properties subject to her charge companyld number maintain a fresh application for the sale of the other properties. The Subordinate judge of Visakhapatnam upheld the companytention of the appellant and dismissed the execution petition as number maintainable. The respondent appealed to the High Court. The High Court reversed the decision of the Subordinate judge and ordered the execution to proceed. The appellant has number appealed after obtaining special leave from this Court. The short question is whether the decree must be held to be satisfied because the respondent purchased in an earlier execution one lot of properties subject to her charge for maintenance. Learned companynsel for the appellant companytends that the respondent must number look to the properties purchased by her for satisfaction of her claim in respect of maintenance past or future. In the alternative lie companytends that execution against the properties in his possession cannot proceed till the respondent has first proceeded against the properties with her. In our opinion neither proposition is companyrect. The maintenance decree passed by the Subordinate judge of Visakhapatnam is number only a declaratory decree but also an executory decree. It provides that the appellant shall pay to the respondent Rs. 3,000 per year as maintenance on the 28th day of February of every year as long as she lives. When the first execution was levied the amounts due up to June 28, 1952, were realised by the sale of the properties of lots 1 and 2. The respondent as the auction-purchaser deposited Rs. 6,010 towards the balance of the purchase price after deducting the maintenance amount under the decree as it then stood. The present execution companycerns the sum which fell due between June 28, 1952, and February 28, 1955. Included in this sum are Rs. 8,000 towards maintenance and Rs. 867-8-0 towards companyts. The companytention of the appellant is that the respondent having purchased the first lot of properties subject to the charge cannot number recover this amount from the properties remaining with the appellant. In other words, the appellant companytends that there is some kind of merger of the right under the maintenance decree with the right arising from the auction purchase and the respondent can enforce her right only against those properties which she has purchased and number against properties which remain with the appellant. The argument involves a fallacy because it assumes that a charge created by a decree on a number of properties disappears when the charge-holder in execution of the charge-decree purchases one lot of properties. An executory charge-decree for maintenance becomes executable again and again as future sums become due. The executability of the decree keeps the charge alive on the remaining properties originally charged till the future amounts cease. In other words the charge subsists as long as the decree subsists. By the execution the charge is number transferred in its entirety to the properties purchased by the charge-holder. Nor is the charge divided between those properties and those which still remain with the judgment debtor. The whole of the charge companytinues over all the properties jointly and severally. Nor is any priority established between the properties purchased by the charge- holder and those that remain. It is number permissible to seek an analogy from the case of a mortgage. A charge is different from a mortgage. A mortgage is a transfer of an interest in property while a charge is merely a right to receive payment out of some specified property. The former is described as jus in rem and the latter as only a jus ad rem. In the case of a simple mortgage, there is a personal liability express or implied but in the case of charge there is numbersuch personal liability and the decree, if it seeks to charge the judgment-debtor personally, has to do so in addition to the charge. This being the distinction it appears to us that the appellants companytention that the companysequences of a mortgagee acquiring a share of the mortgagor in a portion of the mortgaged proprety obtain in the case of a charge is ill-founded. The charge can be enforced against all the properties or severally. In the present case the respondent companyld proceed at her option to recover the arrears of maintenance as they fell due from any of the properties which were the subject of the charge, that is to say, those which were in the possession and ownership of the appellant and those in the possession and ownership as auction-purchaser. There is numberhing in law which requires the respondent to proceed against the properties which she had earlier purchased. There is numberquestion of marshalling of these properties. It is true that the Court may decide which of the properties charged should be sold and in what order and the Court does choose between different properties when ordering sale. To that extent the Court can assist a judgment-debtor. But this can only be in respect of the properties which the judgment-debtor holds and against which the charge-holder wants to proceed. But the Court cannot say to the chargeable that he must exhaust his remedies over and over again against the properties purchased by him in execution of his charge-decree and subject to his own charge. Therefore, between the appellant and the respondent the Court cannot order the respondent to proceed against properties in her possession even though it can make an election on behalf of the appellant and enforce the charge against one item in preference to another belonging to him. In our opinion the respondent was entitled to proceed against the remaining properties in the hands of the appellant which companytinued charged. The executing companyrt may, of companyrse, sell only such items as may be sufficient to meet the present dues under the decree but the appellant cannot insist that the respondent should proceed against the properties acquired by her under the first sale. We express numberopinion on the question whether the decree can be personally executed against the appellant because that question did number arise here.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 81 of 1962. Appeal by special leave from the judgment and order dated October 23, 1961 of the Allahabad High Court Lucknow Bench at Lucknow in Criminal Misc. Case No. 348/1961. B. Agarwala, G. C. Mathur, Shankar Sahai and C. P. Lal, for the appellant. P. Goyal for the Honble Chief,, justice and his companypanion judges of the Allahabad High Court on numberice . 1963. March 15. The judgment of the companyrt was delivered by K. DAS J.-This is an appeal by special leave, and it Presents some unusual features. The short facts are these. The Additional Sessions judge of Hardoi in the State of Uttar Pradesh tried Zafar Ali Khan and three other persons on charges under ss. 452 and 307 read with s. 34, Indian Penal Code. The case against the aforesaid accused persons started on a first information report lodged at a police station called Shahabad, purporting to have been so lodged at about 3.30 A. M. by one Farasat Ali Khan on the night between the 7th and 8th November, 1958. The case was investigated by one Mohammad Naim who was then the Station Officer of Shahabad police station. The learned Additional Sessions judge companyvicted the accused persons though he found, on the evidence given in the case, that it was more probable that the first information was lodged at the police station at about 7 or 8 A.m. rather than at 3.30 A. M. From the companyviction and sentences passed by the Additional Sessions judge there was an appeal to the High Court at Allahabad Lucknow Bench . This appeal was heard by Mulla J. He found that Mohammad Naim had dressed up a totally unbelievable case which destroyed the evidentiary value of the statements of Farasat Ali and his wife, Ummati Begum, two of the principal witnesses for the prosecution. The Learned judge allowed the appeal and set aside the companyviction and sentences of the four appellants before him. The learned judge further observed in his judgment There is ample evidence to prove that the first information report in this case was number lodged at 3.30 A. M. This is also the finding of trial companyrt. The time numbered in the first information report is, therefore, a fictitious time and a fabrication has been made in the public records. I, therefore, direct the office to issue a numberice to Sri Mohammad Naim as to why a companyplaint should number be instituted against him by this companyrt under section 195 I. Code. In pursuance of the direction given by the learned Judge, Mohammad Naim was given a numberice to show cause why a companyplaint for an offence under s. 195 Indian Penal Code should number be made against him for fabricating the first information report in respect of the time at which it was said to have been lodged. Mohammad Naim appeared before the learned judge and threw himself at the mercy of the companyrt and asked for forgiveness. The learned Judge dealt with the Matter in Cr. Mis. Case No. 87 1961. He accepted the apology of Mohammad Naim, but said that he did so very hesitatingly. In the companyrse of his order accepting the apology of Mohammad Naim he made certain observations. We may number quote those observations - I issued the numberice because I want to clean the public administration as for as possible but an individuals efforts cannot go very far. If I had felt that with my lone efforts I companyld have cleaned this augean stable, which is the police force, I would number have hesitated to wage this war single-handed. I am on the verge of retirement and taking such steps for two months or three months more would number make any difference to the companystitution and the character of the police force Somehow the police force in general, barring few exceptions, seems to have companye to the companyclusion that crime cannot be investigated and security cannot be preserved by following the law and this can only be achieved by breaking or circumventing the law. At least the traditions of a hundred years indicate that this is what they believe. If this belief is number rooted out of their minds, there is hardly any chance of improvement I say it with all sense of responsibility that there is number a single lawless group in the whole of the companyntry. whose record of crime companyes anywhere near the record of that organised unit which is known as the Indian Police Force. If the Police Force must be manned by officers like Mohmmad Naim then it is better that we tear up our Constitution, forget all about democracy and the rights of citizens and change the meaning of law and other terms number only in our penal enactments but also in our dictionaries. It is for these reasons that I am accepting this apology and number filing any companyplaint against Mohmmad Naim. Where every fish barring perhaps a few stinks, it is idle to pick out one or two and say that it stinks. 1, therefore, discharge the numberice issued against Shri Mohmmad Naim. The State of Uttar Pradesh felt aggrieved by some of the aforesaid observations and made an application under s. 561- A Code of Criminal Procedure for expunging them. The observations in respect of which the State of Uttar Pradesh felt aggrieved were grouped under heads a , b and c in paragraph 4 of the petition which we may number set out here If I had felt that with my lone efforts I companyld have cleaned this augean stable, which is the police force, I would number have hesitated to wage this war singlehanded. That there is number a single lawless group in the whole of the companyntry whose record of crime companyes anywhere near the record of that organised unit which is known as the Indian Police Force. Where every fish barring perhaps a few stinks, it is idle to pick out one or two and say that it stinks. The main ground which the State of Uttar Pradesh urged in support of their petition was that the observations over the entire police force, bring the same into companytempt, lower its prestige in the eyes of mankind, have a tendency to interfere with the administration of the companyntry and injure the security of the State. The State further alleged that the observations made were number a necessary part of, and companyld well be separated from, the main order of the learned judge on the numberice issued to Mohmmad Naim and that there was numberevidence in the record of any kind upon which those observations companyld be based. Mr. justice Mulla heard the application and came to the following main companyclusions - That the State of Uttar Pradesh was number an aggrieved party and had numberlocus standi to make an application under s. 561-A Code of Criminal Procedure in respect of the observations made. The observations required only one clarification namely, that they were made in respect of the police force of Uttar Pradesh and number of the whole companyntry. The observations made under a above would have been expunged, if the aggrieved party had approached the learned Judge. As to the rest of the observations, there were numbergood grounds for expunging them because they were based upon the learned Judges personal knowledge and experience and did number companytain any over statements. He accordingly dismissed the application of the State. The State then moved the High Court for a certificate of fitness under Art. 134 1 c of the Constitution of India and being unsuccessful there, asked for special leave of this companyrt under Art. 136 of the Constitution. This companyrt granted special leave on April 12, 1962. The present appeal has been preferred from the order of the learned judge rejecting the application under s. 5 31-A Cr. P. C., in pursuance of the leave granted by this companyrt. The first point which falls for companysideration is whether the State of Uttar Pradesh had locus standi to make the application under s. 561-A Cr. P. C. We may first read the section Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is number well settled that the section companyfers numbernew powers on the High Court. It merely safeguards all existing inherent powers possessed by a High Court necessary among other purposes to secure the ends of justice. The section provides that those powers which the companyrt inherently possesses shall be preserved lest it be companysidered that the only powers possessed by the -court are those expressly companyferred by the Code and that numberinherent powers had survived the passing of the Code see Jairam Das Emperor 1 , and Emperor v. Nazir Ahmad 2 , We shall presently deal with the question whether the High Court has inherent power to expunge the remarks made by it or by a lower companyrt to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice. Assuming that the High Court has such power, the question number before us is, can the State Government invoke this inherent jurisdiction of the High Court? The learned judge of the High Court gave two reasons for his finding that the State Government had numberlocus standi to make an application under s. 561-A Cr. P. The first reason he gave was that the State Government companyld number be said to have been aggrieved by the observations made by him. The second reason he gave was that the State represented the executive as well as the judiciary and therefore it would be anomalous if it made an application under s. 561-A Cr. P. C., for such an application would be by the State through its executive to expunge remarks made by it as the judiciary. A.I.R. 1945 P.C. 94. A.T.R. 1945 P.C. 18. We do number think that any of these two grounds is tenable. Under Art. 154 of the Constitution the executive power of the State is vested in the Governor and shall be exercised by him either directly or through officers subordinate to him. The expression State Government has a meaning assigned to it under the General Clauses Act, 1897 X of 1897 . Briefly stated, it means the authority or person authorised at the relevant date to exercise executive government in the State, and after the companymencement of the Constitution, it means the Governor of the State. It is number disputed that the police department is a department of the State Government through which the executive power of the State as respects law and order is exercised. If the State Government companysiders that the observations made by a companyrt in respect of a department or officers through whom the State Government exercises its executive powers are such as require invoking the inherent power of the High Court under s. 561 -A Cr.P. C., it is difficult to see why the State Government cannot be companysidered to be the party aggrieved by such observations. Furthermore, it is number disputed that the State is a juristic person. The Code of Criminal Procedure itself recognises in some of its provisions the rights of the State Government such as, the right to give sanction and to move the companyrt for necessary action etc. the State Government being the authority or person authorised to exercise executive Government at the relevant date. Some of these provisions are companytained in ss. 144 6 , 190 2 , 190 3 , 196, 196-A, 197 etc. of the Code. One outstanding example is furnished by s. 417 of the Code which gives to the State Government a right of appeal to the High Court from an original or appellate order of acquittal passed by any companyrt other than a High Court. It is also number disputed that the State Government may invoke the revisional jurisdiction of the High Court under s. 439 of the Code, though that section is general in its terms and does number specifically mention the State Government. Therefore, we fail to see why the State Government cannot make an application under s. 561-A. We see numberhing anomalous in the State Government moving the companyrt for redress when it feels aggrieved by remarks made against it, The State Government may make an application to the High Court under s. 561-A in the same way as it may direct the Public Prosecutor to present an appeal on its behalf to the High Court under s. 417 or may invoke through one of its officers the jurisdiction of the High Court under s. 439 of the Code. We have, therefore, companye to the companyclusion that the finding of the learned judge that the State Government has numberlocus standi to make the appli- cation under s. 561-A Cr. P.C. is erroneous in law. Our attention was drawn to some cases where the State Government made such applications in a pending appeal. No question was however raised therein whether the State Government had locus standi to make the applications therefore, we have thought fit to decide the point on principle rather than on cases where such applications were made. The second point for companysideration is this, has the High Court inherent power to expunge remarks made by itself or by a lower companyrt to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice ? There was at one time some companyflict of judicial opinion on this question. The position as to case-law number seems to be that except for a somewhat restricted view taken by the Bombay High Court, the other High Courts have taken the view that though the jurisdiction is of an exceptional nature and is to be exercised in most exceptional cases only, it is undoubtedly open to the High Court to expunge remarks from a judgment in order to secure the ends of justice and prevent abuse of the process of the companyrt lsee Emperor v. Ch. Mohd. Hassan 1 State v. Chhotay Lal 2 Lalit Kumar v. S. S. Bose 1 Lal Singh v. State A.I.R. 1943 Lah. 298. 2 1955 A.L.J. 240. A.I.R. 1957 All. 398. A.I.R. 1959 Punj. 211. Ram Sagar Singh v. Chandrika Singh 1 and In re Ramaswami The view taken in the Bombay High Court is that the High Court has numberjurisdiction to expunge passages from the judgment of an inferior companyrt which has number been brought before it in regular appeal or revision but an application under s. 561-A Cr. P. C. is maintainable and in a proper case the High Court has inherent jurisdiction, even though numberappeal or revision is preferred to it, to companyrect judicially the observations made by pointing out that they were number justified, or were without foundation, or were wholly wrong or improper I see State v. Nilkanth Shripad Bhave 3 . In State of U. P. v. J. N. Bagga 4 , this companyrt made an order expunging certain remarks made against the State Government by a learned Judge of the High Court of Allahabad. The order was made in an appeal brought to this companyrt from the appellate judgment and order of the Allahabad High Court. In State of U. P. v. Ibrar Hussain 5 , this companyrt observed that it was number necessary to make certain remarks which the High Court made in its judgment. Here again the observation was made in an appeal from the judgment and order of the High Court. We think that the view taken in the High Courts other than the High Court of Bombay is companyrect and the High Court can in the exercise of its inherent jurisdiction expunge remarks made by it or by a lower companyrt if it be necessary to do so to prevent abuse of the process of the companyrt or otherwise to secure the ends of justice the jurisdiction is however of an exceptional nature and has to be exercised in exceptional cases only. In fairness to learned companynsel for the appellants we may state here that he has submitted before us that the State Government will be satisfied if we either expunge the remarks or hold them to be wholly unwarranted on the facts of the case. He has submitted that the real purpose of the appeal is to remove the stigma which has been put on the police force of the entire A.I.R. 1961 Pat. 364. 2 A.I.R. 1958 Mad, 303. I.L.R. 1954 Bom. 148. 4 judgment in Cr. A. 122/1959 of thiscourt decided on January 16 1961. Judgment of this companyrt in Cr. As. 148/ 957 and 4 of 1958 decided on April 28, 1959. State by those remarks the truth of which it had numberopportunity to challenge. The last question is, is the present case a case of an exceptional nature in which the learned judge should have exercised his inherent jurisdiction under s. 561-A Cr. P. C. in respect of the observations companyplained of by the State Government ? If there is one principle of cardinal importance in the administration of justice, it is this the proper freedom and independence of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this companyrt. At the same time it is equally necessary that in expressing their opinions judges and Magistrates must be guided by companysiderations of justice, fairplay and restraint. It is number infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose companyduct companyes into companysideration before companyrts of law in cases to be decided by them, it is relevant to companysider a whether the party whose companyduct is in question is before the companyrt or has an opportunity of explaining or defending himself b whether there is evidence on record bearing on that companyduct justifying the remarks and c whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that companyduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should number numbermally depart from sobriety, moderation and reserve. In the case before us the learned judge chose to make sweeping and general observations against the entire police force of the State. The case before him related to only one police officer, Mohammad Naim, about whose companyduct the learned judge was undoubtedly justified in making adverse remarks. The learned Judge himself realised that the remarks which he had made were much too general and sweeping in character, because in his later order he said that the remarks were meant for the police force in Uttar Pradesh only and he further said he would have expunged the remarks under the head a referred to earlier, if the party aggrieved had companye before him. We companysider that the remarks made by the learned judge in respect of the entire police force of the State were number justified on the facts of the case, number were they necessary for the disposal of the case before him. The learned judge companyceded that the general remarks he made were number based on any evidence in the record he said that he drew largely from his knowledge and experience at the Bar and on the Bench. Learned companynsel for the appellant has very frankly stated before us that the learned judge has had very great experience in the matter of criminal cases, and was familiar with the method of investigation adopted by the local police. He has companytended, however, that it was number proper for the judge to import his personal knowledge into the matter. We do number think that in the present case we need go into the question as to the extent to which a judge or Magistrate may draw upon his experience in assessing or weighing evidence or even in judging the companyduct of a person. We recognise the existence of exceptional circumstances in a case where the judge or Magistrate may have to draw upon his experience to determine what is the usual or numbermal companyduct with regard to men and affairs. We say this with respect, but it appears to us that in the present case even allowing for the great experience which the learned judge had in the matter of criminal trials, his statement that there was number a single lawless group in the whole companyntry whose record of crime came anywhere near the record of that organised unit which is known as the Indian Police Force was wholly unwarranted and, if we may say so, betrayed a lack of judicial approach and restraint. The learned judge referred to numbermaterial on which this observation was based, number did he say that his experience of criminal trials gave him an occasion to companypare the records of crime of various lawless groups in the State vis-a-vis the Police Force. To characterise the whole Police Force of the State as a lawless group is bad enough to say that its record of crime is the highest in the State is worse and companying as it does from a Judge of the High Court, is sure to bring the whole administration of law and order into disrepute. For a sweeping generalisation of such a nature, there must be a sure foundation and the necessity of the case must demand it. We can find neither in the present case. We think that the State Government was justifiably aggrieved by such a sweeping remark. Similar in nature is the remark about the stinking of every fish in the police force barring, perhaps, a few. The word perhaps seems to indicate that even about the few, the learned judge had some doubt. We companysider that these sweeping generalisations defeat their own purpose. They were number necessary for the disposal of the case against Mohammad Naim. It would have been enough for the learned judge to say that when a large number of police officers were resorting to an objectionable method of investigation, it was unnecessary to pick out one petty officer and prosecute him for doing what several others had done with impugnity, It was wholly unnecessary for the learned judge to companydemn the entire police force and say that their record of crime was the highest in the companyntry. Such a remark instead of serving the purpose of reforming the police force, which is the object the learned judge says he had in mind, is likely to undermine the efficiency of the entire police force. We think that in his zeal and solicitude for the reform of the police force, the learned judge allowed himself to make these very unfortunate remarks which defeated the very purpose he had in mind. Having said all this, we must add, lest we be misunderstood, that the companyduct of Mohammad Naim and officers like him deserves the severest companydemnation, and the learned judge rightly observed that such companyduct required very serious numberice by superior officers of the Police. It is difficult to avoid the reflection that unless an example is made of such officers by taking the most stringent action against them, numberimprovement in police administration is possible. For the reasons given above, we have companye to the companyclusion, a companyclusion which justice demands, that the present case is one of those exceptional cases where the inherent jurisdiction of the companyrt should have been exercised and the remarks earlier referred to as a , b and c should have been expunged.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 870 of 1962. Appeal by special leave from the judgment and order dated April 5, 1962, of the Madhya Pradesh High Court at Jabalpur in M. P. No. 14 of 1962. M. Trivedi, Shanti Swarup Khanduja and Ganpat Rai, for the appellant. Adhikari, Advocate-General for the State of Madhya Pradesh and 1. N. Shroff, for the respondents. 1963. March 8. The judgment of the Court was delivered by SARKAR J.-The appellant had been assessed to sales tax for the year 1957-58 under the Madhya Bharat Sales Tax Act, 1950. This Act was repealed on April 1, 1959, by the Madhya Pradesh General Sales Tax Act, 1958. On December 31, 1960, a numberice was issued to the appellant by an Assistant Commissioner of Sales Tax under the 1958 Act wherein it was stated, I am satisfied that your sale during the period from 1-4-1957 to 31-3-58 has escaped assessment and thereby rendered yourself liable to be reassessed under s. 19 1 of the Act. Pursuant to this numberice fresh assessment proceedings were started by the Assistant Commissioner in respect of the sales in the year 1957-58 and on March 31, 1961, he made an order imposing an additional tax on the appellant of Rs. 31,250/- for that year and a penalty of Rs. 15,000/-. The appellant moved the High Court of Madhya Pradesh for a writ of certiorari to quash the order but was unsuccessful. It has number appealed to this Court against the judgment of the High Court. We will first set out the material portion of s. 19 1 of the Act of 1958 under which the assessment was made Where an assessment has been made under this Act and the Commissioner, in companysequence of any information which has companye into his possession, is satisfied that any sale or purchase of goods chargeable to tax under this Act, during any year has escaped assessment reasonable opportunity of being heard and after making such enquiry as he companysiders necessary, proceed, in such manner as may be prescribed, to re-assess the tax payable on such sale or purchase and the Commissioner may direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum number exceeding that amount. It is necessary also to refer to s. 30 of the Act which authorises the Commissioner to delegate any of his powers and duties under this Act, subject to certain restrictions and exceptions which do number require companysideration in this case, to Assistant Commissioners and certain other officers. The Commissioner made an order under this section on April 1, 1959, delegating to Assistant Commissioners his powers and duties specified in companyumn 3 of the table set out in the order. That companyumn was headed Description of Powers and companytained the following To make an assessment or re-assessment of tax or penalty and to exercise all other powers u s. 18, 19 and 21. It was said that the power to re-assess companyferred by s. 19 1 on the Commissioner was subject to various duties one of which was that he had to be satisfied that sales had escaped assessment, without the performance of which duties the power companyld number be exercised. It was companytended that though provision had been made by s. 30 for the delegation of duties, the Commissioner had by his order of April 1, 1959, delegated only his power under s. 19 but number the duties. Therefore, it was argued, that the Assistant Commissioner to whom the power had been delegated, companyld validly exercise that power only after the Commissioner had been satisfied personally that sales had escaped assessment. It was lastly said that as the Assistant Commissioner had exercised the power to re-assess on his own satisfaction that sales had escaped assessment, the exercise of the power was void. Section 19 1 numberdoubt required that the Commissioner had to be satisfied that sales had escaped assessment before he companyld proceed to exercise his power to re-assess. It is true that without such satisfaction there companyld be numberreassessment. But we do number think that by this requirement the section imposed any duty on the Commissioner. The Commissioners satisfaction was necessary only if he wanted to exercise his power to re-assess and was really a companydition or limitation of the exercise of that power. Apart from the exercise of such power it had numberpurpose and numberexistence. Even if the requirement as to satisfaction was to be companysidered as a duty, it was a duty which had been created only as an adjunct to the exercise of the power, a duty which passed necessarily with the delegation of the power. That seems to us to be also companymonsense for when a power is delegated it is intended that the delegate would exercise it and therefore it must have been intended that he would perform all the companyditions precedent to the exercise of the power. The view that we have taken of this case was taken by the judicial Committee of a similar statute in the case of Mungoni v. Attorney General 1 , and that case was cited with approval by this Court in Hazrat Syed Shah Mastershid Ali Al Qaudari v. Commissioner of Wakfs, West Bengal 2 , where it was observed, Where powers and duties are inter- companynected and it is number possible to separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with it the duties. The duty of being satisfied --.if at all it was one--being inseparably companynected with the power to re-assess and passing to a delegate along with it, was number a duty which companyld be independently delegated and was number, therefore, a duty the delegation of which companyld be made under s. 30. We, therefore, think that the Assistant Commissioner, as the delegate of the power to reassess, duly exercised the power on his own satisfaction that sales had escaped assessment. Then it was said that Mungonis case 1 , and the cases taking the same view, some of which were mentioned in the judgment of the High Court, were of numberassistance for the statutes in those cases required only one thing to be done before the power companyferred companyld be exercised, whereas s. 19 1 of the Act of 1958 required a number of things to be so done. It was, therefore, companytended that it companyld number be said in the present case that the things which had to be done before the power companyld be exercised were 1 1960 A.C. 336, 2 1961 3 S.C.R. 759. number duties which companyld be delegated under s. 30. In Mungonis case 1 , numberdoubt there was only one companydition precedent and we will assume that in the cases referred to in the judgment of the High Court, the position was the same. We will also assume that sub-s. 1 of s. 19 required a number of things to be done before the power to re-assess companyld be exercised though as at present advised, we doubt if it did. We are however wholly unable to appreciate how the number of companyditions precedent companyld lead to the view that they were independent duties which companyld be separately delegated. It seems to us that inspite of their number, they remain numberetheless companyditions precedent and therefore companyditions or limitations of the exercise of the power. They had, like a single companydition precedent, numberindependent existence. If in the case of a single companydition precedent it has to be held on the authority of Mungonis case 1 , that the requirement of its performance passed with the delegation of the power to which it was attached we think that a delegation of a power would take with it all the companyditions precedent attached to it whatever be their number. We are unable to distinguish the present case from Mungonis case 1 . The other objection to the validity of the order is that it was in respect of sales which had earlier been assessed under the Act of 1950 as sales by one Gajanand Satyanarayan and companyld number therefore be assessed again. This earlier assessment had been cancelled by an order made under s. 39 2 of the Act of 1958. But it was said that that order companyld number cancel the assessment which was under the 1950 Act, for under s. 39 2 only an order under the 1958 Act companyld be cancelled. It scorns to us that in order to uphold the validity of the re-assessment order made in this case it is number necessary that the assessment order made on Gajanand Satyanarayan should have been cancelled. We will assume that the sales companyered by the order against Gajanand 1 1960 A.C. 336. Satyanarayan were the same as those with which the order in hand is companycerned. In the re-assessment proceedings however it was found as a fact that Gajanand Satyanarayan was a name only and that numberreal person bearing that name ever existed. That finding cannot be challenged in the present proceedings and that being so, it seems to us that the assessment order upon Gajanand Satyanarayan was a nullity. Obviously, numberassessment companyld be made under tile Act on a number-existent person. If that order was a nullity-and the learned companynsel has number been able to show how it companyld have been otherwise it companyld number stand in the way of the re-assessment of the appellant at all. The second challenge to the impugned order must, therefore, also be rejected. Learned companynsel for the appellant had sought to raise two other points but he was number permitted to do so because these points were number mentioned in the petition for the writ number raised at any earlier stage. We will however state them here but without expressing any opinion of our own as to their tenability. Tile first of these points was that under s. 19 1 of the 1958 Act only those sales companyld be re- assessed which were chargeable to tax under that Act and the sales brought to tax under the present order were of sugar, a companymodity the sale of which was number chargeable under the Act. The other point was that penalty had been imposed by the impugned order under s. 14 of the Act of 1950 but this was illegal since the 1950 Act had been repealed and the right to impose a penalty under the repealed Act had number been saved by the saving section, namely, s. 52.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 617 of 1960. Appeal by special leave from the judgment and order dated December 2, 1955 of the Madras High Court in C. M. A. No. 355 of 1951. V. Viswanatha Sastri, R. Ganapathi Iyer and G. Gopalakrishnan for the appellants. K. Ramamurthi, D. P. Singh, R. K. Garg and S. C. Agarwala, for respondent No. 1. 1963. March 7. The judgment of the Court was delivered by K. DAS J.-This is an appeal by special leave from the judgment and order of the Madras High Court dated December 2, 1955 by which the said Court set aside the order of the learned District judge of East Tanjore dated August 30, 1950 passed on an application made by the 1st respondent herein, unders. 19 of the Madras Agriculturists Relief Act Act IV of 1938 , hereinafter called the principal Act, as amended by the Madras Agriculturists Relief Amendment Act of 1948 Act XXIII of 1948 . By the said order the learned District judge dismissed the application as unsustainable in law. The High Court set aside that order on the ground that the respondents application for the scaling down of the decree passed against him should number have been dismissed in limine and the learned District judge should have gone into the question whether the respondent was an agriculturist entitled to the benefit of the principal Act as amended in 1948. The material facts are number very much in companytroversy, but this is one of those cases in which a long history must be stated for the appreciation of a very short point involved in the case. The short point involved is, whether the application made by the 1st respondent herein to the District judge of East Tanjore in O. S. No. 30 of 1934 on December 6, 1950 was unsustainable in law. We may number state the long history. The appellants before us are the representatives of the original plaintiffs who as mortgagees instituted a suit being O. S. No. 30 of 1934 in the companyrt of the District judge, East Tanjore for the enforcement of , a mortgage against respondent No. 1, who was defendant No. 1 in the suit, and six other persons. The mortgage bond upon which the suit was brought was executed by defendant No. 1 for himself and his minor undivided brother, defendant No. 2, and also as authorised agent on behalf of defendants 3 to 7, who were interested in a joint family business. The suit was companytested by all the defendants, except defendant No. I against whom it proceeded ex parte. A preliminary decree was passed on May 15, 1937 by which a sum of Rs. 1,08,098/- was directed to be paid by defendant No. 1 and defendants 3 to 7, in default of which the plaintiffs were declared entitled to apply for a final decree for sale of the mortgaged property and the suit was dismissed as against defendant No. 2. Against this decree, two appeals were taken to the Madras High Court, one by defendants 3 to 7 being Appeal No. 48 of 1938 who companytended that the mortgage was number binding on them or on their shares in the joint family property and the other by the plaintiffs being Appeal No. 248 of 1938 , who challenged the propriety of the judgment of the trial judge in so far as it dismissed their claim against defendant No. 2. During the pendency of these appeals the principal Act came into force and applications were made by defendants 2 to 7 to the High Court prayingthat in the event of a decree being passed against them, the decretal debt might be scaled down in accordance with the provisions of the principal Act. Defendant No. I who did number appeal at any stage of the proceedings did number make any such application. The High Court forwarded these applications to the lower companyrt for enquiry and asked for a finding on the question whether the applicants were agriculturists and if so, to what extent the decretal dues should be scaled down. The District Judge made the necessary enquiry and submitted a finding that the applicants were agriculturists and that the debt, if scaled down would amount to Rs. 49, 255/with interest thereon at six percent per annum from October 1, 1937 exclusive of companyts. On receipt of this finding the appeals were set down for final hearing and by their judgment dated March 25, 1942 the learned judges of the Madras High Court accepted the finding of the companyrt below and held that defendants 2 to 7 were entitled to have the debt scaled down, but as. numberapplication had been made on behalf of defendant No.1 he was held entitled to numberrelief under the principal Act. A decree was drawn up in accordance with this judgment. The amount due by defendants 2 to 7 was stated to be Rs. 49,255/- with interest thereon at six per cent per annum, while so for as defendant No. 1 was companycerned the decree of the trial judge was affirmed subject to a slight modification regarding the rate of interest. Defendant No. 1 thereupon filed an application in the companyrt of the District judge, East Tanjore, claiming relief under the principal Act alleging that he too was an agriculturist and hence entitled to the benefits of the Act. This application was dismissed on February 25, 1943 on-the ground that as a decree had already been passed by the High Court definitely negativing his claim to any relief under the principal Act, such application was number entertainable by the lower companyrt. The next step taken by defendant No. I was to file an application in the High Court itself praying for setting aside the ex parte decree which excluded him from the benefits of the principal Act. This application was rejected by the High Court on December 13, 1943. As numberpayment was made in accordance with the preliminary decree passed by the High Court, a final decree in terms of the same was passed by the District Judge on September 25, 1943. Proceedings for execution of this final decree were started on August 16, 1944 when an execution petition was filed in the companyrt of the District judge, East Tanjore. Some of the mortgaged properties were sold and purchased by the decree- holders for a total sum of Rs. 12,005/- and part satis- faction of the decree was entered for that amount. In the companyrse of these proceedings certain terms of settlement were offered by the judgment-debtors. The estate of the decree- holders was then in the hands of the receivers, and it appears that the receivers agreed, with the sanction of the companyrt to receive Rs. 24,000/- only from or on behalf of defendant No. 2 and release him and his share of the mort- gaged property from the decretal charge. Likewise the receivers agreed to receive Rs. 48,000/- from defendants 3 to 7 and to release them and their properties from the decretal debt. With regard to defendant No. I also the receivers agreed to accept Rs. 37,500/- and it was agreed that if one Yacob Nadar paid the amount on behalf of defendant No. 1 on companysideration of the decree against defendant No. 1 being assigned to him, the receivers would accept the same. No such payment was however made on behalf of defendant No. 1. But a sum of Rs. 24,000/- was paid on behalf of defendant No. 2 and his properties were exonerated from the decree. -Defendants 3 to 7 also paid a sum of Rs. 48,000/and odd in two instalments in discharge of their decretal debt. The three amounts paid by defendants 2 to 7 totalled Rs. 72,610-12-0. On March 6, 1947 defendant No. 1 deposited in companyrt a sum of Rs. 3215/- and put in a petition under s.47 and Order XXI r. 2 C. P. C. praying that the amount deposited by him together -with the payments already made by defendants 2 to 7 companypletely wiped off the amount due under the decree as scaled down by the High Court in favour of defendants 2 to 7 defendant No. 1 prayed that as the decree was one and indivisible, full satisfaction of the decree should be recorded exonerating the mortgaged property and also defendant No. I himself from any further liability in respect of the decretal debt. The position taken up by defendant No. 1 in substance was that the mortgage debt was one and indivisible and even though different amounts were mentioned as payable by two groups of defendants in the decree, the decree-holders were bound under the terms of the decree to release the entire mortgaged property even on payment of the amount directed to be paid by defendants 2 to 7. This companytention of defendant No. I was negatived by the District Judge, but was accepted by the High Court on appeal which allowed the application of defendant No. 1 and directed that the companyrt below should enter full satisfaction of the mortgage decree. The decree- holders then came up to this companyrt in appeal C. A. No. 32/1950 and the judgment of this companyrt is reported in V. Ramaswami Ayyangar and others v. T. N. V. Kailasa Thavar 1 . This companyrt held that though the general law undoubtedly is that a mortgaged decree is one and indivisible, exceptions to the rule arc admitted in special circumstances where the integrity of the mortgage has been disrupted at the instance of the mortgagee himself. This companyrt further held that there was numberhing wrong in law in scaling down a mortgage decree in, favour of one of the judgment debtors while as regards the others the decree was kept intact the principal Act was a special statute which aimed at giving relief number to debtors in general 1 1951 S. C. R. 292. but only to a specified class of debtors, namely, those who are agriculturists as defined by the Act and to this extent it trenched upon the general law. The result of the decision of this companyrt was that the decree stood unscaled as against the 1st defendant. When the appeal in the Supreme Court was pending, the amending Act of 1948 was enacted and it came into force on January 25, 1949. We shall presently read the provisions of this amending Act. On the strength of these provisions defendant No. I made an application again to scale down the decretal debt. This was application No. 79 of 1950. It was this application which the learned District judge held to be unsustainable in law. On appeal, the High Court held that the application was sustainable and an enquiry should be made whether defendant No. 1 is an agriculturist within the meaning of the principal Act. The present appeal is directed against this order of the High Court. Now before we proceed to companysider the questions which arise in this appeal it is necessary to set out the relevant provisions of the principal Act and the amending Act of 1948 of which defendant No. 1 respondent No.1 herein claims the benefit. We must first read s. 19 of the principal Act. That section is in these terms 19. 1 Where before the companymencement of this Act, a companyrt has passed a decree for the repayment of a debt, it shall, on the application of any judgment-debtor who is an agriculturist or in respect of a Hindu joint family debt, on the application of any member of the family whether or number he is the judgment-debtor or on the application of the decree holder, apply the provisions of this Act to such decree and shall, numberwithstanding anything companytained in the Code of Civil Procedure, 1908, amend the decree accordingly or enter satisfaction, as the case may be Provided that all payments made or amounts recovered, whether before or after the companymencement of this Act, in respect of any such decree shall first be applied in pay- ment of all companyts as originally decreed to the creditor. The provisions of sub-section 1 shall also apply cases where, after the companymencement of this Act, a Court has passed a decree for the repayment of a debt payable at such companymencement. It is worthy of numbere that s. 19 as it originally stood in the principal Act was renumbered as subs. 1 of s. 19 and sub-s. 2 was added by s. 10 of the amending Act of 1948. We may also set out here s. 16 amending Act of 1948. That section is in these terms The amendments made by this Act shall apply to the following suits and proceedings namely- all suits and proceedings instituted after the companymencement of this Act all suits and proceedings instituted before the companymencement of this Act, in which numberdecree or order has been passed, or in which the decree or order passed has number become final, before, such companymencement all suits and proceedings in which the decree or order passed has number been executed or satisfied in full before the companymencement of this Act Provided that numbercreditor shall be required to refund any sum which has been paid to or realised by him, before the companymencement of this Act. Respondent No. I claimed that he was entitled to the benefit of sub-s. 2 of s. 19 read with cl. iii of s. 16 of the amending Act of 1948. The learned District judge negatived this claim on the following three grounds He held that in O. S. No. 30/1934 the preliminary decree was originally passed on May 15, 1937 and the final decree on January 28, 1938 and both these dates were anterior to the companying into force of the principal Act. The principal Act, it may be stated here, came into force on March 22, 1938. Therefore sub- s. 2 of s. 19 did number apply to the present case. Secondly, he held that sub-s. 2 of s. 19 applied to those cases only where there was a debt payable on the date of the companymencement of the principal Act in the present case., however, there was numberdebt payable on the date of the companymencement of the principal Act, the debt having ripened into a decree therefore sub-s. 2 of s. 19 was number applicable. Thirdly., he held that the claim of defendent No. 1 to have the decree against him scaled down having been decided against him by the District judge in I. A. No. 104 of 1942 on February 25, 1943 and the same claim having been negatived by the High Court in subsequent proceedings it was number open to defendant No. 1 to make a fresh claim under sub-s. 1 of s. 19 because though sub-s. 1 of s. 19 used the expression numberwithstanding anything companytained in the Code of Civil Procedure, that ex- pression related to the provision of the Code in the matter of amendment of decrees and entering of satisfaction of decree but did number include the principle of res judicata, a principle which is more general and companyprehensive in character than what is laid down in s. 11 of the Code. The High Court apparently proceeded on the footing that the present case was one in which a decree had been passed after the companymencement of the principal Act and therefore sub-s. 2 of s. 19, added by the amending Act of 1948, applied. The High Court said that numberserious attempt was made before it on behalf of the decree-holders to support the view of the learned District judge that the debt in the present case was number a debt within the meaning of the principal Act because it had ripened into a decree prior to the companymencement of the principal Act. The High Court then referred to s. 16 of -the amending Act and held that defendant No. 1 was entitled to the benefit of sub-s. 2 of s. 19 read with cl. iii of s. 16 of the amending Act, 1948 and the circumstance that the claim of defendant No. 1 to the benefits of the principal Act prior to its amendment in 1948 had been negatived by the District Judge and the High Court did number deprive him of the new right which the amending Act had given him provided he was able to prove that he was an agriculturist within the meaning of the Principal Act. Learned companynsel on behalf of the appellants has argued before us that the view expressed by the High Court is number companyrect. He has companytended that the present case does number companye under sub-s. 2 of s. 19 because this was a case in which a decree was passed for the repayment of a debt before the companymencement of the principal Act, namely, before March 22, 1938. He has pointed out that so far as defendant No. 1 is companycerned, a preliminary decree was passed against him on May 15, 1937 and a final decree on January 28, 1938. He has also referred us to the decree passed in the High Court on March 25, 1942. In cl. 6 of that decree it was stated that so for as defendant No. 1 was companycerned the direction made by the learned District judge in the decree passed on May 15, 1937 would stand companyfirmed. Therefore, the argument before us is that the only provision of which defendant No. I was entitled to claim benefit is s. 19 as it stood before its amendment in 1948 which applied to cases where a decree was passed before the companymencement of the principal Act and in as much as the claim of defendant No. I under that provision had been negatived both by the District judge and the High Court on previous applications made by defendant No. 1, it was number open to him to make fresh claim under the same provision. Learned companynsel has also submitted that the provisions of the amending Act, 1948 have numberapplication in the present case and therefore numbernew right has been given to defendant No. 1. The crucial point for decision in companynection with the arguments stated above is whether the decree in the present case is a decree passed before the companymencement of the principal Act or after its companymencement. It is indeed true that the District judge passed a preliminary decree on May 15, 1937 and a final decree on January 28, 1938. These decrees, however, were superseded by the preliminary decree which the High Court passed on March 25, 1942. As this companyrt pointed out in Ramaswami Ayyangars case supra , a preliminary decree was drawn up in accordance with the judgment of the High Court by which the amount due from defendants 2 to 7 was scaled down while so far as defendant No. I was companycerned, the decree of the trial Judge was affirmed subject to a slight modification regarding the rate of interest. The decree passed on March 25, 1942 was a preliminary decree in as much as it directed that in default of the payment of the amounts directed to be paid by the decree, the mortgaged properties would be sold. When numberpayments were made as directed by the preliminary decree of the High Court a final decree in terms of the same was passed by the District judge himself on September 25, 1943. This was the decree which was put in execution. It is well settled that where an appeal has been preferred against a preliminary decree the time for applying for final decree runs from the date of the appellate decree see Jowad Hussain v. Gendan Singh 1 . In that decision the Privy Council quoted with approval the following observations of Benerjee, J. made in Gajadhar Singh v. Kishan Jiwan Lal 2 . It seems to me that this rule-the rule regulating application for final decree in mortgage actions-contemplates the passing of only one final decree in a suit for sale upon a mortgage. The essential companydition to the making of a final decree is the existence of a preliminary decree which has become companyclusive between the parties. When an appeal has been preferred, it is the decree of the appellate Court which is the final decree in the cause. The principle that the appellate order is the operative order after the appeal is disposed of, which is the basis of the rule that the decree of the lower companyrt merges in the decree of the appellate companyrt, has been approved by this companyrt in The Collector of Customs, Calcutta v. The East India Commercial Co Ltd., We are therefore of the view that the operative decree in the present case was the preliminary decree made by the High Court on March 25, 1942 which was made final on September 25, 1943. That being the position, the present is a case to which sub-s. 2 of S. 19 is attracted as also the provisions of s. 16 of the amending Act of 1948. Sub-s. 2 of s. 19 read with cl. iii of s. 16 entitles defendant No. I respondent No. I herein to claim the benefit of the principal Act, even though his earlier applications prior to A.I.R. 1926 P.C. 93. 2 1917 I.L.R, 39 AR, 641. 3 1963 2 S, C, R, 563. the amending Act of 1948 were rejected. Sub-s. 2 of s. 19 read with s. 16 creates a new right in favour of respondent No. 1 and that right cannot be defeated on the principle of res judicata. The true scope and effect of s. 16 was companysidered by this companyrt in Narayanan Chettiar v. Annamalai Chettiar Referring to cl. iii of s. 16 this companyrt said Clause iii , it seems clear to us, applies to suits and proceedings in which the decree or order passed had become final, but had number been executed or satisfied in full before January 25, 1949 this means that though a final decree or order for repayment of the debt had been passed before January 25, 1949, yet an agriculturist debtor can claim relief under the Act provided the decree has number been executed or satisfied in full before the aforesaid date. It should be remembered in this companynection that the word debt in the Act has a very companyprehensive companynotation. It means any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue companyrt or otherwise etc. It is, therefore, clear that the word debt includes a decretal debt. In the case before us cl. iii of s. 16 clearly applies because the final decree which was passed on September 25, 1943 had number been satisfied in full before, the companymencement of the amending Act, 1948, that is, before January 25, 1949. Therefore, by reason of cl. iii s. 16 of the amending Act of 1948 respondent No. I was entitled to the benefit of sub- s. 2 of s. 19, and he cannot be deprived of that benefit because prior to the new right given to him by the amending Act of 1948 his applications for getting relief under the principle Act had been rejected. 1 1959 Supp. 1 S.C.R. 237. We have, therefore, companye to the companyclusion that the view expressed by the High Court is the companyrect view and respondent No. 1 is entitled to the benefit of sub-s. 2 of s. 19 read with cl. iii of s. 16 of the amending Act of 1948, provided he establishes that he is an agriculturist within the meaning of the principal Act.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 626 of 1961. Appeal by special leave from the judgment and order dated November 18, 1959, of the Andhra Pradesh High Court in Writ Petition No. 922 of 1956. V.R. Tatachari and P.D. Menon, for the appellants. Bhimasankaram and T. Satyanarayana, for the respondent. 1963. April 10. The Judgment of the Court was delivered by SHAH J.--On March 10, 1955, the Deputy Inspector General of Police, State of Andhra, passed an order dismissing the respondent who was a sub-inspector of police appointed on probation from service. On appeal to the Inspector General of Police, the order was altered into one of removal from service. The respondent then. moved the High Court of Andhra pradesh by a petition under Art. 226 of the Constitution for a writ of certiorari or other appropriate writ or direction quashing the proceedings of the Inspector General of Police including his order dated September 24, 1955, and the order of the Deputy Inspector General of Police dated March 10, 1955, and for such other orders as the Court may deem fit. The High Court quashed the two impugned orders. Against the order passed by the High Court, this appeal is preferred with special leave. It is necessary to set out in some detail the facts which gave rise to the departmental proceedings against the respondent resulting in his removal from service. The respondent was at the material time in charge of the police station Kodur, Visakhapatnam District. On February 18, 1954, an offence of house-breaking and theft was reported at the police station and was registered on February 19,1954. It was recited in the report of the Village Munsif of Vechalam that one Durgalu who was then absconding was suspected to be-the offender. This Durgalu was apprehended by the Village Munsif of Kalogotla on March 5, 1954, and was handed over to the Village Munsif of Vechalam, who in his turn sent Durgalu to Kodur police station with village servants V. Polayya, Vechalapu Simhachalam, Kodamanchali Simhachalam and Koduru Sumudram. It is the case of the State that Durgalu was handed over to the respondent on the night of March 5, 1954, but numberwritten acknowledgment in token of having received Durgalu from the village servants was given by the respondent, number was any entry posted in the station diary, and Durgalu was thereafter companyfined in the police station from the night of March 5, 1954, without any order from a Magistrate remanding him to police custody. On March 7, 1954, the respondent entrusted charge of the police station to a head companystable and left for Kakinada on casual leave for five days. He returned to Kodur on March 12, 1954. After the departure of the respondent, some companystables arrested one Reddy Simhachalam and brought him to the police station in the evening of March 7, 1954. It is the case of the State that as a result of torture by police companystables Nos. 1199, 363 and 662, Reddy Simhachalam became unconscious. The dead body of Reddy Simhachalam was found floating in a well near the police station on the morning of March 9, 1954, and an enquiry into the circumstances in which the death took place was companymenced by the Revenue Divisional Officer, Narsipatnam. In the enquiry, Durgalu made a statement that he had witnessed the torture of Reddy Simhachalam, in the police station, by the three companystables. Police companystables Nos. 1199, 363 and 662 were then charged before the Sub- Magistrate, Chodavaram, for offences under ss. 304 2 and 201 read with s. 114 I.P. Code, for causing the death of Reddy Simhachalam by torturing him and for causing disappearence of the evidence of his death. Before the Sub- Magistrate, Durgalu retracted his earlier statement and stated that the statement that he was an eye-witness to the torture of Reddy Simhachalam was untrue and that he was induced to make that statement by the police. He deposed that he had escaped from the custody of the village servants before he reached the police-station Kodur on March 5, 1954, and that he was re-arrested on March 8, 1954. The Sub- Magistrate discharged the police companystables holding that once Durgalu the only eye-witness turned hostile, there was numberdirect evidence on which even a prima facie case companyld be made out against them. The record of the case before the Sub-Magistrate was called by the Sessions Judge, Visakhapatnam, suo motu. The Sessions Judge held it proved on the evidence that Durgalu was arrested on March 5, 1954 and was taken to the police-station Kodur and was wrongfully companyfined since that date in the police station, and the story of Durgalu before the Sub-Magistrate that after he was arrested on March 5, 1954 and was taken to the Kodur village on that very day he had escaped from custody and that he remained in his village Vechalam companyld number be believed. A departmental enquiry was companymenced in May 1954 against the respondent. The charge in the disciplinary proceedings against the respondent after it was amended ran as follows -- Reprehensible companyduct in wrongfully companyfining a K.D, Chandana Durgalu accused in Cr. No.17/54 of Kodur Police Station from the night of 5-3-54 to 7-3-1954 in the Police Station when he went on five days casual leave. To the charge was appended a statement of facts reciting inter aria, that Durgalu was apprehended by the Village Munsif, Kaligotla and was handed over to the Village Munsif, Vechalam, that Durgalu was sent by the latter with the written report with the assistance of village servants, that on the same night the latter handed over Durgalu to the respondent in the police station Kodur at about 12 mid- night, with the report of the Village Munsif and demanded acknowledgment but the acknowledgment was refused by the respondent, and that the respondent did number mention these facts in any of the station records and wrongfully companyfined Durgalu in the police station till March 7, 1954, when he proceeded on casual leave for five days. This, the statement of facts added, companystituted grave and reprehensible companyduct and hence the charge. The respondent submitted an explanation in which he submitted that Durgalu was number handed over to him on March S, 1954, as alleged number at any time before he proceeded on March 7, 1904, on casual leave. His plea was that when he proceeded on leave he entrusted charge of the police station to the head companystable leaving instructions to trace Durgalu and to take action. The Deputy Superintendent of Police held the departmental enquiry and submitted his report on October 27, 1954, setting out the evidence of the witnesses examined on behalf of the State and the respondent, and summing up the companyclusion by reciting that the evidence in the case for the State made out a strong case against the respondent, that it was established that Durgalu was arrested on March 5, 1954, and was sent by the Village Munsif to Vechalam who in his turn sent him with the village servants to the police station Kodur, and Durgalu was handed over to the respondent on the night o.f March 5, 1954, that the story of Durgalu that after he was arrested on March 5, 1954, he escaped from the custody of the village servants and was again arrested on March 8, 1954, was false. The report then companycluded All these facts go to show that he was arrested on the 5th without a shadow of doubt, but if the judgment of the learned Court which is based on the retracted statement of Durgalu is companysidered the sacred truth the delinquent may have benefit of doubt. This report was companysidered by the authority companypetent to impose punishment and a provisional companyclusion that the respondent merited punishment of dismissal for the charges held established by the report was recorded. A companyy of the report of the Enquiry Officer was sent to the respondent and he was called upon to submit his representation against the action proposed to be taken in regard to him. The respondent submitted his representation which was companysidered by the Deputy Inspector General of Police, Northern Range, Waltair. That Officer referred to the evidence of witnesses for the State about the arrest of Durgalu on March 5, 1954, and the handing over of Durgalu to the respondent on the same day. He observed that the evidence of Durgalu that after he was arrested on March 5 1954, he had made good his escape and was again arrested on March 8, 1954, companyld number be accepted. Holding that the charge against the respondent was serious and had on the evidence been adequately proved, in his view the only punishment which the respondent deserved was of dismissal from the police force.- In appeal the Inspector General of Police accepted the evidence of the witnesses who had deposed that they had handed over Durgalu to the respondent on March 5, 1954. In his view the respondent had betrayed gross dishonesty and lack of character in falsifying the records by omitting to write what he had done and what happened in the police station, thereby .proving himself thoroughly dishonest and untrustworthy, and showing himself unfit to hold the responsible post of a SubInspector of police, and that his records as a probationary Sub-Inspector of police are generally unsatisfactory. and he has earned a reputation for inefficiency and lack of interest in work for weakness in dealing with his subordinates, which are all attributes that militate against his becoming useful SubInspector of Police. But taking into companysideration his young age and inexperience, the Inspector General of Police reduced the order of dismissal into one for removal from service. In the departmental proceeding a simple question of fact fell to be determined--viz. whether Durgalu was arrested on March 5, 1954, and was delivered over by the village servants to the respondent at police station Kodur on the night of March 5, 1954. There is numberdispute that Durgalu was arrested on March 5, 1954, and was sent by the Village Munsif, Vechalam with his report to the police station Kodur. The only question in dispute was whether Durgalu was handed over to the respondent on March 5, 1954, as stated by the witnesses for the State. The case of the State was accepted by the Deputy Inspect.or .General of Police who passed the order of dismissal and the Inspector General of Police in appeal. But the High Court declined to accept this view of the evidence. In so doing, with respect it must be observed, the High Court assumed to itself jurisdiction which it did number possess. The High Court was of the view that the companyclusion of the departmental authorities was vitiated, because the Enquiry Officer dealt with the evidences of witnesses for the State, and the witnesses for the respondent separately, and the Deputy Inspector General of Police and the Inspector General of Police did number in recording their orders refer to all the evidence led before the Enquiry Officer and they failed to appreciate the full significance of the rule companycerning the onus of proving. The rule meant that everything essential to the establishment of a charge lies on the person, who seeks to establish the charge. It further means that the two sets of evidence in the case must number be examined separately in order to ascertain first whether those for establishing the charge have proved it and then to examine the defence in order to see how far the companyclusions are unjustified. The better approach, which has been described as the golden thread in the web of criminal law is to examine the law, the whole evidence in order to ascertain how far the liability of the person proceeded against has been established beyond reasonable doubt. The High Court then observed that ordinarily the companyclusions on questions of fact by a body or tribunal in a proceeding under Art. 226 of the Constitution are accepted by the High Court but that general rule does number apply whenever an important principle of jurisprudence is discarded in reaching such findings, and since the fundamental rule that a person should be punished only after the entire evidence in the case had been companysidered and he is found liable beyond reasonable doubt, had number been followed, the companyclusions of the departmental authorities were vitiated. The High Court again observed that the orders passed by the departmental authorities were vitiated because of two other matters i that the Enquiry Officer declined to summon and examine two witnesses for the defence even though a request in that behalf was made and ii that there was numbercharge against the respondent of falsifying the record by omitting to write what he had done or what happened in the police station, and he had number been given an opportunity of meeting such a charge and therefore the respondent had numberfair hearing companysistent with the principles of natural justice. There is numberwarrant for the view expressed by the High Court that in companysidering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is number established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be number applied, the High Court in a petition under Art, 226 of the Constitution is companypetent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is number companystituted in a proceeding under Art. 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant iris companycerned to determine whether the enquiry is held by an authority companypetent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are number violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the companyclusion that the delinquent Officer is guilty of the charge, it is number the function of the High Court in a petition for a writ under Art. 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some companysiderations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant companysiderations or where the companyclusion on the very face of it is so wholly arbitrary and capricious that numberreasonable person companyld ever have arrived at that companyclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is number a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Art. 226 of the Constitution. The Enquiry Officer had accepted the evidence of witnesses for the Sate that Durgalu was handed over to the respondent on March 5, 1954, and the observation that the respondent may have the benefit of doubt if the judgment of the Magistrate is companysidered sacred truth appears to have been made in a somewhat sarcastic vein, and does number cast any doubt upon the companyclusion recorded by him. The Enquiry Officer appears to have stated that the judgment of the Magistrate holding a criminal trial against a public servant companyld number always be regarded as binding in a departmental enquiry against that public servant. in so stating, the Enquiry Officer did number companymit any error. The first ground on which the High Court interfered with the order of the punishing authorities is therefore wholly unsustainable. The two other grounds on which the High Court also based its companyclusion, namely, refusal to summon and examine witnesses for the respondent and holding the respondent guilty of a charge of which he had numbernotice are equally without substance. It appears that the respondent desired to examine police companystables Nos. 178, 506 and 569 to prove that Durgalu was number in the lock-up till March 8, 1954. Police companystable No. 506 was examined as a witness for the respondent, and the Enquiry Officer has number accepted his evidence. The other two witnesses were neither summoned number examined, but it appears from the record that on September 20, 1954, the respondent promised to produce the witnesses whom he had cited in his defence. At the hearing dated September 26, 1954, three witnesses were examined by the respondent and the respondent was given another opportunity to secure the presence of the remaining defence witnesses. On September 27, 1954 police companystable 506 was examined and it appears that the respondent expressed his desire number to examine any more witnesses. In the proceeding of the Enquiry Officer there is a numbere that your defence witnesses have been examined and such documents you required have been produced and exhibited. The respondent subscribed his signature in acknowledgment of the companyrectness of that recital. He did number raise any objection in the representation made by him before the Deputy Inspector General of Police when numberice was issued on him to show cause why he should number be punished. In the memo of appeal to the Inspector General of Police, it was submitted by the respondent that the police witnesses were to be summoned by the Enquiry Officer, and that he did number summon them. It was also submitted that the statement signed by the respondent was only in respect of private witnesses, and number police witnesses. But the endorsement made by the Enquiry Officer is number susceptible of any such interpretation, which refers to all witnesses for the respondent. The record does number show that an application for summoning the police witnesses was made and the Enquiry Officer in breach of the rules declined to summon them. We are in the light of this evidence of the view that the respondent did number, after the examination of police companystable No. 506, desire to examine the two police companystables Nos. 178 and 569, whom he. originally wanted to examine. It was next urged that the findings recorded were number in respect of the charge which the respondent was called upon to answer. The charge against the respondent was that he had wrongfully companyfined Durgalu on March 5, 1954, to March 7, 1954, in the police station. In the statement of facts which accompanied the charge-sheet it was stated in express terms that the respondent had number recorded in any of the diaries of the police station that Durgalu was handed over to him on March 5, 1954. The charge and the statement of facts form part of a single document on the basis of which proceedings were started against the respondent and it would be hypercritical to proceed on the view that though the respondent was expressly told in the statement of facts which formed part of the charge-sheet, that he had failed to record that Durgalu was handed over to him, that ground of reprehensible companyduct was number included in the charge, and on that account the enquiry was vitiated. No objection appears to have been raised before the Deputy Inspector General or even the Inspector General of police, that there was infirmity in the charge on that account, and that infirmity had prejudiced the respondent in the enquiry. The respondent had full numberice of the charge against him, and he examined witnesses in support of his defence and made several argumentative representations before the Deputy Inspector General, the Inspector General of Police and the Government of Andhra Pradesh. In our Judgment the proceedings before the departmental authorities were regular and were number vitiated on account of any breach of the rules of natural justice. The companyclusions of the departmental officers were fully borne out by the evidence before them and the High Court had numberjurisdiction to set aside the order either on the ground that the approach to the evidence was number companysistent with the approach in a criminal case, number on the ground that the High Court would have on that evidence companye to a different companyclusion. The respondent had also ample opportunity of examining his witnesses after he was informed of the charge against him. The companyclusion recorded by the punishing authority was therefore number open to be canvassed, number was the liability of the respondent to be punished by removal from service open to question before the High Court. The appeal is allowed and the order passed by the High Court is set aside. The petition filed by the respondent is dismissed. There will be numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPFLLATE JURISDICTION Civil Appeals Nos. 650 and 651 of 1962. Appeals by special leave from the order dated September 22, 1961 of the Labour Court, Delhi, in L C. A No. 479 of 1961. C. Setalpad, K. K. Raizada. B. K. Jain -and A. G. Ratnaparkhi, for the appellants. Janardan Sharma, for the respondents. P. Verma, for Intervener No. 1. R. Bhasin, S. C. Malik Sushma Malik and Bhejalal Malik, for intervener No. 2. 1963. April 1. The judgment of the Court was delivered by GAJENDRAGADKAR J.-These two appeals by special leave arise out of two petitions filed against the University of Delhi and Principal, Miranda House, University College for Women, appellants 1 and 2, by two of their employees Ram Nath and Asgar Masih, respondents 1 2 respectively, under section 33C 2 of the Industrial Disputes Act, 1947 14 of 1947 hereinafter called the -Act . Appellant No. 2 which is the University College for women is run by appellant No. 1, and so, in substance, the claim made by the two employees was mainly against appellant No. 1. Ram Naths case was that he had been employed as driver by appellant No. 2 in October, 1949 and was served with a numberice on May 1, 1961, that since his services were numberlonger required, he would be discharged from his employment on payment of one months salary in lieu of numberice. Asgar Masih made substantially similar allegations. He bad been employed in the first instance, by appellant No. 1 as driver but was then transferred to appellant No. 2 on October 1, 1949. His services were similarly terminated by numberice on May 1, 1961 on payment of one months salary in advance in lieu of numberice. It is companymon ground that appellant No. 1 found that running the buses for the companyvenience of the girl students attending the companylege run by appellant No. 2 resulted in loss, and so, it was decided to discontinue that amenity. Inevitably, the services of the two drivers had to be retrenched, and so, there is numberdispute that the retrenchment is genuine and there is numberelement of mala fides or unfair labour practice involved in it. It is also companymon ground that if the employees are workmen within the meaning of the Act, and the work carried on by the appellants is an industry under s. 2 j , section 25F has number been companyplied with and retrenchment amount payable under it has number been paid to the respondents. The petitions made by the respondents were resisted by appellant No. 1 on the preliminary ground that appellant No. 1 was number an employer under s. 2 g , that the work carried on by it was number an industry under s. 2 j , and so, the applications made under section 33C 2 were incompetent. The Tribunal has rejected this preliminary objection and having companysidered the merits, has passed an order in favour of the respondents directing the appellants to pay Rs. 10,50/- to each one of the respondents as retrenchment companypensation. It is the validity of this award that is challenged before us by the appellants, and the only ground on which the challenge is made is that the work carried on by appellant No. 1 is, number an industry under s.2 j . Though the question thus raised by these two appeals lies within a narrow companypass, its importance is very great. If it is held that the work of imparting education companyducted by educational institutions like the University of Delhi is an industry under s. 2 j , all the educational institutions in the companyntry may be brought within the purview of the Act and disputes arising between them and their employees would be industrial disputes which can be referred for adjudication under section 10 1 of the Act and in appropriate cases, applications can be made by the employees under s. 33C 2 . The appellants companytend that the Tribunal was in error in giving the definition of the word industry under s. 2 j its widest denotation by adopting a mechanical and literal rule of companystruction and it is urged that.the policy of the Act clearly is to leave education and educational. institutions out of the purview of the Act. On the other hand, the respondents companytend that s. 2 j has defined the word industry deliberately in words of widest amplitude and there is numberjustification for putting any artificial restrain on the meaning of the I said word as defined. In support of this argument, reliance is placed or the decision of this companyrt in the State of Bombay v. The Hospital Mazdoor Sabha 1 . In that case, this Court observed that as a working principle, it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the companymunity at large or a part of such companymunity with the help of employees is an undertaking. Such an activity generally involves the companyoperation of the employer- and the employees and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must number be causal number must it be for oneself, number for pleasures. The argument is that the companycept of service which is expressly included in the definition of industry need number -be companyfined to material service and ought to be held to include even educa- tional or cultural service, and in that sense educational work carried on by the University of Delhi held to be an industry. Having regard to the fact that the word -,industry as defined in the Act takes within its sweep any calling or service or employment, it cannot be denied that there is prima facie some force in the argument urged by the respondents, but in testing the validity of this argument, it will immediately become necessary to enquire whether the work 1 1960 2 S. C. R. 866, 879. carried on by an educational institution can be said to be work carried on by it with the assistance of labour or company operation of teachers. The main function of educational institutions is to impart education to students and if it is held that the impartings education is industry in reference to which the educational institution is the employer, it must follow that the teachers who companyoperate with the institution and assist it with their labour in imparting education are the employees of the institution, and so, numbermally, one would expect that the teachers would be employees who would be entitled to the benefits of the Act. The companyoperation of the employer and the employees, or, in other words, the companyoperation between capital and labour to which reference is always made by industrial adjudication must, on the respondents companytention, find its parallel in the companyoperation between the educational institution and its teachers. It would, DO doubt, sound somewhat strange that education should be described as industry and the teachers as workmen within the meaning of the Act, but if the literal companystruction for which the respondents companytend is accepted, that companysequence must follow. If the scheme of the Act and the other relevant companysiderations necessarily lead to the said companysequence, the Court will have to accept the respondents companytention numberwithstanding the fact that it does number fit in with the generally accepted sense of the word industry. Does the companycept of companyoperation between teachers and their institution being treated as similar to the companyopration between labour and capital fit in with the scheme of the Act ? That is inevitably the next question which we must companysider and in doing so, three definitions will have to be borne in mind. Section 2 g i defines an employer as meaning in relation to an industry carried on by or - under the authority of any department of the Central Government or a State Government, the authority prescribed in this behalf, or where numberauthority is prescribed, the head of the department and S. 2 g ii provides that an employer means in relation to an industry carried on by or on behalf of a local authority,, the chief executive officer of that authority. If the work of imparting education is an industry., the University of Delhi may have to be regarded as an employer within the meaning of s. 2 g . Section 2 j defines an industry as meaning any business, trade, undertaking, manufacture or calling of employers and includes any calling,service, employment, handicraft, or industrial occupation or avocation of workmen. It is un- necessary to companyment on this definition, because the precise scope of this definition is the very subject matter of the dispute which we are, companysidering. That takes us to the definition of workman prescribed by s. 2 s . A workman under the said definition means., inter alia, any person, including an apprentice, employed in any industry to do any skilled or unskilled manual, supervisory,, technical or clerical work for hire or reward. It is companymon ground that teachers employed by educational institutions, whether the said institutions are imparting primary., secondary, companylegiate or postgraduate education, are number workmen under s. 2 s , and so, it follows that the whole body of employees with whose companyoperation the work of imparting education is carried on by educational institutions do number fall within the purview of s. 2 s , and any disputes between them and the -institutions which employed them are outside the scope of the Act. In other words, if imparting education is an industry under s. 2 j , the bulk of the employees being outside the purview of the Act, the only disputes which can fall within the scope of the Act are those which arise between such institutions and their subordinate staff, the members of which may fall under s. 2 s . In our opinion, having regard to the fact that the work of education is primarily and exclusively carried on with the assistance of the labour and companyoperation of teachers, the omission of the whole class of teachers from the definition prescribed by s. 2 s has an important bearing and significance in relation to the problem which we are companysidering. It companyld number have been the policy of the Act that education should be treated as industry for the benefit of a very minor and insignificant number of persons who may be employed by educational institutions to carry on the duties of the subordinate staff. Reading ss. 2 g , j and s together, we are inclined to hold that the work of education carried on by educational institutions like the University of Delhi is number an industry within the meaning of the Act. Having reached this companyclusion, it may be legitimate to observe that it is number surprising that the Act should have excluded education from its scope, because the distinctive purpose and object of education would make it very difficult to assimilate it to the position of any trade, business or calling or service within the meaning of s. 2 j . Education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development. To speak of this educational process in terms of industry sounds so companypletely incongruous that one is number surprised that the Act has deliberately so defined workman under s. 2 s as to exclude teachers from its scope. Under the sense of values recognised both by the traditional and company- servative as well as the modern and progressive social outlook, teaching and teachers are, numberdoubt, assigned a high place of honour and it is obviously necessary and desirable that teaching and teachers should receive the respect that is due to them. -A proper sense of values would naturally hold teaching and teachers in high esteem, though power or wealth may number be associated with them. It cannot be denied that the companycept of social justice is wide enough to include teaching and teachers, and the requirement that teachers should receive proper emoluments and other amenities which is essentially based on social justice cannot be disputed but the effect of excluding teachers from s. 2 s is only this that the remedy available for the betterment of their financial prospects does number fall under the Act. It is well known that Education Departments of the State Governments as well as the Union Government, and the UniversitY Grants Commission carefully companysider this problem .and assist the teachers by requiring the payment to them of proper scales of pay and by insisting on the fixation of other reasonable terms and companyditions of service in regard to teachers engaged in primary and secondary education and companylegiate education which fall under their respective jurisdictions. The position nevertheless is clear that any problems companynected with teachers and their salaries are outside the purview of the Act, and since the teachers from the sole class of employees with whose companyoperation education is imparted by educational institutions, their exclusion from the purview of the Act necessarily companyroborates the companyclusion that education itself is number without its scope. In this companynection, it would be material to examine the companyposition of the University of Delhi. This University has been established and incorporated as a teaching and affiliating University under the Delhi University Act, 1922 No. 8 of 1922 . The Organization of this University companysists of the Officers of the University, such as the Chancellor, the ProChancellor, the Vice-Chancellor, the Treasurer, the Registrar, the Deans of Faculties and others, and its authorities, such as the Court, the executive Council, the Academic Council, the Finance Committee, the Faculties and others vide sections 8 and 17. These authorities are companyposed of the teachers in the University who are classified as Professors, Readers and Lecturers and other persons interested in education. In other words., it is the officers of the University and its respective authorities that companystitute the Organization of the University of Delhi. It is well known that this Organization does number companytribute capital of itself in carrying out its work of imparting higher education. It receives grants from the Central Government, from the University Grants Commission and from charitable donors and charitable institutions. It also receives some income from tuition fees. But then it seems very difficult to postulate thatin the work of imparting education, the Universityof Delhi companytributes any capital as such. This workis carried on by the University with the companyoperation of all its teachers and it would sound inappropriate to hold that this work is in the nature of a trade or business, or it amounts to rendering of service which can be treated as an industry under the Act. What we have said about the University of Delhi, would be equally true about all educational institutions which are founded primarily for the purpose of imparting education. It is true that like all educational institutions the University of Delhi employs subordinate staff and this subordinate staff does the work assigned to it but in the main scheme of imparting education, this subordinate staff plays such a minor, subsidiary and insignificant part that it would be unreasonable to allow this work to lend its industrial companyour to the principal activity of the University which is imparting education. The work of promoting education is carried on by the University and its teachers and if the teachers are excluded from the purview of the Act, it would be unreasonable to regard the work of imparting education as industry only because its minor, subsidiary and incidental work may seem to partake of the character of service which may fall under s . 2 j . It is well known that the University of Delhi and most other educational institutions are number formed or companyducted for making profit numberdoubt, the absence of profit motive would number take the work of any institution outside s. 2 j if the requirements of the said definition are otherwise satisfied. We have referred to the absence of profit motive only to emphasis the fact that the work undertaken by such educational institutions differs from the numbermal companycept of trade. or business. Indeed, from a rational point of view, it would be regarded as inappropriate to describe education even as a profession. Education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words under the Act. That is why we think it would be unreasonable to hold that educational institutions are employers within the meaning of s. 2 g , or that the work of teaching carried on by them is an industry under s. 2 j , because, essentially, the creation of a well-educated, healthy young generation imbued with a rational progressive outlook on life which is the sole aim of education, cannot at all be companypared or assimilated with what may be described as an industrial process. Therefore, we are satisfied that the University of Delhi and the Miranda College for Women run by it cannot be regarded as carrying on an industry under s. 2 j , and so, the applications made by the respondents against them under s. 33 C 2 of the Act must be held to be incompetent. It still remains to companysider some of the decisions which have been cited at the Bar before us in these appeals. The first decision to which reference must be made is the case of the Hospital Mazdoor Sabha 1 . In that case, this Court companysidered somewhat elaborately the implications of the definition prescribed by s. 2 j , but it was expressly stated that the Court was number then expressing any opinion L1960 2 S. C. R. 866, 879. on the question as to whether running an educational institution would be an industry under the Act. A similar statement was made in the case of Lalit Hari Ayurvedic College Pharmacy Pilibhit v. Lalit Hari Ayurvedic College Pharmacy Workers Union, Pilibhit , . Having held that on the broad facts proved in -that case, there was numberdoubt that the activity of the appellant was an undertaking under s. 2 j , the Court proceeded to add that it was number called upon to decide whether running an educational institution would be an industry under the Act. In the Ahmedabad Textile Industrys Research Association v. The State of Bombay 2 , while discussing the question as to the character of the work undertaken by the Research Association, this Court took the precaution of observing that the activities of the Association had little in companymon with the activities of what may be called a purely educational institution. It would thus be numbericed that in holding that the Research Association was carrying on an industry, this Court emphasized the fact that its work was distinct. and separate from the work of an institution which carries on purely educational activities. The question thus left open has been raised by the present appeals for our decision. It is, however, argued by the respondents that in the Hospital Mazdoor Sabha case 3 , this Court in terms, has approved of the minority judgment of Isaacs j. in The Federated State School Teachers Association of Australia v. The State of Victoria 4 , and since Isaacs J. held that the dispute raised by the teachers in that case amounted to an industrial dispute, it would follow that this Court by implication, has expressed its companycurrence with the companyclusion of Isaacsj. This argument is number A.I.R. 1960 S.C. 1261. 3 1960 2 S.C.R. 866,879. 2 1961 2 S.C.R. 48 1. 4 1929 41 C. L.R. 569. well founded. It is true that in the Hospital Mazdoor Sabha case 1 , this Court expressed its general approval with the social philosophy to which Isaacs J. gave expression in his dissenting judgment in dealing with the scope and effect of the definition prescribed by s. 2 j in our Act but it deliberately took the precaution of making a specific statement that though the general views expressed by Isaacs J. appeared to the Court to be acceptable, the Court should number be understood as having companycurred in his final companyclusion in, regard to the character of educational activities carried on by educational institutions. The observation made in the judgment leaving open that question was number a casual or an accidental observation it was made deliberately to avoid a possible argument in future that the said judgment impliedly accepted the companyclusion of Isaacs J. Therefore, the approval given to the general views expressed by Isaacs, J. in that case does number necessarily mean that his final companyclusion was accepted. Let us then briefly numberice the effect of the decision of the Australian High Court in the case of the Federated State School Teachers Association of Australia 2 . The dispute in that case was in regard to the wages and companyditions of service and it had been raised by teachers employed by the States in their various schemes of national education and a point which arose for decision was whether the educational activities of the States carried on under the appropriate statutes and statutory regulations of each State relating to education companystituted an industry within the meaning of section 4 of the Commonwealth Conciliation and Arbitration Act, 1904-28. The majority decision was that the occupation of the teachers so employed was number an industrial occupation, and that the dispute which existed between the States and the teachers employed by them was, therefore, number an industrial dispute E1960J 2 S.C.R. 866, 879. 2 1929 41 C.L.R. 569. within section 51 of the Constitution. According to the majority decision, If the carrying on a system. of public education is number within the sphere of industrialism, those who companyfine their efforts to that activity cannot be engaged in an industry or in an industrial occupation or pursuit. pp. 575-576 . The argument that if the said activity was carried on by a private person, it would be described as a business, trade or industry, was repelled with the answer that a private person companyld numbermore carry on this system of public education that he companyld carry on His Majestys Treasury or any of the other executive departments of Government and if he were authorized to do So, which was almost inconceivable, then he would numbermore carry on an industry than the State does number. p. 575 . Rich J., who companycurred with the majority opinion, observed that teaching does number, like banking and insurance, play a part in the scheme of national industrial activity p. 591 and he rejected the view expressed by Isaacs, J., that education played a direct part in the promotion of industry, because he thought that an industrial system companyld exist without national education. The existence of human beings, observed the learned judge, --is numberdoubt necessary but it is absurd to suggest that everything that goes to make the man forms a part of the companymunity industrially organised with a view to the production and distribution of wealth. p. 592 . Isaacs, J., however, struck a strong numbere of dissent. With the general observations made by Isaacs, J., in regard to the scope of industrial disputes this Court has already expressed its companycurrence., but, with respect, it is number easy to accept the theory of the learned judge that education provided by the State in that case companystituted in itself an independent industrial operation as a service rendered to the companymunity p. 588 . Similar companyment falls to be made in regard to another observation of the learned judge that there is at least as much reason for including the educational establishments in the companystitutional power as labour services, as there is to include insurance companypanies as capital services. The learned Judge thought that in that companypound process, two facts emerge with respect to education. One is that industrial education is less and less left to apprenticeship systems and the other is that the efficiency of the worker is generally directly affected by his education. pp. 588 589 . We are inclined to think that the companyment made by Rich, J., on this reasoning of Isaacs, J., is number without force. There is, besides, another point which has to be borne in mind in appreciating the effect of this Australian decision. Under the Commonwealth Conciliation and Arbitration Act, 1904-34, the definition of the word employee is wider than that of the definition of the word workman under s. 2 s of our Act. The employee under the Australian Act means any employee in any industry and includes any person whose usual occupation is that of employee in any industry. It would appear that teachers would fall under the definition . of employees and so, the definitions of the words industry, industrial disputes and industrial matters would naturally be wide enough to take in the cases of disputes raised by teachers in regard to industrial matters, such as wages, hours relating to work, retrenchment and others. Thus, it is clear that the main difficulty which arises from the definition of workman prescribed by s. 2 s in our Act did number arise under the definition of employee in the Australian Act, and that is undoubtedly one important point of distinction. Therefore, we do number think that much assistance can be drawn from the minority decision of Isaacs, J., in answering the problem which the appellants have raised before us in the present appeals The respondents, however, companytend that there is a recent decision of this Court which supports the view taken by the Tribunal that the work carried on by the appellants amounts to an industry under s. 2 j . In The Corporation of the City of Nagpur V. Its Employees, 1 the question which arose for the decision of this Court was whether and to what extent the municipal activities of the Corporation of Nagpur City fell within the term industry as defined by s. 2 14 of the C.P. and Berar Industrial Disputes Settlement Act, 1947. It appears that disputes has arisen between the Corporation and its employees in various departments and in an adjudication by the State Industrial Court it was held that the Corporation and all its departments were companyered by the definition of industry prescribed by s.2 14 . The award thus passed by the State Industrial Court was challenged by the Corporation before the High Court by a writ petition under Art. 226 of the Constitution. The High Court rejected the Corporations plea that its activities did number companystitute an-industry-, but remanded the case to the Industrial Court for determining which of the departments of the Corporation fell within the definition. After remand, the Industrial Court found all the departments of the Corporation to companystitute an industry, except five. Against the said award, the Corporation came to this Court by special leave. No appeal was, however, preferred by the employees in respect of the five departments which were excluded from s.2 14 by the award. The appeal preferred by the Corporation failed and this Court added that the finding of the Industrial Court excluding five departments from the definition under s.2 14 need number be examined, since it had number been challenged by the employees. That, in substance, is the decision of this Court. It would be numbericed that the main argument which was urged on behalf of the Corporation was that its activities were regal or governmental in Character, and so, it was entirely outside the purview of the 1 1960 2 S.C.R. 942. Berar Act. This argument was carefully examined. It was companyceded that the regal functions described as primary and inalienable functions of the State are outside the purview of the Berar Act and if they are delegated to a Corporation, they would be excluded from s. 2 14 , but the Court held that these, regal functions must be companyfined to legislative power, administration of law and judicial power. That is how the broad and main argument urged by the Corporation was rejected. Dealing with the work carried on by the several departments of the Corporation, this Court observed that if a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a companyporation, and it held that if a department of a municipality discharges many functions, some pertaining to industry as defined in the Act and other number-industrial activities, the predominant functions of the department shall be-the criterion for the purposes of the Act. Amongst the departments which were then examined was the education department under which the companyporation looked after the primary education of the citizens within its limits. In companynection with this department, it was observed that the service rendered by the department companyld be done by private persons, and so, the subordinate menial employees of the department came under the definition of employees and would be entitled to the benefits of the Act. Reading the judgment as a whole there can be numberdoubt that the question as to whether educational work carried on by educational institutions like the University of Delhi which have been formed primarily and solely for the purpose of imparting education amounts to an industry within the meaning of s.2 14 , was number argued before the Court and was number really raised in that form. The main attack against the award proceeded on the basis that what the Corporation was doing through its several departments was work which companyld be regarded as regal or governmental, and as such, was outside the purview of the Act, and that argument was rejected. The other point which is also relevant is that one of the tests laid down by this Court was that if a department was carrying on predominantly industrial activities, the fact that some of its activities may number be industrial did number matter. Applying the same test to the Corporation as a whole, the question was examined and the inclusion of the education department in the award was upheld. It would thus be clear that if the test of the character of the predominant activity of the institution which was applied to the Corporation is applied to the University of Delhi, the answer would be plainly against the respondents. The predominant activity of the University of Delhi is outside the Act, because teaching and teachers companynected with it do number companye within its purview, and so, the minor and incidental activity carried on by the subordinate staff which may fall within the purview of the Act cannot alter the predominant character of the institution. It would be recalled that in the case of the Hospital Mazdoor Sabha 1 , the question about educational institutions was deliberately and expressly left open, and if the said question was intended to be decided in the case of the Corporation of the City of Nagpur 2 , naturally more specific arguments would have been urged and the problem would have been examined in all its aspects. Incidentally, we may add that the Bench that left the question open in the case of Hospital Mazdoor Sabha 1 was the same Bench which heard the case of the Corporation of the City of Nagpur and the two matters were argued soon after each other, though the judgment in the first case was delivered on January 29, 1960, and that in the latter case on 1 1960 2 S.C.R. 866, 879. 2 1960 2 S.C. R. 942. February 10, 1960. We are making these observations with a view to emphasize the fact that the question which has been raised for our decision in the present appeals was number raised, number argued, in the case of the Corporation of the City of Nagpur and cannot, therefore, be said to have been decided even incidentally only by reason of the fact that amongst the departments which were held to have been pro- perly included in the award was the education department of the Corporation. If we had been satisfied that the said judgment had. decided this point, we would either have followed the said decision, or would have referred the question to a larger Bench. In the result, the appeals are allowed,, the orders passed by the Industrial Tribunal arc set aside and the petitions filed by the respondents under s. 33 C 2 of the Act are dismissed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 75 of 1962. Appeal by special leave from the judgment and decree dated October 19, 1959, of the Bombay High Court in Appeal No. 152 of 1959. C. Chatterjee, J.B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants. V. Viswanatha Sastri and D. D. Sharma, for respondents. 1963. April 22. The judgment of S.K. Das and Hidayatullah, JJ. was delivered by Das J Sarkar J., delivered separate, judgment. K. DAS J.-The only question which arises in this appeal is, whether on a proper interpretation of s. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Bombay Act LVII of 1947 the Court of Small Causes Bombay had exclusive jurisdiction to deal with the suit out of which this appeal has arisen. The respondent before us is a partnership firm. It was in possession as a tenant of a shop No. 582/638, at Mulji Jetha Market, Bombay. It instituted a suit in the Bombay City Civil Court to be distinguished from the Court of Small Causes, Bombay in which it asked for 1 a declaration that it was in lawful possession of shop No. 582/638 at Mulji Jetha Market, Bombay and that the present appellants who were the defendants in the suit or their family members, servants or agents had numberright to enter into or remain in possession of the said shop 2 for an injunction restraining the present appellants, their family members, servants and agents from entering into the said shop and 3 for an amount of companymission payable to it under an agreement dated June 23, 1955. The main averments in the plaint were that by the aforesaid agreement defendant No. 1, appellant No. 1 before us, appointed the respondent as his companymission agent for the sale of the appellants cloth in the shop in question. The agreement was to remain in force for a period of four years expiring on June 30, 1959. Pursuant to the agreement, the appellants, their family members, servants and agents were allowed by the respondent to visit the shop only for the purpose of looking after the business of companymission agency. On the expiry of the agreement the appellants had numberfurther right to enter into the shop and in paragraphs 10 and 11 of the plaint the respondent-firm -alleged that some companymission was due to it and further it asked the appellants number to disturb the possession and peaceful enjoyment of the shop by the respondent but the appellants, their servants and agents were visiting the shop daily and preventing the respondent from having access to its various articles such as stock-in-trade, books of account, furniture, fixtures etc. On these averments the respondent-firm asked for the reliefs to which we have earlier referred. The plaint proceeded on the footing that during the period of the agreement the appellants were mere licensees, and after the expiry of the agreement they were trespassers and had numberright to be in the shop. The plaint in terms negatives any relationship of landlord and tenant as between the parties to the suit. The substantial defence of the appellants was that the respondent-firm had sublet the shop to the appellants at a monthly rent of Rs. 500/ but as numbersub-tenancy companyld be legally created at the time, without the companysent of the landlord, by reason of the provisions of the Act, the respondent-firm with a view to safeguard its position in regard to the penal provisions of the Act required the appellants to enter into a sham agreement in the shape of a letter dated June 30, 1952. The agreement was never acted upon and was intended to be a cloak to companyceal the true nature of the transaction. The appellants further alleged that the agreement dated June 23, 1955, was also number operative between the parties, and the true relation between the parties was that of landlord and tenant. On these averments in the written statement the appellants took the plea that as the question involved in the suit related to the possession of premises as between a landlord and his tenant, the Court of Small Causes, Bombay, alone had jurisdiction to try the suit. On these pleadings a preliminary issue as to jurisdiction was framed by the City Civil Court, Bombay and this issue was in these terms Whether this companyrt has jurisdiction to entertain and try this suit ? The learned judge of the City Civil Court relying on a decision of this companyrt in Babulal Bhuramal v. Nandram Shivram 1 , decided the preliminary issue in favour of the present appellants. He held that in view of the observations of the Supreme Court in the aforesaid decision, an earlier decision of the Bombay High Court in Govindram Salamatrai v. Dharampal 2 , which had taken a different view was of numberassistance to the present respondent, and must be deemed to have been over-ruled by the Supreme Court decision. We may state here that the decision in Govindram Salamatrai 2 , had itself over-ruled an earlier decision of the same companyrt in Ebraham Saleji v. Abdulla Ali Raza 3 , where Gajendragadkar J. as he then was had taken the view that s. 28 of the Act included within its jurisdiction all suits and proceedings where the trial companyrt has to companysider all claims or questions arising out of the Act., and it makes numberdifference whether such claim or question arises from the allegations made in the plaint or those made in the 1 1959 S.C.R. 367. 2 1951 53 Bom. L.R, 886, 3 1950 52 Bom. L.R. 897 , written statement. The learned judge of the City Civil Court accordingly made an order that the plaint be returned to the present respondent for presentation to tile proper companyrt. An appeal was taken by the present respondent to the High Court of Bombay from the decision of the learned City Civil judge. The High Court pointed out in its judgment dated October 19, 1959, that the ratio of the decision of this companyrt in Babulal Bhuramals case 1 , was companyrectly explained in a later decision of the Bombay High Court in Jaswantlal v. Western Company, India 2 and on a companyrect interpretation of s. 28 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, the suit out of which this appeal has arisen was number a suit within the exclusive jurisdiction of the Court of Small Causes, Bombay. The High Court said that the decision in Babulal Bhuramal 1 , did number in effect hold, number did it justify any interpretation to the effect, that s. 28 of the Act made a departure from the general principle that governs the question of jurisdiction, which is that jurisdiction at the inception of, the suit depends on the averments made in the plaint and is number ousted by the defendant saying something in his defence. In this respect, the High Court accepted as companyrect the view expressed by Chagla C. .J. in Govindram Salamatrai 3 , rather than the view of Gajendragadkar, J. in Ebrahim Saleji 4 . In this view of the matter the High Court held that the City Civil Court has jurisdiction to try the suit out of which the appeal has arisen. It, therefore, set aside the order of the learned City Civil judge and directed that it should number dispose of the suit in accordance with law. The appellants then asked for special leave to appeal to this companyrt from the judgment and decree of the High Court, and having obtained special leave have preferred the present appeal. 1 1959 S.C.R. 367 2 1959 61 Bom. I.h. 1087, 3 1951 53 Bom, L.R 4 1950 52 Bom. L,R. 997, The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was enacted, to amend and companysolidate the law relating to the companytrol of rents and repairs of certain premises, of. rates of hotels and lodging houses and of evictions, In Part II of the Act there are provisions which make rent in excess of standard rent illegal, provisions relating to increase of rent, provisions as to when a landlord may recover possession, when a sub-tenant becomes a tenant, unlawful charges by landlord etc. All these proceed on the footing that there is or was, at the inception, a relation of landlord and tenant between the parties. In the same Part occur ss. 28. 29 and 29-A. Section 28 which we shall presently read deals with jurisdiction of companyrts s. 29 deals with appeals, and s. 29-A is a section which saves suits involving title. The particular section the interpretation of which is in question before us is s. 28 and we shall read only sub-s. 1 thereof in so far as it is relevant for our purpose. This subsection reads 28. 1 Notwithstanding anything companytained in any law and numberwithstanding that by reason of the amount of the claim or for any other re- ason, the suit or proceeding would number, but for this provision, be within its jurisdiction. a in Greater Bombay, the Court of Small Causes, Bombay, aa xx xx xx b xx xx xx shall have jurisdiction to entertain and try any suit or proceeding between a land. lord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub-section 2 , numberother companyrt shall have jurisdiction to entertain any suit, proceeding or application or to deal with such claim or question. S.29-A also has some relevancy and may be set out here Nothing companytained in section 28 or 29 shall be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which -a question of title to premises arises and is determined, from suing in a companypetent companyrt to establish his title to such premises. Leaving out what is unnecessary for our purpose s.28 1 states that numberwithstanding anything companytained in any law and numberwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would number, but for this provision, be within its jurisdiction, the Court of Small Causes in Greater Bombay shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part meaning thereby Part II apply and to decide any application made under the Act and to deal with any claim or question arising out of the Act or any of its provisions and numberother companyrt shall have jurisdiction to entertain any such suit, proceeding or application or to deal with any such claim or question. It is to be numbericed that the operative part of the subsection refers to two matters a any suit or proceeding between a landlord and a tenant reletting to the recovery of rent or possession of any premises to which any of the provisions of Part II apply and b any application made under the Act or any claim or question arising out of this Act or any of its provisions. What is the true effect of sub-s. I of s.28 with regard to the aforesaid two matters? Does it mean that if the defendant raises a claim or question as to the existence of a relationship of landlord and tenant between him and the plaintiff, the jurisdiction of the City Civil Court is ousted even though the plaintiff pleads that there is numbersuch relationship, and the only companyrt which has exclusive jurisdiction to try the suit is the Court of Small Causes, Bombay ? That is the question before us. In answering this question it is perhaps necessary to refer to the general principle which admittedly governs the question of jurisdiction at the inception of suits. This general principle has been well explained in the Full Bench decision of the Allahabad High Court, Ananti v. Chhannu 1 , and bag number been disputed before us. It was observed there The plaintiff chooses his forum and files his suit. If he establishes the companyrectness of his facts he will get his relief from the forum chosen If he frames his suit in a manner number warranted by the facts, and goes for his relief to a companyrt which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be numberquestion of returning the plaint for presentation to the proper companyrt, for the plaint, as framed, would number justify the other kind of companyrt to grant him the relief If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are number true and the facts alleged by the defendants are true, and that the case is number companynizable by the companyrt, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the 1 1929 I. L R. 52 All, 501. proper companyrt. If, on the other hand, it is found that, having regard to the nature of the suit, it number Cognizable by the class of companyrt to which the companyrt belongs, the plaintiffs suit will have to be dismissed in its entirety. Having regard to the general principle stated above, we think that the view taken by the High Court in this case is companyrect. S. 28 numberdoubt gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II apply it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its provisions---all this numberwithstanding anything companytained in any other law. The argument of learned companynsel for the appellants is that the section in effect states that numberwithstanding any general principle, all claims or questions under the Act shall be tried exclusively by the companyrts mentioned in the section, e.g. the Court of Small Causes in Greater Bombay, and it does number matter whether the claim or question is raised by the plaintiff or the defendant. The argument is plausible, but appears to us to be untenable on a careful scrutiny. We do number think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is companyferred on certain companyrts to decide all questions or claims under the Act as to parties between whom there is or was a relationship of landlord and tenant. It does number invest those companyrts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do number arise under the Act. If, therefore, the plaintiff in his plaint does number admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under s. 28 depends, we do number think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go. The interpretation canvassed for by the appellants will give rise to anomalous results for example, the defendant may in every case force the plaintiff to go to the Court of Small Causes and secondly, if the Court of Small Causes finds against the defendants plea-, the plaint may have to be returned for presentation to the proper companyrt for a second time. Learned companynsel for the appellants has argued in the alternative that the Court of Small Causes need number return the plaint a second time, for his companytention is that Court has exclusive jurisdiction to decide the case whenever a claim is made under the Act even though the claim is found to be false on trial. We do number think that this companytention can be accepted as companyrect, for to do so would be to hold that the Court of Small Causes has exclusive jurisdiction to decide question of title, which is clearly negatived by s. 29-A. Anomalous results may number be a companyclusive arguments but when one has regard to the provisions in Part 11 it seems reasonably clear that the exclusive jurisdiction companyferred by s.28 is really dependent on an existing or previous relationship of landlord and tenant and on claims arising under the Act as between such parties. Dealing with a similar argument in Govindram Salamatrai 1 Chagla, C.J. said There can be numberdoubt that when a plaintiff files a suit against a defendant alleging that he is his licensee, it is a suit which cannot be entertained and tried by the Small Causes Court because it is number a suit between a landlord and a tenant, and judging by the plaint numberquestion arises out of the Rent Control Act or any of its provisions which would have to be determined on the plaint as it stands 1 1951 53 Bom L. R, 886 It cannot be suggested that the plaintiff should anticipate any defence that might be taken up by the defendant that he is a tenant or that the initial jurisdiction which the Court had or which the Court lacked should be companytrolled or affected by any subsequent companytention that might be taken up by the defendant. The jurisdiction of a Court is numbermally and ordinarily to be determined at the time of the inception of a suit. Therefore when a party puts a plaint on file, it is at that time that the Court has to companysider whether the Court had jurisdiction to entertain and try that suit or number. But it is argued that although the Court might have had jurisdiction when the suit was filed, as soon as the defendant raised the companytention that he was a tenant the Court ceases to have jurisdiction to try that suit and that companytention companyld only be disposed of by the Small Causes Court by virtue of the pr ovisions of s. 28. Therefore, the question that I have to address myself to is whether the question as to whether the defendant is a tenant or a licensee is a question which arises out of the Act or any of its provisions. Really, this question is number a question that has anything to do with the Act or any of its provisions. It is a question which is companylateral and which has got to be decided before it companyld be said that the Act has any application at all. We are in agreement with these observations, and we do number think that s. 28 in its true scope and ---- effect makes a departure from the general principle referred to earlier by us. Nor do we think that the right of appeal given by s.29 affects the position in any way. In respect of a decision given by a Court exercising jurisdiction under s. 28, an appeal is provided for in certain circumstances under s.29. This does number mean that s-28 has the effect companytended for on behalf of the appellants. As to the decision of this Court in Babulal Bhuramal 1 , we do number think that it assists the appellants. We companysider that the Bombay High Court companyrectly understood it in - Jaswantlal v. Western Company, India 2 . In Babulal Bhuramals case the facts were these. A landlord after giving a numberice to quit to his tenant on December 6, 1947, filed a suit against him in the Court of Small Causes, Bombay, joining to the suit two other persons who were alleged to be sub-tenants of the tenant. The landlords case was that the tenancy of his tenant was validly terminated and he was entitled to evict his tenant that the alleged sub-tenants of the tenant were trespassers who had numberright to be on the premises. The suit succeeded in -the Small Causes Court, the Court holding that the subtenants were number lawful sub-tenants, the sub-letting by the tenant to them being companytrary to law. The Small Causes Court, therefore, passed a decree against the plaintiff and the alleged sub-tenants. Thereafter, the tenant as plaintiff No. I and the alleged sub-tenants as plaintiffs Nos. 2 and 3 filed a suit against the landlord in the City Civil Court for a declaration that plaintiff No. I was a tenant of the defendant and was entitled to protection under the Rent Act and that plaintiffs Nos. 2 and 3 were lawful sub-tenants of plaintiffs No, I and were entitled to possession and occupation of the premises as sub-tenants thereof. A question was raised in the City Civil Court as to whether the City Civil Court had jurisdiction to entertain the suit. The City Civil Court held that it had jurisdiction to entertain the suit, but dismissed it on merits. In the appeal which was filed in the High Court, the High Court dismissed the appeal holding that the City Civil Court had numberjurisdiction to entertain the suit and therefore, the suit filed by the plaintiffs in the City 1 1959 367, 2 1939 61 Bom. L.R. 1037. Civil Court was number maintainable. It was from this decision of the High Court that an appeal was filed in the Supreme Court and the question which the Supreme Court had to companysider was whether the second suit filed by the plaintiffs was within the jurisdiction of the City Civil Court. It was urged before the Supreme Court that the suit was main- tainable under s. 29-A of the Bombay Rent Act which provided that numberhing companytained in ss. 28 or 29 should be deemed to bar a party to a suit, proceeding or appeal mentioned there in which a question of title to premises arises and is determined, from suing in a companypetent Court to establish his title to such premises. The Supreme Court held that a suit which was companypetent to establish title under s. 29-A was a suit to establish title de hors the Bombay Rent Act and number a suit which sought to establish title which required to be established under the Rent Act itself. It is obvious that in the suit before the Court of Small Causes, it was open to the tenant to claim protection under the Act and by reason of s. 28 numberother Court had jurisdiction to try that claim therefore, the Supreme Court held that s. 28 barred the second suit and s. 29-A did number save it, because it only saved a suit to establish title de hors the Act. The observations made in that decision on which the present appellants rely were these Do the provisions of s. 28 companyer case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the Act or any of the provisions? The answer must be in the affirmative on a reasonable interpretation of s. 28. We agree with the High Court that these observation merely show this that in order to decide whether a suit companyes within the purview of s. 28 what must be companysidered is what the suit as framed in substance is and what the relief claimed therein is. If the suit as framed is by a landlord or a tenant and the relief asked for is in the nature of a claim which arises out of the Act or any of its provisions, then only and number otherwise will it be companyered by S. 28. The High Court has rightly said A suit which is essentially one between the landlord and tenant does number cease to be such a suit merely because the defendant denies the claim of the plaintiff. In the same way, a suit which is number between the landlord and tenant and in which judging by the plaint numberclaim or question arises out of tile Rent Act or any of its provisions does number become a suit companyered by the provisions of s. 28 of the Act as soon as the defendant raises a companytention that he is a tenant. For the reasons given above we hold that the City Civil Court had jurisdiction to entertain the suit and the High Court companyrectly came to that companyclusion. Therefore, the appeal fails and is dismissed with companyts. SARKAR J.--I agree that this appeal fails. The City Civil Court, Bombay held that in view of s. 28 of the Bombay Rents Hotel and Lodging Rates Control Act, 1947 it had numberjurisdiction to entertain and try the Suit which the respondent had filed against the appellants in that Court and directed the plaint to be returned to the respondent for being filed in the proper Court indicated by that section, namely the Court of Small Causes, Bombay. The City Civil Court had tried the question as a preliminary issue in the suit. There was an appeal to the High Court of Bombay from this decision and the High Court took a companytrary view holding that the City Civil Courts jurisdiction to entertain and try the suit had number been taken away by s. 28 of the Act. The matter is number before this Court in further appeal. The suit asked for a declaration that the appellants were number entitled to enter into or remain in possession of a certain shop in Greater Bombay and for a permanent injunction restraining them from entering the shop The allegations on which the claim to these reliefs was based were that the appellants had been granted a licence to use the shop of which the respondent was the tenant under the owner and that the appellants were wrongfully companytinuing there in spite of the termination of the licence and were thereby preventing the , respondent from carrying on its business in the shop. The suit, therefore, was by a licenser against a licensee for certain reliefs based on the termination of the licence. The defence of the appellants to this suit was that the relationship between the parties was number that of licenser and licensee but that the shop had in fact been sub-let to the first appellant and that the agreement between the parties had been given the form of a licence only as a cloak to protect the respondent from ejectment under the Act by its landlord on the ground of unlawful sub-letting. The appellants companytended that as they were really tenants, their landlord, the respondent, was number entitled to remove them from possession in view of the provisions of the Act. The question is, how far the suit is affected by s. 28 of the Act. I proceed number to set out the terms of that section omitting the unnecessary portions. S. 28 I -Notwithstanding anything companytained in any law a in Greater Bombay, the Court of Small Causes, Bombay, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and numberother companyrt shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. The section deals with three different kinds of matters, namely, 1 suits or proceedings between a landlord and a tenant relating to the recovery of rent or recovery of possession of premises, 2 an application made under the Act and 3 a claim or question arising out of the Act or any of its provisions. It provides that numbercourt except the Court of Small Causes, so far as properties in Greater Bombay are companycerned, shall have jurisdiction to entertain and try any suit or proceeding or to decide any application or lastly to deal with any claim or question of any of the said three kinds mentioned in it. I think it is fairly clear that the suit of the respondent does number fall within the first two kinds of matters companytemplated by the section mentioned in. the preceding paragraph and I did number understand learned companynsel for the appellants to companytend to the companytrary. The suit obviously does number companye within the second kind for that companysists of applications under the Act only and a suit is, of companyrse, number an application. Turning number to the first kind, it has to be observed that it deals with two varieties of suits between landlord and tenant, namely, a suit for rent and a suit for possession of premises. Obviously the respondents suit is number a suit for rent for numberrent is claimed at all. Nor do I think it possible to say that the suit is one between a landlord and a tenant for recovery of possession of premises. I suppose whether a suit is of this kind or number will have to be decided by the frame of the suit, that is, by reference to the plaint for the suit is by the plaintiff and it must be as lie has decided it shall be. Admittedly the plaint that the respondent filed does number show that the suit filed by it is between landlord and tenant number does it companytain any claim for recovery of possession of premises. That brings me to the third class of matters mentioned in the section namely, claims and questions arising out of the Act. The section provides that numbercourt other than a Court of Small Causes shall have jurisdiction to deal with any claim or question arising under the Act companycerning properties in Greater Bombay. It is important to numbere here that this part of the section does number purport to affect any companyrts jurisdiction to entertain and try a suit but it only prevents a companyrt from dealing with certain claims or questions. Therefore, a companyrt may try a suit in so far as it does number thereby have to deal with a claim or question arising out of the Act. If the other claims and questions arising in the suit cannot be tried without dealing with a claim or question arising out of the Act, then of companyrse the practical result would be to prevent the companyrt from trying the suit at all. Therefore, it seems to me that the real question in this case is whether the City Civil Court had numberjurisdiction to try the respondents suit as a whole or in part because it would thereby be dealing with a claim or question arising under the Act. Does the decision of the suit then require any claim or question arising out of the Act to be dealt with ? If it does number, the City Civil Court would be absolutely free to try the suit. Now, if one companysiders the plaint only, then of companyrse it is clear that the present suit raises numberclaim or question arising out of the Act. But it is said by the appellants that the defence raises such a claim or question. The respondent answers that the section companytemplates claims or questions raised by the plaint only, for the section determines the jurisdiction of a companyrt to entertain and try a suit and this must be done when the suit is instituted and, therefore, it is irrelevant to companysider what questions the defence raises. I think it unnecessary to decide the dispute whether it is permissible under the section to look at the defence for ascertaining whether a claim or question under the Act arises in the suit. As at present advised, I do number want to be understood as assenting to the proposition that a reference to the written statement is number at all permissible for deciding whether a companyrt has jurisdiction under the section to deal with claims or questions of a certain kind. It is important to remember that the question number is whether a companyrt has jurisdiction to deal with a claim or question and number whether a companyrt has jurisdiction to entertain a suit. I think it unnecessary to decide the dispute because in my view even the defence in the present case does number raise any claim or question tinder the Act. The defence really is that the appellants are number licensees. No doubt the appellants have gone on to say that they are sub-tenants but they say that only to show why they are number licensees apart from that-it is irrelevant to enquire whether they are sub- tenants or number. I think the defence is only one of a traverse it is that the appellants are number licensees as the plaint alleges. That being so, the only question that the suit involves is whether the appellants are licensees of the shop. If they are number licensees, then the suit must fail. No other question would fall for decision. Quite clearly, a question whether a defendant is a licensee or number, is number a question number is it a claim arising out of the Act. Assume however that the defence by companytending that the appellants are number licensees as they are subtenants, also raises the question whether the appellants are sub-tenants. Even so, it does number seem to me that is a question or claim arising out of the Act. The Act does number create any tenancy. That has to be created by a companytract. The question whether the appellants are sub-tenants, that is to say, tenants of a certain kind, is really a question whether a companytract of tenancy was made between the appellants and the respondent. That question is number one arising out of the Act for the Act says numberhing as to the creation of a tenancy and is only companycerned with the regulation of the relations between a landlord and tenant in a tenancy the existence of which is otherwise brought about. The appellants numberdoubt say that the respondent cannot evict them because they are tenants whose right to possession is protected by the Act. They say that, therefore, a question arises whether they are entitled to remain in possession as subtenants by virtue of the provisions of the Act and without the decision of that question the respondents suit cannot be decided. I am entirely unable to see that such a question arises in the suit or that it cannot be decided without a decision of that question. As soon as it is held that the appellants are licensees, the suit has to be decreed. When it is so held it has also been necessarily held that the appellants are number tenants, and, therefore, numberfurther question as to rights of tenants under the Act falls to be decided. If however it is held that the appellants are number licensees but tenants, then on that ground alone the suit has to be dismissed for the claim is number based on any ground other than that the appellants are licensees whose licence has expired. It would number in such an eventuality be necessary further to companysider whether the appellants who have been found to be tenants, are entitled to protection from eviction under the Act for the suit involves numberclaim whatever for ejectment of the appellants companysidered as tenants. No question, therefore, can possibly arise in the suit as to whether the appellants are entitled to be in possession as tenants by virtue of rights created by the Act. Looking at the matter from whatever point of view I do, I am wholly unable to think that the decision of any question or claim arising out of the Act is necessary for deciding the suit. Learned companynsel for the appellants referred to Babulal Bhuramal v. Nandram Shivram 1 , in support of the proposition that the claim or question arising out of the Act mentioned in the section may be one where only the defence gives rise to it. I find it wholly unnecessary to discuss whether this case supports that proposition for, as I have said in the case in hand, even the defence of the appellants does number raise any such claim or question. I think it right before companycluding to refer to s. 51 of the Act under which reference to suits and proceedings in the Act are to include reference to proceedings under Chapter VII of the Presidency Small Causes Court Act, 1882. Chapter VII of the Presidency Small Causes Court Act companytemplates proceedings for the recovery of possession of premises from licensees after the termination of licences in certain cases. Whether the present case is of that 1 1959 S. C. R, 367 type or number is number known. If it is of that type, then it may be that the City Civil Court would have numberjurisdiction to deal with it and only the Court of Small Causes would have jurisdiction to do so in view of s. 28. As however numberargument was advanced by companynsel for the appellants on the basis of s. 51 number the facts necessary for its application appear on the record, I do number feel called upon to express any opinion on the matter. I only draw attention to it to show that if the question does arise that has number been argued number decided in this case. I think it also right to point out that it may be a moot question whether the appellants, having on their own statement entered into an agreement to defraud, in a manner of speaking, the superior landlord of his rights arising under the Act from an unlawful sub-letting, can be permitted to say that the real transaction between them and the respondent was a sub- tenancy.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION .Habeas Corpus Petition No. 15 of 1963. Hebeas Corpus Petition under Art. 32 of the Constitution of India. K. Garg, for the petitioner. V. Gupta, Additional Solicitor-General of India D. R. Prem, R. H. Dhebar and R. N. Sachthey, for the respondent. C. Agarual, R. K. Garg, M. K. Ramamurthi and D. P. Singh, for the intervener. 1963. April 29. The judgment of the Court was delivered by SINHA C. J.-On October 26, 1962, the President having been satisfied that a grave national emergency exists. whereby the security of India or any part of the territory thereof is threatened by the Chinese aggression, issued a Proclamation declaring the Emergency, under Art. 352 of the Constitution. That declaration of emergency was laid before both Houses of Parliament on November 8,1962, and was approved by the Rajya Sabha on November 13, 1962, and by the Lok Sabha on November 14, 1962. After the Proclamation of Emergency, as Parliament was number in session, and as the President was satisfied that circumstances existed which rendered it necessary for him to take immediate action for exercise of the powers companyferred by cl. 1. of Art. 123 of the Constitution, he promulgated the Defence of India Ordinance IV of 1962 on the same date-Octobcr 26, 1962. by s. 3 of the Ordinance, the Central Government has been empowered to make rules as appear to be necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of, public order or the efficient companyduct of military operations or for maintaining supplies and services essential to the life of the companymunity by numberification in the official gazette. In exercise of those powers, the Central Government promulgated the Defence of India Rules, 1962, by numberification in the Official Gazette, Extraordinary dated November 5, 1962. The relevant portion of r. 30 is as follows The Central Government or the State Govern- ment, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil de fence, the public safety, the maintenance of public order, Indias relations with foreign powers, the maintenance of peaceful companyditions in any part of India or the efficient companyduct of military operations, it is necessary so to do, may make an order- x x x b directing that he be detained x x x During the operation of the Proclamation of Emergency the, President issued, on November 3, 1962, the following Order suspending the right to move any Court for the enforcement of rights companyferred by Arts. 21 and 22 of the Constitution In exercise of the powers companyferred by clause 1 of article 359 of the Constitution, the President hereby declares that right of any person to move any companyrt for the enforcement of the rights companyferred by article 21 and article 22 of the Constitution shall remain snspended for the peried during which the Proclamation of Emergency issued under clause 1 of article 352 thereof on the 26th October 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 4 of 1962 or any rule or order made thereunder. In exercise of the power companyferred by r. 30 aforesaid of the Defence of India Rules, the Chief Commissioner of Tripura issued an order of detention in respect of the petitioner on November 20, 1962 No. F. 22 59 -PD/62 TRIPURA ADMINISTRATION OFFICE OF THE CHIEF COMMISSIONER. Agartala, November 20, 1962. ORDER WHEREAS, 1 am satisfied that Shri Bipul alias Mohan Chaudhri S o Sri Bimala Charan Chaudhri of Sutarmura P. S. Bisalgar should be detained with a view to preventing him her from acting in any manner prejudicial to the defence of India and Civil defence, public safety, the maintenance of public order, Indias relations with foreign powers and the maintenance of peaceful companyditions in Tripura. Now therefore, in exercise of the powers companyferred by Rule 30 of the Defence of India Rules, 1962 read with sub- rule 11 of Rule 2 of the aforesaid Rules and all other powers enabling in that behalf, I hereby direct that the aforesaid person be detained in the Central jail at Agartala until further orders. Sd - S. P. Mukerjee Chief Commissioner, Tripura. By a subsequent order dated December 3, 1962, of the Chief Commissioner Tripura, the petitioner was transferred from Agartala Central jail to Hazaribagh Central jail. The order is in these terms TRIPURA ADMINISTRATION HOME DEPARTMENT No.-F. 22 59 -PD/62. Agartala, December 3, 1962. Agrayahana 12, 1884, ORDER In exercise of the powers companyferred by sub-rule 5 of Rule 30 of the Defence of India Rules, 1962 read with sub- rule 11 of Rule 2 of the said Rules and all other powers enabling in that behalf, I hereby direct that detenue Shri Bipul Chaudhury alias Mohan son of L. Bimala Charan Chaudhury of Sutarmura, Bishalgarh P. S. be transferred from Agartala Central jail to Hazaribagh Central jail, Bihar for detention in that jail, until further orders. The companysent of the Government of Bihar has been obtained for the removal of the aforesaid detenue from this Territory to the place mentioned above vide their telegram No. 940-Political Special, dated the 1st December 1962 . Sd - S. P. Mukerjee Chief Commissioner, Tripura. In the meantime, the Petitioner had made a petition under Art. 32 of the Constitution for a writ of Habeas Corpus against his detention, as aforesaid. This petition is dated November 30. 1962, while the petitioner was still in the Agartala Central jail. It appears the petition under Art. 32 of the Constitution was number immediately forwarded to this Court by the authorities of the Tripura Administration. Hence, the petitioner sent a petition from the Hazaribagh Central jail in Bihar, dated December 15, 1962/ December 18, 1962 for initiating proceedings for companytempt of Court against the Chief Commissioner, the Union Territory of Tripura. In that petition, after stating the facts of his detention, he stated that while in detention in the Agartala Central jail, the petitioner had submitted a petition under Art. 32 of the Constitution for a writ of Habeas Corpus and that the same had number been sent to this Court and had been withheld. He further stated that the jailor, Agartala Central jail,, had informed the petitioner that the petition had been sent to Tripura Administration for ascertaining whether actually a writ petition lay under the Defence of India Rules. When this petition was put up before this Court on January 28, 1963, this Court directed the issue of numberice to the opposite party. In obedience to the numberice Shri S.C Mazumdar, judicial Secretary, Union Territory of Tripura, made an affidavit to the effect that he had attended to the matter which was the subject of the numberice and that he had number the slightest intention to disregard or disobey the authority of this Court. He further tendered, on his own behalf and on behalf of the Chief Commissioner, Tripura, an unconditional apology. He also produced the original petition under Art. 32, dated November 30, 1962, and went on to state that when the petition was placed before him, on a companysideration of the Defence of India Rules, and the Presi- dents Order aforesaid dated November 3, 1962, he took the view that the petition was number maintainable and that, therefore, numberhing need be done. He admitted his mistake, and realised after companysultation with the Government companynsel that the Government should number have taken upon itself to decide whether the petition was maintainable or number and that the same should have been forwarded to this Court. He further stated that the advice tendered to the Tripura Administration was bona fide and that he extremely regretted that the action on his part should have resulted in a wrongful act on the part of our administration. When the matter was placed before this Court, the Division Bench, by its order dated February 18, 1963, accepted the uncondi- tional apology on behalf of Mr. S. C. Mazumdar and further directed that the Habeas Corpus petition be posted for preliminary hearing. The Constitution Bench thereafter, by its order dated March 27, 1963, directed the issue of Rule, and hearing of the case within 10 days. As the petitioner had appeared at the hearing, it was further directed that he be detained in Delhi jail till the disposal of the writ petition. When the matter came up before us for final hearing, we directed that in view of the important companysititutional issues involved it would be more companyvenient if the petitioner was represented before us by companynsel. Mr. K. Garg has taken great pains over this case and has placed all possible companysiderations before us for which the Court is obliged to him. The learned Additional Solicitor- General appeared to. show cause on behalf of the respondent, the Chief Commissioner, Union Territory of Tripura. We have fully heared companynsel for both parties. There was an intervention petition on behalf of one Shri Raj Kumar Vohra, detained by District Magistrate, Saharanpur, in a similar writ petition under Art. 32 of the Constitution. As the points to be raised in his petition were said to be similar to those in the present petition, we allowed the intervention. The learned companynsel for the respondent has taken the preliminary Objection to the hearing of the writ petition on merits, on the ground that the President having suspended the enforcement of the rights under Arts. 21 -and 22 of the Constitution, by his Order dated November 3, 1962, quoted above in extenso, the petitioner cannot move this Court under Art. 32 to enforce the right claimed by him. In answer to this preliminary objection, Mr. Garg has vehemently argued that the right guaranteed by Art. 32 cannot be suspended under Art. 359, because, it is said, that Article does number authonse the suspension of the exercise of the rights. He further companytended that the right to move this Court under Art. 32 itself being a guaranteed right has number been suspended by the Order aforesaid of the President and that the order suspending the right to move this Court depended on the companydition precedent that there was a valid Ordinance and rules framed and order made thereunder. The companytention further is that the companydition precedent is number fulfilled because the Ordinance IV of 1962 apart from being invalid for want of legislative companypetence, has spent its force on its being repealed by Act LI of 1962 . It is companytended, in other words, that the immunity from attack would be available, if at all, only in respect of something done under the Ordinance, but as there was numberfresh Order by the President under Art. 359, after the Ordinance had been replaced by the Act a, aforesaid, the petitioner was entitled to go into the merits of the companytroversy and companyld show that the Defence of India Act was unconstitutional and that the Rules framed thereunder were equally so. In our opinion, the preliminary objection is well-founded. We accordingly intimated to the parties that the Court having accepted the validity of the preliminary objection did number propose to hear the merits of the case and that our reasons for companying to that companyclusion will be given later. We number proceed to state our reasons for that companyclusion. The right to move this Court for the enforcement of the fundamental rights guaranteed under the Constitution is itself a guaranteed right. But cl. 4 of Art. 32 itself provides that the right so guaranteed companyld be suspended in accordance with the provisions of the Constitution. We have stated in a positive form what has been provided for in the negative form by cl. 4 , which runs as follows The right guaranteed by this article shall number be suspended except as otherwise provided for by the Constitution. Now what is the provision made by the Constitution in view of the said clause of Art. 32? On the Proclamation of Emergency by the President on October 26, 1962, as aforesaid, the provisions of Art. 19, setting out the different freedoms which all citizens have the right to enjoy, are suspended with the result that the power to make any law or to take any executive action is number fettered so long as the Proclamation companytinues to operate Art. 358 . Secondly, during that period the President is empowered by Art. 359 1 , by order to suspend the right to move any Court for the enforcement of the Fundamental Rights companytained in Part III of the Constitution. The Order of the President dated November 3, 1962, already set out., in terms, suspends the right of any person to move any Court for the enforcement of the rights companyferred by Arts. 21 and 22 of the Constitution, during the period of the Emergency. Prima facie, therefore, the petitioners right to move this Court for a writ of Habeas Corpus, as he has purported to do by this petition, will remain suspended during the period of the Emergency. But even then it has been companytended on behalf of the petitioner that Art. 359 does number authorise the suspension of the exercise of the right guaranteed under Art, 32 of the Constitution, and that, in terms, the operation of Art. 32 has number been suspended by the President. This companytention is wholly unfounded. Unquestionably, the Courts power to issue a writ in the nature of habeas companypus has number been touched by the Presidents Order, but the petitioners right to move this Court for a writ of that kind has been suspended by the Order of the President passed under Art. 359 1 . The Presidents Order does number suspend all the rights Vested in a citizen to move this Court but only his right to enforce the provisions of Arts. 21 and 22. Thus, as a result of the Presidents Order aforesaid, the petitioners right to move this Court, but number this Courts power under Art. 32, has been suspended during the operation of the Emergency, with the result that the petitioner has numberlocus standi to enforce his right, if any, during the Emergency. It was also companytended that the Presidents order of November 3, 1962, is subject to the companydition precedent that there is a valid ordinance and the rules framed or the orders made thereunder are valid. In other words, it is companytended that it is open to the petitioner to canvass the validity of the Ordinance. This is arguing in a circle. In order that the Court may investigate the validity of a particular ordinance or act of a legislature, the person moving the Court should have a locus standi. If he has number the locus standi to move the Court, the Court will refuse to entertain his petition questioning the vires of the particular legislation. In view of the Presidents Order passed under the provisions of Art. 359 1 of the Constitution, the petitioner has lost his locus standi to move this Court during the period of Emergency as already pointed out. That being so, this petition is number maintainable. But it has been argued in the alternative that assuming that the Ordinance is valid and the Presidents Order operates against the petitioner, the words of the last clause in the Presidents Order, beginning with if such person arc number fulfilled because the Ordinance has been repealed by the Act LI of 1962 , as aforesaid. The question, there. fore arises What is the effect of those words? The learned Solicitor-General has put his argument in two alternative ways. Firstly he argued, that those words were descriptive of the person who has been detained and number that they lay down a companydition precedent, as companytended on behalf of the peritioner, Prima facie it is difficult to accept this argument but we need number pursue it in view of the companyclusion we have reached on the alternative argument to be presently dealt with. Alternatively he companytended, that, under s. 8 of the General Clauses Act X of 1897 , s. 48 of the Act LI of 1962 , which repeals Ordinances 4 and 6 of 1962 and which saves anything done or any action taken under those Ordinances has to be companystrued in such a way as to companytinue the Detention Order made under r. 30 of the Defence of India Rules, even after the repeal of the Ordinance under which they were promulgated. Section 48 is in these terms 48 1 . The Defence of India Ordinance, 1962 and the Defence of India Amendment Ordinance 1962, are hereby repealed. Notwithstanding such repeal, any rules made, anything done or any action taken under the Defence of India Ordinance, 1962, as amended by the Defence of India Amendment Ordinance, 1962 shall be deemed to have been made, done or taken under this Act as if this Act had companymenced on the 26th October 1962. It is companytended on behalf of the petitioner that by virtue of sub-s. 2 of s. 48, quoted above, the detention order passed against the petitioner will be deemed to have been made under the Defence of India Act, 1962, and that, therefore, the Presidents Order of November 3, 1962 which has reference to the detention order passed against the petitioner under the Defence of India Ordinance and the Rules thereunder, was wholly inoperative. The Ordinances aforesaid had been promulgated by the President when Parliament was number in session. They had the same force and effect as an Act of Parliament, but they Would cease to operate at the expiration of 6 weeks from the re-assembly of Parliament. of necessity,, therefore, the Act had to take the place of the Ordinances within that period if the special measures in the interest of public safety had to be companytinued. Hence, the Parliament had to enact the very same provisions, with the companysequential additions and alternations, of the Ordinance 4 and Ordinance 6 aforesaid. The Defence of India Act LI of 1962 itself, in the preamble recites the Proclamation of Emergency by the President and the necessity to provide for special measures to ensure public safety and interest. The Act came into force on December 12, 1962. By operation of s.48 of this Act, the Ordinances aforesaid have been repealed, but all action taken and all rules made thereunder have been companytinued in operation by introducing the fiction that they shall be deemed to have been made or taken under the Act, which is deemed to have companymenced on October 26, 1962, the date Ordinance 4 was promulgated. The Presidents Order of November 3, 1962, suspending the petitioners rights under Arts. 21 and 22 of the Constitution, was made when Ordinance, 4 of 1962 was in operation, and, therefore, had to take numbere of the facts as they then existed. Section 8 1 of the General Clauses Act, which applies to the companystruction of Act LI of 1962 , is in these terms 8 1 where this Act, or any Central Act or Regulation made after the companymencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enact- ment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be companystrued as references to the provision so re-enacted. Are the provisions set out above applicable to the companystruction of the Order of November 3, 1962, passed by the President suspending the petitioners right to move this Court? It has number been companytested that those provisions applied to the companystruction of the Act LI of 1962 , which repeals and re-enacts the provisions of the Ordinances aforsaid. But then the question arises whether they are available in companystruing the following words of the Presidents Order ,If any such person has been deprived of any such rights under the Defence in India Ordi- nance, 1962 4 of 1962 or any rule or order made thereunder. Is the Presidents Order in question an instrument within the meaning of the section? The General Clauses Act does number define the expression instrument. Therefore, the expression must be taken to have been used in the sense in which it is generally understood in legal parlance. In Strouds Judicial Dictionary of Words and Phrases Third Edition, Volume 2, page 1472 , ,instrument is described as follows An instrument is a writing, and generally imports a document of a formal legal kind. Semble, the word may include an Act of Parlia- ment 11 Conveyancing Act, 1881 44 45 Vict. c.41 , s.2 xiii , instrument includes deed, will, inclosure, award and Act of Parliament The expression is also used to signify a deed inter- partes or a charter or a record or other writing of a formal nature. But in the companytext of the General Clauses Act, it has to be understood as including reference to a formal legal writing like an Order made under a statute or subordinate legislation or any document of a formal character made under companystitutional or statutory authority. We have numberdoubt in our mind that the expression instrument in s.8 was meant to include reference to the Order made by the President in exercise of his companystitution- al powers. So companystrued the Presidents Order would, even after the repeal of the Ordinance aforesaid companytinue to govern cases of detention made under r. 30 aforesaid under the Ordinances. It must therefore, -be held that there is numbersubstance in the companytention that the petitioners detention originally made under the rule under the Ordinance would number be deemed to have companytinued under the Act LI of 1962 . Equally clearly, there is numbersubstance in the companytention that the same Order should have been repeated by the President after the enactment of the Act. It would have been a sheer act of supererogation and the legal fiction laid down in s.8 is meant to avoid such unnecessary duplication of the use of the companystitutional machinery. A proper companystruction of the provisions of s.48 of the Act, which has replaced the Ordinances aforesaid, read in the light of the provisions of s.8 of the General Clauses Act leaves numberroom for doubt that the detention order passed against the petitioner was intended to be companytinued even after the repeal of the Ordinances which were incorporated in the Act LI of 1962 . That being so, the Order of the President must have the effect of suspending the petitioners right to move this Court for a writ of habeas companypus under Art. 32 of the Constitution. After the petititioner had been deprived, for the time being, of his right to move this Court, it is manifest that he cannot raise any questions as regards the vires of the Ordinances or of the Rules and Orders made thereunder.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 102404 of 1961, Appeals by special leave from the judgment and order dated December 21, 1960 of the Allahabad High Court in Criminal Appeals Nos. 737,738 and 744 of 1960. Frank Anthony and P.C. Agarwala, for the appellant. C.Mathur and C.P. Lal, for the respondent. 1963. April 17. The Judgment of the Court was delivered by WANCHOO J.--These are three appeals by special leave against the judgment of the Allahabad High Court. It will be companyvenient to dispose them of together, though they arise out of three different trials before the Special Judge, Saharanpur under s. 5 2 of the Prevention of Corruption Act, No. 2 of 1947, hereinafter referred to as the Act , as the appellant is the same in all the appeals. The brief facts necessary for present purposes are these. Munnalal was the cashier of the Municipal Board of Hardwar and had been working as such since 1932. He was in charge of the cash and it was his duty to see that whenever the funds in his possession exceeded Rs. 4,000/- they were deposited in the treasury or the Imperial Bank at Roorkee. In 1949 there was an audit of the accounts of the Board and on May 24, 1949, the auditor found that the money received by the Board from April 20, 1949, to May 23, 1949, totalling Rs. 52,144/- had number been deposited in the treasury or the Imperial Bank at Roorkee. The matter was then reported to the Chairman of the Board, who called Munnalal and took his explanation as to the alleged embezzlement. It is said that the appellant admitted that he had spent some of the money in the .marriage of his daughter and some was used in his shop and Rs. 10,000/to Rs. 11,000/-had been given to the Executive Officer and the remainder was at his house. The appellant was asked to make good the loss immediately but failed to do so. Thereupon the appellant was suspended and the matter was handed over to the police for investigation. The police registered a case under s. 409 of the Indian Penal Code and after investigation prosecuted the Executive Officer as well as the appellant and his brother who was the Assistant Cashier at the relevant time. The case was transferred by the High Court to a magistrate in Meerut but that case was number proceeded with as an application was made to withdraw it on the ground that the case was companyered by s. 5 2 of the Act. So the magistrate discharged the three accused of that case. Thereafter necessary sanction was given for prosecution under s. 5 2 of the Act and four prosecutions were launched against the appellant and his brother. The Special Judge, however, took the view that the joint trial of the appellant and his brothers was number possible with respect to some of the moneys said to have been embezzled. He therefore ordered that there should be three separate trials of the appellant alone with respect to certain moneys in addition to the four trials of the appellant and his brother with respect to the remainder. That is how seven trials took place. In the present appeals we are number companycerned with the other accused, namely, the brother of the appellant, as he was acquitted. We arc also numberconcerned with four of the trials we arc only companycerned with three trials with respect to three sums of money in these three appeals. Appeal No. 102 is companycerned with a sum of Rs. 1623/4/-, received between April 14, 1949 and May 23, 1949 and number accounted for appeal No. 103 is companycerned with a sum of Rs. 9611-9-6 received between April 20, 1949 and May 24, 1949 and number accounted for and appeal No. 104 is companycerned with a sum of Rs. 43087/-/3 received between April 20, 1949 and May 24, 1949 and number accounted for. The case of the prosecution was that these sums were received by the appellant during the period mentioned above and had number been deposited either in the treasury or in the Imperial Bank at Roorkee as required by the rules. The appellant practically admitted the receipt of the money except a few items which were also found by the Special Judge to have been received by him. He also admitted that his duty was to deposit any sums above Rs. 4,000/- in the Imperial Bank or the treasury at Roorkee. He was however inconsistent in his defence as to what he did with the moneys which he had undoubtedly received. He first tried to prove that he had deposited the amounts., In the alternative his case was that a practice had been prevailing for many years in the office of the Board under which the Executive Officer and other employees of the Board used to take advances from the cashier from time to time by sending slips and the cashier was utilised as a banker for all officers and servants of the Board, including the Executive Officer. Though these sums were supposed to be returned to the cashier appellant in the beginning of the next month when pay was drawn by those who had taken these unauthorised advances, in actual fact this did number always happen. The result of these advances which were sometimes of large amounts was that the money companyld number be deposited in the treasury according to the rules as these advances were being companystantly made to the officers and servants of the Board. The appellant therefore companytended that he had number companyverted the money to his own use and had advanced the same to the officers and servants of the Board according to the practice prevalent for a number of years and that such advances were even made to the highest officer of the Board, namely, the Executive Officer, and that the officers all knew of this practice and also knew that moneys were number being deposited in the Bank or the treasury at Roorkee as required by rules. The Special Judge held on the evidence that it was proved that the moneys which were the subject matter of the charge except for two items had been received by the appellant. He also held that except for certain items, the appellant had dishonestly or fraudulently misappropriated or otherwise companyverted to his own use the property entrusted to him or under his companytrol as a public servant or allowed any other person so to do. He therefore found the appellant guilty under s. 5 2 of the Act read with s. 5 1 c thereof. The Special Judge sentenced the appellant to five years rigorous imprisonment in the cases from which appeals Nos. 102 and 103 arise but ordered the sentences to run companycurrently. He also sentenced the appellant in the case from which appeal No. 104 arises to five years rigorous imprisonment and a fine of Rs. 42,000/-. The sentence in this case was apparently number made companycurrent. The appellant filed three appeals before the High Court which were heard together. The High Court agreed with the companyclusions of the Special .Judge and upheld the companyviction of the appellant in the three cases. In view however of the practice to which reference has been made above and which was proved to the hilt and in view also of the fact that these cases had taken almost 11 years to be disposed of, the High Court reduced the sentences in the three cases to two years rigorous imprisonment and made them all companycurrent. It also set aside the sentence of fine as it was of the view that though the appellant was guilty he had number companyverted the money to his own use but had advanced most of it to the officers and servants of the Board. The present appeals by special leave are against these judgments of the High Court in the three appeals. Two points have been urged on behalf of the appellant and it is said that in view of those points the trial was illegal and should be .quashed. In the first place it is urged that the investigation was irregular and number in accordance with s. 5A of the Act. Section 5A lays down that numberpolice officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under the Act outside the presidency towns without the.order of a magistrate of the first class. What happened in this case was that originally the entire investigation was done by a sub-inspector of police and therearter the case under ss. 409/406 of the Indian Penal Code was instituted against the appellant, his brother and the Executive Officer. That case was later withdrawn and it was thereafter that sanction was granted for the prosecution of the appellant and his brother under s. 5 2 of the Act and investigation was made as required by s. 5-A. But the evidence shows that this investigation merely companysisted of this that the duly authorised investigating officer went through the papers of the earlier investigation and decided to file four prosecutions as already indicated on the basis of the earlier investigation. It does appears from these facts that though the letter of s. 5A of the Act was companyplied with its spirit was number, for in reality there was numberinvestigation by the officer authorised under that section and the real investigation was by a sub-inspector of police who was never authorised. In H.N. Rishbud Inder Singh v. The State of Delhi 1 , this Court held that s. 5A is mandatory and number directory and an investigation companyducted in violation thereof is illegal. This Court further held that if companynizance is in fact taken on a police reporting breach of a mandatory provision relating to investigation, the results which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. It was further held that an illegality companymitted in the companyrse of an investigation does number affect the companypetence and the jurisdiction of the companyrt for trial and where companynizance of the case has in fact been taken and the case has proceeded to 1955 1 S. C. R. 1150. termination the invalidity of the preceding investigation does number vitiate the result unless miscarriage of justice has been caused thereby. In view of this decision, even if there was irregularity in the investigation and s. 5A was number companyplied with in substance, the trials cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of the illegal investigation. Learned companynsel for the appellant has been unable to show us how there was any miscarriage of justice in these cases at all due to the irregular investigation. As a matter of fact on the alternative case put forward by the appellant, the substance of the prosecution case was practically admitted by him and he merely pleaded certain mitigating circumstances. Learned companynsel for the appellant however drew our attention to the State of Madhya Pradesh v. Mubarak Ali. 1 In that case an objection was taken before the trial began before the Special Judge that the investigation had been carried on in breach of s. 5A of the Act. The matter went before the High Court and it directed that in order to rectify the defect and cure the illegality in the investigation, the Special Judge should have ordered the Duputy Superintendent of Police to carry on the investigation himself while the case remained pending in the companyrt of the Special Judge. That order of the High Court was brought in appeal to this Court, and the appeal was dismissed. This case in our opinion is of numberassistance to the appellant, for there the objection was taken at the earliest stage before the trial began and it was in those circumstances that the trial was stayed till proper investigation was companypleted and a proper report made thereafter for the prosecution of the accused of that case. In the present cases numberobjection was taken at the trial when it began and it was allowed to companye to an end. In these circumstances the ratio of Mubarakalis case 1 cannot apply and the decision in Rishbuds case 2 would apply. The appellant therefore cannot say that the trial was 1 1959 supp. 2 S.C.R. 201. 2 L955 1 S. C.R. 1150 vitiated unless he can show that an.V, prejudice was caused to him on account of the illegal or irregular investigation. We have already remarked that numbersuch thing has been shown in this case number was it possible 10 show any such thing in view of the alternative defence taken by the appellant. We therefore reject this companytention. The next companytention that has been urged is that there was numberproper sanction in these cases and this is based on the fact that only four cases were filed before the Special Judge with of companyrse proper sanction but these cases were split up into seven and the argument is that there was numbersanction for the remaining three cases, and two of the present appeals namely Nos. 102 and 103 are out of these split-up cases. It is also urged that the sanction was number with respect to s. 5 1 c of the Act though it was under s. 5 2 of the Act and therefore it was insufficient to companyfer jurisdiction on the Special Judge to try the appellant under s. 5 1 c read with s. 5 2 . We are of opinion that there is numberforce in either of these companytentions. It is true that the Special Judge split up the four cases before him into seven but it is number disputed that the amounts involved in the three new cases which the Special Judge had directed for splitting up due to the difficulty of joint trial were with respect to amounts which were included in the four cases filed before him and with respect to which there was sanction. The mere fact that in view of the provisions of s. 239 of the Code of Criminal Procedure the Special Judge thought it necessary to separate the trial of Munnalal with respect to certain items for which there was sanction would number mean that these cases which were directed by the Special Judge to be split up for that reason had numbersanction behind it. The sanction of the original four cases would companyer these three cases also which were split out of the original four cases. As to the argument that there was numbersanction for prosecution under s. 5 1 c , it is clear that there is numberforce in it. The sanction says that the appellant had received money and misappropriated it by number crediting the same into the treasury and embezzled it and was therefore guilty of criminal misconduct and liable to prosecution under ss. 409/406 and s 5 2 of the Act. The allegations made clearly show that the sanctioning authority had s. 5 1 e in mind because the sanction speaks of misappropriation and embezzlement of the moneys of the Board and misappropriation and embezzlement is only to be found in s. 5 1 c . It is argued however that s. 5 1 c speaks of misappropriation or otherwise companyversion to his own use any property- entrusted to him or under his companytrol by a public servant for himself. It also speaks of a public servant allowing any other person to do so. But the sanction seems to show as if the appellant was to be prosecuted for companyverting the property to his own use. There is in our opinion numbersubstance in this argument, for the sanction speaks of misappropriation and embezzlement and there is numberhing in the words to imply that this was only with reference to companyversion by the appellant to his own use. As the words of the sanction stand they would companyer a case of misappropriation or companyversion to his own use by the appellant himself or by allowing others to do so. We are therefore of opinion that the sanction was sufficient for the purpose of giving jurisdiction to the Special Judge to take companynizance of the cases out of which these appeals have arisen. This brings us to the merits of the three appeals. So far as this is companycerned, learned companynsel for the appellant has number urged--and, in our opinion, rightly--that the companyvictions are unjustified. The only question that he has urged is that in view of the established facts that the appellant was using the Boards money in order to advance it to the officers and servants of the Board beginning with the highest officer of the Board, namely, the Executive Officer and that the evidence as found by the High Court does number seem to establish that there was any companyversion of the moneys by the appellant to his own use, this is a case in which the appellant was more sinned against than sinning. It is companyceded that as the appellant was the cashier it was his duty in law to follow the rules with respect to the custody of the cash of the Board entrusted to him and if he did number do so he would be guilty. But it is urged that when the highest officer of the Board, namely, the Executive Officer was himself taking out money from the funds of the Board by sending slips to the cashier and other officers and servants of the Board were doing the same thing and this was well known, presumably also to the Chairman of the Board, it is number just that the appellant should be made to suffer when he was obliging the officers and servants of the Board and might even have felt companypelled to grant the demands of the Executive Officer and other officers and servants of the Board, for he was serving under some of them. We must say that the evidence discloses, a scandalous state of affairs which was allowed to go on and even the highest officer of the Board, namely, the Executive Officer, was companynizant of this state of affairs and was himself a party to it. The appellants case further was that even the Chairman knew about it and was at times party to it and this may also be number incorrect. In these circumstances there is force in the companytention on behalf of the appellant that he was more sinned against than stoning and that the misappropriation took place because he had to oblige these officers and servants of the Board or otherwise incur their displeasure which he companyld hardly do. So it is urged on behalf of the appellant that as he has already been in jail for more than ten months in the circumstances that punishment along with the fact that the trial had been prolonged for eleven years since 1949 should be sufficient punishment for him. Ordinarily this Court does number interfere in the matter of sentence in appeals under Art. 136 but we think in the circumstances disclosed in the present appeals when the officers and servants of the Board including the highest officer were behaving as if the moneys of the Board were their private property and the misappropriation took place mainly because the appellant was obliging these officers and servants of the Board, that the sentence already undergone by the appellant would meet the ends of justice. We ought to add that Mr. Mathur who appeared for the respondent State did number feel justified--and we think rightly-in pressing for the companyfirmation of the reduced sentence passed by the High Court in appeal.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE.JURISDICTION Civil Appeal Nos. 755 of 1962. Appeal by special leave from the order dated March 5, 1962, of the Labour Court Central Ahmedabad, in Complaint No. 153 of 1961 in Reference No. 1 of 1960. V. Phadke, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant. K. Ramamurthi for the respondent. 1963. April 22. The judgment of the Court was delivered by DAS GUPTA J.-This appeal by special leave is against the decision of the Labour Court, Ahmedabad, in an application by the respondent under s. 33A of the Industrial Disputes Act. The appellant is a banking companypany which has numerous branches all over southern India. The respondent joined the service of the appellant-bank on June 14, 1951 and after companyfirmation in September 1952 was posted at Udipi. He was later transferred to Trichur but on his representation was transferred to Mandvi Branch, Bombay, in July 1956. On May 20, 1961, another order of transfer was made by the appellant-bank posting the respondent back at Trichur. The present application under S. 33A was made on August 26, 1961, praying that the transfer order of May 20, 1961 be cancelled and the respondent permitted to companytinue at Bombay. It was alleged in the application that the appellant made the transfer order mala fide and as an Act of victimization for the lawful trade union activities of the companyplainant. It was also alleged that the transfer was made to deprive the companyplainant of his lawful dues. This application was made before the National Industrial Tribunal at Bombay before which proceedings in respect of an industrial dispute between the appellant-bank and its workmen was then pending. The National Tribunal transferred the application to the labour Court, Ahmedabad, for disposal. Before the Labour Court the appellant companytended that there had been numbercontravention of the provisions of s. 33 of the Industrial Disputes Act as numberchange had been made in the service companyditions of the respondents employment and further that the transfer had been made bona fide on account of sheer business companysiderations and exigencies of business. It was also companytended that the order of transfer made by the bank did number offend the terms of the Sastry Award on the question of transfer of Bank employees. The labour Court held that under the terms of the Sastry Award the appellants right to transfer his employees was limited to this extent that a clerk like the respondent companyld number be transferred outside the State or language area in which he had been serving except with his companysent. Holding that there had been numbersuch companysent, it came to the companyclusion that the companyditions of service of the respondent had been altered in a manner number in accordance with the standing order companytained in the Sastry Award. Proceeding next on the assumption that the Sastry Award permitted the Bank to transfer clerks outside the State or the language area when it was in the interests of the Banks business, it companysidered the question whether the bank had numberother alternative but to transfer this particular clerk outside the State or the language area in which he had been serving and came to the companyclusion that this had number been established by the Bank. The Court rejected the allegation that the transfer had been made to victimize the respondent for his union activities. Being of opinion however that by the transfer the appellant had materially altered the respondents service companyditions and this alteration was number in accordance with Sastry Award, the Court directed the bank to cancel the transfer order and to retransfer the companyplainant to Mandvi Branch, Bombay. The Bank has number appealed against this direction. The relevant direction in the Sastry Award on the question of transfer is in these words We direct that in general the policy should be to limit the transfers to minimum companysistent with the banking needs and efficiency. So far as members of the subordinate establishment are companycerned there should be numbertransfers ordinarily and if there are any transfers at all, they should number be beyond the language area of the person so transferred. We further direct that even in the case of workmen number belonging to the subordinate staff, as far as possible there should be numbertransfer outside the State or the language areas in which the employee has been serving except, of companyrse, with his companysent. It is number disputed that these directions were binding on the appellant-bank number is it disputed before us that these directions amounted to standing orders applicable to Banks workmen within the meaning of s. 33 2 of the Industrial Disputes Act. It cannot also be doubted that the result of the transfer would be a material alteration in the respondents companyditions of service. Two companytentions are urged before us in support of the appeal. The first is that the Labour Court erred in thinking that the direction in the Sastry Award absolutely prohibited the Bank from transferring workmen number belonging to the subordinate staff outside the State or the language area in which the employee had been serving except with his companysent. On a proper companystruction, it was urged, the direction only required the bank to refrain from making such transfers as far as possible and did number prevent the bank from making such transfers where it was really found necessary in banks interests. The second companytention was that when the bank claimed to have made the transfer in the interests of its business and was found to have acted bona fide, it should have been held that the direction in the Sastry Award had number been companytravened. In our opinion, there is companysiderable force in both these companytentions. It will be numbericed that in making the directions as regards the transfer of workmen the Sastry Award drew a distinction between workmen belonging to the subordinate staff and others. As regards members of the subordinate staff the direction was to the effect that there should be numbertransfers ordinarily and there was absolute prohibition against transfers beyond the language area of the persons companycerned. The words used for the purpose are if there are any transfers at all, they should number be beyond the language area of the person so transferred. As regards these workmen the award did number say that as far as possible transfer should number be beyond the language area of the person so transferred. It is easy to see that here the prohibition was absolute. When they go on to companysider the case of workmen number belonging to the subordinate staff, the member of the Tribunal however use markedly different language and preface the direction with the words there should be numbertransfer outside the State or the language area in which he is serving except of companyrse, with his companysent by the words as far as possible. It is number possible to companysider this direction as amounting to absolute prohibition without ignoring, the words as far as possible. It is clear that these words were deliberately used to leave it to the banks to decide on a companysideration of the necessities of its business interests whether a transfer of a workman number belonging to the subordinate staff outside the State or the language area in which he had been serving companyld be avoided or number, and directing that where possible it should be avoided. We are satisfied the Labour Court was in error in holding that transfers outside the State or the language area can be made only with the companysent of the employees. What that clause means is that with companysent such transfers can of companyrse be made, otherwise they should be avoided as far as possible. This brings us to, the question whether in the present case the appellant companytravened the direction in the award in transferring the respondent outside the Maharashtra State in which he was serving and also outside the language area in which he had been serving. It is necessary to remember in this companynection that a bank which has branches in different parts of the companyntry has to distribute its total manpower between these different branches in accordance with the needs of these branches and with an eye to its business interests. To attain the best results it becomes necessary to transfer workmen from one branch to another. The best interests of the bank may require at times that the transfer should be made outside the State or the language area in which a particular workman had formerly been employed. We have found above that the right of the bank to distribute its workmen number belonging to the subordinate staff to the best advantage, even though this may involve transfers outside the State or the language area in which a particular workman had been serving, was left unimpaired by the Sastry Award, except that such transfers have to be avoided, if they can be avoided without sacrificing the interests of the bank. The management of the bank is in the best position to judge how to distribute its man-power and whether a particular transfer can be avoided or number. It is number possible for industrial tribunals to have before them all the materials which are relevant for this purpose and even if these companyld be made available the tribunals are by numbermeans suited for making decisions in matters of this nature. That is why it would ordinarily be proper for industrial adjudication to accept as companyrect any submission by the management of the bank that an impugned transfer has been made only because it was found unavoidable. The one exception to this statement is where there is reason to believe that the management of the bank resorted to the transfer mala fide, by way of victimization, unfair labour practice or some other ulterior motive, number companynected with the business interests of the bank. In the present case the Labour Court has rejected the respondents challenge to the bona fides of the management. It has held that there is numberevidence whatever to support the companyplainants allegation that he was transferred because he joined the Union and that the management had adopted a particular policy towards the workmen of the Union. We can find numberhing that would justify us in interfering with the Labour Courts finding that these allegations have number been proved. It is true that the Labour Court has in companysidering the question whether the companyditions of his service had been altered observed that the transfer seems to be very unfair to the employ cc. What it obviously means by this is that this transfer will work harshly on the employee. That may indeed be true. But that does number amount to a finding of unfair labour practice. In these circumstances the Labour Court was number justified in thinking that the respondents transfer to Trichur companyld have been avoided without any injury to the banks interests. We have therefore companye to the companyclusion that the Labour Court has erred in holding that the transfer was number made in accordance with the standing orders regarding transfers as companytained in the Sastry Award. We therefore allow the appeal, set aside the order of the Labour Court and order that the respondents application under s.33A be rejected.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 41 to 49 of 1962. Appeals by special leave from the. judgment and order dated July 23, 1959, of the Orissa High Court in O. J. C. No 33 of 1959. Ranganadham Chetty, B. D. Dhawan,, S. K. Mehta and K. L, Mehta, for the appellant. C . K. Daphtary, Attorney-General for India, R. Ganapathy Iyer and R. N. Sachthey, for the respondents. 1963. April 5. The Judgment of the Court was delivered by SARKAR J.-The appellant had entered into a companytract with a companypany called the Hindusthan Steel Private Ltd., for the manufacture and supply of bricks at Rourkela in Orissa. Large quantities of bricks were manufactured and supplied under the companytract and the appellant received payment for them. The respondent State assessed the appellant to sales tax under the Orissa Sales Tax Act, 1947 on these supplies on the basis that they were sales. The appellant companytended that the companytract was only for labour or for work done and material found, and that there was really numbersale of any goods on which the tax companyld be levied. He moved the High Court of Orissa for a write of mandamus directing the res- pondent State number to assess or levy the tax. The application was rejected in limine by the High Court. The appellant has number companye to this Court in further appeal. Now a sale which can be taxed under the Act has been defined as Any transfer of property in goods for cash or deferred payment or other valuable companysideration. The point at issue is whether the companytract was for a transfer of property in the bricks from the appellant to the Company for a companysideration. It is said that the bricks were made out of earth belonging to the Company and, therefore, the bricks had all along been its property and there companyld be numbertransfer of property in them to it. This companytention is founded on a clause in the companytract which says., land will be given free and which was apparently intended to make the earth available to the appellant for making the bricks. We are unable to agree that this clause proved that the earth all along companytinued to belong to the Company. It seems to us that when the clause said, land will be given, it meant that the property in the earth to be dug out for making the bricks would be transferred to the appellant. It may be presumed that it was understood that in quoting his rate for the bricks, the appellant would take into account the free supply of earth for making the bricks. Again what was supplied to the Company by the appellant was number the earth which be got from it but bricks, which we think, are something entirely different. It companyld number have been intended that the property in the earth would companytinue in the Company in spite of its companyversion into such a different thing as bricks. Further we find that the companytract provided that the bricks would remain at the appellants risk till delivery to the Company. Now, obviously bricks companyld number remain at the appellants risk unless they were his property. Another clause provided that the appellant would number be able to sell the bricks to other parties without the permission of the Company. Apperantly, it was companytemplated that without such a provision the appellant companyld have sold the bricks to others. Now he companyld number sell the bricks at all unless they belonged to him. Then we find that in the tender which the appellant submitted and the acceptance of which made the companytract, he stated, II we hereby tender for the supply to the Hindusthan Steel Private Ltd. of the materials described in the undermentioned memorandum. The memorandum described the materials as bricks, and also stated the Quantities to be delivered and the Rate at which materials are to be supplied. All these provisions plainly show that the companytract was for sale of bricks. If it were so, the property in the bricks must have been in the appellant and passed from him to the Company. The same companyclusion follows from another provision in the companytract which states that if bricks are stacked in a specified manner then 75 of the value of the bricks at kiln site will be measured and paid The balance of 25 will be paid finally when all the bricks have been delivered Only full bricks as finally delivered will be taken into account Before we leave this part of the case we have to numberice the decision in P. A. Raju Chettiar v. The State of Madras 1 , to which learned companynsel for the appellant referred. We do number think however that it is of any assistance. That was a case in which a merchant had delivered silver to workmen for manufacture of utensils and the workmen returned the manufactured utensils. It was held that there was numbersale of the silver by the merchant to the workmen. It was so held because the weight of the silver had been debited to the workmen on delivery and credited to them on the manufactured goods being made over to the merchant and the price of the silver had never been debited or credited to them. Furthermore, the workmen had been paid only the charges for their labour. On these facts it companyld number be said that the property in the silver had ever passed to the workmen. The facts in the 1 1955 6 S. T. C, 131. present case are different and for the reasons earlier mentioned, justify the view that here there was a transfer of the property in the earth to the appellant by the Company. Learned companynsel stressed the fact that the companytract numberhere used the word sale in companynection with the supply of the bricks, in support of his argument that there was numbersale. But it is number necessary that to companystitute a sale, the word sale has to be used. We have sail enough to show that under the companytract there was a transfer of property in the bricks for companysideration and, therefore, a sale numberwithstanding that the word sale was number used. The other argument of learned companynsel for the appellant was that even if the earth of which the bricks had to be made be taken to have been transferred under the companytract to the appellant, this was number a companytract for sale of goods but one of work done and materials found. A companytract of this kind is illustrated by the case of Clay v. Yates 1 . There the companytract was to print a book, the printer to find the materials including the paper. Robinson v. Graves 2 , was also referred to. There a person had companymissioned an artist to paint the portrait of a lady and it was held that the companytract was number for sale of goods though the artist had to supply the paint and canvas and had to deliver the companypleted picture. In these cases in arriving at the view that the companytract was number for sale of goods the test that was applied is, what was the essence of the companytract ? Was it the intention of the parties in making the companytract that a chattel should be producedand transferred as a chattel for a companysideration? This test has number been accepted as of general application to decide whether a companytract was for sale of goods or for labour supplied and materials found see Benjamin on Sales 8th ed. p. 161 and Halsburys Laws of England 3rd ed. vol. 34, p. 6. 1 1856 1 H N 73, 2 1935 1 K,B, 579, It is true that the test will often be found to be difficult of application. But numbersuch difficulty arises in the present case. Here the intention of the parties in making the companytract clearly was that the Company would obtain delivery of the bricks to be made by the appellant it was a companytract for the transfer of chattels qua chattels. The essence of the companytract was the delivery of the bricks, though numberdoubt they had to be manufactured to a certain specification. It would be absurd to suggest that the essence of the companytract was the work of manufacture and the delivery of the bricks was merely ancillary to the work of manufacture, in the same way as the delivery of the paint and the canvas were held to be ancillary to the companytract to paint the portrait -in Robinson V. GraVes The fact that under the companytract the bricks had to be manufactured according to certain specifications, and, therefore, the appellant had to bestow a certain amount of skill and labour in the manufacture of the bricks, does number affect the question. That was number the essence of the companytract. The object of the companytract numberetheless remained the delivery of bricks. It has never been doubted that the claim of a tailor or a shoemaker is for the price of goods when delivered, and number for the work or labour bestowed by him in the fabrication of them see Grafton v. Armitage 2 and J. Marcel Furriers Ltd. v. Tapper 3 . The present case, therefore, must a fortori be one of sale of goods. It remains number to numberice a preliminary objection to this appeal raised by the respondent. It was said that before the High Court was moved under Art. 226 for the writ, the appellant had filed appeals against the orders of assessment to the Sales Tax Appellate Tribunal. These appeals failed and the appellants application for an order on the Tribunal 1 1935 1 K.B. 579. 2 1845 2 C. B. 3 3.6. 3 1953 1 All. E.R. 15. to refer to the High Court the question of law raised in this appeal was also rejected by the High Court. It is, therefore, said that this appeal is companycluded by the order of the High Court last mentioned. But it appears that this Court had granted leave to appeal from the High Courts order refusing to issue the writ before the appeal to the tribunal had been dismissed. The appellant companyld have appealed from the High Courts order refusing to direct a reference of the question but he chose to prosecute the appeal against the order in the petition for the writ which would have given him the same relief. Either remedy was open to him and neither can be said in the circumstances to be barred by the other.

Case appeal was rejected by the Supreme Court

Das Gupta, J. These two appeals raise a somewhat difficult problem as regards the grant of bonus to workmen of an industry operating number only in India but also outside this companyntry. The appellants are the workmen of two Steamer Companies, the Indian General Navigation and Railway Co., Ltd., and the Rivers Steam Navigation Co., Ltd., which have for many years been operating jointly and are companyveniently referred to as Joint Steamer Companies. Disputes having arisen between these companypanies and their workmen on the question of bonus for the years 1949, 1950, 1951 and 1952, they were referred by the Government of West Bengal to the Industrial Tribunal, by two separate orders of reference, one in respect of the dispute for bonus for the years 1949 and 1950 and the other in respect of the years 1951 and 1952. The Tribunal disposed of these two references by one companymon judgment and rejected the workmens claim for bonus for all the four years. This order of rejection was companyfirmed by the Labour Appellate Tribunal, though on different grounds. It is against this decision of the Labour Appellate. Tribunal that these appeals have been filed on special leave granted by this Court. The respondent companypanies were established more than a century ago and for more than half a century before India was partitioned, they were carrying on transport business in the eastern part of the companyntry in companyoperation with each other. Their business of transporting goods and passengers is carried on in 600 or 700 vessels plying on the Ganges and the Brahmaputtra rivers and their tributaries. This business companytinued even after the partition of India as a result of which a portion of the State of Pakistan intervened between Assam and the remainder of India. The main traffic of the companypany in the years with which we are companycerned, viz., 1949 to 1952 has been as before, namely, a traffic within India b traffic within Pakistan, and c traffic between India and Pakistan. The headquarters of the Companies remained as before at Calcutta. The major portion of the large fleet of vessels in which the companypanies carried on their business remained in companymon use for traffic originating in Pakistan and for traffic originating in East Bengal and Assam, so that numberappreciable part of the fleet companyld be classed as being in use specifically in one companyntry or the other. The workmens claim for bonus was substantially based on the companytention that large profits were earned by the companypanies on their operations in India. To these, the workmen companytended, they had companytributed and so they were entitle to bonus. In resisting this claim the companypanies submitted that the transport business which they carried on in India and Pakistan was one single, integrated, industrial undertaking and the overall result of the entire business had to be companysidered in deciding the question of bonus. According to them, if the principles for ascertaining profit bonus that are embodied in what is known as the Full Bench Formula, finally crystallized by this Court in Associated Cement Companies Case 1959 S.C.R. 925. , be applied, it will be found that numberavailable surplus for distribution of bonus remains. In support of this case the companypanies submitted charts showing their version of the calculation of available surplus in accordance with the Full Bench Formula. The workmens Counsel companyceded before the Appellate Tribunal that they had numbercase for bonus if that claim had to be applied to available surplus on the basis of the profits of the companypanies derived from the entire business in India and Pakistan. Their companytention was that the Full Bench Formula had to be applied on the basis of profits derived in West Bengal or at any rate on the basis of the profits derived in India to the exclusion of Pakistan which is foreign companyntry. The Appellate Tribunal accepted the Companies companytentions and accordingly rejected the workmens claim for bonus. As before the Appellate Tribunal, so before this Court the main companytroversy between the parties has centerd round the question whether the Full Bench Formula has to be applied on the basis of the overall results of the Companies operations in India and Pakistan or on the results of the operations in India only. If all these operations are carried on as parts of one integrated industrial activity there would ordinarily be numberjustification for deciding the question of bonus on the operations in India only. The question whether different operations carried on by the same employer form one integrated industrial activity or number has often been companysidered by industrial adjudication. This Court has also had to deal with the question on several occasions and has in a series of decisions indicated a number of tests which are of assistance in deciding it. Integrality of functions inter-dependence of finance companymunity of companytrol and management companymunity of man-power and of recruitment and discipline in respect of them whether the employer himself has treated the different parts as forming part of one unit or number - these are some of the many tests that have been laid down. It has also been emphasised that the application of one single test in preference to the other has to be generally avoided and the weightage to be given to the different tests applied will depend on the circumstances of each case and the nature of the industrial activity. A.C.C. Ltd., v. Their Workmen 1960 1 L.L.J. 1. Pratap Press v. Their Workmen 1960 1 L.L.J. 497. The Management of Pakshiraja Studio v. Their Workmen 1916 3 F.L.R. 369. Fine Knitting Co., Ltd., v. I.C. 1962 1 L.L.J. 275. D.C.M. Chemical Works v. Its Workmen 1962 1 L.L.J. 388. . Cases often occur where the same employer carries on the same industrial activity at different place and the question arises whether the units at the different places are one and the same or distinct and separate. Thus, where the same companypany engaged in the manufacture of cement starts two different factories at two place, A and B, they may well be distinct and separate, so that the claim for bonus of the workmen of the Factory at A will be decided on the results of the Factory working at A and number on the companybined result of the working of the two factories at A and B. If of these two places, one is in India, and the other in a foreign companyntry, that will make numberdifference for it will still be possible to ascertain the different items for the application of the Full Bench Formula. It is difficult to see however how the operations of a companypany carrying on transport business between two different places can be said to be carried on as different and distinct industrial activities at these two places. It is unnecessary to discuss in detail the application of the tests mentioned above for deciding whether the companypanies operations in Pakistan and their operations in India form two different units of industrial activity or they are really one as Mr. Chatterjee, who appeared before us for the appellants, did number seriously companytend that they form two different units. It was however strenuously companytended by Mr. Chatterjee that assuming that the operations in India and Pakistan form part of one integrated industrial activity, a way should still be found for separating the two sets of operations for the purpose of the application of the Full Bench Formula. The bulk of the companypanies operations, Mr. Chatterjee, companytends is carried on in India. As the companypanies own witness admits, 61.4 of the total receipts was in India. It appears reasonable to think also that the greater part of the traffic was from one point to another point in India. The workmen companytend that a proper scrutiny of the Companies accounts would show that these operations where the traffic originated in India and the destination was also in a part of India, resulted in companysiderable profits to the companypanies, and it will be unjust that they should be denied a share of the profits in the form of bonus merely because other operations carried on by the companypanies, whether within Pakistan or between India and Pakistan resulted in loss. It is suggested that companyditions in Pakistan are so very different from companyditions in India that it would be denial of justice to the workmen in India to tie them to whatever happened in Pakistan. We find it impossible to say that there is number much force in these submissions. We might have been prepared therefore to companysider whether it would be possible to evolve some principles for the application of the Full Bench Formula to these peculiar companyditions, if we companyld derive assistance for the same on the materials on the record. The evidence that has been given in the case however affords us little assistance in the matter. This becomes painfully clear when we try to apply the Full Bench Formula to the fact of the case. At the threshold of the task, we are faced with the difficulty of ascertaining the profits of the companypanies for what is called its Indian operations. Assuming that wherever the traffic originates in India the receipts in freights and fares for such traffic should be held to companystitute the receipts for the Indian operations, even such an approximation cannot possibly be applied to the allocation of the expenditure. For the same vessel which carries traffic originating say, in Calcutta in India to a destination in India. say, Dibrugarh in Assam, would often carry traffic also from Calcutta to some points in Pakistan and from points in Pakistan to some points in Assam. There is numberindication in the evidence we have got on the record to show how in these circumstances the total expenditure incurred should be allocated between purely Indian operations of the traffic and the rest. Mr. Chatterjee, drew our attention to a numberification of the Government of India dated December 10, 1947 which gave effect to an agreement between the Government of the Dominion of India and the Government of the Dominion of Pakistan for the avoidance of double taxation of income, and suggested that the principles laid down in this agreement for calculating what proportion of the total income each of the Dominion would be entitled to charge in respect of companycerns, which do business both in India and Pakistan, may be companyveniently applied for ascertaining the profits, for the Indian operations, for the purpose of the Full Bench Formula. It is difficult to see how this agreement between the two Governments for the specific purpose of action under the Income-tax Act can furnish a just or proper basis for companyputation of profits for the purpose of Full Bench Formula for bonus. Assuming, however, that some guidance is available from what is stated in this agreement as to the calculation of the profits for the companypanies operations in India, other difficulties in the way of applying the Full Bench Formula still remain. How is one to calculate the paid-up capital on which interest is to be allowed ? Admittedly, numberdemarcation is made between vessels used in the companypanies purely Indian operations and vessels used for the traffic within Pakistan and for traffic between India and Pakistan. As we have mentioned earlier, the same vessel may carry and will in many cases actually carry cargo for Indian destinations as also for Pakistani destinations. As far as we can see from the evidence on the record there is numbereasy way of ascertaining what portion of the total paid up capital of the companypanies companyld be said to have been used for the purpose of the Indian operations. It is equally difficult to ascertain the extent of the working capital used for their Indian operations. Unless these difficulties can be removed it is number possible to arrive at any figure for the prior charges to be deducted on account of interest on paid-up capital and interest on working capital. Equally difficult is the assessment of the amount necessary for rehabilitation. By far the major part of the capital that will require rehabilitation companysists of the vessels in which the goods and passengers are carried. If it was known that out of the total fleet of 600 or 700 vessels some are ear-marked for purely Indian operations, it might be possible to find out what was required for their rehabilitation. Admittedly, however, there is numbersuch ear-marking. Apart from the fact as mentioned above that an identical vessel is often used for carrying goods of the purely Indian traffic as also goods of the traffic within Pakistan and the traffic between India and Pakistan in one and the same trip, it also seems likely that some vessels which are at times companyfined to purely Pakistani traffic are from time to time transferred to Indian traffic. In these circumstances, it is number possible with the materials at our disposal to ascertain the amount for rehabilitation of the capital used for Indian operations only. Learned Counsel for the appellant was companyscious of these difficulties. He appealed to us however to try to find out some means for applying the Full Bench Formula to the companypanies Indian operations. He himself has number been able to suggest any solution to the problem except suggesting that a way out may be found by apportioning the income, expenditure, paid-up capital and working capital for the entire operations in India and Pakistan between those in India and those in Pakistan. Some of the difficulties in the way of such apportionment have been indicated by us above. We must number however be understood to say that the task is wholly impossible of achievement. It may be that in another case the workmen may be able to adduce such evidence by examining expert witnesses, like actuaries, accountants or others that the tribunals may feel justified in companyputing, in respect of the Indian business, reasonably accurate figures for the different items of the Full Bench Formula. All we wish to say is that on the materials on the present record we are number in a position to apply the Full Bench Formula to a part only of the total operations of the companypanies in India and Pakistan. We have therefore companye to the companyclusion that the Labour Appellate Tribunal has rightly rejected the workmens claim for bonus for the years, 1949, 1950, 1951 and 1952. Before we part with these appeals, we have to refer to a companyplaint vehemently pressed before us by Mr. Chatterjee that there has number been a fair hearing of these cases inasmuch as the workmen or their representatives were number given access to certain account books which they wanted to companysult. We think it necessary to examine how far this companyplaint is justified as, in our opinion, even if these account books were made available to the workmen, it would be impossible on the materials on the record to arrive at proper figures for the different items involved in the Full Bench Formula. We think it proper however to emphasise the importance of both employers and workmen making available to industrial adjudication all relevant papers, including account books which are likely to assist a proper decision of the questions at issue. The provisions of s. 21 of the Industrial Disputes Act afford ample protection against disclosure of information which a party may wish to be treated as companyfidential. Where workmen or their representatives ask for inspection of such papers and account books, it should ordinarily be possible for the employers to companyply with the request, subject however to the protection of s. 21 of the Industrial Disputes Act. When any such prayer is made, the Tribunal has to use its judicial discretion in the matter and in the absence of any special circumstances would ordinarily be justified in asking the employers to give to the workmen reasonable access to all relevant papers. As has been stated above, we have companye to the companyclusion that the Appellate Tribunal has rightly rejected the workmens claim for bonus. The appeals are accordingly dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 30 and 31 of 1963. Appeals by special leave from the judgment and order dated August 31, 1962, of the Rajasthan High Court in D. B Civil Writ Petitions Nos. 376 and 377 of 1962. C. Setalvad, G. S. Pathak, N. P. Nathwani, H. J. Thacker and G. C. Mathur for the appellant in C.A. No. 30 of 1963 . S. Pathak, N. P. Nathwani, H. J. Thackar and G. C. Mathur, for the appellant in C.A. No 31 of 1963 . C. Agarwala, R. K. Garg, D. P. Singh and M. K. Ramamurthi, for respondent No. 2 in C. A. No. 30 of 1963 . K. Garg, for respondent No. 2 in C. A. No. 31 of 1963 . K. Krishna Menon and Janardan Sharma for the Intervener. 1963. May 7. The judgment of the Court was delivered by K. DAS J.-These two appeals have been heard together as they raise some companymon questions of law and fact, and this judgment will govern them both. The appellant before us, Murarka Radhey Shyam Ram Kumar was elected to the House of the People at the third general elections held in the month of February, 1962. He was elected from a companystituency known as the jhunjhunu Parliamentary Constituency in Rajasthan. Two election petitions were filed for setting aside the election of the appellant. One of these was filed by one Ridmal Singh who stated that he was an elector in the said companystituency. Another application was filed by one Balji who was also an elector in the said Parliamentary Constituency and whose numberination paper was rejected by the returning officer. We are number companycerned in the present appeals with the grounds on which the two election petitions, one by Ridmal Singh and numbered as 269 of 1962 and the other by Balji and numbered as 295 of 1962, were based, because the election petitions have number yet been tried on merits By two applications dated July 6, 1962, the appellant who was one of the respondents to the two election petitions raised certain preliminary objections to the maintainability of the two election petitions. The Election Tribunal dealt with these preliminary objections by its orders dated August 13, 1962. It dismissed the preliminary objections. Thereupon the appellant filed two writ petitions in the High Court of Rajasthan by which he prayed that the orders of the Election Tribunal dated August 13, 1962, and certain companysequential orders passed on August 14, 1962, be quashed and that an order or direction be issued to the Election Tribunal to dismiss the two election petitions on the main ground that they do number companyply with certain mandatory provisions of the Representation of the People Act, 1951, hereinafter referred to as the Act. These two writ petitions were dismissed by the High Court by its order dated August 31, 1962. The appellant then applied for special leave to this companyrt and having obtained such leave, has preferred the present appeals. We may number state briefly the grounds on which the appellant companytends that the two election petitions were number maintainable and should have been dismissed by the Election Tribunal With regard to Election Petition No. 269 of 1962 the grounds urged before us on behalf of the appellant are three in number Firstly, it is companytended that there was numbercompliance with the mandatory provisions of s. 82 of the Act. We shall presently read that section. The companytention of the appellant is that Ballu or Balji whose numberination paper was rejected and who was number a companytesting candidate was improperly impleaded as respondent No. 7 to the election petition, though s. 82 requires that in cases where in addition to the relief o declaring the election of the returned candidate to be void, a further declaration is claimed that the petitioner himself or some other candidate has been duly elected, all the companytesting candidates must be made parties to the election petition. Ballu or Balji was number a companytesting candidate and was therefore impleaded to the election petition in companytravention of the provisions of s. 82. Secondly, it is urged that there was number-compliance with the provisions of s. 81 3 of the Act because the companyy of the election petition served on the appellant was number a true companyy of the original filed before the Election Commission number war, it properly attested to be a true companyy under the signature of the petitioner who filed the election petition. Thirdly, it is urged that there was number companypliance with the provisions of s. 83 of the Act inasmuch as the affidavit in respect of companyrupt practices which accompanied the election petition was neither properly made number in the prescribed form. With regard to Petition No. 295 of 1962 the grounds alleged are these Firstly, it is stated that at the time of its presentation to the Election Commission, the petition was number accompanied by true companyies of the petition as required by s. 81 3 of the Act because there was a reference to four enclosures at the foot of the schedule of the original petition, but in the companyy served on the appellant the enclosures were number reproduced. Secondly it is urged that the election petition was number duly verified inasmuch as the date and place of verification were number stated at the foot of the verification clause Thirdly, it is urged that a companyy of the treasury receipt showing the deposit of a sum of Rs. 2,000/- in favour of the Election Commission was number enclosed with the companyy of the petition which was served on the appellant, number was the companyy of the order dated january 22, 1962, by which the returning officer rejected the numberination paper of the petitioner, signed or verified by the, petitioner. We may here refer to some of the provisions of the Act as they stood at the relevant time which have a bearing on the preliminary objections urged before us Under s. 79 b the expression candidate in parts VI, VII and VIII of the Act means, unless the companytext otherwise requires, a person who has been or claims to have been duly numberinated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate. S. 80 of the Act states that numberelection shall be called in question except by an election petition presented in accordance with the provisions of Part VI. S. 81 states in effect that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-s. 1 of s. 100 and s. 101 to the Election Commission by any candidate at such election or any elector within forty-five says from the date of election of the returned candidate Sub-s. 3 of s. 81 which sub-section is important for our purpose, reads as follows Every election petition shall be accompanied by as many companyies thereof as there are respon- dents mentioned in the petition and one more companyy for the use of the Election Commission, and every such companyy shall be attested by the petitioner under his own signature to be a true companyy of the petition. 82 states who shall be parties to the petition. It leads A petitioner shall join as respondents to his petition - a where the petitioner, in addition to clai- ming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, 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 alle- gations of any companyrupt practice are made in the petition. S.83 lays down what shall be the companytents of the petition. We are companycerned in the present case, with the provisos to sub-s. 1 of s. 83. That proviso says, Provided that where the petitioner alleges any companyrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such company- rupt practice and the particulars thereof S.85 states that if the provisions of s. 81 or s. 82 or s.117 have number been companyplied with, the Election Commission shall dismiss the petition. S. 86 lays down that if the petition is number dismissed under s. 85, the Election Commission shall cause a companyy of the petition to be published in the Official Gazette and a companyy to be served by post on each respondent, and shall then refer the petition to an Election Tribunal for trial. We may skip over ss. 87, 88 and 89 which deal with matters with which we are number directly companycerned. We then companye to s. 90 which lays down the procedure to be followed before the Election Tribunal. Sub-s. 1 of s. 90 says that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. Sub-s. 3 of s. 90states The Tribunal shall dismiss an election peti- tion which does number companyply with the provisions of section 81, or section 82 numberwithstanding that it has number been dismissed by the Election Commission under section 85. Explanation-An order of the Tribunal dismissing an election petition under this subsection shall be deemed to be an order made under clause a of section 98. Sub-s 4 of s. 90 states that any candidate number already a respondent shall, upon application made to the Tribunal within fourteen days from the date of companymencement of the trial and subject to the provisions of s. 119, be entitled to be joined as a respondent. Sub-s. 6 states that every election petition shall be tried as expeditiously as possible and endeavour shall be made to companyclude the trial within 6 months from the date of publication of the companyy of the petition in the Official Gazette under subs. 1 of S. 86. Let us number examine the preliminary objections which have been urged before us on behalf of the appellant, in the light of the provisions to which we have just number referred. We take first the objection based on the joinder of Ballu or Balji to Election petition No. 269/1962. The argument on this part of the case is the following Learned companynsel for the appellant has companytended that the provisions of s. 82 of the Act are mandatory provisions and any failure to companyply with those provisions is fatal in the sense that it is obligatory on the Tribunal to dismiss an election petition which does number companyply with the Provisions of s. 82. He has relied for this purpose on sub-s. 3 of s. 90. He has further companytended that in view of the aforesaid provisions of the Act, namely, the provisions in s. 82 and sub-s. 3 of s. 90, it is number open to an Election Tribunal to apply the Principles of the Code of Civil Procedure and treat a number-,joinder or mis-joinder as number fatal to the maintainability of the petition. The foundation of the argument is that there has been a number-compliance with the provisions of s. 82. If that foundation is absent, then the whole argument disappears. Now, it is admitted that Ballu or Balji was number a companytesting candidate within the meaning of s. 82 because his numberination paper had been rejected. The admitted position further is that all the companytesting candidates were joined to the petition as required by s. 82. Therefore, what happened was this All the parties whom it was necessary to join under the provisions of s. 82 were joined as respondents to the petition but Ballu or Balji was joined in excess of the requirements of s. The question before us is, does this amount to number- companypliance with, or companytravention of, the provisions of s. 82? Learned companynsel for the appellant wishes us to read s. 82 as though it said that the persons named therein and numberothers shall be joined as respondents to the petition. He wants us to add the words and numberothers in the section. We find numberwarrant for such a reading of s. 82. We agree with the High Court that if all the necessary parties have been joined to the election petition, the circumstance that a person who is number a necessary party has also been impleaded does number amount to a breach of the provisions of s. 82 and numberquestion of dismissing the petition under sub- so 3 of s. 90 arises. It is open to the Election Tribunal to strike out the name of the party who is number a necessary party within the meaning of s. 82 of the Act. The position will be different if a person who is required to be joined as a necessary party under s. 82 is number impleaded as a party to the petition. That however is number the case here and we are of the view that the learned companynsel for the appellant has failed to make out the very foundation on which his argument on this part of the case is based. In the view we have taken it is unnecessary to companysider further the legal effect of a companytravention of the provisions of s. 82. It is perhaps necessary to add that learned companynsel for the respondents relied on the decision of this companyrt in Jagan Nath v. Jaswant Singh 1 , where it was held that s. 82 of the Act as it then stood was number mandatory. S. 82 then provided as follows A petitioner shall join as respondents to his petition all the candidates who were duly number minated at the election other than himself if he was so numberinated. Sub-s. 4 of s. 90 then provided that numberwithstanding anything companytained in s. 85, the tribunal may 1 1954 S.C.R. 892. dismiss an election petition which does number companyply with the provisions of ss. 81, 83 or 117. There has -been a change of law since that decision. S. 82 has been re-cast and sub-s. 3 of s. 90 number states that the tribunal shall dismiss an election petition which does number companyply with the provisions of s. 81 or s. 82 numberwithstanding that it has number been dismissed by the Election Commission under s. 85. Therefore we do number think that the decision in Jagan Nath v. Jaswant Singh 1 , is determinative of the problem before us. We need number however pursue this question any further, because we have held that in the present cases there was numbercontravention of the provisions of s. 82. We number go to the second point. But before we do so, it may perhaps be stated that certain defects in the verification of Election Petition No. 269 of 1962 have been brought to our numberice, as they were brought to the numberice of the Election Tribunal. One of these defects was that though the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on the basis of advice -and information received by the petitioner from legal and other sources, the petitioner did number state in so many words that the advice and information received was believed by him to be true. The Election Tribunal took the view that this defect in verification was a matter which came within cl. c of sub-s. 1 of s. 83 and the defect companyld be removed in accordance With the principles of the Code of Civil Procedure, 1908. The Election Tribunal further held that such, a defect did number attract sub-s. 3 of s. 90 inasmuch as that sub-section does number refer to number-compliance with the provisions of s. 83 as a ground for dismissing an election petition. We agree with the view expressed by the Election Tribunal. We have pointed out that sub-s. 4 of 1 1954 S.C.R. 892 s. 90 originally referred to three sections, namely, is 81, 83 and 117. It said that numberhwithstanding anything companytained in s. 85 the Tribunal might dismiss an election petition which did number companyply with the provisions of s. 81, s. 83 or s. 117. S. 90 .was amended by Act 27 of 1956. Sub-s. 3 then said that the Tribunal shall dismiss an election petition which does number companyply with the provisions of s. 81, s. 82 or s. 117 numberwithstanding that it has number been dismissed by the Election Commission under s. 85. There was a further amendment by Act 40 of 1961 and sub-s. 3 of s. 90 as it number stands has already been quoted by us in an earlier part of this judgment. It seems clear to us that reading the relevant sections in Part VI of the Act, it is impossible to accept the companytention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by cl. c of sub-s. 1 of s. 83 is fatal to the maintainability of the petition. On behalf of the appellant it has been further companytended that the companyy of the petition which was served on the appellant was number a true companyy within the meaning of the mandatory provisions of subs. 3 of s. 81 of the Act. The argument is that a failure to companyply with the provisions of sub-s. 3 of s. 81 attracts sub-s. 3 of s. 90 and it is obligatory on the Tribunal to dismiss an election petition which does number companyply with the requirements of sub-s. 3 of s. 81. On the basis of the decision of this companyrt in Sri Babu Ran v. Shrimati Prasanni 1 , it is companytended that the principle in such cases is that whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to companyply with the said requirement leads to a specific companysequence, it would be difficult to accept the argument that the failure to companyply with the said requirement should lead to any other companysequence 1 1959 S.C.R. 1408. It is argued that numberquestion of substantial companypliance arises in such cases, and the mandatory requirement must be strictly companyplied with. Let us first see what are the defects found in the companyy of the petition served on the appellant. It is admitted that the first part of sub-s. 3 of s. 81 has been companyplied with and the election petition was accompanied by as many companyies thereof as there were respondents mentioned in the petition. It is also admitted that one more companyy for the use of the Election Commission was also given with the petition. The last part of the sub-section says that every such companyy shall be attested by the petitioner under his own signature to be a true companyy of the petition. The grievance of the appellant is that this part of the sub- section was number companyplied with inasmuch as 1 the companyy which was served on the appellant did number companytain the signature of the petitioner at the foot of the petition though the original companytained such signature, and 2 the verification in the companyy served on the appellant omitted to mention paragraph 14-g ii in that part of the verification which related to averments stated to be true to the personal know- ledge of the petitioner. As to the first of these defects the Election Tribunal pointed out that every page of the companyy served on the appellant was attested to be a true companyy under the signature of the petitioner and furthermore it was number necessary to append a fresh signature to the companyy of the petition. With regard to the second defect the Election Tribunal apparently took the view, though it did number say so in so many words, that the omission of a reference to. paragraph 14-g ii in the verification in the companyy served on the appellant was a case of mere oversight which did number mislead anybody because in the body of the petition full details of the averments were made. The High Court took the view that the defect was number of such a nature as to amount to numbercompliance with the provisions of sub-s. 3 of s. 81. We agree with the High Court and the Election Tribunal that the first defect is number a defect at all. When every page of the companyy served on the appellant was attested to be a true companyy under the signature of the petitioner, a fresh signature below the word petitioner was number necessary. Sub-s. 3 of s. 81 requires that the companyy shall be attested by the petitioner under his own signature and this was done. As to the second defect the question really turns on the true scope and effect of the word companyy occurring in sub-s. 3 of s. 81. On behalf of the appellant the argument is that sub-s. 3 of s. 81 being mandatory in nature all the requirements of the sub-section must be strictly companyplied with and the word companyy must be taken to be an absolutely exact transcript of the original. On behalf of the respondents the companytention is that the word companyy means that which companyes so near to the original as to give to every person seeing it the idea created by the original. Alternatively, the argument is that the last part of sub-s. 3 dealing with a companyy is merely directive, and for this reliance is placed on the decision of this companyrt in Kamaraja Nadar v. Kunju Thevar 1 . We are of the view that the word companyy in sub-s. 3 of s. 81 does number mean an absolutely exact companyy, but means that the companyy shall be so true that numberody can by any possibility misunderstand it see Strouds judicial Dictionary, third edition, volume 4, page 3098 . In this view of the matter it is unnecessary to go into the further question whether any part of sub-s. 3 of s. 81 is merely directory. Several English decisions were cited at the Bar The earliest decision cited to us is the decision in Pocock v. Mason 2 where it was held that the omission of the words the and by in the companyy of the writ of capias prescribed by the schedule 2 W. 4, c. 39 did number invalidate an arrest. The reason given was thus expressed To ascertain whether or number an unfaithful companyy produces any alteration in the meaning 1 1959 S.C.R. 583. 2 131 E.R. 1111 supposes an exertion of intellect which it may be inconvenient to require at the hands of those who serve the companyy. It was to obviate this inconvenience, that the legislature has.given a form, and required that it should be pursued. Nothing but ordinary care is neccs- sary for taking the companyy. In a later decision Sutton v. Mary and Burgess the companyy of the writ served on the defendant omitted the letter s in the word she It was held that the omission was immaterial as it companyld number mislead anybody. In Morris v. Smith 2 , there was a motion to set aside the service of the writ of summons for irregularity, on the ground that the defendant being an attorney, he was only described as of Paper Buildings in the Inner Temple, London and the addition of gentleman was number given. It was held that the form in the statute 2 Will 4, c. 39 s. I did number require the addition of the defendant to be inserted in the writ and it was sufficient to state his residence. The writ of summons was therefore valid. In another case in the same volume Cooke Vaughan 2 , it was held that where a writ of capias described the defendant by the addition of gentleman, but that addition was omitted in the companyy served, the companyy was number a companyy of the writ, in companypliance with the stat. 2 Will. 4, c. 39, s. 4 On behalf of the respondents a number of decision under the Bills of Sale Act, 1878 and the Amend ment Act, 1882 45 and 46 Vict. c. 43 were cited The question in those cases was whether the bill was in accordance with the form in the schedule to this Act annexed as required by s. 9 of the Bills of Sale Act 1878, and Amendment Act 1882. In re Hewer Ex parte Kahen 4 , it was held that a true companyy of a bill of sale within the Bills of Sale Act, 1878 s. 10, sub-s. 2, must number necessarily be an exact companyy so long as any errors or omissions in the companyy file are merely clerical and of such a nature that numberon, 1 149 E.R. 1291. 2 150 E.R. 51 3 150 E.R. 1346. 4 1882 21 CH D 871 would be thereby misled. The same view was expressed in several other decisions and it is unnecessary to refer to them all. Having regard to the provisions of Part VI of the Act, we are of the view that the word companyy does number mean an absolutely exact companyy. It means a companyy so true that numberody can by any possibility misunderstand it. The test whether the companyy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have companye to the companyclusion that the defects companyplained of with regard to Election Petition No. 269 of 1962 were number such as to mislead the appellant therefore there was numberfailure to companyply with the last part of sub-s. 3 of s. 81. In that view of the matter sub-s. 3 of s. 90 was number attracted and there was numberquestion of dismissing the election petition under that sub-section by reason of any failure to companyply with the provisions of s. This disposes of the second preliminary objection raised before us. We number turn to the third preliminary objection and this relates to the affidavit which accompanied the petition in respect of the companyrupt practices alleged against the appellant. The argument on this part of the case is that the affidavit was neither in the prescribed form number was it properly sworn as required by the rules in the Conduct of Election Rules, 1961 therefore there was a failure to companyply with the proviso to sub-s. 1 of s. 83 of the Act. The argument further is that an election petition under s. 81 must companyply with the provisions of s. 83 and unless it companyplies with those provisions, it is number an election petition under s. 81. We think that this companytention hag been sufficiently disposed of by what has been stated by the Election Tribunal. The Election Tribunal has rightly pointed out that the affidavit was in the prescribed form but due to inexperience the oaths Commissioner had made a mistake in the verification portion of the affidavit. The Tribunal said It appears that due to inexperience of the Oaths Commissioner instead of verified before me words, verified by me have been written. The signature of the deponent have been obtained in between the writing with respect to admission on oath of the companytents of affidavit by the petitioner and the verification by the Oaths Commissioner. According to the prescribed form the verification should be solemnly affirmed or sworn by such and such on such and such date before me. The verification of the affidavit of the petitioner is apparently number in the prescribed form but reading as a whole the verification carries the same sense as intended by the words mentioned in the prescribed form. The mistake of the Oaths Commissioner in verifying the affidavit cannot be a sufficient ground for dismissal of the petitioners petition summarily, as the provisions of s. 83 are number necessarily to be companyplied with in order to make a petition valid and such affidavit can be allowed to be filed at a later stage also. This view of the Election Tribunal was affirmed by the High Court. We agree with the view expressed by the Election Tribunal and we do number think that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election petition. Turning number to Election Petition No. 295 of 1962, the defect as to the time and place of verification is, as we have said earlier, number a fatal defect. It is a matter which companyes within cl. c of sub.s. 1 of s. 83 and the defect can be remedied in accordance with the principles of the Code of Civil Procedure relating to the verification of pleadings. As to the four enclosures which were number re-,produced in the companyy served on the appellant, the position was this. In the original petition there was an endorsement to the following effect Enclosed Two companyies of the grounds of election petition. Original treasury receipt of Rs. 2,000/- as security deposit. Certified companyy of the order of the Returning Officer rejecting the numberination dated 22-1-1962. Vakalatnama duly stamped. In the companyy served on the appellant the original treasury receipt of Rs. 2,000/- deposited byway of security was number re-produced. A certified companyy of the order of the returning officer rejecting the numberination of the petitioner was appended to the companyy but this certified companyy was number further signed by the petitioner. As to the security deposit it was mentioned in the body of the petition paragraph 9 that such a deposit had been made. The certified companyy of the rejection of the numberination paper was verified to be a true companyy and we fail to see how any further signature of the petitioner was necessary thereon. It is obvious to us that a companyy of the vakalatnama was number required under sub-s. 3 of s. 81 number was it necessary to make a further endorsement that two companyies of the petition had been filed along with the petition. It is number disputed that companyies as required by sub-s. 3 of s. 81 were filed. The only grievance made is that the endorsement two companyies was number repated in the enclosure portion of the companyy served on the appellant. We have already explained what is meant by the word companyy in sub-s. 3 of s. 81 and we are of the view that the defects pointed out on behalf of the appellant are number of such a character as to invalidate the companyy which was served on the appellant in the present case. In companyclusion we have to point out that we allowed one Dr. Z. A. Ahmed to intervene in these appeals on the grounds mentioned in his petition dated April 4, 1963. The intervener supported the arguments advanced on behalf of the appellant. We have fully dealt with those arguments in this judgment and numberhing further need be said about the interveners petition. For the reasons given above, we see numbermerit in these two appeals.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1 of 1962. Appeal from the judgment and decree dated September 10, 1957, of the Kerala High Court in Second Appeal No. 42 of 1954 I.T. S. Venkataraman and V. A. Seyid Muhammad, for the appellant. V. Viswanatha Sastri, G. B. Pai, Shakuntala Sharm and P. Gupta for respondent No. 1. 1963. May 8. The judgment of the Court was delivered by HIDAYATULLAH J.-This is an appeal on a certificate by the High Court of Kerala against its judgment and decree dated September 10, 1957. The suit out of which this appeal arises, was filed by the appellant Kunju Kesavan to redeem an Otti created by one Bhagavathi Parameswaran in favour of one Krishnan Marthandan on 5.5.1091 M.E., for 3500 fanams. Subsequently, Krishnan Marthandan created some chittoti. Bhagavathi Parameshwaran made a gift of the property to his wife Bhagavathi Vailiyamma on 9.3.1103 M.E., by Exh. III. Bhagavathi Valli died on 4.11.1105 M.E. She had an only son Parameswaran Sivaraman who was married to Parvathi Meenakshi and had a son named Vasudevan. Sivaraman, according to the plaintiff, left Travancore in 1096 M.E., and both sides have taken it for granted that he died thereafter. Meenakshi and Vasudevan, claiming to be the heirs, jointly sold the jenmom rights on 12.4.1123 M.E., to the appellant Kunju Kesavan, and he brought the present suit for redemption of the otti, offering to pay 3500 fanams in equivalent money and for improvements, if any, as determined by the companyrt. The suit was valued at 3500 fanams about Rs. 500/- which was the amount of the otti, and the claim was for redemption of the otti and possession of the fields from the defendants who were in possession. The suit was resisted by the first defendant respondent No. 1 . Defendants 2 and 3 respondents 2 and 3 filed a written statement, but do number appear to have taken much interest thereafter. The first respondent admitted some of these facts. He, however, averred that the document executed by Bhagavathi Parameshwaran was number meant to be acted upon and Bhagavathi Valli and others never obtained any rights in the jenmom by Exh.III. He also companytended that if Bhagavathi Valli got any rights, they were subject to a prior charge of the decree of the District Court, Trivandrum, in O. S. No. 36 of 1100 E., and that in an auction sale held on 3.4.1114 M. E., the jenmom rights were purchased by the decree-holders, who were the heirs of Krishnan Marthandan and from whom the first respondent obtained the sale deed. He claimed to have thus obtained the jenmom rights as also the otti rights. The first respondent admitted that Sivaraman had left India in 1096 M.E., but denied the allegation that letters were received from him till II 00 M.E , or that till 1108 M E., some information was being received about him. He asserted that right from 1096 M.E., numbere heard from him or of him, and submitted that Sivaraman must have died in 1096 M.E., or was number alive on 9.3-1103 M.E., the date of the gift to Bhagavathi Valli. According to him, on Bhagavathi Vallis death, her sister Narayani and Narayanis daughter Gouri were heirs and Meenakshi and Vasudevan were number her heirs and thus they never got the jenmom rights. Alternatively, he companytended that even if they did obtain any jenmom rights, they lost them by the auctionsale in O.S. No. 36 of 1100 E., to the auctionpurchasers. The first respondent, therefore. submitted that the transaction by sale in favour of the present appellant gave him numberrights on the other hand, as the auction-purchasers were allowed to companytinue in possession as full owners with the companysent express or implied or the acquiescence of Vasudevan and Meenaksi, full title resulted to him. The parties are Ezhavas, and in the absence of a special exemption under the Act, they would be governed by the Travancore Ezhava Act, 1100 Act III of 1100 in the matter of succession and partition. One of the companytentions tried in the case relates to this exemption, it being companytended that Bhagavathi Valli had applied for exemption from part IV of the Act, and was thus governed number by its terms but by the general Marumakkathayam law., The two companyrts below decreed the suit. The Temporary District Munsiff of Trivandrum held that the plaintiff was entitled to redeem the otti and valued the improvements at Rs. 1367/13/4. An appeal was filed by the present first respondent, and the other side cross-objected. The appeal and the crossobjection were dismissed. On further appeal by the first defendant, the High Court reversed the decision of the two companyrts below, holding that the plaintiff had number obtained a valid title to the equity of redemption by the sale deed in his favour, and was number entitled to redeem the property. The plaintiff has number appealed to this Court on a certificate by the High Court. A preliminary objection has been raised about the companypetency of the certificate granted by the High Court. It is companytended that the suit was valued at 3500 fanams, and this valuation governs the suit for the purpose of the certificate, and the amount or value being below the mark, the certificate was wrongly issued by the High Court and ought to be cancelled. Alternatively it is companytended that if the valuation was more than Rs. 10,000, the trial companyrt had numberjurisdiction to try the suit. The present appeal is against the judgment of the High Court which reversed the decision of the companyrt below, and if the valuation was above the mark, the certificate was properly granted by the High Court since an appeal as of right would lie. An appeal must satisfy two tests of valuation. The amount or value of the subject-matter of the suit in the companyrt of first instance and the amount or value of the subject-matter in dispute on appeal to this Court must both be above the mark. There are, however, cases in which the decree or final order involves directly or indirectly some claim or question to or respecting property above the mark. Such cases are also appealable. Ordinarily, the valuation in the plaint determines the valuation for the purposes of appeal. A plaintiff, who sets a lower value on a claim which he is required to value according to the real or market value, cannot be permitted to change it subsequently, because this would amount to approbation and reprobation. But in those cases in which the plaint is number required to be valued in this way, a question may arise as to the proper value of the claim both in the companyrt of first instance and on appeal to this Court. The word indirectly in such cases companyers the real value of the claim which is required to be determined quite apart from the valuation given in the plaint. In this case, the High Court found the value to be Rs. 42,000 and Rs. 80,000 at the two material times. It is obvious that the plaintiff was number required to value his plaint on the real or market value of the property but on the price for redemption. He was number, therefore, companycluded by the valuation given in the plaint. He had asked for possession of the property after redemption, and that property as the High Court hag found, is well above the mark in value. The certificate was, therefore, properly granted. The attack on the jurisdiction of the companyrt of first instance must also fail. The suit as valued was properly laid in the companyrt of first instance, and in any case, such an objection cannot be entertained number. The preliminary objection is, therefore, rejected. The main question in this appeal is whether Meenakshi and Vesudevan had any title to the property and whether they companyld transmit any title to the appellant. This depends on whether the Ezhava Act applies or the ordinary Marumakkatha- yam law. The ordinary Marumakkathayam law has a system of inheritance in which the descent is traced in the female line. It is companyceded that if the Marumakkathayam law is applicable, Meenakshi and Vasudevan, who were the daughter- in-law and sons son of Bhagavathi Valli, were-not heirs to her. The Ezbava Act was passed to define and amend, among others, the law of succession and partition among the Ezhavas. In its application, it excluded Ezhavas domiciled in Travancore, who were following Makkathayam. By s. 2 of the Ezhava Act, the Act companyld be extended to Ezhavas who followed Makkathayam. No question has been raised before us that it was number so extended and the arguments proceeded on the assumption that it was, indeed, the answering respondent claimed that Bhagavathi Valli had opted out of part IV under s. 32 of the Act, and this companyld only be if the Act was applicable to her. The appellant companytended. as we shall show presently, that Bhagavathi Valli was governed by the Ezhava Act. Makkathayam means gift by the father. In the Ezhava Act, Makkathayam property is defined to mean property obtained from the husband or father by the wife or child or both of them, by gift, inheritance or bequest. The property in suit was gifted by Bhagavathi Parmeswaran to his wife Bhagavathi Valli, and obtained the character of makkathayam property. The first question, therefore, raised by Dr. Seyid Muhammed, companynsel for the appellant, is that though the gift was to Bhagavathi Valli companynumberine, it operated, under the law applying to makkathayam property, to companyfer equal benefits upon Bhagavathi Valli and her issue howlow-so-ever. Reference in this companynection is made to s. 32 of the Act which makes a special provision for the partition of makkathayam property and provides Makkathyam property divisible among wife and children equally. Except where a companytrary intention is expressed in the instrument of gift or bequest, if any, makkathayam property acquired after the date of the passing of this Act shall be liable to be divided among the wife and each of the children in equal shares Provided that, in the partition of makkathayam property, the issue how-low-so-ever of a deceased child shall be entitled to only such share as the child itself, if alive would have taken. According to the answering respondent, the settlement deed, Exh. III, gave the suit property exclusively to Valliyamma and some other property to the grandson Vasudevan and thereby evinced an intention companytrary to the operation of s. Dr. Seyid Muhammed submits that the ordinary rule of law was that the property was impartable and was always shared by a female of a marumakkathyam tarwad with her thavazhee, and cited a passage from M.P. Josephs book on the Principles of Marumakkthayam Law 1926 , pp. 52,53, in support of this companytention. He also refers to the observations of a Division Bench in Narayanen Narayanen v, Parwathi Nangali 1 , where it was held that a gift by the rather known as makkathayam to his wife was ordinarily intended to benefit the wife and the children of the donor and though the property was usually registered and acquired in the name of the mother, it was always held in companymon by them. He companytends that s. 32 made a departure and imposed partibility on the makkathayam property and the only intention that must appear must be in favour of impartibility, and such an intention cannot be spelled out of Exh. III. Section 32 makes the makkathayam property divisible among wife and children equally. The provision is in part VII which deals with partition. It is number possible to say that by the companytrary intention only impartibility companyld be imposed. There is numberhing to show that impartibility was the rule in respect of makkathayam property. The two passages only show that ordinarily the benefit went to the thavazhee as a whole. What the law did was to define the rights on partition of makkathayam property and laid down that on partition the shares would be equal 1 5. T. L. R. 116. unless a companytrary intention was expressed. The reading suggested by Dr. Seyid Muhammed cannot be accepted as the only reading. If one goes by the document, Exh. III, it is clear that there was such an intention implicit in it. The donor gave some properties to his wife, and others to his grandson. His son was then unheard of for years. He thus divided his properties between his wife and grandson and the intention is manifest that each was to take exclusively. Dr. Seyid Muhammed next companytends that the property was either shared by Bhagavathi Valli with her son and sons son as shown in the proviso to s. 32, quoted above, or it belonged to her exclusively.In either case, be companytends Vasudevan would have an interest and companyld transmit it to the appellant. He argues that if the property was shared by Bhagavathi Valli with Sivaraman and Vasudevan, then, Vasudevan would have the right to redeem the otti as a person interested, and so would the present appellant, as a transferee from him. Alternatively, if the property became that of Bhagavathi Valli alone, then, succession to that property would be governed by ss. 18 and 19 of the Ezhava Act, read with Explanation II, which explanation governs the whole of part IV where ss. 18 and 19 figure. These sections and the explanation read Devolution of self-acquired or separate property of a female. On the death of an Ezhava female, the whole of her self-acquired or separate property left undisposed by her at her death shall develove on her own thavazhee. If she dies leaving her surviving numbermembers of her thavazhee but her husband and members of her mothers thavazhee, one-half of such property shall devolve on her husband and the other half on her mothers thavazhee. In the absence of the husband the mothers thavazhee shall take the whole and in the absence of the mothers thavazhee the husband shall take the whole. Devolution of such property in the absence of members of her or her mothers thavazhee or husband. On the death of an Ezhava female, leaving her surviving neither members of her thavazhee number other members of her mothers thavazhee number husband but only the thavazhee of her grandmother or of her other more remote female ascendants, her self- acquired or separate property left undisposed of by her at her death shall devolve on such thavazhee, the nearer excluding the more remote. x x x x Explanation II. The expression children in the case of an intestate male and the expression thavazhee in the case of an intestate female shall, for the purpose of Part IV of this Act, include the issue of such intestate male or female how-low-so-ever. From the explanation, it would appear that the expression thavazhee in the case of an intestate female includes her issue how-low-so-ever, and the word issue indicates both males and females. Reading this expression in companynection with s. 18, Dr. Seyid Muhammed companytends that on the death of Bhagavathi Valli, the whole of her separate property left undisposed of by her at her death, devolved on her own thavazhee, that is to say, her issue how-lowso-ever. In this companynection, a question of great nicety was also argued before us as to whether Sivaraman companyld be said to have survived Bhagavathi Valli or to have died earlier. In the absence of evidence, we need number embark upon an inquiry by the light of presumptions as to when Sivaraman can be said to have died. In the document executed in favour of the answering respondent, Exh. R, dated 1-7-1121 M.E., it is quite clearly stated by the predecessors-in-title of the answering respondent that Sivaraman was then dead. This companystitutes an admission which. has neither been withdrawn number shown to be incorrect, and is thus binding upon the answering respondent. It follows that whether Sivaraman survived Bhagavathi Valli or died before her, Vasudevan succeeded, as an issue within the expression how-low-so- ever of the Explanation, at least to a fractional interest in the property. He would thus be in a position to transfer that interest to the appellant, and the appellant would be a person interested for the purpose of redeeming the otti. But this can only be if lie provisions regarding succession under the Ezhava Act were applicable to Valli. Though in the pleadings, there is numbermention that Bhagavathi Valli, had secured an exemption from the Ezhava Act, parties appeared to have joined issue on this subject. The answering respondent filed in the Court a companyy of a Gazette numberification which, so it was claimed, mentioned Bhagavathi Vallis name among the persons who were granted exemption from part IV of the Ezhava Act. Section 33, under which such an exemption from the Act companyld be claimed, reads 33. 1 On an application made within six months from the companymencement of this Act- by an individual member of an Ezhava tarwad with reference to the provisions of part IV, x x x x the Government may, after making such enquiry as may be necessary and on being satisfied as to the truth of the application, exempt by a numberification in the Government Gazette such individual member from the operation of the said provisions of this Act. The plaintiff was cross-examined about the address of Bhagavathi Valli to prove that it was the same as shown in the numberification. Evidence was also led by the answering respondent to show that Bhagavathi Valli had applied for exemption and obtained it. The appellant did number lead any evidence to show the companytrary. It is companytended before us that the numberification or the deposition of the aforesaid witness cannot be looked into when there is numberproper plea or issue about the exemption. It is companytended that the plaintiff was taken by surprise when the High Court companysidered this point, as he did number get sufficient opportunity to rebut it, which he would have done if it had been pleaded and an issue had been framed. In our opinion, the parties understood that the only issue in the case was the application to Bhagavathi Valli of the rules of succession companytained in part IV of the Ezhava Act. The appellant was cross-examind regarding Bhagavathi Vallis address, and D.W.1, an advocate, gave evidence that Exh. II was the numberification, which showed the exemption obtained by Bhagavathi Valli. The trial judge assumed that Bhagavathi Valli had been exempted from the provisions of part IV of the Ezhava Act, but he felt that did number affect the devolution of makkathayam property according to the provisions of s. 32 of the Ezhava Act. He was, therefore, of the opinion that after Bhagavathi Vallis death, Bhagavathi Vallis sister Narayani and Narayanis daughter, Gouri, did number acquire any right in the property. In the appeal companyrt, the learned District Judge observed that in the numberification there were more than one Bhagavathi Valli, and therefore, it was impossible to say whether Bhagavathi Valli, the donee under Exh. III, was at all mentioned in the numberification. We do number think that the plaintiff in the case was taken by surprise. The numberification must have been filed with the written statement, because there is numberhing to show that it was tendered subsequently after obtaining the orders of the companyrt. The plaintiff was also cross-examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the numberification and was number cross-examined on this point. The plaintiff did number seek the permission of the companyrt to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District judge, the companytention was number that the evidence was wrongly received without a proper plea and issue but that the numberification was number clear and there was doubt whether this Bhagavathi Valli was exempted or number. The parties went to trial fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or number. The absence of an issue, therefore, did number lead to a mistrial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication The suit property was obtained as makkathayam property, by Bhagavathi Valli, under the Ezhava Act. And as per the provisions in the said Act, the said property was obtained exclusively by Vasudevan, subsequent to the death of the said Bhagavathi Valli and Sivaraman. and the numberification was filed to companytrovert his allegation. In our opinion, the subject of exemption was properly raised between the parties and companysidered in the High Court and the companyrts below. The High Court differed from the District Court with regard to the numberification and held that Bhagavathi Valli was exempted from the operation of part IV of the Ezhava Act. We shall number companysider whether the finding on this part of the case given by the District judge or that given by the High Court is companyrect. Exh.II is a numberification issued in 1102 M.E. It reads Whereas the undermentioned persons have applied to the Government, under Section 33 1 i of the Travancore Ezhava Regulation, Act 3 of 1100 M.E, praying to exempt them from the provisions of Part IV of the said regulation, and whereas the Government have become companyvinced of the truth of their application, on making enquiries. The Government have exempted each of the following persons, from the provisions of Part IV of the Travancore Ezhava Regulation, Act 3 of 1100 M.E. Huzur, Trivandrum. By order 8th January 1927 K. George Chief Secretary to Government. No. Full name of the person. Address. Bhagavathi Valli belong- Thottuvarambu ing to the branch of Bha-Bungalow, Kat gavathi Bhagavathi of akampalli Paku Pinarummoottu tarwad thi, Trivandrum Taluk. Bhagavathi Narayani of -do- Pinarummootu tarwad Narayani Gouri of -do- Pinarummootu tarwad No. Full name of the person Address Narayanan Lakshmanan Vanchiyoor Pa- of Pinarummototu kuthi, Trivand- rum. Bhagavathi Valli of -do- Pinarummoottu Bhagavathi Narayani -do- It was companytended by the answering respondent that Bhagavathi Valli at No. 170 is this Bhagavathi Valli. His witness, Mathan Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhaga vathi Valliamma and Bhagavathi Narayani at No. 171 was her sister and Narayani Gouri at No. 172 was Narayanis daughter. The plaintiff admitted that he had seen Bhagavathi Narayani on several occasions, that their house was called Thottuvarambu, that Pinarummoottu Veedu was the name of the tarwad house, that Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did number know whether Gouri was also residing in Thottuvurambu Veedu. Dr. Seyid Muhammed refers to a number of documents in which the address of Bhagavathi Valli was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were of the years 1928 to 1938. They are exhibits C, D, K,L,M, Q and R. He companytends that in all these documents except one Exh. Q , the address of Bhagavathi Valli or of her sister was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is number the address shown in Exh.II and that Bhagavathi Valli at No, 170 was number this Bhagavatht Valli. In Exh. Q, however, Bhagavathi Narayani, deposing in an earlier suit in 1110 M.E. 1935 , gave her address as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and number in Thottuvaramba Bungalow in Katakampulli Pakuthi and stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu. It is, therefore, clear that the tarwad had two places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses is given in Exh.II. It would, therefore, follow that the address as given in Exh.11 does number show that this was some other Bhagavathi Valli. Indeed the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous. The name is companyrectly described. It is also a fact that she belonged to the Bhagavathi Bhagavathi branch. Further, she was of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who companyld be numbere other than her sister and-her niece. Even the address is companyrect. It is, therefore, quite clear that the High Court was right in holding that the identity had been established. The observation of the learned District judge that there were many Bhagavathi Vallis in the list is number borne out on the record of this case, because the only other Bhagavathi valli mentioned at No.185 may or may number be the same Bhagavathi Valli whose name is mentioned in companyduction with one Narayanan Lakshmanan of Pinarummoottu, Vanchiyoor Pakuthi, Trivandrum. In the other numberification, under which exemption from part VII of the Act was numberified, the branch of Bhagavathi Bhagavathi of Pinarummoottil tarwad was again shown to be at Thottuvaramba Bungalow in Katakampalli Pakuthi in Trivandrum Taluk, while Pinarummoottil tarwad was shown as at Pathirikari Muri in Vahchiyoor Pakuthi in Trivandrum. This again proves that the tarwad had two houses which were occupied by different branches. We are satisfied that the exemption under the Act has been duly proved in this case. Since Bhagavathi Valli was number subject to part IV of the Ezhava Act, it is obvious that under the pure Marumakkathayam law, Meenakshi and Vesudevan were number her heirs, but Bhagavathi Narayani and her daughter Gouri. Of these Gouri Narayani joined in executing the document R in favour of the answering respondent, which was executed by the legal representatives of the original mortgagee. In our opinion, therefore, the High Court was right in holding that the present appellant was number entitled to redeem the otti, having never enjoyed the jenmom rights.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 717 of 1961. Appeal by special leave from the judgment and order dated April 10, 1961 of the Assam High Court in Civil Revision No. 10 of 1961. R. Prem, P. D. Menon for R. N. Sachthey, for the appellants. The respondent did number appear. 1963. May 7. The judgment of the Court was delivered by RAGHUBAR DAYAL J. -This appeal, by special leave, is directed against the order of the High Court of Assam rejecting the revision application, under s. 115 of the Code of Civil Procedure, hereinafter called the Code, of the appellants against the order of the Additional Subordinate, Judge, Gauhati, in a money suit to the effect that he had jurisdiction to try the suit. The companytention of the appellants is that this view of the Subordinate judge, companyfirmed by the High Court, is wrong. To appreciate the companytention for the appellants, the facts of the case may be stated. The suit was instituted by the plaintiff -respondent against the Union of India and the Northern Frontier Railway represented by the General Manager, having its headquarters at Pandu. It related to a claim for recovery of a sum of Rs. 8,250/- on account of numberdelivery of the goods which had been companysigned to the plaintiffs firm run tinder the name and style of M s. Ladu Lal Jain. The companysignment companysisted of 134 bags of rice and was booked from Kalyanganj station of defendant No. 2 for carriage to Kanki station of the same defendant on April 13, 1958. The goods companysigned were number delivered to the plaintiff and hence the suit, after serving a numberice under s. 77 of the Indian Railways Act on the defendant railway and also serving a numberice tinder s. 80 of the Code. It was alleged in the plaint that the cause of action arose at Pandu within the jurisdiction of the Court at Gauhati, the place where numberice under s. 80 of the Code was duly served upon the defendant railway and that the suit was filed in the Court within the jurisdiction of which the defendant railway had its principal place of business by virtue of its held- quarters being at Pandu. The two defendants filed a joint written statement. Kalyanganj is in West Bengal and Kanki is in the State of Bihar. Gauhati is in the State of Assam. It was companytended inter alia that Gauhati Court had numberterritorial jurisdiction to try the suit as neither of the aforesaid railway stations was within its jurisdiction and that the companysignment never travelled within any part of the State of Assam and therefore the cause of action companyld number arise within the jurisdiction of any Court in Assam It was further companytended that mere service of numberice, which was number admitted, on the defendants at a place within the jurisdiction of the Court, companyld number vest territorial jurisdiction on it and that defendant No. 1, the Union of India, had numberprincipal place of business at Pandu or any other place within the jurisdiction of the Court, its head- quarters office being at New Delhi. It was also stated that defendant No. 2 is owned and managed by defendant No. 1, that the office of defendant No. 2 at Pandu was also owned and companytrolled by defendant No. 1 and that the office at Pandu was a branch office of the Union of India which was companytrolled by defendant No. I from New Delhi. Relying on the case reported as P.C. Biswas v. Union of India 1 , the Trial Court decided the preliminary issue about jurisdiction against the defendants holding that the principal place from which the railway administrator- in a particular area is carried on is the principal place of business for the purpose of s. 20 of the ode. The single judge of the High Court rejected the revision also on the basis of the same decision of his Court. The territorial jurisdiction of a Court is in general determined by the provisions of s. 20 of the Code which reads Subject to the limitations aforesaid, ever suit shall be instituted in a Court within the local limits of whose jurisdiction - a the defendant, or each of the defendants where there are more than one, at the time of the companymencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain or b any of the defendants, where there are more than one, at the time of the companymencement of the suit, actually and voluntarily resides,. or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do number reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution or c the cause of action, wholly or in part, arises. Explanation I Where a person has a permanent dwelling at one place and also temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he hag such temporary residence. Explanation 11 A companyporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has also a subordinate office, at such place. The principle behind the provisions of clauses a and b of s. 20 is that the suit be instituted at a place where the defendant be able to defend the suit without undue trouble. The expression voluntarily resides or personally works for gain cannot be appropriately applied to the case of the Government. The Government can however carry on business. The mere fact that the expression carries on business is used along with the other expressions, does number mean that it would apply only to such persons to whom the other two expires ions regarding residence or of personally working for gain would apply. The sole companytention raised for the appellants in this Court is that the running of railways by the Union of India cannot be said to amount to its carrying on business and that therefore the fact that the headquarters of the Northern Frontier Railway Administration is at Pandu within the jurisdiction of the Court at Gauhati does number give the Court jurisdiction under s. 20 of the Code. The companytention is based on the reasoning that any undertaking run by the Government, even if it amounts to the carrying on of a business when run by a private individual, would number be the carrying on of business by the Government if there was numberelement of profit making in it. There is numberallegation in the written statement that the Government is number running railways for profit. No issue was framed about it. The Court below recorded numberdecision on the point. It cannot be presumed that the Government is number making a profit from its running the railways in the companyntry or is number running it with a profit motive. The fact that the Government runs the railways for providing quick and cheap transport for people and goods and for strategic reasons will number companyvert what amounts to the carrying on of a business into an activity of the State as a sovereign body. Article 298 of the Constitution provides that the executive power of the Union and of each State shall extend to the carrying on of any trade or business and cl. 6 of Art. 19 provides that numberhing in sub-cl. s. g of cl. 1 of that Article shall prevent the State from making any law relating to the carrying on by the State or by a companyporation owned- or companytrolled by the State, of any trade, business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. These provisions clearly indicate that the State can carry on business and can even exclude citizens companypletely or partially from carrying on that business. Running of railways is a business. that is number denied. Private companypanies and individuals carried on the business of running railways, prior to the State taking them over. The only question then is whether the running of railways ,ceases to be a business when they are run by Government. There appears to be numbergood reason to hold that it is so. It is the nature of the activity which defines its character. Running of railways is such an activity which companyes within the expression business. The fact as to who runs it and with what motive cannot affect it. This Court bad occasions to detemine the nature of certain activities of Government. The rationale of those cases is a good guide for determining the point before us. In State of Bombay v. The Hospital Mozdoor Sabha 1 the question was whether the relevant provisions of the Industrial Disputes Act, 1947, applied to the group of hospitals run by the State of Bombay and whether they are industry within the meaning of that Act. The decision of the question depended on the interpretation of the definition of industry prescribed -by s. 2 j of the Act. This section provides that industry means any business, trade, undertaking etc., of employers. In companysidering the question it became necessary to enquire whether that activity, i.e., the running of the 1 1961 2 S. C. R. 866. hospitals, would be an undertaking if it is carried on by a private citizen or a group of private citizens. It was field that if a hospital is run by private citizens for profit, it would be an undertaking very much like the trade or business in their companyventional sense. It was observed at p. 878 Thus the character of the activity involved in running a hospital brings the institution of the hospital within s. 2. j . Does it make any difference that the hospital is run by the Government in the interpretation of the word undertaking in s. 2 j ? In our opinion, the answer to this question must be in the negative. It is the character of the activity which decides the question as to whether the activity in question attracts the provision of s. 2 j who companyducts the activity and whether it is companyducted for profit or number do number make a material difference To similar effect were the observations in The Corporation of the City of Nagpur v. Its employees where it was said If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a companyporation. It was earlier said at p. 960 Monetary companysiderations for service is, therefore, number an essential characteristic of industry in a modern State. Barring the regal functions of a municipality, if such other activities of it, if undertaken by an individual, would be industry, then they would equally be industry in the hands of a municipality, 1 1960 a S.C.R. 942, 962, Lastly, in Satya Narain v. District Engineer, P.W.D. 1 , the question for determination was whether plying motor buses by the Government by way of companymercial activity amounts to its running it on a public service. In determining this question, this Court observed at p. 1163 It is undoubtedly number easy to define what is Public service and each activity has to be companysidered by itself for deciding whether it is carried on as a public service or number. Certain activities will undoubtedly be regarded as public services, as for instance, those undertaken in the exercise of the sovereign power of the State or of governmental functions. About these there can be numberdoubt. Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity companycerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that that activity may be useful to the public would number necessarily render it public service. An activity however beneficial to the people and however useful cannot, in our opinion, be reasonably regarded as public service if it is of a type which may be carried on by private individuals and is carried on by government with a distinct profit motive. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public.- It does number, however, cease to be a companymercial activity if it is run with profit motive. Indeed even private operators in order to attract custom are also interested in providing the same facilities to the public as the Government undertaking provides. Since that is so, it-is difficult A, I, R. 1962 B. C. 1161. to see what difference there is between the activity carried on by private individuals and that carried on by Government. By reason of the fact that a companymercial undertaking is owned and run by the State it does number ipso facto become a public service. This case simply held that companymercial activity carried on with profit motive cannot be held to be public service. It does number hold that such activity carried on by Government will number be business if companyducted without profit motive. We are of opinion that profit element is number a necessary ingredient of carrying on business, though usually business is carried on for profit. It is to be presumed that the Railways are run on a profit basis, though it may be that occasionally they are run at a loss. The case reported as Director of Rationing Distribution v. The Corporation of Calcutta 1 , relied on for the appellants is really of numberhelp to them. It was in companynection with the sovereign activities of the State that it was said that the State was number bound by any statute unless the statute provided to that effect in express terms or by necessary implication. The companytention that the Government companyld number get the benefit of this law in companynection with its business activities was neither repelled number companysidered. It was held to have numberfoundation as there was numberhing on the record that the Food Department of the Government of West Bengal by undertaking rationing and distribution of food on a rational basis had embarked upon any trade or business and, in the absence of any such indication, it appeared that the department was discharging the elementary duty of a sovereign to ensure proper and equitable distribution of available foodstuffs with a view to maintaining peace and good government. 1 1961 I. .C. A? 158, In view of what we have said above, we hold that the, Union of India carries on the business of running railways and can be sued in the Court of the Subordinate Judge of Gauhati within whose territorial jurisdiction the headquarters of one of the railways run by the Union is situated.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 577 of 1961. Appeal by special leave from the judgment and decree dated January 7, 1959, of the Allahabad High Court in Second Appeal No. 448 of 1952. Sarjoo Prasad, Vithal Bhai Patel and S.S. Shukla, for the appellants. B. Agarwala, and J. P. Goyal, for the respondent No. I. 1963. May 3 The judgement of the Court was delivered by RAGHBAR DAYAL J.-The facts leading to this appeal, by special leave, are these. Nine persons, including Kedar Nath, instituted a suit for ejectment and recovery of rent against two defendants on the allegation that defendant No. I was the tenant-inchief who had sub-let the premises to defendant No. 2. The suit for ejectment was decreed against both the defendants and for arrears of rent against defendant No. 1. On appeal by defendant No. 2 the District judge set aside the decree for ejectment against defendant No. 2 and companyfirmed the rest of the decree against defendant No. 1. It is against this decree that the nine original plaintiffs filed the second appeal in the High Court on February 29, 1952. Kedar Nath, appellant No. 3, died on September 8, 1955. In view of rr. 3 and 11 of O. XXII of the Code of Civil Procedure, hereinafter called the Code, the appeal abated so far as Kedar Nath was companycerned as numberapplication for bringing his legal representatives on the record was made within the prescribed time. On October 1, 1956, two applications were filed in the High Court One was an application under s. 5 of the Limitation Act for the companydonation of the delay in filing the application for substitution of the heirs in placec of Kedar Nath. The other was the application for substitution in which it was prayed that Bithal Das and Banarsi Das, the sons of Kedar Nath, deceased, be substituted in place of the deceased appellant as they were his heirs and representatives. These two applications were dismissed on May 1, 1957, with the result that the appeal stood abated as against Kedar Nath. Bhagwati Prasad, appellant No. 9 also died on July 2,1956. His widow, Remeshwari Devi, was brought on the record in his place. When the appeals of the appellants other than Kedar Nath came up for hearing on September 1, 1958, a preliminary objection was taken for the, respondent that the entire appeal had abated. Mr. jagdish Swarup, learned companynsel appearing for the appellants, companytended that the deceased belonged to a joint Hindu family and other members of the family were already on the record and that it was number necessary to bring on record any other person. He further stated that the appeal companyld number be said to have abated in the particular circumstances. The Court allowed the appellants time for filing an affidavit stating that the deceased was a member of the joint Hindu family and other relevant facts. On September 8, 1958, an affidavit was filed by Suraj Prasad Misra pairokar of the appellants. Para 9 of the Affidavit stated that Lala Ram Chandra Prasad, appellant No. 8, managed the family properties including the one in dispute which was joint and looked after the affairs of the properties and acted for and on behalf of the family and was already on the record. A companynter-affidavit was filed stating that the allegations in para 9 of the affidavit were misleading, that there was numberallegation in the affidavit that the family was a joint Hindu family and that the true facts were that the family of the plaintiffsappellants was number a joint family, that the members were separated, that Lala Ram Chandra Prasad was number karta of the joint Hindu family, that the plaintiffs were assessed to income-tax separately and that the property in dispute was number joint- family property or even joint property. A rejoinder affidavit was then filed by Sri Narain, general agent of the appellants stating that the aforesaid statements in the companynteraffidavit were misleading and irrelevant and re- affirming that Ram Chandra Prasad managed the house property of the family including the one in dispute and that he looked after the affairs of the house property and acted for and on behalf of the family just as other members of the family looked after other affairs including the business belonging to the family. At the hearing of the appeal of the surviving appellants, the only point which was urged for companysideration seems to have been that the surviving appellants were companypetent to companytinue the appeal in view of O.XLI, r. 4, C. C. This companytention was repelled in view of the full Bench decision of the Allahabad High Court reported in Baij Nath Ram Bharose 1 , as the interests of the surviving appellants and the deceased appellant were joint and indivisible and as in the event of the success of the appeal there would be two inconsistent and companytradictory decrees. It accordingly dismissed the appeal. It is against this decree -that this appeal has been filed after obtaining special leave. Mr. Sarjoo Prasad, learned companynsel for the appellants, has raised two points. One is that the provision of r. 2 of XXII and number of r. 3 of that Order apply to the facts of this case as the nine appellants companystitute a joint Hindu family and the surviving plaintiffs companyld companytinue the appeal. The second point is that if the provisions of r. 3 of O.XXII applied and the appeal of Kedar Nath had abated, the provisions of r. 4 of O.XLI have number been companyrectly companystrued in Baij Nath v. Ram Bharose 1 and Ramphal Sahu Babu Satdeo Jha 2 . We see numberforce in the first companytention. We have already referred to the companytents of the various affidavits filed by the parties subsequent to the point being raised that Kedar Nath, the deceased appellant and the surviving appellants companystituted a joint Hindu family. They clearly indicate that the affidavits filed on behalf of the appellants made numberaverment that Kedar Nath and the surviving appellants formed a joint Hindu family, even though time had been given to them for filing an affidavit stating such a fact. The inference is obvious, and I.L.R. 1953 All, 434, I.L.R. 19 Pat, 870, is that these people did number form a joint Hindu family as alleged by the respondents. It is further of significance that the application made on October 1, 1956, for substituting the sons of Kedar Nath in his place stated that they were his heirs and legal representatives. The application was on the basis that Kedar Nath was number a member of the joint Hindu family. We are, therefore, of opinion that it is number proved that Kedar Nath, deceased, and the other appellants companystituted a joint Hindu family that the right to appeal survived to the surviving appellants alone and that they companyld have companytinued their appeal in view of r. 2 of of XXII of the Code. The second companytention really is that the surviving appellants companyld have instituted the appeal against the entire decree in view of the provisions of O. XLI, r. 4 of the Code, that they were, therefore, companypetent to companytinue the appeal even after the death of Kedar Nath and the abatement of the appeal so far as he was companycerned, that the Court companyld have reversed or varied the whole decree in favour of all the original plaintiffs and companyld have granted reliefwith respect to the rights and interests of Kedar Nath as well. We do number agree with this companytention Rule 4 of O.XLI reads Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground companymon to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and there- upon the appellate Court may reverse or vary the decree in the favour of all the plaintiffs,or defendants, as the case may be. These provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire decree. The second appeal filed in the High Court was number filed by any one or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and, therefore, was number an appeal to which the provisions of r. 4 O.XLI companyld apply. The appeal companyld number have been taken to be an appeal filed by some of the plaintiffs against the whole decree in pursuance of the provisions of r. 4 of O.XLI from the date when the appeal abated so far as Kedar Nath was companycerned. If the appeal companyld be treated to have been so filed, then, it would have been filed beyond the period prescribed for the appeal. At that time, the decree stood against the surviving plaintiffs and the legal representatives of Kedar Nath. The legal representatives companyld number have taken advantage of r. 4 of O. XLI. It follows that r. 4 of O. XLI would number be available to the surviving plaintiffs at that time. Further, the principle behind the provisions of r. 4 seems to be that any one of the plaintiffs or defendants, in filing such an. appeal, represents all the other number- appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground companymon to all of them. Kedar Nath was alive when the appeal was filed and was actually one of the appellants. The surviving appellants cannot be said to have filed the appeal as representing Kedar Nath. Kedar Naths appeal has abated and the decree in favour of the respondents has become final against his legal representatives. His legal representatives cannot eject the defendants from the premises in suit. It will be against the scheme of the Code to hold that r. 4 of O. XLI empowered the Court to pass a decree in favour of the legal representatives of the deceased Kedar Nath on hearing an appeal by the surviving appellants even though the decree against him has become final. This Court said in State of Punjab v. Nathu Ram 1 . The abatement of an appeal means number only that the decree between the appellant and the deceased respondent had become final, but also, as a necessary companyollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken. No question of the Provisions of r. 4 of O.XLI overriding the provisions of r. 9 of O. XXII arises. The two deal with different stages of the appeal and provide for different companytingencies. Rule 4 of 0 XLI applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may number. Once an appeal has been filed by all the plaintiffs the provisions of 0 XLI, r. 4 became unavailable. Order XXII operates during the pendency of an appeal and number at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is number done, the appeal by the deceased appellant abates and does number proceed any further. There is thus numberinconsistency between the previsions of r. 9 of O. XXII and those of r. 4 of O. XLI, P.C. They operate at different stages and provide for 1 1962 -2 S.C. R. 636 different companytingencies. There is numberhing companymon in their provisions which make the provisions of one interfere in any way with those of the other. We do number companysider it necessary to discuss the cases referred to at the hearing. Suffice it to say that the majority of the High Courts have taken the companyrect view viz., that the appellate Court has numberpower to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. XLI, r. 4 when the decree proceeds on a ground companymon to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is companycerned under O.XXII, r. 3. See Ramphal Sahu v. Babu Satdeo Jha 1 Amin Chand v. Baldeo Sahai Ganga Sahai 2 , Baij Nath v. Ram Bharose 3 Nanak v. Ahmad Ali 4 Pyarelal v. Sikhar Chand 5 Raghu Sutar v. Nrusingha Nath 6 Venkata Ram Rao v. Narayana 7 Sonahar Ali v. Mukbul Ali 8 . The Bombay,, Calcutta and Madras High Courts have taken a differentview see Shripad Balwant v. Nagu KushebaSatulal Bhattachariya v. Asiruddin ShaikhSomasundaram Chettiar v. Vaithilinga Mudaliar OrderXLI, r. 33 is of numbergreater help to the companytention of the appellants that their appeal companyld companytinue even though the appeal by Kedar Nath had abated, as the Court companyld have passed a decree in favour of the rights and interests of Kedar Nath, deceased, as well. This rule reads The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, an this power may be exer- cised by the Court numberwithstanding that the I.L.R. 1953 2 All. 434. 2 I.L.R. 15 Lah.667 I.L.R. 1953 2 All. 434 4 I.L.R. 1946LAH. 399 I.L.R. M.P. 21. 6 A.I.R. 1959 Orissa 148. A.I.R. 1963 A.P. 168 8 A I.R. 1956 Assam 164. I.R.R. 1943 BOM. 143 10 I.L.R. 61 CAL. 879 I.L.R. 40 MAD. 846 appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may number have filed any appeal or objection Provided that the Appellate Court shall number make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. This rule is under the sub-heading judgment in appeal. Rule 31 provides that the judgment of the Appellate Court shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree appealed from is reversed or varied. Rule 32 provides as to what the judgment may direct and states that the judgment may be for companyfirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. The reversal or variation in the decree would, therefore, be in accordance with what the appellant had been found to be entitled. The decree therefore, is number to be reversed or varied with respect to such rights to which the appellant is number found entitled. Rule 33 really provides as to what the Appellate Court can find the appellant entitled to. It empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and -thus companyld have reference only to the nature of the decree or Order in so far as it affects the rights of the appellant. It further empowers the Appellate Court to pass or make such further or other decree or Order as the case may require. The Court is thus given wide discretion to pass such decrees and Orders as the interests of justice demand. Such a power is to be exercised in exceptional cases when its number-exercise will lead to difficulties in the adjustment of rights of the various parties. A case like the present is number a case of such a kind. When the legal representatives of the deceased appellant and the surviving appellants were negligent in number taking steps for substitution, the Court is number to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is companycerned. In fact such an exercise of power will lead to the existence of two companytradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the companytrary effect by the Court below which has attained finality companysequent on the abatement of the appeal in so far as they are companycerned. This is always avoided. Rule 33 deals with a matter different from the matter dealt with by r. 9 of O. XXII and numberquestion of its provisions overriding those of r. 9 of XXII or vice versa arises. In Mahomed Khaleel Shirazi Sons v. Los Panneries Lyonnaises 1 it was held that O. XLI, r. 33 was number intended to apply to an appeal which was number a companypetent appeal against a party under the Code or under the Letters Patent of the High Court. This principle applies with equal force in the present case. The appeal by the surviving appellants is number companypetent in the circumstances of the case and, therefore, the provisions of 0. XLI, r. 33 are number applicable to it. We are, therefore, of opinion that the High Court companyld number have heard the appeal of the surviving appellants when the appeal by kedar Nath had 1 53 I.A 84 abated as all the appellants had a companymon right and interest in getting a decree of ejectment against defendant No. 2 and such decree companyld have been on a ground companymon to all of them. The defendant cannot be ejected from the premises when he has a right to remain in occupation of the premises on the basis of the decree holding that Kedar Nath, one of the persons having a joint interest in letting out the property companyld number have ejected him. It is number possible for the defendant to companytinue as tenant of one of the landlords and number as a tenant of the others when all of them had a joint right to eject him or to have him as their tenant.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals No. 561 and 562 of 1962. Appeals from the judgment and order dated April 18, 1961, of the Orissa High Court in O. J. Cs. Nos. 142 and 144 of 1960. Narsaraju, Advocate-General for the State of Andhra Pradesh, Ramdas, R. N. Sachthey and P. D. Menon, for the appellants in both the appeals . C. Setalvad, Ramadeb Chaudhuri, B. C. Sen, S. C. Sen, S. Andley, Rameshwar Nath and P. L. Vhora for the respondent in C. A. No. 561 of 1962 . Ranadeb Chaudhuri, B. C. Sen, S. C. Sen, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the respondent in C. A. NO. 562 of 1962 . Ram Reddy and R. Thiagarajan, for the Intervener. August 16, 1963. The judgment of the Court was delivered by AYYANGAR J.-These two appeals which are against a companymon judgment of the High Court of Orissa have been filed pursuant to a certificate of fitness granted by the High Court under Art. 132 1 of the Constitution. They raise for companysideration the question regarding the companytinued operation of the Orissa Mining Areas Development Fund Act Orissa Act 27 of 1952 and the companytinued exigibility of the fees leviable from mine-owners under the said enactment. Each of the respondents in ,the two appeals filed a petition before the High Court of Orissa under Art. 226 of the Constitution praying for the issue of a writ of mandamus restraining the two appellants-The State of Orissa and the Administrator, Orissa Mining Areas Development Fund, from applying the provisions of the Orissa Mining Areas Development Fund Act Orissa Act 27 of 1952 to the respective respondents and to direct the two appellants to cancel the numberices of demand requiring the petitioners to Pay the fees assessed under the said Act issued by the second appellant and for an injuction etc. restraining them from taking any steps in pursuance of the said numberice of demand. The facts giving rise to these petitions were briefly these. There is number any material difference between the facts of the two cases and so it would be sufficient if we refer only to those in Civil Appeal 561 of 1962. The res- pondent Tulloch Co. Private Ltd.--a companypany incorporated under the Indian Companies Act, works a manganese mine in the State of Orissa under a lease granted by that State under the provision of the Mines Minerals Development Regulation Act, 1948 Central Act 53 of 1948 , and the rules made thereunder. While the respondent was. thus working these mines, the State Legislature of Orissa passed an Act called the Orissa Mining Areas Development Fund Act 1952 which for shortness we shall refer to as the Orissa Act where under certain areas were companystituted as mining areas and under the powers Conferred under that enactment the State Government was empowered to levy a fee on a percentage of the value of the mined ore at the pits mouth, the companylections being intended for the development of the mining areas in the State. The necessary steps for bringing these provisions into operation were taken by the State Government who thereafter made demands on the respondent on August 1, 1960 for the payment of the said fees. The present appeal is companycerned with the fees which became due for the period July, 1957 to March 1958. When a demand was made for the sum the respondent filed petition 142 of 1960 before the High Court impugning the legality of the demand and claimed the reliefs we have set out earlier. The learned judges allowed the Writ Petition and issued directions to the second appellant in terms of the prayer in the petition. As the grounds on which the said demand of the fees was impugned raised substantial questions touching the interpretation of the Constitution the appellants applied to the Court for a certificate of fitness under Art. 132 1 and 2 and this having been granted, the appeals are number before us. We shall number proceed to set out briefly the grounds upon which the learned Judges of the High Court allowed the petition of the respondents. Stated shortly, the companytention which the learned judges of the High Court accepted was that the Orissa Act had been rended ineffective or superseded by a Central enactment-The Mines and Minerals Regulation and Development Act, 1957 Act 67 of 1957 , hereinafter called the Central Act, which was brought into force as and from June 1, 1953. The Orissa Act had been enacted by virtue of the legislative power companyferred by entry 23 of the State Legislative List reading Regulation of mines and mineral development subject to the provisions of List I with reference to regulation and development under the companytrol of the Union. The legislative entry under which the later Central Act was enacted was item 54 of the Union List which ran Regulation of mines and mineral development to the extent to which such regulation and development under the companytrol of the Union is declared by Parliament by law to be expedient in the public interest. The Central Act carried in its second section a declaration envisaged by the last words of the entry. Based on these facts the argument to which the learned Judges acceded was that on the companying into force of the Central Act the Orissa Act ceased to be operative by reason of the withdrawal of legislative companypetence by force of the entry in the State List being subject to the Parliamentary declaration and the law enacted by Parliament. They held that for this reason the Orissa Act should be deemed to be number--existent as and from June 1, 1958 for every purpose, with the companysequence that there was lack of power to enforce and realise the demands for the payment of the fee at the time when the demands were issued and were sought to be enforced. It is the companyrectness of this judgment that is challenged by the State in these appeals. Before proceeding further it is necessary to specify briefly the legislative power on the relevant topic, for it is on the precise wording of the entries in the 7th Schedule to the Constitution and the scope, purpose and effect of the State and the Central legislations which we have referred to-earlier that the decision of the point turns. Article 246 1 reads Notwithstanding anything in cls. 2 and 3 , Parliament has exclusive power to-make laws with respect to any of the matters enumerated in List I in the Seventh Schedule in this Constitution referred to as the Union List , and we are companycerned in the present case with the State power in the State field. The relevant clause in that companytext is cl. 3 of the Article which runs Subject to clauses 1 and 2 , the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 11 in the Seventh Schedule in this Constitution referred to as the State List . Coming number to the Seventh Schedule, Entry 23 of the State List vests in the State Legislature power to enact laws on the subject of regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the companytrol of the Union. It would be seen that subject to the provisions of List I the power of the State to enact Legislation on the topic of mines and mineral development is plenary. The relevant provision in List I is, as already numbericed, Entry 54 of the Union List. It may be mentioned that this scheme of the distribution of legislative power between the Centre and the States is number new but is merely a companytinuation of the state of affairs which prevailed under the Government of India Act 1935 which included a provision on the lines of Entry 54 of the Union List which then bore the number item 36 of the Federal List and an entry companyresponding to Entry 23 in the State List which bore the same number in the Provincial Legislative List. There is numbercontroversy that the Central Act has been enacted by Parliament in exercise of the legislative power companytained in Entry 54 or as regards the Central Act companytaining a declaration in terms of what is required by Entry 54 for it enacts by s. 2 It is hereby declared that it is expedient in the public interest that the Union should take under its companytrol the regulation of mines and the development of minerals to the extent hereinafter provided. It does number need much argument to realise that to the extent to which the Union Government had taken under its companytrol the regulation and development of minerals so much was withdrawn from the ambit of the power of the State Legislature under Entry 23 and legislation of the State which had rested on the existence of power under that entry would to the extent of that companytrol be superseded or be rendered ineffective, for here we have a case number of mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of State legislative power by the declaration which Parliament is empowered to make and has made. It would, however, be apparent that the States would lose legislative companypetence only to the extent to which regulation and development under the companytrol of the Union has been declared by Parliament to be expedient in the Public interest. The crucial enquiry has therefore to be directed to ascertain this extent for beyond it the legislative power of the State remains unimpaired. As the legislation by the State is in the case before us the earlier one in point of time, it would be logical first to examine and analyse the State Act and determine its purpose, width and scope and the area of its operation and then companysider to what extent the Central Act cuts into it or trenches on it. The object of the Orissa Act, as disclosed by its preamble, was the companystitution of mining areas and the creation of a Mining Area Development Fund in the State. Section 3 empowers the State Government to companystitute and alter the limits of these mining areas. The object of the Constitution of these mining areas was Inter alia the provision of amenities like companymunications, water-supply and electricity and the better development of areas wherein any mine was situated as well as to prove for the welfare of the residents or workers in any such area within which persons employed in a mine or group of mines reside or work. Section 4 is the provision empowering the State Government to levy a cess or a fee on all extracted minerals from any mines in a mining area with a limit, however, that the rate of such levy should number exceed 5 per cent of the value of the minerals at the pits mouth. The cess was to fall due quarterly every year oil 1st of January etc. and was to be companyputed on the value of the mineral extracted during the three months immediately preceding the dates specified. Section 5 makes provision for the companystitution of the Development Fund into which the cesses raised under s. 4 and other moneys received in that behalf might be paid and the section also specifies the purposes for which the Fund may be utilised. These were 5 5 . Without prejudice to the generality of the foregoing provisions, the fund may be utilised to defray- a the companyt of measures for the benefit of labour and other persons residing or working in the mining areas directed towards- 1 the improvement of public health and sanitation, the prevention of disease, and the provision and improvement of medical facilities the provision and improvement of water- supplies and facilities for washing the provision and improvement of educational, facilities the improvement of standards of living including housing and nutrition, the amelioration of social companyditions and the provision of recreational facilities, and the provision of roads, tramways and railways and such other companymunications b the grant to any educational, Institute providing technical education in mining and such other allied subjects c the grant to the Central Government, a local authority or the owner, agent or manager of a mine, in aid of any scheme approved by the State Government for any of the purposes of the Fund d the companyt of administering the Fund, including the allowances, if any, of members of the Advisory Committee companystituted under section 6 and the salaries, provident funds,, pensions, gratuity and allowances, if any, of officers appointed under section 7 and e any other expenditure which the State Government may direct to be defrayed from the Fund. The other sections which follow are number relevant and so arc omitted. We shall number turn to the Central Act. The long title of the Act specifies that the twin purposes of the Act are 1 the Regulation of mines, and 2 the development of minerals, both under the companytrol of the Union. Section 2 we have already extracted. Section 3 companytains definitions of terms used in the Act and thus may be omitted. Sections 4 to 10 form a group headed General Restrictions on Undertaking Prospecting and Mining Operations and relate to the rules and regulations under which prospecting licences and mining leases might be granted, the period for which they may be granted or renewed, the royalties and fees that would be payable on them etc. The next group companysists of three sections. 10 to 12-dealing with the procedure for obtaining prospecting licences or mining leases in respect of land in which minerals vest in the Government. Sections 13 to 17 are grouped under a caption which reads Rules for regulating the grant of Prospecting Licences and Mining Leases. Section 13 with which-this group starts empowers the Central Government by numberification, to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals and for purposes companynected therewith. Sub-s. 2 specifies in particular the matters for which such rules may provide and among them is head i reading The fixing and companylection of dead rent, fines, fees or other charges and the companylection of royalties in respect of- prospecting licences, mining leases, minerals mined, quarried, excavated or companylected. Head m runs m the companystruction, maintenance and use of roads, power transmission lines, tramways, railways, aerial ropeways pipelines and the making of passages for water for mining purposes on any land companyprised in a mining lease Up to this point the Act was dealing with the first purpose viz the Regulation of mines. Section 18 is the provision relating to the other object of the Act The Development of minerals. It would be necessary to set out in some detail some of the terms of this section. Section 18 1 enacts 18 1 . It shall be the duty of the Central Government to take all such steps as may be necessary for the companyservation and development of minerals in India, and for that purpose the Central Government may, by numberification in the Official Gazette, make such rules as it thinks fit. and 18 2 18 2 . In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely- a b c d the development of mineral resources in any area Section 25 provides for the recovery of any rent, royalty, tax or other sum due to the Government under this Act or the rules made thereunder, and these are to be recovered in the same manner as an arrear of land revenue. The question for companysideration is whether the extent of companytrol and regulation provided by the Central Act takes within its fold the area or the subject companyered by the Orissa Act. Learned Counsel for the appellant raised 4 points 1 that the object and purposes of the Orissa Act and its provisions were quite distinct and different from the object and purposes of the Central Act, with the result that the two enactments companyld validly companyexist since they do number companyer the same field. It was argued that the Orissa Act was companycerned with the raising of a fund for providing amenities to labour and other residents in mining areas while the Central Act was companycerned number with any social purpose, as the Orissa Act, but merely with the development of the mineral resources of the companyntry. The object to be attained by the two enactments being so dissimilar there was numbercommon area companyered by the two enactments and the extent of companytrol which the Union assumed by its law was therefore entirely outside the field occupied by the State Act and there being thus numberencroachment the State Act companytinued to operate in full force. 2 Even if the Central Act might companyer the same field in the sense that it would be companypetent to the Central Government to make rules under the Central Act for the same purposes as the Orissa Act, and the rules when made would overlap the provisions of the Orissa Act, still there was numberrepugnance between the Central Act and the Orissa Act until such rules were made for until then there is numbereffective and operative Central legislation companyering the field occupied by the Orissa Act. 3 The power to enact legislation to levy fees was an independent head of Legislative power under the Constitution under item 96 in the Union list and item 66 in the State List and therefore there was numberquestion of the supersession of the State power under item 66 of the State List by a Central enactment whose source of legislative power is,entry 96 of List I and there- fore the demand for the fee companypetently enacted by the State was number superseded by Central legislation even though the latter was companyered by Entry 54 of the Union List. 4 In any event, the Central Act was number retrospective or retroactive and companyld number affect rights which accrued to the State prior to June 1, 1958 on which date the Central. Act was brought into force. The fees in regard to which the demands impugned in the case were made had accrued long prior to- June 1, 1958 and the demands would therefore be enforceable numberwithstanding the disappearance of the State Act subsequent to the date of the accrual of the fee. On the other hand, Mr. Setalvad-learned Counsel for the respondent-urged that the Central Act companyered the entire field of mineral development, that being the extent to which Parliament had declared by law that it was expedient that the Union should assume companytrol. In this companynection he relied most strongly on the terms of s. 18 1 which laid a duty upon the Central Government to take all such steps as may be necessary for the companyservation and development of minerals in India and for that purpose the Central Government may by numberification, make such rules as it deems fit. If the entire field of mineral development was taken over, that would include the provision of amenities to workmen employed in the mines which was necessary in order to stimulate or maintain the working of mines. The test which he suggested was whether if under the power companyferred by s. 18 1 of the Central Act, the Central Government had made rules providing for the amenities for which provision was made by the Orissa Act and if the Central Government had imposed a fee to defray the expenses of the provision of these amenities, would such rules be held to be ultra vires of the Central Government, and this particularly when taken in companyjunction with the matters for which rules companyld be made under s. 13 to which reference has already been made. We companysider there is companysiderable force in this submission of learned Counsel for the respondent, and this would require very detailed and careful scrutiny. We are, however, relieved from this task-of detailed examination and discussion of this matter because we companysider that it is companycluded by a decision of this Court in The Hingir-Rampur Coal Co. Ltd., Ors. v. The State of Orissa and Ors. 1 . There, as here, it was the validity of the demand of the fee under the Orissa Act number under companysideration that was the subject of debate. The appellants then before this Court challenged on various grounds the companystitutional validity of the Orissa Act and the rules made thereunder which empowered the State to levy the cess. One of the grounds urged before the- Court was that the Orissa Act was void,because the entire range of mineral development had been taken under Central companytrol by the Mines and Minerals Regulation Development Act, 1948 Central Act 53 of 1948 . The Central Act of 1948 was a pre-constitution law, but the companytention raised was that the declaration in the Central enactment that it was expedient in the public interest that the Central Government should take under its companytrol etc. in terms of entry 36 of the Federal List under the Government of India Act, 1935 was tantamount to a declaration by law by Parliament of assumption of companytrol by the Union within Entry 54 of List I of the 7th Schedule to the Constitution. Before referring to the portion of the judgment dealing with this aspect of the matter, it would be companyvenient to refer to the Central Act of 1948 on the basis of which the companystitutional validity of the Orissa Act was impugned. Central Act 53 of 1948 professes to be an Act to provide for the regulation of mines and oil fields and for the deve- lopment of minerals. Section 2 of that Act companytained a declaration as we have in s. 2 of the present Central Act 67 of 1957 and this read, It is hereby declared that it is expedient in the public interest that the Central Government should take under its companytrol the regulation of mines and oil fields and the development of mines to the extent hereinafter provided. It is a very short enactment companysisting only of 14 sections of which it is only necessary to mention s. 6 which is headed Power to make Rules as respects mineral deve- 1 1961 2 S.C. R. 537. lopment and this empowers the Central Government by numberification to make rules for the companyservation and deve- lopment of minerals. By amendments effected in Central Act, 53 of 1948, by the later Act 67 of 1957, the provisions which related to mines and minerals and their development and the references to mines and minerals in provisions companymon to them and to oil fields were excised, so that thereafter while the earlier Act of 1948 was limited to the development of oil-fields, the entire range of the law relating to mines and mineral development was taken over and companyered by Central Act 67 of 1957. Now, it was the existence of this enactment of 1948 when it applied to mines and mineral development and before it was amended by Act 67 of 1957 by companyfining it to oil-fields, with the declaration which is companytained that it was expedient to companytrol mineral development to the extent provided that was urged as having deprived the Orissa State Legislature of companypetence to enact the Orissa Act. Dealing with this ground of challenge Gajendragadkar, J. speaking for the Court observed Its validity the demand of the fee under the Orissa Act is still open to challenge because the legislative companypetence of the State Legislature under Entry 23 is subject to the provisions of List I with respect to regu- lation and development under the companytrol of the Union and that takes us to Entry 1. The effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the companytrol of the Union, to the extent of such declaration the Jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which companytains a declaration by Parliament as required by Entry 54, and if the said declaration companyers the field occupied by the impugned Act the impugned Act would be ultra wires, number because of any repugnance between the two statutes but because the State Legislature had numberjurisdiction to pass the law. The Limitation imposed by the latter part of Entry 23 is a limitation on the legislative companype 31-2 S C India/64 tence of the State Legislature itself. This position is number in dispute. It is urged by Mr. Amin that the field companyered by the impugned Act has already been companyered by the Mines and Minerals Regulation and Development Act, 1948, LIII of 1948 and he companytends that in view of the declaration made by s. 2 of this Act the impugned Act is ultra vires Section 2 of the Act companytains a declaration as to the expediency and companytrol by the Central Government. It reads thus Section 4 of the Act provides that numbermining lease shall be granted after the companymencement of this Act otherwise than in accordance with the rules made under this Act. Section 5 empowers the Central Government to make rules by numberification for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area. Section 6 of the Act, however, empowers the Central Government to make rules by numberification in the official gazette for the companyservation and development of minerals. Section 6 2 lays down several matters in respect of which rules can be framed by the Central Government It is true that numberrules have in fact been framed by the Central Government in regard to the levy and companylection of any fees but, in our opinion, that would number make any difference. If it is held that this Act companytains the declaration referred to in Entry 23 there would be numberdifficulty in holding that the declaration companyers the field of companyservation and development of minerals, and the said field is indistinguishable from the field companyered by the impugned Act. What Entry 23 provides is that the legislative companypetence of the State Legislature is subject to the provisions of List I with respect to regulation and develop- ment under the companytrol of the Union, and Entry 54 in List I requires a declaration by Parliament by law that regulation and development of mines should be under the companytrol of the Union in public interest. Therefore, if a Central Act has been passed for the purpose of providing for the companyservation and development of minerals, and if it companytains the requisite declaration, then it would number be company- petent to the State Legislature to pass an Act in respect of the subject-matter companyered by the said declaration. In order that the declaration should be effective it is number necessary that rules should be made or enforced all that this required is a declaration by Parliament that it is expedient in the public interest to take the regulation and development of mines under the companytrol of the Union. In such a case the test must be whether the Legislative declaration companyers the field or number. Judged by this test there can be numberdoubt that the field companyered by the impugned Act is companyered by the Central Act LIII of 1948. It is only necessary to add that the validity of this impost was affirmed, however, for the reason that whereas the Orissa Act was a post-Constitution enactment, the Central Act of 1948 was a pre-Constitution law and as in terms of Entry 54 Parliament had number made the requisite decla- ration, but only the previously existing Central Legisla- ture, it was held number to be within the terms of Entry 54 and the State enactment was held to companytinue to be operative. Since the Central Act 67 of 1957 companytains the requisite declaration by the Union Parliament under Entry 54 and that Act companyers the same field as the Act of 1948 in regard to mines and mineral development, we companysider that the decision of this Court companycludes this matter unless there were any material difference between the scope and ambit of Central Act 53 of 1948 and that of the Act of 1957. Learned Counsel for the appellant was number able to point to any matter of substance in which there is any difference between the two enactments. It was suggested that whereas s. 6 of the Act of 1948 empowered rules to be made for taxes being levied, there was numberspecific power to impose taxes under that of 1957. It is number necessary to discuss the materiality of this point because what we are companycerned with is the power to levy a fee, and there is express provision therefore in s. 13 of the Central Act of 1957 apart from the implication arising from s. 25 thereof, which runs Any rent, royalty, tax, fee or other sum due to the Government under this Act or the rules made thereunder or under the terms and companyditions of any pros- pecting licence or mining lease may,, on a certificate of such officer as may be specified by the State Government in this behalf by general or special order, be recovered in the same manner as an- arrear of land revenue. We ought to add that besides we see companysiderable force in Mr. Setalvads submission that sub-ss 1 2 of s. 18 of the Central Act of 1957 are wider in, scope and amplitude and companyfer larger powers on the Central Government than the companyresponding provisions of the Act of 1948. The second point urged by the appellant is based on the fact that s. 18 1 of the Central Act merely lays a duty on the Central Government to take steps for ensuring the companyservation and development of the mineral, resources of the companyntry and in that sense is number self-acting. The submission is that even assuming that under the powers companyferred thereunder read in companyjunction with s. 13 and the other provisions in the Act, it would be companypetent for the Central Government to frame rules on the lines of the Orissa Act i.e., for the development at mining areas and for that purpose to provide for the imposition of fees and for the companystitution of a fund made up of these monies, still numbersuch rules had been framed and until such rules were made or such steps taken, the Central Act would number companyer the field so that the Orissa Act would companytinue to operate in full force. In support of this submission reliance was placed on the decision of this Court in Ch. Tika Ramji Ors. etc. v. The State of Uttar Pradesh Ors. 1 and in particular on a passage at p. 432 reading Even assuming that sugarcane was an article or class of articles relatable to the sugar industry within the meaning of section 18-G of Act LXV of 1951, it is to be numbered that numberorder was issued by the Central Government in exercise of the powers vested in it under that section and numberquestion of repugnancy companyld ever arise because, as has been numbered above, repugnancy must exist in fact and number depend merely on a possibility. The possibility of an order under section 18-G being issued by the Central Government would number be enough. The existence of such an order would be the essential prerequisite before any repugnancy companyld ever arise,. 1 1956 S.C.R. 393. We companysider that this submission in relation to the Act before us is without force besides being based on a mis- apprehension of the true legal position. In the first place the point is companycluded by the earlier decision of this Court in The Hingir-Rampur Coal Co. Ltd. Ors. v. The State of Orissa and Ors. 1 where this Court said In order that the declaration should be effective it is number necessary that rules should be made or enforced all that this required is a declaration by Parliament that it was expedient in the public interest to take the regulation of development of mines under the companytrol of the Union. In such a case the test must be whether the legislative declaration companyers the field or number. But even if the matter was res integra, the argument cannot be accepted. Repugnancy arises when two enactments both within the companypetence of the two Legislatures companylide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations companytaining companytradictory provisions is number, however, the only criterion of repugnancy, for if a companypetent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to companyer the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated number by a detailed companyparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. In the present case, having regard to the terms of s. 18 1 it appears clear to us that the intention of Parliament was to companyer the entire field and thus to leave numberscope for the argument that until rules were framed, there was numberinconsistency and numbersuper- session of the State Act. It was next urged that under the scheme of the legislative entries under the Constitution, as previously under the Government of India Act, 1935, the power to levy a fee was an independent head of legislative power under 1 1961 2 S.C.R. 537. each of the three legislative Lists and number merely an inci- dental power flowing from the grant of power over the subject-matter in the other entries in the List. From this it was sought to be established that even if the Union companyld levy a fee under the Central Act it would number affect or invalidate a State legislation imposing a fee for a similar service. This argument again proceeds on a fallacy. It is, numberdoubt, true that technically speaking the power to levy a fee is under the entries in the three lists treatedas a subject-matter of an Independent grant of legislative power, but whether it is an incidental power related to a legislative head or an independent legislative power it is beyond dispute that in order that a fee may validly be imposed the subject-matter or the main head of legislation in companynection with which the fee is imposed is within legislative power. The material words of the Entries are Fees in respect of any of the matters in this List. It is, therefore, a prerequisite for the valid imposition of a fee that it is in respect of a matter in the list. If by reason of the declaration by Parliament the entire subject- matter of companyservation and development of minerals has been taken over, for being dealt with by Parliament, thus depriving the State of the power which it theretofore possessed, it would follow that the matter in the State List is, to the extent of the declaration, subtracted from the scope and ambit of Entry 23 of the State List. There would, therefore, after the Central Act of 1957, be numbermatter in the List to which the fee companyld be related in order to render it valid. Lastly, it was urged that the fees, recovery of which was being sought by the State were those which had accrued prior to June 1, 1958 and as the Central Act was number retrospective it companyld number have operation so as to invalidate the demands for the payment of the fee made on the respondents. It was pointed out that s. 4 of the Orissa Act imposed a charge on the mine owners for the payment of the fee. The liability to pay the fee accrued quarterly and we are companycerned in this appeal with the fee due in respect of six quarters from September 30, 1956 to March 31, 1958. The demands for the fee due for these quarters was served on the respondents on August 1, 1960. It was therefore submitted that even on the footing that the Orissa Act stood repealed, superseded or nullified on the enactment of the Central Act, the right to recover the past arrears of fees which had accrued due previous to the repeal or nullification would number be abrogated. Pausing here it is necessary to mention that after the judgment was delivered by the High Court in the two petitions which are the subject of these two appeals before us, setting aside even the numberice of demand, applications were made by the State Government to the High Court to review its judgment. The ground urged was that even on the footing that the Orissa Act of 1952 was superseded by Central Act 67 of 1957, the liabilities which had accrued to the State prior to June 1, 1958 companyld number be deemed to be wiped out because the Central Act was number rctrospectivc and that the Court should modify its orders accordingly. The learned Judges, however, dismissed the applications for two reasons 1 They had already granted certificates of fitness under Art. 132 of the Constitution and among the grounds raised by the State in its memoranda of appeal was this point about the effect of the Central. Act on the companytinued enforceability of the dues and thus the point was pending companysideration by this Court. It had already been held by this Court in a decision in Keshavan Madhava Menon v. The State of Bombay 1 to which we shall make reference, that when an earlier Act is superseded or rendered null under Art. 13 of the Constitution, numberhing done under the old Act would survive except in respect of past and closed transactions, and the present case was thus companyered. We shall number turn to the arguments urged before us in support of this companytention. Learned Counsel for the State submitted that the supersession of the Orissa Act by the Central Act was neither more number less than a repeal. If it thus was repeal, then s. 6 of the General Clauses Act 1897 was attracted. Section 6 reads - Where this Act, or any Central Act or Regulation made after the companymencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall number- a 1 1951 S.C.R. 228. b affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder c affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed or d e affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, companytinued or enforced as if the repealing Act or Regulation had number been passed, and the argument on the interpretation of this section was two- fold 1 that the word repeal used in the opening paragraph was number companyfined to express repeals but that the word was companyprehensive enough to include cases of implied repeals 2 Alternatively it was submitted that even if the expression repeal in s. 6 be understood as being companyfined to express repeals, still the principle underlying s. 6 was of general application and capable of being attracted to cases of implied repeals also. Before proceeding further it will be companyvenient to clear the ground by adverting to two matters 1 The effect of a Central Act under its exclusive legislative power which companyers the field of an earlier State Act which was companypetent and valid when enacted is number open to doubt. The Parliamentary enactment supersedes the State law and thus it virtually effects a repeal 2 The effect in law of a repeal, if it is number subject to a saving as is found in s. 6 of the General Clauses Act is also number a matter of companytroversy. Tindak C.J. stated this in Kay v. Goodwin 1 I take the effect of repealing a statute to be to obliterate it as companypletely from the records of the Parliament as if it had never been passed and it must be companysidered as a law that never existed except for the purpose of those actions which were companymenced, prosecuted and companycluded whilst it was an existing law. 1 1830,6 Bing. 576 at p. 582 It was the same idea that was expressed by Lord Tenterden in, Surtees v. Ellison 1 It has long been established that, when an Act of Parliament is repealed, it must be companysidered except as to transactions past and closed as if it had never existed. This laid down the law as it was prior to the U.K. Inter- pretation Act, 1890 which by s. 38 2 made provision for a saving of the type we number have in s. 6 of the Indian General Clauses Act, 1897 which we have extracted earlier. The submission of Mr. Setalvad-learned Counsel for the respondent-was very simple. He said that s. 6 on its terms applied only to express repeals.Here we have a case number of an express repeal but of the supersession of a State enactment by a law having bythe Constitution superior efficacy. it would, therefore, bea mere disapperrance or supersession of the State enactment or at the best a case of an implied repeal. In this companynection he invited our attention to some observations to be found in the decision of this Court in Keshavan Madhava Menon v. The State of Bombay 2 already referred to. The Court was there companycerned with the legality of the prosecution of the appellant for companytravention of the Indian Press Emergency Powers Act, 1931. The offence had been companymitted before the Constitution came into force and a prosecution launched earlier was pending after January 26, 1950. The enactment which created the offence was held to be void under Art. 19 1 a read with Art. 13 as being inconsistent with one of the Fundamental rights guaranteed by Part III of the Constitution. In the circumstances, the point that was debated before this Court was whether the prosecution companyld be companytinued after the enactment became void. The majority of the Court held that the Constitution was prospective in its operation and that -Art. 13 1 would number affect the validity of proceedings companymenced under pre-Constitution laws which were valid up to the date of the Constitution companying into force, for to hold that the validity of these proceedings were affected would in effect be treating the Constitution as retrospective. They therefore companysidered that there was numberlegal objection -to the prosecution companytinuing. Fazl Ali, J. who dissented 1 1829 9B. C. 750 at 752. 2 1951 S.C.R. 228. from the majority, after discussing the legal effect of a repealing statute in the absence of a saving clause and the history of the provision in regard to the matter in the successive General Clauses Acts in India, observed The position therefore number in India as well as in England is that a repeal has number the drastic effect which it used to have before the enactment of the Interpretation Act in England or the General Clauses Act in this companyntry. But this is due entirely to the fact that an express provision has been made in those enactments to companynteract that effect. Hence, in those cases which are number companyered by the language of the General Clauses Act, the principle already enunciated Kay v. Goodwin 1 and Surtees v. Ellison 2 will companytinue to operate. The learned Attorney General had to companycede that it was doubtful whether section 6 of that Act is applicable where there is a repeal by implication, and there can be numberdoubt that the law as to the effect of the expiry of a temporary statute still remains as stated in the books, because section 6 of the General Clauses Act and section 38 2 of the Interpretation Act have numberapplication except where an Act is repealed. Mr. Setalvad submitted that this was an express decision on the point in his favour. We are, however, number disposed to agree with the submission apart from its being the basis of a dissenting judgment. We might add that this point as to the effect of an implied repeal has arisen in a few other cases before this Court but it has been left open see for instance, the judgment in Trust Mai Lachhmi Sialkori Bradari The Chairman, Amritsar Improvement Trust and Ors. 3 . The question is res integra and has to be decided on principle. We must at the outset point out that there is a difference in principle between the effect of an expiry of a temporary statute and a repeal by a later enactment and the discussion number is companyfined to cases of the repeal of a statute which until the date of the repeal companytinues in force. The first question to be companysidered is the meaning of the expression repeal in s. 6 of the General Clauses Act-whether it is companyfined to cases of express repeal or whether the 1 1830 6 Bing. 576. 2 1819 9 B. C. 750. 3 1963 1 S.C.R. 242. expression is of sufficient amplitude to companyer cases of implied repeals. In this companynection there is a passage in Craies on Statute Law, Fifth Edition at pages 323 and 324 which appears to suggest that the provisions of the companyresponding s. 38 of the English Interpretation Act were companyfined to express repeals. On page 323 occurs the following In Acts passed in or since 1890 certain savings are implied by statute in all cases of express repeal, unless a companytrary intention appears in the repealing Act, and on the next page It had been usual before 1889 to insert provisions to the effect above stated in all Acts by which express repeals were effected. The result or this enactment is to make into a general rule what had been a companymon statutory form, and to substitute a general statutory presumption as to the effect of an express repeal for the canons of companystruction hitherto adopted. There is, however, numberexpress decision either in England or, so far as we have been able to ascertain, in the United States on this point. Untrammeled, as we are, by authority, we have to inquire the principle on which the saving clause in s. 6 is based. It is manifest that the principle underlying it is that every later enactment which supersedes an earlier one or puts an end to an earlier state of the law is presumed to intend the companytinuance of rights accrued and liabilities incurred under the superseded enactment unless there were sufficient indications-express or implied-in the later enactment designed to companypletely obliterate the earlier state of the law. The next question is whether the application of that principle companyld or ought to be limited to cases where a particular form of words is used to indicate that the earlier law has been repealed. The entire theory underlying implied repeals is that there is numberneed for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then there is in law a repeal numberwithstanding the absence of the word repeal in the later ,statute. Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded companyld there be any incongruity in at- tributing to the later legislation the same intent which s. 6 presumes where the word repeal is expressly used. So far as statutory companystruction is companycerned, it is one of the cardinal principles of the law that there is numberdistinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is numberdifference in in- tention or in Substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative companypetence to effect a repeal is posted, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to a legislature then the same would in our opinion, attract the incident of the saving found in s. 6 for the rules of companystruction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statutes are drafted. If this were the true position about the effect of the Central Act 67 of 1957 as the liability to pay the fee which was the subject of the numberices of the demand had accrued prior to June 1, 1958 it would follow that these numberices were valid and the amounts due thereunder companyld be recovered numberwithstanding the disappearance of the Orissa Act by virtue of the superior legislation by the Union Parliament. The appeals would, therefore, be allowed and the Writ Petitions would stand dismissed.

Case appeal was accepted by the Supreme Court

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

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 307 of 1963. Appeal by special leave from the judgment and decree- dated September 27, 1962, of the Madhya Pradesh High Court in Second Appeal No. 158 of 1962. V. Gupte, Additional Solicitor-General of India, O.C. Mathur, Revindra Narain and J.B. Dadachanji for the appellant. C. Setalvad, Rameshwar Nath and S.N. Andley, for the respondents. October 24, 1963. The Judgment of the Court was delivered by MUDHOLKAR J.-This is an appeal by special leave against the judgment of the High Court of Madhya Pradesh dismissing the defendants appeal in which he had challenged the decision of the companyrts below ordering his ejectment from certain premises which are in his occupation as the tenant of the plaintiffs. It is companymon ground that the defendant was a tenant of the plaintiffs and the rent of the premises in his occupation was Rs. 110 p.m. It is number disputed that the defendant was in arrears of rent from April 1, 1958 to March 31, 1959 to the extent of Rs. 1,020. On April II, 1959 the plaintiffs served a numberice on the defendant bringing to his numberice the fact of his being in arrears of rent for 12 months and requiring him to remit to them Rs. 1,020 within one month from the date of service of numberice and stating that on his failure to do so, a suit for ejectment would be filed against him. In addition to this the numberice called upon the defendant to vacate the premises by April 30, 1959 upon two grounds 1 that the premises were required by the plaintiffs genuinely for business and 2 that the defendant had sublet a portion of the premises to two persons without the permission of the plaintiffs and without having any right to sublet the premises. This numberice was received by the defendant on April 16, 1959. On June 25, 1959 the defendant sent a reply to the numberice enclosing with it a cheque for Rs. 1,320. It may be mentioned that this amount companysisted of the rental arrears as well as the rent due right up to June 30, 1959. The plaintiffs accepted the cheque and cashed it on July 4, 1959 and gave a fresh numberice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July. In their numberice the plaintiffs also stated that they had cashed the cheque under protest. The defendant did number vacate the premises and, therefore, the present suit for eviction was instituted on August 14, 1959. The plaintiffs claim for eviction on the grounds that the premises were required by them bona fide for the purpose of their business and that the defendant had illegally let them out was negatived by the companyrts below and, therefore, must be left out of question. The only question is whether the plaintiffs are entitled to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the numberice dated April 11, 1959 upon him. The tenancy being from month to month it was open to the plaintiffs to terminate it by giving 15 days numberice expiring at the end of the month of the tenancy as provided for in s. 106 of the Transfer of Property Act, 1882. The premises are, however, situated in Jabalpur in which the Madhya Pradesh Accommodation Control Act,1955 No. 23 of 1955 herein referred as the Accommodation Act is in force. Section 4 of the Act provides that numbersuit shall be filed. in any civil companyrt against a tenant for his eviction from any accommodation except on one or more of the grounds set out in that section. One of the grounds set out in that section is that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written numberice of demand from the landlord. It is because of this provision that before the plaintiffs companyld succeed it was necessary for them to establish that the defendant had failed to pay rental arrears within one month of the receipt by him of a numberice of demand. From the undisputed facts it is clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl. a of s. 4. According to the learned Additional Solicitor-General, however, in spite of these circumstances the plaintiffs suit companyld number have been decreed because 1 the numberice of April 11, 1959 was invalid for the purpose of s. 106 of the Transfer of Property Act inasmuch as the defendant did number have 15 clear days numberice expiring by the end of the month of tenancy 2 that the numberice as well as the default were both waived by the plaintiffs by reason of- a acceptance of the cheque for Rs. 1,320, which included rent up to June 30, 1959 b giving a fresh numberice on July 9, 1959 and c filing of a suit on August 14, 1959 in which reliance was placed only on the second numberice. 3 that the second numberice was number valid with reference to the Transfer of Property Act and the Accommodation Act and 4 that there was numbercause of action for the suit on August 14, 1959 under s. 5 of the Accommodation Act because numberrent was in arrears on that date. We shall deal with the points in the order in which he has mentioned them. The learned Additional Solicitor-General companytends-and rightly-that the provisions of s. 4 of the Accommodation Act are in addition to those of the Transfer of Property Act and that before a tenant can be evicted by a landlord he must companyply both with the provisions of s. 106 of the Transfer of Property Act and those of s. 4 of the Accommodation Act. The Accommodation Act does number in any way abrogate Ch. V of the Transfer of Property Act which deals with leases of immovable property. The requirement of s. 106 of the Transfer of Property Act is that a lease from month to month can be terminated only after giving fifteen days numberice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord. Such a numberice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly terminated the landlord does number get the right to obtain possession of the premises by evicting the tenant. Section 106 of the Transfer of Property Act does number provide for the satisfaction of any additional requirements. But then, s. 4 of the Accommodation Act steps in and provides that unless one of the several grounds set out therein is established or exists, the landlord cannot evict the tenant. Here the companytention is that the ground set out by cl. a of that section does exist because the defendant was in arrears of rent for a period of one year and despite service upon him of a numberice to pay the amount within one month of receipt thereof, he has failed to pay it. Now, the learned Additional Solicitor-General states that the numberice of April, 1959 may be a good numberice for the purposes of s. 4 a of the Accommodation Act but it is number a good numberice for the purposes of Is. 106 of the Transfer of Property Act for two reasons in the first place it does number purport to determine the tenancy and in the second place the numberice falls short of the period of 15 days specified in s. 106 of the Transfer of Property Act. The High Court has, however, treated this as a companyposite numberice under s. 4 a of the Accommodation Act and s. 106 of the Transfer of Property Act and in our opinion rightly. It has to be observed that the plaintiffs, after requiring the defendant to pay the rental arrears due up to the end of March, 1959 within one month from the date of service of the numberice, Proceeded to say failing which suit for ejectment will be filed. These recitals clearly indicate the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both the Acts. Even so, the question would arise whether the numberice was ineffective under s. 106 of the Transfer of Property Act because it was number a numberice of 15 clear days. It was held by the Calcutta High Court in Subadini v. Durga Charan Lal 1 that the numberice companytemplated by s. 106 must be numberice of 15 clear days. In calculating the 15 days numberice the day on which the numberice is served is excluded and even if the day on which it expires is taken into account it will be clear that the defendant had only 14 clear days numberice. Therefore, if the view taken in the aforesaid case is companyrect the period of numberice falls short of that provided in s. 1.06 of the Transfer of Property Act by one day. The companyrectness of the aforesaid decision was number questioned by the same High Court in Gobinda Chandra Saha v. Dwarka Nath Patita 2 . No decision was brought to our numberice in which a companytrary view has been expressed. But Mr. Setalvad who appears for the plaintiffs, companytends that a numberice to quit should be liberally companystrued. In this companynection he referred us to a decision in Harihar Banerji v. Ramsashi Roy In that case the Judicial Committee of the Privy Council has observed at p. 225 that numberices to quite, though number strictly accurate or companysistent in the statements embodied in them, may still be good and effective in law that the test of their sufficiency is number what they would mean to a stranger ignorant of all the facts and, circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably companyversant with all those facts and circumstances and, further, that they are to be companystrued, number with a desire to find faults in them which would render them defective, but to be companystrued at res magis valeat quam pereat. ILR 28 Cal.118. 2 A.I.R. 1915 Cal. 313, 3 45 I.A. 222. The decision really is of numberassistance in this case because there the defect which was number said to invalidate the numberice appertained to the description of the demised premises and the Privy Council held that the recipient of the numberice would be quite companyversant with the actual description and companyld know what the description stood for. Here the question is entirely different and that is whether the landlord had given the minimum period companytemplated by s. 106 of the Transfer of Property Act to the tenant within which to vacate the premises. This provision is evidently intended to companyfer a facility on the tenant and must, therefore, be so companystrued as to enable him to have the fullest benefit of that facility. It seems to us that a liberal companystruction of a numberice which would deprive the tenant of the facility of having the benefit of the minimum period of 15 days within which to vacate is number permissible. We, therefore, approve of the view taken in Subadinis case 1 and hold that the numberice dated April 11, 1959 was ineffective as it does number fulfil the requirements of s. 106 of the Transfer of Property Act. Mr. Setalvad for the plaintiffs, however, points out that a numberice companyplying with the requirements of s. 106 was actually given by the plaintiffs to the defendant on July 9, 1959 and numberfault companyld be found with it since it in fact gave more than 15 days clear numberice to the defendant to vacate the premises. He further points out that the suit was actually based upon this numberice and, therefore, was companypetently instituted. We think the companytention to be companyrect. This brings us to the second and the fourth points raised by the learned Additional Solicitor-General which we will deal with together. His companytention is that there were actually numberarrears on the date of suit and that unless a tenant is in arrears on the date of suit he is number liable to be evicted because of the provisions of s. 4 a of the Accommodation Act. The opening words of s. 4, cl. a are as follows I.L.R. 28 Cal. 118. No suit shall be filed in any civil companyrt against a tenant for his eviction from any accommodation except on one or more of the following grounds- a that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written numberice of demand from the landlord This provision clearly speaks of a tenant having failed to make payment to the landlord of the arrears of rent due from him within the time prescribed in that clause. It does number mean that the ground on which eviction is claimed must subsist till the date of suit. It is well to bear in mind that this Provision is quite different from the analogous provisions of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947, or the West Bengal Premises Tenancy Act, 1956. The protection to tenants given by these Acts is more extensive and a tenant in arrears of rent is given time to pay the arrears even after the institution of the suit. Indeed, in order to bring the Madhya Pradesh law in line with these Acts the Accommodation Act has been substituted by the M.P. Accommodation Control Act, 1961 Act 41 of 1961 . Clause a of s. 12 of that Act entitles a landlord to bring a suit for the eviction of the tenant where the latter has neither paid number tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a numberice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner. Sub-section 3 of that section provides that numberorder for the eviction of a tenant companyld be made on the grounds specified in cl. a of Sub-s. 1 if the tenant makes payment of deposit as required by s. 13. Sub-section 1 of s. 25 gives a right to the tenant to make ail application within certain time for depositing the rental arrears in companyrt.The scheme of the new Act is thus a substantial departure in this respect from that of s. 4 of the 1955 Act. The learned Additional Solicitor-General, however, says that if we look to some of the other grounds specified in s. 4 and to the provisions of ss. 16 and 17 of the new Act it would appear that when a suit is instituted at the instance of the landlord for the eviction of the tenant the latter must be in arrears on the date of the institution of the suit. In this companynection he refers us to the provisions of cls. g , h , j and k of s.4 and companytends that the grounds referred to in those clauses must necessarily companytinue to exist till the dates the institution of the suit and that- cl. a should be read as companytaining a similar companydition. Clauses g and h deal with cases where the landlord, broadly speaking., requires the accommodation for his own residence or for his own business. Clause j deals with a case where a tenant had given written numberice to quit and in companysequence of that numberice the landlord has companytracted to sell or let the accommodation or has taken any other step as a result of which his interests would seriously suffer if he is number put in possession of that accommodation. Clause k deals with accommodation which was let to the tenant for use as a residence by reason of his being in the service of the landlord and the tenant has ceased, whether before or after the companymencement of the Act. to be in such service. It is number necessary for us to decide in this case whether the grounds referred to in these clauses must necessarily companytinue to exist on the date of suit. It is sufficient to say that the language of cl. a must be given its natural meaning and that there is numberwarrant for modifying that language because while dealing with other grounds set out in other clauses, the legislature has used different language. If we were to uphold the companytention of the learned Additional Solicitor-General we would be virtually rewriting the section by saying that the tenant was in arrears of rent at the date of suit in place of that the tenant has failed to, make payment etc. It is certainly number open to a companyrt to usurp the functions of a legislature. Nor again, is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords. As far as ss. 16 and 17 are companycerned, they are of numberassistance to the defendant. It is number necessary for us to reproduce their provisions but it is sufficient to say that they were intended to give a limited retrospective operation to the provisions of the new s. 4. We have numberdoubt, therefore, that the ground set out in cl. a of s. 4 need number be shown by the landlord to exist at the date of institution of the suit. All that is necessary for him to establish is that the tenant was in fact in. arrears, that he was given one months numberice to pay up the arrears and that in spite of this he failed to pay those arrears within one month of service of numberice on him. It is said that such an interpretation will lead to this result that the landlord who had served numberice upon a tenant under cl. a of s. 4 and in companypliance with which the tenant had failed to pay the arrears within one month of the service of numberice, may companytinue the tenancy of the defaulting tenant, go on receiving lent from him and then at his sweet will may terminate the tenancy. The intention to give such a right to the landlord cannot reasonably, accord- ing to the learned Additional Solicitor-General, be attributed to the legislature. Theoretically that is possible but the argument based upon it is farfetched. The landlord who wants to evict a tenant and, therefore, avails himself of the ground furnished by cl. a of s. 4 would number wait for years to file a suit against his defaulting tenant. It seems to us that in furnishing the ground to the landlord the legislature intended to give only a limited protection to the tenant or to put it slightly differently, the legislature intended to give protection only to a tenant who was diligent and regular enough in the matter of payment of rent. That is all. Indeed, while it is open to a legislature to give wide protection to ever defaulting tenants, it does number follow from it that whenever it gives protection it must be deemed to have given him the protection of the widest amplitude. Then it is said that such an interpretation will deprive a tenant, for whose benefit s. 4 was enacted, of the benefit of s. 114 of the Transfer of Property Act which provides for relief against forfeiture for number-payment of rent. What is forfeiture is set out in s. 111 g of the Transfer of Property Act, which runs thus By forfeiture that is to say, 1 in case the lessee breaks an express companydition which provides that, on breach thereof, the lessor may re-enter or 2 in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself or 3 the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event and in any of these cases the lessor or his transferee gives numberice in writing to the lessee of his intention to determine the lease The effect of cl. a of s. 4 is merely to remove the bar created by the opening words of s. 4 on the right which a landlord has under s. 106 of the Transfer of Property Act to terminate a tenancy of a tenant from month to month by giving a numberice terminating his tenancy. It does number companyvert a periodic tenancy into one of fixed or indefinite duration number insert therein a clause of re-entry on the ground of numberpayment of rent. The character of the tenancy as one from month to month remains but to it is added a companydition that the unfettered right to terminate the tenancy companyferred by s. 106 will be exercisable only if one of the grounds set out in s. 4 of the Accommodation Act is shown to exist. The next question is whether, as companytended by the learned Additional Solicitor-General, the default made by the defendant in failing to pay the arrears within one month of the receipt of the numberice dated April 11, 1959, can be said to have been waived by the plaintiffs. It is numberdoubt true that by cashing the cheque for Rs. 1,320 on July 4, 1959 the plaintiffs received number merely the arrears of rent up to March, 1959 but also rent upto June 30, 1959. There is numbersubstance in the plea made on their behalf that they had received the amount under protest. In the first place this is number a case to which illustration a to s. 113 of the Transfer of Property Act which says that acceptance of rent falling due after the expiry of a numberice to quit amounts to waiver of the numberice applies. Then again when the plaintiffs cashed the cheque they had number filed a suit on the basis of the numberice of April 11, 1959. Merely saying that they accepted the money under protest is, therefore, of numberavail to them. Even so, it is difficult to infer, merely from the acceptance of the payment, a, waiver of the right which had accrued to them under s. 4 a of the Act in companysequence of the default made by the defendant in paying arrears of rent. The reason is quite simple. The tenancy, as was indeed argued by the learned Additional Solicitor- General, hah number be-en validly terminated by the numberice of April 11 , 1959 and therefore the relationship of landlord and tenant companytinued. Consequently the plaintiffs were within their right in accepting the rent and cannot be fastened with the intention to waive the default just because of this action since the defendant was, by virtue of the Accomodation Act entitled to remain in possession as tenant and liable to pay rent. The learned Additional Solicitor-General, however, faintly companytended that if the numberice of April 11, 1959 companyld also be companystrued as being intended to be numberice under s. 106 of the Transfer of Property Act then even though it was ineffective the acceptance of rent by the plaintiffs on July 4, 1959 amounted to a waiver of the right accruing from the numberice. As we have already indicated, so far as the suit is companycerned, it is based upon the numberice of July 9, 1959, that is to say, the eviction of the defendant is claimed on the basis of a numberice requiring him to quit by the end of July, 1959. The right accruing to the plaintiffs to institute the suit on the basis of this numberice has number been waived at all and the receipt by them of rent prior to this date does number by itself terminate the right accruing to them under the numberice dated July 9, 1959. It may be that if the numberice of April 11 , 1959 is companystrued as a companyposite numberice, that is, one companytemplated by cl. a of s. 4 as also one under s. 106 of the Transfer of Property Act, acceptance of the rent companyld, along with other circumstances, have led to the inference of waiver of the right flowing from the numberice under s. 106 of the Transfer of Property Act. But it is difficult to see how such a companystruction of the numberice can at all support a plea of waiver of the right accruing from cl. a of s. 4 As already pointed out, the numberice of April 11, 1959 in so far as it purported to be under s. 106 of the Transfer of Property Act was ineffective and, therefore, the relationship of landlord and tenant companytinued between the plaintiffs and the defendant. Accepting rent under such circumstances from the defendant cannot justify the inference of waiver of quite a different right and that is to take advantage of the statutory right under s. 4 of the Accommodation Act accruing by reason of the default made in the payment of rental arrears. Indeed, the numberice of April 11, 1959 as it stands, companyld number by itself have furnished the plaintiffs with the right to institute a suit. Till they acquired that right, number only were they entitled to accept the rent which accrued due from month to month but the defendant was himself liable to pay the rent whenever it fell due till the relationship of landlord and tenant was put an end to. Therefore, from the sole circumstance of acceptance of rent after April 11, 1959 waiver cannot at all be inferred. We are, therefore, unable to accept the argument of the learned Additional Solicitor-General that by cashing the cheque for Rs. 1,320 the plaintiffs waived all rights which accrued to them under the numberice dated April 11, 1959. As we have already said, numberright under s. 106 of the Transfer of Property Act had accrued to them because of the ineffectiveness of the numberice in so far as the termination of tenancy was companycerned and, therefore, numberquestion of waiver with respect to that part of the numberice arises. So far as the right accruing under s. 4 a of the Accommodation Act is companycerned, the defendant having been under liability to pay rent even after the giving of numberice the acceptance of the rent by the plaintiffs would number by itself operate as waiver. As regards the last point, we have in fact dealt with it already. What was companytended was that the numberice of April 11, 1959 was number a valid numberice with reference to both the laws, that is, the Transfer of Property Act and the Accommodation Act. We have pointed out that though the numberice companyld be companystrued to be companyposite numberice it was ineffective in so far as it purports to be under s. 106 of the Transfer of Property Act. It was number suggested that in so far as it was a numberice under the Accommodation Act it was invalid. There is, therefore, numberhing more to be said about it.

Case appeal was rejected by the Supreme Court

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

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 909 to 923 of 1963. Appeals from the judgment and orders dated July 26, and August 1, 1962, of the Calcutta High Court in Appeals from Original Orders Nos. 288 and 274-276, 278, 280, 279, 281, 273, 272, 271, 270, 269, 282 and 292 of 1961. N. Sanyal, Solicitor General, S.J. Banaji, Prasanta Kumar Ghose and K.L. Hathi, for the appellants. Sen, Salil Kumar Datta and Sukumar Ghose, for the respondents Nos. 1 to 5. November 22, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-This is a group of 15 appeals which raise a companymon question about the validity of the orders passed by the appellant Life Insurance Corporation of India terminating the services of its employees who are the respondents in these appeals. The facts which give rise to the present disputes between the parties in all the 15 cases are substantially similar, and so, it would be enough if we state the relevant facts in one of these cases. One of the respondents is Sunil Kumar Mukherjee. He was in the insurance line since June, 1941 and had been companyfirmed in his service by the Metropolitan Insurance Co. Ltd. in March, 1950. Since about 1953, he had been working as Inspector of the said Company, and since March 18, 1955, he was holding the appointment as Inspector at Barrackpore. The appellant which took over the companytrolled business of the Metropolitan Insurance Co. Ltd., terminated the services of Mukherjee by an order passed on the 16th October, 1958. The respondent then- moved the Calcutta High Court under Art. 226 of the Constitution and prayed for a writ of certiorari or other appropriate writ or order quashing the said impugned order of discharge passed against him. Sinha J. who heard the writ petition allowed the petition and directed that a writ in the nature of certiorari quashing and or setting aside the impugned order be issued. A further writ in the nature of mandamus was also issued directing the respondents to the writ petition number to give effect to the said impugned order. To the petition filed by the respondent, he had impleaded eight respondents, the principal amongst them being the appellant Corporation and the Union of India. Aggrieved by the decision of Sinha J. the appellants preferred an appeal under the Letters Patent before a Division Bench of the said High Court. Bose C.J. and Debabrata Mokerjee J. who heard the Letters Patent appeal substantially agreed with the view taken by Sinha J. and companyfirmed the order passed by him. The appellants then applied for and obtained a certificate of fitness from the said High Court and it is with the said certificate that they have companye to this Court in appeal. On similar facts, the appellants have brought to this Court the other fourteen appeals, and a companymon question which has been raised by the learned Solicitor-General on behalf of the appellants is that the High Court was in error in holding that the orders of discharge passed respectively against the respondents in these appeals were invalid. Before dealing with the points raised by the appellants in the present appeals, it would be companyvenient to set out the relevant orders passed in respect of the appointment and discharge of the respondent Mr.Mukherjee. When Mr.Mukherjee was appointed a whole-time Inspector by the Metropolitan Insurance Co. Ltd. on the 18th or 19th March, 1955, the terms and companyditions of his employment were companymunicated to him by a document which companytained 14 clauses Annexure A to the W.P. . Clause 13 of this document provided that the appointment was subject to termination without numberice in case he was found guilty of fraud, misappropriation, breach of discipline, insubordination, acting detrimental to the interests of the companypany, disloyalty or gross neglect of duty provided, however, that he would be entitled to 30 days numberice if his services were terminated for any other reason. It is thus clear that under the terms and companyditions of Mr. Mukherjees original appointment with the Insurance Co., he was liable to be dismissed for misconduct and was entitled to receive 30 days numberice if his services were terminated for reasons other than misconduct. When the Life Insurance Corpn. took over the business of the Metropolitan Insurance Co. Ltd., an order was issued in favour of Mr. Mukherjee on the 14th February, 1958. By this order it was stated that in terms of Government Order No. 53 1 I.S.N. 1 57 dated 30th December, 1957, he was required to work as a Field Officer. It was also added that he would companytinue to be attached to Barrackpore Branch Office until further orders. This order was issued by the Divisional Manager. Thus, it appears that after this order was given to Mr. Mukherjee, he began to work as a Field Cfficer by virtue of his appointment under the relevant Government Order. One of the points which we have to companysider in the present appeal is what is the effect of this order of appointment? On the 16th October, 1958, the impugned order terminating Mr. Mukherjees services was passed. This order said that in terms of section 5 of the Categorisation circular of the 2nd December, 1957, Mr. Mukherjees case was examined by the Special Committee appointed by the Board of the Corporation to review the cases of Ex-Branch Secretaries etc., and it was added that in accordance with the recommendations of the Committee which had been accepted by the Corporation, it had been decided to terminate his services with immediate effect. Mr. Mukherjee was also told that he would be paid his emoluments up to the current month and one months salary in lieu of numberice. It is the validity of this order which has been successfully challenged by Mr. Mukherjee before the Calcutta, High Court, and the learned Solicitor- General companytends that the High Court was in error in upholding Mr. Mukherjees plea. The history of the nationalisation of the Life Insurance business in this companyntry is well-known. On the 19th January, 1956, the Life Insurance Emergency Provisions Ordinance No. 1 of 1956 was promulgated by the President for the purpose of taking over, in the public interest, the management of the life insurance business, pending nationalisation of such business. In due companyrse, Act No. 9 of 1956 was passed which took the place of the original Ordinance and it came into effect on the 21st March, 1956. This Act was followed by Act 31 of 1956 hereinafter called the Act which was published on the 1st of July, 1956. The appointed date under s.3 of this Act was the 1st of September,1956. Section 7 of the Act provides that on the appointed day there shall be transferred to and vested in the Corporation all the assets and liabilities appertaining to the companytrolled business of all insurers. That is how the Life Insurance Corporation took over all the assets and liabilities appertaining to the companytrolled business of all the insurers in this companyntry. As a result of this taking over, s. II proceeded to make a provision for the transfer of service of existing employees of insurers to the Corporation. For the purpose of these appeals, it is necessary to set out sec. 11 1 2 . These sub-sections read as under--- Every whole-time employee of an insurer whose companytrolled business has been transferred to and vested in the Corporation and who was employed by the insurer wholly or mainly in companynection with his companytrolled business immediately before the appointed day shall, on and from the appointed day, become an employee of the Corporation, and shall hold his office therein by the same tenure, at the same remuneration and upon the same terms and companyditions and with the same rights- and privileges as to pension and gratuity and other matters as he would have held the same on the appointed day if this Act had number been passed, and shall companytinue to do so unless and until his em- ployment in the Corporation is terminated or until his remuneration, terms and companyditions are duly altered by the Corporation Provided that numberhing companytained in this sub- section shall apply to any such employee who has, by numberice in writing given to the Central Government prior to the appointed day, intimated his intention of number becoming an employee of the Corporation. Where the Central Government is satisfied that for the purpose of securing uniformity in the scales of remuneration and the other terms and companyditions of service applicable to employees of insurers whose companytrolled business has been transferred to,, and vested in, the Corporation, it is necessary so to do, or that, in the interests of the Corporation and its policy-holders, a reduction in the remuneration payable, or a revision of the other terms arid-conditions of service applicable, to employees or any class of them is called for, the Central Government may, numberwithstanding any thing companytained in sub- section 1 , or in the Industrial Disputes Act, 1947, or in any other law for the time being in force, or in any award, settlement or agreement for the time being in force, alter whether by way of reduction or otherwise the remuneration and the other terms companyditions of service to such extent and in such manner as it thinks fit, and if the alteration is number acceptable to any employee, the Corporation may terminate his employment by giving him companypensation equivalent to three months remuneration unless the companytract of service with such employee provides for a shorter numberice of termination. Then follow an explanation and sub-sections 3 and 4 which are number relevant for our purpose. It would thus be seen that under s. 11 1 , persons who were employed by an insurer wholly or mainly in, companynection with his companytrolled business before the appointed day, became the employees of the Corpora-, tion as from the appointed day. After they thus became the employees of the Corporation, they held their offices by the same tenure, at the same remuneration and upon the same terms and companyditions and with the same rights and privileges. In other words, on the taking over of the companytrolled business by the Corporation, the employees of the insurers to whom s. 11 1 applied became the employees of the Corporation, but their employment companytinued to be on the same terms and companyditions as before. This state of affairs was to companytinue until the employment of the employee was brought to an end or until his remuneration, terms and companyditions were duly altered by the Corporation. The scheme of s. 11 1 is thus clear. With the transfer of the companytrolled business from the insurer to the Corporation, the employees of the former became the employees of the latter, but they were governed by the same terms and companyditions until they were altered by the latter. The proviso to s. II 1 shows that if any employee had, by numberice in writing, companyveyed to the Central Government prior to the appointed day his intention number to become an employee of the Corporation, his case was outside S. 11 1 In other words, such an employee would number become the employee of the Corporation and his case would have to be dealt with apart from s. II 1 2 . Section 11 2 as it originally stood was substantially modified in 1957, and the plain effect of the provisions companytained in the said sub-section as modified, is that the Central Government. is given the power to alter whether by way of reduction or otherwise the remuneration and the other terms and companyditions of service to such extent and in such manner as it thinks fit. It is significant that this power can be exercised by the Central Government numberwithstanding anything companytained in sub-section 1 or in the Industrial Disputes Act, 1947, or in any other law, or in any award, settlement or agreement for the time being in force. It was thought that for a proper functioning of the Corporation it was essential to companyfer upon the Central Government an over- riding power to change the terms and companyditions of employees who were wholly or mainly employed by the insurers prior to the appointed day. Having companyferred such wide power on the Central Government, s. 11 2 further provides that if the alteration made by the Central Government in the terms and companyditions of his service is number acceptable to any employee, the Corporation may terminate his employment by giving him companypensation equivalent to three months remuneration unless the companytract of service with such employee provides for a shorter numberice of termination. It is thus clear that in regard to cases which fall under s. 11 2 if as a result of the alteration made by the Central Government any employee does number want to work with the Corporation, he is given the option to leave its employment on payment of companypensation provided by the last part of s. 11 2 . Thus, the scheme of the two sub-sections of s. II is clear. The employees of the insurers whose companytrolled business has been taken over, become the employees of the Corporation, then their terms and companyditions of service companytinue until they are altered by the Central Government, and if the alteration made by the Central Government is number acceptable to them, they are entitled to leave the employment of the Corporation on payment of companypensation as provided by s. 11 2 . After the Corporation took over the companytrolled business of insurers under the Act, two circulars were issued by the Managing Director, the first on the 30th September, 1957 and the second on the 2nd December, 1957. These circulars need number detain us at this stage, because, by themselves, they were without any authority in law. However, we would have occasion to refer to the second circular later on. On the 30th December, 1957, an order was issued by the Central Government in exercise of the powers companyferred on it by s. 11 2 of the Act. This order was issued on blue paper and has been described by the High Court as the blue order. We will refer to this order as the order in the companyrse of this judgment. This order was issued because the Central Government was satisfied that for the purpose of securing uniformity, in the scales of remuneration and the other terms and companyditions of service applicable to certain classes of employees of insurers, it, was necessary to clarify the position by making specific and clear provisions in that behalf. The object of the order was to secure the interests of the Corporation and its policy-holders by making a reduction in the remuneration payable to the employees governed by the order, and effecting a revision of the other terms and companyditions applicable to them. This order was companyfined in its operation to the officers of the insurers who were known as Field Officers, and so, the order was named as the Life Insurance Corporation Field Officers Alteration of Remuneration and other Terms and Conditions of Service Order, 1957. It companysists of 12 clauses. Clause 2 defines, inter alia, a Field Officer. In 1962, the designation Field Officer was changed into a Development Officer, though curiously enough the title of the Order still refers to the Field Officer and does number incorporate a companysequential amendment in the said designation. The definition of the Development Officer shows that it takes in a person however he was designated before the appointed day if he was wholly or mainly engaged in the development of new life insurance business for the insurer by supervising, either directly or through one or more intermediaries, the work of persons procuring or soliciting new life insurance business, and who was remunerated by a regular monthly salary, and who has become an employee of the Corporation under s. 11 of the Act. This definition excludes certain categories of employees to which it is number necessary to refer. It is thus clear that the Order was intended to prescribe the terms and companyditions of service in respect of Development Officers who had become employees of the Corporation under s. 11 1 of the Act. Clause 3 of the Order prescribes the duties of the Development Officer. Clause 4 prohibits the Development Officers from engaging themselves in certain activities. Clause 5 provides for the scales of pay and allowances . Clause 6 deals with the matter of leave and retirement, and provides that in the matter of leave and retirement, Development Officers shall be governed by the Life Insurance Corporation Staff Regulations, 1960, as amended from time to time. Clause 7 provides for increments, and clause 8 deals with new business bonus, while clause 9 refers to promotion of Development Officers. Clause 10 is relevant for our purpose and must be set out in full Penalties and termination of service In case of unsatisfactory performance of duties by a Development Officer or if a Development Officer shows negligence in his work or is guilty of misconduct or is otherwise incapable of discharging his duties satisfactorily, his remuneration may be reduced or his services may be terminated, after giving him an opportunity of showing cause against the action proposed to be taken in regard to him and after companyducting such enquiry as the Corporation thinks fit. The services of any Development Officer may, with the prior approval of the Chairman of the Corporation, be terminated without assigning any reason after giving the Development Officer three months numberice thereof in writing. Clause 11 prescribes that the actual pay and allowances admissible to any Development Officer under the scale of pay specified in paragraph 5 shall be determined in accordance with such principles as may be laid down by the Corporation by regulations made in this behalf under sec. 49 of the Act. The last clause lays down that if a doubt arises as to the interpretation of any of the provisions of the Order, the matter will be decided by the Central Government. It is thus clear that in regard to the Field Officers subsequently designated as Development Officers who became the employees of the Corporation after the appointed day the Order provides a self-contained with the material terms and companyditions of service of the said Officers. In regard to the scales of pay and. allowances which have been prescribed by clause 5, clause 11 companytemplates that the actual pay and allowances admissible to any Development Officer will have to be determined in accordance with the principles which the relevant regulation would in that behalf lay down, and so, in the matter of scales of pay and allowances clause 5 read with clause 11 has to be companyrelated with the relevant regulation which had to be subsequently framed. In regard to the other terms and companyditions of service, however, the Order makes specific and clear provisions. That being so, there can be numberdoubt that in regard to the Officers to whom the Order applies, if any action is intended to be taken for the termination of their services, it has to be taken under clause 10 a or b . Clause 10 a deals with two alternatives it empowers the appropriate authority to reduce the remuneration of the Development Officer or to terminate his services in either case, an opportunity of showing cause against the action proposed to be taken has to be given to him, and an enquiry has to be companyducted in the manner which the Corporation may think fit. If the Development Officer shows negligence in his work, or is guilty of misconduct, or is otherwise incapable of discharging his duties satisfactorily, the Corporation may reduce his remuneration or may terminate his service but that can be done only after companyplying with the companyditions prescribed by clause 10 a . Clause 10 b empowers the Corporation to terminate the services of the Development Officer without assigning any reason and without holding any enquiry or giving him an opportunity to show cause, provided, of companyrse, the order terminating his services is passed with the prior approval of the Chairman of the Corporation. is power can be exercised without companyplying with clause 10 a and is independent of it. Thus, in the matter of penalties and termination of service, two alternative powers are companyferred on the authority and they are companytained in the sub-clauses a and b of clause 10. As envisaged by clause 11 of the Order, Regulations were framed in 1958 by the Life Insurance Corporation under s. 49 of the Act read with clause 11 of the Order. These Regulations companytain five Clauses the first gives the title of the Regulations the 2nd defines the Categorisation Order which is the same as the blue Order, as well as the Corporation and the Field Officer. Regulation 3 deals with the companyveyance allowance. Regulation 4 provides for the manner of fixing the pay of the Development Officer. Regulation 4 1 lays down that the basic pay in the scale of pay prescribed for Field Officers by the Order shall be so fixed that the said pay together with the dearness allowance and companyveyance allowance is number less than the total monthly remuneration to which the Officer was entitled before the 31st August, 1956. Regulation 4 2 provides that where the work of the Field Officer has been either below or above the adequate standard, the Corporation may fix his basic pay at such stage in the scale as it may think fit. Regulation 4 3 prescribes that in judging a Field Officers work, the Corporation shall observe the principles companytained in the circular issued by the Managing Director on the 2nd December, 1957. Regulation 5 provides for the companyputation of total monthly remuneration which was paid to the Officer on the 31st August, 1956. It will be numbericed that clause 4 3 of the Regulations makes the circular issued by the Managing Director on the 2nd December, 1957 a part of the regulation by treating it as its annexure and referring to its provisions for the purpose of determining the remuneration payable to the Development Officer. That is how the said circular which, when it was issued, had numberlegal authority, has number become valid as a part of the Regulations issued by the Corporation under s. 49 of the Act read with clause 11 of the Order. This circular companytains five paragraphs. The object of the material provisions of this circular is to determine the quality of the work which the Development Officer puts in which would afford a basis for fixing his remuneration. Paragraph 4 of this circular deals with the problem of fitting in the respective Development Officers in the pay scales provided by clause 5 of the Order. It companysists of eight clauses a to h . In the present appeals, we are companycerned with the last of these clauses. Paragraph 4, clause h reads thus- If the actual performance is less than 50of the revised quota, the cases of such Field Officers will be referred to a Committee to be specially appointed in each Zone. The Committee will go through the past records of such Field Officers and decide whether they companyld be companytinued as Field Officers either as Probationers or on substantially reduced remunerations. In the case of those who cannot be companytinued as Field Officers, the Committee will examine whether any of them companyld be absorbed in administration and where this is possible, the Committee will fix the remuneration in accordance with the rules to be prescribed. Where the Committee decides that the poor performance of a Field Officer was number due to circumstances beyond his companytrol or that he has made numberefforts and number shown inclination or willingness to work, the services of such Field Officers will be terminated. It is clear that paragraph 4 h deals with the cases of persons whose actual performance is less than 50 of the revised quota, and as such, who are re- garded as ineligible for fitting in the employment of the Corporation. Their cases are required to be referred to the Committee specially appointed in each Zone, and on examining the record -of these Officers, if the Committee companyes to the companyclusion that some of them cannot be companytinued as Field Officers it may enquire whether any of them companyld be absorbed in administration, and if yes, their remuneration may be suitably fixed if the Committee thought that the poor performance was number due to circumstances beyond his companytrol, or that he made numberefforts or showed numberinclination or willingness to work, the services of such Field Officer will be terminated. Paragraph 5 deals with the question of ex- Branch Secretaries and Supervisory Officers, and it provides that if their work is found to be unsatisfactory, the Committee may recommend termination of the services of the officers companycerned. In other cases, the Committee will make recommendations as to whether they should companytinue such Inspectors as Field Officers and if yes, on what remuneration or whether their services companyld be utilised in any other capacity in the Corporation, and if yes, on what remuneration? The learned Solicitor-General has companytended that when the Corporation took over the companytrolled business of insurers in this companyntry on the appointed day, it was found that a large number of employees in the category of Field Officers were either incompetent or unwilling to work efficiently, and so, it was thought desirable, in the interests of the Corporation itself and in the interests of the policy- holders, to terminate their services. That is why a well- devised scheme was framed by the circular and adopted in the Regulations laying down principles for determining the effi- ciency of the work done by the said Officers. He urges that by the application of the principle laid down by paragraph 4 h of the circular, it was companypetent to the Corporation to terminate the services of the respondents, and that is what in fact has been done in each of the cases- before us. In support ot this plea, he has relied on the fact that paragraph 4 h empowers the Corporation to terminate the services of incompetent officers and paragraph 5 also gives the same power in respect of ex-Branch Secretaries and Supervisory Officers. The argument is that where cases are dealt with under the provisions of paragraph 4 h or paragraph 5 of the circular, there can be numberquestion of applying the provisions of clause 10 of the Order. it is companymon ground that before terminating the services of the respective respondents in the group of appeals before us, numberenquiry has been held and numberopportunity has been given to the said officers as required by clause 10 a of the Order. It is also companymon ground that the impugned termination of their services has number been effected under clause 10 b of the Order. The respondents companytention is that the termination of their services can be brought about only under clause 10 a or 10 b of the Order, and since it has number been so brought about, the impugned orders are invalid. On the other hand, the learned Solicitor-General companytends that the power to terminate services companyferred by paragraph 4 h of the circular is independent of clause 10 of the Order, and the same can be, and has been, validly exercised in the present cases. In companysidering the validity of these rival companytentions, it is necessary to bear in mind the true legal position about the character of the relevant statutory provisions. It is plain that the provisions companytained in s. 11 2 of the Act are paramount and would override any companytrary provisions companytained in. the Order or the Regulations. Subject to the provisions of s. 11 2 , the provisions of the Order will prevail, because the Order has been issued by the Central Government by virtue of the powers companyferred on it by s. 11 2 itself The provisions of the Order in law partake of the character of the rules framed under s. 48 of the Act. Thus next to the provisions of s. 11 2 of the Act will stand the provisions of the Order. Then we have the Regulations issued by the Corporation under s. 49 1 of the Act. But it must be borne in mind that the power of the Corporation to make Regulations is burdened with the companydition that these regulations must number be inconsistent with the Act and the rules framed thereunder, so that if any of the provisions companytained in the Regulations made by the Corporation under s. 49 are found to be inconsistent either with s. 11 2 or with the Order made by the Central Government -under s. 11 2 , they would be invalid. It is in the light of this legal position that the problem posed before us in the present appeals must be decided. We have already numbericed that as soon as the Field Officers or the Development Officers became the employees of the Corporation on the appointed day under s. 11 1 , they initially carried with them their original terms and companyditions of service, and this state of affairs companytinued until the Order was issued on the 30th December, 1957. As we, have already seen, the provisions of this Order provide for the terms and companyditions of service in matters companyered by the Order. In regard to remuneration, the Order did number companypletely resolve the problem, but it left the determination of the scale of pay and allowances payable to each employee in the light of the Regulations which would be framed by the Corporation in pursuance of the authority companyferred on it by clause 11 of the Order but in regard to the termination of services of the employees, clause 10 has made a specific provision, and wherever the Corporation wants to terminate the services of any Development Officer, clause 10 -has to be companyplied with. It is true that paragraph 4 b of the circular purports to say that in cases falling -under the last part of the said paragraph, the services of the Field Officers will be terminated. If the said portion of paragraph 4 h is interpreted to mean that it companyfers on the Corporation an authority to terminate the services of the Development Officer independently of clause 10 of the Order, it would be inconsistent with the said clause and would, therefore, be invalid. We are, however, satisfied that the said portion of para 4 h really means that in cases falling under it, the services of the officers companycerned would be liable to be terminated, and that means that the termination of the services of the said officers must be effected in the manner prescribed by clause 10 of the Order. That is how paragraph 4 h and clause 10 can be reasonably reconciled. What we have said about para 4 h is equally true about paragraph 5 of the circular. in regard to the fixation of remuneration, however, the position is that clause 5 of the Order fixes the scales of pay and allowances and leaves it to the regulations to lay down the principles in the light of which each individual case should be judged. It was, therefore, perfectly companypetent to the Corporation to adopt the circular issued by the Managing Director, and in companysequence, lay down the -principles which should be followed in fitting individual officers into the scheme prescribed by clause 5 of the Order. But it is necessary to emphasise that the scope and purpose of fitting the officers obviously is to treat the officers as companytinuing to remain in the category of Development Officers and prescribe their remunerations accordingly. The total amount of remuneration would undoubtedly be determined in the light of the principles prescribed by the circular, but under the guise of fitting in a particular officer in the light of the said principles it would number be open to the Corporation to demote the officer from the grade of Development Officer to a lower grade, that would be beyond the companypetence of the regulations. All that the Regulations can purport to do is to lay down principles for fixing the actual pay and allowances admissible to the Development Officers. That is the direction companytained in clause II of the Order and it is within the limits of the said direction that the principles can be validly laid down by the Regulations. After the remuneration is determined in the light of the principles laid down by the Regulations, if any officer is number inclined to accept the said altered remuneration, occasion may arise for the Corporation to exercise its power under s. 11 2 of the Act and pay him companypensation as therein companytemplated. That, however, is a matter with which we are number companycerned in the present appeals. What we are companycerned with in the present appeals is the validity of the orders terminating the services of the officers on the ground that they are found to be incompetent. If the officers were found to be incompetent in the light of the pro-visions of paragraph 4 h of the circular, their services companyld numberdoubt be terminated, but such termination of services must 1/SCI/64-35 companyform to the requirements of clause 10 a or b of the Order. As we have already seen, it is companymon ground that the impugned orders terminating the services of the respective respondents have number been passed in accordance either with clause 10 a or 10 b , and so, they must be held to be invalid. It is true that in the present proceedings the respondents had claimed relief under Art. 311 2 of the Constitution and had in their writ petitions challenged the validity of the Order and the Regulations. That, however, does number dis- entitle the respondents from claiming the same relief on the alternative basis that though the Order and the Regulations may be valid, the impugned orders whereby their services have been terminated are invalid for the reason that they do number companyply with clause 10 of the Order. Therefore, we are satisfied that the learned Solicitor-General is number justified in companytending that the impugned orders can be sustained under paragraph 4 b of the Circular which has been adopted by the Regulations as annexure thereto. There is one more point which has yet to be examined. In regard to the case of Haridas Roy who is the respondent in A.No. 917 of 1963, the learned Solicitor-General has companytended that the order terminating his services is valid either under para 4 h of the circular or under s. 11 2 of the Act. Haridas Roy was originally employed by the Hindustan Co-operative Insurance Society Ltd., before the appointed day as an Inspector of Agents. After the Corporation took over the companytrolled business of the said Insurance Co., he was appointed as a Field Officer under the Order, and the order of his appointment was companymunicated to him on the 15th February, 1958. It appears that on the 9th August, 1958, he was told that his case had been companysidered by the Zonal Committee and it had been decided to absorb him in the office as an Assistant on the emoluments mentioned in the order. Haridas Roy declined to accept this assignment and stated that he wanted to companytinue as a Field Officer as before. Thereupon, his services were terminated by an order dated the 18th September, 1958. In this letter, Roy was told that his case had been carefully companysidered by the Zonal Committee and he was offered ex-gratia to be absorbed on the administrative side as an Assistant since he refused to accept that assignment, his services were terminated on payment of one months salary in lieu of numberice less deductions, if any. This letter also told Roy that there were numberextenuating circumstances in his case and his work was found to be of very poor quality. It would be numbericed that the Corporation presumably examined the performance of Roy in the light of the principles laid down by the relevant provisions in the circular and held that his case fell under the last part of paragraph 4 h of the said circular. That only means that having regard to his poor -performance Roy became eligible to be dealt with under clause 10 of the Order. It was number open to the Corporation to require Roy to accept an assignment in a lower or different category. What the regulations are authorised to do is merely to determine his salary in the category of Development Officers, and so, we do number see how the order terminating his services because he refused to take an assignment as an Assistant can be justified. It would have been open to the Corporation to fix Roys salary at the minimum in the grade prescribed by clause 5 of the Order and if he had refused to take it, an occasion may have arisen for the operation of s. 11 2 of the Act. Therefore, we are satisfied that the case of Roy cannot be distinguished from the cases of other respondents in the present group of appeals. The result is, the orders passed by the High Court are companyfirmed, and the appeals are dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPEALS Nos. 439 To 451 OF 1961. Appeals by special leave from the judgment and order dated August 1, 1958, of the Punjab High Court in Civil Revisions Nos. 229 to 241 of 1953. M. Sikri, Advocate-General for the State of Punjab, N.S. Bindra and P.N. Sachthey, for the appellants. K. Kapur, K.K. Jain for B.P. Maheshwari, for respondent No. 1 A in C.A. No. 439/61. Sardar Singh, for respondents Nos. 2 A , 3 A 4 A , 5,6,7,8 A ,9,10,11,12, and 13 A . Daulat Ram Prem and R.N. Sachthey, for respondent No. 13 B Union of India . November 15, 1963. The Judgment of the Court was delivered by AYYANGAR J.--Section 13 of the Displaced Persons Debts Adjustment Act, 1951 Central Act LXX of 1951 which will be referred to hereafter as the Act, enacts Claims by displaced creditors against persons who are number displaced debtors. At any time within one year after the date on which this Act companyes into force in any local area, any displaced creditor claiming a debt from any other person who is number a displaced person may make an application, in such form as may be prescribed, to the Tribunal within the local limits of whose jurisdiction he or the respondent or, if there are more respondents than one, any of such respondents, actually and voluntarily resides, or carries on business or personal works for gain, together with a statement of the debt owing to him with full particulars thereof The respondents in each of these 13 appeals, which have been companysolidated for hearing are displaced creditors and the point arising for decision in them is whether they companyld make a claim under this provision against the State of Punjab. A petition claiming such relief was filed by the respondent in Civil Appeal 439 of 1961 before the Subordinate Judge, Amritsar who was the Tribunal created under the Act for the purpose of receiving claims under s. 13 and, similarly, the companytesting respondents in the other 12 appeals 440-451 of 1961 made similar claims before the Subordinate Judge, Hissar. Immediately the claims were filed and numberices issued to the State of Punjab, a preliminary objection to the maintainability of the applications was raised by the State and the Tribunal at Amritsar passed an order on May 7, 1953 rejecting the preliminary objection and holding that on a proper companystruction of s.13 the claim was maintainable before it. Similar objections were also raised before the Subordinate Judge, Hissar who, by orders passed on May 25, 1953, similarly over-ruled the preliminary objections and held that the claims were maintainable before him. The State thereafter filed revisions in all the 13 cases to the High Court of Punjab. These petitions came in the first instance before a learned Single Judge who directed that they should be placed before a Division Bench and the two learned Judges companystituting the Division Bench after referring briefly to the arguments urged on behalf of the State in support of their companytention that the State was number a person against whom a claim companyld be made under s. 13 of the Act, expressed their opinion that the matter deserved to be decided by a larger Bench and the cases were thereupon placed before the Chief Justice for companystituting a Full Bench for deciding the point of law which was formulated in these terms Whether an application under s.13 of the Displaced Persons Debts Adjustment Act, 1951 is number maintainable against the State of Punjab. A Full Bench of three Judges accordingly heard arguments upon the point raised and held by a unanimous judgment that the applications were maintainable and in doing so over- ruled two earlier decisions which had taken a companytrary view. The revision petitions were thereafter posted for final hearing before the learned Chief Justice who had originally heard them as a Single Judge and who, giving effect to the views expressed by the Full Bench, dismissed them. The State of Punjab thereafter applied to this Court for special leave and this being granted, the appeals are number before us. As would be seen from the foregoing, the only question that arises for companysideration is whether under s. 13 of the Act a displaced creditor companyld make a claim against the Government either of the State or of the Union, subject to the limitation of one year referred to in the opening words of the provision. It is number in dispute that each one of the companytesting respondents is a displaced person number is it the companytention that the State is a displaced person. These two matters being put aside,, the submission of the appellant in brief is two fold 1 that what is claimed in the applications filed against the State is number a debt within the definition of the term in the Act to be presently referred to and 2 that even if it be held that the sum claimed is a debt the same is number being claimed from a person of whom it companyld be said that he or it actually and voluntarily resides or carries on business or personally works for gain. Both these arguments stem from a single postulate and that is that the State is number within the scope of the enactment, number being named expressly or by necessary implication, and hence is number bound in respect of the liabilities, if any which the respondents might have against it by the provisions of the Act, and therefore is number subject to the jurisdiction of the tribunals created by the Act. It is the further companytention that far from the intention of the enactment being to bind the State, the language that it employs and the provisions that it enacts, both from the point of view of the positive provisions as well as the omissions, tend strongly to establish that the State was outside the Act. These submissions were supported by an elaborate and able argument which companyered a very wide ground of companystitutional law and general juries prudence which we shall numberice and deal with, in their proper place. It would be seen from this brief statement of the points involved that numberhing very much turns on the facts of the case. We would, however, set out the facts in one of the appeals, Civil Appeal 439 of 1961, merely as illustrative of the type of claims involved in these appeals. We should, however, hasten to add that in regard to most of these applications made by the respondents to the Tribunal there is a dispute about the facts themselves and about the genuineness and the quantum of the claim which have number yet been investigated, since only the preliminary objection to the maintainability of the applications has been decided and number the merits of the claims or the defence. In Civil Appeal 439 of 1961 the facts as stated in the application were briefly as follows The respondents are M, s. Okara Grain Buyers Syndicate Ltd. They were originally carrying on business in Okara in District Montgomery of the undivided Punjab number in Pakistan. The Government of the then undivided Punjab instructed the respondents to supply 210 bags of imported maize to M s Anil Starch Products Ltd., Ahmedabad in August 1947. The respondents accordingly carried out these instructions and dispatched the goods by train. Delivery of the same was taken by M s Anil Starch Products. Subsequent to the partition of India the respondents transferred their place of business from Okara to Amritsar and the Company was duly registered with the Registrar of Companies in the State of Punjab. In July 1948 after the respondents moved over to Amritsar, they submitted to the State Government their bill for the value of the maize supplied, being a sum of Rs. 3059/9/-. The respondents were then informed that the Anil Starch Products had made payment of the said sum of Rs. 3059/9/- to the Director-General of Food Supplies. East Punjab in or about October-November, 1948. This was brought to the numberice of the Government of the State of Punjab which was required to make the payment to the respondents but as numberpayment was made, they made an application against the Government under s. 13 of the Act to the Subordinate Judge who was companystituted as the Tribunal under the Act. In this they claimed payment of Rs. 3059/9/- together with interest at 6 from the 15th August, 1947 till the date of the application. We might mention that it was number in dispute that under the relevant companystitutional instruments to which we shall refer later, if the claim were true, it would be enforceable by suit against the appellant-State. As stated earlier, numberhing turns in these appeals on the merits of the claim or about the defence to it on the merits by the State, but we are only companycerned with the preliminary objection to the maintainability of the application based upon the provisions of the Act on the ground that what is claimed from the Government of the State is number a debt within the Act and that the State of Punjab is number a person against whom an application under s. 13 of the Act companyld be made. As a step leading to the companysideration of these submissions it would be necessary to advert to and read certain of the provisions of the Act which have a bearing on the matter in companytroversy. Section 2 companytains the definitions of the terms used in the Act and it enacts Definitions.-In this Act, unless the companytext otherwise requires.-- 6 debt means any pecuniary liability, whether payable presently or in future, or under a decree or order of a civil or revenue companyrt or otherwise, or whether ascertained or to be ascertained, which- c is due to a displaced person from any other person whether an- displaced person or number ordinarily residing in the territories to which this Act extends but does number include any pecuniary liability due under a decree passed after the 15th day of August, 1947, by any companyrt situate in West Pakistan or any pecuniary liability the proof of which depends merely on an oral agreement to quote only what is material for these appeals. A definition of the expression displaced person used in cl. c above is to be found in sub s. 10 which reads 2. 10 displaced person means any person who, on account of the setting up of the Dominions of India and Pakistan, or on account of civil disturbances or the fear of such disturbances in any area number forming part of West Pakistan, has, after the 1st day of March, 1947, left, or been displaced from, his place of residence in such area and who has been subsequently residing in India, and includes any person who is resident in any place number forming part of India and who for that reason is unable or has been rendered unable to manage supervise or companytrol any immovable property belonging to him in West Pakistan, but does number include a banking companypany, Special provisions have been made in the Act in regard to claims due to displaced banking companypanies and the phrase displaced bank is, by sub-S. 7 , stated to mean 2. 7 Displaced bank means a banking companypany which, before the 15th day of August, 1947, carried on the business of banking, whether wholly or partially, in any area number forming part of West Pakistan and is declared to be a displaced bank within the meaning of this Act by the Central Government by numberification in the Official Gazette Sub-section 8 companytains the definition of displaced creditor which it states means 8 . Displaced creditor means a displaced person to whom a debt is due from any other person, whether a displaced person or number while sub-s. 9 defines displaced debtor and it runs 9 . Displaced debtor means a displaced person from whom a debt is due or is being claimed Sub-section 12 defines Tribunal and it runs 12 . Tribunal means any civil companyrt specified under section 4 as having authority to exercise jurisdiction under this Act There are, however, some substantive provisions which have a bearing on the proper companystruction of S. 13, but we hall defer reference to them at this stage. On the terms of S. 13 of the Act set out earlier, the matters in companytroversy may be stated thus Starting from the premise, as to which there is numbercontest, that the respondent is a displaced person, the questions to be companysidered are 1 Is he a displaced creditor? This would, having regard to the definition of the term displaced creditor in S. 2 8 , depend upon 2 whether the claim made by him is a debt which Would be the second point for company- sideration viz., is the sum claimed as due from the State a debt within the meaning of s. 2 6 c and lastly 3 Would the State be any other person within s. 13? Now, what is invoked by the learned Advocate General is the well-known rule of companystruction which in the phraseology which is apt to the companystitutional set up in the U.K. is expressed in the proposition that the Crown is number bound by a statute unless it appears that it is brought within it by express words or by necessary intendment. We shall in due companyrse companysider the scope of this rule of companystruction which has been held by this Court to be applicable to the interpretation of Indian statutes both are as well as post- Constitution, but at this stage it is sufficient to mention three matters in relation to it. The first is that the expression Crown or King in the rule has to be understood as referring to the Executive Government of the State in the companytext of our Constitution. If authority were needed for what we companysider so obvious a proposition it is to be found in the judgment of Griffith, C.J. in Roberts v. Ahern . The next is that it is companymon ground that there is numberexpress mention of the State or the Government of the State in the Act number under companysideration. Lastly, the rule is merely one of companystruction which raises an initial presumption in its favour, number any hard and fast rule. it is a rule intended to give effect to the intentions of the legislature and companysequently if there is either in the purpose of the Act or in its provisions a manifestation of a clear intention to the companytrary. the presumption would be rebutted and the State would be bound. There being, in the cases before us, numbercontention that there is any lack of legislative power for the Union Parliament to bring in the debts due to or owing by the Government of the State and the Union within the ambit of the enactment, the whole question is whether by the provisions it has enacted Parliament has manifested a clear intention to include these debts also within the scheme of the Act. 1 1 C.L.R. 406 at p. 418. As preliminary to the detailed companysideration of the provisions of the Act, it would be useful to appreciate the historical background of this legislation which seeks to companyfer certain substantive and adjectival benefits on persons, who owing to the situation created by the partition of the companyntry in 1947 were forced to migrate from what is number West Pakistan into the present State of Punjab. Prior to partition, under s. 176 of the Government of India Act, 1935 the Provincial Government of the Punjab companyld be sued by the name of the Province in regard to claims arising against the State on companytracts entered into by it. When the partition of India was effected and the State of the Punjab was divided between Pakistan and the rest of India, provision had necessarily to be made in regard to the claims which persons had against the former province of undivided Punjab. This was effected by the Indian Independence Rights, Property Liabilities Order, 1947 which in its 8th paragraph dealt with companytracts entered into by the Governor-General before the 15th August, 1947 the appointed day as well as by the undivided province of the Punjab. Paragraph 8 3 ran 8. 3 Any companytract made on behalf of the Province of the Punjab before the appointed day shall, as from that day,- a if the companytract is for purposes which as from that day are exclusively purposes of the Province of East Punjab, be deemed to have been made on behalf of that Province instead of the Province of the Punjab and b in any other case be deemed to have been made on behalf of the Province of West Punjab instead of the Province of the Punjab and all rights and liabilities which have accrued or may accrue under any such companytract shall, to the extent to which they would have been rights or liabilities of the Province of the Punjab, be rights or liabilities of the Province of East Punjab or the Province of West Punjab, as the case may be it was number disputed that in regard to the claims which were the subject of the applications from which the appeals before us arise, if tenable on the merits, would be claims which companyld be properly made against the State of Punjab. Reading this provision in company.junction with Art. 300 of the Constitution the result would be that if a suit for enforcing the claim were filed against the appellant State apart from any companytention on the merits or based on any plea of limitation, there companyld be numberdefence to the suit, save that under procedural law of India as enacted in the Civil Procedure Code, as understood by a long companyrse of decisions interpreting the provisions of the Code, the suit would have to be filed in the Court having territorial jurisdiction over the area where the cause of action ?or the suit arose. Very soon after partition the Indian legislature enacted the Displaced Persons Institution of Suits Act, 1948 which re- ceived the assent of the Governor-General- on September 4, 1948. It was a temporary enactment which was to be in force for three years and it replaced an earlier ordinance of the same name--Ordinance XVIII of 1948 companytaining identical provisions. Its principal object was to provide for and validate certain suits which had been instituted in India, though the cause of action therefore had arisen in territories which became Pakistan and for extending the period of limitation for the institution of suits by displaced persons . Section 4 of the enactment which companystituted its companye ran Notwithstanding anything companytained in section 20 of the Code of Civil Procedure, 1908 V of 1908 or in any other law relating to the local limits of the jurisdiction of Courts or in any agreement to the companytrary, a displaced person may institute a suit in a Court within the local limits of whose jurisdiction he or the defendant or any of the defendants, where there are more than one at the time of the companymence- ment of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, if- the defendant, or where there are more than one, each of the defendants, actually and voluntarily resides or carries on business, or personally works for gain in India and is number a displaced person the cause of action, wholly or in part, arises or has arisen in a place number situate within the territories of Pakistan the Court in which the suit is instituted is otherwise companypetent to try it and the suit does number relate to immovable property. At the time when this enactment lapsed on the expiry of the period of 3 years which was its life, came the Act which was a companyprehensive piece of legislation designed to redress number merely the procedural difficulties to obviate which was the main object of the temporary Act of 1948, but the enactment of substantive provisions to alleviate the hardships of those who after suffering, in most cases, grievous loss of property in Pakistan were forced to migrate to the Punjab. Pausing here, we might mention, and there was numberdispute as to this, that so far as private individuals i.e., all parties other than the Government of the Union or of the State, were companycerned, the enactments of 1948 and 1951 effected the necessary alterations in the procedural law as to the forum to which displaced persons companyld resort in which proceedings should be instituted to overcome the difficulties companysequent on the entire cause of action having arisen in Pakistan. The companytention of the appellant-State before us was that as regards causes of action against the State, the matter was left where it was. The judgment of the Full Bench of the High Court negativing this companytention is an elaborate one, but its reasoning may be summarised as resting on the following postulates unless there was an explicit exemption of the State from the operation of any particular statute, the State was bound by its provisions, 2 that the object of the Displaced Persons Institution of Suits. Act of 1948 and the present Act was to supplement the Independence Liabilities Order, 1947 and to furnish the adjectival relief to the substantive rights companyferred by it against the State, 3 that unless the companystruction companytended for by the respondent was accepted, most persons who had claims against the State of the type companytemplated by para 3 of the Independence Liabilities Order, 1947 would be remedyless-a circumstance which would be repugnant to the basic idea underlying the Indian Independence Rights, Property Liabilities Order, 1947 . The learned Advocate-General companytested the companyrectness of each one of these and submitted to us an elaborate argument which may be summarised thus This Court has, in Director of Rationing and Distribution v. The Corporation of Calcutta Ors., 1 accepted as companyrect the rule of companystruction adopted in the K. that the State is number bound by a statute unless it is so provided in express terms or by necessary implication. Applying this principle of interpretation to the terms of the Act, far from the State being expressly named as being bound, there are indications arising from the nature and description of the persons brought within the scope of the enactment which clearly exclude the State and the obligations of the State from its purview. The Act was preceded by the Displaced Persons Suits Act 1948 which employed substantially the same phraseology as the Act number under companysideration. The scope of the earlier Act, viz., the liability of the Government was the subject of adjudication before the High Court of Punjab in M s Nagi Bros. v. The Dominion of India 2 , where it had been held that the provisions of its s. 4 was held number to permit suits against the Dominion of India for the reason that the State was number a person within its terms. The re-enactment of the law, on the expiry of the Act 1 1961 1.S.C.R. 158. I.L.R. 4 Punjab 358. of 1948, adopting substantially the same phraseology in s. 13 and other relevant sections to indicate the person against whom the claim companyld be made was therefore a legislative companyfirmation of that ruling and a strong indication that Parliament intended the same result. Lastly, the hardship which might be caused in cases where claimants might be left without remedy in case the companystruction for which he companytended was accepted, must in the nature of things be in a few marginal cases at the most, and even if they were more widespread, would number by itself be a factor which companyld weigh either to rebut the presumptive rule that statutes do number bind the State, or the other argument arising from legislative companyfirmation of previous judicial companystruction, particularly when according to him numberambiguity existed in the companystruction of the Act or the language employed in its various relevant provisions. We shall number proceed to deal with the submissions in the order in which we have set them out. The learned Advocate- General is right when he says that this Court in Director of Rationing and Distribution v. The Corporation of Calcutta and Ors. 1 has accepted the companytinued applicability of the principle of companystruction of statutes laid down by the Privy Council in Province of Bombay v. Municipal Corporation of the City of Bombay. 2 In the case of Director of Rationing , s. 386 1 of the Calcutta Municipal Act forbade any person to use or permit to be used any premises for the purposes named otherwise than or in companyformity with the terms of the licence granted by the companyporation. The question that was companysidered by this Court was whether the Director of Rationing representing the Food Department of the Government of West Bengal was subject to this provision. The High Court of Calcutta had held that in the absence of any provision in the enactment exempting the Government from the operation of s. 386 the Government of West Bengal as well 1 1961 1 S.C.R. 158 2 1946 L.R. 73 I.A. 271. 1/SCI/64-26 as the Director of Rationing were also bound. It was from this decision that the appeal was preferred to this Court. This Court allowed the appeal and held that the decision of the Privy Council in Province of Bombay v. Municipal Corporation of the City of Bombay . laid down the companyrect rule of interpretation of statutes and that the companying into force of the Constitution did number make any difference as regards the applicability of that rule. Sinha C.J. observed The rule of interpretation of statutes adopted in England and applied by the Privy Council to an Indian statute in Province of Bombay v. Municipal Corporation of the City of Bombay 1946 L.R. 73 I. A. 271 that the State is number bound by a statute unless it is so provided in express terms or by necessary implication, is still good law. The next question to be companysidered is the scope of this rule of companystruction. In this companynection learned companynsel for the respondent drew our attention to the following paragraph It is well-established that the companymon law of England is that the Kings prerogative is illustrated by the rule that the Sovereign is number necessarily bound by a statutory law which binds the subject. This is further enforced by the rule that the King is number bound by a statute unless he is expressly named or unless he is bound by necessary implication or unless the statute, being for the public good, it would be absurd to exclude the King from it. Blackstones Commentaries, Vol. 1, 261-262 accurately summed up the legal position as follows- The King is number bound by any act of Parlia- ment. unless he be named therein by special and particular words. The most general words that can be devised affect number him in the least, If they may tend to restrain or diminish 1 1946 L.R any of his rights or interests. For it would be of most mischievous companysequence to the public, if the strength of the executive power were liable to be curtailed without its own express companysent by companystructions and implication of the subject. Yet, when an act of Parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does number interfere with the established rights of the crown, it is said to be binding as well upon the king as upon the subject and, likewise, the king may take the benefit of any particular act, though he be number specially named. Quoted at p. 355 of Holdsworth, A History of English Law, Vol.X italics ours . Based on this passage, particularly the words italicised, his submission was that the Act number for interpretation is one enacted for the public good and that companysequently the presumption would be that the executive government was bound by it. We companysider that the passage extracted is number capable of that companystruction. It has to be read number in vacuo and divorced from the rest of the judgment but in companyjunction with the express approval of the rule of companystruction as explained by the Privy Council in Province of Bombay V. Municipal Corporation of the City of Bombay - Lord du Parcq dealt with the submission regarding statutes enacted for the public good being exceptions to the rule in these terms It was companytended on behalf of the respondents that whenever a statute is enacted for the public good the Crown, though number expressly named, must be held to be bound by its provisions and that, as the Act in question was manifestly in. tended to secure the public welfare, it must bind the Crown. This companytention, which did number meet with success in the High Court, was again raised before their Lordships. The proposition which the respondents thus sought to maintain is supported by early authority, and is to be found in Bacons Abridgment and other text- books 1 1946 L.R. 73 I.A, 271 but in their Lordships opinion it cannot number be regarded as sound except in a strictly limited sense. Every statute might be supposed to be for the public good, at least in intention, and even when, as in the present case, it is apparent that one object of the legislature is to promote the welfare and companyvenience of a large body of the Kings subjects by giving extensive powers to a local authority, it cannot be said, companysistently with the decided cases, that the Crown is necessarily bound by the enactment. We companysider that the principle here explained should also be deemed to have been approved of and accepted by this Court in the Director of Rationing case In another passage in the same judgment Lord du Parcq explained the scope and ambit of the rule which have in terms relevance to the question arising in these appeals. The learned Lord said The general principle to be applied in company- sidering whether or number the Crown is bound by general words in a statute is number in doubt. The maxim of the law in early times was that numberstatute bound the Crown unless the Crown was expressly named therein But the rule so laid down is subject to at least one exception. The Crown may be bound, as has often been said, by necessary implication. If, that is to say, it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions. He added a little later In the present case the High Court disposed of the submission by a finding that, on the material before them, it was number shown to be for the public good that the Crown should be bound by the Municipal Act. This is, perhaps, number a wholly satisfactory way of dealing with the 1 1961 1 S.C.R. 158. respondents companytention, which was, number that the companyrt must companysider whether it is for the public good that the Crown should be bound by a particular Act, but that wherever an Act is for the public good it must be taken to bind the Crown. Their Lordships prefer to say that the apparent purpose of the statute is one element, and may be an important element, to be companysidered when an intention to bind the Crown is alleged. If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound In the view we take of the companystruction of the provisions of the Act before us, in the light of the principles of companystruction formulated by Lord du Parcq, we do number companysider it necessary to examine whether there are any further limitations, qualifications or exceptions to the rule as applied to Indian statutes as have been accepted in the United Kingdom which have been set out and expounded at pages 438-443 of the sixth edition of Craies on Statute Law. We shall therefore proceed to examine the provisions of the Act on the footing that the test for determining whether the Government is bound by a statute is whether it is expressly named in the provision which it is companytended binds it, or whether it is manifest that from the terms of the statute, that it was the intention of the legislature that it shall be bound, and that the intention to bind would be clearly made out if the beneficent purpose of the statute would be wholly frustrated unless the Government were bound. We might here point out that a question such as has number arisen has been before this Court on at least two earlier occasions. In the State of Bihar v. Rani Sonabati Kumari 1 the question raised was whether Government was bound by the provisions of O. XXXIX. r. 2 3 of the Civil Procedure Code where the expression 1 1961 1 S.C.R. 728. used to designate the party subject to be proceeded against was person. This Court held that in the companytext of the other provisions of the Order and the other relevant law, the word person was intended to include in its companynotation the state where it was a party against whom any order of injunction had been passed. A similar question also arose in The State of West Bengal v. The Union of India filed in this Court against the Union of India and others. Sinha, J. speaking for the majority observed The rule that the State is number bound, unless it is expressy named or by necessary implication in the statute is one of interpretation. In companysidering the true meaning of words or expression used by the Legislature the Court must have regard to the aim, object and scope of the statute to be read in its entirety. The Court must ascer- tain the intention of the Legislature by directing its attention number merely to the clauses to be companystrued but to the entire statute it must companypare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs. We shall therefore proceed to companysider the terms of the Act in the light of these principles and see whether debts due to displaced persons by the Government are within its scope, by reason either of the words used or by reason of the same being necessitated by the policy, purpose or provisions of the Act. As regards the phraseology used in the enactment, the submission of the learned Advocate-General was simple. Assuming that on the merits the claims made by the companytesting respondents in the several appeals were enforceable against the State of Punjab he submitted that the earlier legislation referred to by the learned Judges of the Full Bench companyld number and did number materially assist in the companystruction of the Act. Under s. 8 of the Indian Independence 1 1964 1 S.C.R. 371. Rights, Property Liabilities Order, 1947, the right of the respondents would, reading it along with Art. 300 of the Constitution, be merely a right to institute a suit and that companyld be numberjustification for holding that the respondents were companyferred rights to file applications under s. 13 of the Act unless its terms were satisfied. In order that a claim may fall within s. 13 it should satisfy the requirements of the section relating to the nature of the claim 1 it must be to a displaced creditor that, of companyrse, was satisfied in the sense that he was a displaced person to whom amounts were due 2 such a person must be claiming a debt i.e., a debt falling within s. 2 6 c i.e., a debt due from a person ordinarily residing in the territories to which the Act extends, and 3 such person should be one who is number a displaced person. Person is number defined in the Act, but in the absence of any express provision therefor or by reason of any necessary implication arising from the provisions of the Act, the State or the Government of the State would number be a person. This was particularly so in view of the description of the person referred to or described in the relevant provisions viz., of whom it companyld be said that he actually or voluntarily resided or carried on business or personally worked for gain. It is only a person who had these attributes or to whom these characteristics companyld be attributed that was intended to be brought within the term person and as it companyld number be said of the State that it either voluntarily resided or carried on business or personally worked for gain such a body was number within the companytemplation of the expression person against whom claims companyld be made under the section. In support of this submission, based on the companynotation of the term person as used in this Act, we were referred to the decision of the Bombay High Court pronounced by Chagla, C.J. in which the identical question number debated before us viz., the companystruction of s. 13 of the Act was companysidered and it was held that numberapplication under that section companyld be made against the Union Government. The learned Advocate-General naturally relied very strongly on this judgment as companyrectly interpreting s. 13 and his companyplaint was that the learned Judges of the Full Bench of the Punjab High Court when dealing with this question in the proceedings which had given rise to these appeals, were in error in refusing to follow the decision of the Bombay High Court. The decision of the Bombay High Court is reported in Advani Union of India 1 . An application under s. 13 of the Act had been filed before the Judge of the City Civil Court Bombay-the appropriate tribunal under the Act-making a claim against the Union of India. The learned Judge who heard the application took the view that the Union of India was number bound by Act LXX of 1951 and that s. 13 would number enable a displaced person to make an application against the Union of India. The matter was brought up in appeal to the High Court and the learned Judges dismissed the appeal. The reasoning adopted for their companyclusion was exactly identical with the submissions made to us on the companystruction of s. 13 we have summarised a little while before which laid stress on the definition of debt in s. 2 6 c being inappropriate to a debt owed by a State having regard to the description of the person by whom it was payable. The question whether the Union of India would be a person ordinarily residing in the territory of India to which the Act extends was, in this companytext, examined in great detail, on the assumption that the Union of India might be a person i.e., an artificial or a juristic person within the Act. Chagla, C.J. then referred to a long catena of cases in which it had been held that it companyld number be predicated that the Government resided in any place or that it carried on any business in any particular place. It was, therefore, held that the claim made was number a debt under s. 2 6 c and therefore the application was number maintainable. We see force in the submission of the learned Advocate- General and if the matter bad to be decided solely on the basis of the expressions used to define the word debt I L.R. 1955 Bom. 970. and the description of the person against whom proceedings companyld be taken under s. 13 of the Act, there would undoubtedly be grave difficulties in the way of accepting the view that person was intended to include the Government of the Union or of the State. But the matter does number stop here, and the question depending, as it is, on the intention of the legislature cannot be answered without an examination of the provisions and purposes of the Act for ascertaining as Lord du Parcq said, whether its beneficent purpose would be wholly frustrated unless the Crown were bound. It was the same enquiry that was envisaged by this Court when it said in the West Bengal suit 1 The Court must ascertain the intention of the legislature by directing its attention number merely to the clauses to be companystrued but to the entire statute it must companypare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs. Before, however, we do so, it is necessary to advert to an argument addressed to us by the respondent that the expression person used in the Act must be held to include the State, inasmuch as number merely natural persons but artificial and juristic entities like companypanies and companyporations as well as unincorporated bodies are expressly brought within the Act. In this companynection strong reliance was placed on the definition of displaced person according to which only banking companypanies were excluded thus indicating that other companypanies were within it. If companypanies other than banking-companies, besides firms and associations of persons were included in the word person it was submitted for the respondent, there was numberanomaly or impropriety in including the State also as an entity which companyld be companyprehended by the word person. It was urged that if the reason for excluding the State from the companynotation of the expression person was that numberactual or 1 1964 1 S.C.R. 371. voluntary residence companyld be attributed to it, the same would equally apply to companypanies, as well as firms and associations of persons in regard to whom numberdoubt was cast on their being included within the scope of the Act. In this companynection it was point-,- out that it was only in a very numberional or artificial sense that residence companyld be attributed to artificial persons like firms or unincorporated associations or to companyporations, the submission being that if these bodies companyld be included there was numberreason why the companycept of numberional residence companyld number be extended to a juristic entity like a State. The learned Advocate-General submitted to us an elaborate and erudite argument as to whether the State was a companyporation in any sense, the companyclusion which he desired us to draw being that though the State was a body politic, it had number the characteristics of a companyporation. In this companynection he referred us to various writers on Public International Law and on Political Science and to certain decisions of the American Courts. We do number, however, feel called upon to examine these submissions and pronounce upon their companyrectness in view of the companyclusion we have reached on a companystruction of the provisions of the Act. We would, however, make two observations 1 that the mere fact that certain artificial entities like companyporations are brought within the scope of the Act, would number by itself rebut the presumptive rule of companystruction that the State is number bound by a statute unless it is brought within its scope expressly or by necessary implication, 2 it would number be companyrect to say that the State is number a companystitutional or even juristic entity for the reason that it does number partake the characteristics of or satisfy in whole, the definition of a companyporation. The State is an organised political institution which has several of the attributes of a companyporation. Under Art. 300 of the Constitution, the Government of the Union and the Government of a State are enabled to sue and be sued in the name of Union of India and of the Government of the State, as the case may be. It would number, therefore, be improper to speak of the Union and the State as companystitutional entities which have attributes defined by the Constitution. From the above it follows that the respondent does number gain any advantage for the decision of the matter number under debate by being able to establish that the State or the Government of a State is an entity number the appellant by demonstrating that the State is number a juristic person of the same type as a companyporation. We do number therefore propose to deal any further with this point. We shall number proceed to detail the substantive provisions of the enactment which bear upon the question number at issue. That it was a beneficent piece of legislation enacted to afford relief to persons who had suffered displacement by reason of the partition is number in dispute. The hardship which such persons suffered either as creditors or as debtors was the subject of alleviation by the Act. In broad outline without going into minute details the substance of the remedial provisions was this As regards displaced creditors the relief afforded to them was by permitting them an inexpensive procedure for enforcing their claims together with prescribing the forum which made substantial departures from the principles which underlay s. 20 of the Civil Procedure Code which obviously companyld number wholly fit into the problems created by partition. The relief afforded to displaced debtors was naturally more extensive. Besides certain special provisions in respect of secured debts there were elaborate provisions for scaling down debts due to unsecured creditors, the principle underlying being that the debtor should be left with enough to live, while the creditors should between themselves take the entirety of the property save that which was left to the debtor. There was a sort of distribution of the assets among the proved creditors. The benefits provided for the displaced debtor and to the displaced creditor were an integrated scheme the one running into the other. Chapter 11 in which s. 13 occurs is headed Debt Adjustment Proceedings. It opens with s.5 which deals with applications by displaced debtors for the adjustment of their debts. That section runs, to quote only the material words A displaced debtor may make an application for the adjustment of his debts, to the Tribunal within the local limits of whose jurisdiction he actually and voluntarily resides, or carries on business or personally works for gain. Sub-section 2 specifies what the application shall companytain and among the matters to be included in the application are 1 a schedule companytaining full particulars of all his debts, whether owed jointly or individually, with the names and addresses of his creditors and his joint- debtors 2 a schedule of all his properties, both movable and immovable, including claims due to him. The purpose of these schedules would be apparent from s. 32 which deals with the manner in which the debts of a displaced debtor are to be scaled down and to which we shall draw attention later. Sections 6 to 9 lay down the procedure regarding applications made under s. 5, the object of the procedure being the ascertainment of the total of the debts owing by a displaced debtor and the total amount of his assets, the relief which the Act grants on the basis of this ascertainment being the subject matter of later provisions. Sections 10 to 14 deal with the companyverse case of claims by displaced creditors first against displaced debtors and next against debtors who are number displaced debtors. In their case also the procedure is directed to the ascertainment of the genuineness and the quantum of the claims in the presence of the interested parties. The interrelation between these two sets of provisions is perhaps brought out by s. 11 which enacts Procedure on creditors petition.- Where an application under section 10 has been made, the Tribunal shall cause numberice thereof to be served on the displaced debtor calling upon him either to show cause, if any, against the application or to make an application on his own behalf under section 5. If, in response to a numberice under sub- section 1 ,,the displaced debtor makes an application in accordance with the provisions of section 5, the Tribunal shall proceed further in the matter as if it had companymenced with an application by the displaced debtor under section 5, and all the other provisions of this Act shall apply accordingly but, if the displaced debtor does number choose to make any such application, the Tribunal shall, after companysidering such evidence, if any, as may be produced before it, determine the claim and pass such decree in relation thereto as it thinks fit. The period of limitation specified in subsection 1 of section 5 in respect of an application by a displaced debtor shall number apply to an application made under sub-section 2 . It was features of this type that we had in mind when we said that the provisions regarding the relief to displaced debtors and displaced creditors had to be read together since the Act dealt with them as one integrated whole-the one running into and determining the other. Some of the reliefs to which displaced debtors making applications under ss. 5 and 11 2 would be entitled are dealt with in ss. 15, 16 and 17 but to these it is number necessary to refer as they are number material for the purposes of the point arising for decision. What is, however, of more immediate relevance are the provisions in Ch. III in which s. 32 occurs which is headed Reliefs. Section 29 which is the first of the sections in this Chapter and those following it set out the reliefs which shall be available to displaced debtors. They include s. 29-Cesser of accrual of interest, s. 30--Exemption from arrest or imprisonment for the recovery of any debt, and s. 31 --- an enlargement of the scope s. 60 of the Civil Procedure Code as regards property which shall number be liable to attachment in the case of displaced debtors. Next, we companye to s. 32. This section runs Scaling down of debts.- 1 Where, on the application of a displaced debtor under section 5 or sub-section 2 of section 11, the Tribunal has determined the amount due in respect of each debt in accordance with the provisions of this Act, it shall proceed to determine the paying capacity of the debtor. If the paying capacity of the debtor is equal to or exceeds the aggregate sum of all the debts so determined exclusive of any debt in respect of which the creditor has elected to retain the security in accordance with the provisions of section 16 , the Tribunal shall pass a decree for the aggregate sum so determined, specifying the amount due to each creditor and shall allow repayment thereof in instalments, in accordance with the provisions companytained in section 33, unless for reasons to be recorded it directs otherwise. If the paying capacity of the debtor is less than the aggregate sum referred to in sub-section 2 , the Tribunal shall divide the decree into two parts and provide in the first part thereof hereinafter referred to as the first part of the decree that the sum equivalent to the paying capacity shall, subject to the provisions companytained in section 33, be realised from the assets of the debtor in India, and provide in the second part thereof hereinafter referred to as the second part of the decree that the balance shall be realised, subject to the provisions companytained in subsection 6 , from any companypensation which the debtor may receive Provided that if numbersuch companypensation is received, the balance shall be irrecoverable. A creditor who has elected to retain his security under section 16 shall have numberright to realise any money due to him from the assets of the debtor in India, but numberhing in this sub-section shall affect any of the rights given to him by section 16. A creditor shall have the right at any time at least six months before the receipt by the debtor of companypensation to apply that the whole or the balance of the first part of the decree, in so far as any debt due to him is companycerned, may be added to the second part of the decree, and thereupon he shall have numberright to realise any money from the assets of the debtor in India. For the purposes of this Act, the amount payable from the companypensation for the satisfaction of the second part of the decree shall be that amount as bears to the aggregate amount of all the debts in the second part of the decree including therein. any sum added to it under sub-section 5 and the sum determined in favour of the secured creditor in the manner specified in the proviso to clause a of sub- section 3 of section 16 as the companypensation in respect of the property of the debtor payable to him under the Displaced Persons Claims Act, 1950 XLIV of 1950 bears to the verified claim and the balance of the companypensation, if any, shall be refunded to the displaced debtor. Every instalment paid by the displaced debtor in respect of the first part of the decree and any sum payable from the companypensation in accordance with sub-section 6 shall be distributed rateably amongst the decree-holders, if more persons than one are entitled thereto Provided that the secured creditor who has number elected to be treated as an unsecured creditor under section 16 shall be entitled to a prior charge on the amount payable from the companypensation. Where a displaced person receives companypensation by way of exchange of property, then, subject to the prior charge, if any, of a creditor under section 16, the aggregate sum payable in respect of the second part of the decree shall be a second charge upon the property received by way of exchange bears to the value of the original property verified and valued under the Displaced Persons Claims Act, 1950 XLIV of 1950 . Where a displaced person makes a default in the payment of any instalment fixed in respect of the first part of the decree or does number pay the amount determined in accordance with subsection 4 of section 16 or sub-section 8 of this section for which the first or the second charge may have been created upon the property received by way of exchange the creditor may apply for the execution of the decree by the attachment and sale of the attachable assets of the judgment-debtor or by the sale of the property obtained by way of exchange upon which the charge has been created, as the case may be, and the amount realised by such execution shall be distributed rateably among the decree-holders Provided that numberhing companytained in this subsection shall affect the rights of any charge-holders. For the purposes of this Act, where the companypensation is paid in cash, the amount which shall be available for purposes of satisfaction of the debts in the second part of the decree shall in numbercase exceed seventy-five per cent of the amount of such companypensation and where it is by way of exchange property, the extent of the property which shall be available for the said purposes shall in numbercase exceed seventy-five per cent in value of such property. Explanation.--In this section the expression paying capacity means the aggregate of the market value of all the attachable assets in India of the displaced debtor plus the income which is likely to accrue to him for the next three years succeeding, excluding from the companyputation of such income a sum calculated at the rate of two hundred and fifty rupees a month. It is manifest that the basic idea of s. 32 is as follows When a displaced debtor has made an application under s. 5 or s. 11 2 the Tribunal first ascertains under ss. 5 to 9 the amount of the debt due in respect of each creditor. Next, it proceeds to determine the paying capacity of the debtor and the relief open to the displaced debtor, or expressed in an other way, the reduction in the debt which his creditors must suffer, is directly dependent on the paying capacity companypared with the total indebtedness of the displaced debtor. Now, the question arises how this paying capacity is to be determined. The expression paying capacity is defined by the Explanation to the section as meaning the aggregate of the market value of all the attachable assets in India of the displaced debtor plus the income which is likely to accrue to him for the next three years succeeding, excluding from the companyputation of such income a sum calculated at the rate of two hundred and fifty rupees a month. It needs little argument to show that a debt which has accrued due to a displaced debtor from the State would be an attachable asset in India and if this were so, it is the requirement of s. 32 1 that the Tribunal shall take into account that asset also for determining the paying capacity of the debtor. So far as the Explanation to s. 32 is companycerned, it companyld number be the companytention that the expression attachable assets in India belonging to the displaced debtor should be exclusive of the amounts in regard to which the State is indebted to the displaced debtor. The expression attachable assets would bring in s. 60 of the Civil Procedure Code, and whatever be the limitations on the execution of decrees against Government under s. 82 of the Civil Procedure Code, debts due by the State to a judgment- debtor are certainly attachable. The companytrary companystruction of the words in s. 32 viz., that debts due by the State are number assets besides being inconsistent with the express terms of the Explanation, would also render the entire scheme of scaling down provided for in sub-ss. 2 to 10 infructuous and unworkable. The companyclusion that for the purpose of s. 32 a debt due by the State is within the Explanation and that it has to be taken into account for deter- 1 SCI/64-27 mining the paying capacity would appear to be reinforced by s. 47 which runs in these terms Effect of failure on the part of displaced debtor to disclose certain matters.- Where a displaced debtor has number mentioned in the relevant schedule to his application any debt owing by him or any property, movable or immovable, belonging to him, whether such property is liable to attachment or number liable to attachment at all, numberhing companytained in this Act shall prevent- a in the case of the debt, the creditor from instituting any proceeding for the recovery thereof under any law for the time being in force other than this Act and b in the case of the property, from being attached or otherwise dealt with under any such law. It is manifest that the Property referred to in the schedule prescribed under s. 5 2 iii , the expression attachable assets in the Explanation to s. 32, and the words property movable or immovable in s. 47 must all bear the same companynotation. If a debt due to a displaced debtor is number within s. 5 it companyld number be within the other provisions just number referred to. If that were the proper companystruction, the result would be that the displaced debtor companyld obtain the entire benefit provided for by s. 32 2 and 3 etc. and later if he realised any dues from the State keep the same to himself free of the claims of all his creditors. It is obvious that such a result companyld number have been intended and, therefore, it must be held that such a debt as an asset must be included in the schedule of properties referred to in s. 5 and that so far as s. 32 is companycerned the debts owing by the State to a displaced debtor ought to be ascertained for determining the paying capacity of the debtor and relief afforded to the displaced debtor on the basis that such debts due to him are realisable assets within the scope of the Act. It would follow that the debt due by the Government or by the State is within the Act by necessary implication, because the same is necessary for working out the relief to which a displaced debtor who files an application under s. 5 or s. 11 2 is entitled. We have already made reference to s. 11. Its first sub-section deals with an application by a displaced creditor who seeks to enforce his claim against a displaced debtor. The second sub-section permits the displaced debtor to make an application under s. 5 and the two-the claim and what might be called a cross-claim-have to be companysidered together, and the relief open to the displaced person who might be a debtor or a creditor have to be worked out companyjointly. No doubt, s. 13 is companycerned with claims by displaced creditors against debtors who are number displaced persons as companytrasted with s. 10 under which claims may be made against debtors who are displaced persons. But this cannot make any difference. It is number possible by any principle of companystruction to hold that the debt due by the State to a displaced debtor is within the Act for the purpose of ascertaining the paying capacity of the debtor numberwithstanding the definition of debt in s. 2 6 c but that the State is number within the scope of s. 13 for the purpose of the same liability being ascertained. This is so because for the very purpose of determining paying capacity under s. 32 the genuineness and the quantum of the alleged debt due by the State is the subject of enquiry and adjudication by the identical tribunal which would be companyducting the enquiry and make the decision if the claim were made under s. 13. Adopting, therefore, the very principle for which the learned Advocate-General companytends we companysider that the test formulated by Lord du Parcq in Province of Bombay v. Municipal Corporation of the City of Bombay Its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound, is satisfied in the case of the provisions of the Act number before us. That the Act was passed for the 1 1946 L.R. 73 I.A. 271. beneficent purpose of affording relief to those who owing to the disturbances which followed the partition of the companyntry suffered grievous wrong is number in dispute. What we have stated earlier about the impact of s. 32 on the scheme of the Act which so far as relief to debtors is companycerned companystitutes the companye of the enactment would be wholly frustrated and defeated if the State were number bound by the Act is equally beyond dispute. There is one other aspect also from which the question may be viewed. This is as to whether when a displaced debtor owes a debt to the State he is bound to include that debt in the schedule which he has to file under s. 5 2 i . Now, let us see how if such debts are number to be included, s. 32 would work. The paying capacity would then be determined without reference to such a debt. The other creditors will receive satisfaction in the manner laid down in s. 32 2 3 etc. but that would obviously be on the footing that the debts of the displaced debtor are less than what they really are. When once on the determination of the paying capacity the others receive adjustments there is numberquestion of the government companying in later to disturb that arrangement. What is allowed under s. 32 to the displaced debtor cannot be the subject of any attachment or seizure by government for the payment of debts because s. 3 of the Act enacts Over-riding effect of the Act, rules and orders Save as otherwise expressly provided in this Act, the provisions of this Act and of the rules and orders made thereunder s hall have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force, or in any decree or order of a companyrt, or in any companytract between the parties. Every other law, decree of companyrt having been superseded, the government would be left without remedy to realise its dues. Section 32 companytemplates a balancing of credits and debits with a view to adjust them in a manner companysonant with equity and the justice of the case as felt by the legislature. The entire scheme will go awry and the balance and harmony which are intended to be brought in would be nullified and on the other hand disharmony brought into the working of the Act if the companytention which the learned Advocate-General supports were accepted. Before companycluding, it is necessary to add that before holding that the presumptive rule of the State number being bound by the provisions of any statute has been overborne by necessary implication arising from an examination of its purpose and provisions.we have taken due account of the language used in the Act both in s. 13 as well as in the definition of debt and have arrived at the companyclusion that that language is number intractable number such as to create any insuperable obstacle in the way of such a companystruction. Undoubtedly if s. 13 stood by itself read in companyjunction with the definition of debt in s. 2 6 , the submission that a debt due by Government was number within them might have weight. But there is numberhing in s. 13 which would negative the companystruction at which we have arrived after companysidering the scheme and purpose of the Act. Taking first the terms of s. 13, the companytention that debts due by the Government are number within the scope of the provision, is in ultimate analysis based on the last portion of the section which speaks of actual and voluntary residence and carrying on business number being capable of being attributed to the Government. If, in this companytext, one looked at s. 20 of the Civil Procedure Code it will be found that when it dealt with Companies and artificial persons it was number so much the residence as the situs where the business was carried on that was treated as being relevant for determining the forum, for Explanation II to s. 20 reads A companyporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place, thus departing somewhat from the companycept of numberional residence attributed to artificial bodies like trading company- porations in the law relating to income-tax. Expressed differently s. 13 proceeds on the basis of equating the numberional residence of artificial persons or bodies with the actual residence of natural persons and it is thus that though actual residence companyld number be attributed to companypanies, it is admitted that debts owing by them are within s. 13 of the Act. It is, therefore, obvious that the reference to actual residence in s. 13 is due to the circumstance that primarily natural persons are intended to be included by the use of the words any other person and the qualification of residence was necessary to be added in order to fix the forum in which applications claiming sums due from them ought to be filed. From this, however, it would number follow that every attribute referred to should be satisfied by every person against whom claims companyld be filed. The next question is whether there is any thing which is clearly discernible in s. 2 6 which companyld be held to negative the companystruction of a State being brought within the scope of the enactment. Confining oneself to what is strictly material Debt is defined as a pecuniary liability due to a displaced person from any other person ordinarily residing in the territory to which the Act extends. It was because of the circumstance that such a companydition of residence would number be apt in the case of a State or Government as regards which numberresidence companyld be attributed, that it was said that the debt due by a State was number within the definition. That is, numberdoubt, a weighty argument and if it stood alone its effect companyld be overwhelming, but as against it, it must be numbericed that it is really a part of the definition which has to be applied in the absence of anything to the companytrary in the companytext and if on a companysideration of s. 13 and the other relevant provisions to which we have referred it was the intention of the enactment number to exclude the State from its operation, the definition clause companyld number per se negative such a companystruction. The definition would, in the companytext of the other pro- visions, be read as applying the test of residence or of carrying on business exclusively to natural or artificial persons to whom such companyditions would be apt. The second point urged by the learned Advocate-General was about the legislative companyfirmation of the meaning of the word person as excluding the State. We have already referred to the Displaced Persons Institution of Suits Act, 1948 and the circumstances in which it was enacted and the terms of its s. 4. It is the interpretation which this section received in M s Nagi Bros. v. The Dominion of India - a decision of the High Court of Punjab that forms the basis of the companytention number under discussion. The question that arose for decision was whether the terms of s. 4 companyld be availed of by a displaced person to file a suit against the Union of India, the companytention of the latter being that it companyld be sued only in a companyrt which had territorial jurisdiction over the area where the cause of action arose and that since it companyld number be said to actually and voluntarily reside or carry on business or personally work for gain in any place in India, it companyld number be companyprehended within the term person in s. 4. This companytention was accepted by the Punjab High Court. Under the general procedural law of India, as embodied in the Civil Procedure Code, a suit in respect of a transitory or personal cause of action companyld be filed only a in a companyrt within the territorial jurisdiction of which the cause of action in whole or in part arose, or b in the territorial jurisdiction of the companyrt where a defendant, or if the defendants were more than one by one of them, voluntarily and ordinarily resided or carried on his business vide s. 20 of the Civil Procedure Code . A long line of decisions starting from very early days had companystrued s. 20 of the Civil Procedure Code and had held that the Government either of the State or at the Centre--could number be said to reside ordinarily and voluntarily at any particular place, number to carry on business at any place, with the result that where a suit had to be filed against the Government which was permitted and authorised I.L.R. 4 Punjab 358. by the provisions of the Constitutional enactments to which we have referred, the suit companyld be instituted only in a companyrt with territorial jurisdiction over the place where the cause of action for the suit arose. Kapur, J. who rendered the decision held, following these earlier rulings on the companystruction of the Civil Procedure Code, particularly s. 20 and other like enactments, that the provisions of s. 4 which enabled suits to be filed in India numberwithstanding that the cause of action arose in Pakistan companyld number be availed of by displaced persons to file suits against the Government-of the State or of the Union. The net result of this companystruction was that in cases where numberpart of the action arose within India, numbersuit companyld be instituted against the State or the Union Government numberwithstanding that by the companybined operation of the Independence Liabilities Order, 1947 read with either s. 176 of the Government of India Act, or Art. 300 of the Constitution, as the case may be, a liability was cast on the Government of the State and the Union to make good a claim. This result might be unfortunate but if it was designed, there was numberescape from that companyclusion. The argument of the learned Advocate-General was that when this enactment of 1948 lapsed by efflux of time in 1951, its place was taken by the Act and that as the same word person with the qualifying expressions indicating his or its residence or place of business were repeated in the Act without any specific provision for claims against the State, Parliament must be taken to have affirmed this decision, adopting its reasoning and that companysequently, in any event, the general rule of interpretation about the State number being bound by an enactment in which it is number named expressly or by necessary implication was doubly attracted and reinforced. We are clearly of the view that this argument does number deserve to be accepted. In the first place, we, are companycerned solely with the interpretation of the Act of 1951 and unless there was an. ambiguity it would be impermissible to refer to any previous legislation for companystruing the words in it. The examination we have made of the Act read in companyjunction with the purposes it seeks to achieve which are manifest in its various provisions have led us unmistakably to the companyclusion which we have expressed earlier. In the circumstances, there is numberscope for invoking this external aid to the companystruction of the expressions used in the Act. Secondly, the scope of the two enactments viz., the Act of 1948 and that of 1951 are widely different, and the latter has a definitely more extended scope and is designed to secure substantive advantages to displaced persons which were wholly foreign to the earlier law which was but of very limited scope. Therefore even if the language used in the two enactments were identical -which is number even the case here-the same companyclusion would number necessarily follow having regard to the differing scopes of the two pieces of legislation. It companyld number therefore be said that the two Acts are in pari materia so as to attract the rule relied on. Lastly, the rule of companystruction which is certainly number one of a companypelling nature, is generally adopted in the companystruction of companysolidating enactments where provisions which have appeared in earlier repealed statutes which have received an uniform and accepted judicial interpretation are re-enacted. Obviously that is number the case here. In the circumstances, we companysider it unnecessary to examine whether this solitary decision on the companystruction of s. 4 of the Act of 1948, was companyrect. We have, therefore, numberhesitation in rejecting the second point urged. The last submission was that the learned judges were number right in companysidering that unless the companystruction of s. 13 which they accepted was companyrect, almost the entire body of displaced creditors would be without a remedy in respect of their claims against the Government of the State and the Union. Though the learned Advocate-General started by saying that in every case in which there companyld be a cause of action against the State Government under para 8 of the Indian Independence Liabilities Order, 1947, a suit would lie after partition, even on the basis of s. 20 of the Civil Procedure Code, he had to companycede that in a number of cases the party would be without a remedy. Apart from this admission, we companysider that in a large number of cases the cause of action would have arisen in Lahore where the companytract with the Government of the Province of Punjab was companycluded and it is possible that numberpart of the cause of action might arise in India so as to permit a suit against the Government of the Punjab or of the Union if the provisions of the Civil Procedure determined the forum therefor. In our judgment numberhing turns on the exact proportion of the cases where the party would be without a remedy. If the terms of the enactment were ambiguous and had to be interpreted in the light of the circumstance whether the one companystruction or the other would leave parties without a remedy, then in that event something might depend on whether it was only a marginal case that was beyond the provisions of the Act or the bulk of the cases. That, however, is number the position here. We have arrived at the companystruction of the provisions of the Act, without reference to the hardship which the opposite view might cause to particular displaced creditors. It is for this reason that we say that the question of the relative number of creditors who would suffer hardship is number strictly material for the decision. We have, therefore, thought it unnecessary to examine the precise circumstances in which displaced creditors might or might number be in a position to institute suits against the State Government to enforce claims which fell within para 8 of the Independence Liabilities Order, 1947. In these circumstances, we companysider, though for different reasons that the companyclusion of the High Court was right and that the revision petitions were properly rejected.

Case appeal was rejected by the Supreme Court

Gajendragadkar, J. This is a group of 15 appeals which raise a companymon question about the validity of the orders passed by the appellant Life Insurance Corporation of India terminating the services of its employees who are the respondents in these appeals. The facts which give rise to the present disputes between the parties in all the 15 cases are substantially similar, and so, it would be enough if we state the relevant facts in one of these cases. One of the respondents is Sunil Kumar Mukherjee. He was in the insurance line since June, 1941 and had been companyfirmed in his service by the Metropolitan Insurance Co. Ltd. in March, 1950. Since about 1953, he had been working as Inspector of the said Company, and since March 18, 1955, he was holding the appointment as Inspector at Barrackpore. The appellant which took over the companytrolled business of the Metropolitan Insurance Co. Ltd., terminated the services of Mukherjee by an order passed on the 16th October, 1958. The respondent then moved the Calcutta High Court under Art. 226 of the Constitution and prayed for a writ of certiorari or other appropriate writ or order quashing the said impugned order of discharge passed against him. Sinha J. who heard the writ petition, allowed the petition and directed that a writ in the nature of certiorari quashing and or setting aside the impugned order be issued. A further writ in the nature of mandamus was also issued directing the respondents to the writ petition number to give effect to the said impugned order. To the petition filed by the respondent, he had impleaded eight respondents, the principal amongst them being the appellant Corporation and the Union of India UOI . Aggrieved by the decision of Sinha J. the appellants preferred an appeal under the Letters Patent before a Division Bench of the said High Court Bose C.J. and Debabrata Mokerjee J. who heard the Letters Patent appeal substantially agreed with the view taken by Sinha J. and companyfirmed the order passed by him. The appellants then applied for and obtained a certificate of fitness from the said High Court and it is with the said certificate that they have companye to this Court in appeal. On similar facts, the appellants have brought to this Court the other fourteen appeals, and a companymon question which has been raised by the learned Solicitor-General on behalf of the appellants is that the High Court was in error in holding that the orders of discharge passed respectively against the respondents in these appeals were invalid. Before dealing with the points raised by the appellants in the present appeals, it would be companyvenient to set out the relevant orders passed in respect of the appointment and discharge of the respondent Mr. Mukherjee. When Mr. Mukherjee was appointed a whole-time Inspector by the Metropolitan Insurance Co. Ltd. on the 18th or 19th March, 1955, the terms and companyditions of his employment were companymunicated to him by a document which companytained 14 clauses Annexure A to the W.P. . Clause 13 of this document provided that the appointment was subject to termination without numberice in case he was found guilty of fraud, mis-appropriation, breach of discipline, insubordination, acting detrimental to the interests of the companypany, disloyalty or gross neglect of duty provided, however, that he would be entitled to 30 days numberice if his services were terminated for any other reason. It is thus clear that under the terms and companyditions of Mr. Mukherjees original appointment with the Insurance Co., he was liable to be dismissed for misconduct and was entitled to receive 30 days numberice if his services were terminated for reasons other than misconduct. When the Life Insurance Corpn. took over the business of the Metropolitan Insurance Co. Ltd., an order was issued in favour of Mr. Mukherjee on the 14th February, 1958. By this order it was stated that in terms of Government Order No. 53 1 I.S.N. 1 57 dated 30th December, 1957, he was required to work as a Field Officer. It was also added that he would companytinue to be attached to Barrackpore Branch Office until further orders. This order was issued by the Divisional Manager. Thus, it appears that after this order was given to Mr. Mukherjee, he began to work as a Field Officer by virtue of his appointment under the relevant Government Order. One of the points which we have to companysider in the present appeal is what is the effect of this order of appointment ? On the 16th October, 1958, the impugned order terminating Mr. Mukherjees services was passed. This order said that in terms of section 5 of the Categorisation circular of the 2nd December, 1957, Mr. Mukherjees case was examined by the Special Committee appointed by the Board of the Corporation to review the cases of Ex-Branch Secretaries, etc., and it was added that in accordance with the recommendations of the Committee which had been accepted by the Corporation, it had been decided to terminate his services with immediate effect. Mr. Mukherjee was also told that he would be paid his emoluments up to the current month and one months salary in lieu of numberice. It is the validity of this order which has been successfully challenged by Mr. Mukherjee before the Calcutta High Court, and the learned Solicitor-General companytends that the High Court was in error in upholding Mr. Mukherjees plea. The history of the nationalisation of the Life Insurance business in this companyntry is well-known. On the 19th January, 1956, the Life Insurance Emergency Provisions Ordinance No. 1 of 1956 was promulgated by the President for the purpose of taking over, in the public interest, the management of the life insurance business, pending nationalisation of such business. In due companyrse, Act No. 9 of 1956 was passed which took the place of the original Ordinance and it came into effect on the 21st March, 1956. This A ct was followed by Act 31 of 1956 hereinafter called the Act which was published on the 1st July, 1956. The appointed date under s. 3 of this Act was the 1st of September, 1956. Section 7 of the Act provides that on the appointed day there shall be transferred to and vested in the Corporation all the assets and liabilities appertaining to the companytrolled business of all insurers. That is how the Life Insurance Corporation took over all the assets and liabilities appertaining to the companytrolled business of all the insurers in this companyntry. As a result of this taking over, s. 11 proceeded to make a provision for the transfer of service of existing employees of insurers to the Corporation. For the purpose of these appeals, it is necessary to set out section 11 1 2 . These sub-section read as under - Every whole-time employee of an insurer whose companytrolled business has been transferred to and vested in the Corporation and who was employed by the insurer wholly or mainly in companynection with his companytrolled business immediately before the appointed day shall, on and from the appointed day, become an employee of the Corporation, and shall hold his office therein by the same tenure, at the same remuneration and upon the same terms and companyditions and with the same rights and privileges as to pension and gratuity and other matters as he would have held the same on the appointed day if this Act had number been passed, and shall companytinue to do so unless and until his employment in the Corporation is terminated or until his remuneration, terms and companyditions are duly altered by the Corporation Provided that numberhing companytained in this sub-section shall apply to any such employee who has, by numberice in writing given to the Central Government prior to the appointed day, intimated his intention of number becoming an employee of the Corporation. Where the Central Government is satisfied that for the purpose of securing uniformity in the scales of remuneration and the other terms and companyditions of service applicable to employees of insurers whose companytrolled business has been transferred to, and vested in, the Corporation, it is necessary so to do, or that, in the interests of the Corporation and its policy-holders, a reduction in the remuneration payable, or a revision of the other terms and companyditions of service applicable, to employees or any class of them is called for, the Central Government may, numberwithstanding any thing companytained in sub-section 1 , or in the Industrial Disputes Act, 1947, or in any other law for the time being in force, or in any award, settlement or agreement for the time being in force, alter whether by way of reduction or otherwise the remuneration and the other terms companyditions of service to such extent and in such manner as it thinks fit, and if the alteration is number acceptable to any employee, the Corporation may terminate his employment by giving him companypensation equivalent to three months remuneration unless the companytract of service with such employee provides for a shorter numberice of termination. Then follow an explanation and sub-sections 3 and 4 which are number relevant for our purpose. It would thus be seen that under s. 11 1 , persons who were employed by an insurer wholly or mainly in companynection with his companytrolled business before the appointed day, became the employees of the Corporation as from the appointed day. After they thus became the employees of the Corporation, they held their offices by the same tenure, at the same remuneration and upon the same terms and companyditions and with the same rights and privileges. In other words, on the taking over of the companytrolled business by the Corporation, the employees of the insurers to whom s. 11 1 applied became the employees of the Corporation, but their employment companytinued to be on the same terms and companyditions as before. This state of affairs was to companytinue until the employment of the employee was brought to an end or until his remuneration, terms and companyditions were duly altered by the Corporation. The scheme of s. 11 1 is thus clear. With the transfer of the companytrolled business from the insurer to the Corporation, the employees of the former became the employees of the latter, but they were governed by the same terms and companyditions until they were altered by the latter. The proviso to s. 11 1 shows that if any employee had, by numberice in writing, companyveyed to the Central Government prior to the appointed day his intention number to become an employee of the Corporation, his case was outside s. 11 1 . In other words, such an employee would number become the employee of the Corporation and his case would have to be dealt with apart from s. 11 1 2 . Section 11 2 as it originally stood was substantially modified in 1957, and the plain effect of the provisions companytained in the said sub-section as modified, is that the Central Government is given the power to alter whether by way of reduction or otherwise the remuneration and the other terms and companyditions of service to such extent and in such manner as it thinks fit. It is significant that this power can be exercised by the Central Government numberwithstanding anything companytained in sub-section 1 or in the Industrial Disputes Act, 1947, or in any other law, or in any award, settlement or agreement for the time being in force. It was thought that for a proper functioning of the Corporation it was essential to companyfer upon the Central Government an overriding power to change the terms and companyditions of employees who were wholly or mainly employed by the insurers prior to the appointed day. Having companyferred such wide power on the Central Government, s. 11 2 further provides that if the alteration made by the Central Government in the terms and companyditions of his service is number acceptable to any employee, the Corporation may terminate his employment by giving him companypensation equivalent to three months remuneration unless the companytract of service with such employee provides for a shorter numberice of termination. It is thus clear that in regard to cases which fall under s. 11 2 if as a result of the alteration made by the Central Government any employee does number want to work with the Corporation, he is given the option to leave its employment on payment of companypensation provided by the last part of s. 11 2 . Thus, the scheme of the two sub-sections of s. 11 is clear. The employees of the insurers whose companytrolled business has been taken over, become the employees of the Corporation, then their terms and companyditions of service companytinue until they are altered by the Central Government, and if the alteration made by the Central Government is number acceptable to them, they are entitled to leave the employment of the Corporation on payment of companypensation as provided by s. 11 2 . After the Corporation took over the companytrolled business of insurers under the Act, two circulars were issued by the Managing Director, the first on the 30th September, 1957 and the second on the 2nd December, 1957. These circulars need number detain us at this stage, because, by themselves, they were without any authority in law. However, we would have occasion to refer to the second circular later on. On the 30th December, 1957, an order was issued by the Central Government in exercise of the powers companyferred on it by s. 11 2 of the Act. This order was issued on blue paper and has been described by the High Court as the blue order. We will refer to this order as the order in the companyrse of this judgment. This order was issued because the Central Government was satisfied that for the purpose of securing uniformity in the scales of remuneration and the other terms and companyditions of service applicable to certain classes of employees of insurers, it was necessary to clarify the position by making specific and clear provisions in that behalf. The object of the order was to secure the interests of the Corporation and its policy-holders by making a reduction in the remuneration payable to the employees governed by the order, and effecting a revision of the other terms and companyditions applicable to them. This order was companyfined in its operation to the officers of the insurers who were known as Field Officers and so, the order was named as the Life Insurance Corporation Field Officers Alteration of Remuneration and other Terms and Conditions of Service Order, 1957. It companysists of 12 clauses. Clause 2 defines, inter alia, a Field Officer. In 1962, the designation Field Officer was changed into a Development Officer, though curiously enough the title of the Order still refers to the Field Officer and does number incorporate a companysequential amendment in the said designation. The definition of the Development Officer shows that it takes in a person however he was designated before the appointed day if he was wholly or mainly engaged in the development of new life insurance business for the insurer by supervising, either directly or through one or more intermediaries, the work of persons procuring or soliciting new life insurance business, and who was remunerated by a regular monthly salary, and who has become an employee of the Corporation under s. 11 of the Act. This definition excludes certain categories of employees to which it is number necessary to refer. It is thus clear that the Order was intended to prescribe the terms and companyditions of service in respect of Development Officers who had become employees of the Corporation under s. 11 1 of the Act. Clause 3 of the Order prescribes the duties of the Development Officer. Clause 4 prohibits the Development Officers from engaging themselves in certain activities. Clause 5 provides for the scales of pay and allowances. Clause 6 deals with the matter of leave and retirement, and provides that in the matter of leave and retirement, Development Officers shall be governed by the Life Insurance Corporation Staff Regulations, 1960, as amended for time to time. Clause 7 provides for increments, and clause 8 deals with new business bonus, while clause 9 refers to promotion of Development Officers. Clause 10 is relevant for our purpose and must be set out in full Penalties and termination of service In case of unsatisfactory performance of duties by a Development Officer or if a Development Officer shows negligence in his work or is guilty misconduct or is otherwise incapable of discharging his duties satisfactorily, his remuneration may be reduced of his services may be terminated, after giving him an opportunity of showing cause against the action proposed to be taken in regard to him and after companyducting such enquiry as the Corporation thinks fit. The services of any Development Officer may, with the prior approval of the Chairman of the Corporation, be terminated without assigning any reason after giving the Development Officer three months numberice thereof in writing. Clause 11 prescribes that the actual pay and allowances admissible to any Development Officer under the scale of pay specified in paragraph 5 shall be determined in accordance with such principles as may be laid down by the Corporation by regulations made in this behalf under section 49 of the Act. The last clause lays down that if a doubt arises as to the interpretation of any of the provisions of the Order, the matter will be decided by the Central Government. It is thus clear that in regard to the Field Officers subsequently designated as Development Officers who became the employees of the Corporation after the appointed day, the Order provides a self-contained companye in dealing with the material terms and companyditions of service of the said Officers. In regard to the scales of pay and allowances which have been prescribed by clause 5, clause 11 companytemplates that the actual pay and allowances admissible to any Development Officer will have to be determined in accordance with the principles which the relevant regulation would in that behalf lay down, and so, in the matter of scales of pay and allowances clause 5 read with clause 11 has to be companyrelated with the relevant regulation which had to be subsequently framed. In regard to the other terms and companyditions of service, however, the Order makes specific and clear provisions. That being so, there can be numberdoubt that in regard to the Officers to whom the Order applies, if any action is intended to be taken for the termination or their services, it has to be taken under clause 10 a or b . Clause 10 a deals with two alternatives it empowers the appropriate authority to reduce the remuneration of the Development Officer or to terminate his services in either case, an opportunity of showing cause against the action proposed to be taken has to be given to him, and an enquiry has to be companyducted in the manner which the Corporation may think fit. If the Development Officer shows negligence in his work, or is guilty of misconduct, or is otherwise incapable of discharging his duties satisfactorily, the Corporation may reduce his remuneration or may terminate his service but that can be done only after companyplying with the companyditions prescribed by clause 10 a . Clause 10 b empowers the Corporation to terminate the services of the Development Officer without assigning any reason and without holding any enquiry or giving him an opportunity to show cause, provided, of companyrse, the order terminating his services is passed with the prior approval of the Chairman of the Corporation. This power can be exercised without companyplying with clause 10 a and is independent of it. Thus, in the matter of penalties and termination of service, two alternative powers are companyferred on the authority and they are companytained in sub-clauses a and b of clause 10. As envisaged by clause 11 of the Order, Regulations were framed in 1958 by the Life Insurance Corporation under s. 49 of the Act read with clause 11 of the Order. These Regulations companytain five clauses the first gives the title of the Regulations the 2nd defines the Categorisation Order which is the same as the blue Order, as well as the Corporation and the Field Officer. Regulation 3 deals with the companyveyance allowance. Regulation 4 provides for the manner of fixing the pay of the Development Officer. Regulation 4 1 lays down that the basic pay in the scale of pay prescribed for Field Officers by the Order shall be so fixed that the said pay together with the dearness allowance and companyveyance allowance is number less than the total monthly remuneration to which the Officer was entitled before the 31st August, 1956. Regulation 4 2 provides that where the work of the Field Officer has been either below or above the adequate standard, the Corporation may fix his basic pay at such stage in the scale as it may think fit. Regulation 4 3 prescribes that in judging a Field Officers work, the Corporation shall observe the principles companytained in the circular issued by the Managing Director on the 2nd December, 1957. Regulation 5 provides for the companyputation of total monthly remuneration which was paid to Officer on the 31st August, 1956. It will be numbericed that clause 4 3 of the Regulations makes the circular issued by the Managing Director on the 2nd December, 1957 a part of the regulation by treating it as its annexure and referring to its provisions for the purpose of determining the remuneration payable to the Development Officer. That is how the said circular which, when it was issued, had numberlegal authority, has number become valid as a part of the Regulations issued by the Corporation under s. 49 of the Act read with clause 11 of the Order. This circular companytains five paragraphs. The object of the material provisions of this circular is to determine the quality of the work which the Development Officer puts in which would afford a basis for fixing his remuneration. Paragraph 4 of this circular deals with the problem of fitting in the respective Development Officers in the pay scales provided by clause 5 of the Order. It companysists of eight clauses a to h . In the present appeals, we are companycerned with the last of these clauses. Paragraph 4, clause h reads thus - If the actual performance is less than 50 - of the revised quota, the cases of such Field Officers will be referred to a Committee to be specially appointed in each Zone. The Committee will go through the past records of such Field Officers and decide whether they companyld be companytinued as Field Officers either as Probationers or on substantially reduced remunerations. In the case of those who cannot be companytinued as Field Officers, the Committee will examine whether any of them companyld be absorbed in administration and where this is possible, the Committee will fix the remuneration in accordance with the rules to be prescribed. Where the Committee decides that the poor performance of a Field Officer was number due to circumstances beyond his companytrol or that he has made numberefforts and number shown inclination or willingness to work, the services of such Filed Officers will be terminated. It is clear that paragraph 4 h deals with the cases of persons whose actual performance is less than 50 of the revised quota, and as such, who are regarded as ineligible for fitting in the employment of the Corporation. Their cases are required to be referred to the Committee specially appointed in each Zone, and on examining the record of these Officers, if the Committee companyes to the companyclusion that some of them cannot be companytinued as Field Officers, it may enquire whether any of them companyld be absorbed in administration, and if yes, their remuneration may be suitably fixed if the Committee thought that the poor performance was number due to circumstances beyond his companytrol, or that he made on efforts or showed numberinclination or willingness to work, the services of such Field Officer will be terminated. Paragraph 5 deals with the question of ex-Branch Secretaries and Supervisory Officers, and it provides that if their work is found to be unsatisfactory, the Committee may recommend termination of the services of the officers companycerned. In other cases, the Committee will make recommendations as to whether they should companytinue such Inspectors as Field Officers and if yes, on what remuneration or whether their services companyld be utilised in any other capacity in the Corporation, and if yes, on what remuneration ? The learned Solicitor-General has companytended that when the Corporation took over the companytrolled business of insurers in this companyntry on the appointed day, it was found that a large number of employees in the category of Field Officers were either incompetent or unwilling to work efficiently, and so, it was thought desirable, in the interests of the Corporation itself and in the interests of the policy-holders, to terminate their services. That is why a well-devised scheme was framed by the circular and adopted in the Regulations laying down principles for determining the efficiency of the work done by the said Officers. He urges that by the application of the principle laid down by paragraph 4 h of the circular, it was companypetent to the Corporation to terminate the services of the respondents, and that is what in fact has been done in each of the cases before us. In support of this plea, he has relied on the fact that paragraph 4 h empowers the Corporation to terminate the services of incompetent officers and paragraph 5 also gives the same power in respect of ex-Branch Secretaries and Supervisory Officers. The argument is that where cases are dealt with under the provisions of paragraph 4 h or paragraph 5 of the circular, there can be numberquestion of applying the provisions of clause 10 of the Order. It is companymon ground that before terminating the services of the respective respondents in the group of appeals before us, numberenquiry has been held and numberopportunity has been given to the said officers as required by clause 10 a of the Order. It is also companymon ground that the impugned termination of their services has number been effected under clause 10 b of the Order. The respondents companytention is that the termination of their services can be brought about only under clause 10 a or 10 b of the Order, and since it has number been so brought about, the impugned orders are invalid. On the other hand, the learned Solicitor-General companytends that the power to terminate services companyferred by paragraph 4 h of the circular is independent of clause 10 of the Order, and the same can be, and has been, validly exercised in the present cases. In companysidering the validity of these rival companytentions, it is necessary to bear in mind the true legal position about the character of the relevant statutory provisions. It is plain that the provisions companytained in s. 11 2 of the Act are paramount and would override any companytrary provisions companytained in the Order or the Regulations. Subject to the provisions of s. 11 2 , the provisions of the Order will prevail, because the Order has been issued by the Central Government by virtue of the powers companyferred on it by s. 11 2 itself. The provisions of the Order in law partake of the character of the rules framed under s. 48 of the Act. Thus next to the provisions of s. 11 2 of the Act will stand the provisions of the Order. Then we have the Regulations issued by the Corporation under s. 49 1 of the Act. But it must be borne in mind that the power of the Corporation to make Regulations is burdened with the companydition that these regulations must number be inconsistent with the Act and the rules framed thereunder, so that if any of the provisions companytained in the Regulations made by the Corporation under s. 49 are found to be inconsistent either with s. 11 2 or with the Order made by the Central Government under s. 11 2 , they would be invalid. It is in the light of this legal position that the problem posed before us in the present appeals must be decided. We have already numbericed that as soon as the Field Officers or the Development Officers became the employees of the Corporation on the appointed day under s. 11 1 , they initially carried with them their original terms and companyditions of service, and this state of affairs companytinued until the Order was issued on the 30th December, 1957. As we have already seen, the provisions of this Order provide for the terms and companyditions of service in matters companyered by the Order. In regard to remuneration, the Order did number companypletely resolve the problem, but it left the determination of the scale of pay and allowances payable to each employee in the light of the Regulations which would be framed by the Corporation in pursuance of the authority companyferred on the it by clause 11 of the Order but in regard to the termination of services of the employees, clause 10 has made a specific provision, and wherever the Corporation wants to terminate the services of any Development Officer, clause 10 has to be companyplied with. It is true that paragraph 4 h of the circular purports to say that in cases falling under the last part of the said paragraph, the services of the Field Officers will be terminated. If the said portion of paragraph 4 h is interpreted to mean that it companyfers on the Corporation an authority to terminate the services of the Development Officer independently of clause 10 of the Order, it would be inconsistent with the said clause and would, therefore, be invalid. We are, however, satisfied that the said portion of para 4 h really means that in cases falling under it, the services of the officers companycerned would be liable to be terminated, and that means that the termination of the services of the said officers must be effected in the manner prescribed by clause 10 of the Order. That is how paragraph 4 h and clause 10 can be reasonably reconciled. What we have said about para 4 h is equally true about paragraph 5 of the circular. In regard to the fixation of remuneration, however, the position is that clause 5 of the Order fixes the scales of pay and allowances and leaves it to the regulations to lay down the principles in the light of which each individual case should be judged. It was, therefore, perfectly companypetent to the Corporation to adopt the Circular issued by the Managing Director, and in companysequence, lay down the principles which should be followed in fitting individual officers into the scheme prescribed by clause 5 of the Order. But it is necessary to emphasise that the scope and purpose of fitting the officers obviously is to treat the officers as companytinuing to remain in the category of Development Officers and prescribe their remunerations accordingly. The total amount of remuneration would undoubtedly be determined in the light of the principles prescribed by the circular, but under the guise of fitting in a particular officer in the light of the said principles it would number be open to the Corporation to demote the officer from the grade of Development Officer to a lower grade that would be beyond the companypetence of the regulations. All that the Regulations can purport to do is to lay down principles for fixing the actual pay and allowances admissible to the Development Officers. That is the direction companytained in clause 11 of the Order and it is within the limits of the said direction that the principles can be validly laid down by the Regulations. After the remuneration is determined in the light of the principles laid down by the Regulations, if any officer is number inclined to accept the said altered remuneration, occasion may arise for the Corporation to exercise its power under s. 11 2 of the Act and pay him companypensation as therein companytemplated. That, however, is a matter with which we are number companycerned in the present appeals. What we are companycerned with in the present appeals is the validity of the orders terminating the services of the officers on the ground that they are found to be incompetent. If the officers were found to be incompetent in the light of the provisions of paragraph 4 h of the circular, their services companyld numberdoubt be terminated, but such termination of services must companyform to the requirements of clause 10 a of b of the Order. As we have already seen, it is companymon ground that the impugned orders terminating the services of the respective respondents have number been passed in accordance either with clause 10 a or 10 b , and so, they must be held to be invalid. It is true that in the present proceedings the respondents had claimed relief under Art. 311 2 of the Constitution and had in their writ petitions challenged the validity of the Order and the Regulations. That, however, does number dis-entitle the respondents from claiming the same relief on the alternative basis that though the Order and the Regulations may be valid, the impugned orders whereby their services have been terminated are invalid for the reason that they do number companyply with clause 10 of the Order. Therefore, we are satisfied that the learned Solicitor-General is number justified in companytending that the impugned orders can be sustained under paragraph 4 h of the Circular which has been adopted by the Regulations as annexure thereto. There is one more point which has yet to be examined. In regard to the case of Haridas Roy who is the respondent in C.A. No. 917 of 1963, the learned Solicitor-General has companytended that the order terminating his services is valid either under para 4 h of the circular or under s. 11 2 of the Act. Haridas Roy was originally employed by the Hindustan Co-operative Insurance Society Ltd., before the appointed day as an Inspector of Agents. After the Corporation took over the companytrolled business of the said Insurance Co., he was appointed as a Field Officer under the Order, and the order of his appointment was companymunicated to him on the 15th February, 1958. It appears that on the 9th August, 1958, he was told that his case had been companysidered by the Zonal Committee and it had been decided to absorb him in the office as an Assistant on the emoluments mentioned in the order. Haridas Roy declined to accept this assignment and stated that he wanted to companytinue as a Field Officer as before. Thereupon his services were terminated by an order dated the 18th September, 1958. In this letter, Roy was told that his case had been carefully companysidered by the Zonal Committee and he was offered ex-gratia to be absorbed on the administrative side as an Assistant since he refused to accept that assignment, his services were terminated on payment of one months salary in lieu of numberice less deductions, if any. This letter also told Roy that there were numberextenuating circumstances in his case and his work was found to be of very poor quality. It would be numbericed that the Corporation presumably examined the performance of Roy in the light of the principles laid down by the relevant provisions in the circular and held that his case fell under the last part of the paragraph 4 h of the said circular. That only means that having regard to his poor performance Roy became eligible to be dealt with under clause 10 of the Order. It was number open to the Corporation to require Roy to accept an assignment in a lower or different category. What the regulations are authorised to do is merely to determine his salary in the category of Development Officers, and so, we do number see how the order terminating his services because he refused to take an assignment as an Assistant can be justified. It would have been open to the Corporation to fix Roys salary at the minimum in the grade prescribed by clause 5 of the Order and if he had refused to take it, an occasion may have arisen for the operation of s. 11 2 of the Act. Therefore, we are satisfied that the case of Roy cannot be distinguished from the cases of other respondents in the present group of appeals. The result is, the orders passed by the High Court are companyfirmed, and the appeals are dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLEATE JURISDICTION Civil Appeal No. 768 of 1963. Appeal by special leave from the judgment and order dated May 6, 1963, of the Allahabad High Court in F.A.F.O. No. 116 of 1959. C. Setalvad, Y. Talwar and J.P. Goyal, for the appellant. S. Pathak, R.S. Agarwala, B. Dutta, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the respondents. December 13, 1963. The Judgment of the Court was delivered by AYYANGAR J.-This is an appeal by special leave filed by a defendant whose application under O. TX, r. 13, Civil Procedure Code to set aside an ex parte decree passed against him has been dismissed as barred by resjudicata. To appreciate the points arising in the appeal it would be necessary to narrate the proceedings in three litigations between the parties. The ex parte decree that was passed against the defendant-who will hereafter be referred to as the appellant-and which he sought to be set aside in the proceedings which are the subject of the present appeal, was in Suit 134 of 1956 on the file of the Court of Second Civil Judge, Kanpur. But long before this suit was filed, the two other proceedings were already pending. The first of them was a Small Cause suit by one Phula Kuer who sought to recover from the appellant Rs. 750 on the basis that she and the appel- lant were partners and by an arrangement between them he agreed to pay her Rs. 150 per month for her share of the profits which he had failed to pay. This was suit 1023 of 1951 on the file of the Small Cause Court, Kanpur. The appellant entered on his defence and denied the partnership and his liability to pay the sum claimed. While this suit was pending, the appellant in his turn filed suit No. 20 of 1953 against Phula Kuer for fixing the fair rent of the premises in which he was carrying on the business, which Phula Kuer alleged was a partnership business, it being companymon ground that Phula Kuer was the owner thereof. While these two suits were pending Phula Kuer died on July 13, 1953 and thereafter one Rup Chand Jain filed suit 134 of 1956 already referred to, Rup Chand Jain died pending the appeal in the High Court and is number represented by his heirs who have been brought on record. It would however be companyvenient to refer to the respondents as the plaintiff. Suit 134 of 1956 which was filed on May 19, 1956 repeated the allegation that Phula Kuer had entered into the partnership with the appellant under which she was entitled to get for her share Rs. 150 per month. This share of profits, it was alleged, had been paid to her up to October 14, 1950 and that thereafter the appellant failed to pay the same. The plaintiff claimed to be the next reversioner of Phula Kuer and on that basis claimed that a sum of Rs. 4,200 was due to him. Besides this, he alleged that the appellant had been using the building belonging to Phula Kuer in regard to which he was liable to pay rent which was claimed at Rs. 150 per mensem. The plaintiff also claimed that he was entitled to evict the appellant from the premises. In the result, the reliefs claimed in the suit were a money- decree for Rs. 9,390 on account of the items we have set out, and 2 eviction from the premises where the business was being carried on. Having regard to the companytentions of the parties in the three suits, all of them were transferred by the District Judge, to the companyrt of the Second Civil Judge, Kanpur on August 4, 1956, and on August 23, 1956 the Civil Judge passed an order directing that the suits 20 of 1953 and 134 of 1956 be companysolidated for joint hearing, the evidence led in Suit 134 of 1956 being treated as evidence in the other suit as well. On October 10, 1956 the appellant filed his written statement to Suit 134 of 1956 in which he put forward the case which he had already been asserting viz., 1 absence of any partnership relationship between himself and Phula Kuer, and 2 that he was in possession as a tenant and companyld number be evicted because the requisite statutory companyditions to enable the plaintiff to claim eviction, were number satisfied. Needless to add that there were several other defences which he urged to which it is unnecessary to refer. Thereafter there were questions raised as regards the adequacy of the companyrt-fee paid by the plaintiff in Suit 134 of 1956, applications by the plaintiff to amend the plaint etc. These took place during the year 1957. The issues were settled on February 28, 1958. We can pass over what transpired in the early part of 1958. Both the parties were attempting to effect a companypromise and for that purpose the hearing was adjourned but the companypromise was number finalised, and finally, on May 24 1958 a joint application was made by the plaintiff and the appellant that two months time may be granted to them to arrive at a settlement and that the trial which was fixed for May 28, 1958 may be adjourned for that purpose. The companyrt, however, refused this application for the reason that the suit for the fixation of rent was of the year 1953. On the 28th there was again another application for adjournment and the companyrt adjourned the trial by one day and fixed it for May 29, 1958, the order stating If numbercompromise is filed the case would be taken up for final hearing. On 29th the plaintiff was present but the appellant was absent and the latters companynsel who was present reported that they had numberinstructions to companyduct the case. Thereupon the companyrt passed an order in Suit 134 of 1956 in these terms The plaintiff is present. Defendant is absent. Counsel for the defendants have numberinstructions. Case proceeds ex parte. Plaintiff examined Mohindra Kumar and closed. The order companycluded with the words ,Judgment reserved. In the suit for the fixation of rent which was taken up for trial on the same date the order of the companyrt ran Plaintiff is absent. Defendant with his Counsel is present. Counsel for the plaintiff has numberinstructions. Suit is dismissed as per orders passed separately. It is only necessary to add that the third suit--1023 of 1951-was on the same day also decreed ex parte. On May 31, 1958 the appellant filed three applications in the three suits for setting aside the ex parte orders passed against him. The application in Suit 134 of 1956 was treated as the primary one and in support of it an affidavit was filed in which the appellant stated that after the talks for companypromise had reached a decisive stage and when the appellant was making arrangements to implement that decision he got an attack of heat-stroke and was, therefore, unable to be present in Court when the case was called on the 29th-i.e. the day fixed for bearing. He, therefore, prayed that the order or direction to proceed ex parte passed against him in the two suits in which he was defendant may be set aside and he be given an opportunity to companytest the suits. Needless to add that in suit 20 of 1953 which had been dismissed for default, the prayer was to set aside that dismissal. Notices were issued on these applications and the plaintiff filed a companynter-affidavit in which he disputed the truth of the statement regarding the appellants illness and prayed that the applications may be dismissed. He also suggested that if they were. to be ordered it should be on certain terms. We should mention even at this stage that though the application filed on the 31st did number specify the particular provision of law under which the jurisdiction of the Court was invoked, the parties and the companyrt proceeded on the basis that in relation to suits 1023 of 1951 and 134 of 1956 they were applications under O. IX, r. 7 of the Civil Procedure Code. So far as the other proceeding was companycerned-O.S. 20 of 1953-it was undoubtedly an application for setting aside the dismissal of the plaintiffs suit for default and was filed under O. IX, r. 9. These three applications were disposed of by a companymon judgment of the Civil Judge on August 23, 1958 and the learned Civil Judge held that the story of the illness of the appellant which had been put forward as affording sufficient reason for number being present in companyrt on May 29, 1958 was false. For this reason he refused to set aside the order dismissing the suit for default of suit 20 of 1953 in which judgment bad already been delivered. In the other two suits 1023 of 1951 and 134 of 1956 he ordered the direction for the reservation of judgments to stand and fixed August 25, 1958 for the delivery of the judgments. The appellant thereupon moved the High Court of Allahabad in revision against the order passed against the refusal of his application in suit 134 of 1956 alone and apparently obtained a stay of delivery of the judgment. This application was disposed of by the High Court on September 4, 1958 when the following order was passed It is companyceded that numberex parte decree has yet been passed. The only order passed is that the case shall proceed ex parte against the appellant. In view of the fact that numberdecree has yet been passed, the setting aside of the exparte order was number absolutely necessary. After referring to the decision of this Court in Sangram Singh v. Election Tribunal 1 the learned Judge added It follows that, even though the expert order had been passed, the applicant companyld appear and take part in the case from the stage at 1 1955 2 S.C.R. p.l. which the ex parts order had been passed. The only thing he companyld number claim was to be relegated back to the old position as if he had number absented himself on the date fixed. In these circumstances, I think, numberinterference is called for with the order of the learned Civil Judge refusing to set aside the ex parte order. It will be open to the applicant to present himself on the date to which the case number stands adjourned and request the learned Civil Judge to allow him to participate in the proceedings from that state. There is therefore numberforce in this applica- tion. It is rejected. We are making this extract from the order for emphasising the fact that it appears to have been the companymon case before the High Court that the application of the appellant in Suit 134 of 1956 was under O. TX, r. 7 of the Civil Procedure Code and it was on that basis that the High Court approached the question and decided the revision petition. Within 4 days of this order of the High Court and obviously acting in pursuance of the direction of the learned Judge the appellant made an application to the Civil Judge drawing his attention to the observations we have quoted and prayed That your Honour be pleased to hear the application and take the evidence of the applicant. Applications of the same type were filed in the other suit- 1023 of 1951-also. He dismissed the applications for the reason that since the appellants prayer for being relegated to the original position had been rejected by him and also by the High Court in revision, it must be taken to have been finally settled that the appellant companyld number lead evidence because the final hearing of the two suits was over. The only proceeding in which the appellant companyld participate was in hearing the judgment and therefore, he added, the applicant is number entitled only to hear the judgment. On the same day-September 25, 1958-the judgment which had already been prepared was delivered. The judgment read Both the suits are decreed with companyts ex parte with interest at 6 etc. To set aside this ex parte decree thus passed against him on September 25, 1958 the defendant filed an application under IX, r. 13. Obviously, the factual ground upon which the relief was sought, viz., that there was reasonable or sufficient cause for the appellants absence from Court on May 29, 1958 was the same as had been set out by him in the application which he had filed on May 31, 1958. This was opposed by the plaintiff who, besides repeating the challenge regarding the truth of the illness, raised three legal objections of a preliminary nature. Some of these have been upheld by the Civil Judge and the High Court but each one of them was sought to be supported before us by Mr. Pathak for the respondents. They were 1 that the finding recorded in the earlier application filed on May 31, 1958 in suit 134 of 1956 that there was number sufficient cause for number-appearance on May 29, 1958 operated as res judicata in the petition filed under O. IX, r. 13 and was a bar to the re-inquiry of the same question on the merits 2 the finding in the application to set aside the dismissal for default of suit 20 of 1953 which had become final operated was a bar to the trial of the same question in the application under O. IX, r. 13 in suit 134 of 1956 and 3 .that the decree in suit 134 of 1956 was number in reality an ex parte decree but was a decree on the merits within O. XVII, r. 3, Civil Procedure Code and hence the remedy of the appellant was only by way of an appeal against the decree and he companyld number companye in by way of an application under O. IX, r 13. The learned Civil Judge upheld the first preliminary ground of objection and dismissed the application. The appellant there-upon filed an appeal to the High Court and the learned Judges likewise held that any inquiry into the question whether the appellant had sufficient cause for numberappearance on May 29, 1958 was barred by res judicata by reason of the decision of the same matter in the earlier proceeding under O. IX, r. 7. It is from this judgment of the High Court that the present appeal has been brought by special leave under Art. 136 of the Constitution. Before proceeding to deal with the arguments addressed to us by Mr. Setalvad-learned companynsel for the appellant, it would be companyvenient to mention a point, number seriously pressed before us, but which at earlier stages was thought to have companysiderable significance for the decision of this question viz., the difference between the words good cause for number- appearance in O. IX, r. 7 and sufficient cause for the same purpose in O. IX, r. 13 as pointing to different criteria of goodness or sufficiency for succeeding in the two proceedings, and as therefore furnishing a ground for the inapplicability of the rule of resjudicata. As this ground was number seriously mentioned before us, we need number examine it in any detail, but we might observe that we do number see any material difference between the facts to be established for satisfying the two tests of good cause and sufficient cause. We are unable to companyceive of a good cause which is number sufficient as affording an explanation for number-appearance, number companyversely of a sufficient cause which is number a good one and we would add that either of these is number different from good and sufficient cause which is used in this companytext in other statutes. If, on the other hand, there is any difference between the two it can only be that the requirement of a good cause is companyplied with on a lesser degree of proof than that of sufficient cause and if so, this cannot help the appellant, since assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the companyrt finds in the first proceeding, the lighter burden number discharged, it must afortiori bar the companysideration of the same matter in the later., where the standard of proof of that matter is, if anything, higher. As it is the first. of the preliminary objections which we have set out earlier that has formed the basis of the decision against the appellant, both by the learned Civil Judge as well as by the High Court, we shall first take that up for companysideration. The companyrts below have approached this question in this form. Order IX, r. 7 reads Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous number-appearance, he may, upon such terms as the Court directs as to companyts, or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. If an application is made under this provision and the Court companysiders that there is number any good cause for the previous number-appearance and proceeds further with the suit and ultimately it results in an ex parte decree, can the Court in dealing with the application to set aside the ex parte decree under O.IX , r. 13 reconsider the question as to whether the defendant had a sufficient cause for number- appearance on the day in regard to which the application under O. IX, r. 7 had been filed? That the question of fact which arose in the two proceedings was identical would number be in doubt. Of companyrse, they were number in successive suits so as to make the provisions of s. 11 of the Civil Procedure Code applicable in terms. That the scope of the principle of res judicata is number companyfined to what is companytained in s. 11 but is of more general application is also number in dispute. Again, res judicata companyld be as much applicable to different stages of the same suit as to findings on issues in different suits. In this companynection we were referred to what this Court said in Satyadhyan Ghosal v. Sm. Deorajin Debi 1 where Das Gupta, J. speaking for the Court expressed himself thus The principle of res judicata is based on the need of giving a finality to judicial decisions. 1 1960 3 S.C.R. 590. What it says is that once a res is judicata, it shall number be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or on a question of law-has been decided between two parties in one suit or proceeding and the decision is final either because numberappeal was taken to a higher companyrt or because the appeal was dismissed, or numberappeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again The principle of res judicata applies also as between two stages in the same litigation to this extent that a companyrt, whether the trial companyrt or a higher companyrt having at an earlier stage decided a matter in one way will number allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Mr. Pathak laid great stress on this passage as supporting him in the two submissions that he made 1 that an issue of fact or law decided even in an interlocutory proceeding companyld operate as res judicata in a later proceeding, and 2 that in order to attract the principle of res judicata the order or decision first rendered and which is pleaded as res judicata need number be capable of being appealed against. We agree that generally speaking these propositions are number open to objection. If the companyrt which rendered the first decision was companypetent to entertain the suit or other proceeding, and had therefore companypetency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision numberappeal lay would number by themselves negative the finding on the issue by it being res judicata in later proceedings. Similarly, as stated already, though s. If of the Civil Procedure Code clearly companytemplates the existence of two suits and the findings in the first being res judicata in the later suit, it is well-established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding. But where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be companysidered before the -principle is held applicable. One aspect of this question is that which is dealt with in a provision. like s. 105 of the Civil Procedure Code which enacts 105. 1 Save as otherwise expressly provided, numberappeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Notwithstanding anything companytained in sub-section 1 , where any party aggrieved by an order of remand made after the companymencement of this Code from which an appeal lies does number appeal therefrom, he shall thereafter be precluded from disputing its companyrectness. It was this which was explained by Das Gupta, J. in Satyadhayan Ghosals case 1 , already referred to Does this, however, mean that be cause at an earlier stage of the litigation a companyrt has decided an interlocutory matter in one way and numberappeal has been taken therefrom or numberappeal did lie, a higher companyrt cannot at a later stage of the same litigation companysider the matter again? It is clear therefore that an interlocutory order which had number been appealed from either because numberappeal lay or even though an appeal lay an appeal was number taken companyld be challenged in an appeal from the final decree or order. 1 1960 3 S.C.R. 590. If the companyrectness of the order of the Civil Judge in disposing of the application filed by the appellant on May 31, 1958 were questioned in an appeal against the decree in the suit, these principles and the observations would have immediate relevance. But it is number as if the distinction here drawn between the type of interlocutory orders which attain finality and those that do number, is of numbermateriality in companysidering whether a particular interlocutory order is of a kind which would preclude the agitation of the same question before the same companyrt in further stages of the same proceeding. Dealing with the decisions of the Privy Council in Ram Kirpal Shukul v. Rup Kuari 1 , Bani Ram Nanhu Mal 2 , and Hook v. Administrator-General of Bengal 3 which are the leading cases in which the principle of res judicata was held applicable to different stages of the same proceedings, Das Gupta J. observed 4 It will be numbericed that in all these three cases, viz., Ram Kirpal Shukuls case, Bani Rams case and Hooks case, the previous decision which was found to be res judicata was part of a decree. Therefore though in form the later proceeding in which the question was sought to be raised again was a companytinuation of the previous proceeding, it was in substance, an independent subsequent proceeding. The decision of a dispute as regards execution it is hardly necessary to mention was a decree under the Code of Civil Procedure and so in Ram Kirpals case and Bani Rams case, such a decision being a decree really terminated the previous proceedings. The fact therefore that the Privy Council in Ram Kirpal Shukuls case described Mr. Probyns order as an interlocutory judgment does number justify the learned companynsels companytention that all kinds of interlocutory judgments number appealed from become res judicata, Interlocutory judgments which have the force of a decree must be distinguished from 1 11 I.A. 37. 2 11 I.A. 181. 3 48 I.A. 187. 4 1960 3 S.C.R. 590 at pp. 602-03. other interlocutory judgments which are a step towards the decision of the dispute between parties by way of a decree or a final order. It is needless to point out that interlocutory orders are of various kinds some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might number be prejudiced by the numbermal delay which the proceedings before the companyrt usually take. They do number, in that sense, decide in any manner the merits of the companytroversy in issue in the suit and do number, of companyrse, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though numbermally only on proof of new facts or new situations which subsequently emerge. As they do number impinge upon the legal rights of parties to the litigation the principle of res judicata does number apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been dis- posed of the companyrt would be justified in rejecting the same as an abuse of the process, of companyrt. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just number referred to lies in the fact that they are number directed to maintaining the status quo or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do number decide any matter in issue arising in the suit, number put an end to the litigation. The case of an application under O. IX. r. 7 would be an illustration of this type. If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be numberdoubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate companyrt. In that sense, the refusal of the companyrt to permit the defendant to set the clock back does number attain finality. But what we are companycerned with is slightly different and that is whether the same Court is finally bound by that order at later stages, so as to preclude its being reconsidered. Even if the rule of resjudicata does number apply it would number follow that on every subsequent day on which the suit stands adjourned for further hearing the petition companyld be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the same facts and seeking the same reliefs might be disallowed by the companyrt does number however necessarily rest on the principle of resjudicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same facts, is number barred on the application of any rule of res judicata, but would be rejected for the same grounds on which the original application was refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that numbernew facts have been adduced to justify a different order is vital. If the principle of resjudicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the Court, the bar would companytinue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the companyrt would be companypetent, nay,, would be bound to take those into account and make an order companyformably to the facts freshly brought before the companyrt. This leads us to the companysideration of the nature of the companyrts direction under O. IX, r. 7-the nature of that interlocutory proceeding-with a view to ascertain whether the decision of the Court under that provision decides anything finally so as to companystitute the bar of res judicata when dealing with an application under O. IX, r. 13, Civil Procedure Code. To sum up the relevant facts, it is companymon ground that the suit-134 of 1956 had passed the stages up to r. 5 1/SCI/64-61 of O. IX. Order IX, r. 6 applies to a case where a plaintiff appears and the defendant does number appear when the suit is called on for hearing. Order XI, rule 6 provides, to quote the material part Where the plaintiff appears and the defendant does number appear when the suit is called on for hearing then- a if it is proved that the summons was duly served, the companyrt may proceed exparte This is the provision under which the Civil Judge purported to act on the 29th of May. And then companyes O. IX, r. 7 which reads Where the Court has adjourned the hearing of the suit ex parte and the defendant, at or before such hearing, appears and assigns good cause for his previous number-appearance, he may, upon such terms as the Court directs as to companyts or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. On that very date the companyrt took evidence of the plaintiff and reserved judgment. In other words, the hearing had been companypleted and the only part of the case that remained thereafter was the pronouncing of the judgment. O.LXX, r. 1 provides for this companytingency and it reads- The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or, as soon thereafter as may be practicable, on some future day and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due numberice shall be given to the parties or their pleaders. Two days after the hearing was companypleted and judgment was reserved the defendant appeared and made the application purporting to be under O. IX, r. 7. And it is the dismissal of this application that has been held to companystitute a bar to the hearing of the application under O. IX, r. 13 on the merits. The scope of a proceeding under O. IX, r. 7 and its place in the scheme of the provisions of the Code relating to the trial of suits was the subject of companysi- deration in Sangram 5Singh v. Election Tribunal 1 . Dealing with the meaning of the words The Court may proceed ex parts in O. IX, r. 6 1 a Bose J. speaking for the Court said When the defendant has been served and has been afforded an opportunity of appearing, then, if he does number appear, the Court may proceed in his absence. But, be it numbered, the Court is number directed to make an ex parte order. Of companyrse the fact that it is proceeding ex parte will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is number an order made against the defendant in the sense of an ex parte decree or other ex parte order which the companyrt is authorised to make. All that rule 6 1 a does is to remove a bar and numbermore. It merely authorises the Court to do that which it companyld number have done without this authority, namely to proceed in the absence of one of the parties. Dealing next with the scheme of the Code, the learned Judge pointed out that the manner in which the Court companyld thereafter proceed i.e., after r. 6 1 a was passed would depend upon the purpose for which the suit stood adjourned, and proceeded If it is for final hearing, an ex parte decree can be passed, and if it is passed, then O. IX, r. 13 companyes into play and, before the decree is set aside the Court is required to make an order to set it aside. Contrast this with r. 7 which does number require the setting aside of what is companymonly, though erroneously, known as.the ex parte order. No order is companytemplated by the Code and there- fore numberorder to set aside the order is companytemplated either. italics ours And referring to the effect of the rejection of application made under O. XI, r. 7, he added 1 1955 2 S.C.R. p. 1. If a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings simply because he did number appear on the first or some other hearing. But though he has the right to appear at an adjourned hearing, he has numberright to set back the hands of the clock. Order IX. r. 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be companytent to proceed from the stage at which he companyes in. That being the effect of the proceedings,. the question next. arises what is the nature of the order if it can be called an order or the nature of the adjudication which the companyrt makes under O. IX, r. 7. In its essence it is directed to ensure the orderly companyduct of the proceedings by penalising improper dilatoriness calculated merely to prolong the litigation. It does number put an end to the litigation number does it involve the determination of any issue in companytroversy in the suit. Besides, it is obvious that the proceeding is of a very summary nature and this is evident from the fact that as companytrasted with O. IX, r. 9 or IX, r. 13, numberappeal is provided against action of the companyrt under O. IX, r. 7. refusing to set back the clock. It is, therefore, manifest that the Code proceeds upon the view of number importing any finality to the determination of any issues of fact on which the companyrts action under that provision is based. In this companynection reference may be made to a decision of a Division Bench of the Madras High Court in Sankaralinga v. Ratnasabhapati 1 . The question arose on an appeal to the High Court by the defendants against whom an ex parte decree had been passed on March 30, 1895. Previous thereto they had put in petitions supported by affidavits under s. 101 of the Civil Procedure Code of 1882 companyresponding to O. IX, r. 7. to set aside an ex parte order, accept their written statements, and proceed with the suit on the merits. The ground alleged for the relief 1 21 I.L.R. Mad. 324. sought was that they were number duly served with summons. This application was rejected by the Court. Thereafter, after an ex parte decree was passed, they again filed another application under s. 108 under the then companye, companyresponding to the present O. IX, r. 13. The ground put forward was again the same, namely that the summons was number properly served. The District Judge having dismissed the application under s. 108 O. IX, r. 13 , the defendants preferred an appeal to the High Court. On behalf of the plaintiffs-respondents the companytention was raised by Mr. Bhashyam Ayyangar-learned Counsel-that the application to set aside the ex parte decree under s. 108 was incompetent because the same question has already been decided against the defendant when he filed the application under s. 101. The Court companyposed of Subramania Iyer Benson JJ. said, the companytention at first sight may seem to be reasonable, but having regard to the very wide words in any case used in s. 108 we are unable to hold that the defendant was number entitled to make an application under section 108. There have been other decisions in which a similar view has been held and though the provisions of the Code companyresponding to IX, r. 7 and O. IX, r. 13 have been in force for over a century from 1859, there has number been a single case in which the plea of res judicata such as has been urged in the appeal before us has been upheld. On the other hand, we might point out that an exactly similar objection of res judicata was expressly raised and repelled in Bhaoo Patel v. Naroo 1 in a decision rendered in 1896 in which reliance was placed on a case reported in 8 Cal. 272. In the circumstances we companysider that a decision or direction in an interlocutory proceeding of the type provided for by O. IX, r. 7, is number of the kind which can operate as resjudicata so as to bar the bearing on the merits of an application under O. IX, r. 13. The latter is a specific statutory remedy provided by the Code for the setting aside of ex parte decrees, and it 1 10 C.P.L.R. 45. is number without significance that under O. XLIII, r. 1 d an appeal lies number against orders setting aside a decree passed ex parte but against orders rejecting such an application, unmistakably pointing to the policy of the Code being that subject to securing due diligence on the part of the parties to the suit, the Code as far as possible makes provision for decisions in suits after a hearing afforded to the parties. So far as the case before us is companycerned the order under appeal cannot be sustained even on the basis that the finding recorded in disposing of an application under O. IX, r. 7 would operate as res judicata when the same question of fact is raised in a subsequent application to set aside an ex parte decree under O. IX, r. 13. This is because it is number disputed that in order to operate as res judicata, the companyrt dealing with the first matter must have had jurisdiction and companypetency to enertain and decide the issue. Adverting to the facts of the present appeal, this would primarily turn upon the proper companystruction of the terms of O. IX, r.7. The opening words of that rule are, as already seen, Where the Court has adjourned the hearing of the suit ex parts. Now, what do these words mean? Obviously they assume that there is to be a hearing on the date to which the suit stands adjourned. If the entirety of the hearing of a suit has been companypleted and the Court being companypetent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly numberadjournment of the hearing of the suit, for there is numberhing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil fudge when he stated that having regard to the stage which the suit had reached the only proceeding in which the appellant companyld participate was to hear the judgment pronounced and that on the terms of rules 6 7 he would permit him to do that. If, therefore, the hearing was companypleted and the suit was number adjourned for hearing, O. IX, r.7 companyld have numberapplication and the matter would stand at the stage of O. IX, r.6 to be followed up by the passing of an ex parte decree making r. 13 the only provision in order IX applicable. If this were the companyrect position, it would automatically follow that the learned Civil Judge would have numberjurisdiction to entertain the application dated May 31, 1958 purporting to be under O. IX, r.7, or pass any order thereon on the merits. This in its turn would lead to the result that the application under O. IX, r. 13 was number only companypetent but had to be heard on the merits without reference to the findings companytained in the previous order. Mr. Pathak while number disputing that if the application filed on May 31, 1958 was incompetent at the stage it was filed, the order passed by the Civil Judge would number bar the companysideration on the merits of the later application to set aside the ex parte decree, sought to get over this obvious situation by a submission that even if O. IX, r. 7 was inapplicable the companyrt had an inherent jurisdiction saved by s. 151 C.P. Code to entertain the application outside the specific statutory provision and that it must be taken that the appellant invoked that jurisdiction and that Court being thus companypetent to grant or refuse the relief followed the latter alternative in the circumstances of the case and that companysequently the proceedings before the Court were number incompetent and that the order passed on the application dated May 31, 1958 was therefore with jurisdiction. On this submission, which we might mention has been urged for the first time in this companyrt, the first question that arises is whether the Court has the inherent jurisdiction which learned companynsel companytends that it has. For the purpose of the discussion of the question in the companytext of the relevant provisions of the Code, it is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it companyld be predicated that a Court has the inherent jurisdiction which is saved by s. 151 of the Civil Procedure Code. It is sufficient if we proceed on the accepted and admitted limitations to the existence of such a jurisdiction. It is companymon ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a Particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers companyferred by the Code. The prohibition companytained in the Code need number be express but may be implied or be implicit from the very nature of the provisions that it makes for companyering the companytingencies to which it relates, We shall companyfine our attention to the topic on hand, namely applications by defendants to set aside ex parte orders passed against them and reopen the proceedings which had been companyducted in their absence. Order TX, r. 1 requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the defendant is absent but the Court from its own record is apprised of the fact that the summons has number been duly served on the defendant in order to acquaint him with the proceedings before the Court. Rule 2 companytains a proviso applicable to cases where numberwithstanding the absence of service of summons, the defendant appears. Rule 3 deals with a case where the plaintiff alongwith the defendant is absent when the suit is called on and empowers the Court to dismiss the suit. Rule 5 deals with a case where the defendant is number served properly and there is default on the part of the plaintiff in having this done. Having thus exhausted the cases where the defendant is number properly served, r. 6 1 a enables the Court to proceed exparte where the defendant is absent even after due service. Rule 6 companytemplates two cases 1 The day on which the defendant fails to appear is one of which the defendant has numberintimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of the suit, and 2 where the stage of the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is number present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the first type of cases is companycerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there and judgment might be pronounced. In that case O. IX, r. 13 would companye in. The defendant can, besides filing an appeal or an application for review, have recourse to an application under O. IX, r. 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might number be companycluded on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is companycerned for which purpose there might be a hearing on an adjourned date. On the terms of O. IX, r. 7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his number- appearance on the previous day or days he might have the earlier proceedings recalled set the clock back and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is number penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the companymencement of the trial. Thus every companytingency which is likely to happen in the trial vis-a-vis the number-appearance of the defendant at the hearing of a suit has been provided for and O. IX, r. 7 and O. IX, r. 13 between them exhaust the whole gamut of situations that might arise during the companyrse of the trial. If, thus, provision has been made for every companytingency, it stands to reason that there is numberscope for, the invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak however, strenuously companytended that a case of the sort number on hand where a defendant appeared after the companyclusion of the hearing but before the pronouncing of the judgment had number been provided for. We companysider that the suggestion that there is such a stage is, on the scheme of the Code, wholly unrealistic. ln the present companytext when once the hearing starts, the Code companytemplates only two stages in the trial of the suit 1 Where the hearing is adjourned or 2 where the hearing is companypleted. Where the hearing is companypleted the parties have numberfurther rights or privileges in the matter and it is only for the companyvenience of the Court that O. XX, r. 1 permitts judgment to be delivered after an interval after the hearing is companyplated. It would, therefore, follow that after the stage companytemplated by O. IX, r. 7 is passed the next stage is only the passing of a decree which on the terms of O. IX, r. 6 the Court is companypetent to pass. And then follows the remedy of the party to have that decree set aside by application under O.IX. r. 13. There is thus numberhiatus between the two stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting orders passed on the lines of O. IX, r. 7. We are, therefore, of the opinion that the Civil Judge was number companypetent to entertain the application dated May 31, 1958 purporting to be under O. IX, r. 7 and that companysequently the reasons given in the order passed would number be res judicata to bar the hearing of the petition under O. IX, r. 13 filed by the appellant. There is one other aspect from which the same question companyld be viewed. O. IX, r. 7 prescribed the companyditions subject to which alone an application companypetent under the opening, words of that rule ought to be dealt with. Now, the submission of Mr. Pathak if accepted, would mean to ignore the opening words and say that though specific power is companyferred when a suit is adjourned for hearing, the Court has an inherent power even when a it is number adjourned for that purpose, and b and this is of some importance, when the suit is number adjourned at all, having regard to the terms of O. XX, r. 1. The main part of O. IX, r. 7 speaks of good cause being shown for number-appearance on a previous day. Now, what are the criteria to be applied by the Court when the supposed inherent jurisdiction of the Court is invoked. Non-constant it need number be identical with what is statutorily provided in r. 7. All this only shows that there is really numberscope for invoking the inherent powers of the Court. Lastly, that power is to be exercised to secure the ends of justice. If at the stage of r. 7 power is vested in the Court and after the decree is passed O. IX, r. 13 becomes applicable and the party can avail himself of that remedy, it is very difficult to appreciate the ends of justice which are supposed to be served by the Court being held to have the power which the learned companynsel says must inhere in it. In this view it is unnecessary to companysider whether to sustain the present submission the respondent must establish that the companyrt was companyscious that it lacked specific statutory power and intended to exercise an inherent power that it believed it possessed to make such orders as may be necessary for the ends of justice. It was next urged that even if the application under O. IX, r. 7 in respect of suit 134 of 1956 was incompetent having regard to the stage which the hearing of that suit reached when that application was made, still the order passed in suit 20 of 1953 in the application made for the restoration of that suit under O. IX, r. 9 was companypetent and that the order passed on that application operated as resjudicata to the maintainability of the application under O. IX, r. 13 in respect of suit 134 of 1956. We companysider that there is numbersubstance in this submission. The ground urged for applying the rule of res judicata was that the Court had, at an earlier stage, ordered the joint trial of the three suits- 1023 of 1951, 20 of 1953 and 134 of 1956 and that as the three suits were thus linked together, the application made for the restoration of suit 20 of 1953 companystituted a finding by a companypetent Court that there was numbergood or sufficient cause for the number-appearance of the appellant in companyrt for any suit on May 29, 1958. The suits were. numberdoubt, ordered to be tried jointly in the sense that the evidence recorded in one suit was to be treated as evidence in the other suits also, suit 134 of 1956 being treated as the main suit in which evidence was recorded, but that affords numberbasis for the companytention that every application made in one suit for the relief which is pertinent only to that suit must be treated as an application made in every other suit. Thus, for instance, in the present case if numberapplication were made for the restoration of suit 20 of 1953 which had been dismissed for default it companyld hardly be companytended that because of the application made in suit 134 of 1956 it would serve the purpose of an application for the restoration of that other suit Similarly, if an application had been made for the restoration of suit 20 of 1953 and the Court found that there was sufficient cause for setting the dismissal aside that would by itself hardly be a ground for setting aside the ex parte decree in suit 134 of 1956. These features are sufficient to demonstrate that the circumstance that the suits were being tried jointly has numberbearing on the matter number in companytroversy and that so far as regards the ex parte orders in the three suits each had to be companysidered independently and had to be disposed of also independently numberwithstanding that the same grounds might have sufficed for the relief prayed for in the independent applications. There is another aspect from which this matter companyld be viewed. The point at issue in the application under O. IX, r. 9 filed to set aside the dismissal for default in suit 20 of 1953 was whether the plaintiff had sufficient cause for his number-appearance when the suit was called on for hearing vide O. IX, r. 9 . The suit called on for hearing in that rule obviously refers to suit 20 of 1953. A decision, therefore, that there was numbersufficient cause for the number- appearance of the plaintiff in that suit would number be eadem question with the matter which arose for decision when the application under O. IX, r. 7 was made in suit 134 of 1956 numberwithstanding that the facts upon which that issue depended was similar and possibly identical. This is a further reason why we are unable to accept the submission of learned companynsel. The last of the points that was urged by Mr. Pathak was that the decree that was actually passed in suit 134 of 1956 was number in reality an ex parte decree but one on the merits. It was urged that the proceeding on May 29, 1958 satisfied the companyditions of O. XVII, r. 3 and number O. XVII, r. 2. There are several reasons why this submission is entirely without substance. In the first place, during the entire proceeding right up to the hearing of the present application which was made under O. IX, r. 13 the Court as well as both the parties proceeded on the basis that the decree was passed ex parte. The order sheet on May 29, 1958 we have extracted earlier companytained a direction by the Court that the case will proceed ex parte for the reason that companynsel for the defendant reported numberinstructions. And it must be numbericed that by that date the entire hearing was over. The application that was made to set aside this order to proceed ex parte was filed on the basis that the previous hearing was ex parte and was companytested by the respondent on the same basis. The order of the High Court in revision on September 4, 1958 proceeds on the same basis. When finally judgment was pronounced by the Civil Judge in suit 134 of 1956 it expressly stated that it was a decree ex parte. In the face of these circumstances there should be overwhelming evidence of the proceedings number being ex parte if the respondent is to succeed in his present plea. In order that the decree passed was one under O. XVII, r. 3 which is the submission of Mr. Pathak the opening words of that rule must be satisfied. That rule reads Where any party to a suit to whom time has been granted falls to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, numberwithstanding such default, proceed to decide the suit forthwith. In regard to this the Civil Judge stated The ground on which this objection is based is that 29.5.58 was the date adjourned at the instance of the defendant-applicant. I do number think, that this ground has any force. It appears from the record that on 28.5.58 the cases were adjourned to 29.5.58 on a joint application of the parties to the effect that a companypromise would be filed. It was number, therefore, an adjournment sought by the defendant alone moreover, that application was made by him in his own suit No. 20 of 1953 and the other two suits had also naturally to be adjourned as all the three of them were companysolidated. The adjournment of those two suits, therefore, cannot be said to be at the instance of the defendant. Learned companynsel was unable to point any Raw in the facts here stated. It would, therefore, follow that the terms of XVII, r. 3 were number attracted at all and that suit 134 of 1956 was decreed number on merits but really ex parte as had been expressly stated by the learned Civil Judge when he passed that decree. In the result, the appeal is allowed and the application filed by the appellant under O. IX, r. 13 for setting aside the ex parte decree passed in suit 134 of 1956 is remanded to the trial Judge for disposal on the merits in accordance with law. The appellant will be entitled to his companyts throughout.

Case appeal was accepted by the Supreme Court

Shah, J. Balmokand Radheshyam hereinafter called the firm , having its head office at Calcutta, carried on business in companymission agency and companyton piece-goods. The firm which companysisted of four partners, one of whom was Shivram Poddar, appellant in this appeal, was dissolved in February, 1950, and it appears that thereupon its business was discontinued. For the assessment year 1949-50, one of the partners of the firm submitted a return of its income and it was assessed on October 28, 1952, in the status of an unregistered firm. On March 28, 1955, the Income-tax Officer issued a numberice under section 34 read with section 22 2 of the Indian Income-tax Act, 1922, addressed to the appellant as a partner of the firm at the time of its dissolution calling upon him to submit a return of the income of the firm for the year ending March 31, 1950. The appellant moved the High Court of Judicature at Calcutta for a writ of mandamus under article 226 of the Constitution companymanding the Income-tax Officer to forbear from giving effect to the numberice. The petition was dismissed by D. N. Sinha J. and that order was companyfirmed in appeal under the Letters Patent by the High Court. The question which falls to be determined in this appeal is whether the income earned by the firm in the year ending March, 1950, companyld be assessed to tax under section 44 of the Indian Income-tax Act, 1922, after the firm was dissolved. Section 44 of the Indian Income-tax Act, 1922, before it was amended by the Income-tax Amendment Act, 1958, stood as follows Where any business, profession or vocation carried on by a firm or association of persons has been discontinued, or where as association of persons is dissolved, every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association, be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment. The object of the enactment is clear it is to authorise assessment of tax on income, profits or gains earned in a business, profession or vocation carried on by a firm or association before discontinuance of the business, profession or vocation, or before dissolution of the association, and to impose joint and several liability upon every person who was at the time of discontinuance a partner of the firm or a member of the association or at the time of dissolution a member of the association. This companyrt in dealing with the effect of section 44 of the Indian Income-tax Act upon the liability of partner to be assessed in respect of the income of a firm which had discontinued its business on account of dissolution, observed in C. A. Abraham v. Income-tax Officer, Kottayam In effect, the Legislature has enacted by section 44 that the assessment proceedings may be companymenced and companytinued against a firm of which business is discontinued as if discontinuance has number taken place. It is enacted manifestly with a view to ensure companytinuity in the application of the machinery provided for assessment and imposition of tax liability numberwithstanding discontinuance of the business of firms. In Abrahams case discontinuance of business of the firm was the result of dissolution upon the death of one of the partners. The primary question in that case was about the companypetence of the Income- tax Officer to order the levy of penalty against a firm, after it had discontinued its business upon dissolution, for companycealing the particulars of income or for deliberately furnishing inaccurate particulars of income in a return of the income of the firm. The validity of the order of assessment of income of the firm was number challenged in that case, though at the date of the order of assessment the firm stood dissolved and its business was discontinued. But the companyrt companyld number adjudicate upon the legality of the order imposing penalty without deciding whether there was a valid assessment, for an order imposing penalty predicates a valid assessment. We have reiterated this view in Commissioner of Income-tax v. Raja Reddy Mallaram in companysidering the application of section 44 of the Indian Income-tax Act in relation to the assessment of an association of persons which is dissolved. Mr. Pathak for the appellant urged and that was the only argument advanced in support of the appeal that the numberice addressed by the Income-tax Officer to the respondent was in law inoperative, since section 44 applies in relation to a firm only when there is discontinuance of its business and number when there is dissolution of the firm. Counsel submitted that members of an association of persons may be assessed under section 44 on discontinuance of business or upon dissolution of the association, but partners of a firm may be assessed under section 44 only on discontinuance of the business and dissolution of a firm are different companycepts, urged companynsel, for if discontinuance included dissolution it was plainly unnecessary to make an express provision with respect to the dissolution of association of persons. In support of his companytention companynsel relied upon the observations made by Chakravartti C.J. in R. N. Bose v. Manindra Lal Goswami That section section 44 of the Income-tax Act, 1922 speaks of a case where any business, profession or vocation carried on by a firm or association or persons has been discontinued and a case where an association of persons is dissolved. It does number speak of a case, at least expressly, where a firm has been dissolved. It will be numbericed that when speaking of the discontinuance of a business, profession or vocation, the section speaks of both a firm and an association of persons, but when speaking of dissolution, it drops the firm Mr. Meyer companytended that discontinuance included dissolution. I am unable to accept that companytention, because although the dissolution of a firm must involve discontinuance of its business the companyverse need number necessarily be true and a firm may companyceivably companytinue to exist after deciding to discontinue its business as firms very often do for various purposes, such as companylecting their debts. But these observations were obiter, for, as observed by the learned Chief Justice, the parties before him had throughout proceeded on the footing that section 44 applied to the case of a dissolved firm, and he would also proceed on the assumption that section 44 applied to the case of a dissolved firm. Section 44 operates in two classes of cases where there is discontinuance of business, profession or vocation carried on by a firm or association, and where there is dissolution of an association. It follows that mere dissolution of a firm without discontinuance of the business will number attract the application of section 44 of the Act. It is only where there is discontinuance of business, whether as a result of dissolution or other cause, that the liability to assessment in respect of the income of the firm under section 44 arises. In the case of an association, discontinuance of business for whatever cause, and dissolution with or without discontinuance of business, will both attract section 44. The reason for this distinction appears from the scheme of the Income-tax Act in its relation to assessment of the income of a firm. A firm whether registered or unregistered is recognised under the Act as a unit of assessment section 3 and 2 2 , and its income is companyputed under clauses 3 and 4 of Section 23 as the income of any other unit. Section 25 1 relates to assessment in case of a discontinued business--whether the business is carried on by a firm or by any other person. This is of companyrse only an enabling provision giving the Income-tax Officer an option to make a premature assessment on the profits earned upto the date of discontinuance, in the year of discontinuance Commn of Income-tax v. Srinivasau . Even if numberpremature assess ment is made, the assessment for the entire year will be on the income companyputed upto the date of discontinuance. Then there is the spe-cial provision relating to assessment when at the time of making an assessment it is found that a change has occurred in the companystitution of a firm, or a firm has been newly companystituted S. 26 1 . The date on which the change has occurred is immaterial it may be in the year of account, in the year of assessment or even after the close of the year of assessment. The Income tax Officer has under S. 26 1 to as-sess the firm as companystituted at the time of mak-ing the assessment, but the income, profits and gains of the previous year, have for the pur-pose of inclusion in the total income of the partners, to be apportioned between the part ners who were entitled to receive the same. Sub-section 2 of S. 26 relates to assessment in the case of succession to a person which expression includes a firm carrying on a busi ness by another person in such capacity. These provisions have to be read with S. 44, for that section provides that in the case of discontinu ance of business of firm or of an association or dissolution of an association, liability to assess ment is under Ch. IV and all the provisions of Ch. IV, so far as may be, apply to such assessment. Discontinuance of business has the same companynotation in section 44 as it has in section 25 of the Act it does number companyer mere change in ownership or in the companystitution of the unit of assessment. Section 44 is, therefore, attracted only when the business of a firm is discontinued, i.e., when there is companyplete cessation of the business and number when there is a change in the ownership of the firm, or in its companystitution, because by reconstitution of the firm, numberchange is brought in the personality of the firm, and succession to the business and number discontinuance of the business results. Under the ordinary law governing partnerships, modification in the companystitution of the firm in the absence of a special agreement to the companytrary amounts to dissolution of the firm and reconstitution thereof, a firm at companymon law being a group of individuals who have agreed to share the profits of a business carried on by all or any of them acting for all, and supersession of the agreement brings about an end of the relation. But the Income-tax Act recognises a firm for purposes of assessment as a unit independent of the partners companystitu ting it it invests the firm with a personality which survives reconstitution, A firm discon tinuing its business may be assessed . in the manner provided by S. 25 1 in the year of account in which it discontinues its business it may also be assessed in the year of assess ment. In either case it is the assessment of the income of the firm. Where the firm is dis solved, but the business is number discontinued, there being change in the companystitution of the firm, assessment has to be made under S. 26 1 . and if there be succession to the business, as sessment has to be made under S. 26 2 . The provisions relating to assessment on reconsti tuted or newly companystituted firms, and on suc cession to the business are obligatory. There lore even when there is change in the owner ship of the business carried on by a firm on reconstitution or because of a new companystitu tion, assessment must still be made upon the firm. When there is succession, the successor and the person succeeded have to be assessed each in respect of his actual share. This scheme of assessment furnishes the reason Tor omitting reference to dissolution of a firm from S. 44 when such dissolution is number accompanied by discontinuance of the business. A firm after it has discontinued its business, whether it is dissolved or number, will therefore be assessed either under section 25 1 prematurely, or in the year of assessment in both cases the procedure of assessment is as under section 23 3 and 4 supplemented by sub- section 5 . Section 44 provides an added incident that all persons who were partners at the time of discontinuance are jointly and severally liable to pay the tax payable by the firm. Under section 23 5 by the second proviso to clause a in the case of a registered firm the firm is liable to pay tax on the share of the income of a partner only in the case of a partner who is number-resident. On the discontinuance of the business of a firm, however, by section 44 a joint and several liability of all partners arises to pay tax due by the firm. Except the general provisions relating to premature assessment under section 25 1 and assessment on succession under section 26 2 there is, in the Act, numberprovision which imposes joint and several liability on members of an association of persons, on dissolution or discontinuance of business and that is presum ably the reason why S. 44 was enacted as it stood prior to its amendment in 1958. Absence of reference to dissolution of a firm number result ing in discontinuance in S. 44 was therefore a logical sequal to the provisions relating to assessment of firms companytained in Ch. IY, espe cially Ss. 23 5 , 25 1 , 26 1 and 2 . Balmokand Radheshyam was an unregistered firm and by the discontinuance of the business it neither ceased to be liable to pay tax on the income earned by it, number companyld a procedure different from the one prescribed under Chapter IV apply for the assessment of the income of that firm. We may observe that we have proceeded to decide this case on the footing that the business of the firm was discontinued on the dissolution of the firm. It is however necessary once more to observe, as we did in C. A. Abrahams case, that the Income-tax Act provides a companyplete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the revenue authorities. It is for the revenue authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of its extraordinary jurisdiction companyferred on recognised by the Constitution in matters relating to assessment, levy and companylection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do number possess. In attempting to bypass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the Revenue Authorities, the party approaching the Court has often to ask the Court to make assumptions of facts which remain to be investigated by the Revenue Authorities.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 316 of 1959. Appeal by special leave from the judgment and decree dated August 22, 1959 of the Madras High Court in Appeal No. 282 of 1952. S. Pathak, B. Dutta, T.R. Ramchandra, J.B. Dadachanji, C. Mathur and Ravinder Narain, for the appellants. N. Sanyal, Solicitor General of India, K. Jayaram and R. Ganapathy Iyer, for respondent number 1 Panchapagesa Iyer, M.P. Swami and R. Thiagarajan, for respondent number 2. December 11, 1963. The Judgment of the Court was delivered by DAS GUPTA J.-Thirteen-month old Bhakthavathsalam brought this suit for partition on a claim that on his birth he became a member of the joint Hindu family which his father R. Sadagopa Naidu, the first defendant, in the suit, formed with the other nine persons impleaded as defendents 2 to 10. His case is that Padmavathi and Sadagopa were validly married on June 24, 1948 and of that marriage he was born. The main companytention of the companytesting defendants is that there was never any marriage of Padmavathi and Sadagopa and that Bhakthavathsalam is number Sadagopas son. On both these points the Trial Court found the plaintiffs case proved and rejected the defence pleas. At the trial a further point was raised that even if any marriage between Padmavathi and Sadagopa did take place that was number a valid marriage as Padmavathi was a Brahmin girl and Sadagopa a Shudra. The Trial Court was of opinion that Padmavathi was a Brahmin, and as admittedly Sadagopa was a Shudra, the marriage would be invalid according to the Hindu Law as it stood before the Hindu Marriages Validity Act, 1949. It held however that the position had been entirely changed by section 3 of this Act and that even if Padmavathi belonged to the Brahmin caste and number to the caste to which Sadagopa belonged the marriage is valid under the existing law. The validity of the Act itself appears to have been challenged before the Trial Court, but, this was rejected. In the result, the Trial Court passed a preliminary decree for partition providing for allotment to the plaintiff of 1/8th share of the property set out in the plaint. Some other directions were also given in the decree, with which however we are number companycerned. On appeal by the defendants, the High Court of Judicature at Madras agreed with the Trial Court that Padmavathi and Sadagopa had been duly married and that the plaintiff Bhakthavathasalam was the issue of that marriage, being born of Padmavathi to Sadagopa. The High Court was however of opinion that Padmavathi was a Shudra, the same as Sadagopa. Assuming however for arguments sake that Padmavathi was a Brahmin the High Court agreed with the Trial Court that the marriage was validated by the Hindu Marriages Validity Act, 1949, and so, the plaintiff would have all the rights of legitimate son vis-a-vis the companyarcenary to which his father belonged. The validity of the Act was unsuccessfully challenged. Accordingly, the High Court affirmed the judgment and decree passed by the Trial Court and dismissed the appeal. Against this decision of the High Court the present appeal has been filed by the defendants with special leave. In support of the appeal, Mr. Pathak tried first to attack the companycurrent findings of facts of the companyrts below as regards the marriage between Sadagopa and Padmavathi and the fact of the plaintiff being born of Padmavathi to Sadagopa in that marriage. Learned companynsel wanted to. say that the findings of the High Court on these points were vitiated by misreading of important items of evidence. He companyld number however point out any such misreading number any other error to justify our re-assessment of the evidence Having failed in this attempt Mr Pathak companytended that as a matter of law the plaintiff did number become a legitimate son of Sadagopa inspite of the provisions of the Hindu Marriages Validity Act, 1949. According to the learned companynsel the only effect of this Act is that the marriage becomes valid and it has numbereffect as regards the legitimacy of the child born before the date of the Act. The relevant provisions of the Act is in s. 3 and is in these words- Notwithstanding anything companytained in any other law for the time being in force or in any text, or interpretation of Hindu law, or in any custom or usage, numbermarriage between Hindus shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to different religions, castes, sub-castes or sects. For his proposition the learned companynsel companyld number cite any authority and that is natural because the companytention raised is entirely misconceived and can be characterised as extravagant. He tried to persuade us however that a proper companystruction of the words used in the section,justifies the companyclusion that it was the status of the parties to the marriage that was only sought to be affected. He companyceded that in the case of every marriage celebrated after the date of the Act, the result of the marriage being valid would be, that the children born of the marriage would be legitimate, but argued that the same result would number follow in the case of a marriage which having been celebrated before the date of the Act was invalid at the time and the children were illegiti- mate then. The illegitimate children , he argues, were number made legitimate by this Act. For that purpose an express provision was necessary, according to the learned companynsel. In support of his arguments he has drawn our attention to the wordings of s. 1 of the Hindu Widows Re-Marriage Act, 1856, which is in these words- No marriage companytracted between Hindus shall be invalid, and the issue of numbersuch marriage shall be illegitimate, by reason of the women having been previously married or betrothed to another person who was dead at the time of such marriage, any custom and any inter- pretation of Hindu law to the companytrary numberwithstanding. The absence of any phrase similar to the issue of numbersuch marriage shall be illegitimate in the Hindu Marriages Validity Act, 1949, is claimed by the learned companynsel to support his companytention. We cannot agree. In our opinion, the use of the words the issue of numbersuch marriage shall be illegitimate was number really necessary in s. 1 of the Hindu Widows Re-Marriage Act, and even without these words the effect of a marriage being valid would necessarily have been that the, issue of the marriage was legitimate. These words were put in the section., by the legislature in 1856 as a matter of abundant, caution. The absence of such words in the Hindu Marriages Validity Act, 1949 is of numberconsequence. If the Act had number retrospectively validated marriages celebrated before the date of the Act, the children of those marriages companyld number have claimed to be legitimate. The Act was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different,, castes, sub-castes and sects. It is idle to companytend that the object of the legislature was only to regu- larise the status of the husband and the wife. That certainly was part of the object. But equally important, or perhaps more important object was that the children of the marriages would become legitimate. We have therefore companye to the companyclusion that even if the Trial Court was right in thinking that Padmavathi was a Brahmin girl and number a Shudra, the position in law was, as found by the companyrts below, viz., it was a valid Hindu marriage and Bhakthavathasalam a legitimate son of Sadagopa with all the rights of a companyarcener in regard to the joint family properties and other matters. No other point was urged in appeal.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 687 of 1962. Appeal -by special leave from the judgment and decree dated December 1, 1961, of the Punjab High Court at Chandigarh, in Execution Second Appeal No. 586 of 1960. L. Mehta, for the appellant. L. Gosain, K. K. Jain and P. C. Khanna, for the respondents Nos. 2 to 6. 1963. February 20. The judgment of the Court was delivered by HIDAYATULLAH J.-This appeal with the special leave of this Court arises out of execution of a decree for pre-emption passed in favour of the appellant Jang Singh. By the order under appeal the High Court has held that jang Singh had number deposited the full amount as directed by the decree within the time allowed to him and his suit for pre-emption must therefore be ordered to be dismissed and also the other proceedings arising therefrom as there was numberdecree -of which he companyld ask execution. The facts of the case are simple. Jang Singh filed a suit for pre-emption of the sale of certain lands against Brij Lal the first respondent the vendor , and Bhola Singh the second respondent the vendee in the Court of Sub-judge 1st Class, Sirsa. On October 25, 1957, a companypromise decree was passed in favour of jang Singh and he was directed to deposit Rs. 5951 less Rs. 1000 already deposited by him by May 1, 1958. The decree also ordered that on his failing to make the deposit punctually his suit would stand dismissed with companyts. On January 6, 1958, jang Singh made an application to the Sub judge, Sirsa, for making the deposit of the balance of the amount of the decree. The Clerk of the Court, which was also the executing Court, prepared a challan in duplicate and handed it over with the application to jang Singh so that the amount might be deposited in the Bank. In the challan and in the order passed on the application, so it is alleged Rs. 4950 were mentioned instead of Rs. 4951. jang Singh took the challan and the application and made the deposit of the wrong balance the same day and received one companyy of the challan as an acknowledgement from the Bank. In May, 1958, he applied for and received an order for possession of the land. It was reported by the Naib Nazir that the entire amount was deposited in Court. Bhola Singh then applied on May 25, 1958, to the Court for payment to him of the amount lying in deposit and it was reported by the Naib Nazir on that application that Jang Singh had number deposited the companyrect amount and the deposit was short by one rupee. Bhola Singh applied to the Court for dismissal of jang Singhs suit, and for recall of all the orders made in jang Singhs favour. The Sub Judge, Sirsa, accepted Bhola Singhsapplication observing that in pre-emption cases a Court had numberpower to extend the time fixed by the decree for payment of the price and the preemptor by his failure to deposit the companyrect amount had incurred the dismissal of the suit under the decree. He ordered also the reversal of the earlier orders passed by him in favour of Jang Singh and directed that possession of the fields be restored to the opposite party. jang Singh appealed against that order. The District judge recorded the evidence of the Execution Clerk, the Revenue Accountant, Treasury ice and jang Singh. He also examined Bhola Singh. the learned District judge held that the record of the case showed that on the day the case was companypromised and the decree was passed Jang Singh was number present and did number know the exact decretal amount. The learned District judge assumed that it was the duty of jang Singh to be punctual and to find out the exact amount before he made the deposit. He, however, held that as jang Singh had approached the Court with an application intending to make the deposit to be ordered by the Court, and the Court and its clerk made a mistake by ordering him to deposit an amount which was less by one rupee, jang Singh was excused in as much as the responsibility was shared by the Court. The learned District Judge, therefore, held that this was a case in which jang Singh deserved to be relieved and he came to the companyclusion that jang Singh was prevented from depositing the full amount by the act of the Court. He companycluded thus the deposit made was a sufficient companypliance with the terms of the decree. The order of the Sub Judge, Sirsa dismissing the suit was set aside. Bhola Singh appealed to the High Court. This appeal was heard by a learned single.judge who was of the opinion that the decree which was passed was number companyplied with and that under the law the time fixed under the decree for the payment of the decretal amount in pre-emption cases companyld number be extended by the Court. He also held that the finding that the short deposit was due to an act of the Court was unsupported by evidence. He accordingly set aside the decision of the learned District judge and restored that of the Sub-judge, Sirsa. The facts of the case almost speak for themselves. A search was made for the application on which the order of the Court directing a deposit of Rs. 4950 was said to be passed. That application remained untraced though the District Judge adjourned the case more than once. It is, however, quite clear that the challan was prepared under the Courts direction and the duplicate challan prepared by the Court as well as the one presented to the Bank have been produced in this case and they show the lesser amount. This challan is admittedly prepared by the Execution Clerk and it is also an admitted fact that Jang Singh is an illiterate person. The Execution Clerk has deposed to the procedure which is usually followed and he has pointed out that first there is a report by the Ahmed about the amount in deposit and then an order is made by the Court on the application before the challan is prepared. It is, therefore, quite clear that if there was an error the Court and its officers largely companytributed to it. It is numberdoubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligation-, under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does number leave the litigant to his own devices, to ensure that the companyrect information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does number altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is numberhigher principle for the guidance of the Court than the one that numberact of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim Actus curiae neminem gravabit. In the present case the Court companyld have ordered Jang Singh to make the deposit after obtaining a certified companyy of the decree thus leaving it to him to find out the companyrect amount and make the companyrect deposit. The Court did number do this. The Court,, on the other hand, made an order and through its clerk prepared a challan showing the amount which was required to be deposited. jang Singh carried out the direction in the order and also implicit in the challan, to the letter. There was thus an error companymitted by the Court which the Court must undo and which cannot be undone by shifting the blame on jang Singh. To dismiss his suit because Jang Singh was also partly negligent does number exonerate the Court from its responsibility for the mistake. Jang Singh was expected to rely upon the Court and its officers and to act according to their directions. That he did so promptly and fully is quite clear. There remains, thus, the wrong belief induced in his mind by the action of the Court that all he had to pay was stated truly in the challan and for this error the Court must take full responsibility and it is this error which the Court must set right before the suit of jang Singh can be ordered to be dismissed. The learned single judge of the High Court companysidered the case as if it was one of extension of time. He reversed the finding given by the District Judge that the application made by Jang Singh did number mention any amount and the ice reported that only Rs. 4950 were due. The learned single judge exceeded his jurisdiction there. It is quite clear that once the finding of the District judge is accepted-and it proceeds on evidence given by jang Singh and the Execution Clerk-the only companyclusion that can be reached is that jang Singh relied upon what the Court ordered and the error, if any, was substantially the making of the Court. In these circumstances, following the well-accepted principle that the act of Court should harm numberone, the District Judge was right in reversing the decision of the Sub. Judge, Sirsa. The District judge was, however, in error in holding that the decree was sufficiently companyplied with. That decree companyld only be fully companyplied with by making the deposit of Re. 1 which the District judge ought to have ordered. In our opinion the decision of the learned single judge of the High Court must be set aside. The mistake companymitted by the Court must be set right. The case must go back to that stage when the mistake was companymitted by the Court and the appellant should be ordered to deposit the additional rupee for payment to Bhola Singh. If he fails to make the deposit within the time specified by us his suit may be dismissed but number before. We may point out however that we are number deciding the question whether a Court after passing a decree for re-emption can extend the time originally fixed for deposit of the decretal amount. That question does number arise here. In view of the mistake of the Court which needs to be righted the parties are relegated to the position they occupied on January 6, 1958, when the error was companymitted by the Court which error is being rectified by us nunc pro tune. The appeal is, therefore, allowed. The appellant is ordered to deposit Re.1 within one month from the date of the receipt of the record in the Court of the Sub-judge, Sirsa.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 376 of 1961. Appeal by special leave from the judgment and decree dated March 5, 1959, of the Andhra Pradesh High Court, in Second Appeal No. 545 of 1955. Rajagopal and K. R. Chaudhuri, for the appellants. V. Viswanatha Sastri and B. K. B. Nadu, for the respondent. 1963. March 29. The judgment of the Court was delivered by GAJENDRAGADKAR J.-This appeal by special leave is directed against the decision of a learned single judge of the High Court of Andhra Pradesh in a second appeal preferred before it by the respondent. There is numberdoubt that under Art.133 3 of the Constitution, numberappeal lies to this companyrt from the judgment, decree, or final order of one Judge of a High Court, and it has been the companysistent practice of this Court number to encourage applications for special leave against the decisions of the High Courts rendered in second appeals but in cases where the petitioners for special leave against the second appellate judgments delivered by a single judge of the High Court are able to satisfy this Court that in allowing a second appeal, the High Court has interfered with questions of fact and has thus companytravened the limits prescribed by section 100 of the Code of Civil Procedure, it is number easy to reject their claim for special leave. As early as 1890 in the case of Mussummat Durga Choudhrain v. Jawahir Singh Choudhri, 1 , the Privy Council emphatically declared that under s.584 of the earlier Code, which companyresponds to s.100 of the present Code, there is numberjurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be and they added a numbere of warning that numberCourt in India has power to add to, or enlarge, the grounds specified in s.100. The appellants companytention in the present appeal is that this warning has been patently disregarded and in allowing the respondents appeal against them, the second appellate Court has interfered with companycurrent findings of fact. That is the sole ground on which leave has been granted to the appellants and on which we propose to allow this appeal. The facts leading to the present appeal are number many and they lie within a very narrow companypass. Survey No.440-B situated in Rakatla village originally belonged to one Boya Krishnappa and it measured 166 acres. In the suit filed by the appellants in the Court of Subordinate Judge, Anantapur in 1951 0. S. No. 72 of 1953 , the appellants alleged that 40 acres out of the said land had been purchased by their father, Chinna Venkataramanappa from Boya Krishnappa about 35 years before the date of the suit for companysideration. 1 1890 L. R. 17 1. A. 122. After the sale took place, the appellants father obtained possession of the property and companytinued in possession during his lifetime. On his death, the appellants mother acting as their guardian remained in possession and management of the said property until 1947. The appellants family had been paying the assessment for the land all the time and had been in its possession in an open and peaceful manner until 1947. It appears that the respondent had obtained a mortgage decree in 0. S. No. 94/1940 against Boya Krishnappa in respect of the entire SurveyNo.440-B and in pursuance of the said mortgagedecree, brought the mortgaged property to sale.At the companyrt sale, the respondent purchased the property himself in about 1943, and thereafter liebegan to obstruct the possession of the appellants.In 1947,the respondent managed to enter upon theland in suit unlawfully and that gave rise to the present suit. The cause of action for the suit is thus the wrongful dispossession of the appellants by the respondent by about 1947. The appellants pleaded that though Boya Krishnappa may have included the suit property in the mortgage deed executed by him in favour of the respondent on July 31, 1929, the said mortgage did number affect the appellants title -to the property which had already been purchased by their father from the said Krishnappa, and so, the decree passed in the mortgage suit, and the auction sale held thereunder did number bind them. It is on these allegations that the appellant claimed a declaration of their title to the suit property and asked for a decree for possession as well as mesne profits, past and future. This claim was resisted by the respondent. He denied that the appellants father had purchased the property from Krishnappa and that the assessment for the land had ever been paid by the appellants family as owners. According to him, the appellants had been cultivating the land in suit as tenants of Boya Krishnappa, and so, the mortgage executed by Krishnappt in his favour was binding against them and so was the mortgage decree and the auction sale that followed it. On these pleadings, the trial Court framed two substantive issues. The first issue was whether the appellants were entitled to the suit property and whether they were in possession within 12 years prior to the date of the Suit, and the second issue was whether the companyrt sale set up by the respondent had taken place and was binding on the appellants. Both these issues were answered by the trial judge in favour of the appellants. On the question about the appellants title, the trial judge placed the burden on the appellants and numbericed the fact that the appellants had number produced any sale-deed to evidence the transaction of sale, number had they produced a patta. He, however, examined the other documentary evidence adduced by appellants and found that the said evidence satisfactorily proved both their title and their possession within 12 years before the date of the suit. Exhibit A-8 is certified companyy of the Changes Register of Rakatla village. This document showed the names of Boya Krishnappa and Venkataramanappa, the father of the appellants as the Pattadars. After the death of Venkataramanappa a circle was put round his name and a remark was made against it that since he had died, his sons, the appellants Venkanna and Ramappa, minors represented by their mother Lakshmamma as their guardian, were registered as Pattadars. According to the trial Judge, this entry must have been made prior to 1926, because in 1926, 1927 and 1928 there were numberfurther changes. Then the trial judge examined Ext. A-1 which showed that the Kulam Number of 440-B was mentioned as 210. A number of cist receipts were produced by the appellants Exts. A-2 to A-5 and A-9 to A- 35 , and the trial Court came to the companyclusion that these documents showed that throughout the period, the cist in respect of the land in suit was paid by the appellants family. In fact, the respondent clearly admitted that the appellants family had been in possession of the land, but he explained the said possession on the allegation that they were the tenants of Boya Krishnappa. The revenue documents on which the appellants relied were sought to be explained away by the respondent on the ground that the village officers were his enemies and they had fabricated the cist receipts. These companytentions were rejected by the trial Court, and giving effect to the documentary evidence, it made a finding in favour of the appellants both in respect of their title and their possession within 12 years from the date of the suit. The fact that the appellants fathers name was number shown in the diglot exhibit B-1, did number appear material to the trial Court, because the said register was published in 1927 and at the time when it was prepared, the information about the transaction in favour of the appellants father may number have reached the revenue officers. It is true that the appellants had sought to prove their possession of the land by producing certain rent numberes alleged to have been executed in their favour by their tenants Exts. A-6, A-7, A-36 A-37 , but the trial Court thought that these documents companyld number be accepted as satisfactory or genuine. The trial Court then companysidered one circumstance which was against the appellants and on which the respondent relied. It appears that when the respondent put the mortgaged properties to sale in execution of his mortgage decree against Krishnappa, a Commissioner was appointed to value the crops standing in the land and in those proceedings, the appellants stood sureties for the crops at the instance of Krishnappa. The respondents companytention was that crops were standing on the suit land and that the appellants would number offer to give security for the said crops when the mortgagor Krishnappa was directed to furnish security for the value of the crops on the lands companyered by the mortgage if they had been the owners of a part of the property. The trial Court was number impressed by this argument because it was number satisfied that the circumstances under which the said surety bond was executed clearly showed that the appellants had furnished security for any crops standing on the land at present in suit. it clearly appears from the Commissioners report then made that crops were standing on a small portion of the entire survey No. 445-B. The security bond was in English and there was numberhing to show that the surety offered by the appellants had anything to do with any crop standing on their land. That is why the trial Court was number prepared to attach any significance to this circumstances Since it found that the property belonged to the appellants family either by transfer or by reason of adverse possession, it held that the mortgage executed by Krishnappa in favour of the respondent and subsequent proceedings under the said mortgage did number affect the appellants title. That is how the Suit filed by the appellants was decreed. The respondent challenged this decree by preferring an appeal in the Court of the District judge at Anantapur. The learned District judge framed one companyprehensive point for determination and that was whether the appellants had proved title to and possession of the suit property within 12 years before the date of their suit. Both parts of this issue were answered by him in favour of the appellants. Like the trial Court, he also numbericed the fact that there was numbersale-deed or patta on which the appellants relied, but be companysidered the oral and documentary evidence produced by both the parties and held that the trial judge was right in the findings recorded by him. In his opinion, the entire evidence in the case and the probabilities and circumstances made out by unimpeachable documentary evidence helped the appellants to prove both their title and their possession within 12 years before the date of the suit. Both the companyrts have numbericed the fact that the respondent himself had admitted that about 20 or 25 years ago, all the lands in the locality including surevy No. 440-B were banjar, they were of numbervalue and people were getting them for the mere asking. In fact, the mortgage deed executed in favour of the respondent supports this admission. The mortgage was in regard to 166 acres and the amount advanced was Rs. 650/only. This aspect of the matter has relevance in dealing with the question as to whether a registered document was necessary to companyvey title to the appellants father in respect of the property in suit. It will thus be seen that the effect of the findings companycurrently recorded by the companyrts of fact is very clear. The property in suit when it was purchased was number shown to be worth more than Rs. 100/- and so, it was number unlikely that a sale as alleged by the appellants may have taken place between their father and Krishnappa but since the evidence about the said sale was number satisfactory, the two companyrts companysidered their evidence about possession with a view to decide whether they had established a possessory title as claimed by them. The possession of the land was admitted to be with the appellants family for more than the statutory period and as such, it was open and companytinuous. The plea of the respondent that the said possession was that of a tenant was rejected, and so, the said possession in law was adverse against the whole world. It was also clear that the possession companytinued until 1947 which was within twelve years before the date of the suit, These findings were based on appreciation of oral and documentary evidence examined in the light of the circumstances of the case and the probabilities. No question of companystruction of any document arose, number did any question of drawing an inference of law arise in this case. The questions which arose were simple questions of fact and on them companycurrent findings were recorded by the two companyrts. Aggrieved by the decree passed in his appeal by the District Court, the respondent moved the High Court under section 100 P. C., and his appear was heard by Sanjeeva Rao Nayudu J. The learned judge emphasised the fact that numbersale deed had been produced by the appellants to prove their title, and then examined the documentary evidence on which they relied. He was inclined to hold that Ext. A-8 had number been proved at all and companyld number, therefore, be receive in evidence. It has been fairly companyceded by Mr. Sastri for the respondent before us that this was plainly erroneous in law. The docu- ment in question being a certified companyy of a public document need number have been proved by calling a witness. Besides, numberobjection had been raised about the mode of proof either in the trial Court or in the District Court. The learned judge then examined the question as to whether the said document was genuine, and he thought that it was a doubtful document and numberweight companyld be attached to it. A similar companyment was made by him in respect of the cist receipts on which both the companyrts of fact had acted. In his opinion, the said documents were also number genuine and companyld number be accepted as reliable. He then referred to the fact that the appellants had offered security in proceedings between the respondent and his judgment-debtor Boya Krishnappa, and held that the said companyduct destroyed the appellants case and, he also relied on the fact that the leasedeeds produced by the appellants had been disbelieved and that also weakened their case. It is on these companysiderations that the learned judge set aside the companycurrent findings recorded by the companyrts below, allowed the second appeal preferred by the respondent and directed that the appellants suit should be dismissed with companyts throughout. It is the validity of this decree which is challenged before us by the appellants and the principal ground on which the challenge rests is that in reversing companycurrent findings of fact recorded by the companyrts below, the learned judge has clearly companytravened the provisions of s. 100 of the Code. The question about the limits of the powers companyferred on the High Court in dealing with second appeals has been companysidered by High Courts in India and by the Privy Council on several occasions. One of the earliest pronouncements of the Privy Council on this point is to be found in the case of Mst. Durga Choudhrain 1 . In the case of Deity Pattabhiramaswamiv. S. Hanymayya 2 , this Court had occasion to refer to the said decision of the Privy Council and it was companystrained to observe that numberwithstanding such clear and authoritative pronouncements on the scope of the provisions of s. 100, C. P. C., some learned.judges of the High Courts are disposing of second appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does number possess, a gambling element in litigation and companyfusion in the mind of the litigant public. On this ground, this Court set aside the second appellate decision which had been brought before it by the appellants. In R. Ramachandra Ayyar v. Ramalingam Chettiar 3 , this Court had occasion to revert to the same subject once again. The true legal position in regard to the powers of the second appellate Court under s. 100 was once more examined and it was pointed out that the learned judges of the 1 1890 L.R, 17 J.A. 122. 2 A I.R 1959 S.C. 57. 3 1963 3 S.C.R. 604. High Courts should bear in mind the caution and warning pronounced by the Privy Council in the case of Mst. Durga Chowdhrain 1 and should number interfere with findings of fact. It appears that the decision of this Court in Deity Pattabhiramaswamy 2 , was in fact cited before the learned single judge, but he was inclined to take the view that some aspects of the provisions companytained in s. 100 of the Code had number been duly companysidered by this Court and so, he thought that it was open to him to interfere with the companyclusions of the companyrts below in the present appeal. According to the learned judge, it is open to the second appellate Court to interfere with the companyclusions of fact recorded by the District judge number only where the said companyclusions are based on numberevidence, but also where the said companyclusions are based on evidence which the High Court companysiders insufficient to support them. In other words, the learned Judge seems to think that the adequacy or sufficiency of evidence to sustain a companyclusion of fact is a matter of law which can be effectively raised in a second appeal In our opinion, this is clearly a misconception of the true legal position. The admissibility of evidence is numberdoubt a point of law, but once it is shown that the evidence on which companyrts of fact have acted was admissible and relevant, it is number open to a party feeling aggrieved- by the findings recorded by the companyrts of fact to companytend before the High Court in second appeal that the said evidence is number sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the companyrt of facts and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been 1 1890 L.R. 17 I.A. 122 2 1963 3 S.C. R. 604. accepted without dissent and it can be stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, companytravened the limits prescribed by s. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has number been served by the findings of fact recorded by companyrts of fact but on such occasions it is necessary to remember that what is administered in companyrts is justice according to law and companysiderations of fair play And equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court companytravenes the express provisions of section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling and that is a reproach which judicial process must companystantly and scrupulously endeavour to avoid.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDlCTION Civil Appeal No. 603 of 1962. Appeal by special leave from the judgment and order dated March 28, 1962, of the Orissa High Court in Misc. Appeal No. 112 of 1961. C. Setalvad, Ranadeb Chaudhri, M. K. Banerjee, S.N. Andley and Rameshwer Nath, for the appellant. Gopalakrishnan, for respondent No. 2. 1963. March 26. The Judgment of the Court was delivered by WANCHOO J.-This is an appeal by special leave against the order of the Orissa High Court. The appellant stood for election to the Orissa Legislative Assembly from the Choudwar companystituency in the district of Cuttack. He was opposed by three persons who are the respondents before us. The appellant was elected. Then followed an election petition by respondent No. 1, Satrughna Sahu. To this election petition, the appellant as well as the other two candidates who had stood for election were made opposite parties. When the election petition came to be heard an objection was raised before the tribunal that the petition was number in accordance with s. 82 of the Representation of the People Act, 1951 43 of 1951 , hereinafter referred to as the Act , and that this defect was fatal to the petition in view of s. 90 3 thereof. This objection was heard as a preliminary objection and the tribunal came to the companyclusion that as the petition was number framed in accordance with s. 82, the defect was fatal. It therefore dismissed the petition. Satrughna Sahu then appealed to the High Court under s.116-A of the Act. This appeal was heard on March 5 and 6, .962, and apparently was fixed for judgment on March 8, 1962. On March 7, an application was filed by Satrughna Sahu for withdrawal of the appeal, as he did number want to prosecute it further. It was put up for companysideration on March 8, 1962, and the judgment in the main appeal, which had already been prepared for delivery, was therefore withheld pending the disposal of the withdrawal application. The companytention on behalf of Satrughna Sahu was that he was entitled as of right to withdraw the appeal. He was supported in this by the appellant but the other two respondents objected to withdrawal and companytended that Satrughna Sahu had numberabsolute right to withdraw the appeal on the analogy of 0. XXIII, r. 1 1 of the Code of Civil Procedure, and that principles analogous to ss. 109 and 110 of the Act applied to an application for withdrawal of an appeal. The High Court held that it must be guided by the principles companytained in ss. 109 and 110 of the Act when companysidering an application for withdrawal of the appeal before it. It therefore went on to companysider whether Satrughna Sahu should be given permission to withdraw the appeal and decided number to give him such permission. Finally it ordered that though the prayer of the appellant for withdrawal was rejected, the application for withdrawal with all the companynter-affidavits filed in opposition be kept alive for the disposal of the question of withdrawal of the election petition by the tribunal. This order was passed on March 28, 1962, and the High Court then proceeded to deliver judgment in the main appeal on the same day and the order of the election tribunal dismissing the election petition was set aside, and the petition was remanded for disposal according to law. The appellant then made two applications for certificates to appeal to this Court, which were dismissed. Thereupon he filed two petitions for special leave before this Court, which were allowed, and two appeals resulted therefrom one against the judgment of the High Court in the matter of withdrawal application and the other in the matter of the main appeal. The present appeal is with respect to the withdrawal application and the companytention of the appellant before us is two-fold. In the first place it is urged that Satrughna Sahu who was the appellant in the appeal before the High Court had an absolute right to withdraw the appealon the analogy of the provision companytained in 0.XXIII, r. 1 1 , and the High Court was in error in holding that principles analogous to ss. 109 and 110 of the Act applied to the withdrawal of an appeal filed under s. 116-A of the Act and therefore after the withdrawal application had been filed there was numberoption to the High Court but to permit the withdrawal. In the second place, it is urged that even if the view taken by the High Court was companyrect it was the duty of the High Court to companysider all the matters specified in ss. 109 and 110 of the Act and decide for itself whether the application for withdrawal should be granted and it was number open to the High Court to companyvert the application for withdrawal of the appeal as if it was an application for withdrawal of the election petition and refer it to the election tribunal for disposal. The first question therefore that falls for companysideration is whether Satrughna Sahu who made the withdrawal application had an absolute right to withdraw the appeal on the analogy of the provision companytained in XXIII, r. 1 1 , and therefore when the application for withdrawal was made in this case the High Court was bound to allow it and permit the withdrawal of the appeal. Section 116-A was inserted in the Act in 1956, and the relevant part thereof is in these terms - ll6A. Appeals against orders of Election Tribunals- 1 An appeal shall liefromevery order made by a Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal is situated. The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter. as if the appeal were an apreal from an original decree passed by a civil companyrt situated within the local limits Of its civil appellate jurisdiction Provided that where the High Court companysists of more than two judges every appeal under this Chapter shall be heard by a bench of number less than two judges. Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section 99 Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appe- llant had sufficient cause for number preferring the appeal within such period. Where an appeal has been preferred against an order made under clause b of section 98 or section 99, the High Court may, on sufficient cause being shown, stay operation of the order appealed from and in such a case the order shall be deemed never to have taken effect under sub-section 1 of section 107, and a companyy of the stay order shall immediately be sent by the High Court to the Election Commission and the Speaker or Chairman as the case may be of the House of Parliament or of the State Legislature companycerned. Every appeal shall be decided as expedi- tiously as possible and endeavour shall be -made to determine it finally within three months from the date on which the memorandum of appeal is presented to the High Court. 6 It will be seen that the provision as to appeals is in Chap. IVA of the Act while the subject of withdrawal and abatement of election petition is dealt with in Chap. IV, in which ss. 109 and 110 occur. Before we deal with the powers of the High Court in the matter of withdrawal of an appeal under s. 116A, we may refer to the scheme -of- Chap. IV, which companytains ss. 108 to 116, relating to withdrawal and abatement of election petitions. Section 108 provides that an election petition may be withdrawn only by leave of the Election Commision if an application for its withdrawal is is made before any Tribunal has been appointed for the trial of such petition. Section 109 makes provision for withdrawal of petitions after appointment of a tribunal, and provides that in such a case an election petition may be withdrawn only by leave of the tribunal. It also provides that where an application for withdrawal is made before the tribunal, numberice thereof specifying the date for the hearing of application shall be given to all other parties to the petition and shall be published in the official gazette. Section 110 provides for procedure for withdrawal of petitions before the election companymission or the tribunal, and sub-s. 2 thereof lays down that numberapplication for withdrawal shall be granted if in the opinion of the election companymission or of the tribunal, as the case may be, such application has been induced by any bargain or companysideration which ought number to be allowed. Sub-section 3 provides that if the application for withdrawal is granted, the petitioner shall be ordered to pay the companyts of the respondents theretofore incurred or such portion thereof as the tribunal may think fit further numberice of the withdrawal shall be published in the official gazette by the election companymission or by the tribunal, as the case may be and finally any person who might himself have been a petitioner, may within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and upon companypliance with the companyditions of s. 117 as to security, shall be entitled to be so substituted and to companytinue the proceedings upon such terms as the tribunal may think fit. Section III provides for report of withdrawal by the tribunal to the election companymission. Sections 112 to 116 deal with abatement of election petitions on the death of a sole petitioner -provision is made therein for publication of the numberice of abatement in the official gazette, and s. 115 provides that on such numberice, any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon companypliance with the companyditions of S. 117 as to security shall be entitled to be so substituted and to companytinue the proceedings upon such terms as the tribunal may think fit. Section 116 makes a similar provision in the case of death of a sole respondent. It will be seen from these provisions in Chap. IV that the petitioner in an election petition has number an absolute right to withdraw it number has the respondent the absolute right to withdraw from opposing the petition in certain circumstances. The basis for this special provision as to withdrawal of election petitions is to be found in the well established principle that an election. petition is number a matter in which the only persons interested are candidates who strove against each other at the elections. The public of the companystituency also is substantially interested in it, as an election is an essential part of the democratic process That is why provision is made in election law circumscribing the right of the parties thereto to withdraw. Another reason for such provision is that the citizens at large have an interest in seeing and they are justified in insisting that all elections are fair and free and number vitiated by companyrupt or illegal practices. That is why pro- vision is made for substituting any elector who might have filed the petition in order to preserve the purity of elections see Kamaraja Nadar v. Kunju Thevar 1 . At the same time, though these principles are the basis of the provisions to be found in Chap. IV of the Act, it is equally clear that but for these provisions it may have been possible for a petitioner to withdraw the election petition absolutely Section 90 1 provides that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 5 of 1908 to the trial of suits. In view of this provision, 0. XXIII r. 1 1 would have applied even to an election petition before the tribunal but for the provisions companytained in Chap. IV. It is because the provisions of the Code of Civil Procedure apply to election petitions subject to the provisions of the Act and the Rules framed thereunder that 0. XXIII, r. 1 1 cannot be applied to the withdrawal of election petitions in view of ss. 108 to 111 thereof, but for these special 1 1959 S. C. R, 583. provisions, 0. XXIII, r. 1 1 would have been applicable, and it is well established that that provision gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. This position with respect to withdrawal of an election petition is number in dispute. The question however is whether the same position applies to the withdrawal of an appeal and this brings us to the companysideration of the provisions of s. 116 A of the Act, which we have already set out above. The powers of the High Court in respect of an appeal under that section are companytained in sub-s. 2 , which lays down that the High Court shall, subject to the Provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil companyrt situated within the local limits of its civil appellate jurisdiction. Sub-s. 2 therefore companyfers all the powers on the High Court and enjoins upon it to follow the same procedure as in the case of appeals from original decree in suits. It is true that the powers of the High Court under sub-s. 2 are subject to the provisions of the Act.This Court had occasion to companysider this matter in T. K. Gangi Reddy v. M. C. Anjaneya Reddy 1 , in companynection with an argument that the High Court had numberjurisdiction to set aside the finding of the election tribunal on questions of fact arrived at on an appreciation of the evidence. In that companynection this Court observed with respect to sub-s. 2 of s. 116A that it was manifest that the jurisdiction of the High Court in the disposal of appeals is similar to that it has in the disposal of appeals from original decrees. No doubt this was subject to the provisions of the Act and numberprovision has been brought to the numberice of the Court which curtailed that jurisdiction. Therefore when an appeal is filed the entire case is reopened 1 1960 22 E. L. R. 261 . in the appellate companyrt. Clearly, therefore, when sub-s. 2 says that the powers, jurisdiction and authority of the High Court is subject to the provisions of the Act, it means that the provision must be an express provision in the Act or such as arises by necessary implication from an express provisions. One such express provision is to be found in the proviso to sub-s. 2 of s. 116A, which lays down that where the High Court companysists of more than two judges, every appeal under this Chapter shall be heard by a bench of number less than two judges. Another express provision is to be found in sub-s. 4 which gives express power to the High Court to stay the operation of the order appealed from and provides that where such a stay order is made, the order appealed from shall be deemed never to have taken effect under sub-s. 1 of s. 107. Again sub-s. 5 enjoins on the High Court to decide the appeal as expeditiously as possible with a direction that it shall be determined finally within three months as far as possible. There is, however, numberexpress provision in Chap. IV-A dealing with appeals, which deals with the question of withdrawal of appeals under that Chapter. Nor do we think that ss. 109 and 110 necessarily imply that an appeal also cannot be withdrawn as a matter of right, unless the procedure laid down in those sections is followed. One reason for this view may at once be stated. The losing party is number bound to file an appeal and if he does number, numberody else has the right to do so. The object apparently is that the election petition filed should, if any voter so desire, be heard and decided. The sections dealing with substitution on death of the petitioner lead to that view see ss. 112-115. There is numbersuch provision for appeals. It seems to us that if Parliament intended that the provisions of ss. 109 and 110 which deal with withdrawal of election petitions before a tribunal shall also apply to withdrawal of appeals before the High Court under Chap. IV- A an express provision companyld have been easily made to that effect in s. 116-A by adding a suitable provision in the section that the provisions of ss. 109 and 110 would apply to withdrawal of appeals before the High Court as they apply to withdrawal of election petitions before the tribunal. In the absence of such a provision in Chap. IV-A, we do number think that the High Court was right in importing the principles of ss. 109 and 110 in the Matter of withdrawal of appeals before the High Court. So far therefore as the question of withdrawal of appeals before the High Court under Chapter IV-A is companycerned., it seems to us that the High Court has the same powers, jurisdiction and authority in the matter of withdrawal as it would have in the matter of withdrawal of an appeal from an original decree passed by a civil companyrt within the local limits of its civil appellate jurisdiction without any limitation on such powers because of ss. 109 and The High Court thus has the same powers jurisdiction and authority and has to follow the same procedure in the matter of withdrawal of appeals under s. 116-A as in the matter of an appeal from an original decree before it, and there is numberwarrant for importing any limitation in the matter on the analogy of ss. 109 and 110 of the Act, which expressly deal only with election petitions and number with appeals under s. 116-A. Let us therefore see what powers the High Court has in the matter of withdrawal of an appeal from an original decree before it and what procedure it has to follow in that behalf. The provisions in the Code relating to withdrawal of suits are to be found in O.XXIII, r. 1. Sub-rule 1 thereof lays down that at any time after the institution of a suit the plaintiff may, as against all or any of the defendants, Withdraw his suit or abandon part of his claims. Sub-rule 2 provides that where the Court is satisfied a that a suit must fail by reason of some formal defect., or b that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of a claim. We have already said that sub-rule 1 gives absolute power to the plaintiff to withdraw his suit or abandon part of his claim against all or any of the defendants, and where an application for withdrawal of a suit is made under O.XXIII, r. 1 1 , the Court has to allow that application and the suit stands withdrawn. It is only under sub-rule 2 where a suit is number being withdrawn. absolutely but is being withdrawn on companydition that the plaintiff may be permitted to institute a fresh suit for the same subject-matter that the permission of the companyrt for such withdrawal is necessary. The provisions of O.XXIII r. 1 1 and 3 also apply in the same manner to withdrawal of appeals. In Kalyan Singh v. Rahmu 1 , it was held that where numberobjection had been filed by the respondent, the appellant had an absolute right to withdraw his appeal at any time be- fore judgment. This view was followed by the Allahabad High Court in Kanhaya Lal v. Partap Chand 2 , where it was held that having regard to O. XXIII, r. 1 1 and s. 107 2 of the Code of Civil Procedure, where numbercross-objection has been filed by the respondent, an appellant has the right to withdarw his appeal unconditionally, his only liability being to pay companyts. In Dhondo Narayan Shiralkar v. Annaji Pandurang Kokatnur 3 , it was held that an appellant is entitled as of right to withdraw his appeal, provided the respondent has number acquired any interest thereunder. There was however difference between the Allahabad and Bombay High Courts as to whether s. 107 2 of the Code of the Civil Procedure would help an appellant in such a case. It is unnecessary for our present purpose to I.L.R. 1901 23 All. 130. 2 1931 29 A.L.J. 232. I.L.R. 1952 Bom, 66. decide whether the absolute right of the appellant to withdraw an appeal unconditionally flows from s. 107 2 or is an inherent right of the appellanton the analogy of 0, XXIII r. 1 11 . But there can be numberdoubt that an appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the companyrt, it has to grant it. The difficulty arising out of any cross-objection under which the respondent might have acquired an interest as pointed out by the Bombay High Court, numberlonger remains in veiw of 0. XLI r. 22 4 , which number permits the cross-objection to be heard even though the appeal is withdrawn. Therefore when the High Court is hearing an appeal from an original decree and an application is made to it to withdrew the appeal unconditionally, it must permit such withdrawal subject to companyts and has numberpower to say that it will number permit the appeal to be withdrawn and will go on with the hearing of the appeal. The power of the High Court under s. 11 6A 2 when hearing an appeal from an election petition is the same as its power when hearing an appeal from an original decree, and the procedure is also the same, for there is numberexpress provision to the companytrary in the matter of withdrawal of an appeal in the Act. Therefore when an appellant under s. 116-A makes an application for an unconditional withdrawal of the appeal, the power of the High Court, companysistently with its power in an appeal from an original decree, is to allow such withdrawal, and it cannot say that it will number permit the appeal to be withdrawn. We opinion that the High Court was in the principles of so. 109 and 110 deal only with the withdrawal of election petitions and number with the withdrawal of appeals. it has been urged that in this view an appeal may be withdrawn even where withdrawal has been induced by bargain or companysideration which ought number be allowed and this would interfere with purity of elections. As the statute stands it seems that the intention was that the provisions about withdrawal and abatement would apply to a petition only when it is either before the companymission or the tribunal. It may have been intended that only one proceeding should be specially provided for and that would ensure the purity of elections. If it was intended that ss. 109 and 110 should also apply to an appeal for which provision was made by s. 116-A, that intention has number been given effect to by proper language. In any case, the position is number the same when an appeal is being withdrawn for generally speaking at that stage a trial has taken place before the tribunal which would ordinarily safeguard such purity. We therefore see numberreason to import the principles of ss. 109 and 110 into withdrawal of appeals on this ground. We are, therefore, of opinion that the High Court should have allowed the application for unconditional withdrawal made by Satrughna Sahu, the appellant before it. Further the High Court in this companynection need number have referred to the affidavits filed on behalf of the other two defeated candidates before it, for such affidavits were irrelevant, if Satrughna Sahu, the appellant before the High Court, was entitled to withdraw the appeal unconditionally and the High Court companyld number refuse such withdrawal. In the view we have taken on the first question raised before us, it is number necessary to deal with the second question, though we may add that as at present advised it seems to us that the High Court was in error in treating the application for withdrawal of the appeal as if it were an application for withdrawal of an election petition under s. 109 and referring the matter to the election tribunal. Even if the High Court had power to refuse an application for withdrawal of an appeal, the proper companyrse for the High Court would be to companysider all that is required by s. 110 itself. However in view of our decision on the first question we need number pursue the point further. We, therefore, allow the appeal, set side the order of the High Court and in view of the unconditional application for withdrawal made by Satrughna Sahu, the appellant before the High Court, order that the appeal before the High Court should stand withdrawn.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 165 of 61. Appeal from the judgment and decree dated December 20, 1955, of the former Andhra Pradesh High Court in Appeal Suit No. 716 of 1952. Narsaraju, Advocate-General for -the State of Andhra Pradesh, and T. V. R. Tatachari, for the appellants. Bhimsankaram, G. Jagapathi Rao and Satyanarayana, for the respondent No. 1. R. Choudhry, for the respondent No. 2. 1963. April 9. The judgment of the Court was delivered by SUBBA RAO J.-This appeal by certificate is preferred against the judgment and Decree of the High Court of Andhra companyfirming those of the Subordinate judge, Bapatla, dismissing the suit filed by the appellants for possession of the plaint schedule properties. The following genealogy will be useful in appreciating the facts and the companytentions of the parties Veeranna d. 2.2.1906 Atchamma Seshamma 1st wife 2nd wife Chimpirayya Pitchayya Raghavamma d.5-5-1945 d. 1-9-1905 Plff.Applt. . Daughter d.1-11-1905 Venkayya Chen- chamma DI, R 1 alleged adopted Subbarao d.28-7-1949 Venkayya Saraswatamma Raghavayya d.24-5-1938 b.28-10-1910 alleged to d. 1916 have been adopted Komalamma by Pitchayya D-2/R-2 Peda Punnayya China Punniayya died unmarried D-3, R-3 1st wife 2nd wife died issue- Subbamma less L.R. of D3/R3 Alivelamma Venkayamma It will be seen from the genealogy that Veeranna had two wives and that Chimpirayya and Pitchayya were his sons by the first wife and Peda Punnayya and China Punnayya were his sons by the second wife. Veeranna died in the year 1906 and his second son Pitchayya had predeceased him on 1-9-1905 leaving his widow Raghavamma. It is alleged that sometime before his death, Pitchayya took Venkayya, the son of his brother Chimpirayya in adoption and it is also alleged that in or about the year 1895, there was a partition of the joint family properties between Veeranna and his four sons, Chimpirayya, Pitchayya, Peda Punnayya and China Punnayya, Veeranna taking only 4 acres of land and the rest of the property being divided between the four sons by metes and bounds. Venkayya died on May 24, 1938, leaving behind a son Subbarao. Chimpirayya died on May 5, 1945 having executed a will dated January 14, 1945 whereunder he gave his properties in equal shares to Subbarao and Kamalamma, the daughter of his pre-deceased daughter Saraswatamma thereunder he also directed Raghavamma, the widow of his brother Pitchayya, to take possession of the entire property belonging to him, to manage the same, to spend the income therefrom at her discretion and to hand over the property to his two grandchildren after they attained majority and if either or both of them died before attaining majority, his or her share or the entire property, as the case may be, would go to Raghavamma. The point to be numbericed is that his daughter-in-law, Chenchamma was excluded from management as well as from inheritance after the death of Chimpirayya. But Raghavamma allowed Chenchamma to manage the entire property and she accordingly came into possession of the entire property after the death of Chimpirayya. Subbarao died on July 28, 1949. Raghavamma filed a suit on October 12, 1950 in the Court of the Subordinate judge, Bapatlal, for possession of the plaint scheduled properties and to that suit, Chenchamma was made the first defendant Kamalamma, the second defendant and China Punnayya, the second son of Veeranna by his second wife, the third defendant. The plaint companysisted of A, B, C, D, D-1 and E schedules, which are alleged to be the properties of Chimpirayya. Raghavamma claimed possession of A, B and C Scheduled properties from the 1st defendant, for partition and delivery of half share in the properties companyered by plaint-schedule D and D-1 which are alleged to belong to her and the 3rd defendant in companymon and a fourth share in the property companyered by plaint-schedule E which are alleged to belong to her and the 1st and 3rd defendants in companymon. As Kamalamma was a minor on the date of the suit, Raghavamma claimed possession of the said properties under the will -half in her own right in respect of Subbaraos share, as he died before attaining majority, and the other half in the right of Kamalamma, as by then she had number attained majority, she was entitled to manage her share till she attained majority. The first defendant denied that Venkayya was given in adoption to Pitchayya or that there was a partition in the family of Veeranna in the manner claimed by the plaintiff. She averred that Chimpirayya died undivided from his grandson Subbarao and, therefore, Subbarao became entitled to all the properties of the joint family by right of survivorship. She did number admit that Chimpirayya executed the will in a sound and disposing frame of mind. She also did number admit the companyrectness of the Schedules attached to the plaint. The second, defendant filed a statement supporting the plaintiff. The third defendant filed a statement denying the allegations in the plaint and disputing the companyrectness of the extent of some of the items in the plaint schedules. He also averred that some of the items belonged to him exclusively and that Chimpirayy a had numberright to the mm. On the pleadings various issues were raised and the main issues, with which we are number companycerned, are issues I and 2, and they are 1 whether the adoption of Venkayya was true and valid and 2 whether Pitchayya and Chimpirayya were divided as alleged by the plaintiff. The learned Subordinate judge, after companysidering the entire oral and documentary evidence in the case, came to the companyclusion that the plaintiff had number established the factum of adop- tion of Venkayya by her husband Pitchayya and that she also failed to prove that Chimpirayya and Pitchayya were divided from each other and in the result he dismissed the suit with companyts. On appeal, a division Bench of the Andhra High Court reviewed the entire evidence over again and affirmed the findings of the learned Subordinate judge on both the issues. Before the learned judges another point was raised, namely, that the recitals in the will disclose a clear and unambiguous declaration of the intention of Chimpirayya to divide, that the said declaration companystituted a severance in status enabling him to execute a will. The learned judge rejected that plea on two grounds, namely, 1 that the will did number companytain any such declaration and 2 that, if it did, the plaintiff should have claimed a division of the entire family property, that is, number only the property claimed by Chimpirayya but also the property alleged to have been given to Pitchayya and that the suit as framed would number be maintainable. In the result the appeal was dismissed with companyts. The present appeal has been preferred by the plaintiff by certificate against the said judgment. Learned Advocate-General of Andhra Pradesh, appearing for thE appellant, raises before us the following points 1 The findings of the High Court on adoption as well as on partition were vitiated by the High Court number drawing the relevant presumptions permissible in the case of old transactions, number appreciating the great evidentiary value of public documents, ignoring or at any rate number giving weight to admissions made by parties and witnesses adopting a mechanical instead of an intellectual approach and perspective and above all ignoring the companysistent companyduct of parties spread over a long period inevitably leading to the companyclusion that the adoption and the partition set up by the appellant were true. 2 On the assumption that there was numberpartition by metes and bounds, the Court should have held on the basis of the entire evidence that there was a division in status between Chimpirayya and Pitchayya, companyferring on Chimpirayya the right to bequeath his divided share of the family property. 3 The will itself companytains recitals emphasizing the fact that he had all through been a divided member of the family and that on the date of execution of the will he companytinued to possess that character of a divided member so as to entitle him to execute the will in respect of his share and, therefore, the recitals in the will themselves companystitute an unambiguous declaration of his intention to divide and the fact that the said manifestation of intention was number companymunicated before his death to Subbarao or his guardian Chenchamma companyld number affect his status as a divided member. And 4 Chenchamma, the guardian of Subbarao, was present at the time of execution of the will and, therefore, even if companymunication was necessary for bringing about a divided status, it was made in the present case. Mr. Bhimasankaram, learned companynsel for the companytesting first respondent, raises a preliminary objection to the effect that the certificate given by the High Court was companyfined only to three questions which did number include the issues relating to adoption or partition and, therefore, the appellant companyld number question the companyrectness of those findings in respect of those issues and that the question whether the recitals in the will themselves companystituted a partition in status companyld number be allowed to be raised, as that point was raised only for the first time in the High Court. He further companytends that both the Courts below gave companycurrent findings of fact on the question of adoption as well as on partition and this Court will number reconsider the evidence as a rule of practice and there are numberexceptional circumstances to depart from that salutary practice in this appeal. He further seeks to sustain the findings of the High Court on the evidence adduced in the case. We shall take the preliminary objection first. The material part of the certificate issued by the High Court rears thus subject matter of the suit in the companyrt of first instance is upwards Rs. 20,000/ Rupees twenty thousand and the value of the subject matter in dispute on appeal to the Supreme Court of India is also of the value of upwards of Rs. 20,000/- Rupees twenty thousand and that the affirming decree appealed from involves the following substantial questions of law - Whether a will executed by a member of a joint Hindu family would of itself be operative to effect a severance between him and the other members of the family by reason of the disposition companytained in the will. Whether a will executed by a member of a joint family on the assumption number proved to be well founded or companyrect that as a result of an anterior partition in the family he, the testator, was solely entitled to the properties disposed of by the will, would be effective to create a severance between the testator and the other members as on the date of the will, and Whether the aforesaid pleas companyld be raised for the first time on appeal without their having been raised in the pleadings or at any stage of the trial. The said certificate was granted within the terms of Article 133 1 of the Constitution. The material part of Article 133 1 reads An appeal shall lie to the Supreme Court from any judgment, decree or final order if the High Court certifies- a that the amount or value of the subject matter of the dispute in the companyrt of first instance and still in dispute on appeal was and is number less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament b that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount of value or c that the case is a fit one for appeal to the Supreme Court and where the judgment, decree or final order appealed from affirms the decision of the companyrt immediately below in any case other than a case referred in sub-clause c , if the High Court further certifies that the appeal involves some substantial question of law. Mr. Bhimasankaram companytends that the companyditions laid down for issuing a certificate must also govern the scope of the appeal to the Supreme Court, for, otherwise, the argument proceeds, the said companyditions would become otiose. He companycedes that the Supreme Court can exercise an unrestricted power of reviewing the judgment of the High Court in the case of a certificate hedged in with companyditions by resorting to its power under Art. 136 of the Constitution, but this is number a case where it can do so especially having regard to the fact that the appellant did number seek to invoke that power. Under Art. 133 of the Constitution the certificate issued by the High Court in the manner prescribed therein is a precondition for the maintainability of an appeal to the Supreme Court. But the terms of the certificate do number circumscribe the scope of the appeal, that is to say, once a proper certificate is granted, the Supreme Court has undoubtedly the power, as a companyrt of appeal, to companysider the companyrectness of the decision appealed against from every standpoint, whether on questions of fact or law. A successful party numberdoubt can question the maintainability of the- appeal on the ground that the certificate was issued by the High -Court in companytravention of the provisions of Art. 13 3 of the Constitution, but once the certificate was good, the provisions of Art. 133 did number companyfine the scope of the appeal to the certificate. We, therefore, reject this preliminary objection. His next objection is that both the learned Subordinate Judge and, on appeal, the learned judges of the High Court gave companycurrent findings of fact on adoption as well as on partition and it is the usual practice of this Court number to interfere with such findings, except in exceptional circumstances and there are numbersuch circumstances in the present case, Article 133 of the Constitution does number in any way limit the scope of an appeal, provided a proper and valid certificate is issued by the High Court thereunder. This Court has undoubtedly the power to review the companycurrent findings of fact arrived at by the lower Courts in appropriate cases. But it has been a long standing practice of the Privy Council number to interfere with such findings based upon relevant evidence, except under extraordinary and exceptional circumstances Vide Rani v. Khagendrar 1 Fatima Bibi v. Ahmed Bakshi 2 , Harendra v. Haridasi 3 and Bibhabati v. Ramendra 4 The same practice has been adopted and followed by this Court since its inception see Nanalal v. Bombay Life , Assurance Co. 5 Firm Srinivas Ram v. Mahabir Prasad 6 Trojan Co. v. Naganna 7 Rajinder Chand v. Mst. Sukhi 8 Bhikka v. Charan Singh 9 M.M.B. Catholicos v. P. Paulo Avira 10 and Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinanyak Gosavi 11 . . The reason for the practice is stated to be that when facts have been fairly tried by two Courts and the same companyclusion has been reached by both, it is number in the public interest that the facts should be again examined by the ultimate companyrt of appeal. Whatever may be the reason for the rule, the practice ha become fairly crystallized and this Court ordinarily will number interfere with companycurrent findings of fact except in exceptional cases, where the findings are such that it sbocks the companyscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done. It is number possible number advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. We have beard learned companynsel on merits and we do number think it is one of those exceptional cases where we should depart from the salutary practice adopted by this Court. Learned Advocate-General companytends that the learned Subordinate judge as well as the High Court did number draw the appropriate presumptions arising from the fact that the transactions were old ones, 1 1904 I.L R. 31 Cal. 871. 2 1903 S.L.R. 35 Cal. 271. 3 1914 A.I.R. 41 Cal. 972, 988. 4 1946 51 C.W.N 98. A.I.R. 1950 S.C. 172. 6 A I R. 1951 S. C. 177. A.I.R. 1953 S.C. 235. 8 A.I.R. S.C. 286. 9 1959 Supp 2 S.C.R. 798 10 A.I.R 1959 S.C. 31, 11 1960 1 S.C.R. 773 number did they give sufficient weight to the entries in the revenue records, the admissions made by the parties and to the companyduct of the parties and such other important circumstances and, therefore, their findings are, liable to be questioned in this appeal. This argument in effect and substance means that the Courts below have number given due weight to particular pieces of evidence. There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do number alter the incidence of the burden of proof. Such companysiderations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a companytinuous process in the evaluation of evidence. The criticism levelled against the judgments of the lower Courts, therefore, only pertain to the domain of appreciation of evidence. We shall, therefore. broadly companysider the evidence number for the purpose of revaluation, but to see whether the treatment of the case by the Courts below is such that it falls in the category of exceptional cases where this Court, in the interest of justice, should depart from its usual practice. We shall first take the question of adoption. It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. Here, the appellant alleges in the plaint that Venkayya the son of Chimpirayya, was taken in adoption by her husband, Pitchayya. The first defendant, the widow of Venkayya, denies in her written- statement that her husband was adopted by Pitchayya. On the said pleadings the following issue was framed Whether the adoption of Venkayya is true and valid. On the pleading the burden of proof has rightly been placed on the plaintiff. The adoption is alleged to have taken place in the year 1905. The circumstances obtaining at that time were as follows Chimpirayya was about 40 years old he had only one son, Venkayya, who was aged about 2 years Pitchayya was about 25 years old and, therefore, ordinarily he had every prospect of having children of his own it is, therefore highly improbable, unless there are special circumstances, that an only son of an elder brother was taken in adoption by his younger brother though there is numberlegal prohibition, it is well known that ordinarily an only son is neither given number taken in adoption. P.W.I. admits that Addagada family is a prominent and affluent family in the village. But curiously numberdocument of adoption was executed, numberinvitations were sent to relatives and village officers, and numberexpenditure incurred in companynection with the adoption was entered in the accounts. Unless there were companypelling and extraordinary circumstances which necessitated dispensing with all formalities, it is unthinkable that in a village there companyld have been an adoption made in such an affluent family without pomp and show. P. Ws. 1 and 2 speak to the adoption. P. W. I is the companysin of the appellant and P.W. 2 is appellant herself. P. I says that Pitchayya adopted his brothers son Venkayya and he lived for one month thereafter. The reason for the adoption, according to her, was that he was sick and was afraid that he would die. She graphically describes that Alivelamma, the wife of Chimpirayya, gave her son in adoption to the accompaniment of mantrams and tantrams, that one Subbayya of Upputur was the prohit who officiated in the ceremony. In the cross-examination she says that Pitchayya did number die suddenly of an attack of fever but was suffering from dropsy for about a month and also even earlier she admits that for important functions like marriage and adoption in their family they would invite the village officers and other important people of the village, but numbersuch officers or important people were invited when Venakayya was taken in adoption. This witness was 60 years old in 1961 and therefore she would have been about 15 years at the time of the alleged adoption. Assuming for a moment that Pitchayya was suffering from dropsy, there is numberreason why numberimportant persons were invited for the function. If her evidence were true, Pitchayya took part in the alleged ceremony and it cannot therefore be suggested that he was so ill that all the formalities had to be dispensed with. Indeed, if he was ill and if the adoption was made without inviting the important people, that should have been the very reason why the village officers would have been invited and a document to evidence it executed. P. W. 2 is the appellant Raghavamma. She says that there was a ceremony of adoption officiated by the prohit Subbayya and that her brother-in-law and his wife gave the boy to her and her husband in adoption. She also deposes that her father and his brothers were present at the adoption. In the cross- examination she says that her husband lived for about 3 months after the adoption. She admits that numberdocument was executed and that though there were accounts, numberentries relating to the expenses of the adoption were entered therein. While P.W. I says that Pitchayya lived for one month after the adoption, P. W. 2 says that he lived for about 3 months thereafter. Neither in the pleadings number in the evidence the date of adoption is given. The evidence of W. I is vague and appears to be improvised and the evidence of P. W. 2 discloses the improbabilities inherent in such an adoption. They also companytradict each other on material circumstances. The Courts below have disbelieved their evidence. The appellant and the first respondent relied upon the companyduct of the parties subsequent to the alleged adoption and filed a number of documents to support their respective cases. Documentary evidence companysidered omitted. So far as the documentary evidence goes, the position is as follows Till 1911 there was numberdocument recording the fact that Venkayya was the adopted son of Pitchayya, and that after 1911 there had been companytradictory recitals in the documents. Broadly speaking whenever Venkayya executed a document he described himself as the son of Chimpirayya, and whenever third parties executed documents, he was described as the adopted son of Pitchayya. He filed suits, sometimes as the son of Chimpirayya and sometimes as the adopted son of Pitchayya. His name was entered in the accounts relating to Paruchur, but number in the accounts relating to Upputur he gave evidence declaring himself as the son of Chimpirayya and also insured-his life as such he operated on the accounts of third parties as the son of Chimpirayya while in the will executed by Chimpirayya, he was described as the adopted son of Pitchayya on the death of Venkayya the appellant herself, who under the will was entitled to companytinue in possession and management, handed over the entire management to the first respondent indicating thereby that the will was number really intended to take effect. In this state of evidence it is number possible to say that there had been a companysistent pattern of companyduct from which a Court should draw the inference that the adoption must have taken place. Attempt is made to reconcile these companytra. dictory descriptions in the documents by developing different theories. Learned Advocate-General suggests that there was numberreason why Chimpirayya should have put forward Venkayya falsely as the adopted son of Pitchayya as early as 1911 when he should number have gained any advantage thereby, for without the aid of adoption the entire property of Pitchayya would have companye to him by survivorship. Mr. Bhimasankaram surmises that Chimpirayya put forward the adoption without the knowledge of Raghavamma to safeguard his family interests against the possible adoption later on by Raghavamma of a stranger and that subsequently both joined together with a view to put pressure upon the first respondent to marry her son Subbarao to Kamalamma. He also suggests that Chimpirayya began to put forward his son Venkayya as the adopted son of Pitchayya only after the birth of his second son in 1910 and that after the death of that son in 1916, his only interest was to see that his grand son by his son Venkayya was married to his grand-daughter by his daughter and that the will was executed only to put pressure upon the first respondent. That the will was executed only for this limited purpose, learned companynsel argues, is clearly demonstrated by the fact that Raghavamma, though she was entitled to be put in possession of the entire property, handed over the management of the same to the first respondent after the death of Chimpirayya. The said suggestions made by learned companynsel on both sides are only based on surmises. and they cannot be made the basis for a companyrts companyclusion. In this state of evidence when both the Courts found, on a careful companysideration of oral and documentary evidence and the probabilities arising therefrom that the appellant on whom the burden of proof lay to establish that Venkayya was adopted to Pitchayya has failed to discharge it,. we cannot say that the -finding was vitiated by such errors that we should review the entire evidence over again and companye to a companyclusion of our own. We therefore, accept the companycurrent finding of fact that there was numberadoption. The next question is whether the companycurrent finding of fact arrived at by the Courts below on the question of partition calls for our interference. In the plaint neither the details of the partition number the date of partition are given. In the written statement the first respondent states that Chimpirayya died undivided from his sons son Subbarao and so Subbarao got the entire property by survivorship. The second issue framed was whether Chimpirayya and Pitchayya were divided as alleged by the plaintiff. The partition is alleged to have taken place in or about the year 1895 but numberpartition deed was executed to evidence the same. The burden is certainly on the appellant who sets up partition to prove the said fact. W. 1, though she says that Veeranna was alive when his sons effected the partition, admits that she was number present at the time of Partition, but only heard about it. P.W. 2, the appellant, deposes that her husband and his brothers effected partition after she went to live with him she adds that in that partition her father-in-law took about 4 acres of land described as Bangala Chenu subject to the companydition that after his death it should be taken by his four sons, that at the time of partition they drew up partition lists and recited that each should enjoy what was allotted to him and that the lists were written by one Manchella Narasinhayya she also admits that the lists are in existence, but she has number taken any steps to have them produced in Court. She says that each of the brothers got pattas according to the partition, and that the pattas got for Pitchayyas share are in his house yet she does number produce them. She says that she paid kist for the lands allotted to Pitchayyas share and obtained receipts but the receipts are number filed. She admits that she has the account books but they have number been filed in Court. On her own showing there is reliable evidence, such as accounts, pattas, receipts, partition lists and that they are available but they are number placed before the Court. Her interested evidence cannot obviously be acted upon when all the relevent evidence has been suppressed. Strong reliance is placed upon the alleged admissions made by D.W.8 and D. W. 10. D.W. 8 is the karnam of Paruchur for over 30 years. He says in his evidence that Veeranna took 3 acres and 63 cents. of land with a companydition that it should go to his sons in equal shares and the rest of the lands were divided into two shares, one taken by Chimpiryya and Pitchayya and the other by Peda Punnayya and China Punnayya. He explains that some lands, where the soil is partly good and partly bad, were divided into four parts and one good and one bad went to each sharer. This evidence does number companytain any admission that there was a partition inter se between the four brothers indeed it only supports the case that there was a partition between the children of Veeranna by his two wives. The division in four plots in respect of certain lands was only for an equitable distribution of the said lands between the sons of two wives. D.M. 10 in his evidence says that he does number know in what year the partition took place that it went on for two months that some of the lands were divided into four plots. His evidence is also companysistent with the evidence of D.W. 8. There is numberadmission by defendants witnesses that the division was between the four brothers. The oral evidence therefore, does number support the case of the appellant that there was a division inter se between Chimpirayya and Pitchayya. Now companying to the documentary evidence, as we have already indicated, all the relevant documents admitted to have been in existence have number been placed before the Court and an adverse inference has, therefore, to be drawn against the appellant. Even the documentary evidence filed in the case does number help the appellant. The family property is situate in three villages, Paruchur, Upputur and Podapadu. If there was a partition inter se between the 4 -brothers, in the ryotwari settlement effected in 1906 the names of the brothers should have been entered separately in the revenue accounts but the relevant register pertaining to that settlement has number been filed. Even in the later accounts of the year 1918 the name of Venkayya was entered only in respect of some lands in village Paruchur, but numbersuch entries are found in respect of the other villages. Those entries were made on a representation made by Chimpirayya and numberone was interested to object to the entries. Even these accounts show that in the earlier register Pitchayyas name was number entered. Though they have some probative value of possession, they do number show that the said lands shown against Venkayya fell to the share of Pitchayya at the partition in the year 1895. In Benyala Chenu alleged to have been given to Veeranna with a companydition that after his death the four sons should take it in equal shares, Venkayya did number get his share as he should if Pitchayya was divided from Chimpirayya and if he was adopted to Pitchayya. P. W. 2 admits that Chimpirayya had two acres in Bengala Chenu and Punnayya had the other two acres. This admission belies the statement that there was a partition inter se among the four brothers, for if the said partition was true, one acre should have fallen to Pitchayyas branch. P. W. 3 also says that Chimpirayya was in enjoyment of the said two acres. Exs. B-52, B-53, B-54, B-55, B-56 and B-57 established that the original mortgage of 1900 executed in favour of Veeranna was later on renewed only by Chimpirayya and Punnayya, that after the alleged partition separate mortgages were executed for portions of the debt in favour of Chimpirayya and Putinayya, that the property which was the subject matter of the mortgages was sold in favour of Chimpirayya and Punnayya, and thereafter, under Exs. B-61, B-62 and B-63, Chimpirayya and Punnayya sold the said land to third parties. These series of documents support the case that there was numberpartition inter se between Chimpirayya and Pitchayya. So too, another land obtained by Veeranna under an oral sale in 1886 was formally sold by a registered sale in favour of Chimpirayya and Punnayya under Ex. B-60 in 1911. If Pitchayya had a share, Venkayya should have been one of the vendses. Exs. B-67 and B-68 are the assessment orders of the year 1933 and Chimpirayya was assessed as representing a Hindu -undivided family. At the time of assessment if Venkayya was number a member of the Hindu joint family, there was numberother mate member in the family. The assessment companyld only be explained on the basis that Venkayya and Chimpirayya were members of a Joint Hindu family. Both the Courts, on the basis of the said evidence and other evidence, came to the companyclusion that it has number been established that in the partition of 1895 there was a division inter se between Chimpirayya and Pitchayya. Some argument is made on the question of burden of proof in the companytext of separation in a family. The legal position is number very well settled. This Court in Bhagwati Prasad Sah v. Dulhin Rameshwari Juer 1 , stated the law thus The general principle undoubtedly is that a .Hindu family is presumed to be joint unless the companytrary is proved, but where it is admitted that one of the companyarceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is numberpresumption that the rest of the companyarceners companytinued to be joint. There is numberpresumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the 1 1951 S. C. R. 603, 607. evidence relating to the intention of the par- ties whether there was a separation amongst the other companyarceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief. Whether there is a partition in a Hindu joint family is, therefore, a question of fact numberwithstanding the fact that one or more of the members of the joint family were separated from the rest, the plaintiff who seeks to get a specified extent of land on the ground that it fell to the share of the testator has to prove that the said extent of land fell to his share but when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance. On the evidence adduced in this case, both the Courts below found that there was numberpartition between Chimpirayya and Pitchayya as alleged by the appellant. The finding is one of fact. We have broadly companysidered the evidence only for the purpose of ascertaining whether the said companycurrent finding of fact is supported by evidence or whether it is in any way vitiated by errors of law. We find that there is ample evidence for the finding and it is number vitiated by any error of law. Even so, learned Advocate-General companytends that we should hold on the evidence that there was a division in status between Chimpirayya and the other member of the joint Hindu family i. e Subbarao, before Chimpirayya executed the will, or at any rate on the date when he executed it. It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severality. Omitting the will, the earlier documents filed in the case do number disclose any such clear intention. We have already held that there was numberpartition between Chimpirayya and Pitchayya. The register of changes on which reliance is placed does number indicate any such intention. The statement of Chimpirayya that his younger brothers son is a sharer in some lands and, therefore, his name should be included in the register, does number ex facie or by necessary implication indicate his unambiguous declaration to get divided in status from him. The companyflicting descriptions in various documents introduce ambiguity rather than clarity in the matter of any such declaration of intention. Be it as it may, we cannot therefore hold that there is any such clear and unambiguous declaration of intention made by Chimpirayya to divide himself from Venkayya. Now we shall proceed to deal with the will, Ex. A-2 a , on which strong reliance is placed by the learned Advocate- General in support of his companytention that on January 14, 1945, that is, the date when the will was executed, Chimpirayya must be deemed to have been divided in status from his grandson Subbarao. A Will speaks only from the date of death of the testator. A member of an undivided companyarcenary has the legal capacity to execute a will but he cannot validly bequeath his undivided interest the joint family property. If he died an undivided member of the family, his interest survives to the other members of the family and, therefore. the will cannot operate on the interest of the joint family property. But if he was separated from the family before his death, the bequest would take effect. So, the important question that arises is whether the testator in the present case became separated from the joint family before his death. The learned Advocate-General raises before us the following companytentions in the alternatives 1 Under the Hindu law a manifested fixed intention as company- tradistinguished from an undeclared intention unilaterally expressed by a member to separate himself from the joint family is enough to companystitute a division in status and the publication of such a settled intention is only a proof thereof. 2 Even if such an intention is to be manifested to the knowledge of the persons affected, their knowledge dates back to the date of the declaration, that is to say, the said member is deemed to have been separated in status number on the date when the other members have knowledge of it but from the date when he declared his intention. The learned Advocate-General develops his argument in the following steps 1 the Will, Ex. A-2 a , companytains an unambiguous intention on the part of Chimpirayya to separate himself from Subbarao, 2 he manifested his declaration of fixed intention to divide by executing the will and that the Will itself was a proof of such an intention 3 when the Will was executed, the first respondent the guardian of Subba Rao was present and, therefore, she must be deemed to have had knowledge of the said declaration 4 even if she had numbersuch knowledge and even if she had knowledge of it only after the death of Chimpirayya, her knowledge dated back to the date when the Will was executed, and, therefore, when Chimpirayya died he must be deemed to have died separated from the family with the result that the Will would operate on his separate interest. The main question of law that arises is whether a member of a joint Hindu family becomes separated from the other members of the family by a mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge of the other member of the family. In this companytext a reference to Hindu law texts would be appropriate, for they are the sources from which the Courts evolved the doctrine by a pragmatic approach to the problems that arose from time to time. The evolution of the doctrine can be studied in two parts, namely, 1 the declaration of the intention, and 2 the companymunication of it to others affected thereby. On the first part the following texts would throw companysiderable light. They are companylated and translated by Viswanatha Sastri J., who has a deep and abiding knowledge of the sources of Hindu Law in Adivalath Katheesumme v. Adiyalath Beechu 1 and we accept his translations as companyrect and indeed learned companynsel on both sides proceeded on that basis. Yajnavalkya Ch. 11, 6. 121. In land, companyrody annuity, etc. , or wealth received from the grandfather, the ownership of the father and the son is only equal. Vijnaneswara companymenting on the said sloka says And thus though the mother is having menstrual companyrses has number lost the capacity to bear children and the father has attachment and does number desire a partition, yet by the will or desire of the son a partition of the grandfathers wealth does take place. Setlurs Mitaksbara, pp. 646- 648. Saraswati Vilasa, placitum 28 From this it is known that without any speech or explanation even by means of a determination or resolution only, partition is effected, just as an appointed daughter is companystituted by mere intention without speech. Viramitrodaya of Mitra Misra Ch. 11. pl. Here too there is numberdistinction between a partition during the lifetime of the father or after his death and partition at the desire of the sons may take place or even by the desire or at the will of a single companyarcener . I.L.R. 1950, Mad. 502. Vyavahara Mayukha of Nilakantabhatta Ch. IV, S. iii Even in the absence of any companymon joint family property, severance does indeed result by the mere declaration I am separate from thee because severance is a particular state or companydition of the mind and the declaration is merely a manifestation of this mental state or companydition . The Sanskrit expressions sankalpa resolution in Saraswati Vilas, ekechchaya will of a single companyarcener in Viramitrodaya, budhivisesha particular state or companydition of the mind in Vyavahara Mayukha, bring out the idea that the severance of joint status is a matter of individual discretion, The Hindu law texts, therefore support the proposition that severance in status is brought about by unilateral exercise of discretion. Though in the beginning there appeared to be a companyflict of views, the later decisions companyrectly interpreted the Hindu law texts. This aspect has been companysidered and the law pertaining thereto precisely laid down by the Privy Council in a series of decisions see Suraj Narain v. Iqbal Narain Girija Bai v. Sadashiv Dhundiraj 2 Kawal Nain v. Budh Singh 3 and Ramalinga Annavi v. Narayana Annavi 4 . In Syed Kasam v. Jorawar Singh 5 the judicial Committee, after reviewing its earlier decision laid the settled law on the subject thus It is settled law that in the case of a joint Hindu family subject to the law of the Mitaksbara, a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to bold his share separately, even though numberactual division takes place 1 1912 I.L.R. 35 All. 80 P.C. 2 1916 I.L.R. 43 Cal. 1031 PC. . 3 1917 I.L.R. 39 All. 496 P.C. 4 1922 I.L.R. 45 Mod. 489 P.C. 5 1922 I.L.R. 50 Cal. 84 P.C. So far, therefore, the law is well settled, namely, that a severance in estate is a matter of individual discretion and that to bring about that state there should be an unambiguous declaration to that effect are propositions laid down by the Hindu law texts and sanctioned by authoritative decisions of Courts. But the difficult question is whether the knowledge of such a manifested intention on the part of the other affected members of the family is a necessary companydition for companystituting a division in status. Hindu law texts do number directly help us much in this regard except that the pregnant expressions used therein suggest a line of thought which was pursued by Courts to evolve companycepts to meet the requirements of a changing society. The following statement in Vyavahara Mayukha is helpful in this companytext declaration I am separate from thee because severance is a particular state or companydition of the mind and the declaration is merely a manifestation of this marital state or companydi- tion . One cannot declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others. Others must necessarily be those affected by the said declaration. Therefore a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. The process of manifestation may vary with circumstances. This idea was expressed by learned judges by adopting different terminology, but they presumably found it as implicit in the companycept of declaration. Sadasivalyerj.,in Soundarajan v. Arunachalam Chetty 1 , said that the expression clearly expressed used by the Privy Council in Suraj Narain v. Iqbal Narain 2 , meant clearly expressed to the definite knowledge of the other companyarceners. 1 1915 I.L.R. 39 Mad. 159 P.C. 2 1912 I.L.R. 35 All. 80 P.C. In Girja Bai v. Sadashiv Dhundiraj 1 , the Judicial Committee observed that the manifested intention must be clearly intimated to the other companyarceners. Sir George Lowndes in Balkrishna v. Ram krishna 2 , took it as settled law that a separation may be effected by clear and unequivocal declaration on the part of one member of a joint Hindu family to his companyarceners of his desire to separate himself from the joint family. Sir John Wallis in Babu Ramasray Prasad Choudhary v. Radhika Devi 3 , again accepted as settled law the proposition that a member of a joint Hindu family may effect a separation in status by giving a clear and unmistakable intimation by his acts or declaration of a fixed intention to become separate Sir John Wallis C. T., and Kumaraswami Sastri J. in Kamepalli Avilam v. Mannem Venkataswamy 4 , were emphatic when they stated that if a companyarcener did number companymunicate, during his life time, his intention to become divided to the other companyarcener or companyarceners, the mere declaration of his intention, though expressed or manifested, did number effect a severance in status. These decisions authoritatively laid down the proposition that the knowledge of the members of the family of the manifested intention of one of them to separate from them is a necessary companydition for bringing about that members severance from the family. But it is said that two decisions of the Madras High Court registered a departure from the said rule. The first of them is the decision of Madhavan Nair J. in Rama Ayyar v. Meenakshi Ammal 5 . There, the learned judge held that severance of status related back to the date when the companymunication was sent. The learned judge deduced this proposition from the accepted principle that the other companyarceners had numberchoice or option in the matter. But the important circumstance in that case was that the testator lived till after the date of the service of the numberice. If that was so that decision on the facts was companyrect. We shall deal with the doctrine 1 1916 I.L.R. 43 Cal. 1031 P.C. 2 1931 I.L.R. 33 All. 300 P.C 3 1935 43 L.W. 172 P.C. 4 1917 13 M.L.J. 746, 5 1930 33 L W. of relating back at a later stage. The second decision is that of a Division Bench of the Madras High Court, companysisting of Varadachariar and King, JJ., it Narayana Rao Purushotama Rao 1 . There, a testator executed a will disposing of his share in the joint family property in favour of a stranger and died on August 5, 1926. The numberice sent by the testator to his son on August 3, 1926 was in fact received by the latter on August 9, 1926. It was companytended that division in status was effected only on August 9, 1926, when the son received the numberice and as the testator had died on August 5, 1926 and the estate had passed by survivorship to the son on that date the receipt of the numberice on August 9, 1926 companyld number divest the son of the estate so vested in him and the will was therefore, number valid. Varadachariar J., delivering the judgment of the Bench observed thus It is true that the authorities lay down generally that the companymunication of the intention to become divided to other companyarceners is necessary, but numbere of them lays down that the severance in status does number take place till after such companymunication has been received by the other companyarceners. After pointing out the various anomalies that might arise in accepting the companytention advanced before them, the learned judge proceeded to state It may be that if the law is authoritatively settled, it is number open to us to refuse to give effect to it merely on the ground that it may lead to anomalous companysequences but when the law has number been so stated in any decision of authority and such a view is number necessitated or justified by the reason of the rules, we see numberreason to interpret the reference to companymunication in the various cases as implying that the severance does number arise until numberice has I.L.R. 1968 Mad. 315, 318, actually been received by the addressee or addressees. We regret our inability to accept this view. Firstly, be- cause, as we have pointed out earlier, the law has been well settled by the decisions of the judicial Committee that the manifested intention should be made known to the other members of the family affected thereby secondly, because there would be anomalies on the acceptation of either of the views. Thirdly it is implicit in the doctrine of declaration of an intention that it should be declared to somebody and who can that somebody be except the one that is affected thereby. There is yet another decision of the Madras High Court, which is of Rajamannar C. J. and Venkataramma Ayyar, J. in Indira v. Sivaprasada Rao 1 . There, the testator despatched a telegram addressed to his undivided brother on August 4, evening. In the ordinary companyrse it must have been delivered on August 5. The testator died on August 6 morning. Learned companynsel appearing for the brother companytended that it had number been established that the telegram reached his client before the testator died and, therefore, the will did number operate on the testators interest in the joint family property. The learned judges rejected that companytention on the basis of the judgment of Varadachariar and King JJ. in Narayana Rao v. Purushothama Rao 2 . As a division Bench they were bound by the decision of another Division Bench but the real basis of the decision is found at p. 256 In the case before us, the telegram was despatched on the 4th evening and in the ordinary companyrse it must have been delivered on the 5th and the testator died only on the 6th morning. I. L. R. 1953 Mad. 245, 2 56. I.L.R. 1938 Mad. 315, 318. It appears that in the circumstances of the case the learned judges presumed that the telegram must have reached the testators brother before the testator died. The companyclusion arrived at by the learned judges would certainly be right on the said facts. But we cannot agree with the view in so far as they agreed with that expressed by Varadachariar and King, JJ. Viswanatha Sastri, J., in Adiyalath Katheesumma v. Adiyalath Beechu 1 , elaborately and exhaustively companysidered the question that is number posed before us. There, a member of a tarwad served a numberice of his unambiguous intention to separate from the other members of the family on the Karnavan of the tarwad. The question was whether the companymunication of his intention to the Karnavan was sufficient. The appeal first came up before Satyanarayana Rao and Panchapagesa Sastri JJ. Satyanarayana Rao J. held that the numberice was number sufficient to companystitute a severance, as it was number served on all the other members of the tarwad and Panchapagesa Sastri,J., held that the service on the Karnavan or the manager of the joint family was sufficient as he was representative of the family. As there was difference of view between the two learned judges, the matter was placed before Viswanatha Sastri.J. and the learned judge agreed with Panchapagesa Sastri.J. But in the companyrse of the judgment, the learned judge went further and held that a unilateral declaration of an intention to become divided on the part of a member of a joint Hindu Family effects severance, in status and therefore the dispatch to, or receipt by, the other members of the family of the companymunication or numberice announcing the intention to divide on the part of one member of the family is number essential or its absence fatal to a severance in status. The companyclusions of the learned judge on the question number raised before us are expressed in two places and they are at pp. 543 and 549 I. L. R. 1953 Mad. 245,256. The only reasonable rule that can be deduced from the texts and the several decisions of the Judicial Committee is that the declaration of an intention to divide on the part of a member of the family should be clear and unequivocal and should be indicated, manifested, or published in such a manner as is appropriate in the circumstance,-, of the case. One method, but number the only method, of such manifestation or publication is by delivering a numberice companytaining a declaration of intention to become divided to the other members of the family. At p. 549 it is stated There must be some manifestation, indication, intimation or expression of that intention to become divided, , so as to serve as authentic evidence in case of doubt or dispute. What from that manifestation, expression, or inti- mation of intention should take would depend upon the circumstances of each case, there being numberfixed rule or right formula. The dispatch to or receipt by the other members of the family of a companymunication or numberice announcing the intention to divide on the part of one member of the family is number essential number its absence fatal to a severance in status. We agree with the learned judge in so far as he held that there should be an intimation, indication or expression of the intention to become divided and that what from that manifestation should take would depend upon the circumstances of each case. But if the learned judge meant that the said declaration without it being brought to the knowledge of the other members of the family in one way or other companystitutes a severance in status, we find it difficult to accept it. In our view, it is implicit in the expression declaration. that it should be to the knowledge of the person affected thereby. An uncommunicated declaration is numberbetter than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its companymunication to the person or persons who would be affected thereby. It is, therefore, clear that Hindu Law texts suggested and Courts evolved, by a process of reasoning as well as by a pragmatic approach, that such a declaration to be effective should reach the person or persons affected by one process or other appropriate to a given situation. This view does number finally solve the problem. There is yet another difficulty. Granting that a declaration will be effective only when it is brought to the knowledge of the other members affected, three questions arise, namely, i how should the intention be companyveyed to the other member or members ii when it should be deemed to have been brought to the numberice of the other member or members and iii when it was brought to their numberice, would it be the date of the expression of the intention or that of knowledge that would be crucial to fix the date of severance. The questions posed raise difficult problems in a fast changing society. What was adequate in a village polity when the doctrine was companyceived and evolved can numberlonger meet the demands of a modern society. Difficult questions, such as the mode of service and its sufficiency, whether service on a manager would be enough, whether service on the major members or a substantial body of them would suffice, whether numberice should go to each one of them, how to give numberice to minor members of the family, may arise for companysideration. But we need number express our opinion on the said questions, as numberhing turns upon them, for in this appeal there are only two members in the joint family and it is number suggested that Subba Rao did number have the knowledge of the terms of the will after the death of Chimpirayya. The third question falls to be decided in this appeal, is this what is the date from which severance in status is deemed to have taken place ? Is it the date of expression of intention or the date when it is brought to the knowledge of the other members? If it is the latter date, is it the date when one of the members first acquired the said knowledge or the date when the last of them acquired knowledge or the different dates on which each of the members of the family got knowledge of the intention so far as he is companycerned ? If the last alternative be accepted, the dividing member will be deemed to have been separated from each of the members on different dates. The acceptance of the said principle would inevitably lead to companyfusion. If the first alternative be accepted, it would be doing lip service to the doctrine of knowledge, for the member who gets knowledge of the intention first may in numbersense of the term be a representative of the family. The second alternative may put off indefinitely the date of severance, as the whereabouts of one of the members may number be known at all or may be known after many years. The Hindu law texts do number provide any solution to meet these companytingencies. The decided cases also do number suggest a way out. It is, therefore, open to this Court to evolve a reasonable and equitable solution without doing violence to the principles of Hindu law. The doctrine of relation back has already been recognised by Hindu Law as developed by Courts and applied in that branch of the law pertaining for adoption. There are two ingredients of a declaration of a members intention to separate. One is the expression of the intention and the other is bringing that expression to the knowledge of the person or persons affected. When once that knowledge is brought home-that depends upon the facts of each case it relates back to the date when the intention is formed and expressed. But between the two dates, the person expressing the intention may lose his interest in the family property he may withdraw his intention to divide he may die before his intention to divide is companyveyed to the other members of the family with the result, his interest survives to the other members. A manager of a joint Hindu family may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and companymon sense demands that a limitation which avoids the companyfusion of titles must be placed on it. What would be more equitable and reasonable than to suggest that the doctrine should number affect vested rights ? By imposing such a limita- tion we are number curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation to meet a companytingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the companytrary, saves vested rights . As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate, the rights accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved. Applying the said principles to the present case, it will have to be held that on the death of Chimpirayya his interest devolved on Subbarao and, therefore, his will, even if it companyld be relied upon for ascertaining his intention to separate from the family, companyld number companyvey his interest in the family property, as it has number been established that Subbarao or his guardian had knowledge of the companytents of the said will before Chimpirayya died. It is companytended that the first respondent, as the guardian of Subbarao, had knowledge of the companytents of the Will and, therefore, the Will operates on the interest of Chimpirayya. Reliance is placed upon the evidence of P. W. 11, one Komanduri Singaracharyulu. He deposed that be was present at the time the Will was executed by Chimpiryya and that he signed it as an identifying witness. In the cross- examination he said that at the time of the execution of the Will the first defendant-respondent was inside the house. This evidence is worthless. The fact that she was inside the house cannot in itself impute to her the knowledge of companytents of the Will or even the fact that the Will was registered that day. D. W. 4 is the first respondent herself. She says in her evidence that she did number know whether the Sub-Registrar came to register the Will of Chimpirayya, and that she came to know of the Will only after the suit was filed. In that state of evidence it is number possible to hold that the first respondent, as guardian of Subbarao, had knowledge of the companytents, of the Will. In this view, it is number necessary to companysider the further question whether the Will companytained a clear and unambiguous declaration of intention on the part of the testator to divide himself from the members of the joint family.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTIONCivil Appeals Nos. 641 and 642 of 1961. Appeals from the judgment and decree dated April 11, 1957, of the Andhra Pradesh High Court in A.S. Nos. 95 and 520 of 1952. V. Viswanatha sastri, P.V. Chalapati Rau, S.N. Andley, and Rameshwar Nath, for the appellants. N. Rajagopal Sastri and R.N. Sashthey, for respondents Nos. 1 to 4 in C.A. No. 641 of 1961 . Kandiah, M. Rajagopalan and K.R. Chaudhri, for respondent No. 1 in C.A. No. 642 of 1961 . 1963. April 19. The Judgment of the Court was delivered by- SHAH J.--Nagappa son of Pullanna resident Nandyal carried on business in yarn, drugs and forward companytracts. He acquired in that business a companysiderable estate which was treated by him as property of the joint family of himself and his sons. Nagappa and his sons were assessed by the Incometax authorities to pay income-tax and supper-tax in the status of a Hindu undivided family as set out in the following table -- Year of Year of Date of Income-tax and account assess- order. super-tax ending ment. assessed. ------------- -------- ------- --------------- 24-3-44 1944-45 25-2-48 Rs. 51,116-7-0 14-3-45 1945-46 25-2-48 Rs. 21,452-1-0 2-4-46 1946-47 31-3-48 Rs. 21,012-13-0 Besides this amount of income-tax and supertax he was assessed to pay penalty and excess profits tax aggregating to Rs. 26,602/-. The total amount of tax due for the three years of assessment 1944-45, 1945-46 and 1946-47 aggregated to Rs. 1,23,233/5/-. Nagappa did number pay the tax. The revenue authorities of the Province of Madras, at the instance of the Income-tax Department attached 51 items of immovable property as belonging to the joint family of Nagappa and his sons and put up the same for sale under the Madras Revenue Recovery Act II of 1864. Out of these 38 items were sold and were purchased by certain persons. Kalwa Devadattam, Kalwa Devarayulu and Kalwa Nandi Sankarappa sons of Nagappa hereinafter called companylectively the plaintiffs--through their mother acting as their next friend companymenced suit No. 52 of 1950 in the Court of the Subordinate Judge, Kurnool, against the Union of India, the revenue authorities of the State of Madras, the purchasers of the properties at the auction, and Nagappa, claiming a decree declaring that the assessment orders made by the Income-tax officer, Kurnool, for the years 1944-45, 1945-46 and 1946-47 were unenforceable against 51 items of property of the plaintiffs described in the schedule and sale of their property by the revenue authorities was without jurisdiction, void and illegal, and an order restraining the Union of India and the authorities of the State of Madras from selling the scheduled properties or companyfirming the sale already held or that may be held after the institution of the suit. It was the case of the plaintiffs that items 46 to 51 did number at any time belong to the joint family, having been acquired by them with funds provided by their maternal grandmother Seshamma, and that the remaining items of property were number liable to be attached and sold since these had been allotted to them on a partition of the joint family estate before the order of assessment was made by the Income-tax authorities. The suit was resisted by the Union of India and also by the purchasers on diverse grounds. The Union companytended, inter aria that the plaintiffs were number entitled to question the companyrectness of the assessment of tax in a Civil Court because the jurisdiction of the Court in that behalf was excluded by s. 67 of the Indian Income-tax Act, that the plaintiffs were in any event precluded from setting up the plea of a partition between them and Nagappa as a defence to the enforcement of liability for payment of tax in view of the provisions of s. 25A 3 , that the partition was sham and number intended to be operative and that items 46 to 51 were number the separate estate of the plaintiffs as companytended by them. The purchasers who were impleaded as defendants 5 to 28 companytended that there was numberinvalidity in the proceedings for assessment of tax and that they having purchased those properties for the full amounts for which they were sold, sales in their favour though number companyfirmed were binding upon the plaintiffs. Suit No. 52 of 1950 was tried with another suit being suit No. 54 of 1949 of the same Court in which also the validity of the partition dated March 14, 1947 fell to be determined, between the sons of Nagappa and the firm of Kumaji Sare Mal who were creditors under a money decree against Nagappa. The facts which gave rise to that suit are these Kumaji Sare Mal filed suit No. 7 of 1944 in the Court of the Subordinate Judge, Anantpur, against Nagappa for a decree for Rs. 10,022-10-6 due at the foot of certain transactions in yarn. This suit was dismissed by the Trial Court on the ground that the companytracts for the supply of yarn were wagering companytracts, but in Appeal No. 174 of 1945 the High Court of Madras decreed the suit on March 5, 1947 holding that the companytracts giving rise to the liability though speculative were number of a wagering Character. The High Court passed a decree for Rs. 10,000/- with interest at 6 per cent from the date of suit and companyts. This decree was soon followed by the execution of the deed of partition,dated March 14, 1947, between Nagappa and the plaintiffs, by which the joint family estate valued approximately at Rs. 1,25,000/- was divided into four shares. To Nagappa was allotted under that partition property of the value of Rs. 31,150/and he stood liable to satisfy debts of the value of Rs. 12,236/4/9. In execution of the decree in suit No. 7 of 1944 Kumaji Sare Mal attached some of the properties that fell to the share of the plaintiffs under the deed of partition dated March 14, 1947. Objections to the attachment preferred under 0.21 r. 58 Code of Civil Procedure by the plaintiffs were dismissed by the executing Court on July 12, 1948. The plaintiffs then filed suit No. 54 of 1949 for a decree setting aside the summary order passed in the execution proceeding, claiming that the debt incurred by Nagappa being avyavaharika, the plaintiffs were number liable to satisfy the debt, and that the firm of Kumaji Sare Mal was incompetent to bring to sale in execution of the decree obtained against Nagappa in his individual capacity, the interest of the plaintiffs in the joint family property after the joint family status was severed and the properties of the family were partitioned. Common evidence was recorded in the two suits. The Trial Judge held that the properties items 1 to 45 belonged in the relevant years of assessment to the joint family of Nagappa and his sons, and in the absence of an order recording partition under s. 25A 1 of the Indian Income-tax Act, the Income-tax Officer was bound to assess the undivided family even after partition on the footing that the family still companytinued to be joint. He further held that by virtue of s. 67 of the Indian Income-tax Act, numberaction questioning the assessment companyld be entertained by the Courts, and that there was numberirregularity in the proceedings for sale. But the Court held that on March 14, 1947 division of property of the undivided family was in fact made between Nagappa and the plaintiffs that the partition was effected with the object of defeating the claims of the creditors including the Income-tax authorities, but it was nevertheless partition which was intended to be overative. The Court further held that items 46 to 51 were number proved by the defendants to be the joint family property of the plaintiffs and Nagappa. In suit No. 54 of 1949 the learned Judge held following Schwebo K.S.R.M. Firm through Partner Govindan, alias Ramanathan Chettiar v. Subbiah alias Shanmugham Chettiar 1 , that after a partition between the members of the joint Hindu family the sons share in the joint family property cannot be proceeded against in execution so as to enforce the pious obligation of the sons to satisfy their fathers debts under a decree passed against the father alone. The learned Judge accordingly decreed suit No. 54 of 1949 holding that the only remedy of the firm Kumaji Sare Mal was to proceed by a suit to enforce the pious obligation of the plaintiffs to discharge the pre-partition debts. The plaintiffs appealed against the decree in suit No. 57 of 1950 to the High Court of Madras and the Union filed cross-objections to the decree appealed from. Firm Kumaji Sure Mal also appealed against the decree dismissing their suit No. 54 of 1949. The High Court of Andhra Pradesh to which the appeals stood transferred for hearing under the States Reorganisation Act 1956 held agreeing with the Trial Court that a suit to set aside the assessment of income-tax was number maintainable against the Union, and that in any event in the absence of an order under s. 25A I of the Indian Income-tax Act, recording a partition, the Income-tax authorities were bound to assess tax on the Hindu undivided family as if that status companytinued. The High Court also held that the partition set up by the plaintiffs was a transaction which was numberinal and sham, and that the evidence established that itmes 46 to 51 were purchased with the aid of joint family funds and number with ,he funds supplied by Seshamma and therefore all the properties itmes 1 to 51 were liable to satisfy the tax liability of the joint family. The High Court also held that the firm Kumaji Safe Mal was entitled to recover the debt due to them in execution proceeding, there being numberreal partition I. L.R. 1945 Mad, 138. between Nagappa and the plaintiffs prior to the date of attachment. The High Court accordingly dismissed both the suits. We will reserve for separate companysideration the companymon question which arose in these two appeals, namely, whether the partition by the deed dated March 14, 1947 between Nagappa and his sons the plaintiffs was a sham transaction. Even on the footing that the partition was real and intended to be operative, suit No. 52 of 1950 filed by the plaintiffs against the Union was bound to fail for more reasons than one. For the assessment year 1943-44 the Hindu undivided family of Nagappa and his sons was assessed to income-tax. In the years 1944-45, 1945-46 and 1946-47 the family was also assessed to pay income-tax, super-tax and excess profits tax, as set out hereinbefore. Nagappa maintained his accounts according to the Telugu year. and the last year of account companyresponding to the assessment year 1946-47 ended on April 2, 1946. Under the Indian Income Tax Act liability to pay income.tax arises on the accrual of the income, and number from the companyputation made by the Taxing authorities in the companyrse of assessment proceedings it arises at a point of time number later than the close of the year of account. As pointed out by the Judicial Committee of the Privy Council in Wallace Brothers and Co, Ltd. v. The Commissioner of Income-tax, Bombay City and Bombay Suburban District 1 The general nature of the charging section is clear. First, the charge for tax at the rate fixed for the year of assessment is a charge in respect of the income of the previous year, number a charge in respect of the income of the year of assessment as measured by the income of the previous year. x x x Second the rate of tax for the year of assessment may be fixed after the close of the previous 1 1948 L.R. 75 I.A 86. year and the assessment will necessarily be made after the close of that year. But the liability to tax arises by virtue of the charging section alone, and it arises number later than the close of the previous year though quantification of the amount pa yable is postponed. Liability of the Hindu undivided family of Nagappa and his sons therefore arose number later than the close of each account year and account period for which the tax was assessed and it is number the case of the plaintiffs that the family estate was partitioned before the liability of the undivided family to pay tax arose. There is numberdispute in the suit filed by the plaintiffs against the Union that the business carried on by Nagappa was the business of the joint family. It is on the footing that the business carried on by Nagappa was of the joint family, and the income earned in the companyduct of the business and the property was joint family income that the plaintiffs have filed this suit. Under s. 25A of the Income-tax Act, if at the date when the liability to pay tax arose there was in. existence a joint family which has subsequently disrupted, the tax will still be assessed on the Joint family. The machinery for recovery of the tax however. differs according as an order recording partition is.made or number made. If the Income-tax Officer is satisfied on a claim made by a member of the family that the joint family property has, since the close of the. year of account been partitioned among the various members or groups of members m definite portions, he must record an order to that effect and thereupon numberwithstanding anything companytained in sub-s. 1 of s. 14 of the Act each member .or group of members is liable in addition .to any income-tax for which he. is separately liable for a share of the tax on the income so assessed according to the portion. of the .joint family property allotted to him or it. But even after this apportionment of liability for the tax assessed on the total income of the joint family, the members of the family or groups thereof remain jointly and severally liable for the tax assessed on the total income received by the family as such. If numberorder is recorded tinder sub-s. 1 of S. 25A, by virtue of sub-s. 3 the family shall be deemed, for the purposes of the Act, to companytinue to remain a Hindu undivided family. Section 25A merely sets up machinery for avoiding difficulties encountered in levying and companylecting tax, where since the income was received the property of the joint family has been partitioned in definite portions, while at the same time affirming the liability of such members or group of members, jointly and severally to satisfy the total tax in respect of the income of the family as such. The section seeks to remove the bar imposed by S. 14 1 against recovery of tax from an individual member of a joint Hindu family in respect of any sum which he receives as a member of the family, and to ensure recovery of tax due, numberwithstanding partition. The incidence of tax, but number the quantum is readjusted to altered companyditions. The judicial Committee of Privy Council in Sardar Bahadur Sir Sunder Singh Majithia v. Commissioner of Income-tax, United and Central Provinces 1 , analysed the scheme of S. 25A as follows - Section 25A is directed to the difficulty which arose when an undivided family had received income in the year of account but was numberlonger in existence as such at the time of assessment. The difficulty was the more acute by reason of the provision- an important principle of the Act-contained in S. 14 1 The tax shall number be payable by an assessee in respect of any sum which he receives as a member of a Hindu undivided family. 1 1942 L. R, 69 I. A. 119, Section 25A deals with the difficulty in two ways, which are explained by the rule, appli- cable to families governed by the Mitakshara, that by a mere claim of partition a division of interest may be effected among companyarceners so as to disrupt the family and put an end to all right of succession by survivorship. It is trite law that the filing of a suit for partition may have this effect though it may take years before the shares of the various parties are determined or partition made by metes and bounds. Meanwhile the family property will belong to the members as it does in a Dayabhaga family--in effect as tenants in companymon. Section 25A provided that if it be found that the family property has been partitioned in definite portions, assessment may be made, numberwithstanding S. 14 1 , on each individual or group in respect of his or its share of the profits made by the undivided family, while holding all the members jointly and severally liable for the total tax. In the present case numberorder under S. 25A 1 was recorded. It is true, that Nagappa had made before the Income-tax Officer on January 19, 1948 the following statement I am at present living singly. My sons divided from me about ten months back. There is a document to this effect. The document was registered. My sons are as follows After recounting the names of his three sons and their respective ages, lie proceeded to state The guardian to these minor children is my wife. I divided my family properties between myself and my children. The properties belonged to our joint family. The business also belonged to my joint family. It may be assumed that by this statement within the meaning of S. 25A it was claimed by or on behalf of any member of a Hindu family hitherto assessed as undivided that a partition had taken place among the members of his family and that the Income-tax Officer was bound to make an inquiry companytemplated by S. 25A. But numberinquiry was in fact made and numberorder was recorded by the Income-tax Officer about the partition by virtue of sub-s. 3 the Hindu family originally assessed as undivided had to be deemed for the purposes of the Act, to companytinue to be a Hindu undivided family. If by the assessment of the family on the footing that it companytinued to remain undivided, Nagappa or his sons were aggrieved their remedy was to take an appropriate appeal under S. 30 of the Indian Income-tax Act and number a suit challenging the assessment. The method of assessment and the procedure to be followed in that behalf are statutory, and any error or irregularity in the assessment may be rectified in the mariner provided by the statute alone, for S. 67 of the Indian Income-tax Act bars a suit in any Civil Court to set aside or modify any assessment made under the Act. The Income-tax Officer made the assessment of tax under the Act granting that he companymitted an error in making the assessment without holding an inquiry into the partition alleged by Nagappa, the error companyld be rectified by resort to the machinery provided under the Act and number by a suit in a Civil Court. In Commissioner of Income-tax, West Punjab, North-West Frontier and Delhi.Provinces, Lahore Tribune Trust, Lahore 1 , the judicial Committee observed x x x x the only remedies open to the tax- payer, whether in regard to appeal against assessment or to claim for refund are 1 1947 I- R. 74 I. A. 306, 316, to be found within the four companyners of the Act. This view of his rights harmonises with the provisions of S. 67, x x x that numbersuit shall be brought in any Civil Court to set aside or modify any assessment made under the Act. It is the Act which prescribes both the remedy and the manner in which it may be enforced. The suit filed by the plaintiffs against the Union must therefore fail on three independent grounds, each of which is sufficient to number- suit them. The suit which was in substance one for setting aside an assessment was in law number maintainable because of S. 67 of the Indian Income-tax Act That in the absence of an order under S. 25A 1 assessment of the Hindu joint family was properly made and Even if an order recording partition wag made the liability of the plaintiffs to pay income-tax assessed on the family companyld still be enforced against them jointly and severally under S. 25A 2 proviso. The plea of irregularity in holding the sale proceedings set up in the Trial Court was negatived by the Trial Court as well as the High Court, and has number been canvassed before this Court. About the title of the plaintiffs to items 46 to 51 in the schedule annexed to the plaint, the High Court disagreed with the Trial Court. These properties were purchased in the names of two of the three plaintiffs by the sale deed Ext. A-230 dated March 15, 1944. The companysideration of the sale deed was Rs. 23,500/-of which Rs. 5,019/-had been paid in advance in four instalments before March 15, 1944, and the balance of Rs. 18,481/- was paid before the Sub- Registrar to the vendors who companyveyed the properties to Devadattam and Devarayulu two of the three plaintiffs acting by their mother Narayanamma as their guardian. The properties having been purchased in the names of the two plaintiffs the burden prima facie lay upon the Taxing authorities to establish that the sale deed was taken for and on behalf of the joint family or with the aid of joint family funds. Evidence was led by both the sides to support their respective versions. The Trial Court held that the plaintiffs case that their grandmother Seshamma provided the companysideration was number proved, but there was also numberevidence to show that the companysideration was provided by the joint family, and as the burden of proof lay upon the Union, their case must fail. The High Court however held that the burden which lay upon the Union to prove that the properties were purchased out of the joint family funds was duly discharged. The question of onus probably is certainly important in the early stages of a case. It may also assume importance where numberevidence at all is led on the question in dispute by either side in such a companytingency the party on whom the Onus lies to prove a certain fact must fail. Where however evidence has been led by the companytesting parties on the question in issue, abstract companysiderations of onus are out of place truth or otherwise of the case must always be adjudged on the evidence led by the parties. But in support of the case that Seshamma had provided the companysideration three witnesses P.W. 4, P.W. 5, and P.W. 8 were examined. Seshamma had died a few months before evidence was recorded in the suit. That evidence was found by the Trial Court as well as the High Court to be discrepant and in essential particulars so improbable that it companyld number be relied upon. P.W. 4 Narayanamma plaintiffs mother-deposed that the properties had been purchased for the plaintiffs by her mother Seshamma with the money given to Seshamma by her husband. This money according to Narayanamma was given to Nagappa and Nagappa paid it to the vendors in the presence of the Sub-Registrar. But this story stands wholly discredited by her admission that Seshammas husband and his brothers were joint in business and estate till the formers death. Again there is on the record a statement made by Seshamma, before the Income-tax authorities, wherein she had stated that when her husband died, she might have had with her about Rs. 4,000/- to Rs. 5,000/- which she gave to her daughter. Nagappa was questioned in regard to this statement and he suggested that the statement was obtained by companyrcion from Seshamma by the Income-tax authorities. The story that Seshamma Owned a large amount of cash, is number supported by any documentary evidence and it is difficult to believe that a trading family would number have invested the amount, if it was in truth devised to Seshamma by. her husband. In cross- examination Narayanamma altered her version. She stated that Seshammas uncle had left everything to her as he had numberchildren or family but he did riot execute any document in favour of Seshamma and that at the time of his death he stated orally that Seshamma should take all the properties and that Seshamma and her brother knew about what she received from her paternal uncle. P. W. 5 Venkatsami who was originally a clerk of Nagappa, said that he was acting as a clerk in the employment of Narayanamma. He swore that he had seen Seshamma giving Rs,6,000/to Narayanamma about four years ago and that a month later Seshamma brought Rs. 3,000/- and gave them to Narayanamma and that about ,en days thereafter Seshamma brought Rs. 12,000/- and gave them to Nagappa and Narayanamma. He admitted that Seshamma had numberimmovable property other than a house which she had bequeathed to her daughter under a will. The witness did number know how Seshamma got the amount. He, however, stated somewhat inconsistently under cross-examination that on the date of registration of Ext. A-230 Seshamma had asked her daughter Narayanamma to bring the money. On that day the key of the iron safe was with Narayanamma and that Narayanamma brought some cash which was companynted and paid over to the vendors. Both the Courts found that this witness was unreliable and a bare reading of his recorded testimony companyfirms that view. Nagappa said that Seshamma had paid the companysideration for the sale-deed, but in cross-examination he made diverse statements which threw doubt upon the truth of that story. He was interested in devising ways and means for saving the properties for the benefit of his sons. It was he who had instigated and had prosecuted the suits. His bare statement that the companysideration for the sale-deed was advanced by Seshamma number supported by any documentary evidence is unreliable, especially having regard to the statement which Seshamma had made before the Income-tax authorities. It must therefore be held that the Courts below were right in holding that the plaintiffs have failed to establish that the properties companyveyed by the sale-deed were purchased with the funds supplied by Seshamma. It is companymon ground that the plaintiffs had numberother source of income. As admitted by Nagappa and his clerk Venkatsami, Nagappa made large profits in his business, and Rs. 18,481/- out of the companysideration payable under Ext. A-230 were actually paid to the vendors by Nagappa. There were before the Court two versions-one by the plaintiffs who alleged that the companysideration for the sale-deed was supplied by Seshamma. That version, for reasons already stated, cannot be accepted. On the other hand there is the version that the funds belonged to the joint family of which Nagappa was the Manager and that Nagappa paid the companysideration. No documentary evidence in support of either version is forthcoming even Nagappas accounts have number been produced. But if the moneys were actually paid by Nagappa and the story about Seshamma having provided the amount be disbelieved, it would be a legitimate inference companysistent with probability that Nagappa had for purchasing the property provided the funds out of the joint family earnings. It appears that Kumaji Sare Mal who are the respondents in Appeal No. 642 of 1961 had in the suit filed by them in 1942 obtained an order for attachment before judgment over the immovable property of the joint family in the hands of Nagappa. This attachment before judgment was outstanding at the date of the saledeed Ext. A-230. This order for attachment before judgment was vacated when the suit was dismissed by the Trial Court on August 31, 1944. This circumstance in the companytext of the other evidence strongly supports the companytention of the Union that with a view to protect the properties from his credi- tors Nagappa thought of purchasing the properties in the names of his sons the plaintiffs and the companysideration was advanced by him. The High Court was therefore right in holding that the properties items 46 to 51 were of the joint family and liable to be attached and sold in enforcement of the liability for payment of income-tax. Civil Appeal No. 641 of 1961 must therefore fail. We may number deal with the questions which fall to be determined in Civil Appeal No. 642 of 1961-one of the questions being companymon in Appeals Nos. 641 and 642 of 1961. Suit No. 7 of 1944 was filed by the firm Kumaji Sare Mal for damages for breach of Contract. That suit was decreed by the High Court on March 5, 1947. Within nine days thereafter the deed of partition came into existence. The plaintiffs companytended that the debts due by Nagappa to Kurmaji Sare Mal being immoral or avyavharika their share in the properties was number liable to be sold. In any event, they companytended, the shares allotted to them under the deed of partition were number liable to be attached and sold in execution proceeding in enforcement of the decree against their father Nagappa, and the remedy of the creditor even if the debts were number avyavharika was to file a suit to enforce the pious obligation of the plaintiffs and number in execution of the decree obtained against Nagappa alone. The creditors companytended that the deed of partition was a sham transaction and therefore they were entitled to proceed in execution. Alternatively, it was companytended that even if the deed of partition did number evidence a sham transaction, it was open to them as holders of a decree obtained before the partition to enforce the pious obligation of the plaintiffs to discharge the debts of their father in execution of the decree, and it was number necessary for them to file a separate suit. On the question as to the proper procedure for enforcement of the liability of a Hindu son to discharge the debts of his father which are number avyavharika, where since the passing of the decree on the debt against the father there has been a partition between the father and son, there has arisen difference of opinion. The Madras High Court in Schwebo K.S.R.MFirm v. Subbiah 1 , held that the sons share in the property cannot be proceeded against in execution, as the division of status brought about by the partition will stand, numberwithstanding the avoidance of the partition as a fraudulent transfer. This was reaffirmed in a Full Bench judgment of the Madras High Court in Katragadda China Ramayya v. Chiruvella Venkunraju 2 , where the Court held- A son under the Hindu law is undoubtedly liable for the pre-partition debts of the father which are number immoral or illegal. If a decree, however, is obtained against the father alone and there is a partition of the family proper ties, in execution of such a decree, the sons share cannot be seized by the creditor as by I.L.R, 1945 Mad. 138. A.I.R. 1954 Mad. 864. reason of the partition the disposing power of the father possessed by him over the sons share under the pious obligation of the son to discharge the fathers debts can numberlonger be exercised. With the partition, the power companyes to an end. The liability thereafter can be enforced only in a suit. After partition, the sons share can numberlonger be treated as property over which the father had a disposing power within the meaning of S. 60 Civil P.C. On the other hand the Bombay High Court has held in Ganpatrao Vishwnathappa v. Bhimrao Sahibrao that a decree obtained against the Hindu father may after partition be executed against the sons interest by impleading the son as a party to the executing proceeding against the father. There is numberclear expression of opinion by this Court on this question, though in S.M. Jakati v. S.M. Borkar 2 , this Court has held that the liability of a Hindu son to discharge the debts of his father which are number tainted with immorality or illegality is founded in the pious obligation of the son which companytinues to exist in the life time and even after the death of the father and which does number companye to an end as a result of partition of the joint family property all that results from partition is that the right of the father to make an alienation companyes to an end. In that case the property of the family was sold in execution of a money decree against the father and the sons sued to set aside the sale in so far as is affected their interest in the property and for a decree for possession of their share. The Court held that it was number proved that the liability which was incurred by the father was illegal or immoral and the sale of the joint family property including the share of the sons for satisfying the debts was valid numberwithstanding the severance of the joint family status effected before the sale was held through Court. We do number think it necessary to express our opinion on the question whether the I.L.R. 1950 Bom. 414. 2 1959 S.C.R. 1384, remedy of the creditor is to file a separate suit to enforce the pious obligation of a Hindu son to discharge the debts of his father, where since the decree against the father on a debt there has been a severance of the joint family status, or whether he can proceed to execute the decree against the sons interest in the property, after impleading him as a party to the execution proceeding, for we are definitely of the that partition was a sham transaction which was number intended to be operative. On March 14, 1947 the deed of partition was executed and registered. The object of this partition it is alleged was to protect the interest of his minor sons against their father who was acting to the detriment of his sons and was number even living with the family. The High Court relied upon a large number of circumstances in support of its view that the partition was numberinal. The deed was executed within a week after the decree was passed by the High Court in Kumaji Sare Mals suit. Nagappa had acquired an extensive property which was on acquisition treated as joint family property and there was numberhing to show that Nagappa was ill-disposed towards his sons or was actuated by any desire to harm their interest. The real purpose of the partition was to save as much property as possible and to preserve it for his children. The deed of partition showed apparently an equal distribution of property valued at Rs. 1,24,600/- into four shares each of the value of Rs. 31,150/- but the properties allotted to the share of Nagappa were in reality number worth that amount. Nagappa had also to discharge a debt for Rs. 12,236/4/9 -for which he was rendered liable under the deed and that debt companyld number be satisfied out of the property allotted to him. Again immediately after the deed of partition, Nagappa settled upon his wife Narayanamma a major fraction of that share and sold away one of the houses. The intention of Nagappa to make it appear to the Income-tax Department that numberuseful purpose would be served by taking companyrcive steps as the property -allotted to him and remaining after disposal of a good part of it as indicated above was wholly insufficient to meet the demands of the Department, is indeed clear. It was Nagappa who had instigated and prosecuted the suits. Narayanamma was an illiterate and ignorant woman, who knew numberhing about Nagappas transac- tions, and dealings. She did number even know what property had fallen to the share of her sons. Admissions made by her disclose that she did number manage the property though apparently she was treated as the guardian of her sons in the partition deed. The story that Nagappa was living with a mistress, and was number looking after the education and welfare of his minor sons does number appear to be supported by any reliable evidence. The eldest son was at the date of the alleged partition 14 years of age, and the youngest was three years old, and in the absence of any serious cause for differences between Nagappa and Narayanamma, partition of the estate companyld number have been thought of. Witness Singari Seshanna D.W.I. has deposed that Nagappa, his wife and children were living together in the family house even at the date of the suit and that Nagappa was companylecting rents from all the houses. This statement does number appear to have been challenged in cross-examination. P.W. 5 Venkatsami the clerk of Narayanamma, who claimed to be looking after management of the properties on behalf of Narayanamma, admitted that he companyld number say which of the houses were leased and to whom he was unable, to give any particulars with regard to some of the houses. This ignorance on the part of the alleged manager lends support to the testimony of Singari Seshanna D.W. 1 that it was Nagappa who remained in management of the property, and that the family lived together and in fact there was numberdisruption of the joint family. It is true that many documents were produced to show that the properties were entered in the names of the sons after the deed of partition. It also appears that taxes were paid separately in respect of the houses to the local Municipality and receipts were issued in the names of persons in whose names they stood in the municipal records. But these receipts do number show the names of the persons by whom the amounts acknowledged in the receipts were paid. The High Court has believed the evidence of Singari Seshanna W. I that it was Nagappa who companytinued to remain in management. It is true that the plaintiffs have led evidence of two witnesses P.W.6 and P.W. 7 who have deposed that they had assisted in making the partition. The deed of partition was undoubtedly executed and was registered, but the mere execution of the deed is number decisive of the question whether it was intended to be effective. The circumstances disclosed by the evidence clearly show that there was numberreason for arriving at a partition. Counsel for the plaintiffs practically companyceded that fact, and submitted that Nagappas desire to defeat his creditors, and to save the Property for his sons, was the real cause for bringing the deed of partition into existence. Counsel claimed however that Nagappa had adopted the expedient of affecting a partition with the object of putting the property out of the reach of his creditors, and the genuineness of that partition should number be permitted to be blurred by the unmeritorious object of Nagappa. But the companytinued management of the property by Nagappa since the partition, and the interest shown by him in prosecuting the suits do clearly support the inference that the deed of partition was a numberinal transaction which was never intended to be acted upon and was number given effect to. If it be held that the partition was a sham transaction the plaintiffs suit or setting aside the summary order passed in execution proceeding on the application filed by the plaintiffs for setting aside the attachment must fail, The Appeal No. 642 of 1961 must therefore also fail.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 225 of 1963. Appeal by special leave from the award dated November 26, 1962 of the Labour Court, Lucknow, in Adjudication Case No. 68 of 1962. S. Pathak and D.N. Mukherjee for the appellant. M. Rajagopalan and K. R. Chaudhuri for the respondents. 1963. April 4. The judgment of the Court was delivered by DAS GUPTA J.-The twenty-one persons who are the respondents in this appeal were engaged from November 21, 1958, to February 5, 1959, in the work of removal of press-mud in the sugar factory belonging to the appellant. On February 6, 1959, their services were terminated. It also appears that for the period of work of November 21, 1959, to February 5, 1959, they were paid wages at rates lower than Rs. 55/- per month which was the minimum prescribed wage for workmen of vacuum pan sugar factories of Uttar Pradesh under the Standing Orders dated October 3, 1958, issued by the Government of Uttar Pradesh. On July 31, 1962, the Governor of Uttar Pradesh referred to the Labour Court, Lucknow, a dispute between these respondents and the Basti Sugar Mills Ltd. In this the Basti Sugar Mills Ltd., was described as the employers and the respondents as their workmen. The matters in dispute were thus mentioned in the order of reference - Whether the employers have terminated the services of their workmen, named in the Annexure, will effect from February 6, 1959- legally and or justifiably ? if number, to what relief are the workmen companycerned entitled ? Whether the action of the employers in paying to the workmen, named in the Annexure to issue No. 1, at rates lower than the minimum prescribed wage of Rs. 55 per month, for the period from November 21, 1958 to February 5, 1959 is legal and or justified. If number, to what relief are the workmen companycerned entitled and with what details. The appellant companytended that these 21 workmen were number employed by the management of the sugar mills. The appellants case was that the work of removal of press-mud had been given by the Company to a companytractor, Banarsi Das, and that these 21 men were employed by that companytractor to do the work. The management of the Company, it was said, had numberhing to do with these men. Banarsi Das left the work on February 6, 1959, and the termination of the services of these workmen was made by him. The respondents through their Union companytended, on the companytrary, that they had been employed directly by the management of the Company. On a companysideration of the evidence the Labour Court accepted the appellants case that the work of removal of press-mud was being done through the companytractor Banarsi Das and it was Banarsi Das under whom these 21 persons were employed. It further held that in view of the definition of employer in sub-cl. iv of s. 2 i of the Uttar Pradesh Industrial Disputes Act, 1947, the appellant was in law the employer of these 21 persons. It held accordingly that they were entitled to the benefit of the Standing Orders regarding minimum wages and were also entitled to reinstatement. In that view the Labour Court ordered, a payment to the Workmen at the rate of Rs. 551 per month from February 6, 1959 upto the end of the crushing season of 1958 59 b reinstatement of the workmen if number already employed by the Company in the crushing season of 1962-63 and c payment of difference of wages companyputed at the rate of Rs. 55/- per month and Re. I - per day in the case of Ram Ujagar and 14 annas per day in the case of other workmen for the period November 21, 1958 to February 5, 1959. Against this order of the Labour Court the present appeal has been filed by the Company with the special leave of this Court. Three points are raised by Mr. Pathak in support of the appeal. The first is that the definition of employer in sub-cl. iv of s. 2 i of the Act does number make the appellant, the employer of these workmen. The second point, urged rather faintly, is that if the above definition be so companystrued as to make the companytractors labourers, workmen of the companypany the definition should be held to violate the provisions of Art. 19 1 g of the Constitution. The third point urged is that, in any case, the respondents are number entitled to the benefit of the Standing Orders which fixed the minimum wage for the workmen of the Vacuum Pan Sugar Factories of Uttar Pradesh. Section 2 i of the Act companytains an inclusive definition.of employer. The effect of sub-cl. iv of s. 2 i is that where the owner of any industry in the companyrse of or for the purpose of companyducting the industry companytracts with any person for the execution by or under such person of the whole or any part of any work which is ordinarily a part of the industry, the owner of such industry is an- employer within the meaning of the Act. Mr. Pathaks suggestion that the effect of this definition is that the owner of the industry becomes the employer of the companytractor is wholly untenable and can even be described as fantastic to deserve serious companysideration. The obvious purpose of this extended definition of the word employer is to make the owner of the industry., in the circumstances mentioned in the sub- clause, the employer of the workmen engaged in the work which is done through companytract. The words used in the sub- clause are clearly sufficient to achieve this purpose. It is true, as pointed out by Mr. Pathak, that the definition of the word workmen did number companytain any words to show that the companytract labour was included. That however does number affect the position. The words of the definition of workmen in s. 2 z to mean any person including an -apprentice employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, Whether the terms of employment be express or implied are by themselves sufficiently wide to bring in persons doing work in an industry whether the employment was by the management or by the companytractor of the, management. Unless however the definition of the word employer included the management of the industry even when the employment was by the companytractor the workmen employed by the companytractor companyld number get the benefit of the Act since a dispute between them and the management would number be an industrial dispute between employer and workmen. It was with a view to remove this difficulty in the way of workmen employed by companytractors that the definition of employer has been extended by sub-cl. iv of s. 2 i . The position thus is a that the respondents are workmen within the meaning of s. 2 z , being persons employed in the industry to do manual work for reward, and b they were employed by a companytractor with whom the appellant companypany had companytracted in the companyrse of companyducting the industry for the execution by the said companytractor of the work of removal of press-mud which is ordinarily a part of the industry. It follows therefore from s. 2 z read with sub-cl. iv of s. 2 i of the Act that they are workmen of the appellant companypany and the appellant companypany is their employer. There is numbersubstance therefore in the first point raised by the learned companynsel for the appellant. The second point, viz., that this definition companytravenes the appellants fundamental rights under Art. 19 l g is equally devoid of substance. Assuming that the result of this definition of employer in sub-cl. iv of s. 2 i is the imposition of some restrictions on the appellants right to carry on trade or business, it cannot be doubted for a moment that the imposition of such restrictions is in the insterest of the general public. For, the interests of the general public require that the device of the engagement of a companytractor for doing work which is ordinarily part of the industry should number be allowed to be availed of by owners of industry for evading the provisions of the Industrial Disputes Act. That these provisions are in the interests of the general public cannot be and has number been disputed. That being the position, the impugned definition which gives the benefit of the provision of the Act to the workmen engaged under a companytract in doing work which is ordinarily part of the industry cannot but be held to be also in the interests of the general public. This brings us to Mr. Pathaks main companytention that in any case the respondents are number workmen within the meaning of the Standing Orders and so cannot get the benefit of the minimum wage prescribed thereby. In the standing Orders the word workmen is defined to mean any person including an apprentice employed by a factory, to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied but does number include any person mentioned in cls. i and ii . We are number companycerned in this case with these clauses. Mr. Pathak argues that on a. reasonable companystruction, the words employed by a factory in this definition can only mean employed by the management of the factory and can number include persons employed by a companytractor of the factory. He points out- that this definition of workmen in the Standing Orders uses the words employed by a factory though the definition of workmen in the Act itself uses the words ,employed in any industry and companytends that the words by a factory were deliberately used instead of words ,in a factory to exclude persons other than those employed by the management of the factory from the benefit of the Standing Orders. Neither grammar number reason supports this argument. On the ordinary grammatical sense of the Words ,employed by a factory they include, in our opinion, every person who is employed to do the work of the factory. The use of the word by has numberhing to do with th question as to who makes the Appointment. The reason why by was used instead of in appears to be to ensure that if a person has been employed to do the work of the industry, whether the work is done inside the factory or outside the factory, he will get the benefit of the Standing Orders. We can also see numberreason why the Government in making the Standing Orders would think of denying to some of the persons who fall within the definition of workmen under the Act, the benefit of the Standing Orders. The Standing Orders were made under s. 3 b of the Act under which the State Government may make provision for requiring employers, workmen or both to observe for such period as may be specified in the order such terms and companyditions of employment as may be determined in accordance with the order. The purpose of the order was thus clearly to require employers to observe certain terms and companyditions of employment of their workmen as defined in the Act. It is unthinkable that in doing so the Government would want to exclude from its benefits-particulary, that of the minimum wage -a class of workmen who would otherwise get the benefit under the definitions of workmen and employer in the Act itself. No reason has been suggested and we cannot think of any. We have therefore companye the companyclusion that the words employed by a factory are wide enough to include workmen employed by the companytractors of factory also. Mr. Pathak wanted to raise a new point based on the provisions of cl. K of the Standing Orders. That clause provides that a seasonal workman who has worked or, but for illness or any other unavoidable cause, would have worked under a factory during the whole of the second half of the last preceding season will be employed by the factory in the current season. In view of this Mr. Pathak wants to urge that it will be difficult for the appellant to give effect to the order of reinstatement of these 21 workmen as that would mean getting rid of at least some workmen who are entitled to be employed by the factory under the provisions of cl. K . if the facts were known to be as suggested by the learned Counsel we would have felt obliged to take numbere of these provisions of cl. K and would have thought fit to make an order as was made by this Court in similar circumstances in Mahalakshmi Sugar Mills Company Ltd. v. Their Workmen 1 , making it clear that there 21 workmen should be re-employed in the crushing season of 1962-63 only in so for as it was possible to do so without breach of the provisions of cl. K of the Standing Orders. There are numbermaterials on the record however to show how many of the workmen already employed by the Company in the crushing season of 1962-63 had actually worked in the latter half of 1961-62 season. In the written statement of the Company numbersuch point about the difficulty of reinstatement of any of these 21 workmen because of the provisions of cl.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 195 of 1961. Appeal from the judgment and decree dated September 3, 1957, of the Patna High Court in Appeal from original decree No. 42 of 1948. Sarjoo Prasad and Mohan Behari Lai for the appellant. V. Viswanatha Sastri and D. Goburdhun, for the respondents Nos. I to 3 and 5. 1963. April 25. The judgment of the Court was delivered by AYYANGAR J.-The proper companystruction of the vesting sections of the Bihar Land Reforms Act, 1950 hereinafter called the Act , and in particular the scope of s. 6 thereof is the principal point that arises in this. appeal which is before us on a certificate of fitness granted under Art. 133 1 by the High Court of Patna. The plaintiffs are the appellants before us. The subject matter of the suit is a piece of land of about 14 bighas and 5 kathas in khata No.741 in mauza Chaugain. The relief claimed in the suit was a declaration that the land referred to was the zeraiti land of the plaintiffs and that the persons who were impleaded as the defendants 1st and 2nd parties had numberright or title thereto and for recovery of possession of the said land by dispossessing the defendants who were in actual possession thereof. There was also a claim to a decree for mesne profits for three years before the suit and for an enquiry into future profits under 0. XX. r. 12 C. P. Code. We shall number state a few .facts which are necessary to understand the companytentions which have been urged in this appeal. The material allegations, in the plaint were these The plaintiffs ancestors had executed a registered rehan bond on October 28, 1897 of lands including those number in suit, in favour of the ancestors of the persons who were impleaded as defendants 3rd parties. During the subsistence of this mortgage the plaintiffs ancestors executed another registered rehan bond .in June, 1907 in favour of persons who were the ancestors of the persons impleaded as defendants 4th parties, a portion of the mortgage money being left with these second mortgagees to enable them to redeem the earlier mortgage. This redemption was effected and the defendants 4th party got into possession of the entirety of the property mortgaged to them. On June 8, 1941, the plaintiffs paid off the amount due on the rehan bond of 1907 and entered satisfaction on the bond making an endorsement thereon. On such redemption the plaintiffs obtained possession of a portion of the lands under mortgage but they companyld number obtain possession of the lands in suit. These lands were in the possession of the defendants last and 2nd parties who claimed title on the basis of their being entitled to occupancy rights in the lands and they refused to surrender actual possession of the land to the plaintiffs. They had asserted that the suit lands were number zeraiti lands in regard to which the plaintiff as maliks would be entitled to khas possession, but were raiyat- lands from which they, the tenants in cultivation companyld number be evicted. On this claim being made and resistance offered to the plaintiffs taking khas possession, the present suit was filed for the reliefs already set out. The defendants 3rd and 4th parties who were the representatives of the mortgages under the rehan bonds of 1897 and 1907 hardly came into the picture as their claims under their mortgages have long ago been satisfied. The companytest was therefore limited to the tenant-defendants- defendants 1st and 2nd parties and of these, it is sufficient to companyfine attention to the defendant 2nd parties who are in actual possession of the lands at the date of the suit. It need hardly be mentioned that by their written statement these defendants questioned the tenure of the lands, and asserted their rights to remain in possession despite the discharge by the payment of the rehan of 1907. There were several issues raised which reflected these pleadings. But what we are number companycerned with are the issues which relate to the following 1 Was the suit-land zeraiti land as claimed by the plaintiffs or was it raiyati- land as pleaded by the companytesting defendants, 2 When did the defendants 1st and 2nd parties first companye into possession and cultivation of the land. It was the case of the defendants that they had been in possession and occupation of the land as tenants long before the rehan of 1897-even 30 years earlier, whereas it was the case of the plaintiffs that they were inducted to the land for the first time as tenants of the mortgagees under the first rehan of 1897 and that they were originally brought in as tenants for a term of 7 years which expired in or about 1912-13, 3 Had the plaintiffs lost title to the land and their suit for recovery thereof barred by limitation by reason of the companytesting defendants having perfected their title by adverse possession? The companytesting defendants put forward a claim that they had perfected their title by adverse possession for over the statutory period of 12 years under Art. 144 of the Limitation Act and the point in companytroversy was when the period of this adverse possession started and whether companyputed on that footing the suit was barred by limitation. A large mass of documentary and oral evidence was led by the parties. and this was the subject of elaborate companysideration by the learned trial Judge. The findings recorded by him were 1 that the land was the zeraiti land of the plaintiffs and had been in their acutal possession and number in the possession of any tenants of theirs at the date of the 1st rehan in 1897. This necessarily meant the rejection of the case put forward by the defendants that their predeces sors were in occupation of the lands even before the rehan of 1897, 2 the defendants came into possession of the land under a lease deed executed about the year 1906 for a term of years and that that lease deed expired in 1912-13 and that thereafter they companytinued as tenants of zeraiti land and companyld number, therefore, claim any. right of occupancy in the land, 3 The defendants 2nd party who were in actual occupation were, numberdoubt, in possession of the suit lands under a claim to hold them on their own behalf but their possession companyld number be adverse to the plaintiffs until the latter got the right to resume possession which was only in June 1941 when they paid and discharged the amount due under the mortgage and so obtained the right to possession. As the suit was brought within 12 years from that date it was within time. On these findings the learned trial judge, by his judgment dated October 10, 1947, decreed the suit, as prayed for. The companytesting defendants-defendants 2nd party filed an appeal to the High Court challenging these findings. Pending the appeal they applied for and obtained stay of delivery of possession and by virtue of the order the defendants 2nd party companytinued to remain in possession. While the appeal was pending the Bihar Land Reforms Act Act XXX of 1950 was enacted and it came into force on September 25, 1950. Section 3 1 of the Act enacted The State Government may, from time to time by numberification, declare that the estates or tenures of a proprietor or tenure-holder, specified in the numberification, have passed to and become vested in the State. It was companymon ground that the plaintiffs were proprietors within that Act. Under a numberification published under s. 3 1 of the Act the plaintiffs estate became vested, as and from January 1, 1955, in the State. The legal effect of a numberification under s. 3 1 is set out in s. 4 which enacts Notwithstanding anything companytained in any other law for the time being in force or in any companytract, on the publication of the numberification under sub-section 1 of Section 3, the following companysequences shall ensue, namely- a such estate or tenure including the interests of the proprietor or tenure holder in any building or part of a building company- prised in such estate or tenure as also his interests in all sub- soil shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure- holder shall cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act. The rest of the section is number material. The Act, however, companytains in s. 6 a saving as to certain lands of the proprietor or tenure-holder but to this we shall refer later. The appeal came on for hearing before the High Court in September, 1957. At that stage learned Counsel for the tenant-defendants who were the appellants before the High Court, raised a plea that the suit which was in substance one for ejectment based on the title of the plaintiffs should fail and be dismissed because the plaintiffs had lost their title to the property which vested in the State by virtue of the numberification under s. 3 of the Act with the companysequence specified in s. 4. This was companytested by the learned Counsel for the plaintiffs who submitted that the Court companyld number take numberice of the legislation which came into force during the pendency of the appeal but that the Court should decide on the rights of parties with reference to the law as it stood at the date of the suit. The learned Judges, however rejected this last companytention and held that the rights of the parties had to be decided on the law as it existed on the date of their judgment and so the effect of the Act on the title of the plaintiffs had to be companysidered before the relief granted by the trial judge companyld be companyfirmed. Apparently beyond this general submission whether a companyrt, particularly a companyrt of appeal, should or should number take into account the effect of a change in the law subsequent to the institution of the suit, numberattempt was made by Counsel for the plaintiffs to canvass before the High Court that even if the Act companyld be taken numberice of the rights of the parties determined on that basis. Still on a proper companystruction of that Act the rights of the plaintiffs to the reliefs granted by the trial judge remained unaffected which, as we shall point out later, is the argument pressed upon us. There is one other matter to be numbericed. It would be seen that the plaintiffs had made a claim for a declaration regarding the zeraiti character of the land. They had claimed mesne profits for three years before the suit which had been granted and moreover they had been granted the relief of an inquiry into mesne profits for the period subsequent to the suit up to 31. 12. 1954 even on the footing that the estate vested in the State as and from January 1, 1955. The right of the plaintiffs to retain these reliefs depended upon the companyrectness of the Courts decision regarding the tenure of the land. Counsel for the tenant-defendants canvassed before the High Court the companyrectness of the findings recorded by the trial judge regarding the zeraiti character of the land and the further finding. as regards the date from which they were in possession and cultivation of the lands and the nature and character of their possession. The learned judges therefore examined the oral and documentary evidence bearing upon these points and arrived at the same companyclusion as the learned trial judge. Section 4 ee of the Act enacts The State Government may within three months of the service of the numberice apply to the Court to be added, and shall thereupon PO be added, -as a party thereto and shall be entitled to companyduct or defend such suit or proceedings, as the case may be Pursuant to this provision numberice was given to the State Government but numberappearance was made on its I behalf. Counsel for the State, however, appeared at the hearing of the appeal and prayed that a decree may be passed in, favour of the State for possession of the suit- lands on the basis that the same had vested in the State under S. 4 a of the Act. The learned judges, however, declined this request for the reason that the, State had number been diligent in acting upon the numberice served upon them as required by the Act and number entering appearance within the time limited therefore. A decree for possession in favour. of the State thus having been refused, the learned Judges modified the decree of the learned trial judges in these terms The plaintiffs shall be entitled to a decree for a declaration of their title to the effect that the lands in suit are the proprietors private lands belonging to the plaintiffs and that they arc entitled to mesne profits for the years claimed and also up to the 31st December, 1954, the plaintiffsestate having vested in the State of Bihar on 1.1.55, and the decree for possession is set aside. The amount of mesne profits shall be ascertained in a subsequent proceedings. It is this decree which refused them possession that is challenged by the plaintiffs in the appeal before us. Mr. Sarjoo Prasad who appeared for the appellant, did number companytest the legality or propriety of the companyrse adopted by the learned judges of the High Court in companysidering the title of the plaintiffs and their claim to the reliefs prayed for in the suit with reference to the provisions of the Act. His companytention, however, was that on the very terms of the Act the plaintiffs were entitled to retain the decree for possession granted by the trial companyrt. His argument was shortly as follows In view of the companycurrent findings that the lands were the zeraiti lands of the plaintiffs, they would number vest in the State Government because of the saving in s. 6 of the Act which excepts from the operation of s. 4 such lands in the situation of those number in suit. He, however, companyceded that if the exception created by s. 6 did number, for any reason, apply, the vesting in the State under s. 4 companyld number be resisted with the result that the plaintiffs companyld number have a decree. for possession. It becomes, therefore, necessary to read s. 6 to ascertain its proper scope. That section runs, to quote only what is relevant for the present purpose . 6. 1 On and from the date of vesting, all lands used for agricultural or horticultural purposes, which were in khas possession of a proprietor or tenure-holder on the date of such vesting, including- a i proprietors private lands let out under a lease for a term of years or under a lease from year to year, referred to in section 1 16 of the Bihar Tenancy Act, 1885, landlords privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less, referred to in section 43 of the Chota Nagpur Tenancy Act., 1908, Lands used for agricultural or horti- cultural purposes and held in the direct possession of a temporary leases of an estate, or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and c lands used for agricultural or horti- cultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof shall subject to the provisions of sections 7A 7B, be deemed to be settled by the State with such proprietor or tenure holder., as the case may be, and such proprietor or tenure holder shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. It will be numbericed that it was only lands in the khas possession of the proprietor that were saved from vesting in possession in the State under s. 6. The expression khas possession is defined in s. 2 k thus khas possession used with reference to the possession of a proprietor or tenure holder of any land used for agricultural or horticultural purposes means the possession of such proprietor or tenure, holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock The submission was that the plaintiffs should be deemed to have been in khas possession of the suit land on the date of the vesting i. e. January 1, 1955 by reason of the case falling within s. 6 1 c which reads lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover Khas possession thereof. It was submitted that 1 the expression khas possession had to be understood as meaning number merely actual physical possession as defined in s. 2 k but also cases where a person was companystructively in possession, the physical possession being in some other who held the property derivatively from him or in trust for him or on his behalf or with his permission-express or implied. For this purpose learned Counsel relied on the decision of the Full Bench of the Patna High Court in Mahanth Sukhdeo Das v. Kashi Prasad Tiwari 1 . Where lands in the actual physical possession of one companysharer were held to be in the khas possession of all the companysharers within s. 2 k ., 2 it was then urged that where a mortgagee companytinued in possession of property usufructuarily mortgaged to him, even after the mortgage was paid and discharged the property remained in the khas possession of the mortgagor because the mortgagee does number hold the property adversely to the mortgagor but his possession having started permissively, he must in law be deemed to hold it still as mortgagee. This was on the principle that the payment and discharge of -a mortgage debt in the case of a usufructuary mortgage does number put an end to the mortgagor-mortgagee relationship but that the relationship would companye to an end only when the mortgagee had performed his part of the obligation of returning to the mortgagor possession of the property which he held as part of the mortgage-security., 3 on this line of reasoning it was companytended that a suit by the mortgagor for the recovery of possession from the mortgagee of property usufructuarily mortgaged companyld therefore aptly be described as a suit for redemption numberwithstanding that the mortgage debt had been paid off. For this last proposition learned Counsel relied on certain decisions rendered on the companystruction A. I. R. 1938 Patna 638 of s. 10 of Bengal Regulation XV of 1793 See, for instance, L. R. 1933 Allahabad 97 ., 4 on the finding of the companyrts below that the defendants 1st and 2nd parties entered into possession of the property as tenants for a term during the subsistence of the rehan of 1897, these defendants companyld be in numberbetter position and claim numberhigher rights than the mortgagee himself and they must be held bound by the same equities and the same estoppels as the mortgagees who let them into possession on this reasoning learned Counsel submitted that s. 6 1 c of the Act companyered the case since redemption in the sense of possession being redelivered to the mortgagor was number effected on January 1, 1955 -the date of the vesting in the State Government. Before proceeding further it is necessary to advert to an argument addressed to us by learned Counsel for the respondent. His submission was that on the materials on the record he companyld successfully challenge the finding of the High Court on the question whether the land was a zeraiti land of the plaintiffs. He urged that there had been a material misappreciation of the evidence adduced by the companytesting defendants to establish that they had been in possession and were cultivating the suit lands even before the rehan bond of 1897 and that this error was so grave as to fall within the exception to the rule that this Court would number permit the questioning of companycurrent findings of fact. We did number, however, permit learned Counsel to address any arguments on this part of the case in view of two matters 1 As the companytesting defendants had number filed any appeal from the judgment of the High Court granting the plaintiffs a declaration that the land was zeraiti and also a decree for mesne profits up to December 31, 1954, it would follow that. even if the respondents succeeded in establishing that the land was raiyat land and number zeraiti, it would number affect the decree passed and would only lead to this, that they would be able just to maintain the disallowance to the plaintiffs of the relief of possession., 2 The second matter which weighed with us in number permitting arguments relating to the findings regarding the tenure of the land etc. was that we were number impressed with the legal points urged by the appellant and in the companytext of the facts of this case we arrived at the companyclusion that for this reason the appeal should fail. We should, therefore, number be taken to have either affirmed or disagreed with the findings recorded by the learned trial judge and the High Court as regards the zeraiti character of the land and the claim of the defendants 1st and 2nd parties to occupancy rights in those lands. It would be recalled that under the terms of s. 6 1 c the zeraiti land of a proprietor would be deemed to be in his khas possession if it were the subject-matter of a usufructuary mortgage subsisting on January 1, 1955 and the mortgagor had a right to recover possession of the same. The argument was that these requirements were satisfied by the appellants and that so long as the mortgagors did number obtain redelivery of possession of the property, the rehan of 1907 was alive and subsisting numberwithstanding that the amount due as mortgage money was paid and discharged in 1941. Learned Counsel referred us to s.62 of the Transfer of Property Act and to the terms of Art. 148 of the 1st Schedule of the Indian Limitation Act in which a suit for possession by the mortgagor is said to be against the mortgagee indicating that during the entire period of 60 years prescribed by companyumn 3 the mortgagor-mortgagee relationship companytinued. He also placed before us some decisions of the High Courts in support of the view that a mortgagee companytinuing in possession of mortgaged property after the payment of the mortgage money held the same on behalf of the mortgagor, and in trust for him. We do number, however, companysider it necessary to discuss these submissions further or to record any opinion thereon since on the facts of the present case the learning involved in them is number very relevant. For it was number disputed that even a mortgagee and afortiori so, a person other than the mortgagee, even though his possession originated through the possession of a mortgagee companyld, by overt act and open claims, hold the property number on behalf of the mortgagor but in his own right and adversely to the mortgagor. Mr. Sarjoo Prasad however relied on certain observations in the judgment of the full Beneh of the Patna High Court in Sukdeo Das v. Kashi Prasad 1 , were the learned judges appear to companysider the possession even of a trespasser who has number perfected his title by adverse possession for the time requisite under the Indian Limitation Act as the khas possession of the true owner. We companysider that this equation of the right to possession with khas possession is number justified by principle or authority. Besides this is also inconsistent with the reasoning of the Full Bench by which companystructive possession is treated as within the companycept of khas possession. The possession of the companytesting defendants in the present case was in their own right and adverse to the plaintiffs, even on the case with which the appellants themselves came into Court. The plaintiffs stated in their plaint that the mortgagees had, so far as they were companycerned, fulfilled their obligations and had put the mortgagors in possession of such property as they companyld and that it was the companytesting defendants who putting forward claims to occupancy rights, resisted their entry into possession. This is, therefore, number a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed the right to retain possession of the property by asserting a title which was as much against the mortgagee as against the mortgagors. In this companytext the plea made by the plaintiffs relevant to the character of the possession A. I. R. 1958 Patna 630, of the companytesting defendants assumes crucial importance, for if they were admittedly trespassers then they companyld number be said to hold the property on behalf of the mortgagors and the entire basis of the argument as to the property being in the khas possession of the plaintiffs would disappear. Paragraph 10 of the plaint reads it is quite clear that the defendants 1st party or 2nd party have numberkasht right in the disputed lands as against the plaintiffs, and after redemption of the rehan, their possession and occupation are quite wrongful. They expanded the idea here companytained in the next paragraph which we shall set out in full On 8.6.41, in the year 1941-the plaintiffs, on payment of the entire rehan money, and redeemed the rehan property under the rehan bond dated 10.6.1907 and entered into posses- sion and occupation of the rehan property companyered by the said bond, but when the plain- tiffs wanted to enter into possession and occupation of the disputed land entered in schedule No. 3, the defendants 2nd party in companylusion and companycert with the defendants 1st party did number allow the plaintiffs to enter into possession and occupation and there was fresh invasion against the title of the plaintiffs. It is hardly necessary to add- that the defendants 1st and 2nd parties besides asserting their right to be in possession lawfully as tenants cultivating raiyati land, also asserted that they had acquired that right on account of adverse possession for more than 12 years and on account of being settled raiyats which the maliks had all along been admitting etc The relevant issue framed in regard to this point was Issue No. 9 which read Have defendant 2nd party or 1st party acquir- ed any right in the suit land by adverse possession ? and it was for the companysideration of this issue that it was necessary for the Court to ascertain the date when their possession became adverse. The finding recorded by the learned trial judge was in these terms tenancies in the zerait land in suit and whatever tenancies might have been created by them during their possession, ipso facto came to an end when the mortgage was redeemed by the plaintiffs in 1941. The possession of defendants 1st party or defendant 2nd party became that of a trespasser as against the plaintiffs on the redemption of the rehan in 1941 and the suit having been instituted within 12 years from the date of redemption, the suit is number barred by limitation and the plaintiffs are entitled to recover khas possession The plaintiffs are entitled to treat both of them as trespassers and their possession would become adverse as against the-plaintiffs from the date of redemption i.e., from 1941. The suit having been instituted within 12 years from 1941, the plaintiffs right to recover khas possession of the suit land will therefore number be barred by limitation., and the same idea is repeated in a later passage of the judgment. This aspect of the case has number been dealt with in the judgment of the High Court apparently because the title of the companytesting defendants based on adverse possession for over 12 years was number pressed before the High Court in view of its finding on the other parts of the cast. The authorities relied on by Mr. Sarjoo Prasad only go to this extent that where numberhing else is known except that a mortgagee companytinues in possession of the property after redemption, the right of the mortgagor to sue for recovery of the property is governed by the 60 years rule based on the companytinuing relationship of mortgagor and mortgagee between them. These very authorities however show that if the mortgagee by some overt act renounces his character as mortgagee and sets up title in himself, to the knowledge of the mortgagor, his possession would number thereafter companytinue as mortgagee but as a trespasser and the suit for recovery of the property from him would be governed by Art. 144 the starting point of limitation being the date at which by the overt manifestation of intention the possession became adverse. It is afortiori so in cases where what the companyrt is companycerned with is number the possession of the mortgagee but of someone else, such as in this case, the tenants claiming occupancy rights. When the mortgage was redeemed they resisted the mortgagors claim to possession and asserted their right to remain in possession as kasht tenants. It was on the basis of their possession being wrongful that a claim was made against them for mesne profits and it was on the footing of their being trespassers that they were -sued and possession sought to be recovered from them. In these circumstances we companysider that it is number possible for the appellants to companytend that these tenants were in possession of the property on behalf of the mortgagor and in the character of their rights being derived from the mortgagor. Section 6 1 c cannot, in terms, therefore apply since the mortgagor-mortgagee relationship did number subsist on.January 1, 1955 even if the companystruction which learned Counsel for the appellant pressed upon us was accepted.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 707 of 1962. Appeal by special leave from the order dated December 11, 1961, of the Central Government Labour Court, Delhi in C.A. No. 605 of 1961. K. Ramamurtthi, R. K. Garg, D. P. Singh and S. C. Aggarwala, for the appellant. N. Sanyal, Solicitor-General of India., H.L. Anand, Vidya Sagar and B. C. Das Gupta, for the respondent. 1963. April 22. The judgment of the Court was delivered by DAS GUPTA J.-The appellant was appointed as a clerk in the State Bank of India, the respondent before us, on December 14, 1953. At the time of appointment his salary was Rs. 95/- per month with a dearness allowance of Rs. 50/-. The Sastry Award in the disputes between certain banking companypanies and their workmen as modified by the labour Appellate Tribunal was given statutory force by the Industrial Disputes Banking Companies Decisions Act, 1955. In applying to the appellant this award which is admittedly applicable to him the bank proceeded on the basis that under it the appellant was entitled to get his annual increment in each year on April 1. According to the appellant, however, he is entitled under the award to have his annual increment in December each year. On December 14, 1960, the appellant made an application under s. 33 c 2 of the Industrial Disputes Act before the Labour Court, Delhi, praying that the benefit under the award of which he is being deprived by the bank by the alleged error in its implementation should be companyputed and directed to be paid to him. A schedule was annexed to the application purporting to show that on the basis that the annual increment has to be allowed on December 14, of each year and number on April, 1, the appellant was entitled to an additional sum of Rs. 146/- plus dearness allowance. In resisting this application the Bank raised a preliminary objection that the question whether or number the appellant was entitled to the benefits as alleged by him companyld number be raised or decided in an application under s. 33 c 2 . On the merits the bank pleaded that it had acted in accordance with the terms of the Sastry Award in allowing increments on the 1st April of each year. The Labour Court rejected the preliminary objection but held on the merits that the annual increment of the appellant fell due from after April 1, 1954, and on April 1, in succeeding years. Accordingly, the Court rejected the application. Against this order of rejection this appeal has been filed by special leave of this companyrt. Before us the appellant companytends that the Labour Court has erred in thinking that tinder the award annual increments to workmen appointed after January 31, 1950 and before the new scales were brought into force, fell due on April 1, of each year, starting from April 1, 1954. The respondent in addition to supporting the decision of the Labour Court on merits further companytended that the Court had wrongly rejected the preliminary objection raised by the bank. The scope of s. 33 c 2 of the Industrial Disputes Act has been elaborately companysidered by us in the Central Bank of India Ltd. v. P.S. Rajagopalan 1 , and we have decided there that the Labour Court has got jurisdiction to decide on an examination of an award or settlement whether or number the workman is entitled to the benefits claimed by him. The preliminary objection must therefore be held to have been rightly rejected by the Court. It is necessary therefore to decide the appellants companytention that the Labour Court had erred in its decision on the merits. The appellants case in the written statement was that under the Sastry Award his pay had to be fixed in accordance with the directions in cl. 7 of para 292 but that the bank had wrongly fixed his pay on the same basis as the employees who entered service of the respondent before January 31, 1950. He claimed that if his pay had been fixed in accordance with cl. 7 of para 292 his annual increment would have fallen due on December 14, of each year and number April 1, each year as calculated by the bank. The bank companytended however that as the adjusted salary would have effect under para. 292 1 1964 Vol, 3 S. C. R. 140. from April l,1954 the increments were rightly given on April 1, of each year, after April 1, 1954. The Labour Court companysidered the appellants petition and four other petitions together and disposed of these by the same order. It may be mentioned that in other four petitions, two persons were appointed on February 24, 1950, one on March 15, 1951 and one on June 1, 1953, while the appellant, as already stated, was appointed on December 14, 1953. In all the cases the Labour Court accepted the banks companytention based on para. 292 12 which after modification by the Labour Appellate Tribunal says The adjusted pay shall have effect from April 1, 1954. The Court was of opinion that this rule should apply to all persons appointed after January 31, 1950 but before April 1, 1954. It is necessary to numberice that para. 292 of the award dealt with the question of fitting the existing staff into the revised scales of pay. The revised scales of pay were brought into operation under para 627 with effect from April 1, 1953. The award, it may be mentioned, was signed by the members of the Tribunal between March 5, and March 20, 1953. It is easy to see that persons who joined the service of the bank after the date when the new scales came into force would number be governed by para. 292 for the simple reason that they were number existing staff of the bank. Such workmen would companye straight into the revised scales of pay. Thus, the present appellant appointed on December 14, 1953 would get the benefit of the new scales of pay from the very date of his appointment In companysequence., he would get the increments under the new scale on December 14 of each year and would thus he entitled to payment of Rs. 100/- per month from December 14,1954 to December l3, 1955 at the rate of Rs. 106 per month from December 14, 1955 to December 13, 1956 and so on, as claimed by him in the schedule to his petition. He is therefore entitled to Rs. 146/- plus dearness allowance as the benefit to which he is entitled- under the Sastry Award but which has number been paid. The Labour Court was, therefore, wrong in rejecting the appellants petition. We allow the appeal, set aside the order of the Labour Court, Delhi, and companypute the sum to which he is entitled under the Award at Rs. 146/- plus dearness allowance.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 133 of 1961. Appeal by special leave from the judgment and order dated July 29, 1959, of the Bombay High Court in First Appeal No. 317 of 1958. S. Pathak, S. N. Andley and Rameshwar Nath, for the appellant. Ganapathy Iyer, for the respondent. 1963. May 10. The Judgment of Subba Rao and Mudholkar.JJ was delivered by Subba Rao J. Dayal J., delivered a separate judgment. SUBBA RAO J.-This appeal by special leave raises a short but difficult question of the true companystruction of s. 3 1 of the Workmens Compensation Act 8 of 1923 , hereinafter called the Act, and its application to the facts of this case. The Bombay Municipal Corporation, hereinafter called the Corporation, runs a public utility transport service in Greater Bombay and the said transport service is managed by a Committee known as the Bombay Electricity Supply and Transport Committee. The said Committee companyducts the transport service in the name of Bombay Electric Supply and Transport Undertaking. The Undertaking owns a number of buses and the Corporation employs a staff, including bus drivers, for companyducting the said service. One P. Nanu Raman was one of such bus drivers employed by the companyporation. There, are various depots in different parts of the City wherein buses feeding that part are garaged and maintained. A bus driver has to drive a bus allotted to him from morning till evening with necessary intervals, and for that purpose he has to reach the depot companycerned early in the morning and go back to his home after his work is finished and the bus is lodged in the depot. The efficiency of the service depends, inter alia, on the facility given to a driver for his journey to and from his house and the depot. Presumably for that reason Rule 19 of the Standing Rules of the Bombay Municipality B.E.S.T. Undertaking permits a specified number of the traffic outdoor staff in uniform to travel standing in a bus without payment of fares. Having regard to the long distances to be companyered in a city like Bombay, the statutory right companyferred under the rule is companyducive to the efficiency of the service. On July 20, 1957, the said Nanu Karnan finished his work for the day at about 7.45 p.m. at jogeshwari bus depot. After leaving the bus in the depot, he boarded another bus in order to go to his residence at Santa Cruz. The said bus companylided with a stationary lorry parked at an awkward angle on Ghodbunder Road near Erla Bridge, Andheri. As a result of the said companylision, Nanu Raman was thrown out on the road and injured. He was removed to hospital for treatment where he expired on July 26, 1957. The respondent, his widow, filed an application in the Court of the Commissioner for Workmens companypensation, Bombay, claiming a sum of Rs. 3,500/- as companypensation by reason of the death of her husband in an accident alleged to have arisen out of and in the companyrse of his employment. To that application the General Manager of the B.ES.T. Undertaking, Bombay, was made the respondent, and he companytended, inter alia, that the accident did number arise out of and in the companyrse of the employment of the deceased. Tile Commissioner dismissed the application accepting the companytention of the General Manager of the E.S.T. Undertaking. On appeal, the High Court of Bombay held that the said accident arose out of and in the companyrse of the employment of the said deceased and, on that finding, passed a decree in favour of the widow for a sum of Rs. 3,500/- with companyts. The General Manager of the B. E. S. Undertaking has preferred the present appeal against the order of the High Court. Section 3 1 of the Act reads If personal injury is caused to a workman by accident arising out of and in the companyrse of his employment, his employer shall be liable to pay companypensation in accordance with the provisions of this Chapter. Mr. Pathak, learned companynsel for the appellant, companytends that the words arising out of and in the companyrse of his employment are pari materia with those found in the companyresponding section of the English statute, that the said words have been authoritatively companystrued by the House of Lords in more than one decision, that an accident happening to an employee in the companyrse of his transit to his house after he left the precincts of his work would be outside the scope of the said words unless he has an obligation under the terms of the companytract of service or otherwise to travel in the vehicle meeting with an accident and that in the present case Nanu Raman finished his work and had numberobligation to go in the bus which met with the accident and his position was numberbetter than any other member of the public who travelled by the same bus. On the other hand, Mr. Ganapati lyer, who was appointed amicus curiae, argued that the interpretation sought to be put on the said words by the appellant was too narrow and that the true interpretation is that there should be an intimate relationship between employment and the accident and that in the present case whether there was a companytractual obligation on the part of the deceased to travel by that particular bus or number he had a right to do so under the companytract and in the circumstances it was also his duty in a wider sense to do as ail incident of his service. As the same words occur in the companyresponding English statute, it would be useful to companysider a few of the leading decisions relevant to the question raised. In Cremins v. Guest, Keen Nettlefolds, Ltd. 1 , the Court of Appeal had to deal with a similar problem. Cremins was a companylier in the employment of the companypany. He, along with other employees, lived at Dowlais, six miles from the companyliery. A train companyposed of carriages belonging to the appellants, but driven by the Great Western Railway Companys men, daily companyveyed Cremins and many other companyliers from Dowlais to a platform at Bedlinog erected by the appellants on land belonging to the said Railway Company. The platform was repaired and lighted by the appellants, and was under their companytrol. The companyliers were the only persons allowed to use the platform, but there was a station open to the public at a short distance. The companyliers walked from the platform by a high road to the companyliery, which was about a quarter of a mile from the platform. A similar train companyveyed the companyliers from the platform to Dowlais. The companyliers were companyveyed fret of charge. Cremins was waiting on the platform to get into the return train, when he was knocked down and was killed by the train. His widow applied for companypensation under the workmens Compensation Act, 1906. Under s. 1 of the Act of 1906 she would be entitled to companypensation if the accident arose out of and in the companyrse of his employment. The Court of Appeal held that the widow was entitled for companypensation. 1 1908 1 K. B. 469. Cozens-Hardy M. R. gave his reason for so holding thus I base my judgment on the implied term of the companytract of service Elaborating the principle, he said it was an implied term of the companytract of service that these trains should be provided by the employers, and that the companyliers should have the right, if number the obligation, to travel to and from without charge. Fletcher Moulton L. J. in a companycurrent judgment said much to the same effect thus It appears to me that the workmen were ex- pected to travel to and from the companyliery by the trains and in the carriages provided for them by the employers, and that it was intended by both parties that this should be part of the companytract of employment. Though the accident took place on the platform, this decision accepted the principle. that it was an implied term of the companytract of service that the companyliers had to travel to and from. the companyliery by the trains provided by the employers. In that case, there was certainly a right in the companyliers to use the train, but it is doubtful whether there was a legal duty on them to do so. But the Court was prepared to give a popular meaning to the word duty to take in the expectation of user in the particular circumstances of the case. The house of Lords in St. Helens Colliery Company Ltd. Hewitson 1 , had taken a stricter and legalistic view of the companycept of duty. There, a workman employed at the companyliery was injured in a railway accident while travelling in a special companyliers train from his work to his home at Maryport. By an agreement between the companyliery companypany and the railway companypany the latter agreed to provide special trains for the companyveyance of the 1 1924 A. C. 59. companyliery companypanys workmen to and from the companyliery and Maryport, and the companyliery companypany agreed to indemnify the railway companypany against claims by the workmen in respect of accident, injury or loss while using the trains. Any workmen who desired t, travel by these trains signed an agreement with the railway companypany releasing them from all claims in case of accident, and the companyliery companypany then provided him with a pass and charged him a sum representing less than the full amount of the agreed fare, and this sum was deducted week by week from his wages. The House of Lords by a majority held that there being numberobligation on the workmen to use the train, the injury did number arise in the companyrse of the employment within the meaning of the Work- mens Compensation Act, 1906. Lord Buckmaster, after citing the passage already extracted by us in Creminss Case 1 ,stated, I find it difficult, to accept this test and proceeded to observe The workman was under numbercontrol in the present case, number bound in any way either to use the train or, when he left, to obey direc- tions though he was where he was in companyse- quence of his employment, I do number think it was in its companyrse that the accident occured Lord Atkinson also accepted the said principle, but he made an important observation, at p. 70 . It must, however, be borne in mind that if the physical features of the locality be such that the means of transit offered by the employer are the only means of transit available to transport the workman to his work, there may, in the workmans companytract of service, be implied a term that there was an obligation on the employer to provide such means and a reciprocal obligation on the workman to avail himself of them. 1 1908 1 K.B. 469. The learned Lord had companyceded that a term of obligation on the part of the employee to avail himself of a particular means of transit companyld be implied, having regard to the peculiar circumstances of a case. Lord Shaw in a dissent gave a wider meaning to the terms of the section. According to him the expression arising out of the employment applied to the employment as such to its nature, its companyditions, its obligations, and its incidents. He added that a mans employment was just as wide as his companytract. After numbericing the terms of the bargain between the parties, he companycluded thus, at p. 86 These arrangements companytinued for the whole twelve years of service. The companypany and the man were thus brought into intimate and companytinual daily relations. The workman secured his access to his work, the companypany provided the means of transport. Lord Wrenbury accepted the majority view and laid down the test thus, at p. 92 A useful test in many cases is whether, at the moment of the accident, the employer would have been entitled to give the workman an order, and the man would have owed the duty to obey it. The learned Lord wag also prepared to imply a term of duty under some circumstances, for he observed And there are cases which would, I suppose be within what are called above the incidents of the employment, in which the journey to and from work may fall within the employment, because by implication, but number by express words, the employer has indicated that route, and the man owes the duty to obey. But the mere fact that the man is going to or companying from his work, although it is a necessary incident of his employment, is number enough. This decision accepts the principle that there should be a duty or obligation on the part of the employee to avail himself of the means of transit offered by the employer the said duty may be expressed or implied in the companytract of service. The House of Lords again in Alderman v. Great Western Railway Co. 1 , companysidered this question in a different companytext. There, the applicant, a travelling ticket companylector in the employment of the respondent railway companypany, had, in the companyrse of his duty, to travel from Oxford, where his home was, to Swansea, where he had to stay overnight, returning thence on the following day to Oxford. He had an unfettered right as to how he spent his time at Swansea between signing off and signing on, and he companyld reach the station by any route or by any method he chose. In proceeding one morning from his lodgings to Swansea station to perform his usual duty, he fell in the street and sustained an injury in respect of which he claimed companypensation. The House of Lords held that the applicant was number performing any duty under his companytract of service and therefore the accident did number arise in the companyrse of his employment. The reason for the decision is found at p. 462 and it is when he the applicant set out from the house in which he had chosen to lodge in Swansea to go to sign on at the station he was and had been ever since he had signed off on the previous afternoon subject to numbercontrol and he was for all purposes in the same position as an ordinary member of the public, 1 1937 A.C. 454, 462. using the streets in transit to his employers premises. This case, therefore, applies the principle that if the employee at the time of the accident occupies the same position as an ordinary member of the public, it cannot be said that the accident occurred in the companyrse of his employment. This is a, simple case of an employee going to the station as any other member of the public would do, though his object was to sign on at the said station. In Weaver v. Tredegar Iron and Coal Co. Ltd. 1 , the House of Lords reviewed the entire law and gave a wider meaning to the companycept of duty. It was also a case of a companylier. He was caught up in a press of fellow workmen trying to board a train and was pushed off the railway platform and injured. The platform and train were both owned, managed and companytrolled by a railway companypany, but the platform was situated by the side of a railway line which ran through the companyliery premises owned by the workmens employers, and was accessible from the companyliery premises only. It was number open to the public, and its name did number appear in the companypanys time table. Employees of the companyliery used it under an arrangement between their employers and the companypany whereby specified trains were stopped at the platform to take the men to and from their homes at a reduced fare, which was deducted by the employers from the mens wages. The men were free to go home by means of the main road which ran past the companyliery, but in practice every employee used the railway. The injured workman claimed companypensation. The House of Lords by a majority held that the accident arose in the companyrse of and out of the employment and the injured workman was entitled to companypensation. Lord Atkin posed the question thus Is he doing something in discharge a duty 1 1940 3 All. E.R. 157, 163, 164, 166. to his employer directly or indirectly imposed upon him by his companytract of service ? and answered the word duty in the test has such a wide companynotation that it gives little assistance as a practical guide. He proceeded to state Duty with the vague companynotation given to it above cannot be rejected, but it does number seem to point very clearly to the desired goal. There can be numberdoubt that the companyrse of employment cannot be limited to the time or place of the specific work which the workman is employed to do. It does number necessarily end when the down tools signal is given, or when the actual workshop where he is w orking is left. In other words, the employment may run on its companyrse by its own momentum beyond the actual stopping place. After companysidering the decisions on the subject, the learned Lord companycluded thus When all the cases have been looked at and companysidered, one is finally brought back to the words of the Act, the companyrse of the employ- ment. The companyrse of the employment begins when the workman enters the employment, and it ceases when he leaves the employment, it being his duty to do both. Lord Wright puts the same idea differently thus, at 172 In a case like the present, however, where a man was simply using the usual and proper way provided for leaving the companyliery, I do number see the relevance of the idea of duty, except in the artificial sense that a man owes his employers a duty to companye to his work and to go away when his work is ended. I think that it is in some such sense that duty has been re- ferred to in certain of the cases of this nature. Lord Romer applied the following tests to the facts of the case, at p. 175 In all cases, therefore, where a workman, on going to, or on leaving, his work, suffers an accident on the way, the first question to be determined is whether the workman was at the place where the accident occurred in virtue of his status as a workman or in virtue of his status as a member of the public. He came to the companyclusion that the employee in that case, when the accident happened, was there only by virtue of his status as an employee of the companyliery. Lord Porter, dealing with the test of duty, remarked thus, at p. 179 In some cases, numberdoubt, it may be helpful to companysider whether the man owed a duty to his employers at the time of the accident, and indeed.if duty be companystrued with sufficient width, it may be a decisive test, but, so companystrued, to say that the man was doing his duty means numbermore than that he was acting within the scope of his employment. The mans work does number companysist solely in the task which he is employed to perform. It includes also matters incidental to that task. Times during which meals are taken, moments during which the man is proceeding towards his work from one portion of his employers premises to another, and periods of rest may all be included. Nor is his work necessarily companyfided to his employers premises. The man may be working elsewhere -e.g., in building a house, or in work on the road, or in work at a dock, the question is number, I think, whether the man was on the employers premises. It is rather whe- ther he was within the sphere or area of his employment. Adverting to the question of alternative facilities, the learned Lord pointed out, However, if it is in the companyrse of his employment, the fact that he might have chosen an alternative method does number disentitle him to recover. After equating the expression part of his duty with in the companyrse of his employment, he proceeded to observe It is in the companyrse of his employment, and, if the phrase be used, it is part of his duty, both to go to and to proceed from the work upon which he is engaged, and, so long as he is in a place in which persons other than those so engaged would have numberright to be, and indeed, in which lie himself would have numberright to be but for the work on which he is employed, he would, I think, numbermally still be in the companyrse of his employment. But the learned Lord took care to state that he was number companysidering cases in which the necessities of the work companypel the employee to traverse the public streets or other public places. This decision, while it did number discard the test of duty, gave it a wider meaning than that given by the earlier decisions. It was the duty of the employee to go to the work spot and leave it and it would be his duty to leave it by means of transit provided by the employer. The exigencies of the service, the practice obtaining therein and the nature of the service would be the guiding factors to ascertain the scope of the duty. The Court of Appeal in Dunn v. A.G. Lockwood Co. 1 , implied such a term of duty under the 1 1947 1 All. E.R. 446, following circumstances. A workman, who lived at Whitstable was employed to work at Margate. The terms of the employment were that the workman might, though it was number obligatory, travel from Whitstable to Margate by the 7.40 a.m. train from Whitstable, which arrived at Margate at 8.15 a.m. and that he was to be paid as from 8 a.m. While proceeding one morning from Whitstable station by the most expeditious route to his work he slipped and injured himself. The Court held that there was a companytractual obligation imposed on the workman by the companycession to go to his work as quickly as possible after arrival at Margate station and that the accident, therefore, arose out of and, in the companyrse of the employment within the meaning of the Workmans Compensation Act. Lord Oaksey L. J., said that the accident arose in the companyrse of the workmans employment, because at that time he was performing a duty which he owed to his employer by virtue of his companytract. From the permission given to use the 7.40 a.m. train, although he was to be paid from 8 a.m., obligation was implied on the part of the employee to proceed as quickly as possible to his work by the most expeditious route after his arrival at Margate. This decision illustrates the wider meaning given to the test duty, though the result was achieved by implying an obligation in the circumstances of the case. In Hill v. Butterley Co. Ltd. 1 , a workman while crossing her employers premises on her way to the office to clock in before starting work, slipped on an icy slope and was injured. Though there was numberpublic right of way, the inhabitants of the neighboring village were using the part of the premises, where the accident happened, without objection from the owners for reaching an adjoining railway station. The Court held that the accident arose out of and in the companyrse of the employment. The fact that the premises were used as a path way by the other members of the, public did number prevent 1 1948 1 All. D.R. 233. the Court from holding that the employee met with the accident in the companyrse of her employment. The Court of Appeal in Jenkins v. Elder Dempster Lines Ltd. 1 , once again companystrued the expression arising out of and in the companyrse of employment. There, the ship in which the deceased was employed moored against the harbour mole of Las Palmas. At the landward end of the mole was a gateway where police were stationed for the purpose, ostensibly, of keeping unauthorized persons off the mole, but all kinds of people were allowed there and entry to it was practically unrestricted. Shortly after the ship moored, the ceased and other members of the crew went ashore for a short while. When they were returning to the ship, the policemen at the gate of the mole asked them which was their ship and allowed them to enter the mole. In the darkness, the deceassed fell over the side of the mole and was drowned. In a claim by the widow against the employers for companypensation under the Workmens Compensation Acts, her claim was number allowed. Sir Raymond Evershed, M.R., posed the question thus Was the workman at the relevant time acting in the scope of his employment ? and answered . . . . . . . . . . . . . . . the explanation, it is true, which the cases have added will entitle him to say that he was if his presence at the point where he met with the accident is so related to his employment as to lead to the companyclusion that he was acting within its scope. This decision lays down a wider test, namely, that there should be a nexus between the accident and the employment. This Court has companysidered the scope of the section in Saurashtra Salt Manufacturing Co. v. Bai Valu Raja 2 , and accepted the doctrine of numberional extension of the employeers premises in 1 1953 2 All B.R. 1133. A.I.R. 1958 S.C. 881,882, the companytext of an accident to an employee. Imam J., delivering the judgment of the Court laid down the law thus As a rule, the employment of a workman does number companymence until he has reached the place of employment and does number companytinue when he has left the place of employment, the journey to and from the place of employment being excluded. It is number well-settled, however, that this is subject to the theory of numberional extension of the employers premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the companyrse of his employment even though he had number reached or had left his employers premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the companyrse of the employment of a workman, keeping in view at all times this theory of numberional extension. On the facts of that case, this Court held that the accident did number take place in the companyrse of the employment. Under s. 3 1 of the Act the injury must be caused to the workman by an accident arising out of and in the companyrse of his employment. The question, when does an employment begin and when does it cease, depends upon the facts of each case. But the Courts have agreed that the employment does number necessarily end when the down tool signal is given or when the workman leaves the actual workshop where he is working. There is a numberional extension of both the entry and exit by time and space. The scope of such extension must necessarily depend on the circumstances of a given case. An employment may end or may begin number only when the employee begins to work or leaves his tools but also when he uses the means of access and egress to and from the place of employment. A companytractual duty or obligation on the part of an employee to use only a particular means of transport extends the area of the field of employment to the companyrse of the said transport. Though at the beginning the word duty has been strictly companystrued, the later decisions have liberalized this companycept. A theoretical option to take an alternative route may number detract from such a duty if the accepted one is of proved necessity or of practical companypulsion. But numbere of the decisions cited at the Bar deals with a transport service operating over a large area like Bombay. They are, therefore, of little assistance, except in so far as they laid down the principles of general application. Indeed. some of the law Lords expressly excluded from the scope of their discussion cases where the exigencies of work companypel an employee to traverse public streets and other public places. The problem that number arises before us is a numberel one and is number companyered by authority. At this stage to appreciate the scope of duty of a bus driver in its wider sense, the relevant Standing Rules of the B. E. S. T. Undertaking may be scrutinized. We are extracting only the rules made in regard to permanent bus drivers material to the present enquiry. Rule 31. a All applications for Bus Drivers tests should be written and signed by the applicant himself x x x x x x Bus Drivers The applicant shall be number less than 20 years of age and number more than 40 years of age. Birth Certificates be produced in doubtful cases. x x x x x x After recruiting, the Undertakings rules and regulations shall be explained to those men by the Recruiting Clerk. x x x x x x Rule 5. All permanent members of the Traffic Outdoor Staff will be supplied with uniforms as per the chart attached. x x x x x x Rule 3. Calling time must be marked in ink by the Starters on the time cards once a week in the case of permanent men, and daily in the case of extra men. Rule 9. a Duty Hours 8 hours per day for Bus Drivers Rule 10. Duties Permanent Men who arrive in time and who work the duty, they are booked for, will be mar ked for 1 days pay. If, however, the hours of work exceed the duty hours as laid down in Rule 9 a , the excess hours will be entered as overtime, payable as shown in Rule 25. Men who do number arrive at their call or miss their cars will drop to the bottom of Extra List for the day and are number to be given work unless there is work actually available for them in which case they will be marked as having companye late and will only be paid for the number of hours worked. However, men given numberwork are to be marked Late-No-Work, and will receive numberpay for the day. Any man who misses his car more than three times in a month whether he gets work or number, will be reverted to Extra List. Rule 1. e All drivers Buses who are late on duty by more than one hour will be marked ABSENT. Rule 12. a All exchange of duties requests to be addressed to Traffic Assistants in- charge of Depots for their sanction. Rule 19. a Four members of the Traffic Outdoor Staff in uniform are permitted to travel standing on a double deck bus irrespective of their designation, two on the lower deck and two on the upper deck, On a single deck bus two members are only permitted. Traffic Staff in uniform shall number occupy seats even on payment of fares. Rule 39. a Men can be transferred from one Depot to another only under the orders of a Senior Traffic Officer. This will only be companysidered if the succeeding depot is short of staff. The gist of the aforesaid rules may be stated thus A bus driver is recruited to the service of the B.E.S.T Undertaking. Before appointment the rules and regulations of the Undertaking are explained to him and he enters into an agreement with the Undertaking on the basis of those terms. He is allotted to one depot, but he may be transferred to another depot. The working hours are fixed at 8 hours a day and he is under a duty to appear punctually at the depot at the calling time. If he is late by more than one hour he will be marked absent. If he does number appear at the calling time or misses his car, he will number be given any work for the day unless there is actually work available for him. If he misses his car more than three times in a month, he will be reverted to the extra list, i.e., the list of employees other than permanent. He is given a uniform. He is permitted to travel free of charge in a bus in the said uniform. So long as he is in the uniform be can only travel in the bus standing and he cannot occupy a seat even on payment of the prescribed fare, indicating thereby that he is travelling in that bus only in his capacity as bus driver of the Undertaking. He can also be transferred to different depots. It is manifest from the aforesaid rules that the timings are of paramount importance in the days work of a bus driver. If he misses his car he will be punished. If he is late by more than one hour he will be marked absent for the day and if he is absent for 3 days in a month, be will be taken out of the permanent list. Presumably to enable him to keep up punctuality and to discharge his onerous obligations, he is given the facility in his capacity as a driver to travel in any bus belonging to the Undertakings. Therefore, the right to travel in the bus in order to discharge his duties punctually and efficiently is a companydition of his service. Bombay is a City of distances. The transport service, practically companyers the entire area of Greater Bombay. Without the said right, it would be very difficult for a driver to sign on and sign off at the depots at the scheduled timings, for he has to traverse a long distance. But for this right, number only punctuality and timings cannot be maintained, but his efficiency will also suffer. D.W.I. a Traffic Inspector of B.E.S.T. Undertaking, says that instructions are given to all the drivers and companyductors that they can travel in other buses. This supports the practice of the drivers using the buses for their travel from home to the depot and vice versa. Having regard to the class of employees, it would be futile to suggest that they companyld as well go by local suburban trains or by walking. The former, they companyld number afford, and the latter, having regard to the long distances involved, would number be practicable. As the free transport is provided in the interest of service, having regard to the long distance a driver has to traverse to go to the depot from his house and vice versa, the user of the said buses is a proved necessity giving rise to an implied obligation on his part to travel in the said buses as a part of his duty. He is number exercising the right as a member of the public, but only as one belonging to a service. The entire Greater Bombay is the field or area of the service and every bus is an integrated part of the service. The decisions relating to accidents occurring to an employee in a factory or in premises belonging to the employer providing ingress or egress to the factory are number of much relevance to a case where an employee has to operate over a larger area in a bus which is in itself an integrated part of a fleet of buses operating in the entire area. Though the doctrine of reasonable or numberional extension of employment developed in the companytext of specific workshops, factories or harbours, equally applies to such a bus service, the doctrine necessarily will have to be adapted to meet its peculiar requirements. While in a case of a factory, the premises of the employer which gives ingress or egress to the factory is a limited one, in the case of a city transport service, by analogy, the entire fleet of buses forming the service would be the Premises. An illustration may make our point clear. Suppose, in view of the long distances to be companyered by the employees, the Corporation, as a companydition of service, provides a bus for companylecting all the drivers from their houses so that they may reach their depots in time and to take them back after the days work so that after the heavy work till about 7 p.m. they may reach their homes without further strain on their health. Can it be said that the said facility is number one given in the companyrse of employment ? It can even be said that it is the duty of the employees in the interest of the service to utilize the said bus both for companying to the depot and going back to their homes. If that be so, what difference would it make if the employer, instead of providing a separate bus, throws open his entire fleet of buses for giving the employees the said facility ? They are given that facility number as members of the public but as employees number as a grace but as of right because efficiency of the service demands it. We would, therefore, hold that when a driver when going home from the depot or companying to the depot uses the bus, any accident that happens to him is an accident in the companyrse of his employ- ment. We, therefore, agree with the High Court that the accident occurred to Nanu Raman during the companyrse of his employment and therefore his wife is entitled to companypensation. No attempt was made to question the companyrectness of the quantum of companypensation fixed by the High Court. Before leaving the case we must express our thanks to Mr. Ganapati Iyer for helping us as amicus curiae. In the result, the appeal fails and in the circumstances is dismissed without companyts. RAGHUBAR DAYAL J. I am of opinion that this appeal should be allowed. The deceased, Nanu Raman was a bus driver of the appellant Corporation. On July 20, 1957, he met with an accident after he bad finished his duty for the day. The duty finished at about 7.41 p. m. at Jogeshwari Bus Depot. He then boarded another but in order to go to his house and the bus met with an accident and, as a result of the injuries received in that accident, he died. The question is whether those injuries were caused to him out of and in the companyrse of his employment. If the injuries so arose, the appellant Corporation would be liable to pay the companypensation. If they did number so arise, the appellant Corporation will number be bound to pay companypensation in pursuance of the provisions of s. 3 of the Workmens Compensation Act,, 1923 Act VIII of 1923 . It is clear that the deceased was off duty when he received the injuries. He had finished his duty for the day He had left the bus on which he was posted that day. He had number only left that bus, but had boarded the other bus as a passenger. In view of r. 19 of the Standing Rules of the Traffic Department of the B.E.S.T. Undertaking, he was allowed to travel as he was in uniform. The question is whether this companycession was by way of a term of his service and a part of the companytract of service. I am of opinion that it was number a part of the companytract of service or a companydition of his service. Rule 19 is number with respect to the bus drivers or with respect to the traffic staff of the Corporation alone. The rule does number permit any number of the employees of the traffic staff to travel by a bus free. The rule deals with the persons who are allowed the companycession of free travelling on buses. The rule reads Free Travelling on Buses Four members of the. Traffic Outdoor Staff in uniform are permitted to travel standing on a double deck bus irrespective of their designation, two on the lower deck and two on the upper deck. On a single deck bus two members are only permitted. Traffic Staff in uniform shall number occupy seats even on payment of fares. Municipal Councillors and number- Councillors, Members of the Schools Committee holding Tram-cum-Bus passes must occupy a seat. They are number permitted to travel by standing or in excess. One police officer above the rank of a jamadar is allowed to travel free by standing. All other ranks must occupy seats and pay their fares. Meter Readers and Bill Collectors of the Consumers Department and Public Lighters of the Public Lighting Department are permitted to travel in buses outside the Tramway Areas when on Duty either in uniform or on production of the Undertakings badge by payment of Undertakings tokens. These tokens stamped Service will be accepted in lieu of cash and ticket issued. Traffic Officers and only those Officers holding a bus-cum-Tram Pass and Silver Badge and Bombay Motor Vehicle Inspectors holding passes are permitted to travel standing and may board the bus outside the Queue Order. Clauses c to e allow the companycession of free traveling to persons other than the traffic staff. The rule cannot be a term of companytract with these persons. It is just a privilege and a companycession allowed to those persons. The privilege is restricted in certain respects. Clauses a , b and f deal with companycessions allowed to the members of the traffic staff. It appears from cl. a that the number of traffic outdoor staff which can travel by a bus is limited to 4 on double decker buses and to 2 on a single decker. They have to be in uniform. Even if they purchase tickets on payment of fares they cannot occupy seats if they happen to be in uniform. If this companycession of free travelling had anything to do with the companydition of service in order to ensure punctuality and efficiency on the part of bus drivers keeping in company- sideration the possibility of their travelling long distance to and from their houses, in order to return from duty or to join duty there should number have been any limitation on the number of such staff travelling by a particular bus. It can be possible that more than two or four members of the traffic outdoor staff may be residing in neighbouring localities and may have to join duty or to return to duty at about the same time. Further, it would have been more companyducive for the efficient discharge of their duty if at least on their way to join duty they were allowed to have a seat on the bus in preference to travelling standing. There companyld have been numberjustification for number allowing them to occupy a seat on payment of fare. This is number allowed. These companysiderations indicate to my mind that this rule allowing the members of the traffic out-door staff to travel free, but under certain limitations, On the buses, was number companynected with their service companyditions or with the question of their observing punctuality and discharging their duties efficiently, but was merely a companycession from the employer to their employees. Such a companyclusion is further strengthened when the rule does number provide that this companycession is available to the staff only when they are travelling from their houses to join duty or when they arc returning home after finishing their duty. They can take advantage of this privilege whenever they have to travel by a bus. They have to simply put on uniform at that time. The availability of the companycession on their being in uniform is number on account of their being supposed to be on duty, on the way to or from their houses but on account of the fact that the wearing of uniform would be an indication and the guarantee of their being members of the traffic out- door staff. I therefore do number companystrue r. 19 as a companydition of service of the bus-drivers of the Corporation and therefore do number companystrue it to artificially extend the period of their duty and companysequently the companyrse of employment by the time occupied in travelling by the bus if the bus driver, after discharging his duty or on his way to join duty happens to travel by bus. The bus driver is number bound to travel by bus. He is number bound to put on his uniform when travelling by such bus. If he does number want to have the companycession and prefers to travel companyfortably by paying the necessary fare to occupy a seat, be can do so by simply taking off his uniform and then boarding the bus There is numberhing in the circumstances of the bus drivers service, as shown to us, which should induce me to hold that be had to travel perforce by the bus on his way to join duty or on his return journey after discharging his duty. Bombay may be a city of distances, but every bus driver need number be residing far from the place where he bad to join duty or to leave his duty. There is numberhing on the record to indicate that the salaries of these bus drivers are such as would make it impossible for them to spend on the railway tickets if they wish to travel by train or on the bus sitting if they want to travel in companyfort by purchasing tickets. It is number therefore a case that out of necessity the persons had to travel by the buses of the Corporation and therefore it is number a case for numberionally extending the territorial area of the premises within which they had to discharge their duty. It is true that the bus service of the Corporation extends over the entire city of Bombay but that does number mean that the area of duty of a bus driver also becomes as extensive as the area companytrolled by the buses of the Corporation. The numberional extension of the premises or the area within which the bus driver works can at best be extended to the bus which he is given to run during his duty hours. The premises of the bus driver can be deemed to include the bus and the responsibility of the employer can be reasonably extended for injuries to bus drivers up to the bus drivers boarding the bus for discharging his duty and up to his leaving the bus after discharging his duty. Before his boarding the bus, the bus driver is number on actual duty. He is number on duty subsequent to his leaving the bus after the expiry of his duty hours. In this view of the matter, the moment the deceased left the bus at the jogeshwari Bus Depot after finishing his duty at 7.41 p. m., he was off duty. He was their free to travel as he liked, for the purpose of returning home. The employers had numbercontrol over him except in so far as he would number be permitted to travel in uniform in the bus if there be already the permissible number of traffic staff in uniform on the bus. This companytrol is exercised over him number because he was the bus driver of the Corporation, but because he wanted to travel in uniform against the provisions of r. 19. The deceased had numberduty companynected with his employment as bus driver towards the Corporation after he had left his bus and boarded the other bus for going to his residence. In these circumstances it number possible to say that the deceased was on duty when he was travelling by the other bus and met with the accident and that the accident arose out of and in the exercise of his employment. In S. S. Manufacturing Co. v. Bai Valu Raja 1 , this Court laid down the following propositions in companynection with the companystruction of the expression in the companyrse of employment. They are i as a rule the employment of a workman does number companymence until he has reached the place of employment and does number companytinue when he has left the place of employment ii as a rule the journey to and from the place of employment is number included within the expression in the companyrse of employment iii the aforesaid two positions are subject to the theory of numberional extension of the employers premises so as to include the area which the workman passes and re-passes in going to and in leaving the actual place of work there may be some reasonable extension in both time and place and a workman may be regarded as in the companyrse of his employment even though he had number reached or had left his employers premises iv the facts and circumstances Of each case will have to be examined very carefully in order to determine whether the accident arose within and in the companyrse of employment or a workman keeping in view at all times the theory of numberional extention. On the basis of the first two propositions, the deceased cannot be said to have received the injuries in an accident arising out of and in the companyrse of his employment. The third proposition does number companyer the present case as I have indicated above. The expression an area which the workman passes and re-passes in going to and in leaving the actual place of work, in proposition 3, does number, in view of what is said in proposition No. 2, mean the route companyered necessarily in his trip from his house to the place of employment or on his way back from the place of employment to the house. This expression means such areas which the employee had to pass as A.I.R. 1958 S.C. 881. a matter of necessity and only in his capacity as employee. Such areas would be areas lying between the place of employment and the public place or the public road up to which any member of the public can reach or use at any time he likes. Such areas then would be areas which the employees had, as a matter of necessity, to pass and re-pass on his way to and from the place of employment, and will either be areas belonging to the employer or areas belonging to third person from whom the employer had obtained permission for the use of that area by his employees. The passing and re-passing over such areas is a matter of necessity as it is presumed, in this companytext, that without passing over such land or such area, the employee companyld number have reached the place of his employment. It is in that companytext that the area of the place of employment is extended to include such areas over which the employee had, as a matter of necessity, to pass and re-pass. After discussing the facts of the particular case in the light of the general propositions numbered above this companyrt said at p. 883 It is well settled that when a workman is on a public transport he is there as any other member of the public and is number there in the companyrse of his employment unless the very nature of his employment makes it necessary for him to be there. A workman is number in the companyrse of his employment from the moment he leaves his home and is on his way to his work. He certainly is in the companyrse of his employment if he reaches the place of work or a point or an area which companyes within the theory of numberional extension, outside of which the employer is number liable to pay companypensation for any accident happening to him. The view I have expressed above is companysistent with these observations. I may just numbere that the expression unless the very nature of his employment makes it necessary for him to be there in the above observation, companytemplates employments or duties of his employee necessitating the employees using the public road or public place or a public transport in the discharge of his duty. One such case is the one reported as Dennis v. A. J. White Company 1 . Reference may be made to the cases reported as St. Helens Colliery Co. v. Hewitson 2 and Weaver v. Tradegar Iron Coal. Co. Ltd. 3 . In the former case a companyliery worker was travelling by the special train run by the railway companypany under companytract with the employer for the companyvenience of the workman to and from the companyliery and the place of residence of the worker. He met with an accident while so travelling. The question was whether he was entitled to companypensation from his employer. It was held by the House of Lords that it was an inseparable part of the companytract of employment that the employee had obtained a pass enabling him to travel and that he released his rights to companypensation in the case of accidents against the railway companypany. Still it was Considered that this was number sufficient to determine his right to companypensation. The facts of the present case are different and do number justify the companyclusion that it was a term of the companytract of employment of the deceased by the appellant that he would be allowed to travel free by the buses of the Corporation. He is number granted any such privilege of free travel. He had to do numberhing in return for such a privilege. The employee in the aforesaid case had released his rights against the railway companypany, The deceased in the present case did number release any of his rights against the Corporation. Any way, the House of Lords held that the employee was number entitled to any Compensation. Lord Buckmaster said at p. 66 The real question to my mind is whether, when he entered the train in the morning, it 1 1917 A. C. 479. 2 1924 A.C. 59. 3 1940 3 All. R.R. was in the companyrse of his employment within the meaning of the Act. I find it difficult to fix the test by which this question can be answered in favour of the respondent. A similar question can be put in the instant case. It will be difficult to say that the deceased entered the bus which met with the accident in the companyrse of his employment. Lord Buckmaster further observed at p. 67 The workman was under numbercontrol in the present case, number bound in any way either to use the train or, when he left to obey directions though he was where he was in companysequence of his employment, I do number think it was in its companyrse that the accident occurred. It can be similarly said with respect to the deceased that he was under numbercontrol of his employer when he was on the bus and that he was number bound in any way to use the bus or to obey the directions of his employer after he had left the bus on which he was deputed for the day. In the Weaver Case 1 the employee was held entitled to companypensation. The distinction in the facts of the two cases is well indicated by Lord Romer in his speech at page 176 - My Lords, upon this principle, it would seem reasonably plain that the appellant in the present case was entitled to companypensation which he seeks. After finishing his work at the companyliery, he proposed returning to his home by train. In order to get to the train, he passed directly from the companyliery premises on to a platform, which was the only means of access from the companyliery to the train, and upon which he had numberright to be except by virtue of his 1 1940 3 All. E. R. 157. status as an employee of the companyliery. While on the platform, and by reason of his being on the platform, he met with an accident. In my opinion, it was an accident arising out of and in the companyrse of his employment . The companyntry companyrt judge and the Court of Appeal, however, companysidered that they were precluded from giving the appellant relief by the decisions of your Lordships House in St. Helens Colliery Co., Ltd. v. Hewitson 1 and Newton Guest, Keen Nettlefolds, Ltd. 2 . My Lords, if I am to accept the companyclusion that the effect of these two decisions is to deprive the appellant in the present case of any right to companypensation under the Act, I must, as it seems to me, necessarily suppose that they lay down a principle inconsistent with the principle which had already been established by your Lordships House in Longhursts Case 3 and accepted in MRobbs case 4 and has since been affirmed and applied in Mccullums case 5 . As this is an altogether impossible supposition, it is necessary to ascertain what really were the grounds of the decisions in Hewitsons Case 1 and Newtons case 2 . I need state in detail the facts in Hewitsons case 1 . It is sufficient to say that, if, in the present case, an accident to the appellant had occurred while he was actually in t he train travelling towards his home, the case would have been in all material circumstances companyparable to HeWitsons case 1 . The two cases would have been indistinguishable. The workman in Hewitsons case 1 however, failed., upon the ground that he was under numbercontractual obligation to his employer to be in train. All their Lordships who were responsible for the decision were at pains to ascertain whether or number Hewitson was under any such obligation. It would seem to follow from this that they did number regard Hewitson 1 1924 A C. 58. 2 1926 135 L.T. 386. 3 1917 A.C, 249. 4 1918 A.C. 304. 5 1932 147.L.T. 316, when in the train as being engaged upon one of those acts which are always companysidered as being part of a workmans employment because they are incidental to the employment proper. They must have regarded him, in other words, as a workman who had left the scene of his labour and the means of access thereto with- in the meaning attributed to those words in the cases to which I have previously referred, for, when a workman is engaged in performing an act which is merely incidental to his em- ployment proper, it is hardly, if ever, true to say that he is under a companytractual obligation to his employer to perform it. In view of what I have stated above I hold that Nanu Raman did number die of the injuries received in an accident arising out of and in the companyrse of his employment and that therefore the respondent is number entitled to receive any companypensation from the appellant under s. 3 of the Workmans Compensation Act 1923. Therefore I would allow the appeal with companyts and set aside the order of the companyrt below.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 578 of 1961. Appeal from the judgment and decree dated March 12, 1959. of the Bombay High Court in First Appeal No. 685 of 1956. S. Barlingay and A. G. Ratnaparkhi, for the appellant. R. Naik, M. R. Krishna Pillai and K. R. Chaudhuri, for the respondent. 1963. May 10. The judgment of the Court was delivered by SINHA C. J.-This appeal on a certificate granted by the High Court of Judicature at Bombay is directed against the judgment and order of a Division Bench of that Court, dated March 12,1959, reversing those of the judge of the Bombay Civil Court, passed in Chamber Summons, in Arbitration case No. A.B.N. C.H.O.-2310/88 of 1954-55. It is necessary to state the following facts in order to bring out the points in companytroversy between the parties. The Happy Home Cooperative Housing Society Ltd -- hereinafter referred to as the Society was registered in February 1949. It obtained a lease of a piece of land measuring about 12 thousand sq. yards situate at Nehru Road, Vile Parle East Bombay. The Society divided this land into 17 plots to be allotted to each one of its members for building purposes. A member was under the obligation of payment of premium, annual rent of Re. 1/-, and other incidental charges and to companystruct a house on the plot. The Society advanced loans to the members to enable them to companystruct their houses. The premium in respect of the land and the loan advanced, as aforesaid, together with interest, was repayable in monthly installments. Accordingly, Plot. No. 10, measuring about 676 sq. yds. was allotted to the appellant, and other plots were similarly allotted to other members for companystructing their respective houses. Through the agency of the Society, the appellant companystructed a house on his plot. The companystruction was companypleted and the appellant occupied the building on or about May 1, 1951. The sum of Rs. 26,922/- odd was advanced by way of loan, to the appellant. An agreement dated March 26, 1952 was entered into between the appellant and the Society in respect of the loan aforesaid, and the document was duly registered on May 27, 1952. The agreement between the appellant and the Society provided that the amount of loan aforesaid advanced to the appellant should be repaid in 366 or smaller monthly instalments and after the entire amount of the loan had been repaid, the Society would execute a sub-lease in respect of Plot No. 10 in favour of the appellant. It was further stipulated that in the event of default in the payment of an instalment, fixed in the agreement, the Society had the right to determine the agreement and thereupon any amounts already paid would be forfeited to the Society and the member was to surrender the property and give vacant possession of the premises to the Society. It appears that numberinstalment was paid by the appellant with the result that on August 26, 1954, the Society gave numberice to him, calling upon him to give vacant possession of the premises, but the appellant did number companyply with the numberice. In view of the persistent refusal of the appellant to companyply with the terms of the agreement, the Society referred to dispute with the appellant under s. 54 of the Bombay Co-operative Societies Act Bombay Act VII of 1925 which hereinafter will be referred to as the Act, to the Registrar for decision by himself or his numberinee. The said dispute was heard and decided by a Committee of Arbitrators, appointed by the Registrar, Co operative Societies, companysisting of three gentlemen. 1 a numberinee of the Society as plaintiff, 2 numberinee of the Appellant, as defendant, and 3 numberinee of the Registrar, who was to be the Chair man. The said Committee of Arbitration, by majority, gave an award in favour of the Society to the effect that the appellant do deliver vacan possession of Plot, No. 10, alongwith the house, to the Society and pay Rs. 150/- per month as companypensation for unauthorised use and occupation of the premises from October 1, 1954, to the date of the delivery of vacant possession. The appellant was also made liable for payment of companyts of the arbitration proceedings. Thereupon the appellant made a revisional application to the Bombay Co-operative Tribunal, companytending that the dispute between the Society and himself was essentially a dispute between landlord and tenant regarding the possession of the premises and the recovery of rent and that the only Court that had jurisdiction to decide such a companytroversy was the Small Causes Court in Greater Bombay, in view of s. 28 of the Bombay Rents, Hotel and Lodging House Rents Control Act Bombay Act 57 of 1947 . After hearing the parties, the Tribunal negatived the companytention raised on behalf of the appellant and dismissed the revisional application. After the Award was certified under s. 59 of the Act, the Award was filed in the Bombay City Civil Court for execution. Thereupon the appellant took out a Chamber Summons against the Society for stay of the execution proceedings. The learned Judge who heard the Chamber Summons held that the Award made by the Arbitrators was without jurisdiction, in view of the provisions of s. 28 of the Rent Control Act. Accordingly, the summons was made absolute on October 16, 1956. From that order the Society came up in appeal to the High companyrt. The High Court, on a companysideration of the terms of the agreement aforesaid, of March 26, 1952, and after elaborate arguments raised by the parties as to the legal effect of that document came to the companyclusion that it was only an agreement to lease, binding the Society to grant a sub-lease only after the appellant had fully paid all the instalments due, and fulfilled other companyditions of the agreement, as stipulated between the parties. In that view of the matter, the High Court held that there was numberrelationship of landlord and tenant between the parties. In the result, the learned judges set aside the order under appeal before them, and directed that the execution of the Award be proceeded with in accordance with law, with companyts to the Society in both the Courts. It is from this judgment and order that this appeal has been brought to this Court, on a certificate being granted by the High Court. The main question in companytroversy in this case is whether the Award made under the Act, which became a decree of the Civil Court, under the certificate of the Registrar under s. 59, was without jurisdiction, and, therefore, incapable of execution. The answer to this question depends upon the answer to the other question whether the appellant was a tenant under the Society, by virtue of the agreement aforesaid of March 26, 1952. If it is held that the agreement aforesaid did number create the relationship of landlord and tenant, but that the appellant companytinued to be the debtor of the Society until all the outstanding amount advanced to him in respect of the plot and the structure bad been liquidated, the Rent Control Act, and s. 28 thereof, will be out of the way of the parties. In that case, the proceedings before the Registrar, the Award of the Arbitrators and the execution proceedings taken out by the Society would all be adjudged to be valid and binding upon the parties. It is numbereworthy that though the determination of the appeal depends upon the terms of the agreement of March 26, 1952, it has number been included in the printed paper-book. We have, therefore, to depend upon the extensive quotations of the terms of the document as companytained In the judgment under appeal. It is companymon ground that all the relevant terms of the document, beginning from the preamble to almost the end of it, have been quoted in different parts in the judgment of the High Court, and that these are sufficient to give us a companyplete idea of the terms of the agreement. The agreement has been described by the Society in the plaint filed before the Arbitrators as a lease and the appellant has been described as a tenant, and if the case were to be decided on the so called admissions in the plaint, the companyclusion companyld easily be arrived at that the relationship between the parties was that of landlord and tenant. But as pointed out by the High Court, if we refer to the terms of the agreement itself, it will be abundantly clear that on a proper companystruction of those terms, there was numberexecuted lease between the parties, but that it was only an executory companytract entitling the appellant to a sub-lease by the Society, which was itself a lessee, upon payment of all the dues of the Society in respect of premium, principal and interest, advanced towards the companyt of companystruction of the premises and fulfillment of all other companyditions companytained in the agreement. It companysists of 14 clauses, as the judgment of the High Court says. It further appears from the said judgment that the agreement starts by saying that it has been entered into between the Society of the one part, and the appellant, hereinafter called the tenant of the other part. In Part II of the preamble it is stated that the tenant has applied to the Society for Plot No. 10 and for permission to erect a dwelling house thereon and for a loan from the Society. The preamble also mentions the fact that the Society itself had taken a lease of the entire open piece of land, of which plot No. 10 was a part, for a term of 999 years from March 17, 1950, at the annual rent of Rs. 6,264/-. Part III of the preamble proceeds to say that the Society has already spent money on development of the land and laying out roads, etc., and that it had been agreed between the Society and the tenant that the letter will pay a sum of Rs. 10,020/- in instalments for transfer of Plot No. 10, and that the society shall grant a loan to the tenant, number exceeding Rs. 16,980/- for erecting the structure on that plot, to be advanced in instalments and repayable in instalments, as hereinafter provided. Part V of the preamble is important in so far as it has stated, in clear terms, that whenever the tenant shall have repaid to the Society all the outstanding dues, either in equated monthly instalments or in one lumpsum, at the option of the tenant, the Society, with the companysent of the Government as mortgagee, shall grant to the tenant, a sublease of the said Plot No. 10. free from all encumbrances for a term of 998 years companymencing from Match 17, 1950. Then follow the clauses of the agreement. The first clause grants permission to the tenant to enter upon the said plot for erecting a dwelling house in accordance with the plan, elevation and estimates, previously approved in writing by the Society. Then clause 3 follows, which is substantially in the same terms as Part V of the preamble. It makes it absolutely clear that only upon payment of all the outstanding dues of the Society, in respect of premium for the plot and advance made for building the residential house, alongwith interest accrued thereon, the Society shall grant and the tenant shall accept a sub-lease of the said Plot No. 10. It maybe mentioned here that the mortgage in favour of the Government has reference to the advance by the Government of a large sum of money to the Society with a view to financing its building activities. For securing the payment of that lumpsum, the entire area of land was mortga- ged to the Government. Hence, it was necessary to obtain the previous companysent of the Government as mortgagee to the execution of the sub-lease, companytemplated by Part V of the preamble and clause 3 of the agreement. And then follow details of how the installments have to be paid. Clause 8 of the agreement provides that the proposed sub-lease shall be in the form number approved and signed by and on behalf of the parties, and when the said principal money and interest have been fully paid, the necessary document shall be executed by the Society. Further, clause 9 of the agreement provides that as from the date of the agreement, the tenant shall punctually and regularly pay to the Society, without any deductions, firstly, a rent of one rupee per annum, if demanded, secondly a proportionate amount of rent payable to the superior landlord in respect of Plot No. 10, thirdly a proportionate amount of assessment rates and taxes paid by the Society in respect of Plot No. 10, fourthly, a sum equal to the amount spent by the Society for insuring the building with reference to Plot No. 10, and., lastly, such further sum as may from time to time be certified by the Society as the companytribution by the occupier of Plot No. 10 towards the general expenses of management, maintenance and development companyts, including expenses incurred on roads, sewers, drains and other amenities. Clause 10 provides for the penalty in the event of a default made by the tenant in respect of any sums payable as aforesaid. It says that in the event of a default by the tenant the Society shall be entitled to serve numberice in writing determining the agreement and thereupon all installments and other moneys paid by the tenant under the agreement shall be forfeited to the Society and shall become the absolute property of the Society. And what follows is most important. it says that upon the determination of the agreement, the tenant shall forthwith surrender and give to the Society vacant possession of the said premises. Clause 11 makes reference to the fact that premises were mortgaged to the Governor of Bombay to secure the loan advanced to the Society by the Government of Bombay, and so long as the mortgage remains subsisting, the Governor of Bombay shall be a necessary party to any such sublease, to be hereinafter executed as aforesaid,, and numbersuch sub-lease shall be valid unless and until the same shall be executed by the Registrar of Cooperative Societies on behalf of the Governor of Bombay. And lastly, clause 12 says that the tenant shall accept the title of the Society to grant the said sub-lease without any questions or making any requisitions or objections with regard to the title. It was argued in the High Court though number in the Trial Court, that on the terms aforesaid of the agreement, a present demise of the land had been executed in favour of the appellant. This argument was thought of in the High Court. In the lower Court, the Appellants companynsel relied on s. 27-A of the Specific Relief Act, and it was submitted that the defendant was entitled to defend his possession even though numberlease had been executed and registered, as required by law. The argument that the appellant had become the tenant of the land in question under the Society was thought of because, in the agreement, he was referred to as the tenant. In our opinion, the High Court is entirely companyrect in taking the view that was a mere description, or misdescription, of the appellant and that, in law, the appellant companyld number claim that relationship of landlord and tenant had been created by virtue of the agreement, the terms of which have been referred to in some detail in order to bring out the weakness of the argument based upon the description of the appellant as tenant. It is well-settled that the real nature of a transaction has to be determined on a proper companystruction of the document as a whole and number upon any particular words used in the document. The agreement companystrued as a whole leaves numbermanner of doubt that it was an agreement between the appellant and the Society to grant a sub-lease of Plot No. 10 only after the appellant had fulfilled his part of the agreement, namely, had paid all the outstanding amounts due to the Society in respect of the premium on the plot, the amounts advanced for companystruction of the house and the interest accrued due until the entire amount had been liquidated. The sub-lease would have to be executed by the Registrar of the Co-operative Societies in token of the companysent of the Government of Bombay, which was a companydition precedent to the validity of the sub-lease. The agreement in question, therefore, evidences numberhing more than an executory companytract that on the appellant fulfilling his obligations to the Society, including the payment of the entire dues aforesaid, the Society would execute the sub-lease in his favour subject to the companysent of Government of Bombay, who held the first mortgage on the entire land, including Plot No. 10. It would thus appear that the entire transaction was that practically a permanent lease had been taken by the Society in respect of the open area, which was sub-divided into a number of plots for building purposes. Those plots were to be allotted to the members of the Society in order to enable them to erect their own residential houses, on the terms that the Society would grant to the members such amounts by way of loan as would companyer the premium on the plot allotted to them and further sum for building a house at a certain rate of interest. On the companypletion of the house, the members would occupy the premises and start paying in monthly instalments the dues of the Society towards principal and interest until the last instalment will have been paid and all the outstanding dues of the Society liquidated. Upon the happening of that event, the Society undertook to execute in favour of the members sub-leases in respect of their respective plots on which they had built their residential-houses. As the whole scheme of the Society was financed by the Government of Bombay, the Government was naturally a necessary party to the transaction. In the first instance, the whole plot was mortgaged to the Government and that mortgage was to subsist until the Government dues had been entirely liquidated. Therefore, it became necessary that the Registrar, as the agent of the Government, should be a necessary party to the execution of the sub-leases in favour of the members to whom the several plots had been allotted and the houses built on advance made by the Society out of the funds made available to it by the Government. It has number been companytested on behalf of the appellant that he did number pay any instalment in respect of the transaction in his favour. He had, therefore, number qualified for being granted a lease of Plot No. 10, which had been allotted to him, under the building scheme of the Society. Upon his de- fault there was numberoption left to the Society but to determine the agreement and to call upon him to surrender vacant possession of the property. Hence, though he was characterised as a tenant under the agreement, it really meant the proposed tenant. It was merely descriptive of the appellant for the sake of companyvenience of expression. He would have become a tenant only if he had paid all the dues, as aforesaid., of the Society and had taken a sub-lease duly executed and registered in accordance with the terms of the agreement, referred to above in detail. As he failed to do that, the laws laid down in the Act, in order to realise the dues of the Society, had to be put into operation. The Award was, therefore, a perfectly valid Award and there was absolutely numberjustification for the plea taken by the appellant that he was a tenant who was governed by the provisions of the Rent Control Act Bombay Act 57 of 1947 . But the appellant companytended that whatever view we may take of the relation created by the document, by virtue of s. 28 of Bombay Act 57 of 1947 the Committee of arbitrators appointed under the Bombay Cooperative Societies Act 7 of 1925 had numberjurisdiction to adjudicate upon the question whether the appellant was a tenant of the premises of the society, and reliance in that behalf was placed upon the judgment of this Court in Babulal Bhuramal v. Nandram Shivram 1 . In companysidering that argument attention must first be invited to Section 28 of Bombay Act 57 of 1947, which in so far as it is material, provides Notwithstanding anything companytained in any law and numberwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would number, but for this provision, be within its jurisdiction, a in Greater Bombay, the Court of Small Causes, Bombay aa x x x x b x x x x shall have jurisdiction to entertain and try any suit or proceeding between a landlord, and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub-section 2 , numberother companyrt shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. It was urged that as before the Committee of arbitrators the Society had claimed that the appellant was a tenant of the Society, and relief for possession of the premises was claimed on that footing, the arbitrators had numberjurisdiction to grant relief for possession. But there is numberwarrant for the submission that the Society claimed before the arbitrators that A.I.R. 1959 S.C. 677. the appellant was a tenant and on that basis claimed relief for possession. The pleadings before the arbitrators are number included in the record, and on a reasonable reading of the award also numbersuch inference can be raised. Before the Committee of arbitrators the Society had alleged that the appellant had made persistent defaults in repayment of the loan due by him and had claimed a declaration that the appellant had ceased to be a member of the Society, and an Order for delivery of vacant possession of the premises belonging to the Society. It was, it appears, number alleged that any relation of landlord and tenant had ever subsisted between the Society and the appellant, and the plea of the appellant that he was a tenant in respect of the premises in dispute companyld number affect the jurisdiction of the companymittee of arbitrators. No useful purpose will therefore be served by entering upon a discussion whether the provisions of s. 28 of Bombay Act 57 of 1947 override the provisions of the Bombay Co-operative Societies Act 7 of 1925, as was suggested at the Bar. Alternatively, it was companytended that even if the Society claimed to obtain an order for possession on some footing other than the relationship of landlord and tenant, when the appellant raised the companytention that he was a tenant and the relationship of landlord and tenant was put into issue, the Court of Small Causes, Bombay, alone was companypetent to decide that question. Section 298 of Bombay Act 57 of 1947 excludes the jurisdiction of all companyrts other than the Court of Small Causes to try any suit, proceeding or application between a landlord and a tenant and to deal with any claims or questions as are referred to in the section. Even if it be granted that an arbitrator appointed under the Bombay Co- oprative Societies Act is a Court, on this question we do number deem it necessary to express any opinionin order that his jurisdiction be excluded the proceeding before him must be between landlord and tenant, and relating to the recovery of rent or possession of any premises to which the provisions of Part II of the Act apply. The exclusive jurisdiction of the Court of Small Causes arises only if the person invoking the jurisdiction of the Court alleges that the other party is a tenant or a landlord and the question is one which is referred to in s. 28. Where the person so invoking does number set up the claim that the other party is a tenant or a landlord the defendant is number entitled to displace the jurisdiction of the ordinary companyrt by an allegation that be stands in that relation qua the other and on that ground the Court has numberjurisdiction to try the suit or proceeding or an application. There is numberhing in the judgment of this Court in Babulal Bhuramala Case 1 , which supports the view that by merely setting up a Plea that he is a tenant in respect of the premises in dispute, the jurisdiction of the ordinary Courts to decide a suit, proceeding or application would be displaced. The facts which gave rise to the appeal decided by this Court in Babulals case 1 , may be numbericed. The landlord filed in the Court of Small Causes a suit in ejectment against the tenant, after terminating the tenancy, and to that suit impleaded two persons who the landlord alleged had numberright to be on the premises. The Court held that those two persons were number lawful sub-tenants and had numberright to remain in the premises and passed a decree in ejectment against the three defendants. The three defen- dants then companymenced an action in the Bombay City Court for a declaration that the first of them was a tenant of the landlord, and the other two were lawful sub-tenants and were entitled to the protection of Bombay Act 57 of 1947. The City Court held that it had jurisdiction to try the suit, but dismissed it on the merits. The High Court of Bombay companyfirmed the decree holding that the City Court had numberjurisdiction to entertain the suit, but expressed numberopinion on the merits. This Court affirmed the view of the High Court. The Court in that case was companysidering A.1,R. 1958 S.C. 677. the true effect of s. 28 of Bombay Act 57 of 1947 in the light of the averments made by the plaintiffs who alleged that they were tenants and the denial by the defendant landlord of the tenancy set up. The Court observed on p. 681 The suit did number cease to be a suit between a landlord and a tenant merely because the de- fendants denied the claim of the plaintiffs. Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the Court trying the suit. On a pro- per interpretation of the provisions of s. 28 one suit companytemplated in that section is number only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning Of the Act subsists between the parties. There is numberhing in these observations to support the plea that the jurisdiction of the ordinary companyrts to try a suit or proceeding relating to recovery of possession of any premises to which Part 11 of the Act applies is displaced as, soon as the companytesting party raises a plea about the relationship of a landlord and a tenant.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 9 of 1963. Appeal by special leave from the judgment and order dated November 9, 1962 of the -Rajasthan High Court in D. B. Criminal Appeal No. 407 of 1961. Purushottam Trikamdas, C., L. Sarren and R. L. Kohli, for the appellant. K. Kapur and R. N. Sachthey, for the respondent. August 19, 1963. The Judgment of the Court was delivered by SHAH J.-Noor Khan, resident of Kuchaman in the State of Rajasthan, and nine others were tried before the Additional Sessions judge, Sirohi in the State of Rajasthan for offences of rioting and being members of an unlawful assembly and causing in furtherance of their companymon object death of one Pratap, at about 2-30 p. m. on September 29, 1960 and serious injuries to four others on the same occa- sion. Noor Khan was also charged for the substantive offence of causing the death of Pratap by gunshot injuries. The .Sessions Judge acquitted all the persons accused. at the trial. In appeal by the State, the High Court of Rajasthan set aside the order of acquittal in favour of Noor Khan and companyfirmed the order in respect of the rest. There were disputes between Noor Khan on the one hand and Pratap and his brothers on the other about a well in village Mundara. Noor Khan claimed to have purchased a half share in the well whereas Pratap and his brothers claimed the well to be their exclusive property, and there were several companyrt proceedings about this dispute. It was the case for the prosecution that on September 29, 1960 at about 2-00 p.m. Noor Khan accompanied by his father Samdu Khan and eight others went to Prataps. field in which there was a farm, a house, a stable and the disputed well and called upon Pratap to deliver possession of the well and on the latter declining to do so, Samdu Khan fired a muzzle-loading gun at Ganesh--brother of Pratap-but missed him. Noor Khan then fired at Pratap and killed him instantaneously. The other members of the party of Noor Khan at the instigation of Samdu Khan thereafter beat Ganesh, Prabhu, Mohan and Gulab--brothers of Pratap-with sticks and other weapons and caused them injuries. After the assailants retired, Ganesh lodged a companyplaint against 15 persons including Noor Khan an.d Samdu Khan at the police station, Bali. Ten out of those who were named in the companyplaint were arrested and tried before the Court of Session, Sirohi. The Sessions Judge acquitted all the accused holding that the story that there was an unlawful assembly of ten or more persons who went to the well and caused the death of Pratap was number reliable, for in his view the prosecution had failed to lead evidence of independent witnesses and alterations were made in the story of the prosecution from time to time and certain persons were falsely involved. He observed that there was enmity between the two sides and the testimony of witnesses who claimed to be present at the scene of assault was number companyroborated by independent evidence and was on that .account unworthy of credit, especially because the companyplainant Ganesh had named several persons who were proved number to have taken part in the assault. In appeal by the State, the High Court of Rajasthan companyvicted Noor Khan for causing the death of Pratap by firing a muzzle-loading gun and causing him fatal injury and thereby companymitting an offence punishable under s. 302 Indian Penal Gode and sentenced him to suffer imprisonment for life. With special leave, Noor Khan has appealed to this companyrt. Pratap died on September 29, 1960 as a result of gun- shot injury. The testimony of Dr. Mehta who performed the post-mortem examination on the dead body of Pratap disposes beside the wound of entry that the left lung of the victim was lacerated with pieces of metal. Dr. Mehta found on the body of witness Prabhu two companytusions and an incised injury, on the body of Ganesh three companytusions, on Mohan one companytusion and on Gulab a swelling and in the view of Dr. Mehta the injuries were, at the time when he examined the injured persons on October 1, 1960, about 48 hours old. Prabhu, Ganesh, Mohan and Gulab were examined as witnesses for the prosecution, and they deposed that Noor Khan had caused the fatal injury to Pratap by firing a muzzle-loading gun at him, and that they were injured in the same incident by the members of Noor Khans party. The injuries on these four persons strongly companyroborate their story that at the time of the assault made on Pratap at about 2-00 p.m. on September 29, 1960 they were present. This story was further companyroborated by two female witnesses, Bhanwari and Mathurn. The High Court in appeal by the State held that numberwithstanding the infirmities in the prosecution case that in the first information, names of certain persons who were number present at the scene of occurrence were given by the companyplainant Ganesh on account of enmity and that there were discrepancies between the statements of the eye witnesses at the trial and the first information on the question as to who, out of the two persons Samdu Khan and the appellant Noor Khan, fired first, the substantial case of the prosecution remained unaffected thereby, for each of the four eye-witnesses Ganesh, Prabhu, Mohan and Gulab had marks of injuries the duration of which when examined by Dr. Mehta tallied with their story and the presence of the injuries lent assurance to their testimony that they were present at the occurrence, and the absence of independent witnesses was number by itself a sufficient ground for discarding the testimony of the witnesses who claimed to have seen the assault on Pratap. Relying upon the testimony of Mst. Bhanwari supported by the testimony of Mohan Singh and Mst. Mathura the High Court held that the fatal injury to. Pratap was caused by the appellant with a gun fired from a distance of about 4 ft. from the body of Pratap. The appeal before the High Court was one against an order of acquittal. But as explained by the Judicial Committee of the Privy Council in Sheo Swarup and others v. King Emperor 1 ss, 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was rounded, and to reach the companyclusion that upon that evidence the order of acquittal should be reversed. 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 Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.It may be observed that. in declining to accept the testimony of the witnesses who claim to have seen the assault, the Sessions Judge did number appreciate the full significance of the very important circumstance that on the person of the four eye-witnesses there were injuries which on the medical evidence must have been caused at or about the time when the fatal assault was made upon Pratap. It is highly improbable that all these witnesses who were members of the same family suffered injuries--some of which were severe--in some other incident or incidents on the day and about the time when Pratap was fatally injured, and then they companyspired to bear false testimony that they were present at the time of the assault upon Pratap. The presence of the four injured persons Ganesh, Prabhu, Mohan and I. L.R. 61 I.A. 398. Gulab at the scene of offence is assured by the evidence of injuries, and must, as the High Court observed, be regarded as established beyond reasonable doubt. The Sessions Judge did number found his companyclusion upon the demeanour of the witnesses, except possibly of Ganesh. He entered upon a review of the evidence and rested his companyclusion primarily upon four circumstances that the persons who were proved number to be present at the time of the companymission of the offence were sought to be involved in the companymission of the offence that the evidence showed that only one shot was fired even though the witnesses deposed that both Samdu Khan and Noor Khan were armed with muzzle-loading guns and had used them at the time of the ass.ault that the distance from which the gun which caused the fatal injury to Pratap was fired was estimated by the witnesses at number, less than 20 ft, whereas Dr. Mehta deposed that the gun was fired from a distance of only 4 ft. and that the accused Noor Khan and others were deprived of the benefit of having access to the police statements recorded under s. 161 Code of Criminal Procedure. The circumstance that two persons Narpat Singh and Pratap Singh were alleged in the first information to be members of the party which arrived at the scene of offence in companypany of Noor Khan and Samdu Khan, is one which may require the Court to scrutinize the testimony of Ganesh the informant with great care. But the High Court in arriving at its companyclusion did number rely upon the testimony of Ganesh that testimony was wholly discarded, and numberhing more need be said about that testimony. Inclusion of names of Narpat Singh and Pratap Singh as members of the party of Noor Khan in the first information lodged at the police station does number, however, throw any doubt upon the testimony of other witnesses who did number attempt to involve them in the companymission of the offence. The Sessions Judge also held that two other persons Kesia Choudhary and Sheonath Singh were also named in the first information though they were number present at the scene of offence. Ganesh admitted when cross-examined that these two persons arrived at the scene of offence after the assault on Pratap and the other witnesses did number depose that they had seen them at the time of the assault. The fact, that certain persons who were on the admission made by Ganesh number present at the time when the party of Noor Khan arrived at the scene, may raise a serious doubt about the reliability of the testimony of Ganesh, but it would number by itself be a ground for discarding the story of the other witnesses. It is true that the witness Prabhu Singh s o Guman Singh who was number a member of the family and who claimed to be an eye-witness to the assault on Pratap and others was, found wholly unreliable, and another person cited as a witness Sohan Singh who was also number a member of the family was number examined at the trial. But the place and the time at which the offence is alleged to be companymitted, were such that presence of persons who were number near relations of Pratap may least be expected. All the eye-witnesses have companysistently deposed that it was Noor Khan who caused the fatal injury to Pratap. On the evidence of the witnesses both Noor Khan and Samdu Khan were armed with muzzle-loading guns at the time of the assault, and only one gun-shot injury is found on the body of Pratap. It was deposed by the witnesses that Samdu Khan had fired the gun carried by him at Ganesh but the shot missed Ganesh. But absence of gun-shot injury on the person of Ganesh does number render the entire story so inherently improbable that it may on that account be discarded as unreliable. Nor is the discrepancy as to the sequence of firing, between the first information and the testimony in Court, furnish a justifiable ground in support of that companyrse. There is discrepancy between the estimates given by witnesses about the distance from which the fatal shot was fired by Noor Khan. Witnesses have estimated this distance as varying between 8 and 15 poundas--each pounda being equal to a step or two feet. It appears however from the appearance of the injury and especially the charring and blackening of the wound of entry that the barrel of the gun companyld number have been at a distance exceeding 3 or 4 ft. But as we will presently point out, the estimate given by the witnesses, examined in the light of the topography and the circumstances in which the assault took place, will number warrant undue importance being attached to the estimates of illiterate and semi-literate villagers. The judgment of the Sessions Judge suffers from the infirmity that without attempting to companycentrate his attention on the evidence of witnesses in the light of certain fixed positions on the scene of offence, and without attempting to secure a scale map, he discarded the story of the witnesses because of the discrepancy in the estimate of distances stated in terms of poundas. There were at the scene of offence, certain fixed objects such as the Peepal tree, the Ora room , dhalia stable ,phalsa opening in the hedge , well and chabutra platform . If the evidence of the witnesses is examined in the light number exclusively of estimates of witnesses about the distance, which especially in. the case of illiterate or semi-literate witnesses is numberoriously unreliable, we have number doubt that the companyclusion which the Sessions Judge was .persuaded to reach cannot be accepted. The estimate of the witnesses about the distance from which the gun was stated to have been fired by Noor Khan has varied. Ganesh deposed that the distance was about 20 ft. The other witnesses gave the estimate that the distance was about 8 to 15 poundas. It has to be numbericed that according to the prosecution witnesses there were about ten persons present. Two of them were armed with guns, some with axes and the remaining with sticks. They must have spread themselves over the small area of the field in which the well, Ora and dhalia are situate. It appears to be the companysistent testimony of the witnesses that the assaulting party were at the time of the assault somewhere near the Peepal tree, the situation of which is definitely established by reliable evidence, as being at a distance of about 8 ft. from the western end of the wall of the Ora. The gun which was used by Noor Khan was a muzzle-loading gun and the length of the barrel was 5 ft. According to the .witnesses the party of the assailants ha.d number advanced beyond the peepal tree and if as stated by Mst. Bhanwari . who has been believed by the. High Court companyroborated as she was by witnesses Mst. Mathura and Mohan Singh, it .appears that Noor Khan was near the peepal tree, the inference is inevitable that the distance between the end of the barrel and Pratap did number exceed 4 ft. The existence of charring and the lodging of the entire discharge from the gun at a single point of entry does clearly establish that the gun was fired from close range. The evidence of the witnesses viewed in the light of the situation of the Ora, dhalia and the peepal tree as shown in the rough sketch Ext. P-2 a , does also suggest that the estimate given by the witnesses of the distance of the assailant from Pratap cannot be accepted. Mst. Bhanwari has stated that Noor Khan was at a distance of a pace from Samdu Khan, and that Samdu Khan and Noor Khan had fired when they were near the peepal tree. Prabhu has given the estimate of the distance between Noor Khan and Pratap as 10 paces, but the evidence discloses that Noor Khan fired the shot from a place opposite the Ora. Gulab stated that Samdu Khan stood at a distance of five poundas from him and Pratap was near him sitting near the. Ora. Mohan deposed that the peepal tree is at a distance of 6 or 7 ft., and the accused persons were on the east side of the peepal tree and in front of the centre of the Dhalia. Mst. Mathura has stated that the accused persons ha.d companye to the rear of ,the peepal tree. Every witness has deposed that Pratap was sitting at a distance of a pace from the Ora wail facing south in which direction the peepal tree stood. This analysis of the evidence shows that Noor Khan fired his gun from a point south of the Ora, somewhere near the peepal tree, at Pratap who was sitting at a distance of about 2 ft. from the wail of the Ora. The High Court accepted the testimony of Mst. Bhanwari companyroborated by the testimony of Mst. Mathura and Mohan Singh and has companye to the companyclusion that these three witnesses have deposed to a state of affairs which is companysistent with the medical testimony. This is number to say that the testimony of other eye-witnesses is untrue, but it only discloses a faulty estimate of the distance given by illiterate villagers. But the most important defect in the trial which, it was urged by Mr. Purshottam appearing on behalf of the appellant, vitiates the order of companyviction is that the accused persons were deprived of the right to obtain and use companyies of the statements made by the witnesses before the investigating officer Hari Singh who stated that he had made jottings or numberes of the statements of witnesses, and that he did number record detailed statements in the companyrse of the investigation, and that from these jottings head-constable Kapuraram prepared the statements of the witnesses supplied at the trial to the accused when the witnesses were number present at the police station. In their cross-examination the witnesses who claimed to have witnessed the assault, asserted that certain statements attributed by Kapuraram to them were number made by them. The High Court observed that as the statements were written by Kapuraram from the jottings, numbervalue companyld be attached to those statements and the testimony of the witnesses who denied having made certain parts of the statements found in the record prepared by Kapuraram companyld number render it unreliable. On the evidence of Hari Singh the investigating Officer, the statements of which companyies were supplied to the accused purporting to be companyies of statements recorded under s. 161 Criminal Procedure Code, were number in truth such statements, and the High Court was right in observing that the discrepancies between those statements and the evidence given by the witnesses at the trial would number necessarily support the plea of the defence that the version given at the trial was unreliable, as an afterthought. But it was urged that under s. 161 Criminal Procedure Code it is obligatory upon an investigating officer to record the statements of witnesses examined by him and if those statements are number made available to the accused at the trial, a valuable right which the Legislature has ensured in the interest of a satisfactory trial of the case is lost to the accused, and the trial must on that account alone be regarded as vitiated. By s. 161 of the Code of Criminal Procedure, a police officer making an investigation under Ch. XIV is authorised to examine orally any person supposed to be acquainted with the facts and circumstances of the case. The person so examined is bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Sub-section 3 of s. 161 provides that a police-officer may reduce into writing any statement made to him in the companyrse of an examination under this section, .and if he does so he shall make a separate record of the statement of each such person whose statement he records. Section 162 of the Code as amended by the Criminal Procedure Code Amendment Act 26 of 1955 provides No statement made by any person to a police officer in the companyrse of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it number shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose save as hereinafter provided at anT inquiry or trial in respect of any offence under investigation at the time when such statement was made By the proviso it is enacted that when a witness is called for the prosecution in such inquiry or trial, whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to companytradict such witness. Section 173 of the Code by sub-section 4 as amended by Act 26 of 1955 provides that the officer in charge of the police station shall, ,before the companymencement of the inquiry or trial, furnish or cause to be furnished to the accused, amongst others, a companyy of the first information report recorded under s. 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements recorded under sub-section 3 of s. 161 of all the persons whom the prosecution proposes to examine as 1rs witnesses. Section 207A of the Code of Criminal Procedure which is added by Act 26 of 1955 by sub-section 3 provides At the companymencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has number been furnished with such documents or any of them, he shall cause the same to be so furnished, and the Magistrate shall then proceed to record the evidence of the witnesses produced by the prosecution and he may companymit the case to the Court of Session on such evidence and after companysidering the documents referred to. in s. 173. The object of ss. 162, 173 4 and 207A 3 is to enable the accused to obtain a clear picture of the case against him before the companymencement of the inquiry. The sections impose an obligation upon the investigating officer to supply before the companymencement of the inquiry companyies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilize those statements for cross-examining the witnesses to establish such defence as he desires to put up, and also to shake their testimony. Section 161 3 does number require a police- officer to record in writing the statements of witnesses examined by him in the companyrse of the investigation, but if he does record in writing any such statements, he is obliged to make companyies of those statements available to the accused before the companymencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved. The object of the provision is manifestly to give the accused the fullest information in the possession of the prosecution, on which the case of the State is based, and the statements made against him. But failure to furnish statements of witnesses recorded in the companyrse of investigation may number vitiate the trial. It does number affect the jurisdiction of the Court to try a case, number is the failure by itself a ground which affects the power of the Court to record a companyviction, if the evidence warrants such a companyrse. The provision relating .to the making of companyies of statements recorded in the companyrse of investigation is undoubtedly of great importance, but the breach thereof must be companysidered in the light of the prejudice caused to the accused by reason of its breach, for s. 537 Code of Criminal Procedure provides, amongst other things, that subject to the provisions companytained in the Code numberfinding, sentence or order passed by a Court of companypetent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the companyplaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in .any inquiry or other proceedings under this Code, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. By the explanation to . 537 it is provided that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection companyld and should have been raised at an earlier stage in the proceeding. In the present case the statements of the witnesses prepared by Kapuraram were supplied to the accused before the companymittal proceedings were started. Relying upon those statements as duly recorded under s. 161 3 , cross- examination of the witnesses was directed. But in the Court of Session the investigating officer admitted that on September 29, 1960 he did number record the statements of witnesses in detail, but merely numbered certain points and after reaching Thana Bali on September 30, 1960 he had got detailed statements of the witnesses written out by head- companystable Kapuraram in the absence of the witnesses, and had destroyed the numberes and jottings thereafter. Undoubtedly the investigating officer acted in a manner both irresponsible and improper, and thereby was instrumental in depriving the accused of the benefit of the numberes and jottings written out by him. He destroyed the only documents which companyld be regarded as statements recorded under s. 161 and which are permitted to be utilized by the accused under s. 161. Counsel for the appellant relying upon the two judgments of the Nagpur High Court in Baliram Emperor 1 and Maganlal v. Emperor 2 submitted that omission to supply companyies of the statements recorded under s. 161 is repugnant to the fundamental rules of practice necessary for the due protection of prisoners and the safe administration of justice, and where the accused was deprived of his statutory rights of cross-examination and thereby denied the opportunity of effectively destroying the testimony of prosecution witnesses the evidence of such witnesses whose statements have number been supplied to the accused is inadmissible at the trial. We are unable to accept this companytention for in our view the law stated by the Nagpur High Court does I.L.R. 1945 Nag. 151. I.L.R. 1946 Nag. 126. number companyrectly interpret ss. 161 and 162 Code of Criminal Procedure. In a later case, the Nagpur High Court in Maroti Mahagoo v. Emperor 1 held that though the right which is given to the accused under s. 162 Code of Criminal Procedure to use the previous statements made to the police for the purpose of companytradicting a witness is a valuable right, and where the omission to give companyies to the accused is proved to have caused prejudice to the accused, the testimony of such witness must be received with extreme caution and the Court would be entitled in a suitable case even to ignore altogether such evidence, but the evidence is number inadmissible and every case must be decided on its own facts. These cases were decided before the Code of Criminal Procedure was amended by Act 26 of 1955, but on the question raised by companynsel there is numbermaterial difference made by the amended provision. After the amendment of the Code in 1955, it is the duty of the investigating officer in every case where investigation has been held under Ch. XIV to supply to the accused companyies of the statements of witnesses proposed to be examined at the trial. Under the Code before it was amended, it was for the Court when a request was made in. that behalf to supply to the accused statements of each witness when he was called for examination. The effect of the breach of the provisions of s. 207A and s. 173 Code of Criminal ProCedure was companysidered by this Court in Narayan Rao v. State of Andhra Pradesh 2 and it was held that failure to companyply with the provisions of s. 173 4 and s. 207A 3 is merely an irregularity which does number affect the validity of the trial. It was observed, in dealing with the question whether an omission to companyply with the provisions of s. 173 4 read with sub-section 3 of s. 207A necessarily renders the entire proceeding and the trial null and void There is numberoubt that those provisions have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguardthe interests of accused persons by enjoining I.L.R. 1948 Nag. 110. A.I.R. 1957 S.C.737. upon police officers companycerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper companyduct of their defence, are furnished. . . . But we are number prepared to hold that numbercompliance with those provisions has, necessarily, the result of vitiating those proceedings and subsequent trial. The word shall occurring both in sub-section 4 of s. 173 and sub-section 3 of s. 207A, is number mandatory but only directory, because an omission by a police officer, to fully companyply with the provisions of s. 173, should number be allowed to have such a far-reaching effect as to render the proceedings including the trial before .the Court of Session, wholly ineffective. . . . . Certainly, if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of the police officers companycerned or of the Magistrate before whom the companymittal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the Court may re-open the proceedings by insisting upon full companypliance with the provisions of the Code. In our opinion, the omission companyplained of in the instant case, should number have a more far- reaching effect than the omission to carry out the provisions of s. 162 or s. 360 of the Code. The Court in that case relied upon the observations made by the Judicial Committee of the Privy Council in Pulukuri Kotayya v. Emperor 1 to the effect that when a trial is companyducted in a manner different from that prescribed by the Code, the trial is bad, and numberquestion of curing an irregularity arises, but if the trial is companyducted substantially in the manner prescribed by the Code, but some irregularity occurs in the companyrse of such companyduct, the irregularity can be cured under s. 537, and numbere the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very L.R, 74 I.A. 65. companyprehensive provisions of the Code. In dealing with result of failure to supply companyies of statements recorded under s. 161 Code of Criminal Procedure, the Judicial Committee observed in Pulukuri Kotayyas case 1 The right given to an accused person by this section is a very valuable one and often provides important material for cross examination of the prosecution witnesses. However slender the material for cross- examination may seem to be, it is difficult to guage its possible effect. Minor inconsistencies in his several statements may number embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate break-down of the whole of his evidence and in the present case it has to be remembered that the accuseds companytention was that the prosecution witnesses were false witnesses. Courts in India have always regarded any breach of the proviso to s. 162 as matter of gravity. I.R. 1945 Nag. 1 where the record of statements made by witnesses had been destroyed, and 53 All. 458, where the Court had refused to supply to the accused companyies of statements made by witnesses to the police, afford instances in which failure to companyply with the provisions of s. 162 have led to the companyviction being quashed. Their Lordships would, however, observe that where, as in those two cases, the statements were never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused. However strong the inference may be, failure to supply companyies will number by itself render the trial illegal. The Court must in each case companysider the nature of the defect, the objection raised at the trial, and the circumstances which lead to an inference of prejudice. The strength of the inference of prejudice must always be adjudged having regard to the circumstances of each particular case. Narayan Raos Case 2 related to failure to companyply with the provisions of ss. 173 and 207A. It appears that in that case the statements of witnesses recorded under s. 161 were supplied to the accused in the Court of Session, and irregularity in the proceeding to that extent was L.R. 74 I.A. 65. 2 A.I.R. 1957 S.C. 737. mitigated. In the present case what companyld be regarded as statements recorded under s. 161 3 were never supplied to the accused. But on that account the principle applicable to the companysequences of deprivation of the statutory right is number different. The Trial Court observed that the companyies of the statements which were handed over to the accused were number the record of the statements made by the witnesses but they were dictated by the sub-Inspector Hari Singh from the jottings made by him of some points, the statements having been written by head-constable Kapuraram. The Court then observed It is to be numbered that head companystable Kapuraram was number present at the place of occurrence when the investigating officer examined the witnesses on 29-9-60. The statements of witnesses which are in the handwriting of head companystable Kapuraram, therefore, companyld number have been written and read over to witnesses in the village Mundara station, Bali, and, therefore, the statements on which the prosecution rely were never read over to and admitted companyrect by the witnesses. There are several portions in the statements witnesses which have been brought on record by the defence companynsel on which there is companyplete companytradiction between the statements of eye witnesses and the investigating officer. But the companytradictions were, it appears, primarily as to the presence of Harpat Singh and Pratap Singh whose names were mentioned in the first information by witness Ganesh, and against whom numbercharge-sheet was filed and as to some matters number of much importance, such as the acts and companyduct of persons other than Noor Khan the appellant in this appeal. For instance, Prabhu denied that he had stated that Prabhu Singh and Sohan Singh were eye witnesses to the assault. Mst. Mathura denied that she had stated that the accused had indecently abused and threatened Ganesh and Pratap to leave the well otherwise they would kill them, and a similar denial was made by Mst. Bhanwari. The companytradiction in the statement of Prabhu related to some proceedings in Court arising out of the disputes relating to the well. It is of companyrse very unsatisfactory that the numberes, or .the jottings as they are 35--2 8. C.India/64 called, of the statements made by the witnesses before Hari Singh were number available to the accused because they were destroyed by him and what were made available to the accused were number in truth the statements which companyld be utilized under s. 162 Code of Criminal Procedure. For this unsatisfactory state of affairs, sub. inspector Hari Singh must be held responsible. But solely on that account, as we have already observed, we are unable to hold that the trial was illegal. No attempt appears to have been made by the Trial Court to scrutinize the diary of sub- inspector Hari Singh, number was any objection raised in the High Court that by reason of the failure to make the numberes or the jottings available to the accused any prejudice was caused. Not a single question was asked to Hari Singh about the nature of those jottings, or numberes--whether they were mere memoranda which the writer alone companyld understand, or were detailed numberes of statements made to him, which were arranged into proper shape when dictated to Kapuraram. The High Court in dealing with this objection observed Having regard to the manner in which the police statements are alleged to have been prepared by Kapuraram, numbervalue can be attached to them and if the witness disowned certain portions of those statements, his evidence at the trial cannot be rendered unreliable on that account. The High Court has carefully analysed and companysidered the evidence of the witnesses who deposed that they had seen the assault and it was assured that four out of the witnesses who had received injuries on their person must have been present on the scene of offence and the testimony of three out of those witnesses was acceptable viewed in the light of the evidence of Mst. Bhanwari and Mst. Mathura. We have gone through the material parts of the evidence of the witnesses to which our attention was directed, and after carefully scrutinising the evidence in the light of the infirmities pointed out, especially the denial of the companyies of the numberes or jottings made by Hari Singh, we are unable to disagree with the High Court. The Sessions Judge discarded the testimony of the witnesses, in view of discrepancies on matters of companypara- tively minor importance and because the witnesses were relatives of the deceased, and they made statements as to the distance from which the assault was made which companyld number be true in the light of the medical evidence. The High Court did number accept this view of the Trial Court. In an appeal with special leave we do number think that we would be justified in interfering with the companyclusion of the High Court especially when our attention has number been invited to any substantial infirmity in the reasoning of that Court. We may repeat that the provisions of s. 162 Code of Criminal Procedure provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the record of the statements of the witnesses and the supply of companyies to the accused so that they may be utilised at the trial for effectively defending himself cannot numbermally be permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under s. 161 the Court would be justified in directing that the companyviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant. It is only where the Court is satisfied, having regard to the manner in which the case has been companyducted and the attitude adopted by the accused in relation to the defect, that numberprejudice has resulted to the accused that the Court would, numberwithstanding the breach of the statutory provisions, be justified in maintaining the companyviction. This, in our judgment, is one of those cases in which such a companyrse is warranted. The action of the sub-inspector Hari Singh in destroying the numberes cannot but be deplored. But the destruction of the numberes recorded by him appears to be the result of ignorance, number of any dishonesty. Even so, if on a careful scrutiny of the evidence we felt that there was reasonable ground for holding that the appellant Noor Khan was prejudiced because he was deprived of the right which the Legislature had ensured him in making his defence, we would have set aside the companyviction We have however companysidered the evidence of the witnesses carefully and examined it in the light of the criticism offered by companynsel for Noor Khan, and after giving due weight to the opinion of the High Court and the Trial Court have companye to the companyclusion on the facts of this case that numberprejudice appears to have been caused. As we have already pointed out, the plea of prejudice caused tothe accused does number appear to have been raised in the High Court, and apart from the general plea of illegality of the trial because of the failure to supply the companyies of the record of the statements made to Hari Singh, numbersubstantial argument in support of the plea of prejudice has been advanced.

Case appeal was rejected by the Supreme Court

Sinha, C.J. In this appeal, on a certificate of fitness granted by the Punjab High Court, the only question for determination is whether the provisions of s. 5 of the Limitation Act 9 of 1908 apply to an application for special leave to appeal, from an order of acquittal, under sub-s. 3 of s. 417 of the Code of Criminal Procedure to be hereinafter referred to as the Code . The certificate was granted by the High Court because there is a companysiderable companyflict of opinion in the various High Courts. In this case we are number companycerned with the factual aspect of the companytroversy between the parties. It is number, therefore, necessary to set out in any detail the facts of that companytroversy. It is enough to state that the respondent was companymitted to the Court of Sessions to stand his trial under s. 493, or in the alternative under s. 495, of the Indian Penal Code, on the charge that he had, by deceit, cause the appellant who was number lawfully married to him to believe that she was so married, and in that belief had sexual intercourse with her. In the alternative, it was alleged that he married, the appellant after companycealing the fact that he was already married. The prosecution was launched by a petition of companyplaint filed by the appellant before the Magistrate. The respondent was tried by the Additional Sessions Judge, Gurdaspur, who by his judgment dated December 31, 1959, acquitted him on the ground that the prosecution had failed to prove that there was a marriage between the companyplainant and the accused. The appellant filed an application on April 22, 1960, very much later than 60 days from the date of the order of acquittal, for special leave to appeal from that order, under s. 417 3 of the Code. In a numbere appended to the application it was stated that the time in filing the present petition might be excluded in view of the fact that the District Magistrate, Gurdaspur, moved the Advocate-General in filing the appeal under s. 417, Criminal Procedure Code, which if filed would have obviated the necessity of filing this petition. But the State Government declined to file appeal and the intimation to this effect was received on April 1, 1960. The original letter is attached herewith from this date, it is within time. On this application, a Division Bench of the High Court passed the order Admitted, on September 1, 1960. When the appeal was placed for hearing before Falshaw and Grover, JJ, a preliminary objection was raised on behalf of the respondent that the appeal was out of time. While it was admitted on behalf of the appellant that the appeal was filed long after the period prescribed by sub. s. 4 of s. 417 of the Code, it was argued that the delay companyld be companydoned under s. 5 of the Limitation Act, and that the delay had been so companydoned by the Bench when the appeal was admitted. The Bench pointed out that as a matter of fact numberapplication had been made by the appellant for extension of the period of limitation for filing petition for special leave. The Bench further held that it companyld number accede to the companytention that the Bench while admitting the appeal had companydoned the delay. The Court, on an elaborate examination of the provisions of the Code, and of the Limitation Act, came to the companyclusion that the bar of time prescribed by sub-s. 4 of s. 417 was a special law within the meaning of s. 29 2 of the Limitation Act, and that, therefore, s. 5 of the Limitation Act would number be available to the appellant for companydoning the admitted delay in filing the application for special leave. The High Court numbericed a number of decisions of the different High Courts and preferred to accept the view that the provisions of sub-s. 4 of s. 417 of the Code were in the nature of a special law though the Code as a whole was a general law. In that view of the matter, the High Court dismissed the appeal on the ground that the application for special leave to appeal was barred by time. The appellant applied to the High Court and obtained the necessary certificate of fitness and has companye up to this Court on appeal from that order of the High Court. The High Court naturally did number go into the merits of the companytroversy. We have, therefore, to companysider whether the High Court was right in companying to the companyclusion that s. 5 of the Limitation Act companyld number be available to the appellant for companydonation of the delay in filing the application for special leave under sub-s, 3 of s. 417 of the Code. Before we refer to the different decisions of the High Courts, taking companyflicting views on the only question number before us, we would examine the relevant provisions of the Code and the Limitation Act. Section 417 of the Code is in these terms 417 1 Subject to the provisions of sub-section 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 a acquittal passed by any Court other than a High Court. 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 XXXV of 1946 , the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal. If such an order of acquittal is passed in any case instituted upon the 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 3 for the grant of special leave to appeal from the order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. If, in any case, the application under sub-section 3 for the grant of special leave to appeal from an order of acquittal is refused, numberappeal from that order of acquittal shall lie under sub-section 1 . It will appear that the section, which was recast by Act XXVI of 1955, for the first time made provision for an appeal by a private companyplainant from an order of acquittal, if he obtained special leave to appeal from the High Court. Previous to the Amending Act aforesaid, it was only the State Government which companyld companye up in appeal from an order of acquittal. The section, thus, provides for an appeal by the State Government, as also by the companyplainant in a case instituted upon a companyplaint provided that special leave of the Court is obtained. So far as appeal by the State Government is companycerned, s. 417 itself does number provide for any period of limitation. The period of limitation for such an appeal is laid down in Art. 157 of the Limitation Act. Previous to the amendment of 1955, the period of limitation for such an appeal by the State Government was six months, which was reduced to three months by the Act XXVI of 1955 with effect from January 1, 1956. Hence, so far as an appeal by the State Government is companycerned, the period of limitation thus reduced is a part of the general law of limitation and is amenable to the operation of s. 5 of the Limitation Act. But the provisions of sub-s. 3 and 4 of s. 417 are in the nature of special provisions introduced for the first time by the Amending Act XXVI of 1955. Sub-section 4 , in terms, is very precise and mandatory, prohibiting the High Court from entertaining any application for special leave to appeal from an order of acquittal after the expiry of 60 days from the date of such an order. On a perusal of the bare provisions of the section and the history of the law on the subject, two things are clear namely, 1 that the legislature thought it expedient in the interest of justice and public policy that the period of six months allowed to the State Government to appeal from an order of acquittal should be curtailed by half, thus evincing its clear intention to cut short the duration of the litigation which had already resulted in an order of acquittal and 2 that in certain cases the High Court should have the power of granting special leave to a companyplainant, as distinguished from the State Government, to companye up in appeal from an order of acquittal, but at the same time indicating in clear and unambiguous terms that such an application must be made within 60 days from the date of the order of acquittal. This rule of 60 days bar of time has been specifically provided for in the section itself, unlike the general rule of limitation applicable to an appeal against acquittal, at the instance of the State Government. In our opinion, therefore, the position is clear that so far as appeal by the State Government is companycerned, the law of limitation is the general law laid down in the Limitation Act Art. 157 to which s. 5 would apply by its own force. But in so far as an appeal by a private prosecutor is companycerned, the legislature was astute to specifically lay down that the foundation for such an appeal should be laid within 60 days from the date of the order of acquittal. In that sense, this rule of 60 days bar is a special law, that is to say, a rule of limitation which is specially provided for in the companye itself, which does number ordinarily provide for a period of limitation for appeals or applications. It is the general law of limitation, as laid down in the Limitation Act, which governs appeals ordinarily preferable under the Code, vide Arts. 150, 154, 155 and 157. To such appeals the provisions of s. 5 would apply. It has been observed in some of the cases decided by the High Courts that the Code is number a special or a local law within the meaning of s. 29 2 of the Limitation Act, that is to say, so far as the entire Code is companycerned, because it is a general law laying down procedure, generally, for the trial of criminal cases. But the specific question with which we are here companycerned is whether the provision companytained in s. 417 4 of the Code is a special law. The whole Code is indeed a general law regulating the procedure in criminal trials generally, but it may companytain provisions specifying a bar of time for particular class of cases which are of a special character. For example, a Land Revenue Code may be a general law regulating the relationship between the revenue-payer and the revenue-receiver or the rent-payer and the rent-receiver. It is general law in the sense that it lays down the general rule governing such relationship, but it may companytain special provisions relating to bar of time, in specified cases, different from the general law of limitation. Such a law will be a special law with reference to the law generally governing the subject-matter of that kind of relationship. A special law, therefore, means a law enacted for special cases, in special circumstances, in companytradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally but if it lays down any bar of time in respect of special cases in special circumstances like those companytemplated by s. 417 3 4 , read together, it will be a special law companytained within the general law. As the Limitation Act has number defined special law, it is neither necessary number expedient to attempt a definition. Thus, the Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act but there may be instances of a special law of limitation laid down in other statutes, though number dealing generally with the law of limitation. For example, rules framed under Defence of India Act, vide S. M. Thakur v. The State of Bihar I.L.R. 30 Pat. 126 Canara Bank Ltd. v. The Warden Insurance Co. I.L.R. 1952 Bom. 1083 dealing with the special rule of limitation laid down in the Bombay Land Requisition Act Bom. XXXIII of 1948 . These are mere instances of special laws within the meaning of s. 29 2 of the Limitation Act. Once it is held that the special rule of limitation laid down in sub-s. 4 of s. 417 of the Code is a special law of limitation, governing appeals by private prosecutors, there is numberdifficulty in companying to the companyclusion that s. 5 of the Limitation Act is wholly out of the way, in view of s. 29 2 b of the Limitation Act. But the question is whether it can be said that even though the provisions of s. 417 4 are a special law, they prescribe a different period of limitation from that prescribed by the First Scheduled of the Limitation Act, because s. 29 2 applies where there is a difference between the period prescribed by the Limitation Act and that prescribed by the special law. It is said that the Limitation Act does number prescribe any period of limitation for an application for special leave to appeal from an order of acquittal at the instance of a private prosecutor. In the first instance, the Limitation Act, Art. 157, has prescribed the rule of limitation in respect of appeals against acquittal at the instance of the State. Hence, it may be said that there is numberlimitation prescribed by the Limitation Act for an appeal against an order of acquittal at the instance of private prosecutor. Thus, there is difference between the Limitation Act and the rule laid down in s. 417 4 of the companye in respect of limitation affecting such an application. Section 29 2 is supplemental in its character in so far as it provides for the application of s. 3 to such cases as would number companye within its purview but for this provision. And for the purposes of determining any period of limitation prescribed by any special law, it has made the provisions of the Limitation Act, referred in clause a of sub-section 2 of section 29 applicable to such cases to the extent to which they are number expressly excluded by such special or local law, and clause b of that sub-section expressly lays it down that the remaining provisions of the Limitation Act shall number apply to cases governed by any special or local law. In our opinion, therefore, the provisions of the Code, supplemented by the provisions of s. 29 2 of the Limitation Act, make it clear that s. 5 of the Limitation Act would number apply to an application for special leave to appeal under s. 417 3 of the Code. That is our companyclusion based on the interpretation of the statutes in question. But the High Courts of Allahabad, Andhra Pradesh and Madras have taken the companytrary view. On the other hand, earlier decisions of the Allahabad High Court and the Bombay High Court, to be presently numbericed, have taken the view that what we have indicated is the companyrect view of the legal position. A Division Bench of the Allahabad High Court, in the case of Mohammad Ibrahim v. Gopi Lal had taken the view that the words of sub. s. 4 of s. 417 make it clear that the application under sub. s. 3 must be made within 60 days of the order of acquittal, and that the High Court had numberpower to extend the period of limitation, and s. 5 of the Limitation Act did number apply to such cases. They based their companyclusion entirely on the wording of sub. ss. 3 and 4 of the s. 417 of the Code. That Bench decision of the Allahabad High Court was overruled by a Full Bench of that Court in Rajjan Lel v. State I.L.R. 1960 2 All. 761 . The three Honble Judges companystituting the full bench, in separate but companycurring judgments, took the view that the Code was number a local or a special law and that s. 5 of the Limitation Act was applicable to an application under s. 417 3 of the Code. In the Andhra Pradesh High Court a Division Bench was of the same opinion as had been held by the Full Bench of the Allahabad High Court, but the decision was obiter because the Court dismissed the petition on the ground that the order of acquittal had been passed before the Amending Act XXVI of 1955 came into force, so that the order of acquittal was number amenable to an appeal at the instance of the private prosecutor. A Single Judge of the Andhra Pradesh High Court took the view that s. 5 was applicable to applications for special leave under s. 417 4 . In the Madras High Court, a Single Judge decided the case of Viswanathan Chettiar in re 1957 1 M.L.J. 150 and held that section 1, sub-section 2 of the Criminal Procedure Code makes all laws applicable to Criminal procedure Code including the Law of Limitation and numberhing companyld prevent the appellant from taking advantage of section 5 of the Limitation Act. He also held that there was numberdifference between the period prescribed by the law of limitation and the Criminal Procedure Code. Both these observations do number appear to be companyrect. Another Single Judge of the Madras High Court decided in the case of Coimbatore Municipality v. K. L. Narayanan A.I.R. 1958 Mad. 416 that s. 5 of the Limitation Act companyld be availed of by the private prosecutor, but the learned Judge did number base his decision on the reasoning of the previous judgment of that Court but preferred to follow the reasoning adopted by the Andhra Pradesh High Court in P. V. Subbareddi v. D. Papireddi A.I.R. 1957 And. Pra. 406 and in re Parchuri Adeshamma A.I.R. 1958 And. Pra. 230 . In our opinion, the view taken by the Full Bench of the Bombay High Court in the case of Anjanabai v. Yeshwantrao Daulatrao Dudhe I.L.R. 1961 Bom. 135 is the companyrect one. In that case it was held that the provisions of s. 417 4 were a special law within the meaning of s. 29 2 of the Limitation Act. In that case, the High Court has dealt with the decisions of the different High Courts on the question and with the reasonings for those decisions. As we agree with the companyclusions of the High Court of Bombay, we do number think it necessary to repeat the observations made therein, bearing on the reasons given by the High Courts of Allahabad, Andhra Pradesh and Madras for companying to companytrary companyclusions. For the reasons given above, we hold that the view taken by the High Court of Punjab of entirely companyrect.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 472 of 1962. Appeal from the judgment and decree dated December 23, 1960, of the Bombay High Court in First Appeal No. 464 of 1958. K. Garg, S.C. Agarwala, D.P. Singh and M.K. Ramamurthi, for the appellants. V. Gupte, Additional Solicitor General, V.D. Mahajan and R.N. Sachthey, for the respondent. October 23, 1963. The Judgment of the Court was delivered by WANCHOO J. This is an appeal against the judgment and decree of the Bombay High Court on a certificate granted by that Court. The appellant was in the service of the Union of India. He was appointed on June 11, 1949 as an officiating Assistant Director Grade II in the office of the Textile, Commissioner, Bombay and was working as such till September 15, 1954. The appointment was temporary and his services were liable to be terminated on one months numberice on either side. He was posted after the date of his appointment in the Textile Commissioners office at Ahmedabad and companytinued to work there till February 1954. He was transferred to Bombay in February 1954 and was informed in August 1954 that his services would be terminated from September 15, 1954. No cause was assigned for the termination of his services and numberopportunity was given to him of showing cause against the action taken against him. He therefore brought a suit in the City Civil Court at Bombay, and his companytention was that his services had been terminated unjustifiably and maliciously as the Regional Director of Production in the Textile Commissioners office at Ahmedabad was against him. Because of this on December 29, 1953, the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should number be taken against him. The appellant went on to state in the plaint that certain enquiries were held against him behind his back but the matter was number pursued and he was transferred to Bombay in February 1954. While he was at Bombay he received the numberice terminating his services. He claimed that he was a quasi- permanent employee under the Central Civil Services Temporary Service Rules, 1949, hereinafter referred to as the Rules and numberaction under r. 5 of the Rules companyld be taken against him. He was further entitled to the protection of Art. 311 of the Constitution and as his services were terminated without companyplying with that provision the order was bad and liable to be set aside. It was further companytended that if r. 5 applied to him, it was bad inasmuch as it was hit by Art. 16 of the Constitution and in any case the order passed against him was bad as it was discriminatory. The appellant therefore prayed that the order of August 13, 1954 by which his services were terminated be declared illegal and inoperative and he be declared a quasi permanent employee and reinstated in service. There was also a claim for arrears of salary and companyts of the suit and such other companysequential reliefs as the companyrt might deem fit to give. The suit was opposed by the Union of India and its main defence was that the appellant was number a quasi permanent employee and that r. 5 of the Rules I SCI/64--13 applied to him and that action was properly taken under that rule when terminating the appellants services by order dated August 13, 1954. It was also companytended that r. 5 was perfectly valid and that there was numberdiscrimination practised against the appellant when his services were terminated. It was admitted that the memo. dated December 29, 1953 was issued to the appellant and he was directed to submit his explanation in respect of the irregularities mentioned therein to the Under Secretary, Government of India, New Delhi and to state why disciplinary action should number be taken against him. It was also admitted that from December 1953 onwards some department inquiry was companyducted against the appellant but it was averted that the said departmental inquiry was number pursued as the evidence against him was number companysidered to be companyclusive. But as the appellants work was number found satisfactory, he was transferred to Bombay in February 1954 to give him a chance of improvement. As his work and companyduct were ultimately found to be unsatisfactory, his employment was terminated under r. 5 of the Rules as he was a temporary employee. On these pleadings three main questions arose for decision before the trial companyrt, namely, i whether the appellant was a quasi permanent employee and r. 5 of the Rules did number apply, to him ii whether r. 5 was invalid as it was hit by Art. 16 of the Constitution and in any case whether the action taken against the appellant was discriminatory, and therefore hit by Art. 16 of the Constitution, and iii even if the appellant was a temporary government servant, whether he was entitled to the protection of Art. 311 2 of the Constitution in the circumstances of this case. The trial companyrt held on all these points against the appellant and dismissed the stilt. The appellant then went in appeal to the High Court. The High Court agreed with the trial companyrt and dismissed the appeal. The appellant then applied for a certificate to appeal to this Court, which was granted and that is how the matter has companye up before us. The first question that fails for companysideration is whether the appellant was a quasi permanent employee and r. 5 did number apply to him. If the appellant is held to be a quasi permanent employee, he will be entitled to the protection of Art. 311 2 and as admittedly the provisions of Art. 311 2 were number companyplied with in the present case, his suit would have to be decreed and numberfurther question would arise for decision. Rule 3 of the Rules, which falls for companysideration in this companynection, is as follows A Government servant shall be deemed to be in quasi-permanent service-- if he has been in companytinuous Government service for more than three years if the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character, for employment in a quasi permanent capacity has issued a declaration to that effect, in accordance with such instructions as the Governor-General may issue from time to time. The companytention on behalf of the appellant is that as there is numberconjunction and between the two sub-clauses of r. 3, a Government servant must be deemed to be quasi- permanent if he companyplies with either of the two sub-clauses. It is urged that a temporary government servant will become quasi permanent if he has been in companytinuous government service for more than three years or if a declaration is made in his favour as required by sub-cl. ii . The appellant thus reads the word or between the two sub- clauses. On the other hand, the respondent companytends that looking at the scheme of the Rules the word and should be implied between the two sub-clauses and that both the clauses must be fulfilled before a Government servant can be deemed to be in quasi-permanent service. In this companynection our attention was drawn to two cases of this Court in which this rule was mentioned. In Parshotam Lal Dhingra v. Union of India, 1 this Court, when referring to r. 3 at p. 858, used 1 1958 S.C.R. the companyjunction or between the two sub-clauses. Learned companynsel for the appellant relies on this to show that we should read the word or between the two sub-clauses. We are however of opinion that this Court was number specifically dealing with the interpretation of r. 3 in that case and what has been said there about r. 3 was merely for purposes of illustration. The other case of this Court to which reference has been made is K.S. Srinivasan v. Union of India. 1 There while quoting r. 3 at p. 1307, this Court used the word and between the two subclauses. That is probably due to the fact that the brochure on Central Civil Services Temporary Services Rules 1949 printed by the General Manager, Government of India Press, New Delhi, 1959, companytains the word and between the two sub-clauses in r. 3. That also in our opinion is number companyclusive in favour of the respondent, because it is number disputed before us that in the Government gazette where the Rules were first published, neither the word and number the word or appears between the two sub-clauses of r. 3. This aspect of the matter was companysidered by the Bombay High Court in B.M. Pandit v. Union of India 2 where the learned Judges pointed out at p. 48 that they found from the companyy of the gazette of the Government of India in which these Rules were first published that neither the word and number the word or appeared between the two subclauses and this position is accepted on behalf of the respondent before us. The question therefore arises whether we have to read the two sub-clauses companyjunctively or disjunctively. We may add that the Bombay High Court in the case mentioned above read the two sub-clauses companyjunctively and we are of opinion that view is companyrect. The object of these Rules obviously was to provide for some security of tenure for a large number of temporary government servants who had to be employed in view of World War II and also to provide for former employees of the Governments of Sind, the North West Frontier Province and Baluchistan 1 1958 S.C.R. 1295. 2 A.I.R. 1962 Bom. 45. who had companye to India on account of the Partition. This protection was afforded to temporary government servants and the government servants of the other type by the device of creating quasi-permanent service. Rule 3 provided in what circumstances a government servant shall be deemed to be quasi permanent. Quasi-permanent service is defined in r. 2 2 as meaning temporary service companymencing from the date on which a declaration issued under r. 3 takes effect and companysists of periods of duty and leave other than extraordinary leave after that date. R, de 3 therefore must be read with r. 2 b which defines quasi-permanent service. Under r. 2 b , quasi-permanent service begins from the date on which a declaration is issued under r. 3. It follows therefore that before a government servant can be deemed to be in quasi-permanent service a declaration must be issued under the second sub-clause of r. 3, for that is the sine quo number for the companymencement of quasi-permanent service. Without such a declaration quasi-permanent service cannot begin. If therefore the appellants companytention were to be accepted and a temporary government servant can be deemed to be in quasi-permanent service, if only the first sub-clause has been fulfilled, viz., that he has been in companytinuous government service for more than three years, there will be companyplete irreconcilability between r. 2 b and the first clause of r. 3. Therefore, reading these two rules together the companyclusion is inevitable that we must read the two sub-clauses companyjunctively and hold that both companyditions must be fulfilled before a Government servant can be deemed to be in quasi-permanent service, namely, i that he has been in companytinuous government service for more than three years, and ii that the appointing authority after satisfying itself as to suitability in various respects for employment in quasi-permanent capacity has issued a declaration to that effect. It is however urged that the definitions in r. 2 have to be read subject to there being numberhing repugnant in the subject or companytext and it is companytended that in the companytext of r. 3 the two sub-clauses must be read disjunctively. We are of opinion that there is numberforce in this argument, and as a matter of fact the companytext of r. 3 itself requires that rule must be read in harmony with the definition of quasi-permanent service in r. 2 b , for it companyld number possibly be the intention of the rule making authority to create disharmony between the definition in r. 2 b and the provision in r. 3. The companytention on behalf of the appellants that the two sub-clauses are independent and have to be read disjunctively must be rejected and it must be held that both the companyditions in r. 3 must be satisfied before a government servant can be deemed to be in quasi- permanent service. This will in our opinion also be clear from the scheme of the Rules following r. 3. Rule 4 provides that a declaration issued under r. 3 shall specify the particular post or the particular grade of posts within a cadre in respect of which it is issued, and the date from which it takes effect. This rule is clearly meant to apply to all quasi-permanent employees and shows that numbergovernment servant can be deemed to be in quasi-permanent service until a declaration has been issued. Rule 6 provides that the service of a Government servant in quasi-permanent service shall be liable to termination in the same circumstances and in the same manner as a government servant in permanent service. Now under the definition of r. 2 b , quasi-permanent service begins with a declaration issued under sub-cl. 1 of r. 3. Therefore the protection of r. 6 can only be given to a quasi-permanent employee after a declaration has been made. This again shows that a declaration is necessary before a Government servant can claim to be in quasi.permanent service. Rule 7 provides that a government servant in respect of whom the declaration has been issued under r. 3, shall be eligible for permanent appointment on the occurrence of a vacancy in the specified posts which may be reserved for being filled from among persons in quasi-permanent service. This again shows that a quasi-permanent employee can become eligible for permanent appointment only when a declaration has been issued under r. 3. Again r. 8 provides that a government servant in quasi-permanent service shall as from the date on which his service is declared to be quasi-permanent be entitled to the same companyditions of service in respect of leave, allowances and disciplinary matters as a government servant in permanent service holding the specified post. Here again the benefit of r. 8 can only be availed of by a quasi- permanent government servant in whose favour a declaration has been made. Then r. 9 provides that a government servant in quasi-permanent service shall be eligible for a gratuity under certain circumstances. This gratuity will be at the rate of half a months pay for each companypleted year of quasi- permanent service, such gratuity being payable on the basis of the pay admissible to such government servant in respect of the specified post on the last day of his service. This again companytemplates a declaration before the benefit of r. 9 can be claimed by a quasi-permanent employee. Rule 10 provides that where a government servant in quasi-permanent service is appointed substantively to a permanent pensionable post, the entire period of quasi-permanent service rendered by him shall be deemed to be qualifying service for the grant of gratuity and pension. Now under r. 2 b quasi permanent service only companymences after the declaration and therefore unless a declaration is made, the benefit of r. 10 cannot be taken by a quasi-permanent employee. The scheme of the rules therefore clearly shows that a declaration under r. 3 is necessary before a temporary government servant can claim to be a quasi- permanent employee. Otherwise if the two sub-clauses of r. 3 were to be read disjunctively the result would be that a person may become a quasi permanent employee under sub-cl. 1 but will get numbere of the advantages mentioned above. We are therefore satisfied that the scheme of the Rules and the harmony that is essential between r. 2 b defining quasi- permanent service and r. 3 laying down how a government servant can be deemed to be in quasi permanent service require that the two sub-clauses should be read companyjunctively and that two companyditions are necessary before a government servant can be deemed to be in quasi-permanent service, namely, i companytinuous service for more than three years, and ii declaration as required by sub-cl. ii of r. 3. It is number in dispute that though the appellant had been in service for more than three years by 1954, numberdeclaration as required by sub-cl. ii of r. 3 has ever been made in his case. He cannot therefore claim to be in quasi-permanent service. It follows therefore that he cannot claim the benefit of r. 6, which lays down that the services of a government servant in quasi-permanent service shall be liable to termination in the same circumstances and in the same manner as government servants in permanent service. If he companyld claim the benefit of r. 6, he would have been certainly entitled to the protection of Art. 311. As he is number entitled to the benefit of r. 6, he cannot claim the benefit of Art. 311 9.2 on the ground that he must be deemed to be in quasi- permanent service. The appellant therefore must be held to be still in temporary service when his services were dispensed with in August 1954. The rule that applies to a temporary government servant is r. 5 which lays down that- a the service of a temporary Government servant who is number in quasi-permanent service shall be liable to termination at any time by numberice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant. The period of such numberice shall be one month, unless otherwise agreed to by the Government and by the Government servant Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances, at the same rates at which he was drawing them immediately before the termination of his services, for the period of the numberice or, as the case may be, for the period by which such numberice falls short of one month or any agreed longer period. In short r. 5 gives power to the Government to terminate the services of a temporary government servant by giving him one months numberice or on payment of one months pay in lieu of numberice or such shorter or longer numberice or payment in lieu thereof as may be agreed to between the Government and the employee companycerned. This rule is being attacked on the ground that it is hit by Art. 16, which provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. We have number been able to understand how this rule can possibly be hit by Art. 16, which provides for equality of opportunity. These Rules show that there are two classes of employees namely, i permanent employees, and ii temporary employees, the latter being divided into two sub-clauses a quasi-permanent, and b temporary. It is well recognised that the Government may have to employ temporary servants to satisfy the needs of a particular companytingency and such employment would be perfectly legitimate. There can also be numberdoubt, if such a class of temporary servants companyld be recruited that there would be numberhing discriminatory or violative of equal opportunity if the companyditions of service of such servants are different in some respects from those of permanent employees. Further we see numberdenial of equal opportunity if out of the class of temporary employees some are made quasi-permanent depending on length of service and their suitability in all other respects for permanent employment eventually and thus assimilated to permanent employees. It has been urged on behalf of the respondent that Art. 16 in any case will number apply to matters relating to termination of service. We do number think it necessary for present purposes to decide whether Art. 16 would apply to rules relating to termination of service. We shall assume for the purposes of this appeal that Art. 16 will apply even in the case of rules relating to termination of service. But we fail to see how the rule which applies to one class of government servants in the matter of termination but does number apply to the other two classes can be said to violate equality of opportunity provided in Art. 16. The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances. In particular the very fact that the service of a government servant is purely temporary makes him a class apart from those in permanent service and such government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service. We are therefore of opinion that companysidering the nature of the employment of a temporary government servant, a provision like that in r. 5 in respect of termination of service is a. reasonable provision which cannot be said to deny equality of opportunity provided in Art. 16. The attack therefore on r. 5 on the ground that it is hit by Art. 16 of the Constitution must fail. It is next urged that even if r. 5 is good, the order by which the appellants services were dispensed with was bad, because it was discriminatory. In this Connection reference was made in the plaint to a number of Assistant Directors whose services were number dispensed with even though they were junior to the appellant and did number have as good qualifica- tions as he had. We are of opinion that there is numberforce in this companytention. This is number a case where services of a temporary employee are being retrenched because of the abolition of a post. In such a case a question may arise as to who should be retrenched when one out of several temporary posts is being retrenched in an office. In those circumstances, qualifications and length of service of those holding similar temporary posts may be relevant in companysider- ing whether the retrenchment of a particular employee was as a result of discrimination. The present however is a case where the appellants services were terminated because his work was found to be unsatisfactory. We shall deal with the question whether termination in this case is liable to be set aside on the ground that Art. 311 2 was number companyplied with later but where termination of the service of a temporary government servant takes place on the ground. that his companyduct is number satisfactory there can in our opinion be numberquestion of any discrimination. It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory companyduct the services of all similar employees must also be terminated along with him, irrespective of what their companyduct is. Therefore even though some of those mentioned in the plaint by the appellant were junior to him and did number have as good qualifications as he had and were retained in service, it does number follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory companyduct. A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his companyduct being unsatisfactory. We therefore reject the companytention that the appellant was denied the protection of Art. 16 and was treated in a discriminatory manner. We number companye to the last question whether the appellant Was entitled to the protection of Art. 311 2 of the Constitution, even though he was a temporary government servant. It is well settled that temporary servants are also entitled to the protection of Art. 311 2 in the same manner as permanent government servants, if the government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank see Parshotam Lal Dhingra v. Union of India . But this protection is only available where discharge, removal or reduction in rank is sought to be inflicted by way of punishment and number otherwise. It is also number disputed that the mere use of expressions like terminate or discharge is number companyclusive and in spite of the use of such innocuous expressions, the companyrt has to apply the two tests mentioned in Parshotam Lal Dhingras case 1 , namely- 1 whether 1958 S.C.R. 828. the servant had a right to the post or the rank or 2 whether he has been visited with evil companysequences and if either of the tests is satisfied, it must be held that the servant had been punished. Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the companytract of employment or the specific service rule, nevertheless, if a right exists under the companytract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant. It is on these principles which have been laid down in Parshotam Lal Dhingras case that we have to decide whether the appellant was entitled to the protection of Art. 311 2 in this case. Before however we companysider the facts of this case, we should like to make certain general observations in companynection with disciplinary proceedings taken against public servants. It is well known that government does number terminate the services of a public servant, be he even a temporary servant, without reason number is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily. One reason for terminating the services of a temporary servant may be that the post that he is holding companyes to an end. In that case there is numberhing further to be said and his services terminate when the post companyes to an end. Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post companyes back to duty or where the higher post created for a temporary period companyes to an end. But besides the above, the government may find it necessary to terminate the services of a temporary servant if it is number satisfied with his companyduct or his suitability for the job and or his work. The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure. This dissatisfaction with the work and, or companyduct of a temporary servant 1 1958 S.C.R. 828. may arise on companyplaint against him. In such cases two companyrses are open to government. It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and or companyduct. Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of Art. 311 2 . But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in companynection with the alleged misconduct or unsatisfactory work. In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be companysidered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant companycerned that charges are then framed against him and he is asked to show cause why disciplinary action be number taken against him. An enquiry officer who may be himself in the case where the appointing authority is other than the Government is appointed who holds enquiry into the charges companymunicated to the servant companycerned after taking his explanation and this inquiry is held in accordance with the principles of natural justice. This is what is known as a formal departmental enquiry into the companyduct of a public servant. In this enquiry evidence both documentary and oral may be led against the public servant companycerned and he has a right to cross-examine the witnesses tendered against him. He has also the right to give documentary and oral evidence in his defence, if he thinks necessary to do so. After the enquiry is over, the enquiry officer makes a report to the Government or the authority having power to take action against the servant companycerned. The government or the authority makes up its mind on the enquiry report as to whether the charges have been proved or number and if it holds that some or all the charges have been proved, it determines tentatively the punishment to be inflicted on the public servant companycerned. It then companymunicates a companyy of the enquiry officersreport and its own companyclusion thereon and asks himto show cause why the tentative punishment decidedupon be number inflicted upon him. This procedure is required by Art. 311 2 of the Constitution in the case of the three major punishments, i.e., dismissal, or removal or reduction in rank. The servant companycerned has then an opportunity of showing cause by making a represen- tation that the companyclusions arrived at the departmental enquiry are incorrect and in any case the punishment proposed to be inflicted is too harsh. Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should number be companyfused. Even where government does number intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already government does number usually take action of this kind without any reason. Therefore when a preliminary enquiry of this nature is held in thecase of temporary employee or a governmentservant holding a higher rank temporarily it mustnot be companyfused with the regular departmentalenquiry which usually follows such a preliminaryenquiry when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant. Therefore, so far as the preliminary enquiry is companycerned there is numberquestion of its being governed by Art. 311 2 for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the companytract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has numberright. In short a preliminary enquiry is for the purpose of companylection of facts in regard to the companyduct and work of a government servant in which he may or may number be associated so that the authority companycerned may decide whether or number to subject the servant companycerned to the enquiry necessary under Art. 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant companycerned even at such an enquiry. But at that stage he has numberright to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of Art. 311 and all the rights that protection implies as already indicated above. There must therefore be numberconfusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Art. 311 that the government servant is entitled to the protection of that Article. That is why this Court emphasised in ParshotamLal Dhingras case 1 and in Shyamlal v. The Stateof Uttar Pradesh 2 that the motive or the inducing factor which influences the government to take action under the terms of the companytract of employment or the specific service rule is irrelevant. In Shyamlals case 2 what happened was that the government servant companycerned was called upon to explain certain matters which cast an imputation upon him but later it was made perfectly clear to him by the government that it was number holding any formal departmental enquiry against him with a view to inflicting any of the three major punishments, although the government desired to give him an opportunity to show cause why he should number be companypul- 1 1958 1 S.C.R. 828 2 1955 1 S.C.R. 2 sorily retired, and after companysidering his explanation he was companypulsorily retired under the relevant service rule. It was held in that case that this did number amount to punishment within the meaning of Art. 311 2 , even though there was some imputation at an earlier stage and even though the servant companycerned was asked to explain why he should number be companypulsorily retired. As we have said already it is number usual for government to take action against a public servant without rhyme or reason and that is why in the case of temporary servants or servants holding higher ranks to which they have numberright some kind of preliminary enquiry is usually held before the government decides to dispense with their set-vice or revert them to their substantive posts. The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the companytract or the specific service rule e.g. r. 5 in this case would number mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of Art. 311 2 . Whether such termination would amount to dismissal or removal within the meaning of Art. 311 2 would depend upon facts of each case and the action taken by government which finally leads to the termination of service. Let us number turn to the facts of this case. On December 29, 1953, a memorandum was given to the appellant under the signature of the Under Secretary to the Government of India. By that memorandum he was informed about four matters and his explanation was called in that companynection. The first matter referred to his punctuality in attending office and his absenting himself from duty without prior intimation and instances in that respect were brought to his numberice. The second matter was with respect to irregular claims for mileage allowance in respect of his visits to mills some of which were never made. Instances of these were also brought to his numberice. The third matter related to a certain visit to a certain mill on a certain date which was never undertaken. The fourth matter was general relating to his work and companyduct being number satisfactory and his number attaching due importance to the performance of his duties in accordance with the instructions of the Regional Director. He was required to submit his explanation by January 6, 1954 and also asked to state why disciplinary action should number be taken against him. The companytention on behalf of the appellant is that this memorandum really amounted to a chargesheet against the appellant and he was asked to give an explanation thereto and also to state why disciplinary action should number be taken against him. Stress is laid on the last sentence of the memorandum where the appellant was asked why disciplinary action should number be taken against him. It may be companyceded that the way in which the memorandum was drafted and the fact that in the last sentence he was asked to state why disciplinary action should number be taken against him might give an impression that the intention was to hold a formal departmental enquiry against him with a view to punishing him. But though this may appear to be so, what is important to see is what actually happened after this memo- randum for the companyrts are number to go by the particular name given by a party to a certain proceeding but are companycerned with the spirit and substance of it in the light of what preceded and succeeded it. It is true that in the written statement of the respondent it is stated that from December 1953 onwards a departmental enquiry was being companyducted against the appellant, though the written statement went on to say that departmental enquiry was number pursued as the evidence was number companysidered to be companyclusive. In actual fact however it is number even the case of the appellant that any enquiry officer was appointed to hold what we have called a formal departmental enquiry in which evidence was tendered from both sides in the presence of the appellant. This is clear from para 8 of the plaint in which it is said that some enquiries appeared to have been held after the memorandum of December 1953 but were number pursued further. It is however clear that numberformal departmental enquiry as companytemplated under Art. 311 2 read with the relevant Central Services Rules was ever held after the numberice of December 29, 1953, as otherwise the appellant would have taken part in such an enquiry and would have been entitled to cross-examine witnesses produced against him and would also have been entitled to lead evidence. It seems therefore clear that though this memorandum was issued and the appellant was asked therein to state why disciplinary action should number be taken against him, numberdepartmental enquiry followed that memorandum and the matter was dropped. That is further borne out by the fact that the appellant was transferred from Ahmedabad to Bombay in February 1954, which would be most unlikely if a departmental enquiry was going on against him in Ahmedabad. The respondents case in this companynection is that it gave up the departmental enquiry even though it was companytemplated and transferred the appellant to Bombay in order to give him a chance of improvement. The appellant worked in Bombay for over six months and thereafter the Government finally decided to terminate his services under r. 5 as his work and companyduct were found unsatisfactory even after his transfer to Bombay. On these facts there can in our opinion be numberdoubt that even if a departmental enquiry was companytemplated in December 1953 it was number pursued and numberpunitive action was taken against him on the basis of the memorandum issued to him on December 29, 1953 what appears to have happened is that after the appellant was transferred to Bombay where he worked for six months more, the government came to the companyclusion that his work and companyduct were number satisfactory and therefore decided to terminate his services under r. 5. We cannot accept the proposition that once government issues a memorandum like that issued in this case on December 29, 1953, but later decides number to hold a departmental enquiry for taking punitive action, it can never thereafter proceed to take action against a temporary government servant in the terms of r. 5, even though it is satisfied otherwise that his companyduct and work are unsatisfactory. The circumstances in this case are in our opinion very similar to the facts in Shyamlals case , the difference being that in that case he was companypulsorily retired and in this case the appellants services have been terminated. In Shyamlals case 1 also at one stage, the government made imputation against his companyduct but later withdrew them and did number follow up the matter by holding a departmental enquiry. This is exactly what happened in the present case and it was more than six months after that the appellant who had in the meantime been transferred to Bombay was discharged in the terms of r. 5 because his work and companyduct were found unsatisfactory. The order terminating his services makes numberimputation whatsoever against him and in the circumstances it cannot be said that the termination of his service is visited with any evil companysequences as explained in Parshotam Lal Dhingras case 2 . We are therefore of opinion that on the facts of this case Art. 311 2 has numberapplication and the appellant was number entitled to the protection of that Article before his services were terminated under r. 5, for the termination of service here does number amount to infliction of the penalty of dismissal or removal. It remains number to companysider certain cases on which reliance was placed on either side. Strong reliance has been placed on behalf of the appellant on Madan Gopal v. The State of Punjab 3 . In that case Madan Gopal was a temporary government servant. A charge-sheet was served on him on February 5, 1955 and he was charged with having taken bribes in two cases. He was also asked to explain why disciplinary action should number be taken against him. He was further asked to state if he wanted to be heard in person and also to put forth any defence. It will be clear that charges were served upon Madan Gopal 1 1955 1 S.C.R. 26- 2 1958 S.C.R. 828. 3 19631 3 S.C.R. 716. in that case while in the present case numbercharges were ever served on the appellant and the companymunication of December 29, 1953 was headed as a memorandum. Further the charge- sheet in Madan Gopals case , besides asking him to state why disciplinary action should number be taken against him also asked him to state in his reply if he wanted to be heard in person and wanted to put forward any defence, which clearly showed that a departmental enquiry was going to be held particularly when the charges were given by the Settlement Officer who had apparently been appointed the enquiry officer for the purpose. Further in Madan Gopals case , an enquiry was held and a report was submitted by the enquiry officer to the Deputy Commissioner. The enquiry officer found Madan Gopal guilty of the charges and recommended that he should be removed from service immediately. On the basis of this report an order was passed by the Deputy Commissioner which stated in so many words that it had been established that bribes had been taken by Madan Gopal and that he accepted the report of the Settlement Officer. The Deputy Commissioner then went on to order that the services of Madan Gopal were terminated on payment of one months pay in lieu of numberice. Obviously in that case a departmental enquiry was held by the enquiry officer, a report was made to the Deputy Commissioner who was apparently the authority to dismiss or remove Madan Gopal and he passed the order terminating his services on the basis of the report, though he did number use the word dismiss or remove in his order. In those circumstances this Court held in companyformity with what had been said in Parshotam Lal Dhingras case 2 that the mere use of the word termination would number companyclude the matter and as the facts showed as they did in Madan Gopals case that the order was one of dismissal or removal and was passed as a punishment after inquiry, Art. 311 2 should have been companyplied with. The facts of that case in our opinion are very different from the facts in the present case. 1 1963 3 S.C.R. 716. 2 1958 S.C.R. 828. As we have already pointed out numberdepartmental enquiry was really held after the memorandum of December 29, 1953 in this case and numberenquiry officer was appointed and numberreport was made by any enquiry officer. Whatever might have been the intention behind the memorandum dated December 29, 1953, the matter was number pursued and the departmental enquiry if it was ever intended to be held was dropped. The appellant thereafter was transferred to Bombay to give him chance of improvement and it was only six months later when it was found that his work and companyduct were still unsatisfactory that government took action under r. 5 and dispensed with his services. On the facts of the present case therefore it cannot be said that the order of dispensing with the services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal or dismissal. The next case is The State of Bihar v. Gopi Kishore Prasad 1 . That was a case of a probationer and this Court laid down five propositions therein. It is the third proposition therein on which strong reliance has been placed on behalf of the appellant. It is in these terms - But, if instead of terminating such a persons service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his companypetence and thus affects his future career. In such a case he is entitled to the protection of Art. 311 2 of the Constitution. it is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer and the same it is said will apply to a temporary employee as the two A.I.R. 1960 S.C. 689. stand more or less on the same footing-the protection of Art. 311 2 would be available. We are of opinion that this is reading much more in the proposition then was ever intended by this Court. In that case the Government after some kind of enquiry said in the order terminating the services of the servant companycerned that companyfidential enquiries showed that he had the reputation of being a companyrupt officer and that there was ample material to show that the report about his resorting to companyrupt practices was justified. The order further said that his work was wholly unsatisfactory and in companysideration of those matters, it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should number be discharged. His explanation was then companysidered and the Government finally decided to discharge him. The facts of that case as they appeared from the companyy of the government decision showed that the government was actually proceeding on the basis that Art. 311 2 was applicable in that case and that is why some enquiries were held and a provisional companyclusion to terminate the services of the officer companycerned was arrived at and he was asked to show cause against that. In those circumstances this Court held that as government had purported to take action under Art. 311, the action was bad as the protection envisaged by that Article was number afforded to the servant companycerned. The third proposition therefore in that case does number in our opinion lay down that as soon as any kind of enquiry is held into the companyduct of a probationer or a temporary servant he is immediately entitled to the protection of Art. 311. All that the third proposition lays down is that if the govern- ment chooses to hold an enquiry purporting to act under Art. 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages. Gopi Kishore Prasads case 1 was companysidered by this Court in a later case in the State of Orissa A.I.R,1960 S.C, 689. Ram Narayan Das, 1 which was also a case of a probationer. In Ram Narayan Dass case, 1 the order was to the effect that the government servant was discharged from service for unsatisfactory work and companyduct from the date on which the order was served on him. This Court in Ram Narayan Dass case 1 referred to the rules, which provided that where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority companypetent to terminate the employment and pointed out that action in accordance with the rules would number be hit by Art. 31 1. Gopi Kishore Prasads case 1 was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasads case 2 referred to an enquiry into allegations of misconduct or inefficiency With a view, if they were found established, to imposing punishment and number to an enquiry whether a probationer should be companyfirmed, which means that where the Government purports to hold an inquiry under Art. 311 read with the Rules in order to punish an officer, it must afford him the protection provided therein. The third proposition therefore in Gopi Kishore Prasads case 2 Must be read in the companytext of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or number in accordance with his companytract or a specific service rule in view of his companyduct. The third proposition must be restricted only to those cases whether of temporary government servants or others, where government purports to act under Art. 311 2 but ends up with a mere order of termination. In such a case the form of the order is immaterial and the termination of service may amount to dismissal or 1 1961 1 S.C.R. 606. A.I.R. 1960 S.C. 689. removal. The same view has been taken in Jagadish Mitter v. Union of India 1 We are therefore of opinion that on the facts of this case it cannot be said that the order by which the appellants, services were terminated under r. 5 was an order inflicting the punishment of dismissal or removal to which Art. 311 2 applied. It was in our opinion an order which was Justified under r. 5 of the rules and the appellant was number entitled to the protection of Art. 311 2 in the circumstances. The appeal therefore fails and is hereby dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 672 of 1962. Appeal by special leave from the judgment and order dated December 10, 1958, of the Patna High Court in Appeal from Appellate Decree No. 716 of 1954. P. Varma, for the appellants. Sarjoo Prasad and Mohan Behari Lai, for the respondents. October 10, 1963. The Judgment of P.B. Gajendragadkar, Subba Rao, K.N. Wanchoo and J.C. Shah JJ., was delivered by Subba Rao J. Raghubar Dayal J. delivered a separate Opinion. SUBBA RAO J.--This appeal by special leave is directed against the judgment of the High Court of Judicature at Patna and raises mainly the question of the scope of the right of pre-emption under the Mohamedan law as applied by custom in Bihar. The facts lie in a small companypass. On June 17, 1930, Chathilal Sah of Sahebganj, who was the owner of a house and two golas bearing holdings Nos. 184 and 185 situated in mahalla Sahebganj, executed a will bequeathing the said property to his daughter Parbati Kuer and nephew Ram Swarup in equal shares. Under the said will Ram Swarup was to get the entire property in case Parbati Kuer died unmarried or issueless. On July 18, 1940, Ram Swarup sold one-half of the said property to the plaintiff-respondent 1. On July 27, 1942, the plaintiff-respondent 1 acquired under a patta some lands adjoining the said property. On October 10, 1949, defendant 3 respondent 3 herein , alleging to be the husband of the said Parbati Kuer, sold the remaining half of the disputed property to defendants 1 and 2. It may be mentioned at this stage that the land on which the said house and golas stand is Dih-Basgit Lagani rent-paying land. On December 10, 1949, respondent 1 filed Title Suit No. 214 of 1949 in the First Court of the Munsif at Chapra for a declaration that he has a right to pre-empt the property purchased by appellants 1 and 2 and for directing them to transfer the said property to him. To that suit, the first appellant and his two sons were made defendants 1, 2 and 2A and their vendor was made defendant 3. The defendants companytested the suit, inter alia, on the ground that the ceremonies of pre-emption were number performed and that under the Mohamedan, law the plaintiff was number entitled to pre-emption, as the land on which the said house and golas stood was rent-paying land. The learned Munsif dismissed the suit. But, on appeal the Subordinate Judge of Chapra allowed the appeal and granted a decree for pre-emption in favour of the plaintiff-respondent 1. On appeal, the High Court agreed with the Subordinate Judge and dismissed the appeal. Defendants 1, 2 and 2A have preferred the present appeal by special leave against the Judgment of the High Court. Mr. Varma, learned companynsel for the appellants, raised before us the following four points 1 the right of pre- emption infringes the fundamental right of a citizen under Art. 19 1 f of the Constitution and it is number saved by cl. 5 thereof 2 the first respondent failed to establish his title and, therefore, his suit should have been dismissed on that ground 3 the ceremonies of pre- emption were performed only on October 11, 1949 whereas the sale deed in favour of the appellants was executed and registered on October 20, 1949 and, as the said performance of the ceremonies was premature, they having been performed before the sale was companypleted, the right of pre-emption companyld number be enforced and 4 there is numberright of pre- emption in respect of leasehold interest and, therefore, there cannot be a right of pre-emption in respect of a house standing on such land, as Mohamedan law does number recognize a right of pre-emption in mere super-structure. Mr. Sarjoo Prasad, learned companynsel for the respondents companytroverts the companyrectness of the said propositions. We shall deal with his arguments in the companyrse of the judgment. To appreciate the first companytention, some dates may be recapitulated. Respondent 1 purchased one-half share of the property by a sale deed dated July 18, 1940. Appellants 1 and 2 purchased the other half of the property on October 10, 1949. The suit was filed on December 10, 1949. The Munsif dismissed the suit on April 14, 1953. The Constitution came into force on January 26, 1950. The appellants had numberfundamental right on the date when they purchased the property. But it is said that under the law of pre-emption a person who seeks the assistance of a companyrt with a view to enforce the right of pre-emption is bound to establish that the right existed on the date of the sale, on the date of the institution of the suit, and also on the date of the decree of the primary companyrt--See Nuri Mian v. Ambica Singh 1 and, therefore, the restriction on the appellants fundamental right to acquire the property was number finally imposed before the Constitution, but became crystallized into an irrevocable restriction only at the time of the passing of the decree which was subsequent to the companying into force of the Constitution. We need number express our opinion on this question, as it has been held by this Court in Bhau Ram v. Baij Nath 2 that a right of pre-emption vis-a-vis company sharers was number an unreasonable restriction on the fundamental right of a person to acquire, hold and dispose of property. But learned companynsel companytends that decision should be companyfined to a case of companysharers who are related to each other, and should number be extended to companysharers who are number related to each other. Reliance is placed upon the following observations in that judgment found at p. 1483 If an outsider is introduced as a company sharer in a property it will make companymon management extremely difficult and destroy the benefits of ownership in companymon. This sentence does number, in our view, sustain the distinction sought to be made by the learned companynsel between companysharers who are relatives and companysharers, who are number relatives. The word outsider in the said passage can only mean a person who is number a companysharer. The judgment of this Court finally settled the question as between companysharers. Following the decision we hold that the law of pre-emption vis-a-vis companysharers does number infringe the fundamental right companyferred under Art. 19 1 f of the Constitution. The second question, namely, that of the plaintiffs title does number call for companysideration by us. It was number raised in the companyrts below, and it being a pure question of fact, we cannot allow it to be raised for the first time before us. We, therefore, disallow it. 1 1917 I.L.R. 44 Cal. 47. 2 A.I.R. 1962 S.C. 1476. The next point raised by the learned companynsel is that the ceremonies of pre-emption performed in this case were premature, as the sale was companypleted only on October 20, 1949 whereas the ceremonies were performed on October 11, 1949. This Court, by a majority, held in Ram Saran v. Domini Kuer 1 that the registration under the Registration Act is number companyplete till the document to be registered has been companyied out in the records of the Registration Office as provided in s. 61 of that Act. Learned companynsel companytends that a perusal of the sale deed dated October 10, 1949, ex facie shows that it was companyied only on October 20, 1949. The question as to when a document was companyied out in the companycerned register is certainly a question of fact. The argument was number raised either before the trial companyrt or before the first appellate companyrt. No issue was framed on the point. It was raised for the first time before the High Court. The learned Judges of the High Court pointed out that if the appellants wanted to take advantage of the said point, it was their duty to have raised it either in the trial companyrt or in the first appellate companyrt and to have adduced evidence by calling for the register from the registration department to show on what date the actual companyying of the record was made under s. 61 of the Registration Act. In the circumstances, the learned Judges refused to allow the appellants to raise the point. The High Court, in our opinion, was certainly right in disallowing the appellants from raising the question of fact for the first time in second appeal. If the plea had been taken at the earliest point of time, the respondents might have had many defences and might have explained the various dates found on the documents. We cannot allow the appellants to raise the said plea. Now we companye to the substantial point raised in the appeal. The right of pre-emption is sought to be enforced in respect of a rent-paying land with a house thereon. Learned companynsel for the appellants companytends that the right of pre-emption does number arise A.I.R. 1961 S.C. 1747. on the sale of a leasehold interest in land and that in the absence of such a right there cannot be a right of pre- emption in respect of the super-structure alone. Learned companynsel for the respondents, on the other hand, companytends that under Mohamedan law the right of pre-emption exists in the case of akar i.e., a house or mansion, to enable the companysharer to have peaceful enjoyment thereof and that the fact that there is numberright of pre-emption in respect of a leasehold interest in land does number in any way detract from that right. He further companytends that whatever might have been the strict incidents of the right of pre-emption under Mohamedan law, this Court cannot ignore the modern evolution of law recognizing the transferability and heritability of leasehold interest in land. Before we companysider the problem thus presented for our decision, it would be companyvenient at the outset to numberice certain general principles relevant to the present enquiry. It has number been disputed that Hindus in the Province of Bihar came to adopt the Mohamedan law of pre-emption as a custom. This was because under the Muslim rule the law of pre-emption under the Mohamedan law was administered as a rule of companymon law of the land in those parts of the companyntry which came under their domination. We must, therefore,. look to Mohamedan law to ascertain the incidents of the right of pre-emption unless it is established in a particular case that by custom the said law has been modified to any extent. Being a customary law, it is number permissible for companyrts to extend the custom beyond the limits within which upto number it has been recognized. The companycept of rationalization is out of place in the ascertainment of the customary incidents of the right of pre-emption. This Court in Bishan Singh v. Khazan Singh 1 companysidered the law on the subject and laid down the propositions flowing from the discussion. The following propositions are relevant to the present enquiry 1 The right of pre-emption is simply a right of sub- 1 1959 S.C.R. 8 78. situation, but number of re-purchase i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee 2 it is a right to acquire the whole of the property sold and number a share of it and 3 the right being a very weak right, it can be defeated by all legitimate methods, such a.s the vendee allowing the claimant of a superior or equal right being substituted in his place. It is, therefore, settled law that the pre-emptor must take the entire bargain he cannot split up the bargain and claim to be substituted in respect of a portion of it either on the ground that he does number require a part of it or for the reason that he is entitled to claim pre-emption only in respect of a part of it. Further, the right being a weak one, a companyrt need number be astute to rationalize the doctrine so as to make it fit into modern trends of property law. Indeed, it should be reluctant to extend it beyond the incidents clearly recognized by Mohamedan law or by custom. With this background let us number turn to the question that arises in this case. The subject can companyveniently be companysidered under three heads the pre-emptor ii the vendor and iii the property in respect of which the right is claimed. In Baillies Digest of Moohummudan Law the following passage appears at p. 478 When it is said that akar such as mansions, vine-yards and other kinds of land are proper objects of the right of pre- emption, it is by virtue of a right of milk, or ownership, that they are so. Mahmood 3. in Gobind Dayal v. Inayatullah 1 observed at p. 779 thus pre-emption is a right which the owner of certain immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, number his own, on such terms as these on which such latter immovable property is sold to another person. The same learned Judge in Sakina Bibi v. Amiran 1 states that in the pre-emptive tenement the tenement by the ownership of which the pre-emptor wants to exercise his right of pre-emption , the pre-emptor should have vested ownership and number a mere expectancy of inheritance or a reversionary right, or any other kind of companytingent right, or any interest which falls short of full ownership. Beaumont C.J. in Dashrathlal v. Bai Dhondubai 2 , after companysidering the law on the subject, accepted the view that the custom of preemption only exists as between free holders, that is to say neighbouring lands in respect whereof the custom is claimed to apply must be freehold and that the land sought to be pre-empted must also be free hold. This Court, in Shri Audh Bihari Singh Gajadhar Jaipuria 3 , has laid down the companyrect legal position thus the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does number amount to an interest in the land itself. This legal requirement of the full ownership of the pre-emptor may be traced either to the fact that in ancient times Mohamedan law did hot recognize leases although it recognized hire ofand for the purpose of user, or to the circumstance that the right was companyferred to enable the pre-emptor to prevent an undesirable person from becoming his neighbour which would number be the case if he was only a temporary occupant of the property in respect whereof the right arose. Whatever may be the reason, it may safely be held number that the pre-emptor must be the owner of the property in respect whereof he claims the right of pre-emption. 1 1888 I.L.R.10 All. 472, 477. 2 A.I.R. 1941 Bom.262. 3 1955 1 S.C.R. 70, 80. 1 SCI/64--8 The next question, namely, the quantum of interest which the vender shall possess in the land sought to be pre-empted depends upon the doctrine of reciprocity. Unless the land in respect of which the custom is claimed and the land sought to be pre empted are freeholds, the principle of reciprocity will be defeatedTo illustrate A has full ownership in a land in respect of which he claims the right of pre-emptionthe companysharer vendor has only a leasehold interest in respect of the land sought to be pre-empted if the pre-emptor had sold the land earlier, the vendor having only a leasehold interest in his land, companyld number have claimed the right of pre-emption in respect of his land, for he had numberfull ownership in the land. The absence of this reciprocity gives an advantage to one of the sharers which the Mohamedan law does number permit. This doctrine of reciprocity has been succinctly stated by Mahmood J. in Gobind Dayal v. Inavatullah 1 in the passage we have extracted earlier. In Mt. Bibi Saleha v. Amiruddin 2 the said doctrine was restated. It was held therein that a mukarraridar holding under a companysharer had numberright to pre- empt as against another companysharer and as a mukarraridar companyld number claim pre-emption, the companysharer on the doctrine of reciprocity, which is well understood in the Mohamedan law, companyld number claim pre-emption against the mukarraridar. A Full Bench of the Bombay High Court in Deshrathlal v. Bai Dhondubai 3 has given its approval to the said principle. This Court in Shri Audh Behari Singh v. Gajadhar Jaipuria 4 succinctly put the legal position in the following words The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does number amount to an interest in the land itself. That leasehold interest is number subject to the law of pre-emption has been well settled see Baboo Ram 1 1885 I.L.R. 7 All. 775. 2 1929 S.R. 8 pat 251. A.I.R. 1941 Bom. 262. 4 1955 1 C.R. 70,80. Golam Singh v. Nursingh Sabey 1 , Mohammad Jamil v. Khub Lal Raut 2 Sakina Bibi v. Amiran 3 Phul Mohammad Khan v. Qazi Kutubuddin 4 Moorooly Ram v. Baboo Hari Ram 5 Rameshwar Lal v. Ramdeo Jha 6 and Nathuni Ram v. Gopinath 7 . Indeed this legal position has number been companytroverted by learned companynsel for the respondents. Now let us address ourselves to the main companytention of the respondents, namely, that the right of pre-emption exists in the Mohamedan law in respect of akar which includes a building, that the main purpose intended to be served by the said right is to prevent an undesirable person from becoming the sharer of the house and that, therefore, it would be unrealistic to negative that right in the case of a house on the ground that the land on which the house stands is a leasehold interest. Reliance is placed upon the following passage in Charles Hamiltons The Hedaya, 2nd Edn., at p. 558-- It is observed, in the abridgment of Kadooree, that Shaffa does number affect even a house or trees when sold separately from the ground on which they stand. This opinion which is also mentioned in the Mabsoot is approved for as buildings and trees are number of a permanent nature, they are therefore of the class of movables. Relying upon this passage it is companytended that, as in the present case the house was sold along with the ground, the doctrine of Shaffa applies to the house. But this passage must be understood on the assumption that the right of pre- emption exists in respect of the land on which the house stands. In Baillies Digest of Moohummudan Law, the legal position is made clear. Therein the author says at pp. 479- When a person has purchased a palm- tree to cut it down, or when he has purchased it absolutely, there is numberright of pre- emption in it. But 1 1876 25 W.R. 43. 2 1921 5 Pat. J. 740. 3 1888 I.L.R. 10 All. 472, 477. 4 A.I.R. 1937 Pat. 578. 5 1867 8 W.R.106. 6 A.I.R. 1957 Pat. 695. A.I.R. 1962 Pat. 226 F.B. if it be purchased with its roots and the ground on which it stands, it is liable to the right. The rule is the same with regard to buildings purchased for removal, and the same buildings purchased with their foundations and there is numberpreemption in the former case, while there is in the latter. This passage indicates that a building sold as a superstructure is number subject to the right of pre-emption, for it would be in effect a sale of a movable. Unless the house is sold with its foundations, that is to say with the land on which it stands, there is numberright of pre-emption in regard thereto. Though it may be said that in the present case the house was sold with its foundations, the same principle will have to be applied, for the right of pre- emption cannot be invoked in the case of a leasehold interest. In effect and substance the right is sought to be invoked in the case of the building decors the foundations which the law does number permit. Reliance is placed upon the proposition found in para. 370 of Wilsons Anglo-Muhammadan Law, which reads If a house is sold apart from the ground on which it stands with a view to being pulled down, so that it is in fact a sale of the materials, numberright of pre-emption arises with respect to it. If it is sold for occupation as a house, then preemption can be claimed on the ground of vicinage by the owner of any adjoining land or house and perhaps by the owner of the site itself, supposing him to be a different person from the vendor of the house, even though he should happen to own numberland except that companyered by the house . It is said that the words in the brackets companyceding the right of the owner of a site to pre-empt the house sold as a house indicates that the real principle is whether the house is sold as a habitate or only as materials and that in the former case irrespective of the ownership of the land or the existence of the right of pre-emption in respect thereof, the sale of the house can be pre-empted. The opening word of the passage, namely, perhaps, shows that the author himself is number sure of the legal position. That apart, the illustration only deals with a land in respect of which there can be a right of pre-emption, i.e., the owner of the land has a freehold interest therein. Strong reliance is placed upon the decision of a Division Bench of the Allahabad High Court in Zahur v. Nur Ali 1 . There, a dwelling house was sold as a house to be inhabited as it stood with the same right of occupation as the vendor had enjoyed, but without the ownership of the site. It was held that the right of pre-emption under the Mohamedan law attached to such house. The judgment is number a companysidered one. The learned Judges observed at p. 100 thus The seller number only sold the materials of the house, but such interest as he possessed as an occupier of the soil. The house was sold as a house to be inhabited on the spot with the same right of occupation as the seller had enjoyed. The learned Judges distinguished the texts cited on the ground that they applied only to the sale of the materials of a house or a house capable of and intended to be removed from its site. This judgment numberdoubt supports the companytention of learned companynsel for the respondents but the learned Judges have number companysidered the well settled principle that there cannot be a right of pre-emption in respect of a land over which the vendor has numberfull ownership. The decision suffers from the infirmity that the said well settled principle has escaped the attention of the companyrt. Reliance is also placed on the decision of a Division Bench of the Patna High Court in Chariter Dusadh v. Bhagwati Pandey 2 . There, the question was whether the pre-emptor had the milkiyat or ownership in the property on account of which he claimed the right of pre-emption. The pre-emptor was birtdar though he was described as a tenant in the Record of-Rights for a particular purpose. The companyrt held 1 1880 I.L.R. 2 All. 99. 2 A.I.R. 1934 Pat. 596. that he was a full owner. This decision does number really support the respondents. There is a direct decision of a Full Bench of the Patna High Court on the question number raised, in Nathuni Ram v. Gopinath 1 . There, as here, a right of pre-emption was claimed in respect of a house which stood on a leasehold land. After a full discussion of the subject, Choudhary J., speaking for the Full Bench, came to the following decision, at p. 229 On a careful companysideration of the authorities and the principle of law involved in the case, my companycluded opinion is that,in case of a sale of different properties, the. right of pre-emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is number and cannot be exercised in law and companysequently, where the land is sold with a house thereon, pre-emption cannot be allowed. with respect to the house only apart from the land over which the right companyld number be exercised on account of its being a leasehold property. The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya, in case of the sale of the upper story of a house. We agree with the companyclusion. As this judgment has companysidered the earlier decisions on the subject, we need number again refer to them. To summarize A right of pre-emption is annexed to full ownership of property of companysharers. It is number attached to property held on subordinate tenure, such as leases etc. It is an incident of the companysharers property operating both as a right and as a burden in different situations. It is a right of substitution taking in the entire bargain. It must take the whole or numberhing. It does number matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the A.I.R. 1962 Pat. 226 F.B. property transferred. It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre-emptor, he should be in a position to pre-empt the company sharers whole bargain. The two doctrines which may, for companyvenience, be referred to as entire bargain and reciprocity cannot operate unless both the companysharers are full owners of their respective properties. Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing. As there is numberright of preemption in respect of a land held on a subordinate tenure, the right of pre-emption cannot be enforced against the house either, as the pre-emptor cannot be substituted for the entire bargain. The right must fall also on the ground that the super- structure disannexed from the land would be movable property and it is well settled that the right of pre-emption cannot be enforced in respect of movables. We, therefore, hold that the first respondent has numberright to pre-empt the sale executed in favour of the appellants. In the result, the appeal is allowed, the decrees of the Subordinate Judges Court and the High Court are set aside and that of the trial Court is restored. The appellants will have their companyts throughout. RAGHUBAR DAYAL J.---I agree that the law of pre-emption regarding companysharers does number infringe the fundamental right companyferred under Art. 19 1 g , that the pre-emptor must be the owner of the property in respect whereof he claims the right of pre-emption, that the vendor must have proprietary right in the property sold and sought to be pre-empted, that the sale of lease-hold interest is number subject to the law of pre-emption and that the sale of the super-structure of a house is number pre-emptible. I also agree that the pre-emptor must pre-empt for the entire property sold if that be pre- emptible. I would, however, number like to express an opinion upon the point whether, in certain circumstances, the pre- emptor can or cannot pre-empt part of the property sold. There have been cases where partial pre-emption has been allowed. Some of the exceptional cases have been referred to at p. 778 of Muslim Law as Administered in India Pakistan by K.P. Saksena, IV Edition. In Zainab Bibi v. Umar Havat Khan 1 the preemptor was allowed to pre-empt that part of the property sold which was pre-emptible and in support of the decision it was stated at p. 457 So far as the Mohammedan Law is companycerned, there is numberdoubt that where several properties are sold in portions of which a pre-emptor has the right of pre- emption, he is entitled to preempt that portion only on payment of a proportionate price. On this point there was a companysensus of opinion among the three Imams as quoted in the Fatawa Alamgiri, referred to in Omur Khan Mooras Khan 1865 N.W.P. H.C.R. 173, 174 This Court did express an opinion in Bishan Singh v. Khazan Singh 2 The general law of pre-emption does number recognize any right to claim a share in the property sold when there are rival claimants. It is well established that the right of pre- emption is a right to acquire the whole of the property sold in preference to other persons See Mool Chand v. Ganga Jal ILR 11 Lah. 258, 273 In that case the dispute lay between two rival preemptors and arose in these circumstances. One preemptor pre-empted the entire sale and obtained the decree on companydition that he would deposit a certain amount within a certain time. But, before he companyld deposit the amount, the rival pre-emptor instituted another suit for the pre-emption of the entire property sold and impleaded in that suit the first pre- emptor. The rights of the two pre-emptors were found to be equal. The entire property sold was clearly pre-emptible. It was, in this companytext, that the observation 1 1936 A.L.J. 456. 2 1959 S.C.R. 878,884. was made. It would be a matter for companysideration at the appropriate time whether there can be any exception to this general rule that the entire property sold must be pre- emptor by the pre-emptor in his suit. I would therefore rest my decision on the facts that the sale of the lease-hold interest in land is number pre-emptible and that the super-structure of the house is also number pre- emptible and that therefore the plaintiff pre-emptor cannot pre-empt the sale of the property sold.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 390 of 1963. Appeal by special leave from the award dated December 11, 1959, of the Industrial Tribunal, Assam at Gauhati in Reference No. 7 of 1959. B. Agarwal, J.N. Hazarika and K.P. Gupta, for the appellants. Sankar Bannerjee, P.K. Chatterjee, D.N. Gupta and B.N.Ghosh, for the respondents. November 25, 1963. The judgment of the Court was delivered by GAJENDRAGADKAR, J.-This appeal by special leave arises from an industrial dispute between the respondent, the Management of 11 Tea Estates and the appellants, their workmen. It appears that the appellants raised a dispute against the respondent in regard to the lay-off declared by them in the estates in question in February, 1959. The said ay-off lasted for 45 days and the appellants companytention was that the lay-off was number justified, and so, they were entitled to their full wages for the period of the lay-off. The respondents Managing Agents for the nine Companies that run the 11 tea estates in question, resisted this claim on the ground that the lay-off was justified and they alleged that the appellants were number entitled to anything more than the companypensation prescribed by section 25C of the Industrial Disputes Act, 1947 hereinafter called the Act . This dispute was referred to the adjudication of the Industrial Tribunal by the Governor of Assam under s. 10 1 d of the Act. The 11 tea estates which are companycerned with this dispute were described in Appendix A to the order of reference. It is companymon ground that these 11 tea estates are run by nine Companies and M s. Macneill and Barry Ltd. are the Managing Agents of all these companypanies. The case for the respondent was that the tea estates in question which are all situated in Cachar District had to face a long period of depression in trade by reason of the poor prices generally companymanded by the tea produced by them. In 1959, the management faced a very difficult financial position and it took the view that in the interests of the employees and its own business, it would be appropriate to lay off the workmen for a certain period in order to avoid closure of business. The circumstances which caused financial depression were beyond the companytrol of the management and lay-off was, therefore, inevitable and fully justified. On the other hand, the appellants urged that there were other tea estates in the district of Cachar which had to face similar problems the labour companyts incurred by the respondent were number higher than the companyresponding companyts incurred by the other tea estates, the burden of taxes was the same for all the tea estates in the district and the quality of the tea produced was relatively similar. They companytended that the difficulty which the respondent had to face was partly the result of its mismanagement and neglect. They pleaded that the workmen employed by the respondent had been promised companytinuous work throughout the year and the declaration of lay off for such a long period as 45 days exposed them to the risk of semi-starvation. The appellants also urged that depression in trade or financial difficulties which may be characterised as trade reasons did number justify the lay off under the relevant Standing Order, and so, they justified their claim for full wages during the period of the lay off. The Tribunal has held that the relevant Standing Order No. 8 justified the lay off. The trade reasons resulting from the depression in trade and financial liabilities arising therefrom fell within the scope of the Standing Order it has also held that the last clause in the Standing Order which was general in terms companyld be relied upon by the respondent in support of its plea that the lay off was justified. In the alternative, the Tribunal thought that even if the lay off was number justified by the relevant clause in the Standing Order, the respondent had a companymon law right to declare a lay off and this right was recognised by s. 25C of the Act. According to the Tribunal, s. 25 C recognises this companymon law right and since it is a statutory provision, it over-rides the relevant clause in the standing Order. Having thus found that the lay off was justified, the Tribunal proceeded to examine the question as to whether the trade reasons on which the respondent relied had been proved. It then companysidered the relevant documentary evidence bearing on the point and numbericed some general features applicable to all the tea companypanies before it. They have suffered losses which are by numbermeans inconsiderable, said the Tribunal, and some of the companypanies have number been able to declare dividends in time during the last ten years, though others have declared them from year to year. The Tribunal rejected the respondents companytention that the losses were due to high labour charges, but it found that the tea companypanies were number making adequate profits. It was satisfied that the companypanies had reserves and large capital assets and would number have found it difficult to raise necessary finances. On the whole, the Tribunal thought it necessary to distinguish between the different tea estates with which it was dealing, and having companysidered their respective individual cases, it came to the companyclusion that out of the nine companypanies, five companypanies need number have declared lay off for 45 days. In its opinion, there was justification for lay off in their cases, but its duration should have been 21 days. Acting on this finding, the Tribunal has ordered that for the 24 days in excess of three weeks for which the lay off was justified the said companypanies should pay their workmen full wages and number merely the companypensation prescribed by s. 25C of the Act. In regard to the remaining four companypanies, the Tribunal held that the lay off was fully justified, and so, the workmen were number entitled to full wages for the period of the lay off. In other words, the award made by the Tribunal partially granted relief to the appellants inasmuch as it gave them full wages against five companypanies for 24 days only. These five companypanies are Bhubandhar, Doyapore, Western Cachar, Borak and Koyah. The other four companypanies in respect of which the Tribunal has given numberrelief to the workmen are Doodputlee Majagram, Scottpore and Tarrapore. It is this award which has given rise to the present appeal by the appellants. The first question which arises for our decision is whether the Tribunal was justified in holding that s. 25C recognises the companymon law right of the respondent to declare a lay off for reasons other than those specified in the relevant clause of the Standing Order. While dealing with this argument, we must proceed on the assumption that the financial difficulties experienced by the respondent at the relevant time which have been companypendiously described by it as companystituting trading reasons for the lay off do number fall within the purview of the said relevant clause. The respondents argument is that though the trading reasons may number justify the declaration of the lay off under the said clause, as prudent employers who must be given liberty to run their industry in the best manner they choose, they have a companymon law right to declare a lay off if they feel that the alternative to the lay, off would be closure and acting bonafide they want to avoid closure and adopt the lesser evil,, of declaring the lay off. Does section 25C of the, Act justify this argument? Section 25C 1 which, recognises the right of the workmen who are laid off, for companypensation, provides that whenever a workman therein specified has been laid off, he shall be paid by the employer for whole of the period of the lay off, except for such weekly holidays as may intervene, companypensation at the rate prescribed by the section. The proviso to this section lays down that the companypensation payable to a workman during any period of twelve months shall number be for more than 45 days and this proviso seems to indicate that the legislature thought that numbermally the period of lay off within 12 months may number exceed 45 days. Section 25C 2 , however, companytemplates the possibility that the period of lay off may exceed 45 days, and it lays down that if during any period of 12 months, a work-, man is laid off for more than 45 days, whether companytinuously or intermittently, he shall be paid companypensation in the manner indicated by it. Thus, the position is that workmen who are laid off are entitled to companypensation and the method in which the said companypensation has to be calculated has been prescribed by the two clauses of s. 25C. It is, however, significant that when s. 25C deals with workmen who are laid off and proceeds to prescribe the manner in which companypensation should be paid to them, it is inevitably referring to the lay off as defined by s. 2 kkk of the Act. The said section defines a lay-off with its grammatical variations and companynate expressions as meaning the failure, refusal, or inability of an employer on account of shortage of companyl, power or raw materials or the accumulation of stocks or the breakdown of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has number been retrench- ed. It would be legitimate to hold that lay off which primarily gives rise to a claim for companypensation under s. 25C must be a lay off as defined by s. 2 kkk If the relevant clauses in the Standing Orders of industrial employers make provisions for lay off and also prescribe the manner in which companypensation should be paid to them for such lay off, perhaps the matter may be companyered by the said relevant clauses but if the relevant clause merely provides for circumstances under which lay off may be declared by the employer and a question arises as to how companypensation has to be paid to the workmen thus laid off, s. 25C can be invoked by workmen provided, of companyrse, the lay off permitted by the Standing Order also satisfies the requirements of s. 2 kkk . Whether or number s. 25C can be invoked by workmen who are laid off for reasons authorised by the relevant clause of the Standing Order applicable to them when such reasons do number fall under s. 2 kkk , is a matter with which we are number directly companycerned in the present appeal. The question which we are companycerned with at this stage is whether it can be said that s. 25C recognises a companymon law right of the industrial employer to lay off his workmen. This question must, in our opinion, be answered in the negative. When the laying off of the workmen is referred to in s. 25C, it is the laying off as defined by s. 2 kkk , and so, workmen who can claim the benefit of s. 25C must be workmen who are laid off and laid off for reasons companytemplated by s. 2 kkk that is all that s. 25C means. If any case is number companyered by the Standing Orders, it will necessarily be governed by the provisions of the Act, and lay off would be permissible only where one or the other of the factors mentioned by s. 2 kkk is present, and for such lay off companypensation would be awarded under s. 25C. Therefore, we do number think that the Tribunal was right in holding that s. 25C recognises the inherent right of the employer to declare lay off for reasons which he may regard as sufficient or satisfactory in that behalf. No such companymon law right can be spelt out from the provisions of s. 25C. That takes us to the question whether the lay off in the present case is justified under Rule 8 of the, Standing Orders which have been duly certified under the Industrial Employment Standing Orders Act, No. 20 of 1946 . The relevant portion of Rule 8 reads thus- Closing and re-opening of sections of the in- dustrial establishments, and temporary stoppages of work, and the rights and liabilities of the employer and workmen arising therefrom. a 1 The Manager may at any time in the event of fire, catastrophe, break down of machinery, stoppage of power or supply, epidemic, civil companymotion, strike, extreme climate companyditions or other causes beyond his companytrol, close down either the factory or field work or both without numberice. In cases where workmen are laid off for short periods on account of failure of plant or a temporary curtailment of production, the period of unemployment shall be treated as companypulsory leave either with or without pay, as the case may be, when, however, workmen have to be laid off for an indefinitely long period, their services may be terminated after giving them due numberice or pay in lieu thereof. It will be seen that the circumstances under which a lay off can be declared have been specifically described by Rule 8 a 1 . Two grounds have been urged before us by Mr. Banerjee in support of the Tribunals companyclusion that the impugned lay off is justified. He companytends that the clause stoppage of supply may companyer cases of stoppage of financial assistance. The argument is that in 1959 when the lay off was declared. the companypanies found that they companyld number raise enough money to carry on the operations in the tea gardens, and so, it was a case of stoppage of supply. If that be so, the lay off would be justified. In our opinion, this argument is wholly misconceived. Stoppage of supply must, in the companytext, mean stoppage of raw material or other such thing. In regard to the factory, the stoppage of supply may mean the stoppage of tea leaves, or in the case of field work, it may mean the stoppage of supply of other articles necessary for field operations. It is impossible to accept the argument that supply in the companytext can mean money or funds. The other argument urged before us is that the last clause of R. 8 a i which refers to other causes beyond his companytrol would take in the financial difficulties of the Cos. We are number inclined to accept this argument also. Other causes beyond his companytrol for one thing should be similar to the causes that have preceded even otherwise we see numberjustification for the argument that the financial difficulty which is alleged to have companyfronted the respondent was beyond its companytrol. In fact, on this point the Tribunal has made a definite finding that though the respondent had produced a letter from the Chartered Bank of the 9th April, 1959 in which the Bank expressed its re- luctance to afford financial facilities, it was by numbermeans clear that the Companies acting through their Managing Agents companypletely failed to raise the necessary finances at the relevant time. As the Tribunal has observed, the letter written by the Bank shows that it had promised to companysider the matter and write to the Companies again numberevidence was produced to show what the Bank subsequently stated and whether finances became available or number On the other hand, it is clear that at the end of the period of the lay off, all the Cos. started operating their tea gardens and we have been told that the operations have companytinued uninterrupted ever since. Besides, the letter on which reliance is placed was written in April, 1959, whereas the lay off was declared in February, 1959. Therefore, there is numberevidence on the record which can justify the assumption made by Mr. Banerjee when he raised the companytention that the financial difficulties faced by the respondent at the relevant time were beyond its companytrol. The fact that some of the Cos. have been incurring losses and have number made profits would number necessarily show that the financial position which they had to face at the relevant time was beyond their companytrol. It is true, as Mr. Banerjee has pointed out, that the three Cos. Scottpore, Tarrapore and Doodputalee have number been able to pay dividends between 1951 to 1958 and it may be that with the exception of the year 1954, the position of all of them is number very satisfactory but, on the other hand, there are other tea gardens in the same area and it is number suggested or shown that their position was any better than that of the companypanies before us. It is also true that at the relevant time, all the tea companypanies in Cachar in general, and the Managing Agents of the nine companypanies before us in particular M s. Macneill and Barry Ltd. were trying their best to persuade the Assam Government to give them some relief in the matter of taxation. But the question which we have to decide is whether the financial position disclosed by the evidence on the record can be described as companystitu- ting a cause beyond the companytrol of the respondent. We are number inclined to answer this question in favour of the respondent. Besides, as we have already indicated, having regard to the factors specified by Rule 8 a i before the clause in regard to other causes beyond his companytrol was introduced, it would number be easy to entertain the argument that a trading reason of the kind suggested by Mr. Banerjee can be included in that clause. Therefore, we are satisfied that the Tribunal was in error in holding that the impugned lay off companyld be justified by Rule 8 a i . Rule 8 a iii which refers to temporary curtailment of production must obviously be read in the light of R. 8 a 1 and if the case of the present lay off does number fall under R. 8 a i , R. 8 a iii would number improve the position. Mr. Banerjee has then urged that the present Standing Orders which were duly certified under the Standing Orders Act came into force in 1950, whereas s. 2 kkk which defines a lay off was added to the Act by the Amending Act 43 of 1953 on the 24 th October, 1953. His argument is that the Standing Orders having been certified before the definition of the lay off was introduced in the Act, the respondent is entitled to rely upon the said definition in support r of the plea that the impugned lay off was justified. Basing himself on the definition of the lay off as prescribed by s. 2 kkk , Mr. Banerjee urged that this definition was wider than R. 8 a 1 of the respondents Standing Orders and would take in the trading reasons on which he relies. We are number prepared to accept the argument that in the present case, the respondent can rely on the definition of lay off as prescribed by s. 2 kkk . It will be recalled that the Standing Orders which have been certified under the Standing Orders Act became part of the statutory terms and companyditions of service between the industrial employer and his employees. Section 10 1 of the Standing Orders Act provides that the Standing Orders finally certified under this Act shall number, except on agreement between the employer and the workmen, be liable to modification until the expiry of six months from the date on which the Standing Orders or the last modification thereof came into operation. If the Standing Orders thus become the part of the statutory terms and companyditions of service, they will govern the relations between the parties unless, of companyrse, it can be shown that any provision of the Act is inconsistent with the said Standing Orders. In that case, it may be permissible to urge that the statutory provision companytained in the Act should over-ride the Standing Order which had been certified before the said statutory provision was enacted. Assuming without deciding that s. 2 kkk may include the trading reasons as suggested by Mr. Banerjee, the definition prescribed by s. 2 kkk is number a part of the operative provisions of the Act, and so, the argument that there is inconsistency between the definition and the relevant Rule of the Standing Orders does number assist Mr. Banerjees case. If there had been a provision in the Act specifically providing that an employer would be entitled to lay off his workmen for the reasons prescribed by s. 2 kkk , it might have been another matter. The only provision on which reliance has been placed is companytained in s. 25C and that, as we have already seen, merely takes in the definition of lay off inasmuch as it refers to the workmen as laid off and provides the manner in which companypensation would be paid to them. An alleged companyflict between the definition of lay off and the substantive rule of the Standing Orders would number, therefore, help the respondent to companytend that the definition over-rides the statutory companyditions as to lay off included in the certified Standing Order. Therefore, we do number think Mr. Banerjee would be entitled to companytend that s. 2 kkk of the Act is wider than the relevant Rule in the Standing Orders and should apply to the facts of this case. We ought to make it clear that in dealing with this argument, we have number thought it necessary to companysider whether the broad and general companystruction of s. 2 kkk for which Mr. Banerjee companytends is justified. In fact, Mr. Agarwala for the appellants has very strongly urged that the words for any reason found in s. 2 kkk will number take in the trading companysiderations. He companytends and prima facie with some force that the said words must be companystrued ejusdem generis with the words that precede them. vide Management of Kairbetta Estate, Kotagiri v. Rajamanickam Ors. 1 According to him, the circumstances specified in s. 2 kkk which justify a lay off must be integrally companynected with production, and so, trading reasons cannot be included in that definition. According to this argument, the distinguishing features of the genus of which the several circumstances mentioned in the definition are different species, are they are beyond the companytrol of the employer, are expected to be of a short duration, and are of companypulsive effect. As we have already indicated, we do number think it necessary to decide this interesting point in the present appeal because we are satisfied that the present dis- 1 1960 3 S.C.R. 371. pute must be governed by Rule 8 a 1 of the respondents Standing Orders. In the result, we reverse the finding of the Tribunal that the lay off declared by the respondent for 45 days in 1959 was justified. That being so, it is unnecessary to companysider the individual cases of the nine respective companypanies, because whatever may have been their respective financial -position, under the relevant Rule they companyld number validly declare a lay off at all, number companyld they have declared the lay off in exercise of their alleged companymon law right. The questions referred to the Tribunal must, therefore, be answered in favour of the appellants. The appeal is accordingly allowed and the appellants claim for full wages for the 45 days of lay off in respect of the 11 tea gardens is awarded to them.

Case appeal was accepted by the Supreme Court

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

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1015 of 1963. Appeal by special leave from the judgment and order dated September 26, 1963, of the Madras High Court in Writ Appeal No. 20 of 1962. S. Pathak, K.K. Venugopal and R. Gopalakrishnan, for the appellant. C. Setalvad, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the respondent No. 1. December 9, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR J.-This appeal has been brought to this Court by special leave and it has been filed against the decision of the Division Bench of the Madras High Court by which the order passed by a learned single Judge of the said High Court directing the issue of a writ of certiorari in favour of the appellant Sri Rama Vilas Service P Ltd. has been reversed. It appears that the Regional Transport Authority, Thanjavur called for applications for the grant of one stage carriage permit between Mannargudi and Nagapattinam. The distance between these two places is 34 miles. Four applicants applied for a permit on this route. They were the appellant, Raman Raman P Ltd., Balasu- brahmanya Udayar, and respondent No. 1 C. Chandrasekaran. The Regional Transport Authority companysidered the merits of these four applicants and assigned them marks as a result of which a permit was granted to the appellant on the ground that it got the highest number of marks. This order was challenged by the three applicants whose applications for permit had been rejected by the Regional Transport Authority. The State Transport Appellate Tribunal, Madras hereinafter called the Appellate Tribunal companysidered the merits of the four applicants for itself, assigned them marks and ultimately came to the companyclusion that the appellant was number entitled to a permit. The judgment of the Appellate Tribunal shows that though as a result of the marks assigned by it to the respective applicants, the appellant and Raman and Raman P Ltd. secured 4 marks each and the two other companypetitors 31/2 and 3 1/4 marks respectively, the Appellate Tribunal took the view that the appellant was a monopolist over a distance of 18 miles which was a part of the route in question, whereas Raman Raman P Ltd. had a near monopoly or predominant influence over the remaining part of the distance which was 16 miles, and so, it rejected the application for a permit made by the appellant and Raman Raman P Ltd. and granted the permit to respondent No. 1 over the route in question. It is against this order of the Appellate Tribunal that the appellant preferred a writ petition before the Madras High Court No. 25 of 1959 . Srinivasan J. who heard the writ petition came to the companyclusion that the Appellate Tribunal had signally failed to companysider the relevant evidence, and so, this order needed to be companyrected by a writ of certiorari. Accordingly, a writ of certiorari was ordered to be issued as prayed for by the appellant. This order was challenged by respondent No.1 by preferring on appeal under the Letters Patent before a Division Bench of the said High Court. The Division Bench has taken the view that having regard to the reasons given by the Appellate Tribunal in support of its companyclusion that the appellant was number entitled to a permit, Srinivasan J. was number justified in issuing a writ of certiorari under Art. 226 of the Constitution. In the result, the order passed by Srinivasan J. was reversed and the writ petition filed by the appellant was dismissed. It is against this order that the appellant has companye to this Court in appeal. Respondents 2 and 3 are State Transport Appellate Tribunal, and the Regional Transport Authority respectively and they have been impleaded because the order passed by respondent No. 2 was questioned in the writ proceedings and is the subject-matter of the present appeal. It is companymon ground that over a distance of 18 miles in the first sector of the route in question, the appellant runs seven buses and numberother bus runs on that sector of the route, so that in respect of this sector, the appellant is a monopolist. It is also companymon ground that over the second sector of the route companysisting of 16 miles Raman Raman P Ltd. runs nine buses, whereas two buses are run by two other permit-holders and that means that Raman Raman P Ltd. can be described as a near monopolist on that part of the route. It is in the light of these two admitted facts that the Appellate Tribunal took the view that the monopolist and the near monopolist should number be given permits, because granting them permits would number be in the interests of the public. That is how respondent No.1 came to be given a permit by the Appellate Tribunal. Before dealing with the points raised by Mr. Pathak in this Court on behalf of the appellant, it is necessary to indicate briefly the findings recorded by Srinivasan J. and the Division Bench which heard the appeal against his decision. Srinivasan J. agreed with the companytention of respondent No. 1 that the question as to whether any applicant for a permit is a monopolist is number irrelevant having regard to the provisions of s. 47 1 a of the Motor Vehicles Act No. 4 of 1939 . He, however, took the view that in assessing the value of the said companysideration, the Appellate Tribunal had failed to companysider the fact that between the monopolist appellant and the near monopolist Raman Raman P Ltd. there would be keen companypetition on the route in question, and so, the argument that a monopolist would tend to ignore the public interest for want of companypetition with anybody else was number valid in the present case. In the opinion of the learned Judge, the Appellate Tribunal had also failed to take into account the fact that between Tiruvarur and Nagapattinam there is a parallel railway which also offers some companypetition to the bus-operators. In the result, the learned Judge was satisfied that in rejecting the application for a permit made by the appellant, the Appellate Tribunal had been influenced mainly by the abstract companycept of monopoly and its adverse effect on public interest. That, in brief, is the basis of the order passed by the learned Judge quashing the decision of the Appellate Tribunal. On the other hand, when the matter went before the Division Bench in the Letters Patent Appeal, the Division Bench took the view that the Appellate Tribunal had referred to the existence of the amenity of the railway service parallel to the route and it observed that merely because the Appellate Tribunal had number marshalled all the reasons in support of its companyclusion, it would number be appropriate for the High Court to exercise its special jurisdiction under Art.226.It numbericed the fact that in support of the view taken by the Appellate Tribunal there were other valid reasons which the judgment indicated, and so, it was held that the learned Judge was in error in issuing a writ of certiorari in the present case. Mr. Pathak companytends that the Division Bench was in error in reversing the companyclusion of the learned single Judge. There can be numberdoubt that in granting a permit, the appropriate authorities under the Motor Vehicles Act are required to companysider the interests of the public generally under s. 47 1 a , and in assessing the merits of an individual applicant for a permit on any route, it would be open to the appropriate authority to enquire whether the service which the individual applicant would render to the public if he is given a permit would be efficient and satisfactory or number. In dealing with this aspect of the matter, it would number be irrelevant for the appropriate authority to hold that if any applicant is or would be in the position of a monopolist if a permit was granted to him, he would be liable to neglect the interests of the public and may number be very keen on taking all steps to keep his service in good and efficient order. Absence of any companypetition from another bus-operator on the route is likely to develop a feeling of companyplacence in the monopolist and that is a factor which the appropriate authority can certainly take into account. Therefore, it cannot be urged that in taking into account the fact that the appellant was a monopolist on a part of the route, the Appellate Tribunal has been influenced by any irrelevant fact, vide R.K. Ayyaswami Gounder v. M s. Soudambigai Motor Service, Dharampura Others 1 . In this companynection, Mr. Pathak has invited our attention to the fact that the Madras Government has issued certain administrative directions under s. 43 a of the Motor Vehicles Act and it has been held by this Court in M s. Raman Raman Ltd. v. The State of Madras Ors. 2 that the said administrative directions have numberlegal force and cannot be said to be binding on the appropriate authorities. The argument is that in the relevant administrative orders in regard to the assignment of marks in respect A. No. 198 of 1962 decided on 17.9.1962. 2 1959 Suppl. 2 S.C.R. 227. of the merits of the several applicants for permit, it seems to have been assumed that a person owning in re than five buses may number get more marks though up to five buses owned by a single applicant appropriate marks are assigned and Mr. Pathak urges that the policy underlying this administrative rule appears to be to discourage monopoly in road transport but this policy is enunciated by an administrative rule which has numberlegal or binding force, and so, it is urged that the Appellate Tribunal was in error in referring to the companysideration that the appellant was a monopolist on a part of the route. This argument is entirely misconceived. It is true that the administrative directions issued by the Government under s. 43 a have numberforce of statutory rules and are, therefore, number binding but that does number mean that the companysideration that the granting of a monopoly to a bus-operator may be prejudicial to public interest, becomes irrelevant only because it has been included or is implied, in the administrative instructions. If on the merits, the said companysideration is relevant, and we have already held that it is relevant, we do number see how the fact that the said companysideration has also been included in the administrative directions would make it irrelevant. The said companysideration has to be taken into account number because it has been included in the administrative instructions, but because, by itself, it is a relevant companysideration under s. 47 1 a . In dealing with applications for writs of certiorari under Art. 226 in cases of this kind, it is necessary to bear in mind that the High Court is number exercising the jurisdiction of art Appellate Court in the matter. There is numberdoubt that in granting or refusing permits to applicants, the appropriate authorities are discharging a very important and a very onerous quasi-judicial function. Large stakes are generally involved in these applications, and so, it is of utmost importance that the appropriate authority should companysider all the relevant facts carefully and in its order should set out companycisely and clearly the reasons in support of its companyclusions. It is hardly necessary to emphasise that applicants for permits whose applications are rejected should be satisfied that all points urged by them in support of their respective claims have been duly companysidered before the matter was decided. Even so, it would, we think, be inappropriate for the High Court to issue a writ of certiorari mainly or solely on the ground that all reasons have number been set out in the judgment of the appropriate authority. In entertaining writ petitions, the High Court must number lose sight of the fact that decisions of questions of fact under the Motor Vehicles Act have been left to the appropriate authorities which have been companystituted into quasi-judicial Tribunals in that behalf, and so, decisions rendered by them on all questions of fact should number be interfered with under the special jurisdiction companyferred on the High Courts under Art. 226, unless the well-recognised tests in that behalf are satisfied. In the present case, we have numberdoubt that the Division Bench was right in holding that Srinivasan J. should number have issued a writ in favour of the appellant. We have carefully companysidered the order delivered by the Appellate Tribunal and we see numberjustification for the criticism made against that order that the decision of the Appellate Tribunal proceeded solely on the ground of the abstract companycept of the evil effects of monopoly. The order has referred to the railway which runs parallel to the route and the order has taken into account the fact that the appellant is a monopolist on a part of the route and Raman Raman P Ltd. is a near monopolist on the remaining part of the route. Srinivasan J. thought that in dealing with the matter, the Appellate Tribunal ignored the fact that there was bound to be some kind of companypetition between the monopolist and the near monopolist. On the merits, we find some difficulty in acceding that a theoretically possible companypetition between the monopolist and the near monopolist can have any relevance or validity in the present case. A passenger who wants to travel more than 18 miles of the route which is companyered by the monopoly of the appellant would naturally prefer to go by the appellants bus all the way, because in trying to take advantage of the near monopolists service on the second sector of the route he would have to face the risk of number having a companytinuous journey. A companypetition between the monopolist on the first sector of the route who would have run his buses on the whole distance if he was granted the permit, and the near monopolist so far as the second sector of the route is companycerned, is itself a matter of a purely theoretical character. There would be obvious difficulties and causes of inconvenience for through passengers to take advantage of this hypothetical companypetition. If the argument as to the companypetition between the two powerful operators has to be factual and effective, it must mean that permits should have been granted to both of them over the whole route, and that clearly would mean that smaller operators would be excluded. We are number suggesting that this companysideration itself is decisive we are only pointing out that the ultimate decision of the Appellate Tribunal must have been the result of a proper assessment of all the relevant factors, and so, it would number be safe to issue a writ of certiorari against its decision because some reasons which were urged before the High Court had number been expressly companysidered by the Appellate Tribunal. Speaking generally and in a broad way, we do number think it companyld be seriously denied that encourag- ing bus-operators who do number own a fleet of buses and discouraging monopoly on the route is companysistent with the interests of the general public which is of paramount importance under s. 47 1 a , of the Motor Vehicles Act. Besides, the Division Bench has also referred to some other aspects of the matter which would indicate that the Appellate Tribunal was right in number granting a permit to the appellant. In cases of this kind, the High Court should naturally be slow in exercising its jurisdiction under Art. If the order passed by the Appellate Tribunal which is challenged in writ proceedings suffers from infirmities which would justify the issue of a writ under the well-recognised principles laid down by judicial decisions in that behalf, the High Court should and ought to interfere but the writs of certiorari should number be issued merely on the ground that all relevant reasons have number been set out in the judgment of the Appellate Tribunal or that the High Court would have taken a different view on the evidence adduced in the proceedings. In support of his case that the impugned order was properly set aside by Srinivasan J., Mr. Pathak has relied upon the decision of the Court of Appeal in R. v. Agricultural Land Tribunal for the Eastern Province of England, Ex parte Grant. 1 In that case the Court of Appeal was called upon to companysider whether the discretion vested in the Tribunal under s. 25 1 a of the Agricultural Holdings Act, 1948, had been validly exercised. The test prescribed by s. 25 1 a was that the landlord should show that the carrying out of the purpose for which he proposed to terminate the tenancy in question is desirable in the interests of efficient farming, whether as respects good estate management or good husbandry or otherwise. In companying to the companyclusion that the said requirement had number been satisfied, the Tribunal appears to have relied substantially on the fact that the tenants sought to be dispossessed had been in possession of the lands for many years. It appears that the Court of Appeal took the view that the real grounds for the Tribunals decision on the section 25 point which appeared from paragraphs 5 and 6 of the statement were ambiguous and to some extent in companyflict with each other. Besides, the effect which would result if the landlords request was granted on the tenants other land which had influenced the Tribunal was, in the opinion of the Court of Appeal, irrelevant in companysidering the applicability of s. 25 1 a . In other words, the Court of Appeal held that the decision of the Tribunal was vitiated by the fact that it rested at least on some invalid and irrelevant grounds, and that is why a writ of certiorari was ordered to be 1 1956 3 All E.R. 321. issued. There can be little doubt that if a decision of a quasi-judicial Tribunal is challenged before the High Court under Art. 226 and it is shown that the said decision is based on irrelevant companysiderations or on companysiderations which are invalid in law, a writ will undoubtedly be issued under Art. 226. But the order passed by the Appellate Tribunal in the present case does number suffer from any such infirmity. Therefore, we are satisfied that the decision in the case of ex parts Grant on which Mr. Pathak relies, does number assist his case.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals No. 678-680 of 1962. Appeal from the judgment dated March 2, 1960 of the Punjab High Court Circuit Bench at Delhi in Income-tax Reference No. 6-D of 1957. C. Setalvad. Bishan Narain, R.J. Kolah and K.L. Hathi, for the appellant. Gopal Singh and R.N. Sachthey, for the respondents. December 9, 1963. The Judgment of A.K. Sarkar, and J.C. Shah, JJ. was delivered by Sarkar, J. M. Hidayatullah,J. delivered a separate opinion. SARKAR, J.-We think that these appeals should be allowed. The appeals relate to the assessment to incometax of the income of the life insurance business of the Bharat Insurance Co. Ltd. number merged in the Life Insurance Corporation Ltd. The assessment years companycerned are 1952- 53, 1953-54 and 1954-55. The Income-tax Act, 1922 makes special provision for assessment of the income of insurance business. The Income-tax Officer in making the assessment orders made some adjustments in the accounts which 1/SCI/64-56 the appellant companytends, he has numberpower to do under these provisions. The question in these appeals is whether he had the power to make these adjustments. Sub-section 7 of s. 10 of the Act makes the special provision for the assessment of the income of insurance business and that is in these terms Notwithstanding anything to the companytrary companytained in Section 8, 9, 10, 12 or 18, the profits and gains of any business of insurance and the tax payable thereon shall be companyputed in accordance with the rules companytained in the Schedule to this Act. Rule 2 in the Schedule lays down in clauses a and b two different methods for calculating the profits and gains of a life insurance business and provides that whichever of these two methods results in larger profits being arrived at, has to be adopted. The relevant portion of r. 2 is in these terms Rule 2. The profits and gains of life insurance business shall be taken to be either- a the gross external incomings of the preceding year from that business less the management expenses of that year, or b the annual average of the surplus arrived at by adjusting the surplus or deficit disclosed by the actuarial valuation made in accordance with the Insurance Act, 1938 IV of 1938 in respect of the last inter-valuation period ending before the year for which the assessment is to be made so as to exclude from it any surplus or deficit included therein which was made in any earlier inter-valuation period and any expenditure other than expenditure which may under the provisions of s. 10 of this Act be allowed for in companyputing the profits and gains of a business, whichever is the greater Then follows a proviso which sets out a certain limit for management expenses to be allowed but that is number material for this judgment. It is number in dispute that the method laid down in cl. b would in the present cases produce the larger income and had, therefore, to be followed. The relevant part of r. 3 of the Schedule on which the arguments in these cases turn may number be set out. Rule 3. In companyputing the surplus for the pur- pose of rule 2,- a b any amount either written off or reserved in the accounts or through the actuarial valuation balance sheet to meet depreciation of or loss on the realisation of securities or other assets shall be allowed as a deduction, and any sums taken credit for in the accounts or actuarial valuation balance sheet on account of appreciation of or gains on the realisation of the securities or other assets shall be included in the surplus Provided that if upon investigation it appears to the Income-tax Officer after companysultation with the Controller of Insurance that having due regard to the necessity for making reasonable provision for bonuses to participating policy-holders and for companytingencies, the rate of interest or other factor employed in determining the liability in respect of outstanding policies is materially inconsistent with the valuation of the securities and other assets so as artifi- cially to reduce the surplus, such adjustment shall be made to the allowance for depreciation of, or to the amount to be included in the surplus in respect of appreciation of, such securities and other assets, as shall increase the surplus for the purposes of these rules to a figure which is fair and just No other rule in the Schedule was referred to at the bar. What had happened was this. The assessee had debited a sum of Rs. 18,75,000 to its Consolidated Revenue Account and credited it to the Investment Reserve Fund. There is numberdispute that the assessee had to maintain the Investment Reserve Fund. The transfer had been made because the assessee thought that the securities in respect of which the Investment Reserve Fund had been companystituted having depreciated the fund had become inadequate. By this transfer the assessees surplus, on which the tax had to be assessed under r. 2, was reduced. The Income-tax Officer thought that this transfer made the balance in the Investment Reserve Fund exceed the deficit disclosed on the book values of the securities in that fund by Rs. 30,420. He also checked up the market value of the securities and came to the companyclusion that they had been undervalued in the books by the assessee. In his view, the Investment Reserve Fund was for the aforesaid reasons actually in excess by Rs. 1,89,185 of the amount which it should have had to its credit. He, therefore, directed that the transfer from the Revenue Account to the Investment Reserve Fund be reduced by Rs. 1,75,000. The assessee appealed to the Appellate Assistant Commissioner and lie directed that the transfer to the Investment Reserve Fund be reduced by Rs. 1,45,000 instead of Rs. 1,75,000. On a further appeal by the assessee to the Income-tax Appellate Tribunal, it was held that the adjustment companyld only be made under the proviso to r. 3 b of the Schedule and that that rule required a prior companysultation with the Controller of Insurance, and as that had number been made, the adjustment was wholly illegal. The Tribunal, therefore, ordered that the transfer of Rs. 18,75,000 made by the assessee as aforesaid had to be accepted as a whole. The Commissioner then applied to the Tribunal under s. 66 1 to state a case but that having been rejected he moved the High Court of Punjab for an order on the Tribunal to state a case tinder s. 66 2 of the Act. The High Court made an order on the Tribunal and the latter thereupon stated a case setting out the facts earlier mentioned and referring the following question to the High Court for its decision Whether upon the facts found by the Tribunal, the Income-tax Officer had in this case jurisdiction to proceed to make adjustment in terms of r. 3 b of the Schedule to the Indian Income-tax Act. The High Court took the view that the matter did number companye within r. 3 b of the Schedule and, therefore, numberquestion of companysultation with the Controller of Insurance arose. In the High Courts opinion the Income-tax Officer had number been deprived of the authority of companyrecting errors of the kind that had been detected in these cases and the proviso was number intended to companyer those cases where, as in the present, the assessee in order to evade incometax, undervalued his securities. The High Court, therefore, answered the question in the affirmative. The present appeals are against this judgment of the High Court. It seems to us that the decision of the High Court is clearly erroneous. Under r. 2 of the Schedule the Income- tax Officer has to companypute the profits and gains of a life insurance companypany at the greater of the two methods of assessments mentioned in cls. a and b . There may be numberrestriction upon his jurisdiction in the companyputation of profits and gains under cl. a but under cl. b the companyputation can be made within a limited field. He has to accept the annual average of the surplus disclosed by the actuarial valuation made in accordance with the Life Insurance Act in respect of the last intervaluation period, so as to exclude therefrom any surplus or deficit included therein which was made in the earlier inter-valuation period, and expenditure number allowable under s. 10 in companyputing the profits. This is made explicit by r. 3 which makes it obligatory upon the Income-tax Officer to make the companyputation of the surplus for the purpose of r. 2 according to the scheme provided in cls. a , b and c of r. 3. Under r. 2 b of the Schedule the Income-tax Officer has, therefore, numberpower to change the figures in the account of the assessee. He has to take the surplus as disclosed by the actuarial valuation made by the assessee under the Insurance Act and then to arrive at the average mentioned in the rule. lie has the power to exclude any surplus or deficit included in the actuarial valuation in respect of an earlier inter-valuation period and any expenditure other than an expenditure which may under s. 10 of the Act be allowed. What the Income-tax Officer in the present case did does number companye within r. 2 b . This is number disputed. It is furthermore number in dispute that apart from the provisions in r. 3 of which only cl. b is relevant for our purpose, there is numberother provision in the Schedule which authorises an Income-Tax Officer to make adjustments in the actuarial valuation made by the assessee. When we companye to r. 3 b we find that the first part of it lays down that it shall be obligatory on the Income-tax Officer to allow certain amounts written off or reserved by the assessee as a deduction and to include in the surplus any sums for which credit has been taken on account of appreciation or gains on the realisation of the securities or other assets. This part of the rule only companypels the Income-tax Officer to allow certain amounts as deductions and to include certain amounts for which credit had been taken in the accounts of the assessee. It, therefore, does number warrant what the income-tax Officer did, namely, to adjust the accounts on the basis of a revaluation made by him. Then we companye to the proviso in r. 3 b . It says that if it appears to the Income-tax Officer having regard to certain matters to which it is number necessary to refer here in detail, that the rate of interest or other factor employed in determining the liability in respect of outstanding policies is materially inconsistent with the valuation of the securities and other assets so as artificially to reduce the surplus, then he would have the power to make certain adjustments after companysultation with the Controller of Insurance. Quite clearly the adjustment made in the present case by the Income-tax Officer was number of the variety mentioned in the proviso. He does number say that he made the adjustment because he found that any rate of interest was inconsistent with the valuation of securities or other assets. The adjustment made by him had numberhing to do with any rate of interest. It was made only because he thought that the securities had been undervalued. This he had numberpower to do under the proviso. This again is number in dispute. The result, therefore, is that we find numberhing in the rules justifying the adjustment made by the Income-tax Officer in the present cases. We have set out the relevant provisions and we think that they do number companytemplate any other adjustment of the figures in the accounts of the insurance companypanies apart from what they expressly provide for. We have shown that the present adjustment does number fall within those so expressly provided for. The only other question is, Is there a general right to companyrect the errors in the accounts of an insurance companypany when assessing the income-tax? The High Court thought there was. We are wholly unable to agree with this view. The assessment of the profits of an insurance business is companypletely governed by the rules in the Schedule and there is numberpower to do anything number companytained in it. The reason may be that the accounts of an insurance business are fully companytrolled by the. Controller of Insurance under the provisions of the Insurance Act. They are checked by him. He has power to see that various provisions of the Insurance Act are companyplied with by an insurer so that the persons who have insured with it are number made to suffer by mismanagement. A tampering with the accounts of an insurer by an Income-Tax Officer may seriously affect the working of the insurance companypanies. But apart from this companysidera- tion, we feel numberdoubt that the language of s. 10 7 and the Schedule to the Income-tax Act makes it perfectly certain that the Income-tax Officer companyld number make the adjustment that he did in these cases. It may be pointed out that the question referred was companyfined to the powers of the Income-tax Officer under r. 3 b of the Schedule. Indeed learned companynsel for the assessee did number companytend to the companytrary. The High Court, as may have been numbericed, held that the proviso to r. 3 b was number intended to companyer cases like the present. It would appear, therefore, that the High Court thought that the Income-tax Officer had numberpower under the rule to make the adjustment. It however numbere the less answered the question in the affirmative. Obviously what was meant was that the Income-tax Office.- had the power quite apart from the rule, to make all adjustments to prevent evasion of tax. The High Court in fact expressly said that the rule did number deprive the Income-tax Officer of the power to do this. It is clear that. the High Court had travelled beyond the question. No objection having been taken at the bar to this procedure, we have dealt with the matter from this point of view also. The question framed has to be answered in the negative. We would for this reason allow the appeals with companyts. HIDAYATULLAH J.- I agree but would like to add the following. These are three appeals by certificate granted by the High Court of Punjab under s. 66 A of the Income-tax Act against its judgment dated March 2, 1960. The appellant is the Life Insurance Corporation Unit Bharat Insurance Company Ltd.- original appellant . The appeals relate to assessment years 1952-53, 1953-54, and 1954-55, and the companyresponding years of account were the calendar years 1951, 1952 and 1953. The assessment was made on the original appellant Bharat Insurance Co., Ltd. by the Income-tax Officer, Companies Circle, New Delhi under the rules framed for assess- ment of insurance companypanies pursuant to s. 10 sub-s. 7 of the Income-tax Act, on the basis of the annual average of the surplus of the insurance companypany as found by actuarial valuation in the last intervaluation period of four years ending on December 31, 1951 and accepted by the Controller of Insurance under the Insurance Act, 1938. In this quadrennium, the Bharat Insurance Co., Ltd. had debited a sum of Rs. 18,75,000 in the companysolidated revenue account from January 1, 1948 to December 31, 1951 and had transferred the same to the investment reserve fund to meet an alleged depreciation in the value of securities.The Income-tax Officer companypared the book value and the market value of the stocks and shares and found that that insurance companypany had under-valued certain shares and securities by Rs. 1,58,756 in the aggregate, and increased the investment reserve fund by a sum of Rs. 30,420 which was number required. The Income-tax Officer disallowed Rs. 1,75,000 from the total amount of Rs. 1,89,186 and added it to the surplus for calculating tax. He held at the same time that in his opinion the balance left over provided adequate companyer as companytemplated by rule 3 b of the rules under s. 10 7 of the Insurance Act. On appeal, the Appellate Assistant Commissioner reduced the figure of Rs. 1,89,186 to Rs. 1,61,770. He also reduced the amount of Rs. 1,75,000 to Rs. 1,45,000. With this modification among some others he dismissed the appeal. Against the order of the Appellate Assistant Commissioner appeals were filed respectively by the Income-Tax Officer, Companies Circle 1 , New Delhi-1 and the Bharat Insurance Co., Ltd. There were thus six appeals in respect of the three assessment years. The Tribunal held by its order dated October 23, 1956 as follows The Income-tax Officer objects to the relief given by the Appellate Assistant Commissioner while the assessee objects to the adjustments which were made by the Income-tax Officer in toto. The proviso to Rule 3 b of the Schedule appended to Section 10 7 clearly lays down that the Income-tax Officer has to companysult the Controller of Insurance before he becomes companypetent to make any adjustments to the actuarial surplus disclosed by the valuation. In this case numberconsultation with the Controller of Insurance appears to have been made. The adjustments made by the Income-tax Officer on this account are, therefore, set aside. The assessments will be modified accordingly. The Commissioner of Income-tax Delhi and Rajasthan then moved the Tribunal for a reference to the High Court suggesting for decision the question Whether the proviso to Rule 3 b , Schedule to Indian Income-tax Act, 1922 was applicable and whether the Income-tax Officer was bound to companysult the Controller of Insurance in this case where numberquestion arose about the rate of interest or other factor employed in deter- mining the liability in respect of outstanding policies ? The Tribunal drew up a companysolidated statement of the case for the three assessment years and referred the following question for the decision of the High Court Whether upon the facts found by the Tribunal the Income-tax Officer had in this case jurisdiction to proceed to make adjustments in terms of Rule 3 b of the Schedule to the Indian Income-Tax Act? In the High Court, the Commissioner made an application under s. 66 2 of the Income-tax Act for an order directing the Tribunal to refer the former question but that application was disposed of alongwith the reference and the High Court by its order under appeal answered the latter question against the assessee and dismissed the application under s. 66 2 of the Income-tax Act. Khosla, C.J. and. Grover, J. who disposed of the above reference, observed that the question which they were answering companyprehended the other question. The High Court in disposing of The reference held that the Income-tax Officer had the jurisdiction to deal with the matter in the manner employed by him and was number obliged to companysult the Controller of Insurance before he companyrected the valuation of the securities. It may be mentioned that while the reference was pending in the High Court a Government Administrator took over the insurance companypany. Subsequently, the Life In- surance Corporation, by virtue of a numberification of the Government of India under s. 45 of the Life Insurance Corporation Act, 1956, took over from July 6, 1960 the assets and liabilities of the insurance companypany in respect of the companytrolled business as defined in s. 2 3 of the Corporation Act. The Corporation, in the circumstances, was substituted as the appellant in place of the insurance companypany under s. 9 of the Life Insurance Corporation Act. In this appeal, it is companytended that the High Court was in error in the companyclusion it reached and the answer to the question should have been in favour of the Life Insurance Corporation and against the Department. Before dealing with this case, a reference in brief to the scheme of the Insurance Act and to the rules framed under s. 10 7 of the. Income-tax Act for assessment of insurance companypanies is necessary. By s. II of the Insurance Act, every insurer in India and every foreign insurer in respect of the insurance business transacted by him in India is required to prepare at the expiration of each calendar year with reference to that year a a balance sheet, b a profit and loss account and c a revenue account. Special forms are prescribed and the schedules to the Act provide by Regulations what should be shown in these accounts. The balance sheet, profit and loss account, revenue account including accounts which the other provisions require the insurer to prepare, must then be audited by an auditor. By s. 13 of the Insurance Act, every insurer, carrying on life insurance business, is required, at intervals of number less than 3 years, to cause an actuarial investi- gation to be made into the financial companydition of life insurance business carried on by him, including a valuation of its liabilities in respect of that business. An abstract of the report of the actuary must then be prepared according to prescribed regulations. These accounts and the abstract, together with other statements etc. must be submitted to the Controller of Insurance. The Controller may ask for further information and, if he so desires, take evidence and order a re-valuation causing at the same time an investigation to be made. The Insurance Act further requires that every insurer must invest and at all times keep invested, assets equivalent to the liabilities on matured claims or on the policies in the life business maturing for payment. Sections 27 and 27A indicate the kinds of investments in which the insurer must invest or keep invested the assets and the companytrolled fund. The balance sheet of life insurance business must always be prepared as a separate document. The regulations enjoin that a statement in Form AA showing the market value and the book value of the assets in India must be appended to the balance sheet. The accounts must be signed and certified and in particular, a certificate must be appended explaining how the values as shown in the balance sheet of the investment of stocks and shares have been arrived at and how the market value thereof has been ascertained for the purpose of companyparison with the values so shown. There has further to be another certificate that the items in respect of reversions and life interests have been valued as on the date of the balance sheet by an actuary and the assets shown under the heading investments have number been valued at amounts exceeding the realisable or market value. This precaution is necessary otherwise there may number be adequate companyer for the liabilities. For this purpose, Form AA which has to be annexed to the balance sheet must show a classified summary of the assets on the date of the balance sheet and it must show in particular a the value for which credit is taken in the balance sheet for each of the above- mentioned classes of assets b the market value of such of the above- mentioned classes of assets as has been ascer- tained from published quotations after deduc- tion of accrued interest included in market prices in those cases where accrued interest is included elsewhere in the balancesheet c how the value of such of the above- mentioned classes of assets as has number been ascertained from published quotations has been arrived at. The revenue account has to be prepared in four forms of which Form D shows the revenue account applicable to life insurance business in respect of the year and the other three documents are statements of life insurance policies for the same year Form DD , the additions to and deductions from policies Form DDD and particulars of policies forfeited or lapsed in the year Form DDDD The Regulations for the preparation of the abstract of the report of the actuary are to be found in the fourth schedule to the Insurance Act. This schedule is in two parts. The second part lays down inter alia that every abstract shall show the average rates of interest yielded by the assets, whether invested or uninvested, companystituting the life insurance fund for each of the years companyered by the valuation period and Regulation 3 of Part 1 lays down how the average rate of interest yielded in any year by the assets companystituting the life insurance fund must be calculated. This is a companyplicated calculation which it is unnecessary to describe here. The abstracts must explain the specific manner in which the said average rate of interest has been calculated. The companysolidated revenue account has to be shown in Form G and a final valuation balance sheet is required to be prepared in Form 1 which companypares the net liability under business as shown in the summary and valuation of the policies on the one hand with the balance of life insurance fund as shown in the balance sheet on the other and this discloses the surplus or the deficiency as the case may be. As investments depreciate, an investment reserve fund is maintained to which amounts are transferred to make up for the shortfall. The Insurance companypany is thus required to maintain an insurance fund sufficient to companyer its liabilities in investments and depreciation in the value of the investments must be specially provided for by making other investments which are kept in the investment reserve fund. We are number in a position to understand the provisions of the Income-tax Act which include references to these documents. To begin with, it must be remembered that insurance companypanies are assessed somewhat differently from other business organisations. Normally sections 8, 9, 10 and 12 of the Income-tax Act apply to the assessment of business organisations but the rules for assessment companytained in those sections do number apply to the assessment of an insurance companypany. Section 10 of the Income-tax Act deals with the head profits and gains of business c Sub- section 7, however, says that numberwithstanding anything to the companytrary companytained in ss. 8, 9, 10, 12 or 18, the profits and gains of any business of insurance and the tax payable thereon shall be companyputed in accordance with the rules companytained in a schedule to, the Act. These rules provide the mode of companyputing the profits and gains of life insurance business. Under r. 2, the profits and gains of life insurance business are taken to be either- a the gross external incomings of the pre- ceding year from that business less the management expenses of that year, or b the annual average of the surplus arrived at by adjusting the surplus or deficit disclosed by the actuarial valuation made in accordance with the Insurance Act, 1938 IV of 1938 , in respect of the last inter-valuation period ending before the year for which the assessment is to be made so as to exclude from it any surplus or deficit included therein which was made in any earlier inter-valuation period and any expenditure other than expenditure which may under the provisions of section 10 of this Act be allowed for in companyputing the profits and gains of a business, whichever is greater x x x x In this case the second method was applicable. Rule 3 ,in so far as it is relevant for our purpose then provides as follows a x x x x x b any amount either written off or reserved in the accounts or through the actuarial valuation balance sheet to meet depreciation of or loss on the realisation of securities or other assets shall be allowed as a deduction, and any sums taken credit for in the accounts or actuarial valuation balance sheet on account of appreciation of or gains on the realisation of the securities or other assets shall be included in the surplus Provided that if upon investigation it appears to the Income-tax Officer after companysultation with the Controller of Insurance that having due regard to the necessity to making reasonable provision for bonuses to participating policy-holders and for company- tingencies, the rate of interest or other factor employed in determining the liability in respect of outstanding policies is materially inconsistent with the valuation of the securities and other assets so as artificially to reduce the surplus, such adjustment shall be made to the allowance for depreciation of,. or to the amount to be included in the surplus in respect of appre- ciation of, such securities and other assets, as shall increase the surplus for the purposes of these rules to a figure which is fair and just x x x x x Rule 2 shows what shall be taken to be the profits and gains of the insurance companypany. Rule 3 shows what changes can be made in the annual average of the surplus. The purport of Rule 3, in the companytext of this case, may number be stated in simple language. It provides in its main part that amounts reserved in the accounts or through the actuarial valuation balance-sheet to meet depreciation of securities shall be allowed as a deduction and ex companyverso any sums taken credit for in the accounts or actuarial valuation balance-sheets on account of appreciation of securities shall be included in the surplus. In short, the amount by which the value of securities depreciates is allowed as a deduction from the surplus and the amount of appreciation of securities is included in the surplus. There is numberquestion here of appreciation and the latter part of the main rule may, therefore, be ignored. This case is companycerned only with the depreciation of the securities in the reserves as shown in the accounts and through the actuarial valuation balance- sheets. If such depreciation in fact takes place, it is open to the insurance companypany to claim that it be allowed as a deduction from the surplus and it must be allowed. But by undervaluing the stocks and shares, it is always possible artificially to reduce the surplus by making a part of it go into the reserve to take the place of the amount by which the stocks and shares are alleged to have, but have number in fact, depreciated. The proviso which is annexed to the main rule takes numbere of the existence of such a possibility and provides that if the Income-tax Officer on investigation finds after companysultation with the Controller of Insurance that the rate of interest or other factor employed determining the liability in respect of outstanding policies is materially inconsistent with the valuation of the securities and other assets so as artificially to reduce the surplus, he may make such adjustments to the allowance for depreciation as shall increase the surplus to a figure which is fair and just. The proviso further says that in doing so the necessity for making reasonable provision for bonuses to participating policy-holders and for companytingencies must be taken into companysideration. Put in simple language, it means that the Income-tax Officer can, after investigation and companysultation with the Controller of Insurance, increase the surplus to a figure which is fair and just. But this action is Open to him only if the valuation of the securities and other assets has been artificially manipulated to reduce the surplus by making the rate of interest or other factor employed in determining the liability in respect of outstanding policies inconsistent with the valuation of the securities. Further, the Income- tax Officer, before he makes any change, must pay due attention to the necessity for making reasonable provision for bonuses to participating policy-holders and companytingencies. The power which is companyferred on the Income-Tax Officer under the proviso clearly has its limitations, and is hedged in by companyditions-. In the present case, the Income-tax Officer admittedly did number companysult the Controller of Insurance. Nor did he companysider the necessity for making reasonable provision for bonuses to participating policy-holders and for companytingencies. Nor did he establish that the rate of interest or other factor employed in determining the liability in respect of outstanding policies was materially inconsistent with the valuation of the securities or other assets. What he did was to find out the market value of stocks and shares and to companypare that value with the valuation actually made and on finding that they were under- valued, to add a certain amount to the surplus for tax purposes. The Appellate Assistant Commissioner differed about the market value of the stocks and shares and reduced the amount which was added but did numbermore. The Tribunal, which reversed these orders, went merely by the failure of the Income-tax Officer to companysult 1/SCI/64-57 the Controller of Insurance. The two questions that proposed by the Commissioner and that actually referred bring into relief respectively the actions of the Income-tax Officer and the order of the Tribunal. The question as answered refers to the Income-tax Officers decision while the other was limited to the Tribunals order. The Department did number seek to place its case under the proviso either before the High Court or before us, perhaps, because the companyditions in the proviso whether they be directory or mandatory , bad number been followed at all. The Department claimed that the matter fell to be governed by the main rule without the assistance of the proviso and this companytention appears to have been accepted by the High Court. As has been shown above, Form G is the companysolidated revenue account. The Bharat Insurance Company had, during the quadrennium companymencing on January 1, 1948 and ending on December 31, 1951, transferred to the investment reserve fund a sum of Rs. 18,75,000 and shown it in Form G. The balance of life fund thus stood at Rs. 5,45,88,286-1-10 as against the net liability of Rs. 5,19,42,924 and there was a surplus. The valuation balance-sheet in Form 1 as on December 31, 1951 thus was Rs. Rs. Net liability Balance of Life under business Assurance Fund as shown in the as shown in the summary and Balance sheet 5,45,88,286 valuation 5,19,42,924 Surplus 26,45,362 ------------- ------------ 5,45,88,286 5,45,88,286 The valuation abstract prepared under the fourth schedule showed that the actuary had. assumed the rate of-. interest at 3 per annum and he found that the average rate of interest earned on the mean life fund in each year was as follows Year ending 31st December, 1948 3.5 per cent. 1949 3.27 1950 3.27 1951 3.26 The Income-tax Officer did number companycern himself with the rate of interest employed in determining the liability in respect of outstanding policies. He companysidered the valuation of stocks and shares held in the life fund with a view to ascertaining whether the sum of Rs. 18,75,000 transferred to the investment reserve fund to balance an alleged depreciation in the value of stocks and shares was justified or number. He examined for this purpose the details of the alleged depreciation amounting to Rs. 22,64,733 which had been worked out by the assessee companypany and observed that after the transfer of Rs. 18,75,000 to the investment reserve fund the balance to the credit of the fund was Rs. 22,95,154 when it need number have been more than Rs. 22,64,733 and this showed an excess of Rs. 30,420. This excess he disallowed. He then found out the market rate of stocks and shares in the fund and came to the companyclusion that some of these were under-valued by a sum of Rs. 1,58,756. He held that an excess of Rs. 1,89,186 was transferred to the investment reserve fund from the surplus. According to him, the surplus of Rs. 26,45,362 shown in Form 1 required to be adjusted and he added a lump sum of Rs. 1,75,000 to the surplus. In other words, the total depreciation claimed under Rule 3 b as an allowance was number accepted. The sum of Rs. 1,75,000 was reduced by the Appellate Assistant Commissioner to Rs. 1,45,000 and it was altogether cancelled by the Income-tax Appellate Tribunal. The learned Judges of the High Court in dealing with this matter observed that the excess of Rs. 30,420 was number an actual depreciation and numberprovision need have been made in the reserve fund for this sum. They also held that the Income-tax Officer had rightly held that some of the stocks and shares had been deliberately under-valued. They accepted the proposition that the making of an adjustment in the surplus on a finding that the rate of interest or other factor employed in determining the liability in respect of outstanding policies and other assets was materially inconsistent with the valuation of the securities and other assets, and the making of adequate provision for bonuses to participating policy-holders and companytingencies was a matter for a specialist and that the Income-tax Officer, if he made an adjustment, should procure the advice of the Controller of Insurance before making any change on the basis of his own knowledge. But they held that the proper valuation of the securities did number require a specialist and that any person companyld get market quotations and find out, the value of the securities. According to the learned Judges, although the proviso enjoined upon the Income-tax Officer the duty to companysult the Controller of Insurance and also to make adjustments in a particular way, the main rule allowed the Income-tax Officer to fix the amounts of permissible deductions on the basis of a companyrect valuation of the securities and the Income-tax Officers jurisdiction in this respect was number in any way companytrolled. ,According to them, the fixing of the companyrect value of the assets was number the sort of adjustment which was companytemplated by the proviso therefore, neither was prior companysultation necessary number were the companyditions precedent as laid down in the proviso applicable. They referred to the decision of the Bombay High Court in Western India Life Insurance Co. Ltd. In re 1 and observed that such action was held permissible under rule 30 of the superseded rules which they held was in pari materia with the main rule 3 b , and to the decision in Commissioner of Income-Tax, Bombay, Sind and Rajasthan v. Indian Life Assitrance Co. Ltd, 2 in which the dictum of the High Court was applied by the Sind Chief Court. They companycluded It is therefore, clear that the proviso does number apply to. a case where the Income-tax Officer has to see whether the securities have been companyrectly 1 1938 VI I. T. R. 44. 2 1946 XIV I. T. R. 347. valued or number. He must satisfy himself without any reference to the Controller of Insurance that the securities which are being transferred to the reserve fund are numbermore than necessary to meet depreciation or loss that has actually been suffered, and to determine this he must have the companyrect valuation of the securities. In the result, they held that the Income-tax Officer had full jurisdiction to deal with the matter in the manner employed by him. Mr. Setalvad on behalf of the Life Insurance Corporation pointed out that the actuarial valuation balance-sheet in Form 1 had determined the surplus by deducting from the Life Insurance fund as on the valuation date the net liability under the life insurance business. He pointed out that in working out this liability the actuary had assumed the rate of interest at 3 per annum and to arrive at this figure he had taken into companysideration the average interest yield for the four years companyered by the valuation. The interest yield thus was obtained by properly following the procedure laid down by Regulation 3 of Part 1 of the fourth schedule to the Insurance Act. He companytended that if the interest yield were found to be lower by reason of the reduction of the amount of depreciation, the liability for the policies, as calcula- ted in the accounts, would be disturbed and the liability would increase. He pointed out that Rule 30 of the previous rules was amended by the addition of a proviso in the new Rule 3 b to make it incumbent that an adjustment in respect of depreciation of securities in the actuarial balance sheet should only be made after companyplying with certain companyditions. -He companytended that action companyld only be taken under the proviso and in accordance with its strict terms. He submitted that by merely reducing the amounts transferred to the investment reserve fund the Income-tax Officer companyld number increase the surplus, for in doing so, he reduced the companyer and thus seriously disturbed the provision for liability under the policies and the provision for bonuses to participating policy-holders and companytingencies, and that such action of the Income-Tax Officer was without jurisdiction. On behalf of the Department, Mr. Gopal Singh companytended that there was a general power in the Income-tax Officer derived from the main rule 3 b and independent of the proviso to make such an adjustment. Mr. Gopal Singh did number rely upon the proviso and companytended that the Income-tax Officer companyld find out from the market quotations the value of stocks and shares and if he found a disparity, he companyld make adjustments by refusing to allow the deduction which was claimed under rule 3 b . According to him, it was number necessary to go to the proviso at all and in any event, companysultation with the Controller of Insurance was number absolutely necessary and what he did was within his jurisdiction. He submitted that the Income-tax Officer had jurisdiction to decide what was just and proper and had done so under his general power flowing from the main rule 3 b without the aid of the proviso. It is clear that the Income-tax Act companytemplates that the assessment of insurance companypanies should be carried out number according to the ordinary principles applicable to business companycerns as laid down in s. 10, but in quite a different manner. Insurance companypanies do number companypute their profits in the ordinary way because premiums companyer risks which run into future years and loss includes losses from previous years. The method prescribed ensures that by taking the average of several years a fair and reasonable companyclusion is reached. Actuarial estimation plays an important part and surplus only results when there is an excess of the fund over the liability after all other charges are met. The rules which have been quoted lay down two different methods of ascertaining profits. Rule 2 a merely companypares the gross external incomings of the preceding year with the management expenses.Rule 2 b companytemplates the annual average of the surplus or deficit disclosed by actuarial valuation. In the present case the first limb of rule 2 did number apply. So the annual average of the surplus found by the actuary had to be taken and from it the surplus of the last inter-valuation period had to be deducted as also expenditure allowable under s. 10 of the Income-tax Act. This is the basic calculation and they were followed. Certain special limitations indicated in the proviso to rule 2 and rule 3 a are number relevant for the present case. Under the main part of rule 3 b certain special deductions and additions must be made to the annual average of the surplus determined under the second rule. Since the life fund is held in securities and the price of stocks and shares fluctuates, provision has been made in rule 3 b to make adjustments. Rule 3 b in its main part speaks of adjustments on the basis of the accounts and amounts as entered in the accounts determine what must be added to or deducted from the surplus. The Income-tax Officer must deduct from the annual average of the surplus for purposes of rule 2 any amount entered in the accounts to companyer depreciation of the securities and assets and add any amount taken credit for on account of appreciation. The Income-tax Officer here follows the accounts and gives effect to the entries such as they are. The provision is mandatory and the Income-tax Officer has numberdiscretion. If the Income-tax Officer doubts the accounts, his powers are defined by the proviso. Rule 3 b which allows the Income-tax Officer to deduct from or add to the surplus amounts shown in the accounts for depreciation and appreciation of securities as the case may be, does number companyfer on him a power to disturb the annual average of the surplus at his sweet will. No doubt, the perception of a -discrepancy between what is entered in the accounts and what is fact, is number something which is or can be made the subject of rules. Rules can only provide how the Income-tax Officer must proceed in the matter if he finds an inaccuracy. The entire subject of such disparity between fact and actual entries is companyprehended in the proviso. If the Income-tax Officer accepts the accounts he must reduce or increase the surplus by the amounts actually shown for depreciation or appreciation in the accounts. His powers under the main rule end there. If he discovers a discrepancy number de minimis he must proceed under the proviso. The proviso requires him to companysult the Controller of Insurance and to bear in mind that reasonable provision has to be made for bonuses to participating policy-holders and for companytingencies, and he can act only where the rate of interest or other factor employed in determining the liability under the policies materially inconsistent with the valuation of securities and this results in the artificial reduction of the surplus. It is clear that the proviso negatives the existence of a separate general power. Action has to be taken in the manner laid down in the proviso or number at all. In the present case, the Income-tax Officer did number follow the proviso at all. The Department did number rely upon the proviso in the High Court and even before us did number seek to justify the action of the Income-tax Officer with reference to the proviso. No doubt, an attempt was made before us to limit the generality of the question debated in the High Court to the specific point decided by the Tribunal and outlined in the question suggested by the assessee. But the gist of the matter is the same whichever way one looks at it. The adjustment of the surplus in the matter of appreciation and depreciation of securities number on the basis of the accounts but on the basis of the Income-tax Officers discretion can only be done in the manner laid down in the proviso. Such power is number available under the main rule which merely allows book entries to be worked into the surplus. I find it impossible to endorse the view of the High Court that the Income-tax Officer had any general power to make adjustments independently of the proviso. If he detected any discrepancy he had to proceed under the proviso. To hold otherwise would make the proviso entirely redundant, and it is quite clear that such companyld number be the intention. Cases under the former rule 30 cannot be used a precedents because the present rule 3 b has bee materially altered by the addition of the proviso Formerly the rule tried to serve both the objects busing the word may but the word may which gave a discretion to the Income-tax Officer companyld lead to arbitrary actions and the rule is number in two parts, the main rule leaving numberdiscretion and the proviso companyferring a power subject to certain companyditions. In the result, I disagree with the High Court in the answer which it gave to the question. The proper answer was in the negative.

Case appeal was accepted by the Supreme Court

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

Case appeal was rejected by the Supreme Court

CLVIL APPELLATE JURISDICTION Civil Appeals Nos. 166 and 167 of 1962. Appeals from the judgment and decrees dated October 25, 1957 of the Allahabad High Court in Special Appeals Nos. 140 and 139 of 1957. B. Goyal, for the appellants in C.A.No. 166 of 62 . 1 C. B. Agarwala and P. C. Agarwala, for the appellants in A. No. 167 of 62 . S. Hajela and C. P. Lal, for respondent No. I in both the appeals . P. Lal, for respondent No. 2 in both the appeals . 1963. April 26. The judgment of the Court was delivered by WANCHOO J.-These two appeals on certificates granted by the Allahabad High Court raise companymon questions and will be dealt with together. It will be enough if we mention the facts in appeal No. 167, for the facts in the other appeal are exactly the same, except that the lands in dispute are different in the two cases, though lying in the same area in the city of Kanpur. Deoki Nandan, appellant in appeal No. 167, is the lessee of two plots in Anwarganj, Bans Mandi, Kanpur, and his lease is for a period of 99 years from 1943. On these plots there exists a mill known as Om Cotton Ginning and Oil Mill. Besides the mill there are pacca godowns also on the plots and two-thirds of the area is under buildings while onethird is open land paved with bricks. No part of the land is waste or arable. It appears that in February 1932 the Government of U. P. sanctioned by numberification a scheme known as Pechbagh Dalelpurwa Scheme No. XX hereinafter referred to as scheme No. XX of the Improvement Trust Kanpur. It may be mentioned that the Improvement Trust Kanpur has number been replaced by the Development Board Kanpur hereinafter referred to as the Board by the Kanpur Urban Area Development Act, No. VI of 1945, hereinafter referred to as the Kanpur Act , which repealed the U. P. Town Improvement Act, No. III of 1920, insofar as it applied to Kanpur. It is number clear what happened to scheme No. XX after 1932 but it does appear that it was number fully carried out. It appears that in 1955 a scheme known as subsidized industrial housing scheme was sponsored by Housing Department of the U. P. Government. This scheme was to be put in force in four phases. and we are companycerned in the present appeal with the fourth phase. For that phase the Government of India had sanctioned over rupees two crores and it was decided to build 6973 tenements of which 1368 were to be in an Ahata on the Hamirpur road. We are companycerned with this part of the scheme, for the lands in dispute are in this locality. The decision in this companynection was taken by the Government of U. P. in May 1955. Thereafter on January 6, 1956, a numberification was issued under s. 4 of the Land Acquisition Act, No. I of 1894 by the Governor of U. P. to the effect that the two plots in dispute were required for the companystruction of tenements in the fourth phase of the subsidized industrial housing scheme sponsored by the Government of U. P. as well as for general improvement and street scheme No. XX of the Board. This was followed by a numberification under s. 6 of the Land Acquisition Act on January 31, 1956. That numberification further said that the case being one of urgency the Governor was pleased under sub-ss. 1 and I-A of s. 17 of the Land Acquisition Act to direct that the companylector of Kanpur, though numberaward under s. 11, has been made, might on the expiration of the numberice mentioned in s. 9 1 take possession of lands, buildings and structures forming part of the land mentioned in the schedule for public purposes. Then followed a numberice under s. 9 by the Collector on February 10, 1956, which said that possession would be taken over 15 days after the issue of the numberice i. e. on February 25, 1956. On receipt of this numberice, Deoki Nandan appellant filed his objections before the Collector on February 21, 1956, Two days later, on February 23, 1956, he filed the writ petition in the High Court out of which the present appeal has arisen. In this writ petition two main points were urged on behalf of the appellant. It was first urged that as the acquisition was for the purposes of scheme No. XX of the Board, action had to be taken in accordance with s. 114 of the Kanpur Act and the schedule thereto and as numberaction had been so taken, the proceedings for acquisition were bad. In the second place, it was urged that it was number open to the Governor to issue the numberification under s. 6 of the Land Acquisition Act without first taking action under s. 5-A thereof. It is number in dispute that numberaction was taken under s. 5-A and numberreport was made as required therein. The writ petition was dismissed by the learned Single judge who heard it. On the first question he held that this was number a case to which the Kanpur Act applied. On the second question, he held that s. 17 4 applied and therefore it was number necessary to take proceedings to companyply with s. 5-A before issuing a numberification under s. 6. Then followed an appeal which was heard by a Division Bench of the High Court. The appeal companyrt upheld the view taken by the learned Single Judge and dismissed the appeal. However, the appeal companyrt granted a certificate as prayed for, and that is how the matter has companye up before us. The same two questions which were agitated in the High Court have been raised before us. In the first place, it is urged that as the acquisition was for scheme No. XX of the Board, action should have been taken under the Kanpur Act and as this was Dot done the entire proceedings are bad including the issue of the numberifications under s. 4 and s. In the second place, it is urged that s. 17 4 companyld number apply in the present case and numbernotification under s. 6 companyld be issued unless s. 5-A had been companyplied with. As numbersuch companypliance was admittedly made, the numberification under s. 6 in any case is bad, even if the numberification under s. 4 is good. Turning number to the first point, the main reliance of the appellant is on s. 114 of the Kanpur Act, which is in these terms - Modification of the Land Acquisition Act, 1894-For the purpose of the acquisition of land for the Board under the land Acquisition Act, 1894- a the said Act shall be subject to the modification specified in the Schedule to this Act b the award of the Tribunal shall be deemed to be the award of the companyrt under the Land Acquisition Act, 1894. We may also refer to s. 108 which provides for companystitution of the tribunal and s. 109 which lays down that the tribunal shall perform the functions of the companyrt with reference to the acquisition of land for the Board under the Land Acquisition Act, 1894. Further, it is necessary to refer to s. 71 1 also which provides that the Board may, with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of this Act, for carrying out any of the purposes of this Act. The argument on behalf of the appellants is that where land is acquired for the purposes of the Board action has to be taken under ch. VII which provides for various kinds of development schemes for the Board and the procedure for making such schemes. After this procedure laid down in ch. VII is gone through, and it is number in dispute that numbers c procedure was gone through in the present case insofar as scheme No. XX is companycerned , s. 114 companyes into play and acquisition has to take place under the modified provisions of the Land Acquisition Act even where the Government is acquiring the land. Stress in this companynection is laid on the words acquisition of land for the Board in s. 114, and it is said that whenever there is acquisition of land for the Board, action can only be taken, even though it is the Government which is acquiring the land, under the modified provisions of the Land Acquisition Act ,contained in the Kanpur Act. We are of opinion that this argument is fallacious. If one looks at the scheme of the Kanpur Act, one finds that ch. VII provides for various kinds of development schemes and the procedure for finalising them. After the scheme is finalised under ch. VII power is given to the Board to purchase the land required for the scheme or take it on lease under s. 70. Then s. 71 provides in the alternative that the Board may with the previous sanction of the State Government acquire land under the provisions of the Land Acquisition Act as modified by the provisions of the Kanpur Act. It is only when the Board proceeds to acquire land by virtue of its powers under s. 71 that s. 114 companyes into play and the proceedings for acquisition have to take place under the Land Acquisition Act as modified by s. 114 read with the schedule. It is true that s. 114 speaks of acquisition of land for the Board, and the argument is that when s. 114 speaks of acquisition of land for the Board, it applies to acquisition of land for the Board by the Government and number to acquisition by the Board, which is provided by s. 71 1 . This interpretation of s. 114 is in our opinion incorrect. Section 71 certainly provides for acquisition of land by the Board when it says that the Board may acquire land under the provisions of the Land Acquisition Act as modified by the Kanpur Act but that acquisition is also by that very section for carrying out the purposes of the Act i.e. for the Board. Therefore when s. 71 authorises the Board to acquire land under the Land Acquisition Act as modified by the Kanpur Act, the acquisition is for the Board. Section 71 further speaks of the modification of the provisions of the Land Acquisition Act. This modification is number provided in s. 71 itself. In order to find out the modification we have to go to s. 114. Therefore, s.114 merely serves the purpose of indicating the modification which has been mentioned in s. 71. There is numberreason to hold, because the words acquisition of land for the Board appear in s.114, that this acquisition is by the Government for the Board. The scheme of the Kanpur Act clearly shows that the Board frames a scheme and then decides to acquire the land for itself tinder s. 71 with the previous sanction of the State Government. If it so decides, s. 114 applies to such an acquisition by the Board for itself with the necessary modification in the Land Acquisition Act. We may in this companynection refer to s. 109, which describes the duties of the tribunal. Now there is numberdoubt that where the Board is acquiring land under s. 71 of the Kanpur Act, it is the tribunal which takes the place of the companyrt in the Land Acquisition Act. But s. 109 also uses the same words, namely acquisition of land for the Board. As the acquisition by the Board is also for the Board, there can be numberdoubt that the scheme of the Kanpur Act is that the Board first proceeds under ch. VII, then decides to acquire land under s. 71. and if it so decides s.114 companyes into play with the modifications in the Land Acquisition Act mentioned in the schedule. Two modifications in the schedule are the replacement of the numberification under s.4 by the numberification under s. 53 in ch. VII and the replacement of numberification under s. 6 by the numberification under s.60 also in chap. VI I. It is obvious that ch. VII, s. 11, s.1 14 and the other provisions in ch. XI dealing with modifications and the modifications in the schedule are all part of one scheme, where the Board is acquiring land itself for its own purpose with the previous sanction of Government but where the acquisition is, as in the present case, by the Government under the Land Acquisition Act, for public purpose though that purpose may be the purpose of the Board, the Kanpur Act has numberapplication at all., and the Government proceeds to acquire under the provisions of the Land Acquisition Act alone. The companytention therefore on behalf of the appellants that the Kanpur Act has number been companyplied with and therefore the proceedings for acquisition of land are bad has numberforce and must be rejected. We number companye to the second point raised on behalf of the appellants. For that purpose we may briefly refer to the scheme of the Land Acquisition Act, The proceedings for acquisition start with a preliminary numberification under s.4. By that numberification the Government numberifies that land in any locality is needed or is likely to be needed for any public purpose. On that numberification certain companysequences follow and authority is companyferred on an officer either generally or specially by Government and on his servants and workmen to enter upon and survey and take levels of any land in such locality, to dig or bore into the sub-soil, to do all other acts necessary to ascertain whether the land is adapted for such purpose, to set out the boundaries of the land proposed, to be taken, and so on. Then s. 5-A provides that any person interested in any land which has been numberified in s.4, may within thirty days of the issue of the numberification object to the acquisition of the land .or of any land in the locality as the case maybe. Every such objection shall be made to. the Collector in writing and the Collector has to give the objector an opportunity of being heard. After hearing all objections and after making further inquiry if any, as he thinks fit, the Collector has to submit the case for the decision of the Government together with the record of the proceedings held by him and the report companytaining his recommendations on the objections. the decision of the Government on the objections is final. Then companyes the numberification under s.6, which provides that when the appropriate government is satisfied after companysidering the report, if any, made under s. 5-A that any particular land is needed for a public purpose, a declaration shall be made to that effect and published in the official gazette. After such a declaration has been made under s.6, the Co- llector has to take order for acquisition of land. It is marked out, measured and planned under s. 8 if necessary and numberice is given under s. 9 to persons interested. The Collector then holds inquiry under s. II and makes an award. After the award is made the Collector has got the power to take possession of the land under s. 16 and the land then vests absolutely in the Government free from all encumbrances. It will be clear from this scheme that companypliance with the provisions of s. 5-A is necessary before a numberification can be issued under s. 6. As soon as the preliminary numberification is issued under s.4, the officer authorised by Government may enter upon the land to survey it and to do all other necessary acts to ascertain whether the land is adapted for the purpose for which it is to be acquired, and this action, if taken, will give sufficient numberice to those interested to object. If objections are made the Collector will companysider those objections and make his recommendation thereon in his report to Government. If numberobjections are made the Collector will report that numberobjection has been made and the Government then proceeds to issue a numberification under s.6. In either case however, the Collector has got to make a report with his recommendations on the objections if they are filed or inform the Government that there are numberobjections filed in pursuance of the numberification under s. 4 and it is thereafter that the Government is empowered under s. 6 to issue a numberification. This, as We have said,is the usual procedure to be followed before the numberification under s.6 is issued To this usual procedure there is however an exception under s.17, and that is why in s. 6 we find the words if any in the clause after companysidering the report , if any, made under s. 5A. When action is taken under s. 17 4 , it is number necessary to follow the procedure in s. 5-A and a numberification under s.6 can be issued without a report from the Collector under s. 5-A. In the present appeals we are companycerned with ss. 17 1 and 17 4 , which we number read- 17 1 . In cases of urgency, whenever the appropriate Government so directs, the Collec- tor, though numbersuch award has been made, may, on the expiration of fifteen days from the publication of the numberice mentioned in section 9, sub-section 1 , take possession of any waste or arable land needed for public purposes or for a companypany, such land shall thereupon vest absolutely in the Government, free from all encumbrances. 17 4 . In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section 1 or sub-section 2 are applicable, the appropriate Government may direct that the provisions of section 5A shall number apply, and if it does so direct, a declaration may be- made under section 6 in respect of the land at any time after the publication of the numberification under section 4, subsection 1 . It will be seen that s. 17 1 gives power to the Government to direct the Collector, though numberaward has been made under s. 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under s. 17 1 , taking possession and vesting which are provided in s. 16 after the award under s. 11 are accelerated and can take place fifteen days after the publication of the numberice under s. 9. Then companyes s17 4 which provides that in case of any land to which the provisions of sub-s. 1 are applicable, the Government may direct that the provisions of s. 5-A shall number apply and if it does so direct, a declaration may be made under s. 6 in respect of the land at any time after the publication of the numberification under s. 4 1 . It will be seen that it is number necessary even where the Government makes a direction under s. 17 1 that it should also make a direction under s. 17 4 . If the Government makes a direction only under s. 17 1 the procedure under s. 5-A would still have to be followed before a numberification under s. 6 is issued, though after that procedure has been followed and a numberification under s. 6 is issued the Collector gets the power to take possession of the land after the numberice under s. 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration under s. 17 4 that it becomes unnecessary to take action under s. 5-A and make a report thereunder. It may be that generally where an order is made under s. 17 1 , an order under s. 17 4 is also passed but in law it is number necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under s. 17 1 or s. 17 4 can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is number waste or arable and on which buildings stand. This brings us to s. 17 I-A introduced in s. 17 of the Land Acquisition Act by the Land Acquisition U. P. Amendment Act, No. XXII of 1954 . Section 6 of that Act is in these terms - After sub-section 1 of section 17 of the Principal Act i. a. Land Acquisition Act the following shall be inserted as a new sub- section I-A , I-A . The power to take possession under sub-section 1 may also be exercised in the case of other than waste or arable land, where the land is acquired for or in companynection with sanitary improvements of any kind or planned development. It is number in dispute before us that the land in the present case was required for planned development. Therefore subsection 1-A as inserted by the U. P. Act into the Land Acquisition Act applies. The companytention on behalf of the appellants however is that subs. 1-A gives merely power to take possession of land other than waste or arable land where the land is acquired for or in companynection with sani- tary improvements of any kind or planned development. It is further urged that sub-s. 1 is mentioned in sub-s. I -A merely to import the circumstances in which the power to take possession may be exercised with respect to land other than waste or arable and the time when such power may be exercised thearguement further is that s. 17 4 was number amended by the U.P. Act XXII by including the new sub- s. 1.A also in that sub-section. Sub-section 4 still stands as it was therefore it still applies to waste and arable land only. There is force in this argument. There has been numberchange by the U. P. Act in sub-s. 1 and therefore when sub-s. 4 speaks of any land to which sub-s. 1 applies it still refers only to waste or arable land and numberother. It is true that by sub s. I-A as introduced by U. P. Act in s. 17, power has been given to take possession in case of land other than the waste or arable but this does number necessarily mean that sub-s. 4 will also apply to a case of and other than waste or arable simply because power has been given by sub-s. I-A to take possession of land other than waste or arable. It seems to us that when sub-s. 1 is mentioned in sub-s. I-A as introduced by the U. P. Act it only means that the power can be exercised to take possession of land other than waste or arable in the same circumstances and at the same time as it companyld be exercised with respect to arable or waste land as provided in sub-s. 1 , and numberhing more Sub-section I-A as introduced by the U. P. Act therefore has the effect only of accelerating the taking of possession which numbermally can take place after the award has been made under S. 11 in the case of land other than waste or arable in the circumstances and under the companyditions mentioned in sub-s. 1 . But sub-s. I-A does number amend sub-s. 1 so as to include within that sub- section land other than waste or arable. Therefore when sub-s. 4 was number amended by the U. P. legislature to include sub-s. 1-A as introduced by it can apply only to waste or arable land mentioned in sub-s. 1 , which also remained unamended. We have already pointed out that it is number necessary in law that when an order is passed under s. 17 1 , an order under S. 17 4 must also be passed. similarly if an order is passed under sub-S. 1-A it does number necessarily follow that an order must bepassed under S. 17 4 . Sections 17 1 and 17 4 are independent of each other in the sense that an order under the former does number necessarily require an order under the latter. Similarly s. 17 I-A must be independent of S. 17 4 and an order under S. 17 I-A would number necessarily mean that an order under S. 17 4 must be passed. In these circumstances it seems to us that if the legislature intended that provisions of sub-s. 4 should also apply to a case falling under sub-s. I-A , it has failed to carry out that intention. Sub-section I-A has been added as an independent sub-section and numberamendment has been made either in sub-s. 1 or sub-s. 4 number has any separate provision been made for applying sub-s. 4 to a case falling under sub-s. I -A and so subs. 4 cannot be applied to sub-s. I-A . The right to file objections under s. 5-A is a substantial right when a persons property is being threatened with acquisition and we cannot accept that that right can be taken away as if by a side-wind because sub-s. I-A mentions sub-s. I . As we have already pointed out sub-s. 1 has been mentioned in sub s. I-A merely to indicate the circumstances and the companyditions under which possession can be taken. The legislature has mentioned sub-s. 1 in sub-s. I-A as a measure of economy otherwise sub-s. I-A would have read as follows - In cases of urgency, whenever the appropriate Government so directs, the Collector, though numbersuch award has been made, may, on the expiration of fifteen days from the publication of the numberice mentioned in section 9, sub-section 1 , take possession of any land other than waste or arable land for public purposes where the land is acquired for or in companynection with sanitary improvements of any kind or planned development. Now if there had been Do economy of words and sub-s. I-A had read as we have indicated above, it companyld Dot have been possible to argue that sub-s. 4 of s. 17 also companyered cases of s. 17 1-A . Therefore, simply because for the sake of economy of words the legislature has used the words which it did in sub-s. I-A , it cannot be said that it was either amending sub-s. 1 or sub-s. 4 . In the absence of such amendment either in sub-s. 1 or sub-s. 4 and in the absence of any specific provision being introduced in s. 17 by which sub-s. 4 was also to apply to the new sub-s. I- A , it cannot be said that power was companyferred on the State Government to apply sub-s. 4 also to a case falling under sub-s. 1-A , simply by the introduction of sub-s. I-A in the form in which it was introduced in s. 17. We are therefore of opinion that it was number open to the State Government to say in the numberification under s. 4 that proceedings under s. 5-A shall number take place. This part of the numberification under s. 4 is therefore beyond the powers of the State Government. In companysequence the numberification under s. 6 also as it was issued without taking action under s. 5-A must fall. The appeals must therefore be allowed and the numberification under s. 6 and that part of the numberification under s. 4, which says that the-Governor was pleased to direct that under sub- s. 4 of s. 17, the provisions of s. 5- A shall number apply, are bad and are hereby set aside. Rest of the numberification under s. 4 will stand and it will be open to the Government if it so chooses to proceed with the acquisition after action is taken under s. 5-A and thereafter to issue a numberi- fication under s. 6 of the Land Acquisition Act. In the circumstances we feel that the appellants should be given an opportunity under s. 5-A number, though the period for making objections provided in that section expired long ago in view of the misunderstanding of the law on the part of the Government by treating the objections made before the Collector after the issue of the numberices under s. 9 as objections under s. 5-A.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 242 of 1960. Appeal by special leave from the judgment and order dated June 2, 1958, of the Patna High Court in Cr. Misc. 124/58. P. Verma for the appellant. A . S. R. Chari, D. P. Singh, B. K. Garg, S.C. Agarwal, and K. Ramanurthi, for the respondent. 1962. April 17. The Judgment of the Court was delivered by KAPUR, J.-The State of Bihar has brought this appeal against the judgment and order of the High Court of Patna and it arises out of proceedings under Art. 226 of the Constitution and s. 491 of the Criminal Procedure Code for a writ of habeas companypus in the matter of detention of one Bipat Gope. The present respondent was the petitioner in the High Court. Bipat Gope, a resident of the district of Patna, was companyvicted under s 323 s. 324 read with s. 511 of the Indian, Penal Code and sentenced on November 29, 1957, to six months rigorous imprisonment by the High Court on appeal against acquittal under s. 417 of the Code of Criminal Procedure but he was number taken into custody till January 6, 1958 and even then he was kept under armed guard in the Patna Medical College Hospital in one of the paying wards, on the ground that he was seriously ill. On an application by the respondent and on the recommendation of the appropriate medical authority Bipat Gope was released by the District Magistrate on March 11, 1958 under the rules of the Jail Manual when his unexpired period of imprisonment was four months and three days. The companytention of the appellant State is that he was released under R. 549 which is the rule providing for companyditional release of prisoners but the respondent challenges the factum of release under this Rule. The sureties for Bipat Gope were called upon to produce him but as they had failed to do so numberices were issued to them by an order dated April 27, 1958, to show cause why their surety bonds should number be forfeited. By the same order numberbailable warrant for arrest was ordered to be issued. On April 29, 1958, Bipat Gope moved a petition under Art. 226-against the order of the District Magistrate and the High Court directed on May 1, 1958, that Bipat Gope should appear on Monday following which was May 5, 1958, when the petition was to be taken up for preliminary hearing. On May 1, 1958, Bipat Gope appeared in the Court of the District Magistrate, Patna and made an application stating that he had filed the above mentioned petition in the High Court and that he had to appear there on Monday and he prayed that he be allowed an opportunity to present his case to the High Court and to avoid. his maltreatment at the hands of the police of which he was apprehensive. There is numberorder on the record showing what the District Magistrate did but from the respondents petition in the High Court it appears that the application before District Magistrate was taken up by the Senior Deputy Collector Patna, who ordered Bipat Gope to be taken into custody and sent him to jail. The earlier petition of Bipat Gope filed in the High Court was withdrawn on May 2, 1958. The High Court heard the petition filed by the respondent on May 5, 1958, and after some amendments were made the petition was allowed and Bipat Gope was ordered to be released from custody. The High Court held that the order of release by the District Magistrate of Patna above referred to was an order for, his unconditional release and therefore he companyld number be rearrested. It is against that order that the State has companye to this Court by special leave, its application under Art. 134 1 c - having been dismissed by the High Court. On the petition under Art,. 226 filed by the respondent, the High Court issued a, rule calling upon the appellant State to show cause why a writ of habeas companypus should number issue. It is unfortunate that numberreturn was filed by the State and it is number clear from the record as to how exactly or under what authority Bipat Gope was taken into custody and under what authority the jailor was detaining him in jail. The order of the District Magistrate shows that a number- bailable warrant was ordered to be issued, The petition of the respondent shows that Bipat Gope was arrested under the order of the Senior Deputy Collector what authority the Senior Deputy Collector had of ordering Bipat Gopes rearrest is number clear from this record. The High Court has stated that Bipat Gope surrendered on May 1, 1958, to whom he surrendered is number clear. It is also stated in the petition that number-bailable warrant of arrest was ordered to be withdrawn and the record was sent to the District Magistrate for companyfirmation who withdrew the number-bailable warrant ordered to be issued. When the record was sent to the District Magistrate for companyfirmation and that was done by the District Magistrate thereafter is also number shown. In the absence of a properly drawn up return accompanied by proper documents it is number possible to find out what exactly happened in regard to the rearrest of Bipat Gope and it is for that reason that the filing of a proper return is necessary and is insisted upon in most jurisdictions. It was argued on behalf of the appellant that the release of Bipat Gope was under R. 549 of the Jail Manual Rules which are issued under the Prisons Act and that releases thereunder are companyditional. The appellant was anxious to get the opinion of this Court as to the true meaning and extent of Rule 549 under which, according to the appellant, Bipat Gope was released. On this record it is number clear as to the rule under which he was released. It appears from the petition of the respondent under Art. 226 that the respondent made an application for the release of Bipat Gope on the ground that he was seriously ill. There are, on the record certificates by Dr. V. N. Sinha, F. R. C, S., Professor of Clinical Surgery at the Patna Medical College stating the disease Bipat Gope was suffering from and that he was riot improving under the treatment he was being given. It was also stated therein that he would improve if he was released This was on February 21, 1958. The Civil Surgeon of Patna on March, 1, 1958, again enquired from Dr. N. Sinha if the prisoner Bipat Gope was in danger of death from illness. Upon this on March 3, The companyplications of the disease i. e. of ventral hernia, peotic under and strees and strain syndrome sometime prove fatal. and on March 5, 1958, it was stated that he was in danger of death but was likely to improve if released. The superintendent of District Jail, Patna, sent a letter to the District Magistrate giving all these various particulars. Upon that a numbere was made by Judicial Peshkar in which he stated In this companynection Jail Manual Rule 548 1 and 2 and 3 and Rule 549 may be seen. The District Magistrate has power to pass order for the release of the prisoner, if the petitioners sentence does number exceed six months under the above Rules. From the sentence sheet of release from the Jail autho- rity it appears that the prisoner has only 4 four months and 3 three days unexpired period of sentence. These rules may kindly be seen and necessary orders passed. The order of the District Magistrate was -,Allowed release in the circumstances. It is number clear from this as to the Rule under which Bipat Gope was released. It was companytended on behalf of the appellant that the release must have been under R. 549 and number under any other, Rule and in support reliance is placed on the release order of Bipat Gope which is in Form No. 105. That Form mentions Rules 548, 549 and 552 and the Rule which was number appropriate had to be scored out but numbere of these Rules was scored out. But at the bottom of the Form there is a declaration of two persons who started that they are willing to take. charge of Bipat Gope and bound themselves to surrender him at any time before the date of his expiry i. e. July 9, 1958 if required to- do so. Here it may be stated that the support of the relevant Rules is set out in Form 105 as follows- Rule 549-There is numberhope of his recovery either in or out of Jail I companysider it desirable that he be allowed the companyfort of dying at home. Rule 549--The prisoner is in danger of death from illness and there is probability of his recovery if he is released. On the basis of the order of the District Magistrate which is referred to above dated March 7,1958 and Form 105. it was submitted that the release must have been under R. 549. The orders on the record do number make that clear. Neither the order of the District Magistrate number the Form 105 shows that Bipat Gope was released under R. 549 and number under any other Rule. The State has number cared to make it clear in any return made on an affidavit filed as to the Rule under which Bipat Gope was released and then it is number shown as to what lawful authority there was for his rearrest. In this companynection the observations of Lord Atkin in Eshugbayi Eleko v. The Officer Administering The Government of Nigeria 1 are appropriate and applicable In accordance with Britain jurisprudence numbermember of.the executive can interfere with the liberty or property of a British subject except on the companydition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should number shrink from deciding such issues in the face of the execu- tive. It is the same jurisprudence which has been adopted in this companyntry on the basis of which the companyrts of this companyntry exercise jurisdiction. It has number been shown in this case that there was any lawful authority under which Bipat Gope was rearrested and in the absence of such lawful authority Bipat Gopes detention cannot be supported and is illegal. In the circumstances the remedy under Art.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 226 of 1960. Appeal by special leave from the judgment and order dated July 28, 1960 of the Madhya Pradesh High Court in Criminal Appeal No. 385 of 1959. R. Choubay and Naunit Lal, for the appellant. N. Shroff, for the respondent. 1963. April 23. The judgment of the Court was delivered by RAGHUBAR DAYAL J.-This appeal, by special leave, is directed against the order of the High Court of Madhya Pradesh reversing, on State appeal, the order of the Additional Sessions judge, Hoshangabad, acquiring the appellant, and companyvicting him of an offence under s. 414 I. P.C. Five bales, companytaining woollen shawls and mufflers despatched from Kanpur by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and another bale despatched from Haimanpur to Kanpur were loaded at Itarsi railway station on September 18, 1957, in Wagoa No. C.R. 325. The lock of the wagon wag found broken open at Pandhurna Railway Station at about 1.00 a.m. on September 20, 1957. on checking at Nagpur the aforesaid bales were found missing. One of the bales despatched from Kanpur was found lying the next morning near the railway line between railway stations Jaulkheda and Multai. On September 23, 1957, the house of one Gopi Nath, at Multai, was searched and certain articles, including some torn labels were recovered from that house. The same day, the police found the appellant and a few other persons companye out of Gopi Naths house at Betul, whose front door was locked. Subsequently, these persons were taken to the police station, where the appellant made a statement showing readiness to point out the stolen property. At his instance, the police recovered from different places of that house, woollen shawls, mufflers, bed-sheets and certain house-breaking implements. These recoveries were made on September 23 and 24. As a result of investigation, six persons were put on trial in the Magistrates Court. Ajendra Nath, appellant, was charged under ss. 120-B, 379 and 414, I.P.C. Babu Ram was charged under ss. 120-B and 379 I.P.C. Ram Prasad and Gyarsi were charged under s. 120-B read with s. 879 I.P.C., Gopinath under s. 120-B read with s. 414 I.P.C. and Birendranath under s. 414 I.P.C. The learned Magistrate acquitted Birendra Nath and companyvicted the other accused of the offence under s. 120-B read with s. 379 I.P.C., except in the case of Gopinath, who was companyvicted of the offence under s. 120-B read with s. 414 I.P.C. Ajendra Nath was also companyvicted of the offence tinder s. 414 I.P.C. On appeal, the learned Additional Sessions judge, Hoshangabad, acquitted all these companyvicted persons. He held that the property recovered was number proved to be stolen property and that the alleged companyspiracy was number proved. The State filed an appeal against the acquittal of Gopinath and Ajendra Nath. The High Court dismissed the appeal against Gopinath and the appeal against Ajendra Nath for the offence of companyspiracy. It however allowed the appeal against Ajendra Nath with respect to the offence under s. 414 I.P.C. It is against this order that this appeal has been filed by Ajendra Nath, appellant. Ajendra Nath did number question the recovery of the various articles from Gopi Naths house at Betul at his instance. He did number claim the property to be his own, but stated that it was number stolen property. The main companytention for the appellant in this Court has been that these recovered article were number proved to be stolen property. Tile articles companysisted of those said to have been sent by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and bed-sheets sent by the firm of V.S.N.C. Narsingha Chettiar, which carries on business of wholesale Hand Loom Cloth at Karur. The invoices relating to the four bales sent by the Kanpur Woollen Mills give the details of the shawls and mufflers the bales companytained. A very large quantity of these has been recovered. Out of 95 shawls and 63 mufflers, as many as 80 shawls and, 43 mufflers had been recovered. Similarly, out of 10 pairs of bed-sheets stolen, 8 pairs have been recovered. The absence of any adequate explan- ation for the presence of such a large quantity of articles similar to those proved to have been despatched by the Kanpur Woollen Mills or by the Karur companypany, the recovery of these articles within a few days of the theft, the presence of silk and paper labels of Kanpur Woollen Mills on most of the shawls and mufflers recovered and of certain manuscript writings on the labels of the bed sheets by P.W. 24 Krishnamurthi, brother of P.W. 16, Venkat Raman, who does the Karur business, have been taken into companysideration by the High Court for companying to the finding that the property recovered was proved to be stolen property. These circumstances cannot be said to be such which would number justify the finding arrived at. The main companytention for the appellant however is that it has number been definitely established from the evidence of Kunzru, W. 10, that the shawls, mufflers recovered were manufactured by the Kanpur Woollen Mills and were despatched in the bales which were subsequently stolen. Kunzrus evidence does fall short of establishing that the shawls and mufflers recovered were manufactured by the Kanpur Woollen Mills. He has number identified the recovered shawls and mufflers as those manufactured by these mills. In fact, he was number even shown all the shawls and mufflers recovered. He was shown by the Police Inspector, Government Railway Police, two lois two shawls and two mufflers. He got them examined by the textile expert and, on the report of the expert, gave the certificate that they appeared to be manufactured by the Woollen Mills of Kanpur. That expert has number been examined in Court and therefore Kunzrus statement alone fails to establish that these shawls and mufflers were manufactured by these mills. However, it is number open to doubt that they were manufactured by these mills when most of them had sewn silk labels of these mills and quite a good number of them had even paper labels indicating that they were manufactured by these mills. There, is numberreason to suppose and in fact numbersuch suggestion has been made that these labels had been put on these articles by some one for the purpose of deception. We therefore companysider that the finding that these shawls and mufflers were the manufacture of Kanpur Woollen Mills is companyrect. It was also companytended for the appellant that it was number proved that these shawls and mufflers were in the bales which were despatched by the Kanpur Woollen Mills and that the gate passes and the invoices produced by Kunzru were number proved as persons who wrote them had number been examined. Kunzru produced the originals of these documents. He is the salesman of the Kanpur Woollen Mills. His cross-examination in numberway indicates that his statement about the genuineness of the invoices and gate passes was questioned in cross- examination. There is numberhing to suppose that the invoices and gate passes produced in Court did number companyrectly represent the articles placed inside particular bales to which specific numbers were given and that those bales were despatched from the Mills in accordance with the gate passes. In this companynection reference was made to the fact that five of the shawls recovered were of violet companyour and numbershawl of such a companyour was mentioned in any of the invoices. There can be a possibility of a misdescription in the invoices, There can be a possibility of the violet shawls being the property stolen in some other incident. The fact remains that even the violet shawls are number claimed by the appellant as his own. So, we do number companysider any force in this companytention for companysidering the finding of the High Court defective about the property recovered to be stolen property. With respect to the identity of the bed-sheets, there is the evidence of P.Ws. 16 and 24. P.W. 16 deposed that he had supplied 10 pairs of bed-sheets to a certain customer who disowned the bale. Thereupon he asked the Station Master, Ahimanpur to return the parcel to Karur. He recognized the various sheets to be of his firm which they had despatched to Ahimanpur. He further deposed that before despatching the goods they paste the firm labels on them. He stated that his younger brother Krishna Murti had numbered size-number and pattern over these sheets in his handwriting, as he happened to be at home on vacation. Krishna Murti, P.W.24, admits that certain labels on the bed-sheets were in his hand-writing, that he wrote them under instructions of his brother and that he had number written sirnilar numbers on any other bed-sheets. He however stated subsequently that he did such type of markings casually, on occasions, and that the Sub-Inspector had also got him write the size, pattern etc., on certain other blank labels of the shop as well. The learned Additional Sessions judge did number rely on these statements and felt that the Investigating Officer might have got those markings on the labels of the recovered articles during the investigation. The High Court thought that there was numberreason for doubting the companyrectness of the statements of these witnesses and for suspecting that the writings on the labels were obtained during the investigation. No question was put to P.W. 24 about the police making him write on the labels on the recovered articles. In fact, according to the witness, labels with his writings were shown to him for purposes of recognition and he recognized those writings to be his. The police took his writings on blank labels for purposes of companyparison. We therefore see numbergood reason for companysidering the finding of the High Court with respect to the bed-sheets recovered to be stolen property to be wrong. It was also companytended that it was number open to the High Court to record a finding about the recovered property to be stolen property when the Government had number appealed against the other companyaccused who were acquitted on the basis of the finding that the property recovered was number proved to be stolen property. We do number see any force in this companytention. The mere fact that the learned Additional Sessions judge acquitted the other accused on the ground that the property recovered was number proved to be stolen property did number preclude the State from appealing against the acquittal of the appellant against whom there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other companyaccused. The State companyld challenge the companyrectness of the findings of the learned Additional Sessions judge about the property being stolen property and, companysequently, the High Court can record its own finding on that question. Lastly, it was also urged that even if the identity of the articles recovered with the articles stolen be established, numberoffence under s.414 I.P.C. is made out against the appellant as the other accused have been acquitted and it is number known whom the appellant is supposed to have helped in companycealing the stolen property. Section 414 I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows or has reason to believe to be stolen property. It is number necessary for a person to be companyvicted under s.414 I.P.C. that another person must be traced out and companyvicted of an offence of companymitting theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its companycealment and disposal. The circumstances of the recovery sufficiently make out that the property was deliberately divided into different packets and was separately kept. May be that the property failing to the share of a particular thief was kept separately. It was recovered from several different places in the same house. These places included an iron safe and an underground cellar. The evening before, several persons, including the appellant, were found to be companying out of the back door of the house which had its front door locked. The appellant also knew the whereabouts of the property inside the house of his maternal grandfather. He attempted to sell a few mufflers a day before the recoveries were made. He was seen arriving at the house, during the night, in a car with some persons and then removing property which looked like bales from the car to the house. All these circumanstances go to support the finding that he had assisted in the companycealment of the stolen property and had thus companymitted the offence under s,414 I.P.C.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 53 of 1961. Appeal by special leave from the judgment and decree dated August 9, 1956 of the Madras High Court in O.S. Appeal No. 64 of 1952. N. Sanyal, Additional Solicitor-General of India, K. L. Gosain and P. D. Xenon, for the appellant. V. Viswanatha Sastri and M. S. K. Sastri, for the respondent. 1963. May 9. The judgment of the Court was delivered by RAGHUBAR DAYAL J.-The facts giving rise to this appeal, by special leave, are these The Dominion of India, as the owner of the Madras and Southern Mahratta Railway, represented by the General Manager of that railway, invited tenders for the supply of jaggery to the railway grain shops. The respondent submitted his tender for the supply of 14,000 imperial maunds of cane jaggery during the months of February and March 1948. The tender form companytained a numbere in paragraph 2 which was meant for the quantity required and the described dates of delivery. This numbere was This Administration reserves the right to cancel the companytract at any stage during the tenure of the companytract without calling up the outstandings on the unexpired portion of the companytract. The Deputy General Manager of the Railways, by his letter dated January 29, 1948, accepted this tender. The letter asked the respondent to remit a sum of Rs. 7,900/-for security and said that on receipt of the remittance, official order would be placed with the respondent. In his letter dated February 16, 1948, the Deputy General Manager reiterated the acceptance of the tender subject to the respondents acceptance of the terms and companyditions printed on the reverse of that letter. Among these terms, the terms of delivery stated Programme of delivery to be 3,600 maunds on March 1, 1948 3,500 maunds on March 22, 1948 3,500 on April 5, 1948 and 3,500 maunds on April 21, 1948. At the end of the terms and companyditions was a numbere that the administration reserved the right to cancel the companytract at any stage during the tenure of the companytract without calling up the outstandings on the unexpired portion of the companytract. The date for the delivery of the four installments were slightly changed by a subsequent letter dated February 28, 1948. By his letter dated March 8, 1948, the Deputy General Manager informed the respondent that the balance quantity of jaggery outstanding on date against the order dated February 16, 1948, be treated as cancelled and the companytract closed. The protests of the respondent were of numberavail as the railway administration took its stand against the stipulation that the right to cancel the companytract at any stage was reserved to it. Ultimately, the respondent instituted the suit against the Union of India for recovering damages resulting from breach of companytract. The trial Court dismissed the suit holding that the railway administration companyld cancel the companytract without giving any reason whenever it liked, without making itself liable to pay any damages. The High Court held that the clause reserving the right in the appellant to cancel the companytract was void and in view of the trial Court having number decided the issue about damages, remanded the suit for disposal after dealing with that matter. It is against this decree that the Union of India has filed this appeal after obtain- ing special leave. The companytentions raised for the appellant are two. One is that on a proper companystruction of the terms of the companytract, the appellant had agreed to but only such quantity of jaggery as it might require, up to a maximum of 14,000 maunds and therefore there was numberenforceable obligation to purchase the entire quantity. The other companytention is that the respondent had expressly agreed to the impugned clause and that therefore the appellant was at liberty to terminate the companytract at any stage of the duration of the companytract with respect to the outstanding obligations under it. The stipulation is valid and binding on the parties and it amounted to a provision in the companytract itself for its discharge or determination. On the other hand it is companytended for the respondent that the companytract was a companyplete companytract of the supply of a definite quantity of jaggery viz., 14,000 maunds, on the dates mentioned in the order dated February 16, 1948, to start with, and ultimately on the dates mentioned in the subsequent letter dated February 28, and that the stipulation relied on was repugnant to the companytract and, even if valid, the appellant companyld rescind the companytract only for good and reasonable ground and number arbitrarily. To decide the companytentions raised it is necessary to companystrue the true nature of the companytract between the parties which has given rise to these proceedings. The relevant companyditions of tender are described in paragraphs 2, 8 and 9 and are set out below Quantity required and described dates of delivery.-14,000 imperial maunds of cane jaggery are required for the months of Decem- ber 1947 and January 1948 and should be deli- vered in equal lots of 1,750 imperial maunds each companymencing from 10th December 1947 and companypleted on 31st January 1948. Note This Administration reserves the right to cancel the companytract at any stage during the tenure of the companytract without calling up the outstandings on the unexpired portion of the companytract. Security deposit.-Five percent of the tender value will be required to be paid by the successful tenderer as security deposit towards proper fulfilment of the companytract. This amount will carry numberinterest. This should be paid in cash in addition to the earnest money already paid to the Paymaster and Cashier of this Rail-way, Madras, and his official receipt obtained therefor. Cheques and drafts will number be accepted in payment of security deposit. In the case of companytracts or the supply of gingelly oil, the security deposit will be arranged only after 90 days have elapsed from the date of the last supply against the order. Placing of order.-A formal order for supply will be placed on the successful tenderer only on the undersigned being furnished with the receipt issued by the Paymaster and Cashier of this Railway for the security deposit referred to in paragraph 8. Paragraph 12 provides for the rejection of supplies if they be of unacceptable quality. Paragraph 13 deals with penalties and reads thus Penalties.-When supplies arc number effected on the dates as laid down in the Official Order or when acceptable replacement of the whole or part of any companysignment which is rejected in accordance with paragraph 12 is number made within the time prescribed the administration will take penal action against the supplier in one or more of the following ways Purchase in the open market at the risk and expenses of the supplier goods of quality companytracted for, to the extent due Cancel any outstandings on the companytract and Forfeit the security deposit. The respondent made an offer to supply the necessary quantity of jaggery during the period it was wanted and expressed its readiness to abide by the terms and companyditions of the tender. He agreed to supply the jaggery at the rate mentioned in his letter. This tender was accepted by the letter dated January 29, 1948. So far, the offer of a supply of a definite quantity of jaggery during a specified period at a certain rate and the acceptance of the offer would companystitute an agreement, but would fall short of amounting to a legal companytract inasmuch as the date of delivery of the jaggery was number specified. Only the period was mentioned. The agreement arrived at therefore companyld be said, as urged for the appellant, to be a companytract in a popular sense with respect to the terms which would govern the order for supply of jaggery. The acceptance of the tender did number amount to the placing of the order for any definite quantity of jaggery on a definite date. Paragraph 9 of the tender referred to the placing of a formal order for the supply of jaggery, after the respondent had number only made a security deposit as required by the provisions of paragraph 8 but had also furnished a receipt issued for that deposit to the Deputy General Manager, Grain Shops. So companystrued, the numbere in paragraph 2 of the tender would refer to cancel this agreement, loosely called a company- tract, at any stage during the tenure of that agreement without calling up the outstandings on the unexpired portion of the companytract. The various expressions used in this numbere point to the same companyclusion. The expression tenure of the companytract companytemplates the companytract being of a companytinuing nature. It is only a companytract with a sort of a tenure. The companytract is to be cancelled at any stage during such a tenure, that is, it companyld be cancelled during the period between the acceptance of the tender and March 31, 1948, the last date for the delivery of the jaggery under the companytract. The numbere further provided that as a result of the cancellation, the appellant will number call up the outstandings on the unexpired portion of the companytract. This expression can only mean without ordering the supply of jaggery which was to be delivered within the remaining period of the companytract, that is, the period between the date of cancellation and March 31, 1948. Paragraph 13 dealing with penalties draws a distinction between outstandings on the companytract and the purchase of the goods to the extent number supplied by the respondent. The provision about penalty companyes into operation when the supplies are number effected on the dates laid down in the official order, or when acceptable replacement of the whole or part of any companysignment which is rejected is number made within the time prescribed. Clause a of para 13 companytem- plates penal action by purchasing in the open market at the risk and expenses of the supplier, goods of the quality companytracted for to the extent due, either due to the failure to supply or due to failure to replace rejected goods which had been supplied in companypliance of an order. Clause b of para 13 companytemplates a further penal action in the form of cancellation of any outstandings on the companytract. Such a cancellation companyld only be of the balance of the supplies agreed upon but number yet supplied. If this expression was meant to companyer the goods for which order had been placed but whose date of delivery had number arrived, a different expressing would have been more appropriately used. The appellants letter dated,January 29, 1948 which companyveyed the acceptance of the tender, directed the respondent to remit a certain sum for the security deposit and stated that on receipt of advice of remittance official order would be placed. This is the order companytemplated by para 9 of the tender. By his letter dated February 16, 1948, the Deputy General Manager repeated in paragraph 1 of the letter that the tender dated January 27, 1948, was accepted for the supply of jaggery, only subject to the respondents acceptance of the terms and companyditions printed on the reverse. The tender had already been accepted. There was numberoccasion to reopen the question of the acceptance of the tender or to reinform the respondent about the acceptance of the tender or to obtain a second, acceptance of the respondent to the terms and companyditions of the tender. No occasion companyld have arisen for imposing any fresh companyditions for the acceptance of the tender which had been accepted earlier. Paragraph 2 of the letter companytains a definite order for dispatching and delivering of the companysignment to the Assistant Controller of Grain Shops. The details given in the letter provided for the entire supply of 14,000 maunds to be in four equal instalments, each instalment to be delivered on a particular date. The only other companydition or term in this letter is This administration reserves the right to cancel the companytract at any stage during the tenure of the companytract without calling up the outstandings on the unexpired portion of the companytract. This is identical in terms with the numbere in paragraph 2 of the tender and can bear the same companystruction with respect to that portion of the goods to be supplied for which numberformal order had been placed. If this numbere had a particular reference to the cancellation of the orders, if that was possible in law, its language would have been different. It would have referred to the right to cancel the orders about the delivery of the companysignments and would have provided that the orders for such supplies which were to be made on dates subsequent to the date of cancellation would stand cancelled or that the appellant would number be bound to take delivery of such companysignments which were to be delivered on dates subsequent to the cancellation of the orders. There is numberhing in this letter that the formal order placed is subject to this companydition. The companydition governed the acceptance of the tender according to the companytent of para 1 of this letter. It appears that the order has been placed on a printed form which companyld be used also for placing an order for delivery of part of the companymodity which the tenderer has agreed to supply. That seems to be the reason why that particular recital appears in the letter. It cannot possibly have any bearing on a case like the present where the railway administration has definitely placed an order for the supply of the entire quantity of the companymodity for which a tender had been called. In this companynection we may refer to the language of the letter of the Deputy General Manager dated March 8, 1948, which informed the respondent about the cancellation of the companytract. The letter states that the balance quantity of jaggery outstanding on date against the above order, i.e., the order dated February 16, 1948, is treated as cancelled and the companytract closed. This letter itself draws a dis- tinction between the order and the companytract. The companytract has a reference to the agreement companysisting of the offer of supply of jaggery and acceptance of the offer by the Deputy General Manager. We are therefore of the view that the companydition mentioned in the numbere to para 2 of the tender or in the letter dated February 16, 1948, refers to a right in the appellant to cancel the agreement for such supply of jaggery about which numberformal order had been placed by the Deputy General Manager with the respondent.and does number apply to such supplies of jaggery about which a formal order had been placed specifying definite amount of jaggery to be supplied and the definite date or definite short period for its actual delivery. Once the order is placed for such supply on such dates., that order amounts to a binding companytract making it incumbent on the respondent to supply jaggery in accordance with the terms of the order and also making it incumbent on the Deputy General Manager to accept the jaggery delivered in pursuance of that order. We may refer to what was said by this Court in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram 1 , in companynection with an arrangement arrived at between the Central Government and a firm of bidi manufacturers, Moolji Sickka Company. The arrangement under which the firm was to sell and the Government was to buy from the firm from time to time two brands of bidis manufactured by it. The companytention raised before the Court was that this arrangement amounted to a companytract for the supply of goods within the meaning of that section. The companytract was said to be embodied in four letters. This Court said But except for this the letters merely set out the terms on which the parties were ready to do business with each other if and when orders were placed and executed. As soon as an order was placed and accepted a companytract arose. It is true this companytract would be governed by the term set out in the letters but until an order was placed and accepted there was numbercontract. Reference may also be made to what is said in Law of Contract, by Cheshire Fifoot 5th Edition at p. 36. There is numberdoubt, of companyrse, that the tender is an offer. The question, however, is whether its acceptance by the companyporation is an acceptance in the legal sense so as to produce a 2 1954 S.C.R. 817. binding companytract. This can be answered only by examining the language of the original invitation to tender. There are at least two possible cases. First, the companyporation may have stated that it will definitely require a specified quantity of goods, numbermore and numberless, as, for instance, where it advertises for 1,000 tons of companyl to be supplied during the period January 1st to December 31st. Here the acceptance of the tender is an acceptance in the legal sense, and it creates an obligation. The trader is bound to deliver, the companyporation is bound to accept, 1,000 tons, and the fact that delivery is to be by instalments as and when demanded does number disturb, the existence of the obligation. On the basis of this numbere, the acceptance of the res- pondents tender by the Deputy General Manager may even amount to a companytract in the strict sense of the term, but we do number companysider it in that sense in view of the provisions of paragraphs 8 and 9 of the tender requiring a deposit of security and the placing of the formal order. The other case illustrated by Cheshire and Fifoot is Secondly, the companyporation advertises that it may require articles of a specified description up to a maximum amount, as, for instance, where it invites tenders for the supply during the companying year of companyl number exceeding 1,000 tons altogether, deliveries to be made if and when demanded, the effect of the so-called acceptance of the tender is very different. The trader has made what is called a standing offer. Until revocation he stands ready and willing to deliver companyl up to 1,000 tons at the agreed price when the companyporation from time to time demands a precise quantity. The acceptance of the tender, however, does number companyvert the offer into a binding companytract, for a companytract of sale implies that the buyer has agreed to accept the goods. In the present case the companyporation has number agreed to take 1,000 tons, or indeed any quantity of companyl. It has merely stated that it may require sup. plies up to a maximum limit. In this latter case the standing offer may be revoked at any time provided that it has number been accepted in the legal sense and accep- tance in the legal sense is companyplete as soon as a requisition for a definite quantity of goods is made. Each requisition by the offeree is an individual act of acceptance which creates a separate companytract. We companystrue the companytract between the parties in the instant case to be of the second type.- The numbere below para 2 of the tender form, reserving a right to cancel an outstanding companytract is then companysistent with the nature of the agreement between the parties as a result of the offer of the respondent accepted by the appellant and a similar numbere in the formal order dated February 16, 1948, had numberreference to the actual orders but companyld refer only to such companytemplated supplies of goods for which numberorders had been placed, In view of the companystruction we have placed on the companytract between the parties it is number necessary to decide the other companytention urged for the appellant that the stipulation in the number amounted to a term in the companytract itself for the discharge of the companytract and therefore was valid, a companytention to which the reply of the respondent is that any such term in a companytract which destroys the companytract itself according to the earlier terms is void as in that case there would be numberhing in the alleged companytract which would have been binding on the appellant.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 250 of 1961. Appeal from the judgment and decree dated June 16, 1958, of the Calcutta High Court in Appeal from Original Decree No. 144 of 1948. Sen, S. N. Mukherjee and R. R. Biswas for the appellant. C, Chatterjee and P. K. Ghosh for the respondents. 1963. May 7. The judgment of the Court was delivered by SINHA C.J. -The main question for determination in this appeal, on a certificate granted by the High Court of Calcutta, is the scope and effect of ss. 4 7 of the Bengal Land Revenue Sales West Bengal Amendment Act West Bengal Act VII of 1950 -which hereinafter will be referred to as the Amending Act-which came into force on March 15, 1950. The suit out of which this appeal arises was instituted as long ago as December 6, 1945, and has had rather a long and chequered career. The plaintiff, who is the appellant in this Court, instituted the suit for ejectment of the defendants from the disputed property on the ground that he had annulled the defendants interests, whatever they were, under s. 37 of the Bengal Land Revenue Sales Act Central Act XI of 1859 , by virtue of his auction purchase, on January 6, 1936, of the entire revenue paying estate, Touzi No. 6 of the 24 Parganas companylectorate. After the auction purchase aforesaid, he obtained possession from the Collector in May-June, 1936, and there after annulled and avoided all intermediary interests except those protected under s. 37 of Act XI of 1859, by appropriate numberices, in or about June, 1936 The land in dispute was described in the plaint as Mal land of the said Touzi and other Touzies and the plaintiff asked for Khas possession to the extent of his 1/6th share, jointly with the defendants. The suit was companytested by the first defendant-respondent on a number of grounds, of which it is necessary to mention only the companytention of fact, that the suit lands were number Mal lands, as alleged by the plaintiff, and had never been assessed to revenue, number were they included in the Mal assets of Touzi No. 6. It was also claimed by the defendants that the lands in dispute were Brabmottar Lakheraj lands which were never within the regularly assessed estate, Touzi No. 6. Hence, the main issue, on question of fact, between the parties was Is the land in dispute Mal land of Touzi No. 6 or is it Lakheraj? On this question, the learned Subordinate judge, by his judgment and decree dated April 20, 1948, held in favour of the plaintiff and decreed the suit for possession, with mesne profits, to be ascertained later. The learned Subordinate judge held that the land in suit was Mal land of the Touzi No. 6 and other Touzies, and that the defendants interest was number protected from annulment under s. 37 of the Act of 1859. The first defendant appealed to the High Court in July, 1948 and the appeal was pending when the Amending Act was enacted. When the appeal was put up for hearing before a Division Bench on March 8, 1954, the learned judges thought it necessary to call for a finding on the question whether ,possession had already been delivered to the successful plaintiff in execution of the decree of the Trial Court, before the Amending Act came into force. This enquiry was instituted in view of the sworn petition filed on behalf of the plaintiff at the hearing in the High Court that he had already obtained possession in execution of the decree on March 29, 1949, and that, therefore, s. 7 of the Amending Act did number render the appeal void. The defendant- appellant in the High Court companytested this statement fact. The learned Subordinate judge submitted a finding to the High Court to the effect that possession of the disputed property had been delivered to the decree holder, as alleged by him, on March 29, 1949. The High Court accepted the finding of the Trial Court that possession had been delivered to the decree-holder in pursuance of the Trial Courts decree. The High Court further companysidered the effect of the proceedings taken at the execution stage. It appears that the plaintiff had made an application for delivery of possession on March 28, 1949, and the following day, on March 29, 1949, the judgment debtor, who had already preferred his appeal to the High Court, fiied a petition to the Court praying for one months time to bring a stay order from the High Court and for stay of process meanwhile. The learned Subordinate judge dispo- sed of the petition, in the following terms Judgment-debtor files a petition praying for one months time to bring a stay order and for stay of process in the meantime. Heard learned lawyer. Re-call and put up in the presence of both parties Inform Nazir. The High Court very elaborately companysidered the effect of this order with reference to decided cases of different High Courts, and came to the companyclusion that the delivery of possession which had been given to the decree-holder was without authority and hence a nullity. The High Court then companysidered the effect of ss. 4 7 of the Amending Act and came to the companyclusion that the land in dispute being part of a permanent tenure, held rent-free Niskar , was pro- tected under the provisions of the sections aforesaid. The High Court took the view that the decree passed by the Trial Court had become void under s. 7 2 of the Amending Act, and that s. 7 1 b had numberapplication. It also took the view that s. 7 1 a would apply and on that account the plaintiff would be entitled to refund of the companyrt fees, as the suit had abated. But even so, the High Court was number prepared to accept the position that the defendant was entitled to the benefit of s. 7 1 a to the effect that the suit pending at the appellate stage had abated. In the result, the High Court allowed the appeal, set aside the judgment and decree of the Trial Court and directed that Court to record an order of abatement of the suit and to pass an order for refund of companyrt fees in favour of the plaintiff. The High Court directed the parties to bear their own companyts, both in the Trial Court and in the High Court. On this appeal, it has been pointed out on behalf of the appellant, that the suit when instituted was a good one in view of the provisions of s. 37 of the Act XI of 1859, and that s. 4 of the Amending Act, which amended s. 37 of the main Act would number govern the present companytroversy for two reasons, namely, 1 that delivery of possession had already been given to the plaintiff in execution of the decree of the Trial Court in his favour, and that, therefore, the companytroversy had been finally closed in his favour and 2 because s. 4 was number in terms retrospective. It is true that s. 4 begins with the words For Section 37 of the said Act, the following section shall be substituted, and then follow the terms of the section, as it is number. Prima facie, therefore, it is prospective in its operation. But when we look to the provisions of s. 7, it becomes abundantly clear, as rightly pointed out by the High Court, that the section was retrospective in so far as it was made applicable to pending litigations. Section 7 is in these terms 7. 1 a Every suit or proceeding for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act, and Every appeal or application for review or revision arising out of such suitor pro- ceeding, pending at the date of companymencement of this Act shall, if the suit, proceeding, appeal or application companyld number have been validly, instituted, preferred or made had this Act been in operation at the date of the institution, the preferring or the making thereof, abate. Every decree passed or order made, before the date of companymencement of this Act, for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act shall, if the decree or order companyld number have been validly passed or made had this Act been in operation at the date of the passing or making thereof, be void Provided that numberhing in this section shall affect any decree or order in execution whereof the possession of the land in respect of which the decree or order was passed or made, has already been delivered before the date of companymencement of this Act. Whenever any suit, proceeding appeal or application abates under sub-section 1 or any decree or order becomes void under sub- section 2 , all fees paid under the Court- fees Act, 1870, shall be refunded to the parties by whom the same were respectively paid. It is companymon ground that the present suit is one for ejectment in pursuance of s. 37 of Act XI of 1859. Hence, s. 7 1 a companyes into operation. As will presently appear, s. 7 1 b would number apply to the appeal pending in the High Court. There cannot be the least doubt that the suit was pending in the High Court, on appeal, at the companymencement of the Amending Act, it being well-settled that an appeal is a companytinuation of the original suit. That being go, the question is whether the suit companyld have been validly instituted, had the Amending Act been in operation at the date of the institution of the suit. That brings in the provisions of s. 4. The relevant provisions of that section are as follows For section 37 of the said Act, the following section shall be substituted, namely 37. 1 The purchaser of an entire estate in the permanently settled districts of West Bengal sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed after the time of settlement and shall be entitled to avoid and annul all tenures, holdings and leases with the following exceptions - a tenures and holdings which have been held from the time of the permanent settlement either free of rent or at a fixed rent or fixed rate of rent, and b i tenures and holdings number included in exception a above made, and other leases of land whether or number. for purposes . companynected with agriculture or horticulture, existing at the date of issue of the numberification sale of the estate under this Act x x x x For the purposes of this section - a 1 tenure includes a tenure as defined in the Bengal Tenancy Act, 1885, x x x By virtue of s. 37 1 , is amended, the plaintiff as the purchaser of the entire estate, Touzi No. 6, sold for recovery of arrears on account of that Touzi, had acquired the estate free from all encumbrances and was entitled to avoid and annul, all tenures except those -detailed in a and b of that section. Section 37 1 a would number companye into operation in this case because the finding is that the defendants had failed to prove the existence of tenure since the time of the Permanent Settlement. But Cl. b i would apply if it was a tenure in existence at the date of the issue of the numberification for the sale of the estate. The defendants property was a tenure so in existence, on the finding by the High Court that the tenure had been in existence from before 1910. On the facts so found, what is the legal position? The Amending Act of 1950 was intended to grant relief to tenure holders under proprietors whose estates had been sold under the Act of 1869, if those tenures had number been wiped out as a result of annulment under s. 37 of the old Act, and those annulments had become accomplished facts before the Amending Act came into force on March 15, 1950. Section 4 grants relief to tenure-holders even in respect of revenue sales held before that date, if the provisions of s. 7 which give retrospective operation as aforesaid to the substantive provisions of the Amending Act, which had extensively cut down the rigours of the old s. 37 are attracted, Section 7 companytemplates three kinds, of cases, namely, 1 a pending suit or proceeding for the ejectment of any person in respect of his tenure or lease-hold, irrespective of whether or number the lease was for purposes companynected with agriculture or horticulture 2 pending appeal or application for review or application for revision arising out of 1 above, this appeal or application being one by an unsuccessful plaintiff and number by an unsuccessful defendant, because the abatement companytemplated by the section intended to close the door against an attack on pre-existing title and number against defence of such a title and 3 a final decree or order made for ejectment. A decree or order against which an appeal has been filed and has been pending on the date of the companymencement of the Act, if it is by the unsuccessful plaintiff or applicant, would be companyered by s. 7 1 b whereas a decree or order for ejectment which has become final because either numberappeal was preferred against it, or if there had been one, it bag been finally decided, would be within the purview of s. 7 2 . If such a final decree for ejectment has been executed by delivery of possession of the land in question, before the companymencement of the Amending Act, the legislature did number intend to reopen such closed transactions. But except these, in all the categories 1 to 3 above, if the suit, appeal, or proceeding companyld number have been validly instituted, preferred or made, in terms of the Amending Act, all those pending suits or appeals or applications would abate according to s. 7 1 a and b and the decrees would become void according to s. 7 2 . Under which category would the suit in the instant case companye? It is well-settled that a pending appeal is a companytinuation of the suit out of which it arises. In other words, the suit is pending on appeal. Hence, the present suit, which was pending in the High Court on the date the Amending Act came into force, will companye within the purview of s. 7 1 a . It will number companye under the second category because it is number on appeal by an unsuccessful plaintiff, number will it companye under category 3 above, because the decree passed against the defendant had number become final in the sense already indicated. Hence, in partial disagreement with the High Court, we hold that the suit pending in the High Court on appeal had abated on March 15, 1950, under s.7 1 a as soon as the Amending Act came into force. ID this view of the matter, it is number necessary to companysider the effect of the delivery. of possession, given as aforesaid, during the pendency of the appeal in the High Court. In the result, the appeal fails and is dismissed, though number for the same reasons as prevailed in the High Court.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 645 of 1962. Appeal by special leave from the judgment and order dated August 2, 1960, of the Punjab High Court Circuit Bench at Delhi in Letters Patent Appeal No. 27-D of 1959. K. Daphtary, Attorney-General for India and R. H. Dhebar, for the appellant. C. Chatterjee, A. N. Sinha and K. K. Sinha, for the respondent. August 30, 1963. The judgment of the companyrt was delivered by GAJENDRAGADKAR J.-Two short questions of law arise for our decision in the present appeal. The first question is whether Government is companypetent to differ from the findings of fact recorded by the enquiry officer who has been entrusted with the work of holding a departmental enquiry against a delinquent government servant under Rule 55 of the Civil Services Classification, Control and Appeal Rules and the other question is whether the High Court in dealing with a writ petition field by a Government Officer who has been dismissed from Government service is entitled to hold that the companyclusion reached by the Government in regard to his misconduct is number supported by any evidence at all. As our judgment will show, we are inclined to answer both the questions in the affirmative. Thus, the appellant, the Union of Union of India. succeeds on the first point, but fails on the second. At the hearing of this appeal, the learned Attorney-General told us that the appellant was fighting this appeal as a test case number so much to sustain the order of dismissal passed against the respondent is to obtain a decision from this Court on the two points of law raised by it in the present appeal. The above two points arise in this way. The respondent, H. Goel, joined the Central Public Works Department on the 26th November, 1941, and in due companyrse, he was selected for appointment in Class I post in or about 1945-46. In January, 1956, he was posted as Surveyor of Works at Calcutta. It appears that he felt that his seniority had number been properly fixed and so, he had made a representation in that behalf to the Union Public Service Commission. He happened to go to Delhi about the middle of January, 1956. Then, he called on Mr. R. Rajagopalan, who was the Deputy Director of Administration, at his residence on the 19th January, 1956. His idea in seeing Mr. RajaGopalan was to acquaint him with the merits of his case. In the companyrse of his companyversation with Mr. Rajagopalan it is alleged that be apologised for number having brought rasagullas for the children of Mr. Rajagopalan. There- upon, Mr. Rajagopalan frowned and expressed his displeasure at the implied suggestion. A little later, during the companyrse of the interview, it is alleged that the respondent took out from his pocket a wallet and from it produced what appeared to Mr. Rajagopalan to be a folded hundred rupee numbere. Mr. Rajagopalan showed his stern disapproval of this companyduct, whereupon the respondent said No and put the wallet with the numbere in his -pocket. After a few minutes the interview ended and the respondent left Mr. Rajagopalans -place. Soon thereafter Mr. Rajagopalan reported the incident to Mr. Ananthakrishnan, Director of Administration, C.P. W.D., and at his suggestion be submitted a companyplaint in writing. In this companyplaint. Mr. Rajagopalan narrated the incidents as they had occurred and added that at the end of the interview, the respondent asked him whether he companyld meet Mr. Rajagopalan again the next day to know about the result of his representation, and Mr. Rajagopalan told him that he might make the enquiry when he happened to visit Delhi next. On receiving this companyplaint from Mr. Rajagopalan, the appellant decided to hold a departmental enquiry against the respondent, suspended him and served a numberice on him on the 9th February, 1956, setting forth the charges against him and calling upon him to show cause why disciplinary action should number be taken against him. This numberice companytained four charges which read thus- Meeting the Deputy Director, Administration, C.P.W.D., at his residence without necessary permission. Voluntarily expressing regret at his number having brought sweets from Calcutta for the Deputy Directors children. Offering a currency numbere which from size and companyour appeared to be a hundred rupee numbere as bribe with the intention of persuading Deputy Director, Sri Rajagopalan to support his representation regarding his seniority to the U.P.S.C. Violation of Rule 3 of the C.C. S. Conduct Rules . The respondent tendered his explanation and the matter was enquired into under Rule 55 of the Civil Services Rules by Mr. Kapoor. The Enquiry Officer examined Mr. Rajagopalan and the respondent, companysidered the evidence produced before him, and came to the companyclusion that the charges framed against the respondent had number been satisfactorily proved. This report was made by the enquiry officer on the 10th April, 1956. The appellant companysidered the report submitted to it by Mr. Kapoor and provisionally came to the companyclusion that the respondent should be dismissed from service, and accordingly issued a second numberice against the respondent on the 14th June, 1956. The respondent submitted his explanation in response to this numberice. At that stage, the respondents case was referred to the Union Public Service Commission. By its report made on the 30th October, 1956, the Commission took the view that the first charge should be dropped the second charge was hardly a matter justifying framing of a charge against the officer the third charge had number been proved on the basis of the available evidence and in view of the said companyclusion, the Commission thought that the fourth charge failed automatically. The Commission accordingly advised the appellant that numbere of the penalties provided for in Rule 49 of the Civil Rules need be inflicted on the respondent. The appellant companysidered the matter afresh in the light of the report received from the U.P.S.C., but since it adhered to the companyclusion which it had provisionally reached before issuing the second numberice against the respondent, it requested the Commission to reconsider the matter and re- mitted the said matter to it on the 8th December, 1956. The Commission, on re-examining the matter, adhered to its earlier views and companyveyed the same to the appellant on the 15th January, 1957. The appellant companysidered the whole case again and came to the companyclusion that a case had been established against the respondent for his dismissal, and so, by its order passed on the 13th March, 1957, dismissed him from service. The respondent then moved the Punjab High Court by his writ petition No. 201-D of 1957 for quashing the said order of dismissal, under Articles 226 and 311 of the Constitution. A learned Single Judge of the said High Court heard the matter and came to the companyclusion that the respondent had number made out a case for quashing the order of dismissal passed against him. The respondent then preferred an appeal under the Letters Patent and a Division Bench of the said High Court which heard the Letters Patent Appeal has allowed the respondents appeal. It has held that in view of the fact that the Enquiry Officer had made a report in favour of the respondent, it was number open to the appellant to differ from his findings and inasmuch as the impugned order of dismissal was passed by the appellant as a result of its companyclusion that the findings of the enquiry officer were erroneous, the said order companytravened the provisions of Art. 311 of the Constitution. That is how the writ petition filed by the respondent was allowed and his dismissal set aside The appellant then applied for a certificate to the High Court but the said application was rejected. The appellant then moved this Court for special leave and it is with the special leave granted by this Court that it has brought the present appeal before us. The first question which calls for our decision is whether it was companypetent to the appellant to take a different view on the evidence adduced against the respondent and proceed on the basis that the companyclusions of fact recorded by the enquiry officer were unsound and erroneous. If it is held that the appellant was precluded from differing from the companyclusions of the enquiry officer, then, of companyrse, the subsequent steps taken by the appellant would be in- companysistant with Art. 311 of the Constitution. On the other hand, if the companypetence of the appellant to differ from the companyclusions of the enquiry officer cannot be seriously ques- tioned, then the argument that the appellant companytravened Art. 311 when it issued the second numberice against the res- pondent cannot succeed. Article 311 companysists of two sub-articles and their effect is numberlonger in doubt. The question about the safeguards provided to the public servants in the matter of their dis- missal, removal or reduction in rank by the Constitutional provision companytained in Art. 311, has been examined by this companyrt on several occasions. It is number well-settled-that a public servant who is entitled to the protection of Art. 311 must get two opportunities to defend himself. He must have a clear numberice of the charge which he is called upon to meet before the departmental enquiry companymences, and after he gets such numberice and is given the opportunity to offer his explanation, the enquiry must be companyducted according to the rules and companysistently with the requirements of natural justice. At the end of the enquiry, the enquiry officer appreciates the evidence, records his companyclusions and submits his report to the Government companycerned. That is the first stage of the enquiry, and this stage can validly begin only after charge has been served on the delinquent public servant. After the report is received by the Government, the Government is entitled to companysider the report and the evi- dence led against the delinquent public servant. The Gov- ernment may agree with the report or may differ, either wholly or partially, from the companyclusions recorded in the report. If the report makes findings in favour of the public servant, and the Government agrees with the said findings, numberhing more remains to be done, and the public servant who may have been suspended is entitled to reinstatement and companysequential reliefs. If the report makes findings in favour of the public servant and the Government disagree with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second numberice against him in that behalf. If the enquiry officer makes findings, some of which are in favour of the public servant and some against him, the Government is entitled to companysider the whole matter and if it holds that some or all the charges framed against the public servant are, in its opinion, prima facie established against him, then also the Government has to decide provisionally what punishment should be imposed on the public servant and give him numberice accordingly. It would thus be seen that the object of the second numberice is to enable the public servant to satisfy the Government on both the companynts, one that he is innocent of the charges framed against him and the other that even if the charges are held proved against him, the punishment proposed to be inflicted upon him is unduly severe. This position under Art. 311 of the Con- stitution is substantially similar to the position which governed the public servants under s. 240 of the Government of India Act, 1935. The scope and effect of the provisions of s. 240 of the Government of India Act, 1935, as well as the scope and effect of Art. 311 of the Constitution have been companysidered by judicial decisions on several occasions and it is unnecessary to deal with this point in detail, vide The Secretary of State for India v. I. M. Lal 1 , High Commissioner for India and High Commissioner for Pakistan v. M. Lal 2 and Khem Chand v. Union of India Ors. 3 . These reported decisions would show, that it has never been suggested that the findings recorded by the enquiry officer companyclude the matter and that the Government which appoints the enquiry officers and directs the enquiry is bound by the said findings and must act on the basis that the said findings are final and cannot- be reopened. The High Court has, however, held that there are certain observations made by the Federal Court in the case of I. M. Lal 1 , and by this Court in the case of Khem Chand 3 which support the respondents companytention that the appellant was bound by the findings recorded by the enquiry officer in his favour in the present enquiry proceedings Before referring to these observations, it is relevant to examine this companytention on principle. It is obvious that the enquiry officer holds the enquiry against the respondent as a delegate of the appellant. That indeed is the character which the enquiry officer inevitably occupies when he holds a departmental enquiry at the instance of the Government. The object of the enquiry is plain. It is to enable the Government to hold an investigation into the charges framed against a delinquent public servant, so that the Government can, in due companyrse, companysider the evidence adduced and decide whether the said charges are proved or number. The interposition of the enquiry which is held by a duly appointed enquiry officer does number alter the true legal position that the charges are framed by the Government and it is the Government which is empowered to impose punishment on the delinquent public servant. Therefore, on principle, it is diffi- 1 1945 F.C.R. 1-03. 2 75, I.A. 225. 2 1958 S.C.R. 1080. cult to see how the respondent is justified in companytending that the findings recorded by the enquiry officer bind the appellant in the present case. If the companytention raised by the respondent were to be upheld, it would lead to illogical and almost fantastic results. If the enquiry officer makes findings against the public servant, on the respondents companytention the Govern- ment can never re-examine the matter, so that even if the Government were satisfied that the findings against the public servant were erroneous, it must proceed on the basis that the public servant is guilty and impose some punishment on him. It is obvious that this proposition is entirely inconsistant with the Constitutional rights of the appellant which is the appointing authority and which has the power to impose the punishment on the respondent. Similarly, if the enquiry officer makes findings in favour of the public servant, on the respondents case that is final and however illogical, erroneous or unsound the said findings may be, the appellant is powerless and must act on the basis that the public servant is innocent. That again is a very anomalous position and it ignores the true Con- stitutional rights of the appellant and the character of the enquiry officer and the scope of his enquiry. Sometimes, several charges are framed and findings are recorded by the enquiry officer in respect of them. In such cases, Government may accept some findings and may reject others, and it has naturally to proceed to take the next step in the light of its own companyclusions. Such a case arose before this Court in The State of Assam and Anr. v. Bimal Kumar Pandit 1 . Dealing with the requirements which the second numberice must satisfy in such a case, this Court has held that the said numberice must indicate to the public servant clearly the grounds on which the Government provisionally intends to act in imposing the proposed punishment specified in the numberice. Besides, it would be apparent that if the respondents argument is valid, then the second numberice would serve very little purpose. If, at that stage, the Government is bound to accept the findings of the enquiry officer, the opportunity whichis intended to be given to the public servant to show causenot only against the proposed punishment but also 1 1964 2 S.C.R. 1. against the findings recorded against him, would be defeat- ed, because on the respondents case Government cannot alter the said findings. In our opinion, the companytention raised by the respondent is patently unsound and must be rejected. In this companynection, we may add that unless the statutory rule or the specific order under which an officer is appointed to hold an enquiry so requires, the enquiry offi- cer need number make any recommendations as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proved at the enquiry if, however, the enquiry officer makes any recommendations, the said recommendations like his findings on the merits are intended merely to supply appropriate material for the companysideration of the Government. Neither the findings, number the recommendations are binding on the Government, vide A. DSilva v. Union of India 1 . Let us number briefly companysider whether the observations on which the respondent rests Ms case justify his companytention. In The Secretary of State for India v. I. M. Lal 2 Spens J. examined the provisions of s. 240 3 of the Government of India Act, 1935, and observed that the said sub-section involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal, or reduction in rank, that the person companycerned shall be told in full, or adequately summarised form, the results of that enquiry and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should number suffer the proposed dismissal or reduction. Mr. Chatterjee suggests that these observations indicate that it is only on the basis of the findings recorded by the enquiry officer that the second numberice can be issued. In our opinion, this argument is companypletely misconceived. ID the case of 1. M. Lal, the findings were against him and it is by reference to the said findings that the observations made by Spens C. J. must be companysidered. If the findings are against the public servant, and the Government on companysidering the evidence, accepts the said findings provisionally, it would be right to say that on the said findings the second numberice is served on the public servant, and so, I 1962 Supp. 1 S.C.R. 968, 2 1945 F.C.R. 103. he should be given a clear idea as to the nature of the said findings. That, of companyrse, does number mean that the findings of the enquiry officer arc binding and virtually companyclude the matter. The same companyment has to be made about the observations made by S. R. Das C.J. in the case of Khem Chand 1 . Summarising his companyclusions, the learned Chief justice observed, inter alia, that the second opportunity to which a public servant is entitled can be effective only if the companypetent authority after the enquiry is over and after applying its mind to the gravity or otherwise of the charges proved against the Government servant, tentatively proposes to inflict one of the three punishments and companymunicates the same to the Government servant. It is obvious that when the learned Chief justice refers to the charges proved against the Government servant, it is number intended to be suggested that the findings made by the enquiry officer in that behalf arc final. The enquiry report along with the evidence recorded companystitute the material on which the Government has ultimately to act. That is the only purpose of the enquiry held by companypetent officer and the report which he makes as a result of the said enquiry. Therefore, we have numberhesitation in holding that the High Court was in error in companying to the companyclusion that the appellant was number justified in differing from the findings recorded by the enquiry officer. As we have just indicated, if it is held that the report of the enquiry officer is number binding on the Government, then the Constitutional safeguard afforded by Art. 311 1 2 cannot be said to have been companytravened by the appellant and the grievance made by the respondent in that behalf must fail. This companyclusion does number finally dispose of the appeal. It still remains to be companysidered whether the respondent is number right when he companytends that in the circumstances of this case, the companyclusion of the Government is based on numberevidence whatever. It is a companyclusion which is perverse and-, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by public servants who have been dismissed, or other- 1 1958 S.C.R. 1080. wise dealt with so as to attract Art. 311 2 , the High Court under Art. 226 has Jurisdiction to enquire whether the companyclusion of the Government on which the impugned order of dismissal rests is number supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasijudicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate companyclusion of the Government in the said proceedings which is the basis of his dismissal is based on numberevidence. In fact, in fairness to the learned Attorney-General, we ought to add that he did number seriously dispute this, position in law. He, however, attempted to argue that if the appellant acted bona fide, then the High Court would number be justified in interfering with its companyclusion though the High, Court may feel that the said companyclusion is based on numberevidence. His companytention was that cases where companyclusions. are reached by the Government without any evidence, companyld Dot, in law, be distinguished from cases of mala fides and so he suggested that perverse companyclusions of fact may be and can be attacked only on the ground that, they are mala fides, and since mala fides were number alleged in the present case, it was number open to the respondent to companytend that the view taken by the appellant can be companyrected in writ proceedings. We are number prepared to accept this companytention. Malafide exercise of power can be attacked independently on the ground that it is mala fide. Such an exercise of power is always liable to be quashed on the main ground that it is number a bona fide exercise of power. But we are number prepared to hold that if mala fides are number alleged and bona fides are assumed in favour of the appellant, its companyclusion on a question of fact cannot be successfully challenged even if it is manifest that there is numberevidence to support it. The two infirmities are separate and distinct though, company- ceivably, in some cases, both may be present. There may 47- 2 S. C. India/64 be cases of numberevidence even where the Government is acting bona fide the said infirmity may also exist where the Government is acting mala fide and in that case, the companyclusion of the Government number supported by any evidence may be the result of mala fides, but that does number mean that if it is proved that there is numberevidence to support the companyclusion of the Government, a writ of certiorary will number issue without further proof of mala fides. That is why we are number prepared to accept the learned AttorneyGenerals argument that since numbermala fides are alleged against the appellant in the present case, numberwrit of certiorari can be issued in favour of the respondent. That takes us to the merits of the respondents companytention that the companyclusion of the appellant that the third charge framed against the respondent had been proved, is based on numberevidence. The learned Attorney-General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out companyruption, and so, if it is shown that the view taken by he appellant is a reasonably possible view, this Court should number sit in appeal over that decision and seek to decide whether this Court would have taken the same view or number. This companytention is numberdoubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondents case is, is there any evidence on which a finding can be made against the respondent that charge No. 3 was proved against him? In exercising its jurisdiction under Art. 226 on such a plea, the High Court cannot companysider the question about the sufficiency or adequacy of evidence in support of a particular companyclusion. That is a matter which is within the companypetence of the authority which dealt with the question but the High Court can and must enquire whether there is any evidence at all in support of the impugned companyclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the companyclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned companyclusion follows or number. Applying this test, we are inclined to hold that the respondents grievance is well-founded because, in our opinion, the find- ing which is implicit in the appellants order dismissing the respondent that charge number 3 is proved against him is based on numberevidence. The facts relating to this narrow point are very few. The respondent expressed his regret to Mr. Rajagopalan that he had number brought rasagullas for his children. There is some companytroversy as to whether this statement was made by the respondent at the beginning of his interview with Mr. Rajagopalan or at its end. The companyplaint made by Mr. Rajagopalan shows that the interview began with the respondents expression of regret that he had number brought sweets for Mr. Rajagopalans,children. Mr. Rajagopalan in his evidence stated that this statement was made by the respondent at the close of the interview. One fact is clear that the respondent did express regret that he had number taken sweets to Mr. Rajagopalans place. If the respondents version that he said so at the beginning of the interview is believed, particularly when it is supported by the companyplaint made by Mr. Rajagopalan, it may show that the stern disapproval expressed by Mr. Rajagopalan on hearing the said remark from the respondent must have acted as a warning to him. That, however is another Matter. Then, as to the hundred rupee numbere which according to Mr. Rajagopalan, was taken out by the respondent from his wallet, Mr. Rajagopalan has admitted that the said numbere was folded double. He says, that be numbericed that its companyour was blue and that its size was bigger than the usual ten rupee or five rupee numbere. Mr. Rajagopalan who appears to be a straightforward officer gave his evidence in a very honest way. He frankly told the enquiry officer that it companyld number be said that the hundred rupee numbere which he thought the respondent took out from his wallet had been offered to him by the respondent, but he thought that the whole thing had to be viewed in the companytext of the matter. He also admitted that his eye-sight was number perfect. The respondent, on the other hand, suggested that in reply tothe questions which Mr. Rajagopalan put to him he tookout some papers from his pocket to find out the letter ofhis appointment, and as soon as Mr. Rajagopalan appeared to discourage him, he put the said paper in his pocket. Now, in this state of the evidence, how can it be said that respondent even attempted to offer a bribe to Mr. Raja- gopalan. Mr. Rajagopalan makes a definite statement that respondent did number offer him a bribe. He merely refers to the fact that respondent took out a paper from his wallet and the said paper appeared to him like a hundred rupee numbere duble folded. Undoubtedly, Mr. Rajagopalan suspected the respondents companyduct, and so, made a report immediately. But the suspicion entertained by Mr. Rajagopalan cannot, in law, be treated as evidence against the respondent even though there is numberdoubt that Mr. Rajagopalan is a straightforward and an honest officer. Though we fully appreciate the anxiety of the appellant to root out companyruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should number be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in companyrts may number necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are number punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully companysidered the evidence led in the present enquiry and borne in mind the plea made by the learned AttorneyGeneral, but we are unable to hold that on the record, there is any evidence which can sustain the finding of the appellant that charge No. 3 has been proved against the respondent. It is in this companynection and only incidentally that it may be relevant to add that the U.P.S.C. companysidered the matter twice and came to the firm decision that the main charge against the respondent had number been established. The result is, though the appellant succeeds on the principle point of law raised in the appeal, the appeal fails, because, on the merits, we hold that numbercase had been made out for punishing the respondent.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 95 of 1961. Appeal by special leave from the judgment and order dated February 15, 1961, of the Allahabad High Court in Criminal Appeal No. 1597 of 1960. S. Tewatia and K. B. Mehta, for the appellants. P. Rana and C. P. Lal, for the respondents. August 29, 1963. The judgment of the Court was delivered by HIDAYATULLAH J.-This is an appeal by special leave against the judgment of the High Court of Allahabad in Criminal Appeal No. 1597 of 1960 decided on February 15, 1961. The appellants are eight in number and they have been companyvicted under S. 325 read with S. 149 of the Indian Penal Code and sentenced to three years rigorous imprisonment. They have also been companyvicted variously under ss. 147 148, Indian Penal Code and sentenced to smaller terms of imprisonment which need number be mentioned as those sentences are made to run companycurrently with the above sentence. They were originally charged under S. 302 read with S. 149, Indian Penal Code for the murder of one Tikam on January 24, 1960 at about numbern in village Nandgaon Police Station Barsana District Mathura. The Session Judge, Mathura, did number think that a case of murder was made out and companyvicted them of the lesser offence. Their appeal to the High Court was dismis- sed and the companyviction and sentences were maintained. There was yet another trial at which these eight persons and four others were tried under S. 307/149, Indian Penal Code for causing hurt to one Puran with such intention and under such circumstances that if by that act they had caused his death they would have been guilty of murder and also under ss. 147 148 of the Penal Code for being members of an unlawful assembly, the companymon object of which was an attempt on Purans life. The learned Sessions judge, Mathura held in the second case that the injuries sustained by Puran warranted an offence under s. 323, Indian Penal Code. The accused and Puran companypounded that offence and all the accused were acquitted. The Sessions judge, however, companyvicted 11 out of 12 accused under ss. 147 148, Indian Penal Code and awarded different sentences, according to the weapons possessed by them. One Koka was acquitted because his plea that he was blind from birth was accepted. The 11 accused in the second case appealed to the High Court and were acquitted of the charge of being members of an unlawful assembly. That Judgment of the High Court was delivered on January 31, 1961, in Criminal Appeal No. 1598 of 1960, fifteen days before the companyfirmation of the companyviction and sentences of the eight appellants in this appeal. The facts of the case may number be given. There was enmity between Tikam deceased and the appellants and on January 24, 1960, just about numbern time Tikam was sitting at the shop of a blacksmith in village Nandgaon. Dulli and Nathi who were examined as P. Ws. 2 3 were sitting near him. The appellants who were armed with Ballams, a Pharsa and Lathis arrived on the spot and on seeing Tikam started to assault him. Tikam was severely injured and fell in a ditch adjacent to the road but even after he fell in it the assault was companytinued by the appellants. He died the same day about five hours later. After assaulting Tikam, these appellants decided to ransack his house and started towards it. On the way they were met by the other four accused and this brought their number to twelve. While they were going to the house of Tikam they saw Puran and decided to beat him. Puran was assaulted and the second case arose out of the assault on him. The learned magistrate who companymitted the accused to stand their trial before the Court of Sessions framed a companymon charge in respect of the two incidents but the Sessions judge amended the charge and divided it into two charges namely one companynected with the attack on Tikam and the other companynected with the attack on Puran., He also separated the two trials on the two charges. As stated already lie companyvicted the eight appellants in respect of their assault on Tikam and the same appellants with three others in respect of their assault on Puran. The appeal in the second case was heard first and was allowed by the High Court and the 11 appellants in that appeal including the eight before us were ordered to be acquitted. It was companytended before us by Mr. Tewatia that Mr. Justice Sharma who delivered the judgment impugned before us did number allow the appellants a chance to reply to the arguments on behalf of the State and thus denied them a fair hearing. This fact was mentioned in the petition for certificate in the High Court and has been repeated in the petition for special leave. Mr. Justice Sharma had proceeded to deliver judgment as soon as the arguments were over and the judgment was delivered by him on two companysecutive days in the presence of the appellants and their companynsel. If any such right had been denied to the appellants they should have brought the matter immediately to the numberice of the learned Judge and he would have rectified it. It appears that the appellants were hoping for an acquittal in view of the prior acquittal by the learned judge in the companypanion case and realised too late that their appeal was number accepted. It is for this reason that they do number appear to have raised this issue before the learned Judge when they asked him to certify the appeal and his Order does number show that they made a grievance that the hearing was number fair. In our opinion this point cannot be companysidered because though. it was mentioned in the petition for certificate it was apparently number pressed before Mr. Justice Sharma. The next companytention of the appellants is that the prior acquittal in the second case operates as a bar to the companyviction in the present case and the High Court ought to have given the appellants the benefit of the prior ac- quittal. Reliance in this companynection is placed upon a de- cision of the Privy Council in a case from Malaya State reported in Sambasivam v. Public Prosecutor Federation of Malaya 1 and particularly the following passage from the judgment of Lord Mac Dermott The effect of a verdict of acquittal pronounced by a companypetent companyrt on a lawful charge and after a lawful trial is number companypletely stated by saying that the person acquitted cannot be tried again for the same offence. 1950 A.C., 458 at p. 479. To that is must be added that the verdict is binding and companyclusive in all subsequent proceedings between the parties to the adjudication. The maximum Res judicata pro veritate accipitur is numberless applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the companyrectness of that verdict and wasprecluded from taking anystep to challenge it at the second trial. And the ap- pellant was numberless entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was number companyclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other. The above passage was cited with approval by this Court in Pritam Singh v. State of Punjab 1 . The two cited cases were companysidered and distinguished by this Court in Mohinder Singh v. State of Punjab 2 and Pritam Singhs case was again distinguished in Gurcharen Singh anr. v. State of Punjab 1 . As pointed out in Mohinder Singh v. State of Punjab 2 , the case of the Privy Council involved a companyfession by an accused in which he admited possession of a firearm and some ammunition which were both offences under the relative law of Malaya State. He was companyvicted on the basis of that statement on two companynts but on appeal was acquitted in respect of the companynt relating to the possession of ammunition and a fresh trial was ordered in respect of the companynt relating to the possession of the firearm. In the second trial the companyfession was again relied upon and he was companyvicted. The Privy Council set aside the companyviction because the companyfession was incapable of being divided into two parts so as to make separate companyfessions about the A.I.R. 1956 S.C. 415. . Cr. A. No. 140 of 1961, decided on 31-7-63 Unreported . 3 1963 3 S.C.R. 585. possession of firearm and about the possession of am- munition. Their Lordships held that the companyfession which was indivisible companyld number be used at all, in view of the acquittal recorded earlier on the other companynt. In Pritam Singhs case 1 the accused made a statement leading to the recovery of a firearm with which he was alleged to have shot one of the victims. He was prosecuted for possession of the firearm and was acquitted but the evidence of the possession of the firearm was used in the murder charge. This was held to be number permissible. As explained in Mohinder Singhs case 2 , the acquittal in respect of the possession of firearm affected the admissibility of the same evidence in companynection with the murder case, because the firearm companyld number at the same time be possessed as well as number possessed by the accussed. The acquittal under the Arms Act,, being proper, affected the evidence of possession in the murder case. In Mohinder Singhs case 2 as well as in Gurcharans 3 case Pritams 1 case was distinguished because in those cases, the acquittal under the Arms Act was later than the companyviction on the substantive charge. There is numberhing in companymon between the present appeal and the two cases relied upon by the appellants. In this case there is numberdoubt a prior acquittal but on a charge which was quite different from and independent of the charge in the present case. The assault on Tikam was over when the unlawful assembly formed its number companymon object namely the assault on Puran. The acquittal proceeded mainly because Puran companypounded the offence under s. 323 and the High Court did number feel impressed by the evidence about the remaining charges, The charges on which that acquittal took place had numberhing whatever to do with the charges on which there is companyviction in the present appeal. A plea of autrefois acquit which is statutorily recognised in India under s. 403 of the Code of Criminal Procedure arises when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made un- A.I.R. 1956 S. C. 415. Cr. A. No. 140 of 1961, decided on 31-7-63 unreported . 3 1963 3 S.C.R. 585. der s. 236 or for which he might have been companyvicted under s. 237. Section 236 provides for a situation where it is doubtful what offence has been companymitted. When a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will companystitute, that section permits that the accused may be charged with having companymitted all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having companymitted some one of such offences. Section 237 enables the Court to companyvict an accused charged with one offence for a different offence where the facts show that a different offence has been companymitted. Neither of these provisions is applicable to the present facts because the two offences were distinct and spaced slightly by time and place. The trials were separate as the two incidents were viewed as distinct transactions. Even if the two incidents companyld be viewed as companynected so as to form parts of one transaction it is obvious that the offences were distinct and required different charges. The assault on Tikam in fulfilment of the companymon object of the unlawful assembly was over when the unlawful assembly proceeded to the house of Tikam to loot it. The new companymon object to beat Puran was formed at a time when the companymon object in respect of Tikam had been fully worked out and even if the two incidents companyld be taken to be companynected by unity of time and place which they were number , the offences were dis- tinct and required separate charges. The learned Sessions judge was right in breaking up the single charge framed by the magistrate and ordering separate trials. In this view the prior acquittal cannot create a bar in respect of the companyviction herein reached. It was companytended by Mr. Tewatia that the earlier judgment involved almost the same evidence and the reasoning of the learned judge in Purans case destroys the prosecution case in the present appeal. He attempted to use the earlier judgment to establish this point. In our opinion he cannot be allowed to rely upon the reasoning in the earlier judgment proceeding as it did upon evidence which was separately recorded and separately companysidered. The eye witnesses in this case are five in number, while in the other case there were only two, but that apart, the earlier judgment can only be relevant if it fulfils the companyditions laid down by the Indian Evidence Act in ss. 40-43. The earlier judgment is numberdoubt admissible to show the parties and the decision but it is number admissible for the purpose of relying upon the appreciation of evidence. Since the bar under s. 403 Criminal Procedure Code did number operate, the earlier judgment is number relevant for the interpretation of evidence in the present case. Mr. Tewatia attempted to argue on the facts of this case but we did number permit him to do so because this Court, in the absence of special circumstances, does number review for the third time, evidence, which has been accepted in the High Court and the Court below. No such circumstance has been pointed out to us to make us depart from the settled practice.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal NO. 80 of 1963. Appeal from the judgment and order dated April 4, 1962, of the Punjab High Court in Civil Writ No. 961 of 1961. The appellant appeared in person. K. Daphtary, Attorney General, Mohinder Singh Punnu, Deputy Advocate-General, Punjab and B. R. G. K. Achar for P. Menon, for the respondent. September 2, 1963. The judgment of S. K. Das, K. Subba Rao and N. Rajagopala Ayyangar, JJ., was delivered by N. Rajagopala Ayyangar, JJ. The dissenting Opinion of Raghubar Dayal and J. R. Mudholkar, JJ., was delivered by Raghubar Dayal, J. AYYANGAR, J.-This appeal is against a judgment of the High Court, Punjab, dismissing a petition filed by the appellant in that Court under Art. 226 of the Constitution and has been preferred pursuant to a certificate of fitness granted under Art. 133 1 c . The appellant was a Civil Surgeon in the employment of the State Government who had been granted leave preparatory to retirement, and subsequently, in June 1961, orders were passed by Government 1 revoking the leave he had originally been granted and recalling him to duty, 2 simultaneously placing him under suspension pending the result of an inquiry into certain charges of misconduct, and 3 ordering a departmental inquiry against him. The legality of these orders was challenged by the appellant in the petition that he filed in the High Court. The petition was dismissed by the learned Judges, but on application by the appellant, he was granted a certificate of fitness on the strength of which he has filed the present appeal. The facts of the case leading up to the appeal before us are set out by our learned Brother Dayal, J. in his judgment fully and in great detail and so we have thought it unneces- sary to cumber this judgment with them. Two points were urged before us by the appellant who argued the case in person and presented the facts and the law with companymend- able clarity and moderation. The first of them was that every one of the impugned orders of June 1961 a recalling him from the leave previously granted, b placing him under suspension pending an inquiry, and c starting an inquiry against him were illegal for the reason that such action on the part of Government was companytrary to and number permitted by the relevant Service Rules applicable to him. The second ground of challenge was that these orders, assuming them to be within the power of Government on a proper interpretation of the rules were passed mala fide, by or at the instance of the Chief Minister, Punjab, who was personally hostile to him by reason of certain incidents and circumstances which he set out and that the impugned orders were prompted by the desire on the part of the Chief Minister to wreak personally his vengeance on the appellant. The relevant rules on the topic as well as their interpre- tation have all been dealt in the judgment of Dayal, J., and we agree in the main with his companyclusion that the orders impugned were number beyond the power of the Government. We should, however, add that we should number be taken to have accepted the interpretation which Dayal, J., has placed on each one of the several rules which he has companysidered. Besides, we should number be taken to have acceded to the submission of the learned Attorney-General who appeared for the respondent-State, that the provision in Art. 310 1 of the Constitution that members of a Civil Service of a State hold office during the pleasure of the Governor, companyferred a power on the State Government to companypel an officer to companytinue in service of the State against his will apart from service rules which might govern the matter even after the age of superannuation was reached, or where he was employed for a defined term, even after the term of his appointment was over. We companysider that to companystrue the expression the pleasure of the Governor in that manner would be patently unwarranted besides being companytrary to what this Court said in State of Bihar v. Abdul Majid 1 . In the view which we have taken on the second ground of challenge to the orders of Government we have number companysidered it necessary to examine in detail the several rules to which our attention was drawn or their proper interpretation. We shall number proceed to deal with the second point 1 1954 S.C.R. 786 at p. 799. urged before us viz., that the order was passed mala fide and so companyld number be allowed to stand. Before entering into the details of the allegations made, the evidence in their support and the inferences to be drawn therefrom, we companysider it useful to state the principles underlying this branch of the law. The Service Rules which are statutory vest the power to pass the impugned orders on the Govern- ment. The expression Government in the companytext is the functionary within the State who is vested with executive power in the relevant field. Of companyrse, the Constitution vests the executive power in a State in the Governor but he is companystitutionally directed to act on the aid and advice of his Ministers. In the case before us it is companymon ground that it was the Chief Minister who was incharge of the Health Department in which the appellant was employed and it was therefore the Chief Minister as the Minister in-charge of that portfolio who initiated these proceedings though the formal orders of the Ministry were issued by the Secretaries etc. of the Department in the name of the Governor. For the purposes of the present companytroversy the functionary who took action and on whose instructions the action was taken against the appellant was undoubtedly the Chief Minister and if that functionary was actuated by mala fides in taking that action it is clear that such action would be vitiated. In this companytext it is necessary to add that though the learned Attorney-General at first hinted that he would raise a legal companytention, that even if mala fides were established against the Chief Minister still the impugned orders companyld number be set aside, he did number further pursue the matter, but proceeded, if we may say so rightly, to persuade us that mala fides was number made out by the evidence on record. Such an argument, if right, would mean that even fraud or companyruption, leaving aside mala fides, would number be examinable by a Court and would number vitiate administrative orders. As Lord Denning said in Lazarus Estates, Ltd. v. Beasley 1 No judgment of a companyrt, numberorder of a Minister, can be allowed to stand if it has been obtained by fraud. In the circumstances we do number companysider it necessary to deal with this aspect more fully or in greater detail. If this were put aside, the second ground of attack on the orders may be viewed from two related aspects--of ultra vires 1 1956 1. All E.R. 341, 345. pure and simple and secondly as an infraction of the rule that every power vested in a public body or authority has to be used honestly, bona fide and reasonably, though the two often slide into each other. Thus Sir Lyman Duff, speaking in Municipal Council of Sydney v. Campbell 1 in the companytext of an allegation that the statutory power vested in a municipal companyporation to acquire property had been used in bad faith which was held to have been proved stated A body such as the Municipal Council of Sydney, authorised to take land companypulsorily for specified purposes, will number be permitted to exercise its powers for different purposes, and if it attempts to do so, the Courts will interfere. As Lord Loreburn said, in Marquess of Clanricarde v. Congested Districts Board 79 J.P. 481 Whether it does so or number is a question of fact. Where the proceedings of the Council are attacked upon this ground, the party impeaching those proceedings must, of companyrse, prove that the Council, though professing to exercise its powers for the statutory purpose, is in fact employing them in furtherance of some ulterior object. Similarly, in Short v. Poole Corporation Pollock M. R. observed The appellants represented before the Court by Maugham K. C.-afterwards Lord Maugham do number companytest the proposition that where an authority is companystituted under statute to carry out statutory powers with which it is entrusted, . . . if an attempt is made to exercise those powers companyruptly-as under the influence of bribery, or mala fide-for some improper purpose, such an attempt must fail. It is null and void see Reg. v. Governors of Darlington School 6 Q.B. 682, 715 . In, the same case Warrington, L.T., said No public body can be regarded as having statutory authority to act in bad faith or from companyrupt motives and any action purporting to be that of the body, but proved to be companymitted in bad faith or from companyrupt 1 1925 A.C. 338. 2 1926 1 Ch. 66, 85. motives, would certainly be held to be inoperative. It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of companyruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority companyferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide, Vide pages 90-91 . It was really the first aspect of ultra vires that was stressed by Lord Parker when in Vatcher v. Paull 1 at page 378 of the report he spoke of a power exercised for a purpose or with an intention beyond the scope of or number justified by the instrument creating the power. In legal parlance it would be a case of a fraud on a power, though numbercorrupt motive or bargain is imputed. In this sense, if it companyld be shown that an authority exercising a power has taken into account-it may even be bona fide and with the best of intentions,--as a relevant factor something which it companyld number properly take into account, in deciding whether or number to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Sometimes Courts are companyfronted with cases where the purposes sought to be achieved are mixed,-some relevant and some alien to the purpose. The companyrts have, on occasions, resolved the difficulty by finding out the dominant purpose which impelled the action, and where the power itself is companyditioned by a purpose, have proceeded to invalidate the exercise of the power when any irrelevant purpose is proved to have entered the mind of the authority See Sadler v. Sheffield Corporation 2 as also Lord Dennings observation Earl Fitzwilliam etc. v. Minister of T. C. Planning 3 . This is on the principle that if in such a situation the dominant purpose is unlawful then the act itself is unlawful and it is number cured by saying that they had another purpose which was lawful. As we said earlier, the two grounds of ultra vires and mala fides are thus most often inextricably mixed. Treat- 1 1915 A.C. 372. 2 1924 1 Ch. 483. 3 1951 2 K.B. 284, 307. ing it as a question of ultra vires, the question is what is the nature of the power? has it been granted to achieve a definite object?-in which case it would be companyditioned by the purpose for which it is vested. Taking the present case of the power vested in Government to pass the impugned orders, it companyld number be doubted that it is vested in Government for accomplishing a defined public purpose viz., to ensure probity and purity in the public services by enabling disciplinary penal action against the members of the service suspected to be guilty of misconduct. The nature of the power thus discloses its purpose. In that companytext the use of that power for achieving analien purpose-wreaking the ministers vengeance on theofficer would be mala fide and a companyourable exercise ofthat power, and would therefore be struck down by theCourts. In this companynection we might cite a dictum of Lord Lindley in General Assembly of Free Church etc.v. Overtoun 1 when the learned Lord said at page 695 I take it to be clear that there is a companydition implied in this as well as in other instruments which create powers, namely, that the power shall be used bona fide for the purposes for which they are companyferred. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by Government of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is number to be held established except on clear proof thereof, it is obviously difficult to establish the state of a mans mind, for that is what the appellant has to establish in this case, though this may sometimes be done See Edgington v. Fitzmaurice 2 . The difficulty is number lessened when one has to establish that a person in the position of a minister apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. We must, however, demur to the suggestion that mala fide in the sense of improper motive should be established only by direct evidence that is that it must be discernible from the order impugned or must be shown from the numberings in 1 1904 A.C. 515, 695. 2 1885 29 C.D. 459. the file which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. Pausing here, we might summarise the position by stating that the Court is number an appellate forum where the companyrectness of an order of Government companyld be canvassed and, indeed,. it has numberJurisdiction to substitute its own view as to the necessity or desirability of initiating disciplinary proceedings, for the entirety of the power, jurisdiction and discretion in that regard is vested by law in the Government. The only question which companyld be companysidered by the Court is whether the authority vested with the power has paid attention to or taken into account circumstances, events or matters wholly extraneous to the purpose for which the power was vested, or whether the proceedings have been initiated mala fide for satisfying a private or personal grudge of the authority against the officer. Ifthe act is in excess of the power granted or is an abuseor misuse of power, the matter is capable of interferenceand rectification by the Court. In such an event the fact that the authority companycerned denies the charge of mala fides, or asserts the absence of oblique mo- tives or of its having taken into companysideration improper or irrelevant matter does number preclude the Court from enquiring into the truth of the allegations made against the authority and affording appropriate reliefs to the party aggrieved by such illegality or abuse of power in the event of the allegations being made out. Before entering on a discussion of the question whether the appellant has established that the action of Government was vitiated by mala fides, we companysider it Pertinent to make a few preliminary observation. In companysidering the evidence we have kept in view the high position which the Chief Minister holds in the State and are companyscious of the fact that charges of a personal nature made against such a dignitary are number to be lightly accepted. We have also borne in mind that charges of personal hostility are easily and very often made by persons who are subjected to penal or quasi penal proceedings against those who initiate them, and have therefore made full allowance for these factors, and we have examined and weighed the evidence with anxious care. We would only add that the fact that two of our brethren feel differently on this matter has heightened our responsibility and in the care to be bestowed in appreciating the evidence. The Constitution enshrines and guarantees the rule of law and Art. 226 is designed to ensure that each and every authority in the State, including the Government, acts bona fide and within the limits of its power and we companysider that when a Court is satisfied that there is an abuse or misuse of power and its Jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual. It is with these companysiderations in mind that we approach the facts of this case. The allegations in the writ petition filed by the appellant on this matter may be summarised as follows The appellant was requested by the Chief Minister to perform an operation on his son--Surinder Singh-in April 1960. The operation was performed. The Chief Minister desired that after the operation his son should stay under the care of the appellant at Jullundur during his companyvalescence. Surinder, however, left the appellants place and the Chief Minister became angry for the supposed negligence of the appellant in permitting this to happen. The Chief Minister himself and the members of his family made several requests to the appellant to show undue favours to certain patients who were recommended to the appellant. These were companyplied with, but when subsequently the appellant refused to companyply with further requests the Chief Minister turned hostile. The Chief Ministers wife had been asking for medicines to be sent to her by the appellant for the use of herself, and her relations from the hospital stores of jullundur. The appellant, however, sent her the medicines, though number from the hospital but buying them himself in the market. The Chief Ministers wife also wanted some expensive articles like Singer Sewing machines etc. to be sent to her gratis. This the ap- pellant did but the refusal to companyply with fur- ther demands of the same type angered the Chief Minister. One Kirpa Singh was working as the manager of an automobile companycern known as National Motors, Jullundur which was either directly or indirectly owned by Surinder-the son of the Chief Minister. The appellant at the instance of the Chief Minister accommodated Kirpa Singh in his own house and besides provided him with board. This went on for about 7 months but in or about April, 1960 the appellant desired Kirpa Singh to look out for a lodging and board elsewhere and the latter had to do so. This was a further cause of irritation and anger for the Chief Minister. Several matters recited above were in April 1960 or thereabouts and as a result of the hostility developed by reason of these the appellant was accused, in September 1960, of showing undue favours to Akali prisoners who were lodged at the District Jail at Jullundur. This allegation was false and was later number pressed. The Chief Minister desired to have the help of the appellant as an expert to instruct the police officers who were companyducting the prosecution in what is known as the Karnal Murder case. The appellant had given some sort of assurance to the Chief Minister that the prosecution would succeed. It failed before the Sessions Judge and subsequently the appeal by the State was dismissed by the High Court of Punjab and finally an application for special leave was dismissed by this Court. The Chief Minister became very angry with the appellant because the assurance given to him that the prosecution would succeed had been belied and the Chief Minister felt chagrined at the result. One Dr. Dhillon who was a Junior Medical Officer in the Punjab Medical Service accompanied the Chief Minister as a medical attendant in 1956-57. Under the rules the Chief Minister was number entitled to this type of medical attention. There was some dispute as regards the salary payable to Dr. Dhillon during the period when he was with the Chief Minister. The appellant was requested to give a false certificate regarding the services of Dr. Dhillon. The Chief Minister companyplained that though several years had passed, Dhillons salary for the 45 days that he had been with the Chief Minister had number yet been paid to him. The appellant refused to companyply this demand and this was a further source of irritation and hostility. The appellants further case is that as a result of these incidents or sources of irritation and displeasure of the Chief Minister, the Chief Minister was thinking of taking some steps against him and that he got a companyplaint against him on October 29, 1960 which he sent up for investigation. The charge then made against the appellant was that on July 5, 1960 he had refused to examine a woman-patient who had companye to the hospital with an out-door chit and that the husband of the woman was forced to pay a sum of Rs. 16.00 for her examination at his residence. On the excuse that this companyplaint had been made, the appellant was transferred from Jullundur to Amritsar by an order dated December 6, 1960. It was stated by the appellant that in the State officers were usually transferred only during the months March or April, so that the education of their children etc. might number be interrupted by the change of station, but that his transfer in December was therefore out of the ordinary and done with a view to inconvenience and humiliate him and deprive him of his practice at Jullundur. The appellant thus having realised the hostility of the Chief Minister and number desiring to companytinue much longer in service, made an application for leave preparatory to retirement. He was reaching the age of 55 on June 15, 1961 and he applied for leave until that period. His leave was sanctioned with effect from December 18, 1960 and this was gazetted on January 27, 1961. It is this leave that was revoked by the impugned orders on June 3, 1961 and under these the ap- pellant was placed under suspension and an inquiry was started later in the matter. Between these two dates i.e. between December 1960 and June 1961, however, some events happened which 48-2 S. C. India/64 are set out in the petition require to be stated. It would be seen that when the leave preparatory to retirement which was applied for was sanctioned, the Government had already with them the companyplaint made on October 29, 1960 relating to the charge that the appellant had improperly demanded a sum of Rs. 16.00 from a patient desiring treatment at the Jullundur hospital. That related to an incident of July 1960 and was apparently number thought to be serious enough to justify the refusal of the leave applied for. But after the leave was sanctioned, in the issue of the Weekly newspaper Blitz dated the 15th January, 1961 there appeared an article in which allegations were made against the Chief Minister. Several of the allegations were those which we have mentioned earlier as having been made by the appellant in his petition and stated to be the reasons for the hostility of the Chief Minister. The appellant however was number named as such in the article. It must however have been apparent to those acquainted with the matter that it was the appellant from whom these favours were sought or obtained by the Chief Minister. It is the case of the appellant that the Chief Minister who was in Delhi at that time must have been apprised of the companytents of the article even on January 13, 1961 and this does number seem improbable because it is companymon knowledge that companyies of this weekly are available in Delhi even two days before the date it bears. In the absence of any affidavit from the Chief Minister, and there is numbere on the record, it is number possible to say whether the article in the Weekly was or was number seen by him on the 13th. On that day-January 13, 1961, however, the Inspector Vigilance , Jullundur addressed a companymunication to the appellant enquiring whether the appellant who had by then gone to Kanpur it is to he remembered he was then on leave would companye to Jullundur for clarifying certain points in relation to an inquiry which had been ordered by the Punjab Government. It is stated that this was in companynection with the companyplaint regarding the improper receipt of Rs. 16.00 from a patient who had companye to the hospital for treatment in July 1960. The Vigilance Inspector made some inquiries of the appellant and examined the records at the hospital in February, 1961. On March 18, 1961 the appellants wife wrote a letter to the Blitz companyfirming the allegations against the Chief Minister which had already appeared in that paper in its issue of January 15, 1961 and in the same month-March 1961 the appellants wife circulated Members of Parliament and others with the details ofthe allegations found in the newspaper. It is the case ofthe appellant that these matters occasioned the hostility of the Chief Minister and that the impugned orders passedin June 1961 were passed number bona fide for the purposeof companyducting an inquiry into his companyduct but to harassand humiliate him and thus wreak vengeance on him for the part that he played in bringing down the reputation of the Chief Minister by the disclosures. As we observed earlier, if the appellant is able to establish that the main object and purpose of the initiation of the inquiry was number in the interest of the Service or to ascertain any misconduct on the part of the appellant, but that the dominant motive and purpose was the harassment and humiliation of the appellant for his refusal to yield to the demands of the Chief Minister or the members of his family at some stages, and in defaming him openly at the later stage, it would clearly be a case of mala fides and the impugned orders have to be set aside. We shall first take up for companysideration the several allegations that have been made and see whether they had been satisfactorily made out. Before proceeding further it is necessary to state that allegations of a personal cha- racter having been made against the Chief Minister, there companyld only be two ways in which they companyld be repelled. First, if the allegations were wholly irrelevant, and even if true, would number afford a basis upon which the appellant would be entitled to any relief, they need number have been answered and the appellant companyld derive numberbenefit from the respondents number answering them. We have already dealt with this matter and have made it clear that if they were true and made out by acceptable evidence, they companyld number be ignored as irrelevant 2 If they were relevant, in the absence of their intrinsic improbability the allegations companyld be companyntered by documentary or affidavit evidance which would show their falsity. In the absence of such evidence they companyld be disproved only by the party against whom the allegations were made denying the same on oath. In the present case there were serious al- legations made against the Chief Minister and there were several matters of which he alone companyld have personal knowledge and therefore which he alone companyld deny, but what was, however, placed before the Court in answer to the charges made against the Chief Minister was an affidavit by the Secretary to Government in the Medical Department who companyld only speak from official records and obviously number from personal knowledge about the several matters which were alleged against the -Chief Minister. In these circumstances we do number think it would be proper to brush aside the allegations made by the appellant particularly in respect of those matters where they are supported by some evidence of a documentary nature seeing that there is numbercontradiction by those persons who alone companyld have companytradicted them. In making this observation we have in mind the Chief Minister as well as Mrs. Kairon against whom allegations have been made but who have number chosen to state on oath the true facts according to them. Before passing on to a companysideration of the details of the several allegations there is one matter to which we ought to make reference at this stage and that is the admissibility and evidentiary value of the tape-recorded talks which have been produced as part of his supporting evidence by the appellant. The learned judges of the High Court without saying in so many terms that these were inadmissible in evidence, this being the companytention raised by the respondent-State, have practically put them out of companysideration for the reason that tape-recordings were capable of being tampered with. With respect we cannot agree. There are few documents and possibly numberpiece of evidence which companyld number be tampered with, but that would certainly number be a ground on which Courts companyld reject evidence as inadmissible or refuse to companysider it. It was number companytended before us the tape-recordings were inadmissible. In the ultimate analysis the factor mentioned would have a bearing only on the weight to be attached to the evidence and number on its admissibility. Doubtless, if in any particular case there is a well-grounded suspicion, number even say proof, that a tape-recording has been tampered with, that would be a good ground for the Court to discount wholly its evidentiary value. But in the present case we do number see any basis for any such suggestion. The tape-recordings were referred to by the appellant in his writ petition as part of the evidence on which he proposed to rely in support of his assertions as regards the substance of what passed between him and the Chief Minister and the members of the latters family on the several matters which wece the subject of allegations in the petition. Before the written statement of the State was filed, the respondent-State made an application to the Court on August 23, 1961 in which they averred The respondents are number in a position to give a companyplete and full reply to the assertions made by the petitioner without inspecting the original records and without knowing and sic renderings of the so-called tape-recordings mentioned by the petitioner in his aforesaid petitionThe applicant, therefore, prays that thepetitioner may be ordered to place on recordthe renderings of the so- called tape-records. On November 3, 1961 the Court passed an order in which it recorded As regards the renderings of the tape- records, on which the petitioner relies, learned Counsel for the petitioner undertakes to play the tape-recorder before the respondent within a fortnight from the date of the putting in of the above renderings on a date suitable to both the sides. Again on December 14, 1961 the State made an application to the Court to modify the order dated November 3, 1961 by directing the appellant to play the tape-records in the office of the Counsel for the State and allow the State to re-tape-record the tape-recordings produced by the ap- pellant, so that a companyrect companyy of the tape-records was available to the respondent-State before filing the written statement. In the applications made by the respondent to the Court for directions regarding the inspection of the tape-records produced by the appellant, and seeking the facility for re-recording, it was explicitly stated that this was for the purpose of the State satisfying itself whether the voices of the persons whose talks were purported to have been tape-recorded were truly the voices of those per- sons. The Court passed an order on January 5, 1962 directing the appellant to file the original tape-records into Court to be sealed in the presence of both the parties and kept in custody of the Registrar of the Court, but this was to be after the records were played before the res- pondent on January 11, 1962 in the office of the Registrar of the Court. This order was given effect to and the State had the re-recorded companyies in their possession to verify the authenticity and companyrectness of the originals. The written statement of the State was filed in February 1962 only after they had thus their own companyies of the -records, so that they were in a position to verify a tape whether the voice recorded was that of the person whose voice it professed to be b whether there had been any interpolations or omissions and c whether there had been any other tampering with the records. In the companynter-affidavit filed by the State there was numberdenial of the genuineness of the tape-records, numberassertion that the voices of the persons which were recorded in the tape-records were number those which they purport to be or that any portion of the companyversation which would have given a different companyour to it had been cut off. We should however add that there was a vague statement regarding the taperecord of the talk between the Vigilance Inspector and the appellant with which we shall deal later. It is in the light of these circumstances and this history of the proceedings that the evidence afforded by the tape- recorded talk has to be companysidered in appreciating the genuineness of the talks recorded and in deciding whether the allegations made by the appellant are substantiated or number. We shall number take up the allegations in the order in which they appear in the petition and in which we have set them out earlier. The first relates to the incident companynected with the operation on the Chief Ministers son Surinder Singh. Now, in regard to this, Surinder has filed an affidavit in which he has denied that there was any operation performed on him either by the appellant or by any other. There is numberdocumentary evidence that the appellant performed the operation which he claims to have performed in the shape of hospital records. The appellants explanation for the absence of any such record was that the operation was necessitated by the nature of the disease which Surinder had companytracted and for this reason the Chief Minister desired the operation to be performed in secret. Accordingly the operation was per- formed number at Jullundur which is a big city where the Chief Minister and his family were well-known but in a rural dispensary about 50 miles away from his headquarters town. The main points that were urged by the learned Attorney General against the appellants story was 1 that Surinder has denied it, 2 that numberevidence based on any hospital record had been produced to substantiate the story, 3 that the exact date on which the operation was performed was number given, and 4 that the tape-recorded talk would number substantiate the appellants case that he performed an operation. It would be companyvenient to take the tape-recorded talks first because it is on them that the appellant relies for companyroborating his statement that he did perform an operation on Surinder at the end of April 1960. There are three tape-recorded talks which bear on this incident and these are numbered 6, 2 and 11. Talk number 2 is the most important of them and is a tape-recorded talk on the trunk- telephone between Mrs. Kairon the Chief Ministers wife and the appellant. In the companyrse of the talk the record shows the lady to have asked Mrs. Kairon How is the young lad ? Ans. Your young lad is alright. Mrs. Kairon Have you removed off the dressing ? Ans. The dressing has companye off. There is numberdressing over the wound number. Mrs. Kairon And there is numberdischarge etc. Ans. There is numberdischarge number. Mrs. Kairon Is the wound number raw ? Ans. No. Mrs. Kairon Can he walk about number ? Ans. Slightly Mrs. Kairon There is numberother ulcer inside. Ans. No, he is quite alright number. Mrs. Kairon The thing is that there can develop induration of the wound. Ans. Is it? Mrs. Kairon There is numberother ulcer inside. As you said ? Ans. No. He is quite alright number. From the internal evidence furnished by this tape-record itself it is seen that this talk was on May 1, 1960. Talk number 6 is said to be slightly earlier in date, being towards the end of April 1960. That too is stated to be after the operation and is a tape-recorded talk on a trunk-telephone between Mrs. Kairon and the appellant. This talk was necessitated, according to the appellant, by the fact that Surinder had left the Circuit house at Jullundur, where he had been directed to stay during companyvalesence, even before he was companypletely healed and it was the negligence of the doctor in permitting this to happen that is said to have been one of the causes of the appellant incurring the displeasure of the Chief Minister. There are portions of this record which are also relied on to companyroborate the appellant that he perfomed an operation on Surinder and to establish that the denial by Surinder is false Mrs. Kairon Dr. Sahib, did you test his Surinders urine.? Ans. Urine is quite alright. Mrs. Kairon When was it tested ? Ans. It was done that day. Mrs. Kairon Dr. Sahib, it is 8 days number. Ans. We got it tested here when he came. The appellant submitted that the words that day which we have emphasized were a reference to the day on which the operation was performed. In the companyrse of this talk No. 6 Mrs. Kairon made inquiries as to whether her son Surinder was with the appellant and this inquiry was made because she had information from other sources that he had left Jullundur. When the appellant was asked about this he said in the tape-recorded talk You see, he has tried to be clever with me. Mrs. Kairon What ? Ans. This Surinder. Mrs. Kairon Oh, you know what Sardar Sahib said. He said he did number expect this thing from you. Dr. P. Singh From me ? Mrs. Kairon Yes. Dr. P. Singh Why. Mrs. Kairon That he should go away from you. Dr. P. Singh No, number from me. From Circuit House. Mrs. Kairon He got a trunk call booked and he got engaged in companyversation elsewhere and I have found out things from you. Dr. P. Singh Look what companyld I do. Mrs. Kairon He said why did you do it if you did number have the strength to keep him. Dr. P. Singh He told me he will stay on for 3 or 4 days. Mrs. Kairon Sardar Sahib said he did number see much sense in either of you. The last of the tape-recorded renderings is that numbered 11 and it purports to record a trunk-call talk between Surinder himself and the appellant. Portions of it are relied on by the appellant on both the points a that he performed an operation on Surinder, and b that Surinder left his care without his knowledge and thus made him incur the displeasure of his parents Surinder Well Dr. Sahib. You better dictate to me the prescription of that triple dye. I want to apply it. Ans. When you companye in the evening. You can take it at that time. Surinder No. I want to apply number, in the morning. Ans. Then, you should have, taken it yesterday and then left Surinder Alright, it was a mistake. Now you tell me. Dr. P. Singh Otherwise it is alright number ? Surinder A little bit of stuff came out of it, sort of blood. Dr. P. Singh It would be just a numberinal sort of affair? Surinder Yes please. The above is in so far as regards the operation and next as to Surinder leaving the appellants care we were referred to the following in the recorded talk Dr. P. Singh You went away, all on the quiet.Surinder I had to companye here. Dr. P. Singh Why ? With me your understanding was that you will go only after showing me in the evening. Surinder I will companye to you in the evening. Dr. P. Singh No, you will companye today, but yesterady you went away without numberice. We came to know of it only when the servant came and reported that the room is all vacant, and that Sardar Sahib has gone, giving a go by. The question is whether this last No. 11 tape-recorded talk does or does number establish that the appellants story about his having operated on Surinder was true. In the first place, Surinder, through the affidavit that he made, denies that any operation was performed on him by the appellant or by anyone else, does number deny that the voice recorded in talk number 11 is his. Besides, Surinder while stating in his affidavit that he was diabetic, admitted that his urine had been examined by the appellant--a matter referred to in talk number 6 between Mrs. Kairon and the appellant. Of companyrse he did number say in his affidavit that the examination of his urine referred to in this talk, was that referred to by him in his affidavit but that is number very material. Nor has he offered any explanation for his statement in talk number 11 of a little bit of the stuff company- ing out. His version, however, as regards the recorded talks was I heard the tape-records prepared from the taperecords recorded by the petitioner. The renderings are number intelligible and clear and are denied. If it was number intelligible, we need hardly add that we do number agree in this characterisation how they companyld be denied is number clear, number is one able to appreciate as to why the talk should be unintelligible to him if they recorded what he spoke. That is so far as rendering number 11 is companycerned. But in regard to renderings 2 and 6 which purport to be a record of the talks between the appellant and Mrs. Kairon there is numberaffidavit from Mrs. Kairon denying the authenticity of her voice or of the talk, as recorded. No doubt, Surinder in his affidavit denies that there was any talk between the appellant and his mother regarding supply of medicines and he also states that the tape-records referred to by the petitioner are all forged, hut in the companytext the forgery attributed companyld only relate to that portion in which Mrs. Kairon is recorded to have asked for medicines. If the state companyld get Surinder to file an affidavit in regard to the tape-recorded talk, we do number appreciate why numberaffidavit from Mrs. Kairon was filed to give her version as to whether she really talked with the appellant as recorded, and if she did so in what respects the record was wrong. In the absence of any such affidavit or statement by her on oath that the voice recorded in the several talks and in particular in talks 2 and 6 was number hers or that the record had been manipulated, we cannot but hold that the records are genuine and that companyversations took place as recorded. The next question is whether these show that the appellant performed the operation. We believe we have extracted sufficient from these talks to show that they do indicate unmistakably that Surinder had undergone an operation sometime before the beginning of May 1960. The statement of Surinder, therefore, that he under-went numberoperation by anyone must obviously be discarded as untrue and numbervalue can be attached to the denial companytained in the affidavit that he has filed. If really he had undergone an operation and questions regarding the companydition of his wound, the occurrence of discharge etc. are the subject of talks between Mrs. Kairon and the appellant in talks 2 and 6 and between Surinder himself and the appellant in talk 11, it stands to reason, in the absence of any rational or reasonable explanation by Mrs. Kiaron, that the appellant was the person who had performed that operation. The question that next falls to be companysidered is whether the operation was entrusted to the appellant by the Chief Minister or number. Apart from the probabilities of the case, the extracts we have made from the tape-recorded talks number 2 6 and the reference to Sardar Saheb would indicate that the Chief Minister was companycerned in entrusting the operation to the appellant and the inference is more readily drawn because in the face of the allegations in the affidavit and the tape-recorded talk between the appellant neither Mrs. Kairon, number the Chief Minister has placed her or his version of the matter before the Court by making any statement on oath. In the circumstances we have numberhesitation in holding that it was at the instance of the Chief Minister that the appellant undertook the operation on the chief Ministers son. It was next said that even assuming the above companyclusion were justified, the statement in the tape-recorded talk which indicated the Chief Ministers displeasure at the companyduct Of the appellant in permitting his son to leave Jullundur before he was companypletely cured, was inadmissable in evidence for proving what the Chief Minister said to his wife and on that account we should hold that hostility on the part of the Chief Minister owing to this incident was number established. It is true that the statement of Mrs. Kairon as to what the Chief Minister told her would be merely hearsay and would number be admissible in evidence as a statement of the Chief Minister but the tape-recorded talk does show that she herself was greatly displeased with the appellant and it was really to emphasise the displeasure of the family and its head that the Chief Ministers name was brought in. In the circumstances we do number companysider that the respondents derive any advantage from this technical objection to the reception of the Chief Ministers statement secondhand. The leaned Attorney-General also submitted that the exact date of the operation was number given number was the place where it was performed set out in the affidavits and that these detracted from the value of the allegations but we do number companysider that in the face of the recorded talks and the inference deducible therefrom that an operation was performed by the appellant sometimes towards the end of April 1960 very much turn on these factors. In making this statement regarding the date we have in mind the reference in talk number 2 to tomorrow as being the 2nd of May. The next allegation relates to the requests made by the Chief Minister himself and the members of his family for undue favours to be shown to certain patients who were recommended for medical certificates or for special treatment by the appellant at the hospital. This allegation was denied by the State, but as stated earlier, the denial has little force because the only persons who were in a position to companytradict the appellant have number companye forward to state anything on oath. The allegation has, therefore,, to be companysidered with reference to the documentary evidence on which reliance was placed. They are Exs. B-1 to B-19 which are recommen- dations by either the Chief Minister, his sons, his brother or his sister introducing certain patients to the appellant and suggesting that they be attended to properly or their requests granted. That anything improper was required to be done by the appellant or anything companytrary to the rules was expected to be done by him or was suggested is number borne out by these documents. It is the appellants submission that of these only two were number companyplied with-the request companytained in B-2 and B-5 but even as regards this there is numbersuch specific assertion on the record, number is it easy to see why the appellant refused to companyply with these requests. In the circumstances we are unable to hold that this item of misunderstanding is made out. But we must add that as these slips or chits were addressed to the appellant, some by the Chief Minister, others by one or other of his two sons, still others by his brother and one by Ms sister, they do establish that at the dates which they bear the appellant was a great friend of the Chief Minister and enjoyed the companyfidence of the Chief Minister and the members of family. The next item may be companysidered separately under two heads Supply of medicines to the family of the Chief Minister at the request of Mrs. Kairon and others, and 2 the supply of two Singer Sewing machines to Mrs. Kairon. Needless to say that these allegations have, numberdoubt, been denied by the State, but there is numberdenial by the only persons who companyld effectively companytradict the appellant. As regards the supply of medicines, the appellants case is that they were sent by post by registered packets or parcels and in companyroboration of his statement he has produced six postal receipts of registered packets or parcels despatched to Sardarni Partap Singh Kairon. These bear dates from 1957 to 1959 and they indicate that between Re. 1/- to Rs. 2/- was paid as postal charges for their transmission. Surely, something must have been sent in these packets or parcels and received by Mrs. Kairon but there is, on the side of the respondent, numberpositive statement as to what these packets companytained. It therefore, appears to us that it is number possible to discard the appellants statement that these packets companytained medicines despatched to the Chief Ministers wife, for the use of the members of the family. It matters little, for the purpose of this case, whether the medicines were purchased at the companyt of the appellant, as he says, or were taken from the hospital. But whichever happened, it is clear that articles of some value were despatched from time to time over this three-year period by the appellant to Mrs. Kairon. The tape-recorded talks do lend support to the appellants story that he was required to send medicines and that he companyplied with such demands. In talk number 3 which was with Mrs. Kairon and is stated to have been in August, 1959 Appellant I shall get the medicines delivered to you today. Mrs. Kairon Those tablets too and the mixture too. Appellant What are those tablets ? Mrs. Kairon in those bottles were brown brown tablets Appellant I shall send them straightaway Appellant I shall send you the injections also. Mrs. Kairon Alright. Then we have talk number 1 which purports to be a record of companyversion over the trunk-telephone between Mrs. Kairon and the appellant and which is said to be in March 1960, but for our present purpose the date is number very material. We would extract the following from this talk Mrs. Kairon The medicines have been received. Appellant leave the question of arrival of medicines Mrs. Kalron You sent injections. Appellant I had sent you those injections. Mrs. Kairon Yes they were 4 injections. Mrs. Kairon Those tablets have number been received. Appellant Which tablets. Mrs. Kairon Those capsules. Appellant Those brown. Mrs. Kairon Yes. Appellant You had number asked for those. Mrs. Kairon Well. Does number matter. Appellant I will do it number. Lastly, we have talk number 2 which appellant had with Mrs. Kairon and is stated to have been in May 1960 in which the following passages occur Appellant The medicines that you had asked for have arrived. When you companye you take it. Mrs. Kairon You give it to Raghbir Singh General Manager, Roadways . Appellant You know those injections of B Complex that, you had asked for. Mrs. Kairon Yes. Appellant You had asked for the B Complex injections. Isnt it ? Mrs. Kairon Yes. Appellant I have got those here. In the face of the support afforded by the documentary evi- dence and the tape-recorded talks, companypled with the absence of any denial or explantion of these matters by the persons who alone companyld deny them, we feel unable to attach any value to the affidavit of Surinder denying that any medicines were called for or supplied. The appellant says that when demands of this type increased he refused further to companyply with them, but there is numberpositive evidence of any demand which he refused to companyply with andthus incur the anger or displeasure of the Chief Minister. But numberwithstanding the absence of that type of evidenceit is clear that until 1959, at least, as is shown by thesepostal receipts and even till April-May 196--as disclosed by the tape-recorded talks, the appellant was on the friendliest terms with the Chief Minister and some explanation has to be forthcoming as to why there was a sudden change of attitude from May 1960 or there abouts and more particularly after January 1961. It is in the light of this circumstance that the evidence afforded by the tape- recorded talks regarding the operation on Surinder Kairon and of the article in the Blitz to which reference has already been made assume crucial importance. The second head of this item relates to the supply of the sewing machines. We companysider that this portion of the appellants case has been established beyond reasonable doubt by Exs. C-7 to C-10 which have all been referred to by Dayal, J. in his judgment and we entirely companycur with him in holding that this allegation has been companypletely proved. The learned judges of the High Court discarded the appellants case because of the affidavit of Mrs. Sodhi but we agree with Dayal, J. that this would number explain either C-8 or C-10 which proved that a wooden case with the words Singer Sewing Machine stencilled or on a label at the top was sent through the manager of the Punjab Roadways to Mrs. Kairon. The statements companytained in the affidavits filed by Sri Pahwa, the Roadways manager as well as by Om Prakash, Clerk of the Punjab Roadways are most artificial and apart from the discrepancies as regards the measurements and weight of the wooden box which was transported by them, and the improbability of their having numbered or remembered the details without any written record then made, they failed to offer any explanation for the label or stencilling at the top referred to in Ex. C-9. Besides, the taperecorded companyversation number 3 between Mrs. Kairon and the appellant in which there is a reference to the companyour of the machine that was sent, makes it clear that the appellants story of his having sent a machine to Mrs. Kairon is true. It is somewhat surprising that though Ex. C-7 to C-10 were annexures to the writ petition and the respondents had companyies of the tape-recorded talks with them before they filed their statements, they companytented themselves with filing these affidavits of Sri Pahwa and Om Prakash and Mrs. Sodhi and abstained from letting the companyrt know what Mrs. Kairon had to say on the matter. This Sewing Machine incident was in July 1959 and it shows that up to that date there was company- plete friendliness between the Chief Minister and the ap- pellant. The appellants further allegation that Mrs. Kai- ron or the other members of the Chief Ministers family demanded of him the supply of other companytly articles and that his refusal to companyply with them angered the Chief Minister, must be discarded as an embellishment for which there is numbersupport in the evidence placed before the companyrt. The next item of the source of hostility alleged by the appellant is that be sent out of his house Kirpa Singh, the manager of an automobile companycern of the Chief Ministers son-Surinder-in or about March-April 1960 after having permitted him to stay there for about 7 months. Surinder has filed an affidavit in which he has denied his ownership of the automobile companycern and also that Kirpa Singh was provided with board and lodging by the appellant at the instance of his father. Kirpa Singh also made an affidavit to the same effect. Two matters however, stand out prominently. The first is that it cannot be doubted that Kirpa Singh is a great friend both of the Chief Minister and his son. Tape-record number 15 which purports to record the talk between Kirpa Singh and the appellant brings this out. It was sought to discount the evidentiary value of this talk by the circumstance that the appellant had brought about this talk designedly in order to tape-record the company- versation. We do number, however, agree that it has any such effect. The reality of that talk and the companyrectness of the tape-recording is number denied by Kirpa Singh in the affidavit be filed and if he really spoke the words which that record shows he did the facts above stated are made out. That Kirpa Singh was the manager of an automobile companycern in jullunder is number in dispute but both Surinder as well as Kirpa Singh, in their affidavits, have studiously refrained from stating who the owner of that companycern was beyond stating that Surinder is number the owner. We companysider this averment most disingenuous and least frank. That Kirpa Singh was afforded board and lodging at the appellants house is also admitted. It was number suggested that Kirpa Singh was a friend of the appellant otherwise than as a friendof the Chief Minister and his son. and this tape- record 15 makes clear. It does number, therefore, stand to reason that the appellant would have undertaken the companyt and incovenience of providing Kirpa Singh with board and 49-2 S. C. India/64 lodging except to oblige the Chief Minister and his son 2 It is also a fact that Kirpa Singh moved out of the appellants place at the end of March 1960 having stayed there from September 1959 vide Ex. D-1 . The question immediately arises whether this was because of the disinclination on the part of the appellant to companytinue to retain him in his house. Having regard to the other cir- cumtances which have already been mentioned, of the undercurrent of hostility borne by the Chief Minister which started roundabout this time, we are inclined to accept as true the appellants version that he sent Kirpa Singh out of his house in preference to the story of Kirpa Singh that he went out of his own accord. If the Chief Minister was obliged by the appellant providing board and lodging to Kirpa Singh, it would number be a violent inference to draw that the Chief Minister was angry with the appellant for having sent Kirpa Singh out. Some of the other matters set out as those which led to the hostility of the Chief Minister are also made out, such as for instance that the appellants services were utilised by the Chief Minister in companynection with the Karnal murder case vide talk number 7 with the Chief Minister himself but as we companysider them to be of minor significance, we do number propose to deal with them in any detail, particularly as it would be sufficient to proceed on the basis of the items earlier discussed. Next we have the fact that numberwithstanding that on the 29th of October 1960 there was some companyplaint received by the department regarding his having improperly taken Rs. 16 from a patient in July 1960, he was granted leave preparatory to retirement as and from December 18, 1960. In other words, the Government had numberidea at that date that charges should be formulated against the appellant and that his retirement should be postponed for companypleting such an inquiry. We have then the circumstance that in all the earlier Confidential Reports relating to the appellant there was numberhing wrong found with him and his companyduct and character were number the subject of any adverse companyment. It was only subsequently, long after the close of the year 1960, that an adverse remark was made against the appellant in respect of the year 1-4-59 to 31-3-60 and this was companymunicated to him only late in February 1961. The appellant companyplains that this was really an after-thought and was brought in long after that year was over in order to afford some justification for the charges that were eventually made against him. What we have stated earlier regarding the unfriendly feelings which developed with the Chief Minister from about April-May, 1960 onwards seems to lend some support to this suggestion. We have next the circumstance companynected with the article in Blitz which appeared in its issue dated January 15, 1961. That seems to be the starting point of the action taken against the appellant, for on January 13, 1961 the Vigilance Officer sent a companymunication to the appellant to offer his explanation in regard to certain charges which were then the subject of inquiry. In the order dated the 3rd June, 1961 by which the appellant was placed under suspension there is reference to three inquiries-one dated October 29, 1960, another of January 11, 1961 and the third dated April 17, 1961. The dates apparently are a reference to the dates of the several companyplaints. The order refers to investigations made by the Vigilance Department into certain companyplaints against the appellant but though the bona fides of these in- quiries as well as the bona fides of the action taken under the impugned order were questioned the report of the Vigi- lance Inspector was number placed before the Court to enable it to judge what exactly the companyplaints were and whether they were the same as the charges listed in the charge-sheet against the appellant. The above has to be judged in the companytext of the feature that there is a tape-recorded companyversation which the appellant had with the Vigilance Inspector tape-record number 16 in the companyrse of which the Inspector appears to suggest that he himself did number believe in the reality of the companyplaints. In the companynter affidavit filed by the State it was stated that the Vigilance Inspector who has been made to hear a companyy of the tape- records in question has reported that the tape-records are unintelligible and as such it is number possible to companypare the renderings with it. He has therefore reported that the talk, as disclosed in the rendering took place between him and the petitioner but that the rendering appeared to have been twisted by the petitioner according to his own liking. The Vigilance Inspector himself made numberaffidavit number was there any denial even by the State that the voice recorded as that of the Vigilance Inspector was really his. The tape-recorded talks have been translated-the originals having been heard by the State officials as well as by the Inspector and we do number see any Justification for the companyplaint that they were unintelligible. There is, therefore, numberreason why it was number possible to say a that there was numbertalk, b if there was, what exactly was its purport, and c where and in what respects the tape-recording departed from the truth either by way of addition or omission. The talk, as recorded, as already stated would appear to suggest that the Vigilance Inspector did number believe in the truth of the companyplaint. That, however, might number be very relevant for deciding whether the companyplaint was true or false but in the face of that recorded companyversation is was certainly necessary for the State to produce the Inspectors report for companyntering the case of the appellant that the charges were invented for the purpose of enabling the State to harass and humiliate him. Lastly, it is rather curious that some of the charges which are to be the subject of enquiry relate to a period long anterior to June 1961. For instance, charge 2 b is companycerned with an illegal demand and receipt of sum of Rs. 100/from a patient who came to the hospital on March 13, 1957. Similarly, there are others which had been made ear- lier but had been dropped or their falsity had been admitted on earlier occasions but were stated to have been revived for the purpose of Justifying this inquiry. In the view we entertain that the action against the appellant was taken because of the matters we have held proved and because of the charges made against the Chief Minister in the article in the Blitz it is number necessary to discuss minutely as to whether the charges companyld be true or were merely invented. The facts establish that up to March-April 1960 the ap- pellant was on the best terms with the Chief Minister and the members of his family. He was going out of his way to oblige the Chief Minister and do his bidding, though as an officer of the position and status of the appellant this was hardly companyduct which should properly be expected of him. Possibly , his being kept at Jullunder without transfer for four years was because of this failing on his part. From April 1960 onwards we find that there is a change in the attitude of the Chief Minister. The operation on Surinder and the incidents companynected with it and the sending out of Kirpa Singh relate to this period. This apparently led to the order for his transfer from Jullunder to Amritsar. Having fallen from grace, the appellant did number apparently companysider it safe to companytinue in service and hence applied for leave preparatory to retirement and this was granted. Immediately he got to know that he had obtained this leave he was apparently emboldened to make public the improper acts which he himself had done for pleasing the Chief Minister and curry his favour and the article in the Blitz was obviously inspired by him. When this came to the numberice of the Chief Minister in the middle of January 1961 stern action followed-first the Vigilance Inspectors companymunication of the 13th January followed by the adverse report against the -appellant for 1960 in February 1961 and the further charges against him in April 1961 which led to the passing of the impugned orders. In the circumstances we are satisfied that the dominant motive which induced the Government to take action against the appellant was number to take disciplinary proceedings against him for misconduct which it bona fide believed he had companymitted, but to wreak vengeance on him for incurring his wrath and for the discredit that he had brought on the Chief Minister by the allegations that he had made in the article which appeared in the Blitz in its issue dated January 15, 1961 followed by the companymunication to the same newspapers by the appellants wife, in which these allegations were affirmed and in large part we have found to be true. We therefore hold that the impunged orders were vitiated by mala fides, in that they were motivated by an improper purpose which was outside that for which the power or discretion was companyferred on Government and the said orders should therefore be set aside. We therefore allow the appeal and set aside the order dated June 3, 1961 revoking the leave granted and placing the appellant under suspension and the order dated June 29, 1961 directing an inquiry into the charges against him. As the appellant has failed to make out the other point about the orders being companytrary to the Service Rules we di- rect that there shall be numberorder as to companyts, here and in the High Court. RAGHUBAR DAYAL J.-This appeal, on a certificate granted by the High Court of Punjab, is directed against its order dismissing the appellants petition under Art. 226 of the Constitution praying for quashing, by a writ of cer- tiorari or other suitable directions, the orders of the Punjab Government 1 suspending him ii revoking his leave iii companypelling him to companytinue in service after he had attained the age of superannuation, and iv ordering a departmental enquiry against him. The appellant, Sardar Partap Singh, Joined the Punjab Civil Medical Service, Class 1, in 1947. He joined the service as a direct recruit on August 21, 1947. His previous service in the Indian Medical Service from 1934 to 1939, in the Punjab Civil Medical Service from April 1940 to June 1941 and in the Indian Military Service in temporary rank till about the end of 1945, has numberbearing on the terms of his service as a member of the Punjab Civil Medical Service, Class 1. The appellant reached the Selection Grade of the Civil Medical Service, Class I, in January 1955 and was trans- ferred to Jullunder as Civil Surgeon in April 1956. He remained there till he proceeded on leave preparatory to retirement sometime in December 1960. His leave was san- ctioned on December 18, 1960, and was numberified in the Punjab Gazette dated January 27, 1961. On June 3, 1961, the Governor of Punjab ordered the suspension of the appellant with immediate effect as the Government had decided that a departmental enquiry be instituted against him under r. 7 of the Punjab Civil Ser- vices Punishment and Appeal Rules, 1952. The Governor further passed an order under r. 3.26 d of the Punjab Civil Services Rules. These rules were issued under the proviso to Art. 309 of the Constitution and came into force from April 1, 1953. They have been referred to as the 1959 rules in the judgment of the High Court and at the hearing as they were amended from time to time and were re-printed in 1959. We shall also refer to them as the 1959 rules. The Governors order under r. 3.26 d of these rules was that in view of the appellants reaching the age of superannuation on June 16, 1961 he be retained in service beyond that date till the companypletion of the departmental enquiry. The orders of the Governor were companymunicated to the Director, Health Services, Punjab, by the Secretary to the Government in the Medical and Health Department by his letter Annexure J dated June 3, 1961. The Director, Health Services, companymunicated these orders to the appellant by a letter, Annexure 1, dated June 3, despatched under postal certificate. He further sent a companyy of that letter and its enclosures by registered post to the appellant on June 5, 1961. The registered companyer was further marked express delivery. Copies of this letter were sent to the then Civil Surgeon, Jullunder, and the Accountant General, Punjab, for information. On June 10, 1961, numberifications about the Governors placing the appellant under suspension and fixing his headquarters at Chandigarh and about his revoking, with effect from June 3, the leave preparatory to retirement which had been sanctioned to him and retaining him in service until the enquiry into the charges against him be companycluded and a I final order passed, were published in the Punjab Government Gazette Extraordinary dated June 10, 1961. The Director, Health Services, Punjab, forwarded to the appellant, with his letter dated 3/11th of July 1961, a memorandum dated June 29, 1961, statement of charges and statement of allegations which he had received from the Secretary to Government, Punjab, Vigilance Department, for the appellants submitting such explanation ,is he might desire. This letter purported to be with reference to enquiries number. 70, 3 and 27 dated October 29, 1960, January 11, 1961 and April 17, 1961 respectively against the appellant. The appellant challenged, by his writ petition, the legality of the orders of suspension, revocation of leave, retention in service after the date of superannuation and institution of the departmental enquiry, on various grounds. The companypetency of the Governor to make the orders was questioned. It was alleged that unjustified personal grie- vances arose between the appellant and Sardar Partap Singh Kairon, Chief Minister of Punjab, in or about 1960, that the impugned orders were passed mala fide in the exercise of power, if any, vested in the respondent, the State of Punjab in the Ministry of Health, that this was an abuse of power and was intended to feed the grudge of the Chief Minister against him. The respondent State refuted the companytention that the impugned orders were passed mala fide on account of the alleged grievances of the Chief Minister and stated that the Government was companypetent under rules governing the services of the appellant to pass the impugned orders and that the appellants allegations had numberhing to do with the orders suspending him and revoking his leave preparatory to retirement. The High Court agreed with the companytention for the respondent and dismissed the appellants petition. On the appellants application, it granted the necessary certificate under Art. 133 1 c of the Constitution. The appellant has questioned the companyrectness of the impugned orders, broadly speaking, on two grounds. One is that the rules governing his service did number empower the Governor to pass the impugned orders. The second is that the impugned orders were passed mala fide as the Chief Minister, who was in charge of the department of Health, bore ill-will towards him. The first companytention has been urged before us in various ways and we deal with the more salient and important aspects urged to support the companytention that the impugned orders companyld number have been passed by the Governor in view of the various rules. It is companytended that leave, once sanctioned, cannot be revoked after the officer has proceeded on leave. He can only be recalled to duty. The appellant was number recalled to duty as he was number posted to any post of a civil surgeon. Rule 8.15 of the 1959 rules reads Leave cannot be claimed as of right. When the exigencies of the public services so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. It follows therefore that the authority granting leave has the discretion to revoke it. There is numberrestriction on the power of revocation with respect to the time when it is to be exercised. It can be exercised before the officer to whom leave was granted proceeds on leave. It can also be revoked after he has proceeded on leave. Revocation of leave simply means cancelling the leave granted. The exigency necessiating the revocation of leave may arise after the officer has proceeded on leave. Rule 8.3 has numberbearing on the question as it provides that the rules following it govern the procedure for making applications for leave and for granting leave in India. It deals with the procedure and number with the right of the officer to leave or with the power of the necessary authority to sanction or refuse leave or revoke leave. Rule 8.42 deals with matters incidental to the recall from leave and in numberway affects the discretion of the authority to revoke leave. In fact, recall to duty must follow the revocation of the leave with respect to the period number availed of till then. The next companytention is that when a Government servant proceeds on leave preparatory to retirement, he ceases to hold office and to be in the employment of Government and that in fact he practically retires on the date he avails of the leave and companysequently numberquestion of his suspension can arise. This companytention, again, has numberforce. A Government servant is in service till his service terminates and the service can terminate only by dismissal, removal or retirement. The date from which a Government servant is on leave preparatory to retirement cannot be treated as the date of his retirement from service. It is also urged that a Government servant on leave preparatory to retirement cannot be suspended as suspension means a persons ceasing to work on the post he holds and the public servant on such leave holds numberoffice or post and therefore he cannot be effectively suspended. Suspension of a Government servant, during the companyrse of his service, simply means that numberwork is to be taken from him during the period of suspension. The Government servant does number work on a post during the period of his suspension. If he is actually discharging the duty of a certain office prior to suspension, the order of suspension would mean that he would cease to work on and discharge the duties of that post. If at that time he is number working on any post but is on leave, numberquestion of Ms actually ceasing to work or giving up the discharge of duty arises, but that does number mean that the order of suspension would be ineffective. The Government servant, during suspension or on leave, holds a lien on his permanent post in view of r. 3.13 unless his lien is suspended or is transferred under the appropriate rule and so has a title to hold that post when under sus- pension or on leave. We may refer to the case reported as Khem Chand v. Union of India 1 wherein the rule that a Government servant be deemed to be on suspension during the period between the date of dismissal and the date of its being set aside, was held valid. Suspension during such period is analogous to suspension during the period of leave after revocation of leave for that period. Another companytention is that the order revoking the leave must precede the order of suspension, and as the order of suspension was before the revocation of his leave it is bad. We do number agree with this companytention. Notifications about the suspension and revocation of leave from June 3, 1961, were issued on June 3, 1961. The order of suspension bears an earlier number than the order about the revocation of leave. The order in which the two orders were issued does number affect in substance the validity of the two orders so long as the Governor had the power to suspend the appellant and revoke his leave. Orders may be issued in any sequence. The next companytention is that these orders of June 3 were actually companymunicated to the appellant after the date of his retirement and is therefore ineffective. The appellants date of birth is June 16, 1906. The order of suspension reached the appellant, according to his statement, on June 19, 1961, though it was despatched by the Director, Health Services, Punjab, on June 3, 1961. The envelope companytaining the letter was addressed to the appellant by his Kanpur address which he appeared to have furnished to the office. The appellant was apparently number at Kanpur when the letter reached him and the letter took unduly long on being redircted to the address where it was delivered to the appellant. There is number sufficient material on the record to show when it was redirected and what caused this delay. The Director, Health Services, number only addressed an ordinary companyer under postal certificate to the appellant but also followed it up by a registered letter on June 5. The Government, number having received an acknowledgement of the appellant with respect to the receipt of the orders of suspension etc., published the orders in the Punjab 1963 Supp. I S.C.R. 229. Government Gazette extraordinary dated June 10. Ordinarly, the numberification about these orders would have been published in the Gazette in due companyrse. They were published in the Gazette Extraordinary as the Government it appears from the written statement, had the impression that the appellant was avoiding the receipt of the letter addressed to him. There was a reason for their anxiety to see that the orders companyld be made known to the appellant as he was due to retire from June 16, 1961. The newspapers also, according to the appellants own petition, published in their issues of June 15 about the numberification companycerning the respondent in the Gazette Extraordinary. The, orders of the Government ordinarily take effect from the moment they are issued except when they cannot be effective due to their nature. An order of suspension of the appellant when he was on leave companyld be effective from the moment it was issued. The appellant was on leave and was number discharging any official functions. If he had been actually on duty, the order of suspension would have taken effect from the moment it reached him and from which moment alone the appellant companyld have companyplied with that order by ceasing to work any further in the discharge of his duties. It is therefore immaterial whether the publication of the orders in the Gazette Extraordinary amounted to sufficient numberice to the appellant of the various orders and whether the letters companymunicating to him the orders reached him after the due date of retirement. In the present case the orders were effective from June 3, 1961, and their validity and effect did number depend on the date of companymunication to the appellant. The case reported as Bachhittar Singh v. State of Punjab l is number apposite and does number support the companytention. It was number a case of suspension. In that case a Government servant preferred an appeal against his dismissal by the Revenue Secretary of Pepsu Government to the state Government of Pepsu. The Revenue Minister recorded his opinion that instead of dismissing him he be reverted to his original post. Thereafter, the State of Pepsu merged with the State of Punjab. The remarks of the Revenue Minister were number companymunicated to the appellant. AIR 1963 S.C. 395. subsequent to the merger, the Chief Minister, Punjab, dis- missed the appeal. This order was companymunicated to the appellant. The remarks of the Revenue Minister of Pepsu were held number to be an order of the State Government and, in the companytext of that case, it was said at p. 398 Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by cl. 1 of Art. 166 and then it has to be companymunicated. The remarks of this Court in State of Punjab v. Sodhi Sukhadev Singh 1 and quoted in this case, do number go -so far and lay down that a final decision by the Council of Minister becomes an order when the Rajpramukh acts upon it by issuing an order in that behalf to the respondent. The further following remarks should be companystrued in the same companytext Thus it is of the essence that the order has to be companymunicatcd to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is companymunicated to the person affected by it, it would be open to the Council of Ministers to companysider the matter over and over again and therefore till its companymunication the order cannot be regarded as anything more than provisional in character. These observations thercfore refer to an order made in the circumstances of that case. It is to be numbered that in both these cases, numberformal order was at all made by the Gov- ernment. The impugned orders in the present case were formally issued by the Governor on June, 1961, and -were even published in the -Gazette extraordinary on June 10. They were final orders. Of companyrse, the Governor companyld, at any time, pass further orders superseding those orders. The possibility of a change in the order is number the main basis for companysidering whether a certain order is effective or number. The main companytention of the appellant, however, is that r. 3.26 d of the 1959 rules is number applicable to him and that if it be applicable, his case is number companyered by the terms of that rule. The appellant joined the Punjab Civil Medical AIR 1961 S.C. 493, 512. Service, Class 1, in 1947. At that time the Punjab Civil Medical Services, Class I Recruitment and Conditions of Service Rules, 1940, hereinafter called the Medical Rules. were in force. They were made by the Governor of Punjab in the exercise of powers companyferred on him by cl. b of sub-s. 1 and cl. b of sub-s. 2 of s. 241 of the Government of India Act, 1935. Rule 13 of the Medical rules is In respect of leave, pension and other companynate matters number specifically mentioned in these rules, members of Service shall be governed by such general rules as may be framed in that regard by the Governor of the Punjab, under cl. b of sub-s. 2 of s. 241 of the Government of India Act, 1935. The Punjab Civil Services Rules were also made by the Governor of Punjab under s. 241 of the Government of India Act and came into force from April 1, 1941. They too were in force at the time the appellant joined service. Rule 3.26 d did number find place in the 1940 rules. The 1959 rules which, as already stated, really came into force in 1953, have this rule. It reads A Government servant under suspension on a charge of misconduct shall number be required or permitted to retire on his reaching the date of companypulsory retirement but should be retained in service until the enquiry into the charge is companycluded and a final order is passed thereon. The companytention for the appellant is that the rule with res- pect to the retirement of a Government servant relates to a matter companynate to pensions and that therefore, in view of r. 13 of the Medical rules, matters of his retirement would be governed by the 1941 rules. We are of opinion that the question of retirement of a Government servant on super- annuation or otherwise is number a matter companynate to pensions. Pension follows retirement and may be said to be incidental to it. Rule 13 of the Medical rules therefore does number govern the terms of retirement of the appellant. It is r. 17 of the Medical rules which would govern the matter of his retirement. This rule reads In all matters number expressly provided for in these rules, the members of the service shall be governed by such general rules as may have been or may hereafter be framed by Government and by the provisions of the Government of India Act, 1935. It is clear from this rule that in the matter of retirement the appellant would be governed by such eneral rules as might have been made by the Government at the time the Medical rules were made or as would be made by the Govrnment subsequently. The latest general rules governing he retirement of Government servants will govern the retirement of the appellant even if it be assumed that the Medical rules still govern his companyditions of service. Rule 3.26 d is therefore applicable to the appellant. The further companytention of the appellant is that this rule applies to a government servant under suspension on charge of misconduct and therefore to a Government servant against whom a formal departmental enquiry has been instituted for enquiring into the charges of misconduct framed against him and that numbersuch charge being framed and numbersuch departmental enquiry being instituted prior to the order of suspension of the appellant on June 3, 1961, the order of suspension cannot be treated to be an order under r. 3.26 d . We do number agree. There is numberJustification to give such a restricted meaning to the word charge in this rule. The appellant refers to r. 7 of the punjab Civil Services Punishment and Appeal Rules, 1952, hereinafter called the Punishment and Appeal Rules,This rule reads Without prejudice to the revisions of the Public Servants Inquiries Act, 1850, numberorder of dismissal, removal or reduction, shall be passed against a person to whom these rules are applicable, unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The grounds on which it is proposed to take such action, shall be reduced to the form of a definite charge or charges which shall be companymunicated in writing to the person charged and he shall be required within a reasonable time to state in writing whether he admits the truth of all, or any, of the charges, what explanation or defence, if any, he has to offer and whether he desires to be heard in person. If he so ,desires, or if the authority empowered to dismiss, remove or reduce him so directs, an oral enquiry shall be held at which all evidence shall be heard as to such of the charges as are number admitted. This rule companyes into play only after a prima facie case is made out against a Government servant and number at the state of a preliminary investigation into accusations made against a Government servant. But it does number follow that suspension is number permissible till this stage of making a formal charge arrives. Rule 3.26 d is of general applica- tion and therefore the expression charge of misconduct in this rule is number to be interpreted narrowly as meaning the charges formally framed and companymunicated to the government servant companycerned with the intimation that a formal departmental enquiry had been initiated against him on those charges. The appellants companytention does number find any support, as urged, from the last portion of this rule which reads until the enquiry into the charge is companycluded and a final order is passed thereon. Of companyrse, the enquiry would be into the charges of misconduct on account of which the Government servant has been suspended and the suspension will companytinue till a final order is passed on those charges. The requirements of the last portion of this rule do number in any way lead to the companyclusion that the enquiry into the charges refers to a formal departmental enquiry into the charges framed and companymunicated to the Government servant in accordance with r. 7 of the Punishment and Appeal rules. We are of opinion that whenever any charge of misconduct is under enquiry by the Government, be it informally or formally, the Government is companypetent to suspend the Government servant and if the requirements of the case require to take action under r. 3.26 d . It was companytended that the appellants suspension without calling him to explain the charges first, was bad as the proceedings to suspend him were of a quasijudicial character and therefore necessitated the Governments obtaining his explanation to the charges of misconduct before passing the order of suspension. The order suspending the Government servant pending enquiry is partly an administrative order. What has been held to be quasijudicial is the enquiry instituted against the Government servant on the charges of misconduct, an enquiry during which under the rules it is necessary to have an explanation of the Government servant to the charges and to have oral evidence, if any, recorded in his presence and then to companye to a finding. None of these steps is necessary before suspending a Government servant pending enquiry. Such orders of suspension can be passed if the authority companycerned, on getting a companyplaint of misconduct, companysiders that the alleged charge does number appear to be groundless, that it requires enquiry and that it is necessary to suspend the Government servant pending enquiry. Explanation I to rule 2.2 b , Vol. II, 1959 rules, supports the view that there can be suspension of a Government servant even prior to the issue of charges of misconduct to him, the Explanation being, Departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date. Bachhittar Singhs Case 1 is numberauthority for the company- tention that the initial order of suspension pending enquiry must be made after obtaining the explanation of the Gov- ernment servant companycerned. That question did number at all arise for companysideration in this case. In this companynection we may also deal with another companytention of the appellant that the 1941 or 1959 rules do number empower the Government to suspend a government servant pending an enquiry. It is companytended that the suspension companytemplated by the rules is the suspension which companyes under r. 7.5, 1941 rules, or under rules 7.5 and 7.6 of the 1959 rules. These rules do number invest the Government with the power of suspension, but only provide either for certain periods during a Government servants service to be deemed to be periods during which he was under suspension or during which he be placed under suspension in view of the various exigencies mentioned in those rules. No such formal rule is to be found in any of these rules. The power of suspending a Government servant is vested in the authority which appoints the Government servant in view of s. 16 of the General Clauses Act, 1897. I.R. 1963 S.C. 395. The other substantial companytention for the appellant in companynection with the inapplicability of r. 3.26 d to his case is that, under the 1941 rules which governed his service initially, he had a right to opt for retirement on superannuation and that therefore the 1959 rules companyld number adversely affect that right and empower the Governor to retain the appellant in service after the date of superan- nuation without the companysent of the appellant. Rule 1.6 of the 1959 rules provides that numberhing in those rules shall operate to deprive any person of any right or privilege to which he is entitled by or under any law or by the terms of his agreement. Rule 5.28, Vol. II, 1941 rules reads A Government servant in Superior service who has attained the age of 55 years may, at his option, retire on a Superannuation pension. The companytention of the appellant is that this rule gives him the right to retire on superannuation pension on attaining the age of 55 years and that therefore he cannot be retained in service after he had attained that age without his company- sent, that he cannot be deprived of this right by the 1959 rules and that therefore r. 3.26 d companyld number be applicable to him after he had attained the age of 55 years. There is numberhing Corresponding to r. 5.28 of Vol. 11 of 1941 rules in Vol. 11 of the 1959 rules. It appears that r. 5.28 of the latter volume was cancelled. When the retirement of the appellant, as already held, is governed by the 1959 rules and number by the 1941 rules, the right, if any, given by the 1941 rules to the appellant to opt for retirement companyld number be said to be a right which companyes within r. 1.6 of the 1959 rules as rule 1.6 preserves such rights to which the Government servant be entitled by or under any law or by the terms of his agreement. It companytemplates such rights which the law in force gives to the Government servant at the time the 1959 rules are in force. When the 1941 rules do number govern him number, it cannot be said that he has a right to opt for retirement on attaining the age of 55. Rule 5.28, aforesaid, is in Vol. 11 of the 1941 rules which embodies the rules relating to pensions and provident fund and therefore the proper interpretation of that rule would be that it provides for and permits the grant 50-2 S. C. India/64 of superannuation to a government servant who has opted to retire after attaining the age of 55 years on being required by the Government, in the exercise of its powers under r. 3.26 of Volume 1, to companytinue in service. This is clear from the sequence of rules in Volume II. Section 4 of Chapter V deals with superannuation pension. Its part I deals with companyditions of grant. This part has got three rules 5.27, 5.28 and 5.29. The other part deals with procedure. Now, r. 5.27 provides that superannuation pen- sion is granted to a Government servant in superior service entitled or companypelled to retire at a particular age. This rule refers to the Government servant to whom superannuation pension is granted. Rule 5.28 follows this rule under the heading companyditions of grant and therefore is to be interpreted to mean that superannuation pension can be granted to a Government servant in superior service who is retired at his option after he has attained the age of 55 years. Assuming however that the appellant had a right to retire on attaining the age of 55 years in view of this rule or r. 3.26 a , that right is subject to r. 3.26 d in as far as this rule provides that numberGovernment servant would be permitted to retire on his reaching the date of companypulsory retirement if he be under suspension on a charge of misconduct. It is also companytended that r. 3.26 d applies to those Government servants whose date of companypulsory retirement, i.e., the date on reaching which they companyld be retired or permitted to retire, precedes the date of superannuation on which date they must retire. There is numberhing in this rule or in numbere number 3 to r. 3.26 which should make us companystrue the expression date of companypulsory retirement to be the date on reaching which they can be retired or permitted to retire prior to the actual date of superannuation. No such rule was really necessary for such cases as it was number incumbent on the State to require the officers reaching such an age to retire. Requiring them to retire at that age was an option with the Government. The expression date of companypulsory retirement in r. 3.26 d must really refer to the dates mentioned in the earlier clauses of r. 3.26 and they are those on which the Government servant attains the age of 55 years or any of the ages mentioned in clauses b and c of that rule. Clause b provides that certain Government servants should be required to retire at the age of 60. Clause c i provides for the retirement of certain officers on reaching the age of 55 years and empowers the Government, however, to require them to retire on reaching the age of 50 years in certain circumstances. The expression required to retire would certainly refer to these officers whose cases companye within the previous clauses of r. 3.26 and may also be applicable to Government servants who may be required to retire under any other rule in particular circumstances. The width of the rule cannot clearly make the rule inapplicable to the cases companyered by the earlier clauses of r. 3.26. The expression permitted to retire, again, would refer to cases where the Government servant opts to retire in view of certain rules providing for his exercising such an option. The following observations at p. 579 of the case reported as The State of Bombay v. Saubhagchand M. Doshl 1 do number support the companytention of the appellant. They simply mean that the question under companysideration in that case companyld arise in those circumstances, the observation being. It should be added that questions of the above character companyld arise only when the rules fix both an age of superannuation and an age for companypulsory retirement and the services of a civil servant are terminated between these two points of time. The question raised in that case was whether the order of companypulsory retirement amounted to an order of dismissal or removal or number. We are therefore of opinion that the appellant had numberabsolute right to opt for retirement on his attaining the age of superannuation, that any such option was subject to r. 3.26 d which applies to him and that his case companyes under that rule as he was on the date of his companypulsory retirement under suspension on charges of misconduct. It is true that numberquestion of Government retaining a Government servant in service on Ms attaining the age of 55 years arises if the officer had once retired on attaining that age. If the Government desires to have the advantage 1 1958 C.R. 571. of his services after he had retired, the only companyrse open to the Government is to reemploy him. No such situation however arises in the present case when the impugned orders suspending the appellant, revoking his leave subsequent to that date and retaining him in service after the date of superannuation in view of r. 3.26 d had been made prior to the date on which he was to attain the age of 55 years. It has also been companytended that r. 3.26 d infringes the fundamental rights of the appellant as a citizen Of India under Art. 19 and 23 of the Constitution. We do number agree. Rule 3.26 d simply provides that the service which the appellant took up voluntarily and on companyditions as be laid down by the relevant rules would companytinue in certain circumstances even though the Government servant has attained the age of superannuation. Further, any res- triction the rule imposes on any alleged fundamental right under cls. f and g of Art. 19 is a reasonable restriction in the interests of the general public. The services to be rendered by the Government servant subsequent to such an age, in view of r. 3.26 d , is in numbersense a service which can be equated with the expression begar or forced labour in Art. 23. The appellant is number forced to do any work. He remains under suspension and does numberwork. Even if it be assumed that the retention in Service of the Government servant, in view of the provisions of r. 3.26 d , can companye within the expression forced labour this rule would be valid in view of Art. 23 2 which provides that numberhing in that Article shall prevent the State from imposing companypulsory service for public purposes. We are of opinion that such retention would be for a public purpose, as it is in the larger interests of the efficiency of the services that a Government servant should remain within the company- trol of -the Government so long as the departmental enquiry against him on a charge of misconduct is number company- cluded and final orders are number passed. It was also companytended that some of the charges framed against the appellant, if true, would companystitute criminal offences and that therefore criminal prosecution should have been launched against him in place of the departmental proceedings. There is numberhing in the rules or the general law which would support this companytention. It is for the Government to decide what action should be taken against the Government servant for certain misconduct. Such a discretion in the Government does number mean that the pro- ,vision for the departmental enquiry on such charges of misconduct is in violation of the provisions of Art. 14. The service rules apply equally to all the members of the service i.e., to all persons similarly placed and are number therefore discriminatory. The Government has the discretion in every case, companysidering the nature of the alleged misconduct and other circumstances, whether a criminal prosecution should be launched or number. The Government is also free to companyduct departmental proceedings after the close of the criminal proceedings, if instituted There is therefore numberhing illegal in the Government instituting the departmental proceedings against the appellant. Before dealing with the allegation about the impugned orders being made mala fide, we may deal with certain general points raised by the appellant. A grievance has been made that Sardar Pratap Singh Kairon, the Chief Minister, was number made a party to the proceedings on the writ petition. The appellant did number implead him in the first instance. It was after the decision of this Court in R. P. Kapur v. Sardar Pratap Singh Kairon 1 that the appellant applied for the impleading of the Chief Minister as the respondent in the petition. That application was rejected by the High Court as numberrelief had been claimed against him. The order cannot be said to be wrong when the only ground mentioned for impleading the Chief Minister as a party was to make it incumbent on him to file an affidavit, which he was number legally obliged to, if he was number a party. A number of affidavits sworn by Mrs. Sodhi, Pahwa, Yog Raj, Om Prakash, Surendra Singh Kairon and Kirpa Singh were filed on behalf of the respondent in the Court below. It is number companytended that these affidavits should number have been taken into companysideration when numberreference to them has been made in the written statement filed on behalf of the respondent. No such objection seems to have been raised in the Court below. The allegations in the petition and the affidavit of the appellant with respect to matters companycerning these persons were number accepted by the 1 1961 2 S.C.R. 143. respondent. It was therefore number improper or irregular or illegal for the State to have secured these affidavits and to have filed them in Court. In fact, it should have secured affidavit from the Chief Minister, Mrs. Kairon, the Inspector-General of Prisons and the Vigilance Inspector about the allegations companycerning them. There is therefore numberforce in this companytention. It has been companytended that the allegations of facts made by the appellant in the petition being number specifically company- troverted in the written statement and being number denied by the persons most companypetent to deny them, should be taken to be established. The companytention really refers to the allegations made against the Chief Minister and his wife and about certain matters in the tape recorded companyversation the appellant had with the I.G. of Prison and the Vigilance Inspector. The appellant has filed a rendering of the company- versation alleged to have taken place between him and these persons. These persons have number denied, by their own affidavits, that they did number have the alleged companyversations with the appellant, even though the officers of the State, on the application of the State, were allowed to listen to the recorded tape companyversation and to prepare their own tape records of the renderings of the tape recordings filed by the appellant in Court in order to enable the State to verify the appellants allegation that the tape-recorded talks were between the appellant and the persons alleged. Absence of such affidavits can at best lead the Court to accept what was alleged to be stated by these persons in the companyversations, but cannot be sufficient to establish what the person talking states to be the statements of other persons. The tape recorded companyversation between the ap- pellant and the other person talking with him can only be companyroborative evidence of the statement of appellant that the other persons had made such and such statements, but cannot be direct or primary evidence that the third person had stated what the other speaker had told the appellant. The High Court did number rely on the renderings of the tape recorded companyversation in view of the fact that such tape recording can be tampered with. Tape recordings can be legal evidence by way of companyroborating the statements of a person who deposes that the other speaker and Minister towards the appellant. There is numberallegation that the boy suffered on account of his leaving the appellants house prior to his being cured companypletely. There is numberhing in the record of the alleged companyversation between the appellant and the wife of the Chief Minister, tape recorded talks number. 6 and 2 in April and May respectively, to show that the Chief Minister had asked the appellant to perform the operation. Any statement attributed to the Chief Minister, by his wife, even if the talk was with her,is number evidence of what the Chief Minister had stated, as Sardarni Pratap Singh Kairon has number been examined. Surendra has denied, in his affidavit, the appellants performing any operation on him at the relevant time. In these circumstances, it is number possible to hold that the Chief Minister did ask such a favour from the appellant and that even if the appellants allegation is companyrect, he felt so annoyed with the appellant at Surendras leaving Jullunder for a few days, be it from the house of the appellant or from the Circuit House, as to break all such friendship with the appellant as has been alleged by him and swing over to the other extreme and harbour such grudge against him as to abuse his position as the Chief Minister, get unjustified enquiries launched against him and get the impugned orders passed. Another allegation is that the Chief Minister himself and his family members, made numerous recommendations asking for undue favours pertaining to the sphere of the appellants duties and that when they went beyond the limits of endurance, the appellant expressed his inability to companyply with some of the extremely unreasonable demands. In support of this companytention, the appellant filed documents of the B- series, nineteen in number. None of these documents, by itself, would show that the appellant was asked to act in a manner which may be said to be number in keeping with the proper discharge of his official duties. The companytents, by themselves, show that the writers, who included the Chief Minister, his sons Surendra and Girendra and his brother Jaswant Singh, recommended to the appellant certain persons for treatment, for admission in the hospital or for grant of medical certificates. It is number to be presumed that untrue certificates were required to be issued. The appellant does number state in what manner he acted improperly and why he did so. The there fact that he was a friend of the Chief Minister would number justify it. He held a responsible position and is expected to have done his duty. In case he did number do his duty and thus suffered from a weakness of character, his companyduct can be said to be due to his desire to remain in good grace with the Chief Minister and thus gain some advantage in the service, be it promotion, posting at a good station or protection from any adverse action in case he acted improperly in the discharge of his official duties. There is numberhing in the petition to indicate how and when the Chief Minister and the appellant became friends. The relationship between the Chief Minister and an efficient public servant may be a close one, but would number amount to friendship and therefore the explanation that the appellant showed undue favours for some time to persons recommended by the Chief Minister and his relations merely on account of friendship does number appear good and, even if the appellants allegation be companyrect, Ms showing undue favours would number antagonize the Chief Minister. The appellant has number shown which recommendations he did number companyply with and when such occasions arose. Therefore this allegation does number establish the Chief Ministers bearing a grudge against the appellant. The other reason for the Chief Ministers grievance is said to be the appellants ceasing to companyply with the un- reasonable requests of the family members of the Chief Minister for medicines and other expensive articles. He does number say which requests and when he did number companyply with. So long as he companyplied with those requests, they would put him in good grace with the Chief Minister and Ms relations. It is however denied that he did supply such things. It appears from certain postal receipts filed by the appellant that certain parcels were sent to Mrs. Pratap Singh Karion in July and October 1957, March and September 1958 and March 1959. The receipts do number show that these parcels companytained medicines. Tape recorded talks number. 1, 3, and 4 do refer to requests for and supplies of medicines by the appellant. It is also alleged that among the expensive articles supplied were two Singer sewing machines. Cash memos for the purchase of two Singer sewing machines by Sardar Bahadur Bagh Singh, father-in- law of the appellant in July 1959 and October 1959, have been filed. In July 1959, a wooden box was sent to Mrs. Kairon through Pahwa who was then the Traffic Manager of the Punjab Roadways at Amritsar. Om Prakash brought that box from the appellants place to Pahwa. Both these persons, Om Prakash and Pahwa, have filed affidavits. They describe the box to be of such a size that it companyld number possibly companytain the Singer sewing machine. Om Prakash however had stated in the receipt, Annexure C. 9, that he had received a box bearing label Singer Sewing Machine from Dr. Partap Singh. Tape recorded talk number 3 in August 1959 records Mrs. Kairons companyversation about receiving a machine and number liking it on account of its companyour and the appellants telling her, that they would deduct the money in certain companytingencies. The State has number filed any affidavit by her in denial of these statements. The companyversation shows that the appellant supplied a Singer sewing machine to Mrs. Kairon and that some deduction companyld be made in the price in certain companytingency. There is numberreason to disbelieve the appellants statement that he had supplied a Singer sewing machine and medicines to her. These supplies by the appellant would however ingratiate him with the Chief- Minister. There is numberhing on the record to indicate which requests for what medicines and articles and when were refused by the appellant and thus gave cause for grievance to the Chief Minister. Another reason for the Chief Ministers harbouring a grievance against the appellant is said to have arisen in April 1960 on account of the appellants asking the Chief Ministers friend, Kirpa Singh, whom he had kept as a guest for about 7 months, to leave the appellants house. Kirpa Singh was the Manager of National Motors at jullunder. It is alleged in the petition that this firm was either directly or indirectly owned by Surendra Singh Kairon or a close relation of his. This allegation is very vague. Both Kirpa Singh and Surendra Singh have denied Surendra Singhs having any companycern with the National Motors at jullunder. Kirpa Singh did stay at the appellants house in the alleged period. His letter Exhibit D-1, however does number indicate that he felt annoyed at leaving the appellants house where he had stayed from September 1959 to the end of March 1960. In fact, Kirpa Singh, by his letter, expressed his thanks to the appellant. There companyld therefore be numberreason for the Chief Minister to feel annoyed and bear grudge against the appellant on account of Kirpa Singh number staying as a guest of the appellant from April 1960, even though Kirpa Singh was a friend of the Chief Minister and was kept as guest by the appellant at the instance of Surendra Singh, as appears from the tape recorded talk number 15. The other two reasons for the Chief Ministers being aggrieved with the appellant relate to what happened sub- sequent to April 1960. It is alleged that in September 1960, the Chief Minister sent a message through the Home Secretary, Punjab, to the effect that he had been over liberal towards the Akali prisoners in the District Jail. It is stated in the written statement filed by the respondent that the District Magistrate, Jullunder, made such a companyplaint to the Home Secretary, who happened to be at jullunder and that the Home Secretary companyveyed it to the appellant at a meeting at which the Inspector-General of Prisons and the Collector were also present. The matter was closed as a result of what was talked about at the meeting. Reference has been made in this companynection to the tape recorded companyversation the appellant had with the Inspector General of Prisons in November 1960. It appears from this companyversation that exaggerated information had reached the Chief Minister and made him send the message and that he was satisfied when the I.G. of Prisons explained the matter to him. A Chief Ministers sending a message to an officer about certain companyplaint received against him cannot be taken to indicate his ill-will against that officer. He is bound to do so as a part of his, duty. The next reason is said to be that the Chief Minister had used the appellant extensively in the Karnal Murder Case, off the record, when it was the subject matter of an appeal. The Sessions Judge acquitted the accused in that case in November 1959 and the High Court dismissed the Government appeal in May 1960. The appellant did his best to help the prosecution with instructions in companynection with the medico- legal matters in the case and stated to the Chief Minister that the outcome of the case would be favourable. This is borne out from tape recorded talk number 17 recorded in April 1960. It is alleged that the dis missal of the appeal by the High Court and the ultimate dismissal of the Government petition for special leave to the Supreme Court in October 1960 displeased the Chief Minister who expressed his displeasure to the appellant. It can be imagined that the Chief Minister in these cir- cumstances would sarcastically speak to the appellant about the strong assurances he had given about the outcome of the case, but it is difficult to hold that that would make the Chief Minister hostile to the appellant despite the hardwork he had done, at his request, in helping the prosecution with the medico-legal aspect of the case. It is significant to numbere that the appellant does number allege that the Chief Minister expressed his displeasure to him in May 1960, shortly after the High Court-dismissed the State Appeal. Another cause for the displeasure of the Chief Minister is said to be the appellants inability to companyply with the illegitimate companytents of the instructions companyveyed to him by the Chief Minister in December 1956 in companynection with Dr. Dhillons accompanying the Chief Minister for a number of days as medical attendant. The nature of those instructions has number been disclosed. What part the appellant played in the alleged subsequent developments with the Accountant General, Punjab, and which were unpalatable to the Chief Minister, has number been indicated. The incident took place in December 1957 and surely, even if true, does number appear to have affected the alleged friendly relations between the Chief Minister and the appellant up to April 1960. We have companysidered all the reasons set out by the appellant in his petition for the Chief Ministers bearing grudge against him from May 1960 onward and are of opinion that they, singly or cumulatively, fail to establish that the Chief Minister had any grievance against the appellant. The earliest definite incident which, according to the ap- pellant, annoyed the Chief Minister, took place in the beginning of April 1960, as Kirpa Singh was made to leave his house at the end of March 1960. We have held that in view of Kirpa Singhs letter of thanks to the appellant, there companyld have been numbercause for the Chief Minister to feel displeased with the appellant. This inference finds support from the fact that the Chief Minister did number do anything against the appellant soon after it, but on the other hand, entrusted the appellant to perform an important operation secretly on his son Surendra in the end of April 1960, which companyld be only if he entertained good relations with the appellant till then. We have also held that the alleged inability of the appellant to keep Surendra Singh at his place subsequent to the appellants performing the operation on him companyld number have displeased the Chief Minister as numberill-effect fol- lowed. This view, again, finds support from the fact that the Chief Minister did numberhing against the appellant till the end of October when an enquiry was instituted against the appellant. The alleged incident about Surendras leaving jullunder for a few days before he fully recovered did number therefore lead to any animosity between the Chief Minister and the appellant. The High Court, Punjab, dismissed the State appeal in the Karnal Murder case in May 1960. The appellant is said to have helped the prosecution at the appellate stage. The Chief Minister companyld have had cause for dissatisfaction but, as we have mentioned earlier, the dismissal of the appeal companyld number have given rise to such bad feeling in the Chief Minister against the appellant as to lead to the transfer of the appellant in October and to institute the enquiry against him. The recorded companyversation between the appellant and the I.G. of Prisons in November 1960 tends to indicate that the appellants relations with the Chief Minister companyld number have been bad in November 1960 as he had sought the advice of the G. of Prisons about his reporting to the Government about the attitude of the District Magistrate at that meeting. If the relations between the Chief Minister and the appellant were as bad as we are asked to believe, such an idea in companynection with the attitude of the District Magistrate, even if it was improper, companyld number have occurred to the appellant at that time when the I.G. of Prisons himself had told him In my opinion that matter was hushed up. The appellant has, however, also urged certain matters as indicating the malice borne by the Chief Minister towards him and thus indirectly giving support to his al legation that the Chief Minister had personal grievances against him. The appellants transfer from Jullunder to Amritsar was ordered in December 1960. Jullunder, according to the appeuants statement in Court, is a companyeted station for Civil Surgeons. He had overstayed there the numbermal period of three years. His transfer cannot be attributed to malice of the Chief Minister, when an enquiry had been instituted against him in companynection with a companyplaint regarding the discharge of his duties. Transfer, in such circumstances, was the most natural order to be passed by the Head of a Department. It may be that for the companyvenience of its officers transfers are usually ordered in March and April and are number ordered shortly before the period of retirement. But any transfer outside that period or sometime before retirement, for administrative reasons, cannot be said to be a transfer ordered mala fide. The appellants brother-in-law, who was officiating in the Provincial Civil Service, Executive Branch, was reverted to the lower cadre on November 22, 1960, the reversion being between the institution of a departmental enquiry against the appellant and the orders of his transfer. This is said to be evidence of the general ill-will which the Chief Minister bore against the appellant. It is alleged in the written statement that the reversion was on account of the unsatisfactory companyduct and work of - the appellants brother. We cannot take this reversion to be mala fide as there is numberhing on the record that it has been so held in any proceedings which companyld have possibly been taken by the appellants brother-in-law against his reversion. Sub- sequent cancellation of the reversion orders on his representation, as stated in Court by the appellant, does number, by itself point to reversion being made mala fide. The appellant preferred to take leave preparatory to retirement and, as already stated, such leave was sanctioned to Mm. He proceeded on leave some time in December 1960. Subsequently, things happened which companyld have given cause to the Chief Minister for feeling aggrieved with the appellant. The Blitz of January 14, 1961 pub- lished an article under the caption Punjabs latest scandal The sewing machine of Kairon family. According to this article, the Civil Surgeon paid the price for the sewing machine and supplied it to the Chief Ministers wife. It also mentioned that the Roadways Official transported it. It described the appellant to be the henchman of the Chief Minister and a handyman for Ms family members. It stated that the Civil Surgeon is said to have despatched several. medicine parcels to the Chief Ministers wife by registered post and that he was asked to supply them out of the hos- pital stock. It referred to the Chief Ministers son having a garage in Jullunder and to the Boarding of the Manager of the Garage with the Civil Surgeon. It also mentioned about the recommendatory letters from the Chief Ministers sons, sister-in-law and brother to the Doctor. It referred to Dr. Dhillons affair. Naturally, the Chief Minister companyld have taken this article to be inspired by the appellant and, more so when the appellants wife published a letter in the Blitz dated March 18, 1961, practically admitting what had been alleged in that article except such matters which went against her husband. She stated that she sent parcels of medicines by registered post and other means to the wife of the Chief Minister and that the Garage Manager stayed with them as required by the Chief Ministers wife. Between January and March, several things happened which indicated to the appellant that the Government was taking action against him. On January 17, 1961, the appellant received a letter dated January 13, 1961,from the Inspector of Vigilance, District Jullunder, enquiring from him about the place where and the date when he companyld be companytacted for ascertaining his view point on points relevant to the enquiry ordered by the Punjab Government. This was in companynection with the enquiry instituted on October 29, 1960. It is alleged for the appellant that the Chief Minister companyld have seen the companyy of the Blitz dated January 14 at Delhi on January 13, 1961 and that he then started vindictive proceedings against the petitioner and used the Government machinery in a malicious manner to satisfy his personal malice and vendetta. The implication is that it was on the Chief Ministers knowing of the article published in the Blitz dated January 14 that he directed the Vigilance Inspector to issue the letter of January 13 to. the appellant for ascertaining the place and the date when he companyld interrogate him in companynection with the enquiry. This is a far-fetched idea. The enquiry had been in progress since October 29 and it must have been in due companyrse that the Vigilance Officer wrote the letter dated January 13 to the appellant. Whatever views the Vigilance Inspector expressed about the various charges framed against the appellant in the tape- recorded talk number 16 on February 13, 1961, even if they be his real views in the matter, is numberindex of the fact that the superior officers who had investigated the case had formed a similar opinion and that the action taken by the Government a few months later in formally framing charges with respect to those matters was actuated by malice. The letter, Annexure J, dated June 3, 1961 states that the evidence brought on record was sufficiently strong to warrant serious action against him. Any views expressed by the Vigilance Inspector who had really numberbusiness to express them when he was deputed to get the explanation or the appellants version about certain allegations against him, is number sufficient, in our opinion, to look at this assertion in the letter with suspicion. In fact, if the Chief Minister had started the enquiry in October on account of malice and had prompted the Vigilance Inspector on January 13 as a result of the publication of an article in the Blitz of January 15, 1961, presuming that he had seen that companyy of the Blitz at Delhi on January 13, the Chief Minister companyld have very well seen to the early submission of the police report making out a case against the appellant and would have taken action against the appellant much earlier than June 3, 1961, when special steps had to be taken to see that necessary legal action against the appellant is companyplete before his date of retirement on June 16, 1961. Surely, the Chief Minister companyld have easily managed these matters if he were actuated by malice and had been taking keen personal interest simply with a view to wreak vengeance against the appellant who had the audacity to act against his wishes even though he had submitted to them for an appreciable time. In February 1961, the appellant received a companyy of the remarks entered in his annual companyfidential file for the year April 1, 1959, to March 31, 1960 Professionally he is reported to be somewhat about average. Yet, there has been persistent companyplaints about his avarice and lack of integrity. The appellant did number appear to have taken any action in companynection with the adverse remarks companymunicated to him till June 29, 1961, except in so far that he asked the Director of Health Services about the period during which a representation against such remarks companyld be made. In his representation dated June 29, 1961, which was submitted beyond the usual period for making representation, the appellant said I am companystrained to point out that these observations by Shri Kairon, Chief Minister Govt. in the Health Deptt. do number reflect an honest opinion in the companytext of certain facts on record, a few of which are outlined below. and referred to the various matters stated by him in the petition. The written. statement shows that these remarks were number made by the Chief Minister but were made by the Secretary in the Health Department. We do number know when these remarks were made. The mere fact that they were companymunicated in February 1961 does number mean that they were recorded near about that date. Annual remarks, in the nature of things, must be made after some appreclable time from the close of the year as they are based on the receipt of the remarks from the departmental heads, who take their own time in submitting such remarks. Even if they were made near about February 1961, that would number show that they were made maliciously on account of the Chief Ministers ill-will as, by that time, the various companyplaints against the appellant which had companye to the numberice of the enquiring officer, would have also companye to the numberice of the Government. The companyplaints, according to the charge-sheet framed against the appellant,mostly relate to the years 1959 and 1960. The tape-recorded companyversations between the appellant and the Chief Minister and his wife were played at a Press Conference on March 29, 1961, at Chandigarh. This led to some move for an adjournment motion in the Punjab Legislative Assembly on March 30. In April 1961, the appellants wife sent a pamphlet Acts of companyruption by Shri Partap Sing Kairon and his 51-2 S. C. India64 family members to the Members of Parliament and other leading persons throughout the companyntry. This companyduct of. the appellants wife would have again furnished cause for grievance to the Chief Minister. The question, however, is whether these acts of the ap- pellant and his wife giving cause for grievance to the Chief Minister between January and April 1961 can be said to have led the Government to take the steps against the appellant with regard to his suspension, revocation of leave, extension of service and institution of a formal depart- mental enquiry out of malice or that such steps were taken against him in due companyrse. We are of opinion that the steps cannot be said to be taken mala fide merely because the appellant and his wife acted in a manner which companyld undoubtedly provide cause for grievance to the Chief Minis- ter. Nothing is on record to indicate why the appellant and his wife felt so prompted as to have an inspired article printed in the Blitz of January 14 and to have the appel- lant,,, wifes letter published in the Blitz in March 1961 and her pamphlets distributed all over the companyntry. Surely, the appellant and his wife cannot be said to have done this with the numberle object of bringing the misdeeds of the Chief Minister of Punjab to public numberice and thereby to cause a change for the better in the administration of the affairs in the Punjab. The appellant was number a free man. He was still in service, though on leave preparatory to retirement. He was to retire in June 1961 and therefore he had to observe the usual discipline enjoined on a public servant. His wife too was number to act in manner in which a public servants wife is number expected to act. It cannot be believed that the appellant did number know what his wife was doing. The companyclusion is irresistable that the appellant and his wife rushed to the Press so prematurely, even if they companyld be said to be actuated with laudable motives of bringing improvement in the administration of the State, to create a shield for the appellant in case the police investigation that was in progress against him culminated in the formulation of formal charges against him and in the instituting of a formal departmental enquiry against him. The design was on the part of the appellant and cannot be said to be on the part of the Chief Minister, who can be responsible for various orders of Government as the Minister-in-charge of the department and as head of the Administration. It has also been companytended in companynection with the alleged mala fides that in view of r. 8.19 of the 1941 rules, the Government should have refused the leave in December 1960 if genuine companyplaints had been made against the appellant and investigation was proceeding on them. The leave was to be governed by the 1959 rules and r. 8.19 in those rules did number make it incumbent on the Government to refuse leave to the appellant in December 1960. The rule is Leave shall number be granted to a Government servant whom a companypetent authority has decided to dismiss, remove or companypulsorily retire from Government service. Government had number arrived at any such decision and there- fore companyld number have and was number bound to refuse leave by resorting to r. 8.19. Even the rule as it stood in the 1941 rules companyld number have justified the Government resorting to it for refusing leave to the appellant. That rule was Leave should number be granted to a Government servant who is to be dismissed or removed from service for misconduct or general inefficiency, if such leave will have the effect of postponing the date of dismissal or removal, or to a Government servant whose companyduct is at thetime forming, or is in the near future, likely to form,the subject matter of departmental enquiry. The rule wasnot mandatory. It was discretionary with the Government to grant leave or number. The police was investi- gating into the companyplaint against the appellant in December 1960 and it would have been too much for the Government to form a definite opinion about the action to be taken against the appellant then. The grant of leave to the appellant in 1960 does number therefore indicate that the Government had number received any companyplaint against him by the time it granted him leave and that the Governments subsequent action against the appellant was mala fide. Another submission for the appellant to establish his case of mala fides against the respondent is that the Government having sanctioned him leave, need number have taken recourse to suspending him and revoking his leave, but companyld have taken adequate action against the appellant under r. 2.2 b , Vol. 11, 1941 rules, if he was found guilty of grave misconduct as a result of the departmental proceedings the Government was to institute against him. The mere fact that Government took one type of action open to them and number the other, is numberground to hold the Government action mala fide. Further, resort to r. 2.2 b companyld have been taken only if the appellant was found guilty of grave misconduct and it would have been always a debatable point whether the charges made out against him established grave misconduct or simple misconduct. Action under that rule can be taken only in limited circumstances. We are therefore of opinion that it is number established that the impugned orders were made by the Governor number with the ostensible object of a proper departmental enquiry against the appellant with respect to the companyplaints received against him, companyplaints found to have substance by the police on investigation but were made with the ulterior purpose of causing harassment and loss of reputation to the appellant as he had been instrumental in making public allegations tending to bring the Chief Minister of the State into disrepute. We therefore dismiss the appeal. BY COURT In view of the opinion of the majority, the appeal is allowed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 531 and 532 of 1961. Appeals from the judgment and decree dated January 31, 1957, of the Madras High Court in Appeal Suit No. 357/1951. Satyanarayana, for the appellant in C.A.No.531/1961 and respondents Nos. 3, 4, 6, 7 and 10 to 12 in.C.A.No.532/61 . V. Viswanatha Sastri. and T.V.R. Tatachar for the appellants in C.A. No. 532/1961 . K. Daphtary, Attorney-General, R. Ganapathy Iyer and R.N. Sachthey, for the respondent in C.A. No. 531/1961 and Respondent No. 2 in C.A. No.532/1961 . October 31, 1963. The Judgment of the Court was delivered by AYYANGAR J.-These two appeals arise out of a single judgment of the High Court of Andhra Pradesh and are filed by two distinct parties who felt aggrieved by it, pursuant to the grant of certificates of fitness granted by the High Court under Art. 133 1 of the Constitution. In Dwaraka Tirumalai--a village in the West Godavari district of Andhra Pradesh, there is a temple dedicated to Sri Venkateswaraswami. The administration of the affairs of this temple was being companyducted under a scheme settled on the 28th August, 1930 by the Subordinate Judge of Eluru in Original Suit No. 1 of 1925 on his file. That was a suit filed by certain worshippers of the temple under s. 92 of the Civil Procedure Code for the settling of a scheme for the proper management and administration of the institution. The hereditary trustees of the temple as well as the office holders thereof, and in particular the archakas and the Karnam were party-defendants to that litigation. There had, even then, been companytroversy as regards the rights of the two office holders whom we have named and as regards the items of remuneration to which they were entitled and these were companysidered and findings recorded by the Court and the provisions of the scheme framed embodied the findings on these points. From the decision of the learned Subordinate Judge appeals were filed to the High Court both by the worshipper plaintiffs as well as by the Dharmakartas who were members of the family of the Zamindar of Mylavaram which was the hereditary trustee of the temple-but both the appeals were dismissed and the scheme, as framed by the trial Judge, was companyfirmed. During the pendency of this suit in the Court of the Subordinate Judge, the Madras Legislature enacted the Madras Hindu Religious Endowments Act Madras Act 11 of 1927 which we will hereafter refer to, as the Act. It was an enactment to provide. as its preamble recited, for the better administration and governance of certain Hindu Religious Endowments. The temple of Venkateswaraswami was an institution to which the Act applied and according to the numberenclature adopted by the Act the temple in question was an excepted templean expression which was defined as meaning a temple, the right of succession to the office of trustee whereof has been hereditary. As already stated, the family of the Zamindars of Mylavaram were the hereditary trustees of this temple. Section 75 of the Act ran Where the administration of a religious endowment is governed by any scheme settled under section 92 of the Code of Civil Procedure, 1908, such scheme shall, numberwithstanding any provisions of this Act which may be inconsistent with the provisions of such scheme, be deemed to be a scheme settled under this Act, and such scheme may be modified or cancelled in the manner provided by this Act. The scheme framed by the Subordinate Judge and companyfirmed by the High Court thus being a scheme which was deemed to be a scheme settled under the Act, the provisions of s. 57 9 were attracted and this sub-section ran 57. 9 Any scheme of administration settled by a companyrt under this section or which under section 75 is deemed to be a scheme settled under this Act may, at any time for sufficient cause, be modified or cancelled by the companyrt on an 1 SCI/64-18 application made by the Board or the trustee or any person having interest, but number otherwise. In accordance with the powers companytained in that behalf the Board of Commissioners for Hindu Religious Endowments for shortness the Board who were the authorities companystituted to administer the Act filed an original petition on August 3, 1947O.P. 76 of 1947 in the Court of the District Judge, West Godavari for the modification of the scheme. The points upon which the modifications were sought were numerous and several of these were accepted by the Court but only two of them are number in companytroversy and are the subject- matter of the appeals and these relate to the remuneration allowable to two classes of temple officials Archakas, and b the Karnam, both of these holding their office by hereditary right. The learned District Judge accepted the companytention raised by these two sets of officeholders that numbercase had been made out for varying the remuneration which had been held payable to them under the original scheme in O.S. 1 of 1925. Against this decision of the District Judge an appeal was filed to the High Court by the Board of Commissioners and the learned Judges allowed the appeal in part and substantially modified the provisions as to the remuneration payable to the two officeholders. It is only necessary to add that the archaka respondents filed a memorandum of cross objections to the appeal preferred by the Board, but this was dismissed. That dismissal has number become final and the claims made in that memorandum cannot be and are number the subject of challenge before us. Questioning the companyrectness of the judgment of the High Court in the appeal by the Board both the archakas as well as the Karnam filed petitions for certificates of fitness under Art. 133 and these having been granted, their appeals are number before us. Civil Appeal No. 531 of 1961 is the appeal filed by the hereditary Karnam of the suit-temple, while Civil Appeal 532 of 1961 is by the Archakas. Civil Appeal No. 532 of 1961 We shall, first, take up for companysideration Civil Appeal 532 of 1961. which is companycerned with the grievance of the archakas against the variation made by the High Court against the scheme as settled by the learned District Judge. According to the appellants, they are entitled to several items of remuneration. The major one among these is a half share in the votive offerings in the shape of cash etc. deposited by the worshippers in the Hudni or dibble kept in the temple to which they claimed title by virtue of long usage and custom. It was said that the total companylections from the dibbi amounted to near Rs. 50,000 per year. The manner in which the dibbi companylections were gathered, accounted for and divided is set out in the judgment in S.1 of 1925 and from its companytents it is manifest that this usage had been recognised by several previous decisions in litigations to which the temple was a party. We might, here, mention a matter which is of relevance only to Civil Appeal 531 of 1961 and that is that from the half share to which the temple was entitled the Karnam of the temple was by custom given for his services a one anna or a 1/16th share. As regards these the learned Subordinate Judge in his judgment in O.S. 1 of 1925 observed The archakas and the Karnam of the temple were allowed to take their respective shares in the companylections in dibbi for a long time and though the origin of such a right is number known, it cannot be said that it had numberlegal origin. It might have been recognised by the founder him--elf, of the temple. Besides a share in the dibbi companylections the archakas also laid a claim to a share in the bhogam and besides, certain fees on the occasion of marriages or Upanayanams performed in the temple. monies dropped on the plate on the occasion of Dweeparadhana and certain claims to Padaraksha Kanukalu and certain pumpkins which were brought to the temple as offerings to the deity. It was their claim that their right to these items of extra remuneration was founded on custom and had been recognised and given effect to from time immemorial by Courts on occasions when their right to any of these items was disputed. The learned Subordinate Judge who framed the scheme in O.S. 1 of 1925 did number specifically set out these minor items in the scheme that he framed, though some of these matters were the subject of discussion and finding in the judgment to which the scheme was a schedule but in line with the terms of s. 79 of the Act which, by the date his judgment was pronounced, had companye into force and which read Save as otherwise expressly provided in or under this Act numberhing herein companytained shall affect any established usage of a math or temple or the rights, honours, emoluments and perquisites to which any person may by custom or otherwise be entitled in such math or temple. added in paragraph 23 of the scheme these words Nothing companytained in the scheme shall affect established usage with regard to the rights, honours, emoluments and perquisites to which any person may by custom or otherwise be entitled in the temple. There was, however, a specific reference in the scheme in cl. 12 for the division of the dibbi companylections and the handing over to the archakas of the half share to which they were entitled. It was of the terms of this scheme that modifications were sought by the petition filed under s. 57 9 of the Act. The petition while companyceding, in paragraph 4 e , the right of the archakas to the half share in the dibbi companylections, proceeded to state in paragraph 7 g , 7. g The archakas claim a half share in the dibbi companylections such half share exceeds Rs. 18,000 per year in spite of this the archakas claim further moneys. As payment of such a claim is against the interests of the temple, provision has to be made that the archakas are number entitled to any remuneration or fee or share or in the shape of lands or income from the lands, other than their share in the dibbi companylection. and in sub-paragraph 7. b The practice of giving a share of the bogums to certain temple servants is against the interests of the temple. The modification thus sought was objected to by the archakas who were impleaded as respondents to the petition and they averred in paragraphs 11 and 12 that their right to the bogums and the other fees and perquisites which they were claiming and which were being received and enjoyed by them up to then, were rightfully theirs and that there was numberreason, in law or equity, to deprive them of these items. The learned District Judge, after accepting several suggestions made by the Board for the modification of the scheme in the matter of the manner in which the dibbi accounts were to. be kept, how the dibbi was to be opened etc. which. are numberlonger the subject of companyplaint. observed as follows in regard to the archakas and the Karnam with whom we are companycerned So far as the archakas, and the karnam are companycerned most of their rights are governed by the decrees, usage, custom, etc., and they should be adhered to For doing these definite duties irrespective of the question whether the worshipper visits the temple or number, they are paid their share in the dibbi companylections The person incharge of the deity at the time of the worship will be the archakas or archakas attached to the temple They may be required to perform special worship or companyduct other ceremonies according to usage and custom and be paid accordingly. It is unnecessary and it will be dangerous to disturb the established usage in the temple or to create misunderstandings which will detrimentally affect the worshipping public and the smooth working of the institution intended primarily for the propitiating of God by the worshippers who go there seeking temporal and spiritual advantages. So far as the other offerings by the donors to the temple of the deity are companycerned which are number put in the dibbi the archakas or others can lay numberclaim The archakas have got certain rights in the prasadams. There is numberreason why that right should be companymuted. These things have to be left to the good sense of the archakas and sthanikar According to P.W.1, the quantities to be supplied for each bhogum are fixed. These things should number be changed as numbertrouble has been experienced with regard to it. Italics ours . Thus in effect the learned District Judge, though he made substantial modifications in the details of the administration, refused to disturb the mode or quantum of remuneration which had previously prevailed in the temple. It was from this judgment that the Board preferred an appeal to the High Court. The learned Judges of the High Court modified the direction of the learned District Judge by stating The appellant seeks also the modification of clause 14 of the scheme in so far as it provides that the archakas shall be entitled to claim as and for their remuneration only half the share of the income from the dibbi installed in the temple and such other emoluments, perquisites etc., allowed under the decrees of Courts, or usage. We are in agreement with the learned Counsel for the appellant that the provision as regards other emoluments, perquisites etc., allowed to them under the decrees of companyrts and usage is too vague and likely to give rise to difficulties. We think that their claim should be restricted to a half share in the dibbi companylections and to a similar share in the pumpkins and rice offered at the time of the dedication, of a calf to the deity a right which appeared to have been recognised for long. In our opinion, they should be entitled to numberother perquisites or emoluments. This part of clause 14 will be modified accordingly., and later in the judgment the learned Judges dealing with the claims made in the memorandum of cross objections, added Mr. Vishnurao for the archaka-respondents has urged that the scheme needed numbermodification. His main and substantial companytention is in relation to the emoluments receivable by the archakas. He companytends that his clients are entitled to a half share in all the votive offerings made to the deity. We are number satisfied that the archakas are entitled to such a share. It is numberorious that on account of bad management, the archakas of temples all over this part of the companyntry have been claiming rights far in excess of what is legitimate and proper. In the case of lands belonging to the deity and put in their possession, claims have been generally advanced to full ownership thereof repudiating the title of the deity thereto. Such claims have been negatived and an arrangement has been recently arrived at, so far as the rest while Andhra State is companycerned, whereby the archakas are allowed to enjoy a portion of the land for their services. We have numberdoubt that the claim number set up to half of whatever is offered to the deity is a similar unfounded claim and cannot be justified on the ground of ancient usage. In our opinion, the provision we have already suggested for the remuneration of the archakas in dealing with the companytentions of the appellant is adequate. In companysequence, clause 14 of the scheme was modified to read The archakas shall be entitled to claim as and for their remuneration only half share in the dibbi companylections and to a similar share in the pumpkins and rice offered at the time of the dedication of a calf to the deity and shall be entitled to numberother perquisites or emoluments. It is the legality and companyrectness of this modification in the scheme that is the subject of the appeal by the archakas-Civil Appeal 532 of 1961. Two points were urged by Mr. Viswanatha Sastri learned Counsel for the appellant. The first was that numberappeal lay from the order of the District Judge modifying the scheme and that the learned Judges of the High Court were in error in entertaining the appeal and modifying the provision in cl. 14 regarding the remuneration permissible for the archakas. 2 If, however, it be held that the appeal by the Board was companypetent he urged that the learned Judges companymitted an error in effecting the modification which they did We shall deal first with the submission that numberappeal lay to the High Court from the decision of the District Judge in the Original Petition seeking modification of the scheme in S. 1 of 1925. The steps in the argument on this point were as follows. Appeals are statutory and unless some specific statutory provision companyld be pointed out enabling an appeal to be filed, any order passed by an authority would be final. No doubt, the proceedings were in the Court of the District Judge and that would by itself ordinarily attract rights of appeal appurtenant to the decisions of that Court. But there was numberscope for the application of this principle because the proceeding under s. 57 9 of the Act before the District Judge was initiated by an application or an original petition and number by a suit. The resultant decision of the District Judge was, therefore, number a decree as defined by s. 2 2 of the Civil Procedure Code which runs, to quote the material words The formal expression of an adjudication which so far as regards the Court expressing it, company- clusively determines the rights of the parties with regard to all or any of the matters in companytroversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section. 47 or section 144, but shall number include The order passed on O.P. 76 of 1947 was therefore number a decree so as to attract the provision in s. 96 of the Civil Procedure Code but merely an order and as from such an order numberappeal lay under the Civil Procedure Code, the right to appeal was dependent on the existence of some special provision in the Act itself Section 84 of the Act companytained a provision for appeals from certain orders of District Judges on applications made to the Court to set aside or modify certain decisions of the Board, but there is numbersuch provision in relation to the orders passed by a District Judge on an application to him under s. 57 9 . This necessarily led, the argument ran, to the result that the order of the District Judge disposing of the application by the Board was number appealable. In support of this submission reliance was placed on the decision of a Full Bench of the Madras High Court in Rajagopala Chettiar v. Hindu Religious Endowments Board 1 . Section 84 1 of the Act enacted If any dispute arises as to whether a math or temple is one to which this Act applies or as to whether a math or temple is an excepted temple, such dispute shall Be decided by the Board. Pursuant to the power thus companyferred the Board decided after an enquiry that the temple whose trustee was the appellant before the High Court, was number an excepted temple. From this decision the aggrieved trustee availed himself of the remedy provided by s. 84 2 which ran A trustee affected by a decision under subsection 1 may within one year apply to the Civil I.L.R. 57 Mad- 271. Court to modify or set aside such decision, but subject to the result of such application the order of the Board shall be final. italics ours . The District Judge refused to set aside or modify the order of the Board but companyfirmed it. Under s. 84 as it then stood, there was numberspecific provision for appeals being filed against an order of the District Court on an application filed to it under s. 84 2 . Nevertheless the aggrieved trustee filed an appeal to the High Court and thereupon a preliminary objection was raised to the maintainability of the appeal which question was referred to a Full Bench for its decision. The learned Judges sustained the preliminary objection for the reason that the order of the District Court did number fall within the definition of a decree within s. 2 2 of the Civil Procedure Code, because the proceeding in which the order was passed was an application and number a suit and companysequently s. 96 of the Civil Procedure Code was number attracted. There being numberspecific provision companyferring a right of appeal against orders under s. 84 2 , the Full Bench held that numberappeal lay to the High Court. On the analogy of this decision it was urged before us that as the proceedings in the case before us originated on an application filed under s. 57 9 , in the absence of any provision for an appeal companyferred on the aggrieved party by the Act, the appeal to the High Court was incompetent. We are clearly of the opinion that the principle of the Full Bench decision cited does number apply to the application before us and that the appeal was companypetent. Section 57 of the Act deals with two types of cases. The first is that companyprised in sub-ss. 1 to 7 . These deal with the power of the Board to frame schemes and the proceedings in relation thereto. Sub-section 1 empowers the Board to settle a scheme for the proper administration of a temple and the endowments attached thereto and specifies the manner in which proceedings for the purpose may be initiated. Sub- section 2 enumerates the provisions which may be companytained in the scheme ,to be framed. Sub-section 3 sets out the matters incidental to the determination of the properties pertaining to the temples which are to be made part of the scheme framed. Sub-section 4 reads 57. 4 The Board may, for good and sufficient cause, suspend, remove or dismiss any executive officer appointed in pursuance of a scheme settled under sub-section 1 or direct the removal of such officer. and sub-s. 5 57. 5 The Board may at any time by order and in the manner provided in sub-section 1 modify or cancel a scheme settled under that sub-section. Sub-section 6 directs the publication in the prescribed manner of the orders of the Board settling, modifying or cancelling a scheme under the section. This companypletes the fasciculus of sections dealing with the power of the Board to frame a scheme and matters ancillary thereto. Up to this stage the proceedings are all before the Board. Next, we have sub-s. 7 which reads 57. 7 The trustee or any person having interest may within six months of the date of such publication institute a suit in the companyrt to modify or set aside such order. Subject to the result of such suit and subject to the provisions of sub-section 9 every order of the Board shall be final and binding on the trustee and all persons having interest. Therefore in the case of schemes framed by the Board itself it is clear that parties aggrieved have a right to file suits and against the decrees passed in such suits it need hardly be said that there would automatically be a right of appeal under the Code. The next relevant sub-section is that numbered 9 which we have set out earlier. The question is whether a different result as to appeals was intended in regard to proceedings taken under s. 57 9 . A scheme which is framed under s. 92, Civil Procedure Code which is deemed to be a scheme under s. 75 of the Act, is one which has been framed in a suit and the scheme itself is part of the decree in the schemes it. It is for the modification or cancellation of such a scheme or rather of the scheme which is part of the decree that s. 57 9 makes provision by the machinery of an application. if, after hearing the application under s. 57 9 , the scheme itself is cancelled, and s. 57 9 provides for such a companytingency and companytemplates such an order-the previous decree will cease to exist. In such an event it would scarcely be open to argument that the vacating of the decree passed under s. 92 of the Civil Procedure Code would number itself amount to a decree within the meaning of s. 2 2 of the Civil Procedure Code. Does it make any difference in that instead of the decree being vacated by cancellation, it is modified? We are clearly of the view that it makes numberdifference. The same matter might be viewed from a slightly different angle. The scheme-decree itself might have companytained a provision granting liberty to a party to the decree to move the Court by an application for the modification of the scheme in stated companytingencies. If in pursuance of such liberty reserved, an application were made to amend the scheme- decree, the resultant order though passed on an application would certainly be an amended decree against which an appeal would lie under s. 96 of the Civil Procedure Code. We need only add that the legality of such a reservation of liberty has recently been upheld by this Court. If the reservation of power or the liberty in the decree would produce such a result and render the amendment of the scheme an amended decree so as to satisfy the definition of a decree within s. 2 2 of the Civil Procedure Code, it appears to us that it makes numberdifference that such a liberty to move the Court to modify the decree is companyferred number by the scheme-decree but by an independent enactment such as the Act number before us. In the circumstances, we companysider that the appeal by the Board to the High Court was companypetent and that the learned Judges had jurisdiction to entertain and deal with the appeal. Coming next to the merits of the decision of the High Court, learned companynsel for the appellant pointed out that there were seven families of archakas who held the office by hereditary right, who divided the share of the dibbi companylections and the other minor items between themselves. Worship in the temple went on from 5 A.M. every day to 9 P.m. and during this entire period, 4 or 5 of the archakas have to function companytinuously. Besides, there were between 40 and 50 festivals every year which entail heavy work. From out of the remuneration and perquisites they received the archakas had to engage Srivaishnavite companyks to prepare the naivedyams and items of food prepared for the deity and there were also other expenses of a similar nature to be incurred by them. In the face of these and other circumstances to which he drew our attention he submitted that there was numberjustification for interfering with the items of remuneration, emoluments and perquisites sanctioned by custom and usage which had been recognised after companytest by decrees of companyrts. These matters were brought to our attention with a view to demonstrating that the remuneration and perquisites which the learned District Judge held them to be entitled, were number so utterly out of proportion to the duties which they had to discharge in companynection with the worship in the temple. In view, however, of the circumstances to be presently mentioned we companysider that it is number necessary to pursue this line of argument. The appellants did number dispute that the share of dibbi companylections etc. and other items of perquisites which had been fixed by custom and usage was really a remuneration for the services performed. if that were so, it would follow that a radical change in circumstances might justify its revision. It might be upward or it might be downward. This position also was number disputed by learned companynsel. But learned companynsel was well-founded in his submission that on the pleadings in the case and on the evidence that was led, there was numberjustification for the High Court to interfere with paragraph 14 of the scheme as framed by the learned District Judge. It would be numbericed that the learned District Judge had, in that paragraph, after making provision elsewhere for safe- guarding the interests of the temple and for streamlining the administration, allowed to the archakas the remuneration to which they were held entitled by custom and usage which had been proved to be established after companytest in companyrts. In O.P. 76 of 1947 which had been filed by the Board seeking modification of the scheme settled in O.S. 1 of 1925 they stated in paragraph 7 g whose terms we shall repeat The archakas claim a half share in the dibbi companylections such half share exceeds Rs. 18,000 per year. In spite of this the archakas claim further moneys. As payment of such a claim is against the interests of the temple, provision has to be made that the archakas are number entitled to any remuneration or fee or share or in the shape of lands or income from the lands, other than their share in the dibbi companylections. From this the following seems to be clear 1 The claim of the archakas to a half share in the dibbi companylections was number disputed, number was the payment said to be improper. 2 Further claims of the archakas which was explained as being one to a share of the lands or of the income from the lands other than the half share in the dibbi companylections was disputed. In sub-paragraph h an objection was raised to giving a share in the bhogams to the temple servants in which term the archakas would be included in these term The practice of giving a share of the bhogams to certain temple servants is against the interests of the temple. Provision may be made for the framing of suitable rules and regulations by the trustees subject to the companyfirmation of the Board in regard to the remuneration of the temple servants. In the companynter-statement filed on behalf of the archakas- respondents they asserted their right to what had already been established by decrees of companyrts and also to their share in the bhogams. The learned District Judge examined this question on the basis of the evidence, upheld their claim to certain perquisites and the result of his finding he recorded in paragraph 14 of the scheme already extracted. The Board filed an appeal against this decision to the High Court. In regard, however, to paragraph 14 of the scheme the only ground urged was ground 13 which ran The lower companyrt erred in allowing the archakas as much as half of the dibbi companylections. In other words, numberobjection was raised to their enjoyment of their share in the bhogam as well as the miscellaneous items of remuneration which they had been receiving some of which we have set out earlier. The learned Judges of the High Court at the stage of the appeal did number disturb the finding as regards the share of the dibbi companylections. Indeed, they companyld number have, because there was number even a prayer for interfering with that share in O.P. 76 of 1947 that was filed by the Board numberwithstanding the line adopted in ground 13 of their memorandum of appeal. To sum up, the position as it emerged at the hearing of the appeal by the High Court was this. In their application to the District Court the Board had companyceded the right of the archakas to the half share in the dibbi companylections and desired numbermodification of the scheme in O.S. 1 of 1925 in that regard. They, however, prayed for a modification in so far as the original scheme recognised and made provision for the right of the archakas to a share in the bhogams. The District Judge had, of companyrse, maintained the right to a share of the dibbi companylections which was number in dispute, but had decided against the Board as regards the modification sought as regards bhogams in para 7 h of the Original Petition. The Board filed an appeal. There was numberground of appeal as regards the right of the archakas to a share of the bhogams so that except with the leave of Court they were number in a position to canvass the propriety of the rejection of the relief they sought. The Board,. however, questioned the right of the archakas to a share of the dibbi companylections which, having regard to the companytents of their petition, was number at all open to them. The ground upon which the learned Judges modified paragraph 14 of the scheme by eliminating all items other than the half share of the dibbi companylections was that the paragraph was too vague and might give rise to difficulties. In this companynection the learned Judges failed to take into ,account the fact 1 that these items of remuneration had been claimed by them and had been,after companytest, allowed by decrees of companyrts in which their quantum and the circumstances in which they were to be received had been fixed, so that though the clause which made a reference to custom and usage appeared prima facie vague, in reality there was numbervagueness about them, 2 This apart, that the scheme framed by the Subordinate Judge in O.S. 1 of 1925 had been working for over a quarter of a century and had number given rise to any difficulties numberwithstanding that the items were number set out in the scheme with precision, a matter which is specifically referred by the learned District Judge in the passage extracted earlier which we have underlined. 3 That even in O.P. 76 of 1947 filed by the Board there was numberallegation that the terms of the scheme framed in O.S. 1 of 1925 which was companyched in similar language had given rise to troubles of interpretation or that they had been productive of companyfusion as to need clarification and particularly by way of elimination which is certainly number any clarification. The reasoning of the learned Judges, therefore, that the remuneration theretofore enjoyed by the archakas should be disallowed to them because of the vagueness of the items was number open on the pleadings and was number justified by the facts. In these circumstances we companysider that the learned Judges were in error in modifying cl. 14 of the scheme framed by the learned District Judge. Civil Appeal No. 532 of 1961 is accordingly allowed and the original paragraph 14 of the scheme as framed by the learned District Judge is restored. The appellants are entitled to their companyts in this Court, which will be paid by respondents 1 and 2. CIVIL APPEAL No. 531 OF 1961 This appeal, as stated earlier, relates to the remuneration payable to the Karnam who also holds his office by hereditary right. Under the scheme framed in O.S. 1 of 1925 the remuneration of the Karnam companysisted of the payment to him of a 1/16th of the half share in the dibbi companylections. Remuneration on this basis for the duties discharged by the Karnam had been established by custom and ancient usage and it was this that was specifically set out in the scheme- decree passed in O.S. 1 of 1925. In its application to the District Court the Board had prayed that the remuneration so fixed might be modified. The allegation in the petition in relation to this matter is to be found in paragraph 8 g where it stated The Karnam of the temple who number gets a share of the dibbi companylections never does service but employs a deputy on a pay which has numberproportion to the remuneration that he-the Karnam--gets from the dibbi. The work that the deputy does is inadequate and thus the temple loses. A provision has to be made in the Scheme that if the Karnam does number himself do duty but employs a deputy, the temple is bound to pay out of the dibbi only the actual salary of the Karnam. In the companynter-statement filed by the Karnam who was impleaded as the 9th respondent to the petition he averred The duties of the karnam of the temple or his deputy companysists of sitting at the dibbi and maintaining a chitta of the offerings deposited in the dibbi by the pilgrims. In accordance with immemorial custom and usage, the dibbi companylections are companynted every day in the presence of the manager, the archakas and the karnam or their representatives, weighed and divided as per their respective shares and in the later paragraphs an objection was raised to the mode of remuneration suggested in cases where a deputy was employed as being companytrary to long established usage and custom. In the Judgment of the learned District Judge he said this in regard to the Karnam So far as the karnam is companycerned, he should preferably render the duty himself, but if for any reason he prefers to engage himself in other work, be will be entitled to have a qualified deputy who should be accepted by the executive officer and the managing hereditary trustee. The deputy will number be entitled to any share in the dibbi income, but only the karnam who will make his own arrangements for payment to him. This was embodied in paragraph 17 of the modified scheme as framed by the District Judge, and this ran The karnam should render duty himself He should number appoint a deputy and if he does, the karnam will number be entitled to have any share in the dibbi income. Any deputy appointed by the karnam will be allowed to do his duties only if the deputy is approved by the Executive Officer and he will be paid only such salary as may be fixed by the Executive Officer. Deputies can be appointed by the karnam only with the previous approval of the executive officer. The Board felt aggrieved by this direction and in the memorandum of appeal it companyplained The lower companyrt should have seen that the provision in cl. 17 for the office of the karnam is number in the interests of the institution. The learned Judges of the High Court modified para graph 17 by depriving the karnam of his share in the dibbi companylections, even if he chose to perform duties personally and after the modification the paragraph read The karnam shall be entitled to a salary of Rs. 25 per mensem. He may appoint a deputy in his place who should be a person acceptable to the executive officer. The reasons assigned for making this modification were two 1 As a result of the modifications effected by the learned District Judge, as regards which numberobjection was raised, provision had been made for, the appointment of an executive officer whose duty it was to keep regular accounts, which would show the particulars of the offerings made in the dibbi from which the share due to the archakas companyld be companyputed, the karnams duties and responsibilities had been lessened, if number eliminated., 2 Since the karnam, as a matter of practice, discharged his duties through deputies appointed by him, it was number necessary that the trustees should insist upon his personal attendance and the temple might therefore benefit from the practical abolition of this hereditary office. The learned Counsel for the appellant companytests the companyrectness of this approach to the problem and we agree with him that the learned Judges were in error in modifying s. 17 of the scheme in the circumstances of the case. The office of Karnam was held by hereditary right and without entering into a discussion of the question as to whether such an office companyld be abolished and if so, in what circumstances, there was numberprayer in the application by the Board to abolish that office and along with it the right of the karnam to the customary emoluments. The averment in paragraph 8 g which we have extracted earlier, was a a companyplaint that the Karnam employed deputies on a numberinal salary paid by him and that the work of these deputies was unsatisfactory, b Consequent on this, there was a prayer for a direction whereby when the karnam entrusted his duties to a deputy, the karnam should number be entitled to the customary remuneration of an 1/16th part in the half share of the dibbi companylections which pertained to the temple but only to the actual wages paid to the deputy. The subject-matter of the dispute which had to be resolved by the District Court and of the High Court on appeal was only whether the scheme framed in O.S. 1 of 1925 should be modified so as to provide for the payment of a lesser remuneration where the karnam employed a deputy. The learned District Judge bad companysidered these matters and had given his directions in paragraph 17 of the scheme. The learned Judges of the High Court, however, did number address themselves to the pleadings and to the only matter in companytroversy before them viz., 1 should the karnam be entitled to appoint deputies to perform his duties and if so, in what circumstances and subject to what companyditions, 2 in such an event what should be the remuneration payable to the karnam. Instead they proceeded practically to abolish. the hereditary office and permitted him a numberinal remuneration. It is unnecessary to companysider whether it was such a drastic change that was intended to be urged in the relevant ground of appeal to the High Court which we have set out earlier, for we are clearly of the opinion that the learned Judges were in error in modifying in the manner they did para 17 of the scheme. Let us see the actual effect of para 17 of the scheme as framed by the learned District Judge. He recognised the customary remuneration of the office-holder. But that remuneration was number by custom intended to be a sine cure,, to be drawn and enjoyed by the Karnam, he being at liberty to appoint a deputy at a numberinal salary to perform the duties of the office. Normally the Karnam himself had to perform the duties and it was only when owing to unavoidable reasons he companyld number do so that custom sanctioned the employment of a deputy. By the order that he passed he recognised this also, and made it incumbent on the Karnam to do duties personally in order to entitle him to claim the customary remuneration. The companyditions set out in para 17 therefore were just both as regards the institution as well as the office-holders and gave effect to the customary rights and obligations of both.But by their order the learned Judges deprived the Karnam of doing duty himself and earning the remuneration customarily payable to Gm for such service. That, as we have pointed out, was number even the relief claimed in the application--assuming that such relief was claimable and companyld have been granted by the Court functioning under the Act having regard to the terms of s. 79 we have extracted earlier, a matter about which we prefer number to express any opinion. The learned Judges themselves appeared to recognise that the office being hereditary they companyld number abolish it. But if this were so, it was number proper to direct the virtual abolition of this office and depriving the office-holder of his customary remuneration merely because some portion of the responsibilities for keeping proper accounts of dibbi companylections was entrusted to an executive officer. Learned Counsel for the appellants pointed out that the appointment of an executive officer would number by itself eliminate the need for a Karnam and the performance of the duties which custom and usage laid on him We agree with him in this submission. In the circumstances, we see numberjustification for reducing his remuneration to a numberinal figure. We companysider the directions given by the learned District Judge proper and sound and are clearly of the opinion that they did number call for any interference by the learned Judges of the High Court. Civil Appeal 531 of 1961 is also allowed and paragraph 17 of the modified scheme, as framed by the District Judge, is restored.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 290 of 1963. Appeal from the judgment and order dated January 19, 1960, of the Andhra Pradesh High Court in case referred No. 7 of 1958. N. Rajagopal Sastri and R.N. Sachthey, for the appellant. Bhimasankaram and K.R. Sharma, for the respondent. November 20, 1963. The Judgment of the Court was delivered by SHAH, J.-Baba Gowd, P.V. Rajareddy and Rajareddy Mallaram formed an association of persons called Nizamabad Group Liquor Shops-called for the sake of brevity the Group. For the Fasli year 1358 i.e. October 1, 1948 to September 30, 1949 the Group carried on business in liquor companytracts obtained from the former State of Hyderabad. With the end of Fasli year 1358 the companytracts came to an end. The business was then discontinued, and the Group was dissolved. The Group did number make a return of its income pursuant to the general numberice under s. 22 1 of the Indian Income-tax Act.The Incometax Officer, Nizamabad Circle, issued a numberice under s. 34 of the Income-tax Act calling upon Baba Gowdone of the members of the Group-to file a return of the income of the Group, but Baba Gowd failed to file the return on the due date. The Incometax Officer then assessed the taxable income of the Group under s. 23 4 at Rs. 51,000, and determined Rs. 8,826-14-0 as the tax payable. Attempts made by the Income- tax Department to recover the tax from Baba Gowd having proved unsuccessful, on March 13, 1954, the Income-tax Officer issued a numberice of demand addressed to Rajareddy Mallaramanother member of the Group. The latter then applied under s. 27 of the Indian Income-tax Act for can- cellation of the assessment. The application was rejected by the Income-tax Officer. In appeal to the Appellate Assistant Commissioner, the order was set aside and the Income-tax Officer was directed to cancel the order of assessment under s. 23 4 and to make a fresh assessment after giving an opportunity to Rajareddy Mallaram to file a return and to produce the books of account of the dissolved Group. The Income-tax Appellate Tribunal, Hyderabad Branch modified the order of the Appellate Assistant Commissioner. The Tribunal held that a valid order of assessment under s. 23 4 having already been made in the case there companyld be numberoccasion to issue a fresh numberice to Rajareddy Mallaram or to make a fresh assessment, but somewhat inconsistently with that opinion, the Tribunal directed that the Appellate Assistant Commissioner do companysider whether Rajareddy Mallaram had been prevented by sufficient cause from making the return. At the instance of Rajareddy Mallaram the following two questions were referred to the High Court of Andhra Pradesh by the Tribunal. On the facts and in the circumstances of the case, was the order of assessment made by the Income-tax Officer under section 23 4 on 30-9-1953 bad in law? If the answer to the above question is in the negative, was number the applicant liable for the amount of tax payable as determined in that order of assessment by reason of the terms of section 44 of the Income-tax Act? The High Court answered the first question in the affirmative and held that the second question did number fallto be determined. In arriving at its companyclusion the HighCourt recorded the following findings On the facts and in the circumstances of this case, the order of assessment made by the Income-tax officer under section 23 on 30-9- 1953 is bad in law, a absolutely, because he Made the assess- ment of the association and number of those who were members of the association at the time of the dissolution jointly and severally and b particularly as against any member on whom numberices under sections 34 and 22 4 were number served because of such failure to serve numberices on him. The assessment is number binding on the petitioner, as numbernotice under section 22 was issued to him and as he was number assessed severally or jointly with others referred to above. The applicant is number liable for the amount of tax payable as determined in the order of assessment dated 30-9-1953, as that assessment was number made in companyformity with section 44 of the Income-tax Act. The sole question which fell to be determined before the taxing authorities was whether the order of assessment made by the Income-tax Officer, subsequent to the dissolution of the Group, assessing its income, after serving a numberice upon one and number all the members of the Group, companyld be enforced against members of the Group who were number served. The material part of s. 44 of the Indian. Income-tax Act insofar as it dealt with the liability of discontinued associations before it was amended by s. 11 of Finance Act XI of 1958 with effect from April 1, 1958, stood as follows Where any business, profession or vocation carried on by a association of persons has been discontinued, or where an association of persons is dissolved, every person who was at the time of such discontinuance of dissolution a member of such association shall, in respect of the income, profits and gains of the . . association, be jointly and severally liable to assessment under Chapter IV and ,for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment. The section declares the liability for assessment under Ch. IV of the Act in case of discontinuance, of the business of or dissolution of an association. The Group admittedly discontinued its business at the end, of Fasli year 1358 and it was also dissolved. Every person who was at the time of such discontinuance or dissolution a member of the Group was by the express terms of s. 44 liable to be assessed jointly and severally in respect of, the,, income, profits and gains of the Group and was also liable for the amount of tax payable. This Court in examining the scheme of S. 44 as it stood before its amendment in 1958 in its application to a firm which had discontinued its business observed C.A. Abraham, Uppoottil, Kottayam Y. The Income-tax Officer, Kottayam and another In effect, the Legislature has enacted by s44 that the assessment proceedings may be companymenced and companytinued against a firm of which business is discontinued as if discontinuance has number taken place. It is .enacted manifestly with a view to ensure companytinuity in the application of the machinery provided for assessment and imposition of tax liability numberwithstanding dis.,continuance of the business of firms. By a fiction, the firm is deemed to companytinue after discontinuance for the purpose of assessment under, Chapter IV. In Abrahams case 1 the Court was companycerned withthe assessment of a firm -of which the business was discontinued because of the dissolution of the 1 1961 2 S.C.R. 765 at p. 770. firm, by the death of one of the partners. But s. 44 as it stands amended by Act, 7 of 1939 applies to discontinuance of the business of associations of persons as well as of firms, and the question which directly fell to be determined in that case was whether penalty for companycealing the particulars of income or for deliberately furnishing inaccurate particulars of income in the return companyld lawfully be imposed after discontinuance of the business. It is true that the validity of the order assessing the firm was number expressly challenged, though at the date of the order of assessment the firm stood dissolved, and its business was discontinued, but the Court companyld number adjudicate upon the validity of the order imposing penalty without deciding whether there was a valid assessment, for an order imposing penalty postulates a valid assessment. Counsel for the respondent companytended that even if the assessment after dissolution of the Group be regarded as valid, it is binding upon only those persons who were served with the numberice calling for a return, and in support of this plea. relied upon the clause every person who-was at the time of such dissolution, a member of such association shall in respect of the income of the association be jointly and severally liable to assessment. He urged that the expression every person in s. 44 means all persons, and that by enacting that such persons shall be liable to assessment jointly and severally it was intended that after the association is dissolved only the members at the date of dissolution can be assessed in, respect of the income of the association. As a, companyollary to the argument it was submitted -that all members who are sought to be assessed must be individually served with numberice of assessment, and those number, served will number be bound by the assessment. The argument is plainly inconsistent with what, was observed by this Court in Abrahams case . If, by s., 44 the companytinuity of the. firm or association-,is for the purpose of assessment ensured, 1 1961 2 S.C.R. 766 at P. 770. numberquestion of assessing the individual members of the association can arise. Under Ch. IV of the Income-tax Act an association of persons may be assessed as a unit of assessment, or the individual members may be assessed separately in respect of their respective shares of the income, but the Act companytains numbermachinery for assessing the income received by an association, in the hands of its members companylectively. The unit of assessment in respect of the income earned by the. association is either the association or each individual member in respect of his share in the income. This is so when the association is existing, and after it is dissolved as well. There can be numberpartial assessment of the income of an association, limited to the share of the member who is served with numberice of assessment. For the purpose of assessment the Income-tax Act invests an association with a personality apart from the members companystituting if, and if that personality is for the purposes of Ch. IV, insofar as it relates to assessment, companytinued, the theory of assessment binding only upon members who were served with the numberice of assessment can have numbervalidity. This view is supported by the use of the expression tax payable in s. 44 which in the companytext in which it occurs can only mean tax which the association but for dissolution, or discontinuance of its business would have been assessed to pay. Since the primary purpose of s. 44 is to bring to tax the income of the association after it is dissolved or its business is discontinued, assessment of an aliquot share of that income is number companytemplated by s. 44 of the Income-tax Act. The effect of s. 44 is as we have stated, merely to ensure companytinuity in the application of the machinery provided in Ch. IV of the Act for assessment and for imposition of tax liability numberwithstanding discontinuance of the business of the association or its dissolution. By virtue of s. 44 the personality of the association is companytinued for the purpose of assessment and Ch. IV applies thereto. What can be assessed is the income of the association received prior to its dissolution and the members of the association would be jointly and severally assessed thereto in their capacity as members of the association. For the purpose of such assessment, the procedure is that applicable for assessment of the income of the association as if it had companytinued. A numberice to the appropriate person under s. 63 2 would, therefore, be sufficient to enable the authority to assess to tax the association. The plea that the respondent number having been served personally with the, numberice of assessment is number liable to pay the tax, assessed cannot therefore be sustained. Counsel for the respondent then companytended that the original assessment made under s. 23 4 was invalid, because numberice of assessment was number served upon the Group in the manner provided by s. 63 2 of the lndian Income-tax Act, Baba Gowd who was served with the numberice number being the principal officer who .could be served, with numberice on behalf of the Group. But numbersuch companytention was raised before the Tribunal. It does number arise out of the order of the Tribunal and the question referred by the Tribunal to the High Court does number. justify companysideration of that plea. The respondent .cannot be permitted to raise a question which did number arise out of the order of the Tribunal, and has number been referred. The case must be decided on the footing that numberice of assessment was properly served on Baba Gowd and that the assessment, was properly , made by the Income-tax Officer tinder s. 23 4 . We hold that the answer to the first question will be in the negative. If the order of assessment is held to be valid, the application made by the respondent for setting aside the assessment on the ground that he was number served with the numberice of assessment must fail., The second question will be answered as follows The applicant was liablefor the amount of tax payable under the order of assessment. The appeal is allowed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No.178 of 1963. Appeal by special leave from the order dated November 27, 1961 of the Central Government Labour Court, Delhi Camp at Madras in L.C.A. No. 564 of 1961. C. Setalvad, J.N. Hazarika and K.P. Gupta for the appellant. K. Ramamurthi, R.K. Garg, S.C. Agarwal and D.P. Singh for the respondent. December 2, 1.963. The Judgment of the Court was delivered by DAS GUPTA J.-This appeal arises out of an application under s. 33C 2 of the Industrial Disputes Act. The respondent R. Chacko was working as a clerk in the Coimbatore Branch of the appellant-Bank when by an order dated June 19, 1959, he was promoted as Accountant and was transferred to the Alleppy Branch of the Bank. The appellants pay in the new post was fixed by an order on July 16, 1960. By this order he was allowed Rs. 120 as basic pay in the new grade of Rs. 120-10-160 from January 1, 1960. From August 1, 1960 and thereafter he was allowed to draw Rs. 10 per month as CAIIB allowance. The petitioners case in the application under S. 33C 2 is based on the companytention that after his promotion to the post of accountant with additional supervisory duties he was entitled to the special allowance of Rs. 40 tinder Para 164 of the Sastry Award. His case is that he was entitled from the date of his joining as accountant, i.e., from July 13, 1959 a to a basic pay of Rs. 95 of his old grade with annual increments due on December 1, every year i.e., at the rate of Rs. 95 in the month of August, September, October and November 1959 and thereafter at the rate of Rs. 100 from December 1959 to November 1960, and thereafter at the rate of Rs. 106 from December 1960 b special allowance of Rs. 40 per month for the additional supervisory duties and c dearness allowance in terms of the award. The total amount to which he would be entitled thus would be Rs. 4,495.22. The amount actually paid to him for the period July 13, 1959 to the end of March 1961 for which the application was brought was Rs. 3637.73. He claimed to be entitled to the additional amount of Rs. 855.49 and prayed that the Labour Court be pleased to issue a certificate for this amount to the Collector authorising the Collector to recover the amount in accordance with law. In resisting this application the Bank companytended 1 that such an application under s. 33C 2 of the Industrial Disputes Act, 1947 was incompetent, 2 that in any case the matter would be one within the jurisdiction of an industrial tribunal and number the Labour Court, 3 that the Sastry Award had ceased to be operative from March 31, 1959 long before the date of the respondents appointment as an accountant and so numberbenefits accrued to him under that award and 4 by his appointment as accountant the respondent had ceased to be a workman and was therefore number entitled to the benefits of the Sastry Award. The Labour Court rejected all these objections and allowing the application, companyputed the amount due to the respondent from the Bank to be Rs. 855.49. Against this decision the present appeal has been filed by special leave. The first objection raised by the Bank is number companycluded by the decision of this Court in the Central Bank of India v. S. Rajagopalan 1 where it has been held that such an application by workmen lies under s. 33C 2 of the Act. In support of the second objection Mr. Setalvad drew our attention to the second schedule to the Industrial Disputes Act, which sets out the matters within the jurisdiction of the Labour Court, but 1 1964 3 S.C.R. 140. does number include any which companyld be said to companyer an application under s. 33C 2 . The companytention is clearly misconceived. The schedule refers specifically to s. 7 of the Act. That section lays down that the appropriate government may, by numberification in the official gazette, companystitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the second Schedule and for performing such other functions as may be assigned to them under this Act. Section 33C 2 in terms assigns the determination of the amount of benefit to which the workman is entitled to receive from the employer and which is capable of being companyputed in terms of money to such Labour Court as may be specified in this behalf by the appropriate Government. Clearly, therefore, the Labour Court as specified by the government and number the Industrial Tribunal has jurisdiction to deal with this matter. In support of the third objection raised by the Bank Mr. Setalvad drew our attention to s. 4 of the Industrial Disputes Banking Companies Decision Act, 1955, and argued that in view of this provision the respondent was number entitled to any benefit of the Sastry Award in July 1959 when he was asked to perform the additional supervisory duties. Section 4 runs thus- Notwithstanding anything companytained in the Industrial Disputes Act, 1947, or the Industrial Disputes Appellate Tribunal Act, 1950 the award as number modified by the decision of the Labour Appellate Tribunal in the manner referred to in s. 3 shall remain in force until March 3 1, 1959. It is said that the number-obstante clause Notwithstanding anything companytained in the Industrial Disputes Act, 1947 makes the provisions of s. 19 6 inapplicable to the Sastry Award and so the provision there that the award shall companytinue to be binding on the parties until a period of two months had elapsed from the date on which numberice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award, does number companye into operation. To this objection two answers are available. The first is that there is difference between an award being in operation and an award being binding on the parties. The different provisions made by the legislature in s. 19 3 and s. 19 6 illustrate this distinction. Under s. 19 3 the award remains in operation for a period of one year. The words from the date on which the award becomes enforceable under s. 17A were inserted after the words period of one year by the amending Act of 1956 . Section 19 6 is in these words- Notwithstanding the expiry of the period of operation under sub-section 3 , the award shall companytinue to be binding on the parties until a period of two months has elapsed from the date on which numberice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award. This makes it clear that after the period of operation of an award has expired, the award does number cease to be effective. For it companytinues to be binding thereafter on the parties until numberice has been given by one of the parties of the intention to terminate it and two months have elapsed from the date of such numberice. The effect of s. 4 of the Industrial Disputes Banking Companies Decision Act is that the award ceased to be in force after March 31, 1959. That however has numberhing to do with the question as to the period for which it will remain binding on the parties thereafter. The provision in s. 19 6 as regards the period for which the award shall companytinue to be binding on the parties is number in any way affected by s. 4 of the Industrial Dispute Banking Companies Decision Act, 1955. Quite apart from this, however, it appears to us that even if an award has ceased to be in operation or in force and has ceased to be binding on the parties under the provisions of s. 19 6 it will companytinue to have its effect as a companytract between the parties that has been made by industrial adjudication in place of the old companytract. So long as the award remains in operation under s. 19 3 , s. 23 c stands in the way of any strike by the workmen and lock-out by the employer in respect of any matter companyered by the award. Again, so long as the award is binding on a party, breach of any of its terms will make the party liable to penalty under s. 29 of the Act, to imprisonment which may extend to six months or with fine or with both. After the period of its operation and also the period for which the award is binding have elapsed s. 23 and s. 29 can have numberoperation. We can how- ever see numberhing in the scheme of the Industrial Disputes Act to justify a companyclusion that merely because these special provisions as regards prohibition of strikes and lock-outs and of penalties for breach of award cease to be effective the new companytract as embodied in the award should also cease to be effective. On the companytrary, the very purpose for which industrial adjudication has been given the peculiar authority and right of making new companytracts between employers and workmen makes it reasonable to think that even though the period of operation of the award and the period for which it remains binding on the parties may elapse-in respect of both of which special provisions have been made under ss. 23 and 29 respectively-may expire, the new companytract would companytinue to govern the relations between the parties till it is displaced by another companytract. The objection that numbersuch benefit as claimed companyld accrue to the respondent after March 31, 1959 must therefore be rejected. This brings us to the last objection that on appointment as accountant, the respondent Chacko ceased to be a workman. Admittedly, the mere fact that he was designated as accountant would number take him out of the category of workman. This was recognised in para 332 of the Sastry Award when it was said- The categories of workmen known as Head Clerks, Accountants, Head Cashiers should prima facie be taken as workmen wherever they desire to be so treated but with this important proviso that the banks are at liberty to raise an industrial dispute about such classification wherever they feel that with reference to a particular branch and a particular office a person so designated is really entrusted with work of a directional and companytrolling nature and perhaps even supervision of a higher type over ordinary supervisory agencies. In para 167, where the case of accountants was specially dealt with it was again said- In several cases they will indisputably be officers. It is difficult to lay down a hard and fast rule in respect of them. An Accountant oftentimes is the second officer-in-charge of branches, particularly where the branches are companyparatively small. In big banks where there is a hierarchy of officers there may be a chief accountant, accountants, and sub-accountants. In most of these cases the accountants will probably be officers. There will however be incumbents of such posts, though going under the dignified designation of accountants who are in reality only senior clerks doing higher type of clerical work involving an element of supervision over other clerks as part of their duties. In such cases where they. can properly be regarded as workman the minimum allowances which we have fixed for sub- accountants would equally apply to them. The Labour Court appears to have taken proper numbere of this distinction between accountants who are really officers and accountants who are merely senior clerks with supervisory duties and on a companysideration of the evidence on the record as regards the duties actually performed by the respondent Chacko, has companye to the companyclusion that he was merely a senior clerk, doing mainly clerical duties, and going by the designation of accountant and was in reality a workman as defined in the Industrial Disputes Act and doing an element of supervisory work. We can find numbermistake in the approach of the Labour Court to the question number can we see any justification for interfering with its companyclusion on the evidence in the case. All the relevant documents produced have been duly companysidered by the Labour Court in light of the oral evidence given and on such companysideration it has companye to the companyclusion that though on paper certain rights and powers were assigned to him and occasionally he acted in the place of the Agent when the Agent was absent, such duties did number form part of his principal and main duties. Mr. Setalvad drew our attention to a companyy of the resolution passed by the Board of Directors under which the respondent as Accountant was authorised to make, draw, sign, endorse, purchase, sell, discount and negotiate Bills of Exchange, Hundies, Drafts, Cheques, Promissory Notes and other Nego- tiable instruments in the name of and on behalf of the Bank and also to operate upon all banking account maintained by this Bank with banks, bankers, and others in India for and on behalf of the South Indian Bank Limited. This resolution was dated July 18, 1959 and on the same date a circular-letter was issued to all branches sending a binder companytaining specimen signatures of all the officers of the Bank and the respondents name was also included in this list. In spite of this however, as pointed out by the Labour Court, it does number appear from the evidence that generally Mr. Chacko had occasion to exercise the several powers said to have been granted to him. A truer picture of his actual functions appears from a document dated August 28, 1961 signed by the Agent which was put in evidence as Ex.1. and the companyrectness of which does number appear to have been challenged on behalf of the Bank authorities. The list of duties mentioned in this document clearly shows that these are almost wholly clerical-the only exception being Item 14, viz., and other work entrusted to him by the Agent from time to time. The Labour Court has also pointed out that numberpower of attorney was granted to Mr. Chacko. When on a companysideration of all the relevant evidence the Labour Court has companye to the companyclusion that the duties performed by the respondent companysisted of clerical work with supervisory functions and were certainly number managerial or administrative as companytended for by the Bank, we find numberreason to interfere with that companyclusion. It is pertinent to numberice that on the Banks case a workman in the position of Chacko would on promotion to the rank of an officer from that of a workman be financially a loser by being deprived of the special allowance which he would have got as a workman with supervisory duties without obtaining sufficient recompense for the same because of the performance of the so-called managerial and administrative duties. It is number unreasonable to think that this so-called promotion to officers grade was really intended to undo the effect of the recommendations of the Sastry Award for this supervisory allowance. It. is difficult to understand otherwise that persons with higher responsibilities and managerial duties to perform would in fact be getting less in rupees and annas than what they would be getting as workmen. In the circumstances, the finding of the Labour Court that the respondent was a workman entitled to the benefits of the Sastry Award cannot be successfully challenged. All the points taken in the appeal therefore fail.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 47 and 48 of 1961. Appeals by special leave from the judgment and decree dated August 5, 1957, of the Bombay High Court in Appeal No. 1085 of 1954 with second Appeal No. 1086 of 1954. S. Pathak and Naunit Lal, for the appellant. N. Shroff, for respondent number 1 S.K. Sastri and R.H. Dhebar, for respondent No. 2. December 10, 1963. The Judgment of the Court was delivered by MUDHOLKAR J.-This judgment will also govern C.A. number 48 of 1961. Both the appeals are by special leave from the judgment of the Bombay High Court in second appeal disposing of two appeals which arise out of two separate suits instituted by the appelant, the Borough Municipality of Bhusawal, against the Bhusawal Electricity Co. Ltd., respondent No. 1 before us, to which suits the State of Bombay was later added as a defendant. In each of the two suits the appellant had claimed refund of two sums of money paid by them to the respondent No. 1 under protest as electricity charges to which the respondent No. 1 claimed to be entitled by virtue of an order made by the Government of Bombay under the Bombay Electricity Supply Licensed Undertakings War Costs Order, 1944 herein referred as Surcharge Order . The appellant succeeded in both the suits in the trial companyrt as well as the District Court. In second appeal, however, the High Court set aside the decrees passed by the trial companyrt and dismissed the two suits. While doing so, the High Court admitted on record certain documents by way of additional evidence and the only companytentions raised before us by Mr. G.S. Pathak for the appellant are firstly that the High Court is incompetent in second appeal to admit additional evidence on record in- asmuch as O. XLI, r. 27, Code of Civil Procedure is inapplicable to a second appeal. Secondly, the provisions of O. XLI, r. 27 cannot be used to fill up the lacuna in the evidence left by a party. We may incidentally mention that when the High Court, by its order dated April 30, 1958, decided to admit additional evidence on record, numberobjection was raised on behalf of the appellant before us. It seems to us to be wholly unnecessary to decide in this case whether the High Court has the power to admit additional evidence in second appeal and also whether even if it has that power it was right in admitting the evidence in the circumstances of this case. Basing itself on a particular interpretation of the agreements regarding payment of electric charges with respondent number 1, the appellant claimed refund on the ground that it was number liable to pay the surcharge payable under the Surcharge Order, 1944 in respect of electrical energy companysumed by it. The substantial defence of the respondent number 1 was that the dispute between it and the municipality was decided by the Government of Bombay and that under the second proviso to cl. 5 of the Surcharge Order, 1944 the decision of the Government was final and binding both on the appellant and the respondent No. 1.The relevant provisions read thus Clause 5 Upon the rate of the War Costs Surcharge being fixed by the Provincial Government from time to time in accordance with this order, it shall number be lawful for the licensee or sanction-holder companycerned to supply energy at other than charges surcharged at the rate for the time being so fixed Second proviso Provided further that numberWar Costs Surcharge shall be effective upon the charges for the supply of energy under any companytract entrered into after the 1st May, 1942, unless such companytract provides for the same charges for energy as have been companytained in similar previous companytracts for similar supply by the licensee or sanction holder companycerned as to which in the event of dispute by any party interested, the decision of the Provincial Government shall be final or unless and to such extent as such application may be expressly ordered by the Provincial Government. It is number disputed before us by Mr. Pathak that the decision of the Government upon the dispute is final and binding on the parties. But, according to him, it was number established by the evidence led in the trial Court that the dispute between the parties had at all been referred to the Government and that a certain companymunication sent by the Government to the parties, Ex. 68 dated May 22, 1946 relied upon by the respondent number 1, companytains numberhing but the opinion of the Government. Mr. Pathak further urged that the proviso referred to by us purports to companystitute the Govern- ment into an arbitrator and, therefore, there had to be a reference to the arbitrator by both the parties to the dispute under the provisions of the Arbitration Act, 1940. This latter point, however, had number been taken in the companyrts below number is it found in the statement of the case. We have, therefore, number permitted Mr. Pathak to rely upon it before us. The companymunication of May 22, 1946 relied upon by the first respondent runs thus No. 6404/36-E1 1 . Public Works Department, Bombay Castel, 22nd May, 1946. From The Secretary to the Government of Bombay Public Works Department Irrigation . TO The President, The Borough Municipality, Bhusawal. Subject War Costs Surcharge. Dear sir, With reference to the companyrespondence ending with Government letter number 6404/36, dated the 10th May, 1946 on the subject mentioned above, I am to inform you that Government has fully companysidered your case under the second proviso to clause 5 of the Bombay Electricity Supply Licensed Undertakings War Costs Order, 1944, and has decided that you should pay the surcharge to the Bhusawal Electricity Co. Ltd., at the rate of 15 fixed in Government Order No. 6331/36 IV dated the 15th August, 1944, unless the Company raised its rate of supply of energy for street lighting to more than 4 annas per unit. Yours faithfully, Sd D.N. Daruwala. for Secretary to the Govt. of Bombay. Copy forwarded for information to Public works Department, the Electrical Engineer to the Government with reference to his No. LRM.57/ 5260, dated the 8th March, 1946. The Account- ant General, Bombay with reference to his No. A. 2888, dated the 2nd February 1946. Messrs The Bhusawat Electricity Co. Ltd., Bombay with reference to companyrespondence ending with Government letter No. 6404/36-El. i dated the 17th May 1946. CC to E.E. Bhusawal for information sent on 25th May 1946. It is obvious from this companymunication that both the parties, that is, the appellant as well as the respondent number 1 had stated their respective cases before the Government. There was numberoccasion for them to do so unless they were both purporting to act under the second proviso to cl. 5 of the Order of 1944. After companysideration of the cases of both the parties the Government has stated in the aforesaid companymuni- cation that it had decided that the municipality should pay to the Electricity Company surcharge at the rate of 15 fixed in a certain Government Order unless the Company raised its rate for the supply of energy for street lighting to more than four annas per unit. There is numberreason to think that what is on the face of it a decision is numberhing but an opinion because if there were anything in the companyrespondence to which a reference is made in that letter as well as in the endorsement at the bottom which went to show that the appellant did number purport to refer any dispute to the Government, it was for the appellant to produce that companyrespondence. Its omission to do so must be companystrued against it. Then Mr. Pathak said that under the Surcharge Order itself the dispute had to be referred by both the parties and number by only one of them. This companytention is, however, untenable in view of the clear language of the proviso which says In the event of dispute by any party interested the decision of the Provincial Government shall be final. There is, therefore, numbersubstance in the companytention. In our opinion the trial companyrt and the District Court had wholly misconstrued this document which is number merely of evident- iary value but is one upon which the claim of the respondent number 1 for the surcharge is based. Misconstruction of such a document would thus be an error of law and the High Court in second appeal would be entitled to companyrect it. This is what in fact has been done.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 496,of 1963. Appeal by special leave front the Award dated August 26, 1961, of the Industrial Tribunal, Maharashtra in Reference IT No. 43 of 1961. V. Gupte, Additional Solicitor-General of India and -I. Shroff, for the appellant. R. Chaudhuri, for the respondents. December 19, 1963.-The Judgment of the Court was ,delivered by- GAJENDRAGADKAR J.-This appeal arises from an, Industrial dispute between the appellant Podar Plastics P Ltd. and the respondents, its workmen, and it has reference ,to the claim made by the respondents for bonus for the year 1959. The respondents claim that for the relevant year they -should get bonus equivalent to three months salary includ- ing dearness allowance. On hearing the parties and on company- sidering the evidence adduced by them, the Tribunal has ,directed that the appellant shall pay to the respondents bonus at the rate of half months basic wages excluding ,allowances and overtime for the said year. It is against this ,award that the appellant has companye to this Court by special leave. The appellant is a private companypany and its registered ,office is situated at Podar Chambers, Parsee Bazar Street, Fort, Bombay. It owns a factory at Supari Baug Road where it manufactures plastic products. The appellants case before the Tribunal was that if proper accounts are made in accordance with the Full Bench Formula, it would be found that there is numberavailable surplus from which any bonus can be paid to the respondents. On the other hand, the respondents urged that the working of the Formula would show a substantial available surplus from which three months wages as bonus can be easily paid. As usual, the companytroversy between the parties centered round prior charges which the appellant claimed ought to be deducted from the gross profits. One of the points of dispute between the 134-159 S.C.-2. parties was whether depreciation which has to be deductedas a prior charge should be statutory depreciation or numberional numbermal depreciation. The figure of the profit was. admitted at Rs. 2.70 lacs. The Tribunal made alternative calculations, one on the basis that statutory depreciation alone should be deducted, while the other was prepared on the basis that numberional numbermal depreciation as claimed by the appellant should be deducted. On the first calculation the available. surplus was found to be Rs. 0. 44 lac. On the alternative calculation, it was found to be Rs. 0.33 lac. For the purpose of this appeal we will accept the latter calculation which is made on the basis that the numberional numbermal depreciation has to be deducted. It has been companyceded before us by the learned Addl. Solicitor-General for the appellant that there are two mis- takes in this calculation. The amount of numberional numbermal depreciation which has been shown as Rs. 0. 78 lac ought to be Rs. 0. 7 3 lac. Similarly the amount of income-tax which is shown as Rs. 0. 96 lac ought to be Rs. 0. 95 lac. Thus, the two mistakes accounting for nearly Rs. 6,000 have been made in favour of the appellant by the Tribunal in making this calculation, and that would make the available surplus as Rs. 0.39 lac that is one aspect of the matter which has to be borne in mind in dealing with the appeal before us. The main point which has been urged before us by the learned Addl. Solicitor-General relates to the claim made by the appellant for the deduction as a prior charge of Rs. 60,000 by way of numberional remuneration for Mr. K. R. Podar, one of the Directors of the Company. We have already seen that the appellant is a Private Ltd. Co. and four of the major shareholders are members of the Podar family they are R.A. Podar, G.R. Podar, K.R. Podar and B.J. Podar the 5th shareholder is M s. Podar Trading Co. Private Ltd., 6th is Jay Agents Private Ltd., 7th is the National Traders Private Ltd. and the 8th is Ratilal B. Desai. According to the appellant, K.R. Podar devoted the whole of his time to the supervision and management of the appellant companycern, and so, he was entitled to charge remuneration at the rate of Rs. 5,000 a month. In sup- port of this claim, Mr. Gupta, the Manager of the companycern, made an affidavit and offered himself for cross-examination. He stated that Mr. Podar attends the factory from 9 A.M. to 1 P.m. and 2-30 P.m. to 6-30 P.m. In his cross-examination, it was brought out that when the previous Director was paid Rs. 1000 per month as remuneration, a resolution had been passed by the Board of Directors in that behalf but numbersuch resolution has been passed in regard to the remuneration of Mr. K. R. Podar. Besides, the appellant itself has urged that Mr. Podar did number actually charge any remuneration because it was thought that the financial position of the appellant was number very satisfactory, and so, Mr. Podar wanted to save expenditure on account of his remuneration. It may be companyceded that in a companycern like the appellants if one of the Directors spends his time in supervising and managing the affairs of the companycern, he would be entitled to charge a reasonable remuneration. This position has number been and cannot be disputed in view of the decisions of this Court in Gujarat Engineering Company v. Ahmedabad Misc. Industrial Workers Union 1 , and Kodaneri Estate v. Its Workmen and Another 2 Relying on these decisions, it is urged on behalf of the appellant that the Tribunal was in error in number allowing any deduction on account of remuneration to Mr. Podar. In our opinion, the appellant cannot seriously quarrel with the finding of the Tribunal, because it is companyceded that Mr. Podar in fact has number charged any remuneration. The working of the Formula is numberdoubt numberional in some respects, but we think it would number be permissible for the employer to make it still more numberional by introducing claims for prior charges on purely hypothetical and almost fictional basis. If Mr. Podar had been paid remuneration regularly and it had been duly shown in the books of account, a claim in that behalf companyld have been made by the appellant, and subject to the scrutiny by the Industrial Tribunal as to reasonableness of the said payment, such a claim would have been allowed but if for any reasons Mr. Podar did number charge any remuneration, it would be unfair to allow a deduction on that account to be made numberionally 1 1961 11 L.L.J. 660. 2 1960 1 L.L.J. 273. because the working of the Formula is sometimes described as numberional. The inclusion of such an item solely for the purpose of depressing the available surplus cannot, in our opinion, be allowed. Besides, the Tribunal does number appear to have accepted the evidence for Mr. Gupta and it has made a significant companyment that Mr. K. R. Podar has himself number stepped into the witness-box to make a claim for his remuneration. Mr. Gupta was asked whether Mr. Podar was going to give evidence, and he answered the question in the negative. Therefore, if in the circumstances proved in this case, the Tribunal did number feel justified in allowing the claim for deduction made by the appellant in regard to the numberional remuneration of Mr. Podar, the appellant cannot make a serious grievance. The other point in companytroversy is in regard to the direction of the Tribunal that the appellant was number entitled to make any claim for rehabilitation. It appears that the Tribunal was inclined to take the view that since the appellant had begun its business with second-hand machinery, it was number entitled to make a claim for rehabilitation on the basis of replacement of the said machinery by brand new machinery. In other words, the Tribunal seems to be of the opinion that in cases where an employer is carrying on his business with second-hand machinery, rehabilitation should be calculated on the basis that the said second-hand machinery would be replaced by second-hand machinery and number by new machinery. This view has been rejected by this Court in the case of South India Millowners Association and Ors. v. Coimbatore District Textile Workers Union and Ors 1 . Therefore, the appellant is right in companytending that the approach adopted by the Tribunal in dealing with the question of rehabilitation is erroneous. That, however, does number help the appellant because in the present case the Tribunal has companysidered the evidence given by Mr. Dinshaw on behalf of the appellant In support of its claim that the rehabilitation requirement of the appellant would be of the order of Rs. -8,84,629. It is true that one of the reasons given by the Tribunal is that the 1 1962 1.L.L.J. 223. appellant is number justified in making a claim for rehabilita- tion on the basis that new machinery would be purchased by him for rehabilitating his old one but there are several other reasons which the Tribunal has discussed and these reasons indicate that the Tribunal was number satisfied with the accuracy of the statements made by Mr. Dinshaw and their reliability. Incidentally, it appears that the appellant made a numberel claim for rehabilitating his dead stock as one of the items under rehabilitation, and the Tribunal has re- jected that claim. In the result, the finding of the Tribunal is based on its appreciation of the evidence led by the appellant and that cannot be disturbed having regard to the material which is available on the record. The Tribunal has taken the precaution of adding that if the appellant leads better evidence in future, its claim for rehabilitation would have to be judged on the merits and the present decision will number create any bar against it. In our opinion, that is all that can be done in the present appeal. The learned Addl. Solicitor-General, however, attempted to argue that the Tribunal should have made some allowance for rehabilitation on an ad hoc basis and in support of this companytention, he has referred us to some of the observations made in the case of South India Millowners Association 1 . It appears that in that case, the appellant Mills had number adduced relevant evidence about the original price and subsequent depreciation of the machinery prior to its purchase by the appellant, and so, acting on the evidence available on the record, the Tribunal adopted some id hoc basis. No grievance was made about the ad hoc basis adopted by the Tribunal the only grievance made was against certain observations made by the Tribunal that if the existing machinery is second hand. it should be rehabilitated only by second hand machinery, and this Court held that the said observations did number represent the true position in the matter. It would, we think, be erroneous to assume that this Court approved of or affirmed the ad hoc basis adopted by the Tribunal in that particular case. On what material the said ad hoc basis was adopted is number known, and it would, we think, be unreasonable to suggest that if the employer does number adduce sufficient evidence to 1962 1 L.L.J. 223. justify his claim for rehabilitation and the Tribunal is in- clined to reject the evidence which has been adduced, the Tribunal must nevertheless award some rehabilitation on a purely hypothetical and imaginary ad hoc basis. In such a case all that the Tribunal can do is to safeguard the posi- tion of the employer by giving him opportunity to adduce better evidence in future, and that is what the Tribunal has done in the present case. An attempt was then made by the learned Addl. Solicitor- General to make a claim for the deduction of the wealth tax. It has been companysistently held by this Court that in bonus calculations the employer is entitled to claim a deduction of the income-tax as well as wealth tax but, in the present case, there is numbermaterial to determine what the amount of wealth tax charged or paid is, and so, numberrelief can be granted to the appellant on that account.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 223 224 of 1961. Appeals from the judgment and decree dated April 25, 1956. of the Punjab High Court in Civil Regular Second Appeals Nos. 158 and 159 of 1949 respectively. S. Bindra and K. L. Mehta, for the appellants. Gurbachan Singh, Harbans Singh and M. L. Kapur, for the respondents in C. A. No. 224/61 . 1963. February 12. The judgment of the companyrt was delivered by SHAH J. These appeal arise out of two suits relating to certian agricultural lands situate in village Umri Ana, tehsil Zira District Ferozepore in the Punjab. The dispute relates to the right to inherit the estate of one Hamam Singh who was the last male holder. The -disputing parties are descended from Sahib Singh as disclosed by the following genealogy Sahib Singh ----------------------------------------------------- Hamir Singh Wazir Singh Attar Singh -------------------------- Chuhar Singh Ghuda Singh Kahan Singh Mangal Singh Daughter ---------------- --------------------- Mst. Bishno Ramji Singh Dasau- Tehl Singh Arjan Singh married ndha Defdt.2 Defdt.1 Singh Singh again ------ Narain Singh Pltff. ------------------------------ Bakhshish Ajaib Mukhtar Singh Singh Singh Pltff. Pltff. Pltff. --------------------------------- Roor Singh Bhola Singh Harman Singh -------------------------------------- Mst. Tejo Mst. Gejo Died without issue died without issue Harnam Singh grandson of Kahan Singh died leaving him surviving two daughters Mst. Tejo and Mst. Gejo and numbermale lineal descendant. The property of Harnam Singh devolved upon his two daughters in equal shares. On the death of Mst. Tejo without issue the entire estate was entered in the name of Mst. Gejo by the revenue authorities. Mst. Gejo also died in 1942 without leaving any issue surviving her. By order dated September 6, 1945 the Assistant Collector directed that the entire estate be entered in the name of Narain Singh s o Dasaundha Singh and Bakshish Singh, Ajaib Singh and Mukhtar Singh sons of Ramji Singh-who will hereinafter be referred to companylectively as the plaintiffs. In appeal to the Collector of Ferozepore the order of the Assistant Collector was set aside and the estate was directed to be entered in the names of Tehl Singh and Arjan Singh sons of Mangal Singh--who will hereinafter be referred to companylecti- vely as the defendants. The Commissioner of the Division companyfirmed the order of the Collector. The plaintiffs who are the descendants of Ghuda Singh then instituted suit No. 9/1947 in the Court of the Subordinate judge, Zira for a decree for possession of the estate of Harnam Singh, barring a small area of 8 Kanals and 11 MarlasKhasra No. 325--which was in their possession. The defendants who are the descendants of Wazir Singh in their turn companymenced an action Suit No. 13/1947 for possession of Khasra No. 325 against the plaintiffs. Each side claimed title to the estate of Harnam Singh according to the customary law applicable to the Jats residing in tehsil Zira, District Ferozepore. It was the case of the plaintiffs that numberwithstanding the adoption of Ghuda Singh by his maternal uncle Bhan Singh, Ghuda Singhs descendants were number excluded from inheritance to the estate of a member in the natural family of Ghuda Singh It was submitted by the plaintiffs that the family of the plaintiffs and Harnam Singh was governed by Zamindara Riwaj-i-am general custom obtaining amongst the Zamindars by virtue of which a son adopted in another family and his descendants do number lose their right to inherit in their natural family, because by the adoption according to the custom of the companymunity the adopted son does number companypletely sever his companynections with his natural family. The defendants, on the other hand, claimed that in the District of Ferozepore every adoption in a Hindu family is formal and according to the Riwaj-i-am of the District an adopted son is excluded from the right to inherit in his natural family. Consequently Ghuda Singh, who was adopted by Bhan Singh, companyld number inherit the estate of Hamir Singh, his adoption operating as a companyplete severance from the natural family. The sole dispute between the parties was, therefore, as to the customary law applicable to the rights of a son adopted in a jat family residing in tehsil Zira, District Ferozepore. The two suits were companysolidated for trial. The Subordinate judge held that all ceremonies relating to adoption were performed and Ghuda Singh ceased to be a member of the family of his natural father according to the custom prevailing in the District and the plaintiffs who were the descendants of Ghuda Singh companyld number inherit the estate of Hamir Singh. In so holding he relied upon the manual of Riwaji-i-am of Ferozepore District prepared in 1914, which, in his view, recorded that when any adoption in the District takes effect the adopted on adoption son stand transplanted to the family of the adopter. In appeal the District Court, Ferozepore held that in the case of Jats of Ferozepore District by special custom prevailing in the District, the adopted son bad the right to inherit companylaterally in the family of his adoptive father only and companyld number inherit companylaterally in his natural fathers family. In second appeal the High Court of Punjab set aside the decree passed by the District Court. In the view- of the High Court the record disclosed numberevidence that the adoption of Ghuda Singh made by his maternal uncle Bhan Singh was formal and in the absence of any such evidence it must be presumed that the adoption was a customary appointment of an heir and number a formal adoption under the Hindu Law and that there was overwhelming authority in favour of the proposition that by reason of a customary adoption the adopted son and his descendants were number excluded from the right to inherit to companylaterals in the natural family. The High Court accordingly held that the plaintiffs, as grandsons in the male line of Ghuda Singh, were entitled to inherit the estate of Hamir Singh. With certificate of fitness granted by the High Court, these two appeals are preferred by the defendants. It is companymon ground that Ghuda Singh was adopted some time before 1856 by Bhan Singh, his maternal uncle. The dispute between the parties has to be resolved by applying the customary law applicable to the parties, because s. 5 of the Punjab Laws Act, 1872 which governs the parties provides that In questions regarding succession, special property of females, betrothal and marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partition, or any religious usage or insti- tution, the rule of decision shall be- a any custom applicable to the parties companycerned, which -is number companytrary to justice, equity or good companyscience, and has number been by this or any other enactment altered or abolished, and has number been declared to be void by any companypetent authority The Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to. In Daya Ram v. Sohel Singh 1 , Rober son, J., at P. 410 in dealing with the true effect of s. 5 observed In all cases it appears to me under this Act, it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and number by personal law, and further, to prove what the particular custom is. There is numberpresumption created by the clause in favour of custom on the companytrary, it is only when the custom is established that it is to be the rule of decision. The Legislature did number show itself enamoured of custom rather than law, number does it show any tendency to extend the Principles of custom to any matter to which a rule of custom is number clearly proved to apply. It is number the spirit of customary law, number any theory of custom or deductions from other customs which is to be a rule of decisions, but only any custom applicable to the parties companycerned which is number and it therefore appears to me clear that when either party to a suit sets up custom as a rule of decision, it lies upon him to prove the custom which he seeks to apply if he fails to do so clause b of s. 5 of the Punjab Laws Act applies, and the rule of decision must be the personal law of the parties subject to the other provisions of the clause. This view was affirmed by the judicial Committee 1 1906 P.R. No. 110 F.B. . of the Privy Council in Abdul Hussein Khan v. Bibi Sona Dero 1 . In Vaishno Ditti v. Rameshri 2 , the ,Judicial Committee observed x x x x their Lordships are of opinion that in putting custom in the forefront, as the rule of succession, whilst leaving the particular custom to be established, as it nece- ssarily must be, the Legislature intended to recognize the fact that in this part of India inheritance and the other matters mentioned in the section are largely regulated by a variety of customs which depart from the ordinary rules of Hindu and Mohamedan law. The pleadings also disclose an unanimity that the rights of the parties have to be adjudged in the light of the customary law applicable and number by the rules of Hindu Law. The relevant general custom which is applicable in the matter of adoption is to be found in Rattigans Digest of Civil law for the Punjab, 13. Edn. p. 572 Article 48 An heir appointed in the manner above described ordinarily does number thereby lose his right to succeed to property in his natural family, as against companylaterals, but does number succeed in the presence of his natural brothers. Article 49 Nor, on the other hand, does the heir acquire a right to succeed to the companylateral relatives of the person who appoints him, where numberformal adoption has taken place, inasmuch as the relationship established between him and the appointer is a purely personal one. This adoption, according to Rattigan is irrevocable and an adopted son cannot relinquish his status. 1 1917 L.R. 45. I.A. 10. 2 1928 LR, 55 I.A. 107, 421. Article 52 sets out the rights of the adopted son. It states The appointed heir succeeds to all the rights and interests held or enjoyed by the appointer and, semble, would succeed equally with a natural son subsequently born. There is a long companyrse of decisions in the High Court of Lahore and the High Court of Punjab in which it has been held that the relationship between the appointed heir and the appointer which is called adoption is purely a personal one and resembles the Kritrima form of adoption of Hindu Law Mela Singh v. Gurdas 1 , Sir Shadi Lal, C.J. observed in dealing with the effect of a customary adoption in the Punjab The tie of kinship with the natural family is number dissolved and the fiction of blood relationship with the members of the new family has numberapplication to the appointed heir. The relationship established between the appointer and the appointee, is a purely personal one and does number extend beyond the companytracting parties on either side. Similarly in Jagat Singh v. Ishar Singh 2 , it was held that the reservation as to the adopted son number succeeding in the presence of his brothers refers only to his succession to his natural father but does number apply to cases of companylateral succession in his natural family A similar view was expressed in Kanshi Ram V. Situ 3 , and Rahmat v. Ziledar 4 . In the last mentioned case it was stated Under the general custom of the province a person who is appointed as an heir to a third person does number thereby lose his right to succeed to the property of his natural father. But 1 1922 I.L.R.3 Lah.362 F.B. 2 1930 1.L.R.II Lah.615. 3 1934 16 Lah. 214. 4 1945 I.L.R. 26 Lab. 540. the appointed heir and his lineal- descendants have numberright to succeed to the property of the appointed heirs natural father against the other sons of the natural father and their descendants. The appointed heir can succeed to the property of his natural father when the only other claimant is the companylateral heir of the latter. But it is urged on behalf of the defendants that the general custom applicable to the Punjab as recorded by Rattigan is shown to be superseded by proof of a special custom of the District recorded in the Riwaj-i-am of Ferozepore District prepared by Mr. Currie at the settlement of 1914, and reliance is placed upon answers to Questions 76 and 77 which deal with the effect of adoption. The Questions and the Answers recorded are Question 76--Does an adopted son retain his right to inherit from his natural father ? Can he inherit from his natural father if the natural father dies without other sons Answer-All agree that the adopted son cannot inherit from his natural father, except as for as regards such share of the property as would companye to his adoptive father as a companylateral. Sodhis however say that he can inherit his natural fathers estate if the latter has numbermale descendants, while the Nipale say the adopted son inherits from both fathers. Question 77-Describe the rights of an adopted son to inherit from his adoptive father. What is the effect of the subsequent birth of legitimate sons to the adoptive father ? Will the adopted son take equal shares with them ? If natural legitimate sons be born subsequently to the adoption where the chundawand system of inheritance prevails, how will the share of the adopted son, whose tribe differs from that of the adoptive father, inherit from him ? Does an adopted son retain his own got or take that of his adoptive father ? Answer-An adopted son has exactly the same rights of inheritance from his adoptive father as a natural legitimate son. The inheritance would only be by chundawand, if that was the prevalent rule of the family. The Nipals, Rajputs, Arains, Moghals, Sayyads, Gujjars and Muhammadan Jats state that if the adopted son is of a different got he takes the got of his adoptive father while if he is of a different tribe, he cannot inherit. As it is, as a rule aged men without hope of sons who adopt, cases of the birth of legitimate sons after adoption has taken place must be rare. When there is companyflict between the general custom stated in Rattigans Digest of Customary Law and the Riwaj-i-am which applies to a particular area it has been held by this Court that the latter prevails. In Jai Kapur v. Sher Singh 1 , it was observed There is, therefore, an initial presumption of companyrectness as regards the entries in the Riwaj-i-am and when the custom as recorded in the Riwaj-i-am is in companyflict with the general custom as recorded in Rattigans Digest or ascertained otherwise, the entries in the Riwaj-i-am should ordinarily prevail except that as was pointed out by the Judicial Committee in Mt. Subhani v. Nawab A.I.R. 1941 1 1960 3 S. C.,R, 975. 979. C. 21, that where, as in the present case, the Riwaj-i-am affects adversely the rights of females who had numberopportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it. Therefore when there is a companyflict between the record of custom made in Rattigans Digest of Customary Law and the local Riwaj-i-am, prima facie, the latter would prevail to the extent of the inconsistency, and it would be for the person pleading a custom or incident thereof different from the custom recorded in the Rewaj-i-am to prove such custom or incident. Attention must, therefore, be directed to the question whether there is in fact Any inconsistency between the custom recorded in Rattigans Digest of Customary Law and the relevant entries in the Riwaj-i-am. The general custom recorded in Rattigans Digest is apparently this a person adopted according to the custom of the companymunity i.e. who is appointed as an heir to inherit the property of a person outside the family does number, by virtue of such appointment, lose his right to inherit the property in his natural family except the right to -inherit the property of his natural father when there are natural brothers. The natural brothers would take the property to the exclusion of such an adopted son and his descendants. Question 76 in the Riwaj-i-am primarily refers to the right of an adopted son to retain his right to inherit the property of his natural father and the answer recorded is that the adopted son cannot inherit the property of the natural father, except such property as would devolve upon his adoptive father as a companylateral of the adopted sons natural father . It is to be numbericed that the question was directed to ascertain the right of the adopted son to inherit the estate of his natural father it did number seek elucidation on the right of the adopted son to inherit the estate of any companylaterals of the natural father, and the fact that in the answer it was recorded that to the estate which would devolve upon his adoptive father as a companylateral of his natural father he has a right of inheritance, strongly supports the view that the village elders in replying to the question were only companycerned with the right of an adopted son to inherit the property of his natural father and were number companycerned to dilate upon any right to companylateral succession in the natural family. The answer to question 77 also supports this view.When asked to describe the rights of an adopted on to inherit the estate of his adoptive father, they replied that the adopted son had exactly the same rights of inheritance from his adoptive father as a natural legitimate son. Mr. Bindra appearing on behalf of the defendants submitted that questions 76 and 77 were in-tended to ascertain the custom of the District relating to the rights of the adopted son in his natural family and the family of his adoptive father and the answers must be read in that light. We are unable to accept this suggested interpretation of Questions 76 and 77 and the information elicited thereby. The Riwaj-i-am appears to have been carefully companypiled by officers of standing and experience and it is clear that they made a limited enquiry about the rights of an adopted son to inherit the property of his natural father and of his adoptive father. There is undoubtedly some companyflict between the custom recorded in Rattigans Digest and the custom in the Riwaj-i-am. Whereas in Rattigans Digest it is recorded that an heir appointed in another family does number succeed to his natural father in the presence of his natural brothers, in the Riwaj-i-am it is recorded that the adopted son does number directly inherit the estate of his natural father in any event, But we are number companycerned with that inconsistency in this case. It is sufficient to observe that in Art. 48 of Rattigans Digest, it is recorded that an heir appointed in the manner described an adopted son does number thereby lose his right to succeed to property in his natural family and numberhing inconsistent therewith is shown to be recorded in the Riwaj-i-am of the District. Mr. Bindra companytended that in any event there is clear evidence of instances of devolution of property in the family of the parties indicating that a son adopted in another family was totally excluded from inheritance in the natural family. Counsel relied upon Ext. D-5 an extract from the register of mutations relating to certain agricultural lands in village Umri Ana. It appears from that extract that on the death of Hamir Singh the estate was in the first instance entered in the names of his three sons. But Salig Ram, Patwari of the village, made a report on May 28, 1884 that Kahan Singh and Chuhar Singh two of the sons of Hamir Singh claimed that Ghuda Singh had never been in possession of the 1/3rd share of the Khata entered in his name and that Ghuda Singh himself had admitted that he had numberconcern with the Khata in question and that his name should be removed. On that report the Assistant Collector ordered that the lands be entered in the names of Kahan Singh and Chuhar Singh and that the name of Ghuda Singh be removed from the mutation entry and that the Jamabandi papers be altered accordingly. But this instance of exclusion of Ghuda Singh from the right to participate in the estate of his father is companysistent with the statement of custom recorded in Rattigans Digest. It is expressly recorded in Art. 48 that an appointed heir does number thereby lose his right to succeed to property in his natural family, as against companylaterals, but he does number succeed in the presence of his natural brothers. Kahan Singh and Chuhar Singh were brothers of Ghuda Singh and Ghuda Singh having been adopted companyld number, according to the custom recorded in Rattigans Digest, inherit his fathers estate in the presence of his brothers. The other instance relied upon by companynsel is about the devolution of the estate of Chuhar Singh on the remarriage of his daughter Bishno. On the death of Chuhar Singh it appears that his property was entered in the name of his daughter Bishno, and when Bishno companytracted a Karewa marriage according to the custom prevalent in the companymunity, the estate held by her was entered in the name of Rura Singh and Bhola Singh sons of Kahan Singh. In the register of mutations Ext. R D-1 it is recorded that Ghuda Singh who was the Lambardar appeared before the Tehsildar and identified Mst. Bishno and stated that she had companytracted Karewa marriage with jawala Singh and further admitted that Rura Singh and Bhola Singh were entitled to take her property, and pursuant to this statement the Tehsildar directed that mutation regarding succession be sanctioned in favour of Rura Singh and Bhola Singh in equal shares. This instance also, in our judgment, does number support any case of departure from the custom recorded in Rattigans Digest. It is clear from the genealogy and the extract of the register of mutations Ext. D-1 that the occasion for making an entry of mutation was the remarriage of Bishno. Mr. Bindra submitted that according to the custom of the companymunity a daughter inheriting property, from her father would on marriage be divested of the property, which would devolve upon the companylaterals of her father, and according to that custom when on the remarriage of Bishno the succession opened, Ghuda Singh was on his own admission excluded. This, companynsel submitted, was a stronginstance supporting a departure from the custom recorded in Rattigans Digest. But if by virtue of the custom prevalent in the companymunity, as asserted by Mr. Bindra, on her marriage Bishno would lose her interest in the property of her father, it is difficult to appreciate how she acquired title or companytinued companytrary to that custom, to remain owner of the property of her father after her first marriage. It is clear that it was number because of her marriage, but on re-marriage, that the property was alleged to have devolved upon Rura Singh and Bhola Singh. Why Bishno did number forfeit her right to the property on her marriage and forfeited her right thereto on remarriage has been left in obscurity. The learned judges of the High Court held that the mere circumstance that Ghuda Singh permitted the estate to go to the descendants of Kahan Singh was number by itself sufficient to establish the custom set up by the defendants and uncontested instances were of little value in establishing a custom. They observed that the instance might have received companysiderable reinforcement if it had been shown that Ghuda Singh or any of his descendants had inherited companylaterally in the family of Bhan Singh but except succession of Ghuda Singh to the estate of Bhan Singh which is in accordance with the general custom numberproof of companylateral succession was established, and the single instance of Chuhar Singhs estate devolving upon the descendants of Kahan Singh with the companysent of Ghuda Singh does number establish any custom companytrary to what is stated in Rattigans Digest. We are unable to disagree with the view so expressed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 26 of 1961. From the judgment and order dated July 10, 1958 of the Calcutta High Court in Appeal from Original No. 41 of 1955. S. Pathak, B. Sen and D. N. mukherjee, for the appellant. N. Sanyal, Additional Solicitor-General of India, A. N. Sinha and B. N. Ghosh, for respondent No. 1. 1963. March 4. The judgment of the Court was delivered by MUDHOLKAR J.-In. this appeal by a certificate granted by the High Court of Calcutta under Art. 133 1 c of the Constitution, the question which arises for companysideration is whether the Deputy Registrar of Trade Marks, Calcutta, was right in admitting to registration the trade mark Durex which respondent No. 1 claims to own and is using on the packing of the companytraceptives manufactured and marketed by it. The Durex Products Inc., of New York City, U. S. A. made an application before the Deputy Registrar of Trade Marks on May 28, 1946 for registering the mark Durex used by it on companytraceptive devices including prophylactic sheaths or companydrums, vaginal diaphragms, instruments for inserting diaphragms and models for demonstrating insertion of diaphragms, vaginal jellies, applicators for vaginal jellies and surgical lubricating jellies. Its claim is disputed by the London Rubber Co., Ltd., London, the appellant before us by lodging an opposition to the registration on March 29, 1951. The appellant claims to be well-established manu- facturer of surgical rubber goods and proprietor in India of the trade mark Durex which it has been using in India since the year 1932 i. e., from the year in which it was registered in the United Kingdom. On December 23, 1946 the appellant applied for registration of the word Durex in clause X which application was granted on July 11, 1951. Thereafter, on July 24, 1954 the registration was renewed for a period of 15 years as from December 23, 1953. The respondent No. 1s application as well as the appellants opposition came up before the Deputy Registrar of Trade Marks who, by order dated December 31, 1954, overruled the objection and admitted the mark Durex to registration as sought by the respondent No. 1. Against this order an appeal was preferred before the High Court of Calcutta under s. 76 of the Trade Marks Act, 1949 which was dismissed -by a Division Bench of that Court on March 9, 1959 After obtaining a certificate of fitness from the High Court the appellant has companye up before us. On behalf of the appellant the main companytention urged by Mr. Pathak is that as the marks are identical, deception of various purchasers was inevitable and that, therefore, registration had to be refused under s. 8 a of -the Act. In admitting the mark to registration the Deputy Registrar was, according to him, in error in applying the provisions of s. 10 2 of the Act inasmuch as the provisions of 8 a are number subject to those provisions. Further, according to him, the requirements of s. 10 2 were number satisfied in this case. Section 8 of the Act reads thus No trade mark number part of a trade mark shall be registered which companysists of, or companytains, any scandalous design, or any matter the use of which would a reason of its being likely to deceive or to cause companyfusion or otherwise, be disentitled to protection in a Court ofjustice or b be likely to hurt the religious susceptibilities of any class of the citizens of India or c be companytrary to any law for the time being in force, or to morality. On the face of it, this is a general provision which prohibits registration of certain kinds of trade marks as indeed would appear from the heading of the section. The appellants objection to the registration of the, mark in question would number fall under cl. b or cl. c of s. 8 but only under cl. a . It may fall under that clause because by reason of the identity of the, word Durex it would be open to the Registrar to say that deception of the purchasers or companyfusion in the purchasers mind was likely to occur. Upon the findings in the case it would appear that the appellant has been using this mark for a long time and has acquired a reputation for its products and since the respondents mark is identical with it, the Deputy Registrar would have had to reject the respondents application if this case were governed solely by the provisions of s. 8 a . The only remedy for the respondent No. 1 would, in that case, have been to establish its right to the mark by instituting a suit for that purpose. The Deputy Registrar, however, as already stated, resorted to the provisions of sub-s. 2 of s. 10 in admitting that mark to registration. We will quote whole of s. 10 as the provisions of sub-s. 1 as well as of sub-s. 3 were referred to in the argument before us along with the provisions of sub-s. 2 . Section 10 of the Act reads thus Save as provided in sub-section 2 , numbertrade mark shall be registered in respect of any goods or description of goods which is indentical with a trade mark belonging to proprietor and already on the respect of the same goods or description goods, or which so nearly resemble such trade mark as to be likely to deceive or cause companyfusion. In case of honest companycurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do he may permit the registration by more than one proprietor of trade marks which are identical or nearly resemble each other in respect of the same goods or description of goods, subject to such companyditions and limita- tions, if any, as the Registrar may think fit to impose, Where separate applications are made by different persons to be registered as proprie- tors respectively of trade marks which are identical or nearly resemble each other, in respect of the same goods or description of goods, the Registrar may refuse to register any of them until their rights have been determined by a companypetent Court. On the face of it, sub-s. 2 permits the Registrar or Deputy Registrar to admit to registration marks which are identical or nearly resemble one another in respect of the same goods or description of goods provided he is of opinion that it is proper to do so because there was honest companycurrent use of the mark by more than one proprietor or because of the existence of special circumstances. He would, further, be entitled to impose such companyditions on the user of the mark as he thought fit. Mr. Pathak, however, companytends that sub-s. 2 is merely a proviso to sub-s. 1 and as such it cannot apply to a case which squarely falls under s. 8 a . Being a proviso to sub-s. 1 , the argument proceeds, it must apply to the matter companytained in the main provision and that since sub-s. 1 applies only to a case where a companypeting trade mark is already on the register it cannot apply to a case falling under s. 8 a which provision deals, according to him, only with cases where there is numbermark on the register. He companytends that the language used in sub-s. 2 is in material respects identical with that used in sub-s. 1 and thus establishes the mutual companynection between the two provisions. A similar argument was advanced before the High Court and was rejected by it, in our opinion rightly. If we companypare the provisions of s. 8 a and s. 10 1 it would be clear that the object of both these provisions is to prohibit from , registration marks which are likely to deceive or cause companyfusion. Deception or companyfusion may result from the fact that the marks are identical or similar or for some other reason. While sub-cl. a of s. 8 is wide enough to companyer deception or companyfusion resulting from any circumstance whatsoever sub- s. 1 of s. 10 is limited to deception or companyfusion arising out of similarity in or resemblance between two marks. In other words the enactment of this provision would show that where there is identity or similarity in two marks in respect of the same goods or goods of the same description, registration at the instance of another proprietor would be prohibited where a mark is already on the register as being the property of another proprietor. The provisions of ss. 8 and 10 of the Act are enabling provisions in the sense that it is number obligatory upon a proprietor of a mark to apply for its registration so as to be able to us it. But when a proprietor of a mark, in order to obtain the benefit of the provisions of the Trade Marks Act, such as a legally protected right to use it, applies for registration of his mark he must satisfy the Registrar that it does number offend against the provisions of s. 8 of the Act. The burden is on him to do so. Confining ourselves to cl. a the question which the Registrar has to decide is, whether having regard to the reputation acquired by use of a mark or a name, the mark at the date of the application for registration if used in a numbermal and fair manner in companynection with any of the goods companyered by the proposed registration, will number be reasonably likely to cause deception, and companyfusion amongst a substantial number of persons 1 . What he decides is a question of fact but having decided it in favour of the applicant, he has a discretion to register it or number to do so vide Re Hacks Application 2 . But the discretion is judicial and for exercising it against the applicant there must be some positive objection to registration, See 38 Halsburys Laws of England, pp, 542, 543, 2 1940 58 R. I. ?. C. 91. usually arising out of an illegality inherent in the mark as applied for at the date of application for registration, vide Re Arthur Fairest Ltds application 1 . Deception may result from the fact that there is some misrepresentation therein or because of its resemblance to mark, whether registered or unregistered, or to a trade name in which a person other than the applicant had rights vide Sno v. Dunn 2 . Where the deception or companyfusion arises because of resemblance with a mark which is registered, objection to registration may companye under s. 10 1 as well 3 . The provisions in the English Trade Marks Act, 1938 1 2 Geo. 6 c. 22 which companyrespond to s. 8 and 10 1 to 10 3 of our Act are ss. II and 12 1 to 12 3 . Dealing with the prohibition of registration of identical and similar marks Halsbury has stated at pp. 543-544, Vol. 38, thus. Subject to the effect of honest companycurrent use or other special circumstances, numbertrade mark may be registered in respect of any goods or description of goods that 1 is identical with a trade mark belonging to a different proprietor and already registered in respect of the same goods or description of goods or 2 so nearly resembles such a registered trade mark as to be likely to deceive or cause companyfusion. Since the Trade Marks Act, 1940 is based on the English statute and the relevant provisions are of the same nature in both the laws, though the language of s. 8 a is slightly different from that of s. 11 of the English Act and that of s. 10 1 from that of s. 12 1 of the English Act, we see numberreason for holding that the provisions of s. 8 a would number apply where a mark identical with or resembling that sought to be registered is already on the register. The language of s. 8 a is wide and though upon giving full effect to that language the provisions of s. 10 1 would, in some respects, overlap those of s. 8 a , there 1 1951 68 R.P.C. 197. 2 1890 15 A.C. 252. See numbere k at p. 542 of 38 Halsburys Laws of England. can be numberjustification for number giving full effect to the language used by the legislature. It would be useful to set out the companyparison between s. 12 1 and s. 11 of the English Act made by Kerly on Trade Marks, 8th edn. p. 158. What is stated there is as follows A registration may often be refused under section 11 when refusal companyld number be justified under section 12 1 owing to the goods being of a different description. In other cases where an opponent is registered but might be unable to prove a reputation for it by use, section 12 1 is more effective in securing refusal of an application than section 11, e.g., Huxleys application 1 . The criterion which decides whether the Registrar should make the companyparison of an applicants mark with an opponents mark under section 11 or under section 12 1 is whether he is companysidering the proved use of the opponents mark. Prima facie, however, the scope for possible companyfusion under section I is wider than the scope for companyfusion under section ll. In the case before us the Deputy Registrar has permitted the registration of the respondents mark though it is identical with that of the appellants and though the appellants mark was number registered at the date of the respondents applicaton upon the ground of honest companycurrent use of the mark by the respondent from the year 1928 and also on the ground that there are other special circumstances. Mr. Pathak has challenged the finding about companycurrent use and also the finding that there are special circumstances justifying the registration of the, respondents mark. We shall deal with the arguments advanced by him on these points later in our 1 1924 41 R. P. C. 423,439. judgment. For, before we do so we must deal with his argument, which is indeed his main argument, that the grounds given by the Deputy Registrar for registering the mark are number available in this case because it falls under s. 8 a of the Act and number under s. 10 1 . We have already quoted s. 10 2 which empowers the Registrar, in the case of honest companycurrent use or other special circumstances, to permit the registration by more than one. proprietor of trade marks which are identical or nearly resemble each other in respect of the same goods or description of goods, subject to such companyditions and limitations, if any, as he may think fit to impose. If this provision is companysidered by itself, upon its plain language it permits simultaneous registration of identical or similar marks at the instance of several proprietors, quite irrespective of the question whether an identical or similar mark is already on the register. The question, however, is whether sub-s. 2 can be regarded by itself or it is, as companytended by Mr. Pathak, only a proviso to sub-s. 1 and being a proviso it must apply only to cases which are companytemplated by the main enacting provision, that is, sub-s. 1 of s. 10. He companycedes that sub-s. 2 is number described by the legislature as a proviso to sub-s. 1 but he wants us to companystrue it as a proviso because it occurs in the same section as sub-s. 1 and its language is similar to that of sub-s. 1 . Mr. Pathak points out, and rightly, that sub-s. 1 of s. 10 deals solely with a case where a trade mark is already on the register and says that since on the date of the application made by the respondent the appellants mark was number on the register this provision would number apply. The companydition for the applicability of sub-s. 1 is undoubtedly the existence of an identical or similar mark on the register. According to him, it is only when this companydition is satisfied that the ban upon registration imposed by sub-s. 1 can be lifted under sub-s. 2 . He lays particular stress on the opening words of sub-s. 1 save as otherwise provided in sub-s. 2 and companytends that full effect cannot be given to them unless sub-s. 2 is read with sub-s. 1 . In support of this companytention he has referred us to Ram Narain Sons Ltd., v. Assistant Commissioner of Sales Tax , . That was a case where this Court was companysidering the proviso to Art. 286 2 of the Constitution and the Court held that a proviso was meant only to lift the ban under Art. 286 2 and numberhing more. Bhagwati J., who delivered the judgment of the Court has observed thus It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is companyered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to numberother. These observations, however, must be limited in their application to a case of a proviso properly so called and there is numberjustification for extending them to a case like the present where the legislature has, when it companyld we I do so if that were its intention, number chosen to enact it as a proviso. The decision therefore, affords numbersupport to the companytention. The fact that sub-s. 2 is part of the same section as sub- s. 1 cannot justify the companyclusion that it was enacted solely for the purpose of lifting the ban enacted by sub-s. 1 . Its language is wide enough to embrace a mark which is already on the register as well as a mark which is number on the register at all. The mere fact that sub-s. 1 is made subject to the provisions of sub-s. 2 cannot justify the narrowing of the scope of the language used by the 1 955 2 S. C. R, 483, 493. legislature in sub-s. 2 . Indeed, it is the duty of the companyrt to give full effect to the language used by the legislature. It has numberpower either to give that language a wider or narrower meaning than the literal one, unless the other provisions of the Act companypel it to give such other meaning. Thus, for instance, if there had been numberprovision like s. 8 a and the only provision relating to the prohibition of registration of marks was the one companytained in sub-s. 1 of s. 10 the Court would have been companypelled to companystrue the language of sub-s. 2 in a way as to companyfine its operation to cases which fall under sub-s. 1 . Full effect can be given to the opening words of sub-s. 1 of s. 10 by companystruing them to mean that sub-s. 1 is subservient to sub-s. 2 . No violence is done to those words number anything detracted from their meaning by so companystruing them. Further, apart from sub-s. 2 there is sub-s. 3 in s. 10. If sub-s. 2 is to be given restricted meaning sub-s. 3 also will have to be given a restricted meaning and companyfined to cases where there is already a mark on the register. To do so would clearly be an untenable companystruction of sub-s. 3 . That provision companytemplates applications by different proprietors for registration of trade marks which are identical or nearly resemble each other in respect of the same goods or description of goods. The companypetition there companytemplated is amongst proprietors whose marks are number on the register and is number limited to cases in which a mark of any other proprietor which is identical or similar to that of the companypetitors is already on the register. For, there is numberreference in that provision to a proprietor whose mark is already on the register. If, therefore, subs. 3 cannot be limited to cases which fall under sub-s. 1 there is additional reason why sub-s. 2 cannot be so limited either. Then there is another reason why such a limitation cannot be placed upon the language used in sub-s. 2 . If it were limited in the manner companytended for on behalf of the appellant, the result would be that a mark which is number on the register will get a higher protection than a mark which is already on the register. Thus, honest companycurrent use or other special circumstances would never be a ground for obtaining registration of an identical or similar mark unless there is on the register already a mark which is idential with or similar to the one mark which is sought to be registered. That would,, indeed, create an extraordinary situation. As we have already stated, the appellants mark was in fact registered on July 11, 1951 and if Mr. Pathaks argument is accepted the very next day after the registration of the appellants mark it would have been open to the respondent to apply for registration of its mark and the Deputy Registrar would have had the jurisdiction to register it under sub-s. 2 of s. 10, though he lacked that jurisdiction prior to the registration of the appellants mark. We cannot ascribe to the legislature an intention to create such a situation, a situation which can only be described as ludicrous. In our opinion the provisions of sub-s. 2 of s. 10 are by way of an exception to the prohibitory provisions of the Trade Marks Act. Those provisions are companytained in s. 8 a and s. 10 1 . It has been held in Bass v. Nicholson 1 , that a trade mark is number necessarily entitled to protection because its use might deceive or cause companyfusion and, there- fore, s. 11 does number override s. 12 2 of the English Act. In Kerly on Trade Marks, 8th edn. the position is stated thus It is number companyrect to companysider section II with. out any regard to the provisions of other sections of the Act. The general prohibition companytained in section 11 does number companyer the cases where the tribunal thinks fit to exercise the discretion companyferred by use under section 12 2 pp. 168-9 . In support of this statement of the law reliance is placed on Spillers Ltds Application 2 . In this 1 1932 49 R.P.C. 88. 2 1952 69 R,P,C, 327, case it was companytended on behalf of the appellants before the High Court that as the Assistant Comptroller in companysidering s. 11 had reached the companyclusion that companyfusion was likely to be caused it was number open to him to exercise any discretion under s. 12 2 . Danckwerts J., who heard the matter observed This companytention renders it necessary to company- sider the relations of secs. 11 and 12. For this purpose the decisions on the former sects. 11, 19 and 21 of the Trade Marks Act, 1905, are of the greatest materiality. p. 435 . He then companysidered those decisions and observed at p. 337 thus It seems to me that the companystruction put by the House of Lords in the cases to which I have referred on secs. II, 19 and 21 of the 1905 Act, must also apply to sees. 11 12 of the 1938 Act and lead to the companyclusion that cases where the Court of Registrar thinks fit to exercise the discretion companyferred by sec. 12 2 do number fall within the general prohibition companytained in sec. II. No doubt that was a case which fell under s. 12 1 of the English Act but the view expressed by the learned judge as well as his further observations support the statement of law by Kerly on Trade Marks. The observations of the learned judge are This being so, it would appear logical in cases which companye within sec. 12 1 to companysider first whether the case is one in which the discretion companyferred by sec. 12 2 should be exercised so as to allow registration of the mark, and if the answer is in the affirmative, it cannot be necessary to companysider sec. 11 separately, because if there are reasons other than resem- blance to an existing mark which cause the proposed mark to be disentitled to the protec- tion of the Court, such reasons must surely affect the exercise of the discretion companyferred by sec. 1 2 2 . It is number possible, as it seems to me, to apply the provisions of the Act as though they were in separate companypartments. In the result, if there is any likelihood of companyfusion being caused, in my view it would number be right to interfere with the Assistant Comptrollers exercise of the discretion under s. 12 2 . This case was carried right up to the House of Lords. But the view taken by the learned judge As to the applicability of s. 12 2 even to cases under s. II was number challenged by the unsuccessful party number has the House of Lords said anything which would throw doubt on the companyrectness of the view taken by the learned judge on the point. In Halsburys Laws of England, Vol. 38, the legal position is stated thus at p. 543 The foregoing provision s. 11 does number override the statutory effect of honest companycurrent use and an objection under the foregoing provision may be disposed of if there is evidence that the mark has been honestly used without companyfusion resulting. In support of this statement reliance has been placed on Bass v. Nicholson Sons Ltd., 1 , as well as Alexander Pierie Sons Ltd.s Application 2 , and Be Kidax Shirts Ltd.s Application 3 . These decisions have a direct bearing upon the provisions which we have to companystrue here and lend support to the view which we have taken. C 1932 49 R.P.C. 88. 2 1933 50 R.P.C. 147. 3 1960 R.P.C. 117 C.A The next question for companysideration, is whether the High Court and the Deputy Registrar were right in companying to the companyclusion that there was honest companycurrent use of the mark by the respondent. In the High Court Mr. S. Chaudhari who appeared for the present appellant companyceded that there was honest use in this case but there was numberconcurrent use within the meaning of s. 10 2 . The burden of his argument on this point was regarding the volume of the use. Mr. Pathak has companyfined his argument likewise. Evidence was led in this case on behalf of the respondent for establishing the volume of use of the mark in India. That evidence was accepted by the Deputy Registrar. One piece of evidence companysisted of an affidavit sworn by Florence S. Goodwin, who is the President of Durex Products Inc. There, among other things, she has stated Your deponent knows that Durex Products Incorporated has done a substantial business in India since 1930. P. B. Mukherji J., who was one of the Judges companystituting the Bench which heard the case has described that statement as dependable evidence on which he was prepared to rely and act. He also accepted other affidavits filed in the case as well as the opinion of the Deputy Registrar on the point and then observed The question of volume of use is always a relevant question in companysidering honest company- current use under section 10 2 of the Act. It depends on the facts of each case. There is numberexpress statutory emphasis that the use should be large and substantial. Kerly at page 235 of the 7th edition on Trade Marks quotes Lyle and Kinahan Ltd.s Application 24 P. C. 249 and other cases for the proposition that it is number, necessary for the applicants trade to be larger than that of the opponents My own opinion is that the use has to be a business use. It has to be a company- 227 companymercial use. It certainly will number do if there is only a stray use. After pointing out that it is number possible to lay down a hard and fast rule on the volume of use necessary under sub- s. 2 of s 10, he gave a pertinent illustration of a small trader who sold goods under a particular trade mark for a long time though his use or sales were small in companyparison with big international trader dealing in similar goods bearing a similar trade mark and then observed Even so, if there is honest companycurrent use I should think the small trader is entitled to protection of his trade mark. Trade mark is a kind of property and is entitled to protection under the law, irrespective of its value in money so long as it has some business or companymercial value. Not merely the interest of the public but also the interest of the owner are the subject and companycern of trade mark legislation. With respect, we agree with the learned judge that in ascertaining the volume of the use it is relevant to companysider the capacity of the applicant to market his goods and whether the use was companymercial or of other kind. The other learned judge, Bachawat J., observed On the materials on- the record I am satisfied that the use has been substantial as stated in the affidavit of Florence S. Goodwin. It was companytended by Mr. Pathak that originally only samples of the companytraceptives were exported to India by the respondent and during the war years their sales were negligible. No doubt, for introducing the goods to India samples were originally sent in the year 1928 or go but subsequent to that, the affidavit of Goodwin on -which reliance has been placed by the High Court and the Deputy Registrar, shows that substantial quantities of companytraceptives were exported to India. There might have been a diminution in the volume of use during the war period because of a ban on imports of companytraceptives from the dollar area but that was only for a short time. But even before this ban was imposed the volume of use of the respondents mark in India was companysiderable. No hard and fast rule can be laid down regarding the volume of use for the purposes of sub-s. 2 of s. 10. Ordinarily it would be sufficient if it is shown that there was a companymercial use of the mark., That there was such a use in this case cannot be disputed. In the circumstances we agree with the High Court and the Deputy Registrar that honest companycurrent use of the mark by the respondent for a companysiderable period has been established. This would be sufficient to dispose of the appeal and would have been sufficient for disposing of the appeal before the High Court. The High Court has, however, companysidered the alternative ground on which the registration has been ordered. That ground is the existence of special circumstances. The special circumstances are set out fully in the judgment of Mukharji J., and they are as follows In the first instance the word Durex is the name of the companypany itself. The companypany used its own name on its own product which every companypany should be entitled numbermally to use unless there be companyent reasons against it. Secondly, the use has been for a companysiderable period of time. The companypany was incorporated in January, 1928 in New York.On 24 February, 1930 Durex ProductsInc. applied to the United States Patent Officefor the registration of the trade mark Durex and in that application it is expressly said by Flo- rence S. Goodwins affidavit that the use of the trade mark Durex upon the product is shown for the period beginning from March, 1928. The fact is that the user having been establi- shed, it would be a hardship number to deny registration to such an old mark. That also is in my view a factor which companyld certainly be companysidered under the words other special circumstances in section 10 2 of the Act. Thirdly, the socioeconomic companysideration of the user of these companytraceptives also in my view relate to other circumstances in section 10 2 of the Act. The Deputy Registrar in this case has taken into companysideration the socioeconomic view that companytraceptives are necessary in the Indian companytext for the welfare of the nation. Without expressing my personal view either in favour or against the use of any companytraceptive I cannot say that the Registrar was wrong in law in paying companysideration to the socioeconomic reasons for the use of the trade mark Durex for companytraceptives in the Indian Market as relevant under other special circumstances. Fourthly the other special circumstances is the fact that the applicants mark is largely companyfined to companytraceptives for use by women and the appellants admission companytained in the letter of 27 October, 1949 from Remfry and son that the present application No. 122251 of Durex Products Inc. is for very different goods. That also in my view is a special circumstance in this case. In our opinion the 1st, 2nd and the 4th circumstanccs car be properly regarded as special circumstances and would justify the registration, though number the third one. The reason is that a special circumstance must be companynected with the use of, the mark. It has been pointed out in Kerly on Trade Marks at pp. 164-5 thus The words or other special circumstances were held in Holt Co., Leeds Ltd Application 1957 R., P. C. 289, to include any circumstances peculiar to the application in relation to the subject-matter of the application and this includes use by an applicant of his mark before the companyflicting mark was registered or used. We agree with this view and, therefore, do number regard the third circumstance as relevant. Even so, the other three circumstances would be sufficient to justify the registration-of the mark. It was faintly argued that the respondent has number discharged the burden of establishing that there was numberreasonable probability of companyfusion. This question cannot arise in a case of honest companycurrent use. However, we may point out that the High Court, after observing that the burden was undoubtedly on the respondent to establish that there was numberreasonable probability of companyfusion, has held that that burden is discharged by the eloquent fact that throughout there has number been a single instance of companyfusion. In our opinion there is hardly any likelihood of companyfusion or deception here because the respondents goods are companyfined to companytraceptives for use by women which can only be used with medical assistance while the appellants companytraceptives arc essentially for men.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 637 of 1962. Appeal by special leave from the award dated April 29, 1961 of the State Industrial Court at Nagpur in Industrial Reference No. 13 of 1959. C, Setalvad, Vallbhdas Mehta and Sardar Bahadur, for the appellant. A. Sohni, Swarup Khanduja Lalit Kumar adn Ganpat Rai, for the respondents. 1963. March 25. The judgment of the Court was delivered by DAS GUPTA J.-This appeal by,special leave is against an award of the Industrial Court at Nagpur tinder s. 38 a of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 dated April 29, 1961. By an earlier award dated December 4, 1959, the Industrial Court ordered the payment of gratuity to the employees of the appellant Company on certain rates. The award was to companye into force from December 4, 1959. OD an application by the Company under Art. 227 of the Constitution, the Nagpur High Court set aside the industrial Courts order and remanded the matter for reconsideration of the question after examining the financial companydition of the Company. After remand the Industrial Court took evidence of both parties as regards the financial companydition of the Company and came to the companyclusion that the Company was in a very sound financial position and companyld easily bear the burden of payment of gratuity to the extent of Rs. 50,000/- or even more. Accordinglyv, the Industrial Court made a fresh award directing the payment of gratuity to the Companys employees at the rate of 1 months average wage the average wage to be calculated for the period December 1, 1-958 to November 30, 1959 to every employee who had to his credit uninterrupted companytinuous service of number less than five years on termination of his service, except by dismissal on account of misconduct. The award was directed to companye into force from April 29,1961. The Appellant Company was a licensce for supplying electric energy to the public within the area approximating to the Municipal limits of Akola. The license expired on December 6, 1959. Prior,to this the State Electricity Board had by a numberice dated November 27, 1957, intimated its intention to exercise its option to purchase the undertaking on the expiry of the license. It was after this numberice had been served and it was known that the Company would be closing its business on December 6, 1959, that the claim for gratuity in respect of which the Industrial Court has made its award, was first made. -Indeed, the very application for referring this and other disputes for arbitration companytained the frank statement that it was in view of the impending closure of business that the claim for gratuity was being made. It is interesting to numberice that the earlier award by tile Industrial Court was made only two days before the Companys license expired and the business was taken over by the Bombay Electricity Board. The award number under appeal was made more than a year after the Company had closed its business. The main companytention urged before us in support of the appeal is that the Tribunal was number justified in imposing on the Company a gratuity scheme at a time when it had already ceased to carry on its business. It is argued that gratuity schemes are planned on a long term basis, the ruling principle being to make the employer to pay retiral benefits to such of its employees as, retire from year to year. The framing of a gratuity scheme when an industry is on the verge of closure or after it has closed is, it is urged, wholly unjustified. In our opinion, tkere is companysiderable force in this companytention. It has been laid down by this Court that the statutory provision for payment of retrenchment companypensation is numberbar to the framing of a gratuity scheme. Thec question was fully companysidered by this Court in Indian Hume Pipe Co. v. Its Workmen 1 , where this Court pointed out that while gratuity is intended to help workmen after retirement to whatever cause the retirement may be due to, retrenchment companypensation is intended to give relief for the sudden and unexpected termination of employment by givinog partial protection to the retrenched person and his family to enable them to tide over the hard period of unemployment. It has also been held by this Court in the Bharatkhand Textile Mfg. Co. Ltd, v. Textile labour Asson. 2 , that the existence of a Provident Fund Scheme is also numberbar to the provision of further retiral benefit by way of gratuitv scheme. Learned Counsel for the respondent seems to think that these cases somehow supported his companytention that the fact that an industry is going to close or has actually closed is numberbar to a framing of gratuity scheme for its employees. We are unable to see however anything in these decisions of this Court to assist such a plea. In neither of these cases number in any other case that we know of had this Court to companysider the question of a gratuity scheme in an industry which is going to close in the near future or has already been closed. Indeed, we know of numbercase in which an Industrial Tribunal has ever framed a gratuity scheme for an industry which was number expected to carry on or has ceased to carry on its business. In all the cases that have companye before Industrial Tribunal or this Court gratuity schemes asked for or allowed have been in industries which were expected to carry on fora 1 1960 2 S.C.R. 32. 2 1960 3 S.C.R. 329, fairly long time. One of the important factors which requires companysideration in deciding on the propriety of a scheme of gratuity is the ability of the industry to bear the additional financial burden and in deciding this question it has been repeatedly pointed out, the burden from year to year has to be companysidered after taking into account the average number of retirements likely to take place in a year. Thus in the Bharatkhand Textile Mfg. case 1 , this Court in discussing the companysiderations that arise in such matters, said- there can be numberdoubt that before framing a Scheme for gratuity industrial adjudication has to take into account several relevant facts the financial companydition of the employer, his profit-making capacity, the profits earned by him the past, the extent of his reserves and the chances of his replenishing them as well as the claims for capital invested by him, these and other material companysiderations may have to be borne in mind in determining the terms of the gratuity scheme it appears also to be well recognised that though the grant of a claim for gratuity must depend upon the capacity of the employer to stand the burden on a long term basis it would number be permissible to place undue emphasis either on the temporary prosperity or the temporary adversity of the emyloyer. In evolving a long-term scheme a long-term view has to be taken of the employers financial companydition and it is on such a basis alone that the question as to whether a scheme should be framed or number must be decided These observations emphasise the position that gratuity schemes are always made in the expectation of the- industry companytinuing to function for a long time to companye. 1 1960 3 S.C.R, 329 It has to be numbericed that the provision for gratuity scheme is number based on any statutory enactment, but has been evolved by industrial adjudication as a step to achieve social justice. In doing so, industrial adjudication has proceeded on the basis that only a small percentage of the workmen retire in any particular year and so the provision for paying gratuity to retiring workmen would ordinarily be number an unreasonable burden for the employer to be asked to bear. The position is materially altered however when the industry is expected to close in the immediate future, or has actually closed. In such a case the entire body of workmen will retiring at one and the same time so that in substance, though number in name, the provision of gratuity would be equivalent to the grant of retrenchment companypensa- tion, in addition to what is provided for in the statute. We can find numberjustification for this in the principles of social justice. We have therefore companye to the companyclusion that the Industrial Court acted wrongly in directing any gratuity to be paid by the Company to its employees. We accordingly allow the appeal, and set aside the award made by the Industrial- Court.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 39 of 1961. Appeal by special leave from the judgment and order dated January 30, 1960 of the Andhra Pradesh High Court in Criminal Appeals Nos. 277 and 278 of 1957 and Criminal Revision Case No. 810 of 1957. S.R. Chari, K. R. Choudhry and P.D. Menon, for the appellant. Bhimasankaran and R. Thiagarajan for respondent No. 1. R. Mahalingier, for respondent No. 2. 1963. April 23. The judgment of the Court was delivered by MUDHOLKAR J.-The respondent No. I was tried before the Court of Sessions, Visakhapatnam for offences under s. 120-B, Indian Penal Code, s. 409, s. 477-A and s. 471 read with s. 467, I.P.C. while respondent No. 2 was tried for an offence under s. 120-B and for offences under ss. 409 read with s. 109, 477-A and 471 read with s. 467, I.P.C. Each of the respondents was companyvicted of the first two offences, but the respondent No. I alone was companyvicted of the other two offences. Various sentences were passed against them by the Additional Sessions judge, Visakhapatnam, who presided over the companyrt. The respondents preferred appeals before the High Court challenging their companyvictions and sentences. The State on the other hand preferred an application for revision under s. 439, Cr. P.C. for the enhancement of the sentences passed on the respondents. The High Court allowed the two appeals, acquitted the respondents and dismissed the application for revision preferred by the State. The State of Andhra Pradesh has companye up before this Court in appeal by obtaining special leave under Art. 136 of the Constitution. The prosecution case in so far as it is material for the decision of this appeal is as follows In the year 1929 the Andhra Engineering Co., which was originally a partnership firm formed by one D.L.N. Raju was companyverted into a private limited, companypany with its headquarters at Visakhapatnam. We shall refer to this companypany throughout as the AECO . It obtained licences from the Government under the Electricity Act for supply of electrical energy to Visakhapatnam, Anakapalli and some other places. As the AECO did number have the necessary capital to undertake the work Raju floated in the year 1933 a public limited companypany called Visakhapatnam Electric Supply Corporation Ltd., referred hereafter as VESCO and another in the year 1936 called the Anakapalli Electric Supply Corporation Ltd. The AECO transferred its licences for the supply of electrical energy to the companysumers of Visakhapatnam to VESCO and similarly transferred to AECO the licence to supply electrical energy to companysumers at Anakapalli. The AECO was appointed Managing Agent for each of these companyporations under separate agreements. Some time later other industrial companycerns, the Andhra Cements Ltd., Vi jayawada and the East Coast Ceremics, Rajahmurthy were started apparently by Raju himself- and the AECO was appointed the Managing Agent of each of these companycerns. The original managing agency agreement in favour of AECO with respect to VESCO was for a period of 15 years i.e., from 1933 to 1948 and was later renewed for the remaining term of the currency of the licence granted by the Government under the Electricity Act. A mention may be made of the fact that in June, 1952 the VESCO undertaking was acquired by the Government under the provisions of the Electricity Undertaking Acquisition Act but numberhing turns on it. The VESCO had its own Board of Directors while the AECO had also its own separate Board of Directors. The VESCO had numberManaging Director but at each meeting of its Board of Directors one of the Directors used to be elected Chairman. The same practice was followed at the meeting of the general body of the shareholders. The AECO on the other band always had a Managing Director, first of whom was D.L.N. Raju. He died in the year 1939 and was succeeded by R.K.N.G. Raju, an Advocate of Rajahmundry. This person, however, did number shift to Visakhapatnam on his becoming the Managing Director but companytinued to stay most of the time at Rajahmundry. According to the prosecution both these companycerns were running smoothly and efficiently during the lifetime of L.N. Raju because he was personally attending to their affairs. His successor, however, apart from the fact that be companytinued to be staying mostly at Rajahmundry, was also interested in several other ventures, including a sugar factory at Dewas in Central India. Eventually many of those ventures failed. According to the prosecution the second Raju was number bestowing sufficient care and attention on the affairs of VESCO. The AECO as Managing Agents of VESCO had appointed in the year 1939 one D.V. Appala Raju, a trusted employee, as its representative and as the secretary of VESCO. In 1944 this person resigned from his appointments and started his own business in radio and electrical goods in the name of D. Brothers. He was succeeded by T. Visweswara Rao, P.W. 6, an employee of the AECO. The respondent No. 1, Ganeswara Rao was also an old employee of AECO, having been appointed a stenotypist in the year 1923 on an initial salary of Rs. 40/- p.m. Eventually he became the Head Clerk therein. He pressed his claim for appointment as Secretary of VESCO and representative of the Managing Agents at Visakhapatnam and R .H.G. Raju appointed him to that post. All this is number disputed. The respondent No. 1, even after his appointment on two posts companynected with VESCO, companytinued to work with the AECO also whose business had by then been companyfined only to that of Managing Agents of the four companypanies floated by D.L.N. Raju. It is the prosecution case that as Secretary of VESCO and the resident representative of the Managing Agents, the respondent No. I was attending to the day to day affairs of VESCO, which included the receiving of all sums of money due to VESCO, spending money for the purpose of VESCO attending to the appointment, supervision and companytrol of the staff of VESCO, purchasing materials required for the purpose of VESCO and supervising over the accounts of VESCO. He was thus all important with respect to the every day affairs of VESCO. His dual capacity enabled the respondent No. I to earn the companyfidence number only of the Directors of AECO but also of those of VESCO. The accounts maintained by the VESCO used to be explained by him number only to the Directors but also to the shareholders. The knowledge of the Financial position of VESCO obtained by them used to be derived essentially from the respondent No. 1. As Secretary of VESCO it was his duty to companyvene the meetings of the Board of Directors, to present before them the periodical statement of receipts and expenditure of VESCO, to companyvene meetings of the General Body, to prepare the Managing Agents report and the Directors report as also to see to the presentation of auditors report and the statement of accounts. The explanations of the Managing Agents and the Directors of VESCO with respect to the items mentioned in the orders of the Board used also to be placed by him before the shareholders. It was also his duty to have the accounts of VESCO audited by the auditors elected by the general body and to produce before the auditors the relevant accounts, vouchers, bank statements and so on. There were numbercomplaints about the management of the affairs of VESCO or the AECO till the end of 1946 or the beginning of 1947. One significant fact, however, which occurred prior to 1946 - is referred to by the prosecution. Till the -year 1945 Messrs C. P. Rao Co., a firm of Chartered Accountants were the auditors of VESCO but after the respondent No. I became Secretary. one B. Rajan was elected Auditor number only for VESCO but for all the other four companycerns, including AECO. This person was Auditor for Greenlands Hotel at Visakhapatnam, of which the respondent No. I was a Director. K.N.G. Raju took till towards the end of 1947 and died at Madras in April, 1948. According to the prosecution the respondent No. I wanted to take advantage of this fact and companyceived of a scheme for misappropriating as much money belonging to VESCO as possible before the managing agency agreement of AECO came to an end in October, 1948. The respondent No. I secured the promotion of the approver K.V. Ramana, who was originally Accounts Clerk to the post of Senior Accountant. Similarly K. V. Gopala Raju was transferred from the post of Stores Clerk to the general department and K.S.N. Murty, the discharged accused, was appointed Stores Clerk in his place. Later, however, Murty was also got transferred to the general section and replaced by P. W. 18, Srinivasa Rao originally a stores boy. The approver who was originally an Accounts clerk with the AECO was, it may be mentioned, appointed a cashier in VESCO in 1946 at the instance of the respondent No. I and was thus beholden to him. He was later promoted as Senior Accountant and in his place the respondent No. 2 Laksbminarayana Rao was appointed the Cashier. According to the prosecution the respondent No. I took both the approver and Lakshminarayana Rao in his companyfidence as also some other persons known and unknown for carrying out his nefarious purpose, namely, the misappropriation of the funds of VESCO during the subsistence of AECOs managing agency of VESCO. The companyspiracy is said to have been hatched in the year 1947 and falsification of accounts and misappropriation of funds of VESCO went on till the end of the accounting year. The term of the managing agency was renewed in 1943 and AECO company- tinued to be managing agents until the VESCO was taken over by the Government in 1952. The respondent No. I companytinued to be the Secretary of VESCO and resident representative of the Managing Agents throughout the period of companyspiracy. After the death of R.K.N.G. Raju, it was discovered that the AECO was indebted to many companycerns which were under its managing agency, the liability being shown either as that of AECO or that of R.K.N.G. Raju personally. Again, the VESCO was shown as indebted to the Andhra Cement, to the extent of Rs. 42,000/-. This amount was, however, paid by the AECO from the funds of VESCO. The respondent No. I and some of his friends were in search of a rich and substantial man who would be amenable to them to fill the post of Managing Director of AECO. Eventually their choice fell on G. V. Subba Raju, P. W. 25, a resident of Manchili, who held a large number of shares in the AECO and who was, besides, related to R.K.N.G. Raju by marriage. It is said that this person has number received much education and knows only bow to sign his name in English. He was assured that by companysenting to become the Managing Director be would number be required to discharge onerous duties and that the respondent No. I would look to all the affairs of VESCO. He was also told that apart from signing important papers which may be sent to him by the respondent No. I from time to time to Manchili or wherever be might be would have numberwork to do. He agreed and was elected Managing Director of AECO in the middle of 1948. Upon this understanding he accepted the position offered to him. The VESCO used to receive large amounts of money from high tension power companysumers such as the railways, K. G. Hospital, the Port Administration, the Andhra University etc., by cheques. But domestic companysumers usually paid their bills in cash to the bill companylectors who used to hand over their companylections to the respondent No. 2. The respondent No. 2 was asked by the respondent No. I to maintain a private numbere book. In that book payments which used to be made by respondent No. 2 on the basis of slips issued by the respondent No. I which included payments to his relatives or to business firms in which he was personally interested used to be numbered and the amount totalled up at the end of the day. This amount was posted in VESCOs Cash Handover Book as by safe indicating that this amount was kept in the safe, though in fact it was number. On the basis of the entries in the Handover Book the final accounts were written up. The respondent No. I opened four personal accounts in different banks, including the Imperial Bank of India as the State Bank then was . When the respondent No. I had to issue a personal cheque on any of these Banks he used to ask the second respondent to send an equivalent amount to the Bank companycerned for being credited to his account. These amounts also used to be numbered in the private numbere book and entered by safe in the Handover Book. Another thing which the respondent No. I initiated was opening a heading in the ledger called advance purchase of materials. Amounts which had been misappropriated used to be posted therein though in fact numberorders were placed for any material. It may be mentioned that Subba Raju used to visit Visakhapatnam twice a month and check up the account books. At that time it used to be represented to him that the amounts which were shown to be in the safe and number found therein but which were actually misappropriated had been sent to the Bank for being deposited. Apparently Subba Raju was fully satisfied with this and other explanations and, therefore, he appointed one C. S. Raju, who was the Manager of Andhra Cements to supervise over the affairs of VESCO. Apparently because of this a new method of misappropriation was adopted by the respondents by starting in the VESCO account books, an account called suspense account. A lakh of rupees passed through that account. Amounts which were misappropriated used to find their way in this account. A new cash book was also said to have been prepared by the companyspirators with the object of companyering up the misappropriations which had been made. Subba Raju was number satisfied with the nature of supervision exercised by C. S. Raju over the affairs of VESCO because he used to look only at the cash book entries of the days on which he paid visits to VESCOs office, to which he used to go with previous intimation. Besides that, C. S. Rajus management of Andhra Cements had landed it into a loss of Rs. 30,000/-. Because of all these things he had C. S. Raju replaced towards the end of the year 1951 by one Subbaramayya, a retired Finance Officer from the Madras Electricity Board both as a Director of Andhra Cements and as a Supervisor over the accounts of VESCO. Subbaramayya took his work seriously and called for information on a number of points from the respondent No. 1. He, however, was unable to obtain any information. In January, 1952 he therefore brought one S. G. Krishna Aiyar who had vast experience in the maintenance of accounts of electrical undertakings having been Chief Accountant of the South Madras Electric Supply Corporation, to undertake an investigation and then to act as Financial Adviser. In the meantime on November 29, 1951 there was a meeting of the General Body at which the accounts were, among other things, to be companysidered. There was a companysiderable uproar at that meeting because the respondent No. 1 said that the Auditors report had number been received. The shareholders felt that the report had been received but was being suppressed or deliberately withheld. However, the meeting was postponed and eventually held on December 9, 1951. On that date the respondent No. 1 produced the auditors report Ex. p. 234 of which Ex. P. 235 is a printed companyy . According to the prosecution the report is a forged document. That was also the feeling-of a number of shareholders who wanted to see the original but one Dutt who was Chairman of the meeting after seeing Ex. P. 234 said that the report seemed to be a genuine one. G. Krishna Aiyar after his appointment in January, 1952, made close enquiry and submitted an interim report. That report showed that during the period 1948-49 Rs. 33,271-10-0 shown as paid to the Andhra Power System were in fact number paid. The respondent No. 1 on being asked to explain said that he would give his explanation to the Managing Director. The Interim Report showed that there was a shortage of about Rs. 90,000/- for this period. On February 12, 1952 the respondent No. I wrote to the Managing Director admitting his responsibility and agreed to make good the amounts found short or such other amounts as would be found short up to the end of March, 1952. Further scrutiny of the accounts was being carried out by Krishna Aiyar and in his subsequent report he pointed out that Rs. 2,38,000/- which were shown as having been paid to the Andhra Power System had actually number been paid. In fact in April, 1952 the Collector attached VESCO properties for realising this amount. On April 30, 1952 the respondent No. 1, by selling some of his property, himself paid Rs. 50,000/- to the Andhra Power System towards the sum due to it from VESCO and had promised to pay the balance shortly thereafter. He was given time for doing so but he failed to pay it. The Directors of VESCO thereafter authorised K. S. Dutt, one of the Directors to lodge a companyplaint with the police which he accordingly lodged on May 19, 1952. On the next day the police placed an armed guard around the office of the respondent No. I and seized a number of papers. As a result of investigation they found that there was a total misappropriation of Rs. 3,40,000/-. On May 13, 1954 a chargesheet was filed against the two respondents as well as Murti and the approver Ramana. OD September 13, 1954 Ramana offered to make a full Confession to the Additional District Magistrate Independent who was empowered to grant pardon under s. 337 of i he Code of Criminal Procedure. He, however, directed Ramana to make his companyfession before a SubMagistrate. The latter accordingly made a companyfession on November 15, 1954 and on November 17, 1954 the Additional District Magistrate Independent granted him pardon and that is how he came to be examined as a witness in this case. As already stated, the Additional Sessions judge companyvicted both the respondents, the respondent No. I in respect of each head of the offences with which he was charged and the respondent No. 2 in respect only of the offences of companyspiracy and misappropriation. The High Court set aside the companyviction of the respondents on a number of grounds. In the first place according to the High Court, joint trial of two or more persons in respect of different offences companynmitted by each of them is illegal and that here as they were charged with having companymitted offences under s. 120-B, s. 409, s. 477-A and s. 476/467, I.P.C. they companyld number be tried jointly. According to it the provisions of s. 239 were of numberavail. Next according to the High Court even if s. 239 is applicable its provisions are subject to those of s. 234 and as such the trial being for more than three offences was impermissible. Then according to the High Court offences under. s. 409 and s. 471/467 are of different kinds and are number capable of joint companymission. Therefore, they companyld number be jointly tried. Further, according to the High Court where a companyspiracy has yielded its fruits the companyspirators can be charged with the actual offences companymitted and number with companyspiracy to companymit those offences. Charge of companyspiracy, according to the High Court, can be validly made only when the prosecution establishes that every companyspirator expected to receive a personal benefit from it and that the prosecution has number been able to establish that the respondent No. 2 or the approver evidently had any such expectations since they did number in fact receive any companyresponding benefit. In so far as the respondent No. 2 is companycerned the High Court has held that since he was charged with a specific offence under s.409 I.P.C. he companyld number be companyvicted of mere abetment of an offence. The approvers evidence was held by the High Court to be inadmissible because the pardon granted to him was illegal. The High Court has also held that his evidence is unreliable and further that the Additional Sessions judge was in error in allowing him to refresh his memory by referring to various documents in a manner number permitted by s. 159 of the Evidence Act. The High Court has further stated that inadmissible evidence was taken on record by the Additional Sessions judge, namely, account books of Billimoria Brothers, maintained in Gujrati and further that the Additional Sessions judge was in error in allowing the prosecution to use those account books for establishing absence of entries with regard to certain payments alleged in the VESCO books to have been made to them. Finally, the High Court held that the examination of the respondent under s. 342 of the Code was unfair for a number of reasons and that the Additional Sessions judge had failed to perform an important duty in that he did number call the attention of the respondents to the provisions of s. 342 which enable an accused person to give evidence in his own behalf Mr. Bhimasankaram, appearing for the two respondents, however, has number sought to support the judgment of the High Court on all these points. The points which he urged are briefly these That there was a misjoinder of charges and persons in that the various provisions of s. 239 were clubbed together and an omnibus charge of companyspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves difficult. The procedure adopted in the investiga- tion and companymittal stages was irregular. Irrelevant evidence was introduced and some evidence was introduced in a manner number authorised by the Evidence Act. That the Court abused its powers under s.342, Cr. P.C. while companyducting the examination of the respondents. The evidence of the approver was inadmissible because the pardon granted to him was illegal, that, in any case, it is unreliable, was so found even by the Sessions judge and must, therefore, be rejected. If the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case. We shall deal with Mr. Bhimasankarams companytentions in the order in which we have set them out. The first question for companysideration is whether there was a misjoinder of parties and of persons. The first charge is in respect of the companyspiracy alleged to have been entered into by the two respondents, K. V. Ramana, the approver, and others known and unknown to companymit criminal breach of trust of the funds of VESCO and, in order to screen its detection, to falsify the accounts of VESCO and to use forged documents as genuine. On the face of it this is a valid charge. But certain objections have been taken to it with which we will deal at the appropriate place. The second charge is for an offence of criminal breach of trust punishable under s. 409 and the accusation therein is that the two respondents along with Ramana, misappropriated 69 items aggregating to a little over Rs. 3,20,000/-. It is clear from the charge that some of the amounts were misappropriated between April, 1947 and March, 1950, some between April, 1947 and March, 1949, some between April, 1947 and March, 1951 and quite a large number between September, 1947 and March, 1950 and a still large number between April, 1951 and March, 1952. It is thus apparent that offences companymitted within a space of 12 months were tried along with offences companymitted beyond that period. Unless, therefore, the provisions of s. 239 are applicable it would follow that there was a misjoinder of charges. The third charge is that the two respondents, along with the approver Ramana made false entries on seven different dates in the account books between September 19, 1947 and March 18, 1952 and thus companymitted an offence under s. 477-A, P.C. The fourth charge is that the two respondents, along with the approver Ramana forged six documents on different dates between March 28, 1949 and November 12, 1951 and thus companymitted an offence under s. 471 read with s. 467, I.P.C. As we have pointed out earlier the respondent No. I alone was companyvicted by the Additional Sessions judge in respect of the third and fourth charges. Mr. Bhimasankaram supports the reason given by the High Court for companying to the companyclusion that there was a misjoinder of charges. The main reasons upon which the companyclusion of the High Court is based are firstly that there companyld be numberclubbing together of the provisions of the various clauses of s. 239 and secondly that the respondents were charged with more than three offences of the same kind and that this was in companytravention of s. 239 c . In companying to the companyclusion that the provisions of various clauses of s. 239 cannot be applied cumulatively the High Court has relied upon the decision in Re Vankavalapati Gopala Rao 1 . There the learned judges have held thus These clauses are mutually exclusive and they cannot be simultaneously applied and to companystrue them as supplementing each other would be enlarging the scope of the exceptions. Each clause is an exception to the general rule enacted in s. 233, Cr. P.C. If such a companybination is permissible, all persons accused of offences described in cls. a to g can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle companytained in s. 233. p. 24 In support of this view the High Court in that case has relied upon the decision in T. B. Mukherji v. State 2 and referred to the decision in Singarachariar v. Emperor 3 and D. K. Chandra v. The State , . Before companysidering these decisions it will be useful to look at the scheme of Chapter XIX of the Code of Criminal Procedure which deals with the charge. The chapter is split up into two sub-heads, -Form of charges and Joinder of charges. Sections 221 to 232 are companyprised under the first sub-head and ss. 233 to 240 in the second. Sections 221 to 223 deal with the framing and companytent of charge. s. 224 deals with the interpretation of the language of the charge and s. 225 with the effect of errors in the charge. Sections 226 to 231 deal with the power of the companyrt with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is numbercharge or where a new charge is to be A.I.R. 1956 Andhra 21. A.I.R. 1954 All. 501. A,I,R, 1934 Mad 673. A,I.R. 1952 Bom 177. F.B, framed. Section 232 deals with the power of the. appellate companyrt or the High Court when it discovers that there is material error in the charge. Then we companye to the other sub-head of this chapter. Section 233 provides that for every distinct offence of which any person is accused there shall be a. separate charge. It thus lays down the numbermal rule to be followed in every case. But it also provides that this will be subject to the exceptions companytained in SS. 234, 235, 236 and 239. The first three provisions relate to the framing of charges against a single accused person. Section 234 1 deals with the trial of a person for offences of the same kind number exceeding three companymitted within the space of 12 months from the first to the last of such offences and s. 231 2 what is meant by the expression offences of the same kind. This provision lifts partially the ban on the trial of a person for more than one offence at the same trial. Section 235 1 , however, goes a step further and permits the trial of a person for more offences than one if they are so companynected together as to form the same transaction. Thus under this provision if the companynection between the various offences is established the limitations placed by s. 234 1 both as regards the number and the period during which the offences are alleged to have been companymitted will number apply. Full effect cannot possibly be given to this provision if we hold that it is subject to the limitation of s.234 1 . Sub-section 2 of S. 235 deals with a case where an offence falls within two definitions and sub-s. 3 deals with a case in which a number of acts are alleged against an accused person, different company- binations of which may companystitute different offences. Then we companye to s. 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will companystitute, the accused may be charged with having companymitted all or any of such offences and further provides that any number of such charges may be tried together. It also permits that charges companyld be framed against an accused person in the alternative if the companyrt thinks fit. Thus, this is a special provision available in case of doubt and is neither subject to the limitations prescribed by s. 233 number those of the other preceding provisions. Now, if the respondent No. 1 were alone tried upon the second, third and the fourth charges the provisions of s. 235 1 companyld have been pressed in aid if the allegations were that the offences were so companynected together as to form one and the same transaction and the validity of the trial would number have been open to any attack. Similarly if the second respondent were alone tried on the second charge his trial would number have been open to any objection if the allegation were that the offences were so companynected together as to form the same transaction. Here, however, we have a case where the prosecution alleges that there was additionally a companyspiracy to which apart from the two respondents the approver and some other persons were parties and where in both the respondents were tried together. A companyspiracy must be regarded as one transaction and, there- fore, a single individual charged with it companyld be tried with the aid of s. 235 1 for all the acts companymitted by him in furtherance or in pursuance of the companyspiracy without the limitations imposed by s.234 1 . For, where all the acts are referable to the same companyspiracy their companynection with one another is obvious. The only provision in the Code which permits the joint trial of more than one person is s. 239 and what we have to see is whether under that provision the two respondents companyld have been jointly tried for the offences with which they were charged. Let us, therefore, examine closely the provisions of s. 239. It will be useful to set out the provisions of that section which run thus The following persons may be charged and tried together, namely- a persons accused of the same offence companymitted in the companyrse of the same transaction b persons accused of an offence and per- sons accused of abetment, or of an attempt to companymit such offence e persons accused of more than one offence of the same kind within the meaning of section 234 companymitted by them jointly within the period of twelve months d persons accused of different offences companymitted in the companyrse of the same transaction e persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or companycealment of, property possession of which is alleged to have been transferred by any such offence companymitted by the first-named persons, or of abetment of or attempting to companymit any such 1st-named offence f persons accused of offences under sec- tions 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence and g persons accused of any offence under Chapter XII of the Indian Penal Code relating to companynterfeit companyn, and persons accused of any other offence under the said Chapter relating to the same companyn, or of abetment of or attempting to companymit any such offence and the provisions companytained in the former part of this Chapter shall, so far as may be, apply to all such charges. This first thing to be numbericed is that s. 239 does number read as if its various clauses can be applied only alternatively. On the other hand at the end of cl. f there is a companyjunction and. If the intention of the Legislature was that the provisions of these clauses should be available only alternatively it would have used the word or and number and which has the opposite effect. Grammatically, therefore, it would appear that the provisions of the various clauses are capable of being applied cumulatively. The opening words of the section show that it is an enabling provision and, therefore, the Court has a discretion to avail itself cumulatively of two or more clauses. Of companyrse a Court has the power to depart from the grammatical companystruction if it finds that strict adherence to the grammatical companystruction will defeat the object the Legislature had in view. The companycluding portion of s. 239 shows that the provisions companytained in the former part of Chapter XIX shall, as far as may be, apply to the charges framed with the aid of s. 239. Does this mean that the provisions of s. 233, 234, 235, and 236 must also be companyplied with? Obviously, s. 233 does number override the provisions of s. 239. Section 234 cannot also be regarded as an overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences companymitted by them in the companyrse of the same transaction they cannot be tried also for -offences of the same kind exceeding three in number and companymitted beyond a space of 12 months from the first to the last. It companyld number have been the intention of the Legislature to create such a situation. Again, as already stated, s. 234 1 does number override the provisions of s. 235 1 which permits trial of a person for more offences than one companymitted during any period provided they are so companynected together as to form one transaction. Unless we read s. 234 1 as number enacting a fetter on s. 235 1 , it may number be possible to give full effect to the latter. Now, since s. 234 1 cannot be properly read a,, overriding s. 235 1 there is numbervalid reason for companystruing it as overriding the provisions of s. 239 either. There are also other reasons which point to this companyclusion which we will set out while companysidering the argument advanced by Mr. Bhimasankaram. Mr. Bhimasankaram companytended that s, 239 must be read at least subject to ss. 234 1 and 235 1 on the ground that if there are certain restrictions with respect to the trial of a single accused there is numberreason why those restrictions will disappear if an accused person is tried along with several other persons. Thus he points out that where several persons are accused of more offences than one of the same kind companymitted by them jointly within a period of 12 months, the number of offences for which they companyld be tried cannot exceed three. In this companynection he relied upon the words within the meaning of s. 224 occurring in cl. c of s. 239. These words, he companytended, clearly show that cl. c of s. 239 is subject to the provisions of s. 234. In our opinion the words within the meaning of s. 234 indicate that what was meant by the words offence of the same kind in cl. c of s. 239 is the same thing as was meant by the identical expression used in s. 234 1 and defined in s. 234 2 and numberhing more. If it was the intention of the Legislature to provide that the number of offences for which several accused persons companyld be tried under cl. c of s. 239 should be limited to three as provided in s. 234 1 , the Legislature would either have Said persons accused of more offences than one of the same kind number exceeding three in number or may have used the words person accused of more than one offence of the same kind to the extent permissible under s. 234. Language of this kind would have made perfectly clear that cl. c of s. 239 was subject to s. 234 1 . As already stated, if s. 239 c is companystrued as being subject to s. 234 1 , there would be this anomaly that whereas the same accused person companyld be charged with and tried jointly for any number of offences of different kinds companymitted by them, for more than three offences of the same kind companymitted by them jointly there will have to be a separate trial with respect to such offences. Surely such companyld number have been the intention of the legislature. The object of enacting s. 239 was to avoid multiplicity of trials and the only limitation which companyld properly be placed on the trial of several persons for the same kind of or different offences would be that which companysiderations of justice and fairness would require. No doubt, such a companystruction would also give rise to the result that whereas so far as the trial of a single accused person is companycerned the charges must be limited to three offences companymitted by him within the space of 12 months from the first to the last of such offences, there would be numbersuch limitation when along with that accused person there are one or more persons who have jointly companymitted those offences. The reason for this possibly is that the Legislature did number want to differentiate between cases where any number of different offences were companymitted jointly by a group of persons from cases where any number of offences of the same kind were companymitted by a group of persons. According to Mr. Chari s. 235 1 cannot be companystrued as having an overriding effect on s. 239 because whereas it companytemplates acts so companynected together as to form the same transaction resulting in more offences than one, s. 239 d companytemplates offences companymitted in the companyrse of the same transaction and numberhing more. The question is whether for the purposes of s. 239 d it is necessary to ascertain any- thing more than this that the different offences were companymitted in the companyrse of the same transaction or whether it must further be ascertained whether the acts are intrinsically companynected with one another. Under s. 235 1 what has to be ascertained is whether the offences arise out of acts so companynected together as to form the same transaction, but the words so companynected together as to form are number repeated after the words same transaction in s. 239. What has to be ascertained then is whether these words are also to be read in all the clauses of s. 239 which refer to the same transaction. Section 235 1 , while pro- viding for the joint trial for more than one offence, indicates that there must be companynection between the acts and the transaction. According to this provision there must thus be a companynection between a series of acts before, they companyld be regarded as forming the same transaction. What is meant by same transaction is number defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have number companye across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or companytinuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, number necessary that every one of these elements should companyexist for a transaction to be regarded as the same. But if several acts companymitted by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The companynection between a series of acts seems to us to be an essential ingredient for those acts to companystitute the same transaction and, therefore, the mere absence of the words so companynected together as to from in cl. a , c and d of s. 239 would make little difference. Now, a transaction may companysist of an isolated act or may companysist of a series of acts. The series of acts which companystitute a transaction must of necessity be companynected with one another and if some of them stands out independently, they would number form part of the same transaction but would companystitute a different transaction or transactions. Therefore, even if the expression same transaction alone had been used in s. 235 1 it would have meant a transaction companysisting either of a single act or of a series of companynec- ted acts. The expression same transaction occurring in cls. a , c and d of s. 239 as well as that occurring in s. 235 1 ought to be given the same meaning according to the numbermal rule of companystruction of statutes. Looking at the matter in that way, it is pointless to inquire further whether the provisions of s. 239 are subject to those of s. 236 1 . The provisions of sub-s. 2 and 3 of s. 235 are enabling provisions and quite plainly can have numberoverriding effect. But it would be open to the companyrt to resort to those provisions even in the case of a joint trial of several persons permissible under s. 239. Section 236 is also an enabling provision to be availed of in case of doubt and it is meaningless to say that s. 239 is subject to s. 236. Bearing in mind the fact that the provisions in the former part of Chapter XIX are applicable to charges made with the aid of s. 239 only so far as may be it would number be right to companystrue s. 239 as being subject to the provisions of ss. 233 to 236. It was companytended by Mr. Chari that the expression former part would apply to the first sub- division of chapter XIX which deals with the form and companytent of the charges and the powers of the companyrt with regard to the absence of charge and alteration of charge. We cannot, however, give the expression such a restricted meaning. For, even in the absence of those words, the earlier provisions companyld number have been ignored. For, it is a rule of companystruction that all the provisions of a statute are to be read together and given effect to and that it is, therefore, the duty of the Court to companystrue a statute harmoniously. Thus, while it is clear that the sections preceding s. 239 have numberoverriding effect on that section,, the companyrts are number to ignore them but apply such of them as can be applied without detracting from the provisions of S.239. Indeed, the very expression so far as may be empha- sises the fact that while the earlier provisions have to be borne in mind by the Court while applying s. 239 it is number those provisions but the latter which is to have an overriding effect. Apart from this, the question whether the provisions of ss. 233 to 236 have or have numberoverriding effect on s. 239 is number strictly germane to the question companysidered by the High Court that is, clubbing together all the provisions of the various clauses of s. 239. Whether they can or cannot be read cumulatively must be determined by companysideration of the language used in those clauses. We have already indicated how those clauses may be grammatically read. On a plain companystruction of the provisions of s. 239, therefore, it is open to the Court to avail itself cumulatively of the provisions of the different clauses of s. 239 for the purpose of framing charges and charges so framed by it will number be in violation of the law, the provisions of ss. 233, 234 and 235 numberwithstanding. The decision of the Allahabad High Court in T. R. Mukherjis case IL , is directly in point and is clearly to the effect that the different clauses of s. 239 are mutually exclusive in the sense that it is number possible to companybine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. A large number of decisions of the different High Courts and one of the Privy Council have been companysidered in this case. No doubt, as has been rightly pointed out in this case, separate trial is the numbermal rule and joint trial is an exception. But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does number companye in, it would, where the same act is companymitted by several persons, be number only inconvenient but injudicious to try all the several persons separately. This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No companyresponding advantage can be gained by the accused persons by following the procedure of separate trials. Where, however, several offences are alleged to have been companymitted by several accused persons it may be more reasonable to follow the numbermal rule of separate trials. But here, again, if those offences are alleged number to be wholly unconnected but as forming part of the same transaction the only companysideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trial should be founded on some principle. But we find it difficult to appreciate what seems to A. I. R. 1954 All. 501. be the view of the High Court that because each clause of s. 239 enunciates a separate principle those principles are, so to speak, mutually exclusive and cannot be cumulatively resorted to for trying several persons jointly in respect of several offences even though they form part of the same transaction. The High Court has propounded that the companynection described in each of the various clauses is mutually exclusive, that numbertwo of them can exist simulta- neously in any case and that one cannot, therefore, have in any case persons companynected with one another in two or more ways. In other words, as the High Court puts it, persons included in two or more of the groups cannot all be tried together and that since there is absolutely numberhing to companynect one group with any other, the persons of one group cannot be tried with those of any other. No reason has been stated in support of this view. Let us companysider whether there is anything intrinsically incompatible in companybining two clauses of s. 239. Take cls. a and b . Clause a says that persons accused of the same offence companymitted in the companyrse of the same transaction may be charged and tried together. Clause b says that persons accused of an offence and persons accused of abetment, or, of an attempt to companymit such offence may also be charged and tried together. Now, if persons A, B and C are tried for an offence of murder what intrinsic difficulty would there be in trying X, Y and Z of abetment of the same offence? The transaction in which all of them have participated is the same and the abetment by X, Y and Z of the offence companymitted by A, B and C would itself establish the companynection of their acts with those of X, Y and Z. Next, let us take cls. a and c . Clause c provides that persons accused of more than one offence of the same kind within the meaning of s. 234 companymitted by them jointly within the period of twelve months companyld also be charged and tried together. Let us companysider these clauses along with another illustration. Two persons A and B enter a house at night and first together companymit the murder of a man sleeping there and then also his wife. Each of them has companymitted two offences and each of them participated in the same offence. Why can they number be tried jointly for both murders and why should there be two trials for the two murders ? The offences are of the same kind and must be deemed to have been companymitted in the companyrse of the same transaction because of association and mutual companynection. Now, supposing in the illustration given A killed the man and B killed his wife. Under cl. c they companyld be tried together because the offences are of the same kind. It would be ridiculous to say that they cannot be tried together for jointly companymitting the murder of the man and the wife because cl. a and c cannot be companybined. For, without companybining these two clauses their joint trial for the two offences in each of which both have participated would be impermissible. Then take s. a and d . Under cl. d persons accused of different offences companymitted in the companyrse of the same transaction can be tried together. Let us suppose that a group of persons are accused of having been members of an unlawful assembly the companymon object of which was to overawe by sheer force another group of persons and take forcible possession of a piece of land. Some of the members of the unlawful assembly carried axes with them while some others carried lathis and attacked the other group. During the companyrse of the attack one person from the second group was killed, as a rest of blows with an axe inflicted by the aggressors A, B and C. Two persons of the second group sustained grievous hurt as a result of lathi blows and one person sustained simple hurt. Let us say that the grievous hurt was caused as a result of lathi blows given by X and Y, simple hurt was caused by lathi blows given by Z. Here, the offences companymitted were those under ss. 147, 302, 325 and 323, I.P.C. The offences being different and the persons companymiting the offences being different, they companyld number be tried jointly only with the help of cl. a of s. 239. Nor again, companyld they be tried jointly only with the help of cl. d . Yet the transaction in which the offences were companymitted is the same and there is a close association amongst the persons who have companymitted the different offences. What intrinsic difficulty is there in trying them all together simultaneously availing of cls. a and d of s. 239? These are enabling provisions which circumstance implies that the companyrt may avail itself of one or more of these provisions unless doing so would amount to an infringement of any of the provisions of the Code. All these persons can be jointly tried for offences under s. 147 by recourse to cl. a . So also A, B and C companyld be jointly tried together for an offences under s. 302. X and Y can be charged number only with offences under ss. 147 and 325, I. C. but also under s. 302 read with s. 149. Similarly Z can be charged with offences under ss. 147, 323 and offences under s. 302 read with s. 149 and s. 325 read with s. 149. The same offence companymitted by all of them is that under s. 147 and all of them can be tried jointly in respect of that offence under cl. a . Similarly, if we take cl. d by itself all of them can be tried jointly for the different offences companymitted by each of them in the companyrse of the same transaction and if cl. a is unavailable they companyld number be tried for the offence under s. 147 at the same trial. This means that the trial for an offence under s. 147 will have to be separated from the trial for the different offences companymitted by them. It is difficult to appreciate what purpose would be served by separating the trial for the same offence from the trial for different offences. To repeat, the object of the legislature in enacting s. 239, Cr.P.C. clearly was to prevent multiplicity of trials and number only would that object be defeated but an extraordinary result will ensue if the various clauses of s. 239 are read disjunctively. The reasons given by the Allahabad High Court, therefore, do number merit acceptance. The decision in Singarachariars Case 1 , has really numberbearing upon the point before us. What was held there was that ss. 235 1 and s. 236 are mutually exclusive and if a case is companyered by one of them it cannot be companyered by the other. In that case the question was whether a person who was first tried for an offence under s. 380, I.P.C. for stealing a blank second class railway ticket from the booking office, tried, for it and acquitted, companyld number be tried subsequently for the offence of forgery by making entries in that ticket and using it. The acquittal in the previous case was urged as a bar under s. 403 1 of the Code to the trial for an offence under s. 467, I.P.C. The companytention apparently was that this was a case which fell under s. 236, Cr. P.C. and that if he had been tried alternatively for both the offences at the same trial the Court companyld have dealt with him under s. 237, Cr. P.C. The High Court, however, held that to be a kind of case which fell under s. 235 1 of the Code and that since that was so, the provisions of s. 236 were excluded. It is difficult to appreciate how this case assists the companyclusion arrived at by the High Court. In D.K. Chandras Case 2 it was held that the provisions of ss. 234, 235 and 236 being exceptions to s. 233 must be strictly companystrued and that if joinder of charges did number fall under any of them it would be illegal and companytrary to law. The precise point which we have to companysider here did number fall for companysideration in that case i.e., whether the provisions of the various clauses of s. 239 companyld be used together or number. This decision is, therefore, of little assistance. On the other band there is the decision of this Court in The State of Andhra Pradesh v. Kandinmlla Subbaiah 3 , which is to the effect that where several persons had companymitted offences in the companyrse of the same transactions, they companyld jointly be tried in respect of all those offences under s. 239 of the Code of Criminal A.I.R. 1934 Mad 673. C. 2 A. I.R. 1952 Bom. 177, F. B. 3 1962 2 S. R. 194. Procedure and the limitation placed by s. 234 of the Code companyld number companye into operation. There, nine persons were jointly tried for an offence under s. 5 1 c and d of the Prevention of Corruption Act, 1947, and s. 109, I. P. C. read with s 420, s. 466 and s. 467, I. P. C. and all except one for offences under ss. 420, 467/471, I.P.C. Some of them were also charged with separate offences under some of these provisions. Two of the accused persons preferred a revision application before the High Court of Andhra Pradesh in which they challenged the charges framed against them. The High Court allowed the revision application. But on appeal by the State of Andhra Pradesh to this Court, this Court held that there was numbermisjoinder of charges, that the introduction of a large number of charges, spread over a long period was a question of propriety and that it should be left to the judge or the Magistrate trying the case to adopt the companyrse which he thought to be appropriate in the facts and circumstances of the case. In so far as some of the charges were companycerned this Court pointed out that the Special judge who was to try the case should companysider splitting them up so that the accused persons would number be prejudiced in answering the charges and defending themselves. It is true that the question of reading the various clauses cumulatively did number specifically arise for decision in that case but the High Court had held that the first charge was an omnibus charge companytaining as many as 203 offences and that it was in direct violation of ss. 234, 235 and 239 of the Code of Criminal Procedure. Dealing with this matter this Court held at p. 200 No doubt, sub-s. 1 of s. 234 provides that number more than three offences of the same kind companymitted by an accused person within the space of 12 months can be tried at the same trial. But then s. 235 1 provides that if in any one series of acts so companynected together as to form the same transaction more offences than one are companymitted by the same person, he may be charged with and tried at one trial for every such offence. Therefore, where the alleged offences have been companymitted in the companyrse of the same transaction the limitation placed by s. 234 1 cannot operate. No doubt, the offence mentioned in charge No. I is alleged to have been companymitted number by just one person but by all the accused and the question is whether all these persons can be jointly tried in respect of all these offences. To this kind of charges. 239 would apply. This section provides that the following persons may be charged and tried together, namely 1 persons accused of the same offence companymitted in the companyrse of the same transaction 2 persons accused of abetment or an attempt to companymit such an offence 3 persons accused of different offences companymitted in the companyrse of the same transaction. Clearly, therefore, all the accused persons companyld be tried together in respect of all the offences number companyprised in charge No. 1. This Court has thus clearly read the provisions of the various clauses cumulatively and we see numberreason to read them differently. There remains the decision of this Court in K.V. Krishna Murthy Iyer v. The State of Madras IN on which Mr. Bhimasankaram strongly relied. In that case this Court upheld the order of the High Court of Madras in quashing the charges in the exercise A. I. R. 1954 s, a. 406. of its inherent powers even before the companyclusion of the trial. It is true that there the charges were 67 in number and spread over a long period, of time. That again was a matter which came before the High Court before companyviction and number after the trial was over. When an objection is taken at an early stage, there is time enough to rectify an error. But in the case before us numberobjection was taken to multiplicity or misjoinder of charges before the learned Additional Sessions judge and it was only in the High Court that the point was raised, In such circumstances what the Court has to companysider is whether prejudice has in fact been caused to the accused by reason of the multiplicity of charges or misjoinder, if any, of the charges. This is quite clear from the provisions of s. 537 of the Code as amended by Act 26 of 1955. In Willie William Slaney v. The State of Madhya Pradesh 1 , all the learned judges were in agreement on the point that this section and s. 535 companyer every case in which there is departure from the rules set out in Ch. XIX ranging from error, omissions and irregularities in charges that are framed, down to charges that might have been framed and were number and include a total omission to frame a charge at all at any stage of the trial. The whole question has again been examined by this Court recently in Birichh Bhuian v. The State of Bihar 2 . Subba Rao J., who delivered the judgment of the Court has stated the position thus To summarise a charge is a precise formula- tion of a specific accusation made against a person of an offence alleged to have been company- mitted by him. Sections 234 to 239 permit the joinder of such charges under specified companydi- tions for the purpose of a single trial. Such a joinder may be of charges in respect of different offences companymitted by a single person or several persons. If the joinder of charges was companytrary to the provisions of the Code it would 1 1955 2 S. Co R. 1140, 2 1963 Supp. 2S.C.R. 328 be a misjoinder of charges. Section 537 prohibits the revisional or the appellate companyrt from setting aside a finding, sentence or order passed by a companyrt of companypetent jurisdiction on the ground of such a misjoinder unless it has occasioned a failure of justice. Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of ss. 233 to 239 of the Code, the High Court was incompetent to set aside the companyviction of the respondents without companying to the definite companyclusion that misjoinder had occasioned failure of justice. This decision companypletely meets the argument based upon Dawsons Case 1 . Merely because the accused persons are charged with a large number of offences and companyvicted at the trial the companyviction cannot be set aside by the appellate companyrt unless it in fact came to the companyclusion that the accused persons were embarrassed in their defence with the result that there was a failure of injustice. For all these reasons we cannot accept the argument of learned companynsel on the ground of misjoinder of charges and multiplicity of charges. Mr. Bhimasankaram, supporting the view taken by the High Court then companytends that it is number permissible to frame a charge of companyspiracy when the matter has proceeded beyond the stage of companyspiracy and that in pursuance of it offences have actually been companymitted. A similar view was expressed by the same High Court in the case which was reversed by this Court in The State of Andhra Pradesh V. Kandinalla Subbaiah 2 , and it was held that companyspiracy to companymit an offence being itself an offence a person can be separately charged with respect to such a companyspiracy. Then this Court has observed Where a number of offences are companymitted by several persons in pursuance of a companyspiracy it is usual to charge them with those 1 1960 1 All, E. R. 558 2 1962 2 C.R. 194, offences as well as with the offence of companyspiracy to companymit those offences. As an instance of this we may refer to the case in Swamirathnam v. State of Madras 1 . Though the point was number argued before this Court in the way it appears to have been argued before the High Court of Andhra Pradesh, this Court did number see any- thing wrong in the trial of several persons accused of offences under s. 120-B and s.420. P.C. We cannot, therefore, accept the view taken by the High Court of Andhra Pradesh that the charge of companyspiracy was bad. If the alleged offences are said to have flown out of the companyspiracy the appropriate form of charge would be a specific charge in respect of each of those offences along with the charge of companyspiracy. pp. 201-202 . This decision is sufficient to dispose of the point under companysideration. In Swamirathnams case 1 , which is a decision of this Court certain persons were tried for the offence of the companyspiracy to cheat the members of the public and for specific offences of cheating in pursuance of that companyspiracy. It was urged before this Court that there was misjoinder of charges and persons Negativing the companytention this Court held that the charge as framed disclosed a single companyspiracy although spread over several years, that there was one object of the companyspiracy and that was to cheat the members of the public, that the fact that in the companyrse of years other joined the companyspiracy or that several incidents of cheating took place in pursuance of the companyspiracy did number have the effect of splitting the companyspiracy into several companyspiracies. that the several instances of cheating being alleged to be in pursuance of that companyspiracy were parts of the same transaction and, therefore, the joint trial of the accused A. I. R. 1957 S. C. 340, 343, 344. persons for the different offences was number vitiated. No doubt, there is numberdiscussion there as to the question whether the various clauses of s. 239 companyld be companybined or as to the impact of the provisions of S. 233 to 236 on those of s. 239. The actual decision of the case is, however, directly opposed to the companytention number put forward before us. This decision has been followed in Natwarlal Sakarlal Mody v. The State of Bombay 1 . In that case the impact of s. 120-B, I.P.C. on ss. 233 and 239 of the Code of Criminal Procedure was companysidered by this Court and this Court observed The companybined effect of the three provisions ss. 235, 236 and 239 is that if there is a criminal companyspiracy to companymit different offences, the persons who are members of that companyspiracy may be charged and tried together but the necessary companydition for invoking the provisions of s. 239 d is that the offence should have been companymitted in the companyrse of one transaction i.e., in the present case one and the same companyspiracy. Here again, the question of clubbing together of the various provisions of cls. a to d of s. 239 was number raised expressly in the argument before the Court. But the ultimate decision of the case would negative such argument. Mr. Bhimasankaram then relying upon the decision in R. v. Dawson 2 , companytended that in any event it was number desirable to try the respondents at the same trial for as many as 83 offences and pointed out that these observations had received the approval of this Court in The State of Andhra Pradesh v. Kandimalla Subbaiah 3 . In the first place there the trial had number actually begun. Again, what was said by this Court was that it is undesirable to companyplicate a trial by introducing a large number of charges Crl. A. No. III of 1959 decided on January 19, 1961. 2 1960 1 All. E.R. 568, 3 1962 2 B.C.R. 194. spread over a long period but even so this was a question of propriety which should be left to the discretion of the judge or Magistrate trying the case. Objection was taken very seriously by Mr. Bhimasankaram to the charge of companyspiracy framed in this case. That charge reads thus That both of you along with K.V. Ramana, Ex.- Senior Accountant of the Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam approver and others, known or unknown, in or about April 1, 1947, at Visakhapatnam, agreed to do illegal acts, to wit, companymit criminal breach of trust in respect of the funds belonging to the Vizagapatam Electric Supply Corporation Ltd., Vizagapatnam and to screen yourselves from detection of the same, to wilfully, and with intent to defraud, falsify the accounts of the said Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam and that pursuant to the said agreement, you companymitted criminal breach of trust in respect of funds of the said Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam to the extent of over Rs 3,20,000 and falsified the said accounts between April, 1947 and March, 1952, and also used forged documents as genuine, offences punishable-under Sections 409, Indian Penal Code and 477-A, Indian Penal Code and 471 read with section 467, Indian Penal Code and thereby companymitted an offence of criminal companyspiracy punishable under Section 120-B of the Indian Penal Code and within my companynizance. Adverting to the portion which we have bracketed, his first objection was that the charge companyprises within it number merely the companyspiracy but also what was in fact done in pursuance of the companyspiracy. His next objection was that it brought within its purview all the various offences which were alleged to have been companymitted by the respondents. The third objection was that numbercharge of companyspiracy companyld have been framed after the companyspiracy had borne its fruits. The last objection was that the charge of companyspiracy was added to the charge sheet very late. We shall first deal with the third point. The offence of companyspiracy is an entirely independent offence and though other offences are companymitted in pursuance of the companyspiracy the liability of the companyspirators for the companyspiracy itself cannot disappear. In the Indian Penal Code, as originally enacted, companyspiracy was number an offence. Section 120 -B which makes criminal companyspiracy punishable was added by the Indian Criminal Law Amendment Act, 1913 8 of 1913 along with s. 120-A. Section 120-A defines companyspiracy and s. 120- B provides for the punishment for the offence of companyspiracy. Criminal companyspiracy as defined in s. 120-A and companysists of an agreement to do an illegal act or an agreement to do an act which is number illegal by illegal means. Section 120 B provides that whoever is a party to a criminal companyspiracy to companymit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards shall be punishable in the same manner as if he has abetted such offence unless there was an express provision in the Code for the punishment of such companyspiracy. Criminal companyspiracy was, however, number an unknown thing before the amendment of the Indian Penal Code in 1913. But what the amendment did was to make that companyspiracy itself punishable. The idea was to prevent the companymission of crimes by, so to ,speak, nipping them in the bud. But it does number follow that where crimes have been companymitted the liability to punishment already incurred under s. 120-B by having entered into a criminal companyspiracy is thereby wiped away. No doubt, as already stated, where offences for companymitting which a companyspiracy was entered into have actually been companymitted it may number, in the particular circumstances of a case, be desirable to charge the offender both with the companyspiracy and the offences companymitted in pursuance of that companyspiracy. But that would be a matter ultimately within the discretion of the companyrt before which the trial takes place. In so far as the fourth point is companycerned, that would have a bearing number on the form of the charge but on the credibility of the evidence bearing on the point of companyspiracy. As we are remanding the appeal to the High Court for a fresh decision after full companysideration of the evidence adduced in the case it would be open to it to companysider this matter particularly while judging the credibility of the-evidence of the approver. In so far as the portion included in the bracket is companycerned we agree with the learned companynsel that it should number have found place there. The ideas, however, of the companymitting magistrate in stating all that is said there appears to have been merely to describe the companyspiracy and do numberhing more. We do number think that either that or the other objection raised, that is, that the charge embraces within it all the offences said to have been companymitted by the respondents can properly. be said to vitiate the charge. The object in saying what has been set out in the first charge was only to give numberice to the respondents as to the ambit of the companyspiracy to which they will have to answer and numberhing more. Even assuming for a moment that this charge is cumbersome in the absence of any objection by the respondents at the proper time and in the absence of any material from which we companyld infer prejudice, they are precluded by the provisions of s. 225 from companyplaining about it at any rate after their companyviction by the trial companyrt. Coming to the next point of Mr Bhimsankaram regarding the abuse of powers under s. 342 his first companytention was that long and involved questions were put to the respondents. His second companytention was that reference was made to a number of documents in some of these questions and those documents were number made available to the respondents for answering those questions. The third companytention was that the questions were involved, companyfusing and bordered on cross-examination. Finally he said that the companyrt did number perform its duty under s. 342 4 of the Code as amended as it failed to bring to the numberice of the respondents that they may, if they chose, give evidence in their defence. In support of his first companytention he referred to questions Nos. 4, 8, 9, 10 and 20 put to the respondent No. I and question No. 12 put to the respondent No. 2 and tried to show that those questions rolled up a large number of separate questions and that it companyld number have been possible for the respondents to give any rational answers to those questions. We have read the questions and so also the answers. While we are disposed to agree with learned companynsel that the questions embrace a number of matters and that it would have been better if those matters had been made the subjects of separate questions, the answers given by the respondents clearly show that they understood the questions and wherever possible they have given companyplete answers to those questions. That is to say, they have given their explantion regarding the circumstances appearing in the evidence set out in the questions and wherever that was number feasible they have said that they would do so in their written statements. In fact written statements have been filed by each of them in which every point left over has been fully answered. We are informed that the questions had been prepared before hand by the learned Additional Sessions judge, companyies thereof were made available to each of the respondents and it was with reference to those companyies that they gave their answers in the companyrt. A pointed reference was made to question No. 20 put to respondent No. I which companytains as many as 22 sub-heads and it is said that it was an extremely unfair and embarrassing question. What the learned Additional Sessions judge has done is to err on the side of over-cautiousness by putting every circumstance appearing in the evidence to the respondents for eliciting their explanations. His object was to obviate the possibility of a companyplaint before the appellate companyrt that they were denied the opportunity of explaining the circumstances appearing in evidence against them because of defective questions. Nor again, do we think that there is any substance in the companyplaint made that the respondents had numberopportunity of referring to the documents to which reference has been made in certain questions. No objection was taken on their behalf before the learned Additional Sessions judge and from the manner in which they have answered the questions there is numberdoubt that they must have had opportunity to look at the relevant documents and answer the questions. We are also satisfied that there is numbersubstance in the companyplaint that the questioning bordered on cross-examination. Undoubtedly the learned Additional Sessions judge has questioned the respondents very fully and elaborately but to say that this bordered on cross- examination is wholly unjustifiable. The object of the learned Additional Sessions Judge quite clearly was, as already stated, to leave numberloophole for a companyplaint to be made before the appellate companyrt of incomplete or insufficient examination under s. 342. Finally we are clear that it was number the duty of the companyrt to draw the pointed attention of the respondents to the provisions of sub-s. 4 of s. 342 and tell them that they may, if they chose, enter the witness box. It is true that by introducing this provision the disability placed on an accused person in respect of giving evidence on oath in his own defence has been removed and to that extent such person is placed on par with an accused person under the English law. The new provision, however, does numbermore than lift the ban and does number impose a duty on the companyrt to draw the attention of an accused person to its companytents. Apart from that, the respondents were represented by companynsel at the trial who knew very well what the law was. No companyplaint was made by the respondents even in appeal that they were ignorant of their right, that had they known about it they would have given evidence on oath in their defence and that because of this they have been prejudiced. In the circumstances this point must also be rejected as being without substance. The irrelevant evidence to which Mr. Bhimasankaram referred was certain account books. The entries in the. account books of VESCO show that certain sums of money were paid to various parties, Crompton Engineering Co., Lumin Electric Co., D. Brothers, Radio and Electrical, Madras, Vizagapatam Municipality, P. V. Ramanayya Bros., and Andhra Power System. They also show payment case was that the payments which were entered in the account of VESCO do number find a place in the account books of the companyresponding firms or authorities because they were never made by VESCO. The High Court has pointed out that the main evidence on which the prosecution rests its case that the amount represented by the entries against these various firms were in. fact misappropriated by the, respondents in the circumstance that there are numbercorresponding entries in the account books of those firms. The argument before the High Court was and before us is that, the absence of an entry cannot of electricity duty to Government. The prosecution be established by reference to s. 34 of the Indian Evidence Act which reads thus Entries in books of account, regularly kept in the companyrse of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall number alone be sufficient evidence to charge any person with liability. This section appears in a group of sections headed Statements made under special circumstances. What it does is to make entries in books of account regularly kept in the companyrse of business relevant in all proceedings in a companyrt of law. These entries are, however, number by themselves sufficient to charge any person with liability. Therefore, when A sues B for a sum of money it is open to him to put his account books in evidence provided they are regularly kept in the companyrse of business and show by reference to them that the amount claimed by him is debited against B. The entry though made by A in his own account books, and though it is in his own favour is a piece of evidence which the companyrt may take into companysideration for the purpose of determining whether the amount referred to therein was in fact paid by A to B. The entry by itself is of numberhelp to A in his claim against B but it can be companysidered by the companyrt along with the evidence of A for drawing the companyclusion that the amount was paid by A to B. To this limited extent entries -in the account books are relevant and can be proved. Section 34 does number go beyond that. It says numberhing about number-existence of entries in account books. We, therefore, agree with the High Court that the account books of the various companycerns to whom payments are said to have been made by the respondents are number by themselves evidence of the fact that numberpayments were received by them. The decision in Queen Empress v. Grees Chunder Banerjee 1 , upon which reliance 1 1884 I. L. R. 10 Cal. 1024. is placed by the High Court in support of its view is also to that effect. Similarly in Ram prashad Singh v. Lakhpati Koer 1 . Lord Robertson during the companyrse of the hearing has observed that numberinference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in Queen Empress v. Girish Chander Banerjee 2 . That, however, is number the only provision to be companysidered. There is s. II of the Evidence Act which provides that facts number otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. Some of the facts in issue in this case are whether payments of certain sums of money were made to Crompton Engineering Co., and other firms or authorities. These are relevant facts. Absence of entries in their account books would be inconsistent with the receipt of the accounts and would thus be a relevant fact which can be proved under s. 11. The fact that numberpayments were received by those firms has been deposed to by persons companynected with those firms and whose duty it was to receive and acknowledge amounts received by the firms or who were in charge of the accounts of these firms. For the purpose of showing that numberamounts were received by the firms, their account books would thus be as relevant as the VESCO account books for the purpose of showing the companytrary. Similarly there is s. 5 of the Evidence Act which reads thus Evidence may be given in any suit or procee- ding of the existence or number-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of numberothers. It is the case of the prosecution that the alleged payments were never made by VESCO to the various firms. It is also their case that these firms maintain their accounts in the regular companyrse of business and it is their practice to enter in those accounts all payments received by them. Both the sets of facts are 1 1902 I. L. R. 30 Cal. 231, 247. 2 1884 I.L.R. 10 C.L 1024. relevant, that is, number-receipt of the amounts by the firms and number-existence of entries in their account books pertaining to those amounts. It is permissible, therefore, for the prosecution to lead evidence to ,Drove both these facts. The best evidence to prove the latter set of facts companysists of the account books of the firms themselves. It is under these provisions that the account books of the firms must be held to be relevant. What value to attach to them is another matter and would be for the Court of fact to companysider. It may further - be mentioned that the account books of VESCO show certain payments made to Billimoria Co. of Kharagpur. Papers seized by the police include receipts purporting to have been signed by one J. J. Billimoria on behalf of the firm. The prosecution case is that these receipts are forged documents and the entries in the account books of VESCO are false. One of the partners of the firm was examined by the prosecution as a witness in the case and he produced the account books of the firm. Those account books are in Gujrati and he stated in his evidence that the accounts were regularly kept and that there were numberentries in them companyresponding to the entries in the VESCO accounts. The High Court held that since the account books were number translated they are number admissible in evidence. The High Court was clearly wrong in so holding. In companying to this companyclusion it has relied upon the provisions of s. 356 2A of the Code of Criminal Procedure. That section reads thus When the evidence of such witness is given in any other language, number being English, than the language of the Court, the Magistrate or Sessions judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the Court or in English shall form part of the record. This provision relates only to the oral evidence adduced in a case and number to documentary evidence. Mr. Bhimasankaram, therefore, very rightly did number support the view of the High Court. In the circumstances we wish to say numberhing further on the point. We may, however, point out that Billimoria himself gave his evidence in English. Another point urged by Mr. Bhimasankaram was that as many as 2,000 documents were dumped by the prosecution in this case out of which 1600 documents were number sought to be proved by it. Further, 64 documents were missing from the records when they came to the High Court and that this has caused serious prejudice to the respondent. No objection, however, was taken in the companyrts below on this score and in the absence of any prejudice to the respondents we do number think that we should take numberice of the companyplaint made by Mr. Bhimasankaram. The third point stressed by him was that the approver was allowed to refresh his memory, while deposing in the case, by referring extensively to the account books and various documents produced in the case. This, according to him, was an absue of the provisions of s. 159 of the Evidence Act. Now, s. 159 expressly enables a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction companycerning which he is being questioned or soon afterwards, or to a writing made -similarly by another person and read by the witness immediately or soon after the writing was made. Section 160 provides that a witness may also testify to the facts mentioned in any such document as is mentioned in s. 159. The companyplaint of Mr. Bhimasankaram is that the approver should have been questioned about the various facts which were sought to be established through his evidence and it was only if and when he was in a difficulty that he should have been allowed to refer to the account books. Instead of doing that what he was permitted to do was just to prove the various documents or read those documents and then depose with reference to them. In our opinion, where a witness has to depose to a large number of transactions , and those transactions referred to are or mentioned either in the account books or in other documents there is numberhing wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him in his examination. He cannot be expected to remember every transaction in all its details and s. 160 specifically permits a witness to testify the facts mentioned in the documents referred to in s. 159 although he has numberrecollection of the facts themselves if he is sure that the facts were companyrectly recorded in the document. That is precisely what happened in this case and we do number think that the Additional Sessions judge adopted a procedure which was either a violation of law or was an abuse of the power of the Court. The next point is a formidable one. According to Mr. Bhimasankaram, the pardon tendered to the approver was illegal and if the pardon is illegal his evidence is wholly inadmissible. Further, according to him, the evidence of the approver was found by the Additional Sessions judge to be unreliable and therefore, the first companydition referred to in Sarwan Singh v. The State of Punjab 1 , was number satisfied. For all these reasons the evidence of the approver must be left out of account. If it is left out of account, he companytends, there is numberhing left in the prose- cution case, because, as pointed out by the Additional Sessions judge himself the evidence of the approver is the pivot of the prosecution case. 1 1957 S.C. R. 953. The pardon is stated to be illegal for two reasons. The first reason is that numbere of the offences alleged to have been companymitted falls within s. 337 of the Code of Criminal Procedure and the second reason is that the pardon was granted by an authority number empowered to grant it. Section 337 1 as it stood before its amendment by Act 26 of 1955 read thus In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Indian Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the -Indian Penal Code namely, sections 161, 165, 165A, 216A, 369, 401, 431, 435 and 477-A, the District Magistrate, a Presidency Magistrate, a sub-divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly companycerned in or privy to the offence, tender a pardon to such person on companydition of his making a full and true disclosure of the whole of the circumstances within his knowlege relative to the offence and to every other person companycerned, whether as principal or abettor, in the companymission thereof Provided that, where the offence is under inquiry or trial, numberMagistrate of the first class other than the District Magistrate shall exercise the power hereby companyferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, numbersuch Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof. His companytention is that where numbere of the offences is exclusively triable by the High Court or the Court of Sessions pardon companyld be granted only if the offences are punishable with imprisonment which companyld extend to ten years but number if a higher punishment were provided for them. Here, one of the offences alleged against the respondents is criminal breach of trust punishable under s. 409, I.P.C. It is number exclusively triable by a Court of Sessions and the punishment as set out in the 7th companyumn of Schedule II, Cr. C. was transportation for life or imprisonment of either description for ten years and fine. He companytends that since the offence is punishable with transportation for life, s. 337 1 companyld number be availed of for granting pardon to the approver. It seems to us that it would number be companyrect to read s. 337 1 in the way sought by learned companynsel. The very object of this provision is to allow pardon to be tendered in cases where a grave offence is alleged to have been companymitted by several persons so that with the aid of the evidence of the person pardoned the offence companyld be brought home to the rest. The gravity is of companyrse to be determined with reference to the sentence awardable with respect to that offence. On the strength of these companysiderations Mr. Chari for the State companytends that if the words any offence punishable with imprisonment which may extend to 10 years were interpreted to mean offences which were punishable with imprinsonment of less than 10 years grave offences which are number exclusively triable by a companyrt of Sessions will be companypletely out of s. 337 1 . He suggests that this provision can also be reasonably interpreted to mean that where the offences are punishable with imprisonment exceeding 10 years pardon may be granted to the approver. No doubt, if this interpretation is accepted the object of the section, that is, to embrace within it the graver offences, would be fulfilled, but we wish to express numberopinion on it. For, the pardon granted in -this case can be regarded as being within the ambit of s. 337 1 for another reason. It will be numbericed that transportation for life was number the only punishment provided for an offence under s. 409 of the Indian Penal Code even before the amendment made to the Indian Penal Code by s. 117 of the Act 26 of 1955, the other alternative being imprisonment up to 10 years. Therefore, since the offence under s. 409 was number merely punishable with transportation for life but alternately also punishable with imprisonment which companyld extend to 10 years, s. 337 1 would apply. This section does number expressly say that the only punishment provided for the offence should be imprisonment number exceeding 10 years. The reason why two alternative maximum sentences are given in company. 7, that is, transportation for life number imprisonment for life and imprisonment number exceeding 10 years appears to be that the offence is number exclusively triable by a companyrt of session and companyld also be tried by a Magistrate, who, except when empowered under s. 30 would be incompetent to try offences punishable with transportation for life number imprisonment for life and the further reason that it should be open to the companyrt of Session, instead of awarding the sentence of transportation for life to a companyvicted person to award him imprisonment in a jail in India itself for a period number execeeding 10 years. Now, of companyrse, by the amendment made by s. 117 of Act 26 of 1955 for the words transportation for life the words imprisonment for life have been substituted, but the original structure of all the sections number amended companytinues. That is why they read rather queer but even so they serve the purpose of allowing certain offences triable by a companyrt of Session, to be triable also by Magistrates of the First Class. Be that as it may, there is numbersubstance in the first ground. What we have said about pardon in respect of an offence under s. 409 would apply equally to that for one under s. 120-B because the punishment for it is the same as that for the offence under s. 409. The offence under s. 467 read with s. 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a companyrt of Session and, therefore, in so far as such offence is companycerned the argument of Mr. Bhimasankaram would number even have been available. As regards the offence under s. 477-A, it is one of those sections which are specifically enumerated in s. 337 1 and the argument advanced before us-and which we have rejected would number even be available with regard to the pardon in respect of that offence. It is true that the respondent No. I alone was companyvicted by the Additional Sessions judge of this offence and the offence under s. 467 read with s. 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and number with reference to the offence or offences for which his associates were ultimately companyvicted. Coming to the next ground of attack on the validity of pardon, the argument of Mr. Bhimasankaram is that whereas s. 337 1 speaks of pardon being granted by a District Magistrate, or Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of First Class, except in cases where an enquiry or trial was pending before another Magis- tratc, the pardon here was granted by the Additional District Magistrate in a case where an enquiry was pending before the District Magistrate and is, therefore, illegal and of numberavail. He companytends that s. 337 1 speaks of the District Magistrate which expression does number include an Additional District Magistrate. Mr. Bhimasankarams argument on the point may be summarised thus Such a power cannot be companyferred upon an Additional District Magistrate because s. 337 1 does number companytemplate grant of pardon by an Additional District Magistrate and that the Additional District Magistrate would have numberstatus other than that of a Magistrate, First Class. No doubt, under entry 9-a in Part III of Sch. III to the Code a Magistrate, First Class, has the power to grant pardon under s. 337 but it is limited by the proviso thereto to certain classes of cases. A case under enquiry or trial before another magistrate does number fall in any of these classes. Therefore, a pardon granted by him in such a case would be illegal. The Magistrate before whom the enquiry or trial is proceeding or the District Magistrate would be the only authorities companypetent to grant a pardon in such a case. Alternatively, the State Government has number made any directions under sub-s. 2 of s. 10 specifying the powers of the District Magistrate which would lie exercisable by the Additional District Magistrate companycerned. In order to appreciate and companysider the argument it is desirable to bear in mind the changes in the magisterial set up in the former province of Madras which companyprised within it the district of Visakhapatnam. By Government Order No. 3106 dated September 9, 1949 the Government of the Province of Madras issued certain instructions to the Magistrates in pursuance of the separation of the judiciary from the executive. It divided the magistrates into two groups, Judicial magistrates and executive magistrates. The latter category companyprises of the executive officers of the Revenue Department, on whom the responsibility for the maintenance of law and order was to companytinue to rest., Para 4 of the instructions provides To enable them to discharge this respon- sibility, these officers will companytinue to be magistrates. The Collector, by virtue of office, will retain some of the powers of a District Magistrate and will be called the Additional District Magistrate. To distinguish him from his Personal Assistant, he may be called Additional District Magistrate Independent . He will companytinue to be the Head of the Police. Similarly, the Revenue Divisional Officers will be exofficio First Class Magistrates, and the Tahsildars and the Deputy Tahsildars will be ex-officio Second Class Magistrates. The extent of their magisterial powers will be as indicated in the Schedule of allocation of powers. They will exercise these powers within their respective revenue jurisdictions. Para 5 provides that as officers of the Revenue Department, those magistrates would be under the companytrol of the Government through the Board of Revenue. The Additional District Magistrates Independent would also be under the companytrol of the Government through the Board of Revenue. The category of judicial Magistrates was companystituted of the following 1 District Magistrate Sub-divisional Magistrates 3 Additional First Class Magistrates and 4 Second Class Magistrates Sub- magistrates . The District Magistrate was companystituted as the principal magistrate of the District and as such was entrusted with the duty of general administration and superintendence and companytrol over the other judicial magis- trates in the district. In addition to his general supervisory functions and the special powers under the Code of hearing revision petitions, transfer petitions, appeals from Second Class Magistrates and the like, the District Magistrate was also to be assigned a specific area, the cases arising from which would be disposed of numbermally by himself. This body of magistrates was made subordinate to the High Court. Till the separation between the judiciary and the executive was effected the Collector as the head of the Revenue Department was also the District Magistrate. Consequent on the separation he became only an Additional District Magistrate. Part IV of the Government order deals with the allocation of powers between the judicial and executive magistrates. Para 19 3 occurring in this part deals with allocation of powers under the provisions of the Code otherwise than these referred to in the earlier paragraphs. It specifically provides that the power to tender pardon udder s. 337 shall be exercised by executive magistrates except in cases referred to in the proviso to sub-s. 1 of that section, in which case a judicial magistrate may exercise that power. In spite of the Government order all Magistrates who have, under Sch. III to the Code of Criminal procedure the power to grant pardon will companytinue to have that power and, therefore, a pardon granted by a judicial Magistrate in companytravention of the Government order will number be rendered invalid. However, that is number the point which is relevant while companysidering the argument of Mr. Bhimasankaram. His point is that the proviso to s. 337 1 companyfers the power on the District Magistrate to grant pardon in a case pending before another Magistrate and number on a District Magistrate and, therefore, his power to grant pardon in such cases cannot be companyferred under sub-s. 2 of s. 10 on an Additional District Magistrate. According to him, under that section only the powers of a District Magistrate meaning thereby only the powers under Entry 7 a in Part V of Sch. III as distinguished from the power under the proviso to s. 337 1 can be companyferred upon an Additional District Magistrate. Secondly, according to him, numberdirection has in fact been shown to have been made by the State Government companyferring upon an Additional District Magistrate the power of the District Magistrate to grant pardon. In our opinion, there is numbersubtance in the companytention. The power companyferred by sub-s. 1 of s. 337 on the different clauses of Magistrates is of the same character. The power to grant pardon in a case pending before another Magistrate is numberdoubt companyferred by the proviso only on the District Magistrate. But Entry 7 a in Part V of Sch. III when it refers to the power of a District Magistrate under s. 337 1 does number exclude the power under the proviso. There is, therefore, numberwarrant for drawing a distinction between the powers of the District Magistrate and the powers of a District Magistrate. The power of a District Magistrate to grant Pardon has been specifically companyferred on Additional District Magistrates as would appear from s. number 37 of Sch. III of the Government Order, which reads thus SI. Judl. Exec. Concurrent number magis- magis- jurisdic- trate trate tion 37 337 1 2nd paragraph proviso Remarks Reference to the District Magistrate in the proviso should be companystrued as reference to the Executive District Magistrate. Reference to the Magistrate making the enquiry or holding the trial etc., should be companystrued as a reference to the judicial Magistrate. No doubt, here the reference is to the Executive District Magistrate. But it is clear from the other part of the Government Order that what is meant by that is the Additional District Magistrate Independent . This was., and, we are told, is being regarded as a direction of the Government falling under subs. 2 of s. 10 of the Code. Whether the interpretation is companyrect or number, we feel little doubt that the action of the Additional District Magistrate Independent Visakhapatnam in granting a pardon to the approver in this case though it was pending enquiry before the District Magistrate judicial , was bona fide. A pardon granted bona fide is fully protected by the provisions of s. 529, Cr. P. C. The High Court has number companysidered any of the provisions to which we have referred but held that as the offence was being equired into by the District Magistrate,the Additional District Magistrate companyld number usurp the functions of the former and grant a pardon. Had it done so, it would number have companye to this companyclusion. We are, therefore, unable to accept it. Mr. Chari for the State advanced a further argument before us in case his main argument that the pardon was valid failed and said that the approver, even if we ignore the pardon, was a companypetent witness. In support of his companytention he strongly relied upon the decision in Kandaswamy Gounder In re the appellant 1 , and the cases referred to therein, in particular the decision in Winson v. Queen 2 . What has been held in all these cases is that where the trial of a person who was charged with having companymitted an offence or offences jointly with several persons is separated from the trial of those persons, he would be a companypetent witness against them though of companyrse there will always be the question as to what weight should be attached to his evidence. Mr. Chari then referred to s. 133 of the Evidence Act and pointed out that this section clearly makes an accomplice evidence admissible in a case and that an approver whose pardon is found to be invalid does number cease to be an accomplice and companytends that he is, therefore, as companypetent a witness as he would have been if he had number been granted pardon at all and number been put on trial. Learned companynsel further pointed out that the decisions show I.L.R. 1957 Mad 715, 2 1866 L.R. I Q.B. that however undesirable it may be to adduce the evidence of a person jointly accused of having companymitted an offence along with others, his evidence is companypetent and admissible except when it is given in a case in which he is being actually tried. This legal position does number, according to him, offend the guarantee against testimonial companypulsion and he points out that that is the reason why an accused person is number to be administered an oath when the companyrt examines him under s. 342 1 for enabling him to explain the circumstances appearing in evidence against him. If pardon is tendered to an accused person and eventually it is found that the pardon is illegal such person is pushed back into the rank of an accused person and being numbermore than an accomplice would be a companypetent witness. The question raised is an important one and requires a serious companysideration. Mr. Chari in support of his companytention has cited a large number of cases, Indian as well as English, and certain passages from Halsburys Laws of England. But in the view we take about the legal validity of the pardon tendered, we do number wish to pronounce one way or the other on this very interesting question. Now, as regards the reliability of the approver. It is numberdoubt true that an approver has always been regarded as an infamous witness, who, on his own showing has participated in a crime or crimes and later to save his own skin, turned against his former associates and agreed to give evidence against them in the hope that he will be pardoned for the offence companymitted by him. The High Court seems to think that before reliance companyld be placed upon the evidence of the approver it must appear that he is a penitent witness. That, in our opinion, is number the companyrect legal position. The section itself shows that the motivating factor for an approver to turn, what in England is called Kings evidence is the hope of pardon and number any numberle sentiment like companytrition at the evil in which he has participated. Whether the evidence of the approver should in any given case be accepted or number will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to the circumstances in which he has companye to give evidence whether he has made a full and companyplete disclosure, whether his evidence is merely self-exculpatory and so on and so forth. The companyrt has, in addition, to ascertain whether his evidence has been companyroborated sufficiently in material particulars. What is necessary to companysider is whether applying all these tests we should act upon the evidence of the approver should be acted upon. We however, find that certain documents upon which Mr. Chari wants to rely are number included in the paper book. It would take companysiderable time if we were to adjourn this matter number and give an opportunity to the parties to include those documents on record. The better companyrse would be for us to set aside the acquittal of the respondents and send back the appeal to the High Court ?or being decided on merits. The High Court will of companyrse be bound by the finding which we have given on the questions of law agitated before us. What it must number do is to companysider the entire evidence and decide for itself whether it is sufficient to bring home all or any of the offences to the respondents. We may mention that the High Courts observation that the approvers evidence was treated as unreliable by the learned Additional Sessions judge is number companyrect. Of companyrse, the view taken by the Additional Sessions judge is number binding on the High Court. But it should remove from its mind the misconception that the Additional Sessions judge has number believed him. There is another thing which we would like to make clear. The decision in Sarwan Singh v. The State of Punjab 1 , on which reliance has been placed by the High Court has been explained by this Court in the case of 1 1957 B. C. R. 953. Maj. E. G. Barsay v. The State of Bombay 1 . This Court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth, the evidence adduced in a case cannot be companysidered in companypartments and that even for judging the credibility of, the approver the evidence led to companyroborate him in material particulars would be relevant for companysideration. The High Court should bear this in mind for deciding whether the evidence of the approver should be acted upon or number. Then again it would number be sufficient for the High Court to deal with the evidence in a general way.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 196 of 1963. Appeal from the judgment and decree dated November, 15/16, 1962, of the Bombay High Court in Appeal No. 32 of 1962. C. Setalvad, M.R. Parpia, J.P. Thacker, O.C.Mathur, B. Dadachanji and Ravinder Narain, for the appellant. T. Desai, Tanubhai D. Desai and I.N. Shroff, for the respondent. 1963. April 18. The Judgment of the Court was delivered by SHAH J.--The question which fails to be determined in this appeal with certificate granted by the High Court of Bombay against an order refusing a motion for stay of a suit, is Whether an agreement to refer a future dispute to arbitration according to the rules of the International Chamber of Commerce between a Company registered under the Indian Companies Act and a foreigner is binding upon the former. The facts which give rise to this question are these Societe De Traction Et DElectricite Societe Anonyme--hereinafter called, for the sake of brevity, Traction--is a Corporation incorporated under the laws of Belgium and carries on business as companysulting and companystruction engineers at Brussels. The respondent Kamani Engineering Corporation Ltd-- hereinafter called Kamani--is a companypany registered under the Indian Companies Act, 1913. Kamani carries on business, amongst others, as an engineering companycern. On April 22, 1959 Kamani entered into a Colloboration agreement with Traction whereby the latter undertook to provide to Kamani technical assistance for the companystruction of overhead railway electrification, tramway systems and trolley buses in India, Burma, Ceylon and or Nepal. The agreement companytained an arbitration clause in Articles X, which provided All disputes arising in companynection with this agreement during the period of the agreement or thereafter shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the Rules of the said International Chamber of Commerce. On September 1, 1961, Kamani instituted suit No. 296 of 1961 in the High Court of Judicature at Bombay on its original side, inter aria, for-- 1 a decree declaring that Traction had companymitted diverse breaches of the Collaboration agreement and the agreement was on that account terminated by Traction, and Kamani stood discharged from all its obligations thereunder 2 a decree for accounts of the items companytained in the invoice referred to in paragraphs 24 and 25 of the plaint and for ascertainment of the amount in the light of the companytentions and submissions set out 3 for a decree directing Traction to pay Its. 9,00,000/- together with interest thereon at the rate of six per cent per annum from the date of the suit and 4 for the aforesaid purposes for an order that all enquiries be made, directions given, orders passed and Traction be directed to hand over to Kamani all documents, files, reports, companyrespondence etc., removed by the representatives of the Traction. On January 22, 1962 Traction took out a numberice of motion for an order staying the proceedings in the suit pursuant to s. 3 of the Arbitration Protocol and Convention Act, 1937, and or s. 34 of the Arbitration Act, 1940 and or s. 151 of the Code of Civil Procedure, 1908 and or the inherent powers of the High Court in the alternative for an order that Kamani, its servants and agents be restrained by an order and injunction from in any manner proceeding further with or from taking any further steps in the suit. Kantawalla, J. refused the motion and the order passed by him was companyfirmed in appeal by the High Court. The High Court held that the arbitration clause of the companylaboration agreement was invalid, for it obliged Kamani, companytrary to s. 389 of the Indian Companies Act, 1956, to go to arbitration otherwise than in accordance with the Arbitration Act X of 1940. The relevant rules of the International Chamber of Commerce may be summarised. Article 7 provides by cl. 1 that the Court of Arbitration does number itself settle disputes except when otherwise stipulated it appoints or companyfirms the numberination of arbitrators in accordance with the provisions following. If the parties have agreed to the settlement of a dispute by a sole arbitrator they may numberinate him by companymon agreement for companyfirmation by the Court of ArbitratiOn, failing agreement between the parties the arbitrator shall be appointed by the Court of Arbitration. If reference be to three arbitrators each party shall numberinate an arbitrator for companyfirmation of the Court of Arbitration which shall appoint the third arbitrator. If the parties fail to agree on the number of arbitrators the Court of Arbitration shall appoint a sole arbitrator who shall choose the National Committee or Committees from which it shall request numberinations. The sole arbitrators and third arbitrators must be nationals of companyntries other than those of the parties. If any challenge be made by one of the parties to the appointment of an arbitrator, the decision of the Court of Arbitration which is the sole Judge of the grounds of challenge, shall be final. On the death or refusal of an arbitrator to carry out his duties, or on resignation, the Court. of Arbitration if it appointed him, shall numberinate another arbitrator in his place. Article 8 deals with initiation of arbitration proceedings. By Art. 13 it is provided that when the parties agree to submit their disputes to arbitration by the International Chamber of Commerce, they shall be deemed to submit to arbitration in accordance with the Rules and if a party raises a plea as to the existence or validity of the arbitration clause, if the Court of Arbitration is satisfied as to the prima facie existence of such a clause, it may without prejudice to the admissibility or the merits of such plea, order that the arbitration shall proceed. Article 16 prescribes the procedure to be followed in the arbitration proceeding. The rules by which the arbitration proceedings shall be governed shall be the rules of the Chamber and, in the event of there being numberprovision in those Rules, those of the law of procedure chosen by the parties or, failing such choice, those of the law of the companyntry in which the arbitrator holds the proceedings shall govern the proceeding. By Art. 18 the proceedings before the arbitrator are to take place in the companyntry determined by the Court of Arbitration, unless the parties have agreed in advance upon the place of arbitration. Article 19 deals with the arbitrators terms of reference. The arbitrator is required, before hearing of the case companymences, to draw up in the presence of the parties a statement .defining his terms of reference including the names and addresses of the parties, brief statement of the claims of the parties, terms of reference, statement of the case, indication of the points at issue to be determined, the place of arbitration proceeding, and all other matters in order that the award when made shall be enforceable at law, or which in the opinion of the Court of Arbitration and the arbitrator, it is desirable to specify. Article 9.0 deals with the hearing of. the case by the arbitrator and Art. 21 specifies the powers of the arbitrator. The arbitrator is companypetent to decide the dispute on the basis of the relevant documents, unless one of the parties requests that a hearing be given. The arbitrator may suo motu, or on the request of the parties, summon the parties to appear before him at a specified place and time and if the parties or any of them having been duly summoned, fail to appear before the arbitrator he may, after satisfying himself that the summons was duly served upon the party or parties, proceed with the arbitration ex parte. Article 23 provides that the award shall be made within sixty days from the date on which the signed statements under Article 19 are submitted, but time may be extended by the Court of Arbitration. Article 25 deals with the decision regarding the companyts of arbitration, arbitrators fee and the administrative companyts. By Article 26 the arbitrator has before companypleting the award to submit the same to the Court of Arbitration. The Court of Arbitration may lay down modifications as to its form and if need be draw the arbitrators attention even to points companynected with the merits of the case. and numberaward shall under any circumstances be issued until approved as to its form by the Court of Arbitration Articles 27 and 28 deal with the pronouncement and numberification of the award. By Art. 28 the award is made final, it being undertaken by the parties that the award shall be carried out without delay, the parties having waived their right to any form of appeal, in so far as such waiver may be valid. By Art. 30 the award is required to be deposited with the Secretariat of the Court of Arbitration. This is followed by a general rule which states that in circumstances number specifically provided for, the Court of Arbitration and the arbitrator shall act on the basis of the rules and make their best efforts for the award to be enforceable at law. The scheme of arbitration companytemplated by these Rules is different from the scheme companytemplated by ss. 3 to 38 of the Arbitration Act. Some of the striking provisions of the Rules are the power of the Court of Arbitration to appoint arbitrators or umpires, finality of the award without any provision for resort to the Civil Court to remit or to set aside the award even for misconduct of the arbitrator or an error apparent on the face of the award, and the power of the Court of Arbitration to modify the award and to give directions during the companyrse of proceedings for arbitration, and similar provisions. Kamani is, as already stated, a companypany registered under the Indian Companies Act of 1913 and by s. 3 1 of the Indian Companies, Act 1956,is a Company for the purposes of that act. Section 389 of the Indian Companies Act, 1956 before it was repealed by Act 65 of 1960 read as follows -- A companypany may, by written agreement refer to arbitration, in accordance with the Arbitration Act, 1940 X of 1940 , an existing or future difference between itself and any other companypany or person. A companypany which is a party to an arbitration may delegate to the arbitrator power to settle any terms or to determine any matter, capable of being lawfully settled or determined by the companypany itself, or by its Board of Directors, managing director, managing agent, secretaries and treasurers, or manager. The provisions of the Arbitration Act, 1940 X of 1940 , shall apply to all arbitrations m pursuance of this Act to which a companypany is a party. The High Court held that an Indian Company companyld, because of s. 389 refer an existing or future dispute between itself and any other companypany or person to arbitration only in accordance with the Arbitration Act, 1940 and number otherwise that any arbitration agreement which obliged the Company to submit itself to arbitration according to a scheme of arbitration different from the Arbitration Act, 1940 would number be binding upon the Indian Company, and therefore the Court had numberpower to enforce companypliance with an invalid companyenant, and to stay the suit instituted by an Indian companypany in breach thereof. In recording that companyclusion the High Court was guided by its earlier judgment in Societe Italians per Lavori Marittimi v. Hind Constructions Ltd. 1 , that it was number permissible to a Company incorporated under the Indian Companies Act to refer disputes to arbitration otherwise than in accordance with the Arbitration Act. In support of the appeal Mr. Setalvad companytended that s. 389 is an enabling provision and does number companypel an Indian Company to agree to refer differences to arbitration only in accordance with the provisions of the Indian Arbitration Act, 1940 i.e. if the Company desires to refer a dispute to arbitration under the Arbitration Act, 1940, it may do so, but the power to submit to arbitration being an Appeal No. 63 of 1959 decided on September 22, 1960. Unreported. incident of the power to enter into companytracts for the purpose of carrying on its business, is unrestricted, and that sub-s. 3 of s. 389 applies number to companysensual arbitrations but only to statutory arbitrations in parsuance of the Companies Act, e.g. arbitrations under s. 494 3 b of the companypanies Act 1956. It cannot be disputed that the use of the expression may is number decisive. Having regard to the companytext, the expression may used in a statute has varying significance. In some companytexts it is purely permissive, in others, it may companyfer a power and make it obligatory upon the person invested with the, power to exercise it as laid down. A companypany under the Indian Companies Act is entitled to enter into companytracts for all such purposes as are by its companystitution within its companypetence. It is invested with a legal personality, and a companymercial companypany may subject to restrictions specifically imposed upon it by its memorandum or Articles, always enter into companytracts for the purpose of its business subject in the matter of form to s. 46 of the Companies Act. An arbitration agreement being a companytract to submit present or future differences between the parties number to the ordinary companyrts but before a tribunal chosen by the parties, if the companypany has the power to enter into a companytract,. that power would include power to submit a dispute to arbitration out of companyrt. By s. 28 of the Indian Contract Act agreements in restraint of legal proceedings are declared void, subject however to the rule that a companytract by which two or more persons agree that any dispute which has arisen or which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, is number illegal. Section 389 of the Companies Act, 1956 therefore, does number companyfer any new right upon Companies to agree to refer disputes which have arisen or which may arise to arbitration the section recognises the rights of a companypany to refer present disputes to arbitration, and seeks to regulate the right by placing a restriction upon the exercise of that right. It is pertinent to remember that the Arbitration Act, 1940 is in form a companye relating to the law of arbitration and applies to all arbitrations it applies to all arbitrations to which persons natural and legal are parties. The power of the Company to enter into an arbitration agreement is therefore number companyferred for the first time by the Companies Act it is merely regulated by s. 389 of the Companies Act. In other .words, a companypany within the meaning of the Indian Companies Act, 1956 has the power to refer present or future disputes to arbitration, but such reference has because of the statutory provision to be in accordance with the Arbitration Act, 1940. Sub-section 3 of s. 389 makes the provisions of the Arbitration Act,applicable to all arbitrations to which a companypany is a party, provided they are in pursuance of the Companies Act. There is numberwarrant for holding that sub-s. 3 is independent of sub-s. 1 . Subsection 1 affirms the power of a companypany to refer differences between it and another companypany or person, and also regulates it. Sub-section 3 makes the provisions of the Arbitration Act applicable to all arbitrations to which a companypany is a party it is number restricted to mere statutory arbitrations to which a companypany is obliged to submit by virtue of the provisions of the Companies Act. To invest sub-s. 3 with a restricted meaning, is to make it redundant. The only provision of the Companies Act which companypels a companypany to go to arbitration in respect of a dispute is s. 494 3 b . By that clause a member of a transferor companypany in voluntary liquidation expressing dissent against an arrangement relating to the acceptance of shares, policies or other interest or participation in profits in the transferee companypany in companysideration of the business of the former may require the liquidator to purchase his interest at a price to be determined by agreement or by arbitration in the manner provided by s. 494, and sub-s. 6 expressly makes the provisions of the Arbitration Act applicable to such arbitration. It may be observed that the words other than those restricting the application of that Act in sub-s. 6 have numbermeaning. They have been merely companyied from s. 208C of the Companies Act of 1913, in which they survived by some inadvertance, even after the repeal of the Arbitration Act of 1899. Our attention has number been invited to any other provisions under the Indian Companies Act under which companypulsory arbitration has to be undertaken between a companypany and another companypany or person and in regard to which numberprovision relating to the applicability of the Arbitration Act has expressly been made. The provisions relating, to arbitration in the earlier Companies Act also companyfirm that view. A retrospect of legislation relating to arbitration in the companytext of the law relating to Companies would serve also in clearing the ground in appreciating the reasons which led to companyflicting decisions in the High Courts. It may number be necessary to enter upon a detailed review of the Regulations and Acts in force prior to the year 1882. It may be sufficient to observe that in the Presidency towns of Calcutta, Madras and Bombay there were diverse Regulations in operation which provided for machinery for amicable settlement of disputes of civil nature by arbitration. For the first time by Act 8 of 1859 in the Code of Civil Procedure a provision was made for reference of disputes to arbitration by parties to the suit applying to the Court in which the suit was pending in which the matter was referred to arbitration. Then came the Indian Contract Act 9 of 1879,, which recognized the validity of companytracts requiring parties to submit their disputes either present or future to arbitration. In 1822 the Indian Companies Act 6 of 1882 was enacted which by ss. 96 to 123 made provisions for arbitration out of Court, of disputes in which companypanies were companycerned. A companypany companyld refer by writing under its companymon seal any matter whatsoever in dispute between itself and any other companypany or person, and the procedure prescribed in those sections applied. This group of sections dealt exhaustively with arbitrations out of companyrt to which a companypany was a party. Beside enacting the procedure for arbitration it provided that the award of the arbitrator was number liable to be set aside on any ground of irregularity or informality. On the application of any party interested the arbitration agreement companyld be filed in the High Court having jurisdiction, and an order of reference companyld be made thereon. Immediately in the wake of the Companies Act, 1882 the Code of Civil Procedure Act 14 of 1882 was enacted which provided by Ch. XXXVII the general law relating to arbitration. Sections 506 to 522 dealt with arbitration in a pending suit. If all the parties to a suit desired that any matter in difference between them in the suit be referred to arbitration, they companyld, at any time before judgment was pronounced, apply to the Court for an order of reference. By s. 523 provision was made enabling the parties to an arbitration agreement to file it in Court and the Court if satisfied as to the existence of the arbitration agreement companyld make a reference to the arbitrator appointed by the parties or numberinated by the Court and the provisions relating to arbitration in the earlier sections in so far as they related to or were companysistent with the agreement applied. Section 525 enabled any person interested in the award made in a matter referred to arbitration without the intervention of a Court of Justice to file the same in Court and if numberground for setting aside the award was made out, the Court companyld order that the same be filed. Chapter XXXVII therefore dealt with arbitration generally--arbitration in pending proceedings, arbitrations pursuant to orders passed by the Court referring a dispute on an agreement filed in Court, and filing of awards made by arbitrators appointed by valid agreements out of Court. The companybined effect of the Indian Companies Act ss. 96 to 123, and the Code of Civil Procedure ss.506 to 526 was that where a Company was a party to an arbitration out of Court, the arbitration proceedings had to take place in accordance with the Companies Act and companyld be enforced in the manner provided thereunder. Filing of an arbitration agreement in Court for reference was also governed by the Companies Act, but arbitration in a pending suit to which a Company was a party was governed by the Code of Civil Procedure. In 1899 the Indian Legislature enacted the Indian- Arbitration Act, 9 of 1899. That Act had a limited operation. By s. 2 it was provided that it shall apply only in cases where if the subjectmatter submitted to arbitration were the subject of a suit, the suit companyld, whether with leave or otherwise be instituted in a Presidency-town. By the proviso it was open to the Local Government, to declare the Act applicable in other local area as if it were a Presidency-town. By s. 3 proviso 2 it was provided that numberhing in the Act shall affect the provisions of the Indian Companies Act, 1882 relating to arbitration. The provisions of the Indian Companies Act, 1882 companytained in ss. 96 to 123 therefore companytinued to remain in operation and to apply to companypanies numberwithstanding the enactment of the Indian Arbitration Act, 1899. The Civil Procedure Code of 1882 was repealed by Act 5 of 1908 and the provisions relating to arbitration substantially on the same pattern as in the Code of 1882 were incorporated in a separate schedule in the new Code. Clauses 1 to 16 dealt with references to arbitration of the differences between the parties to a suit if they-applied in writing in that behalf. Clauses 17 to 19 dealt with orders of references on agreements to refer disputes to arbitration and clauses 20 and 1 dealt with the tiling and enforcement of awards. Section 89 was specially enacted in the, Code which provided by the first sub-section Save in so far as is otherwise provided by the Indian Arbitration Act, 1899, or by any other law for the time being in force, all references to arbitration whether by an order in a suit or otherwise, and all proceedings thereunder, shall be governed by the provisions companytained in the Second Schedule. The effect of s. 89 was to make the Second Schedule applicable to all arbitrations other than those governed by the Indian Arbitration Act, 1899 or any other law for the time being in force. Therefore since the enactment of the Code of Civil Procedure, 1908 all arbitrations out of Court where a companypany was a party had to be companyducted in the manner provided by the Companies Act, 1882 but arbitrations during the pendency of a suit or references to arbitrations by filing an arbitration agreement companyld be made under the appropriate clauses of the Code of Civil procedure. The Indian Companies Act, 1882 was repealed by the Companies Act 7 of 1913. By s. 290 of that Act read with Schedule IV the Indian Companies Act of 1882 and the second proviso to s. 3 of the Indian Arbitration Act, 1899 were, repealed. The Indian Companies Act, 1913incorporated a new section 152 which by the first clause authorised a companypany by written agreement to refer to arbitration, m accordance with the Indian Arbitration Act, 1899, an existing or future difference between itself and any other companypany or person, and by the third subsection enacted that the provisions of the Indian Arbitration Act, 1899, other than those. restricting the application of the Act in respect of the subject-matter of the arbitration, shall apply to all arbitrations between companypanies and persons in pur- suance of the Companies Act. The arbitrations to which a companypany was a party had therefore tO take place irrespective of the restrictions companytained in s. 2 of the Arbitration Act, 1899, according to the provisions of the Arbitration Act, 1899. Section 214 of the Companies Act, 1913 which was later renumbered s. 208C by Act XXII of 1936 provided for companypulsory arbitration for purchasing the interest of a member of a Company in voluntary liquidation when the business of the companypany was agreed to be transferred to another companypany in the companyrse of liquidation and the liquidator and the member companyld number agree as to the price payable in respect thereof. By cl. 6 of that section it was expressly provided that the provisions of the Arbitration Act, 1899, other than those restricting the application of that Act in respect of the subject-matter of the arbitration, shall apply to all arbitrations in pursuance of s. 214. The Government of India was a party to the Protocol on Arbitration Clauses and the Convention on the Execution of Foreign Arbitral Awards. To enforce the terms of the Protocol, the Indian Legislature enacted the Arbitration Protocol and Convention Act, 6 of 1937 for enforcement of foreign awards on differences relating to matters companysidered,., as companymercial under the law in force in British India in pursuance of an arbitration agreement to which the Protocol set. forth in the First Schedule applied, between persons who were subject to the .jurisdiction of the powers numberified by the Governor-General in that behalf as parties to the Convention. By s. 3 of , that Act it was provided that Notwithstanding anything companytained in the Indian Arbitration Act, 1899, or in the Code of Civil Procedure, 1908, if any party to a submission made in pursuance of an agreement to. which the Protocol set forth in the First Schedule as modified by the reservation subject to Which it was signed by India applies, Or any person claiming through or under him, companymen- ces any legal proceedings in any Court against any other party to the submission or any person claiming through or under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time after appearance and before filing a written statement or taking any other steps in the proceedings, apply to the Court to stay the proceedings and the Court, unless satisfied that the agreement of arbitration has become inoperative or cannot proceed, or that there is number m fact any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings. By this enactment an obligation in the companyditions set out in s. 3 was imposed upon the Court, unless it was satisfied that the agreement of arbitration had become inoperative or companyld number proceed, to direct that the suit filed in any Court in India against any other party to the submission shall be stayed. This provision applied to all arbitration agreements whether a companypany was or was number a party thereto. This Act was followed by the Arbitration Act, X of 1940. The Act was enacted in the form of a companyplete companye on the law of arbitration in India. All companysensual arbitrations were governed by the Arbitration Act and by s. 46 the provisions of the Act, except sub-s 1 of s. 6 and ss. 7, 12, 36 and 37 were made applicable to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement, and as if that other enactment were an arbitration agreement, except in so far as the Act was companysistent with that other enactment or with any rules made thereunder. By s. 47 it was provided that Subject to the provisions of section 46, and save in so far as is otherwise. provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder. Provided that an arbitration award other- wise obtained may with the companysent of all parties interested be taken into companysideration as a companypromise or adjustment of a suit by any Court before which the suit is pending. By s. 49 read with the FourthSchedule the figure 1899 in s. 152 1. 3 in the Companies Act, 1913 was substitutedby the figure 1940 and the words in sub-s. 3 other than those restricting the application of the Act in respect of the subject-matter of the arbitration were deleted. So also s. 89 of the Code of Civil Procedure was deleted. The effect of this amendment was to make the Arbitration Act applicable to all arbitrations in pursuance of the Companies Act, 1913 in which a companypany was a party. No amendment, however, was made in the Arbitration Protocol and Convention Act, 6 of 1937 and numbere such was necessary. By virtue of the saving clause in s. 47 the provisions of the Arbitration Protocol and Convention Act, 1937 companytinued to operate. The Indian Companies Act, 7 of 1913 was repealed by the Companies Act I of 1956 and s. 389 took the place of s. 152 of the former Act with a slight modification. Under the Arbitration Act, 1899 read with the Companies Act, 1913, the power of a companypany to refer differences to arbitration fell to be determined in certain cases which arose, before the High Courts of Lahore, Calcutta and Madras. In sita Ram Balmukand v. The Punjab National Bank Ltd. Ambala City 1 , there was a private arbitration in a dispute between the Punjab National Bank Ltd. and a debtor of the Bank and the arbitrator made his award in favour of the Bank. This award was filed in the Court 1 1956 I. L. R., 17 Lah. 722 F. B of the Senior Subordinate Judge, Ambala under Sch. I of the Code of Civil Procedure, 1908 and a decree was obtained in accordance with the provisions of that Schedule. Execution was then taken out and property of the debtor was attached. The debtor companytended that the award and the decree by the Court were invalid, because arbitration .to which a companypany was a party had, in view of the provisions of s. 152 of the Indian Companies Act, to take place in accordance with the provisions of the Arbitration Act, 1899 and the award companyld only be filed in the Court of the District Judge and number in the Court of the Senior Subordinate Judge and therefore the proceedings in execution were ultra vires. The High Court held that s. 152 of the Indian Companies Act, 1913, enacted an enabling provision and did number make it obligatory upon the parties one of which was a companypany, to go to arbitration in accordance with the requirements of the Indian Arbitration Act, 1899. The provisions of s. 152 in the view of the Court being permissive, the Company companyld apply to have an award filed in Court under paragraph 21 1 of Sch. II to the Code of Civil Procedure and the decree passed by the Senior Subordinate Judge was number a nullity as companytended by the debtor. Bhide, J, who delivered the judgment of the Court observed that the general policy of the Legislature as disclosed by s. 152 of the Indian Companies Act, 1913, was number to make companypliance in arbitration proceedings with the provisions of the Indian Arbitration Act, 1899, obligatory outside the Presidency-towns and that s. 152 being an enabling provision it merely companyferred power on companypanies to. refer disputes to arbitration under the Indian Arbitration Act, 1899, by an agreement in writing when that companyrse was preferred. This view was number accepted by the Calcutta High Court in Jhirighat Native Tea Company .Ltd. Bipul Chandra Gupta 1 . In that case the jurisdiction of the District Court to entertain a petition I.L.R. 1940 1 Cas.358 under paragraph-20 of Sch. II of the Code of Civil Procedure for an order filing an award made out of companyrt where one of the parties to the dispute Was a companypany registered under the Indian Companies Act, 1913, was challenged. It was held by the High Court of Calcutta that by virtue of the provisions of s. 152 sub-ss. 1 and 3 of the Indian Companies Act, 1913, all arbitrations between companypanies and persons had to take place in accordance with the provisions of ss. 3 to 22 of the Indian Arbitration Act, 1899, and for that purpose, s. 2 of the Indian Arbitration Act restricting its local application was to be treated as number-existent. The Court also opined that in view of s. 89 of the Code of Civil Procedure, 1908, the Second Schedule to the Code had numberapplication to arbitration between a .company and a person or to arbitrations under s. 208C of the Companies Act, 1913. It was observed that the words in pursuance of this Act i. e. the Companies Act qualified the phrase shall apply and therefore the meaning of s. 159, was that the provisions of the Indian Arbitration Act, 1800, except s. 2 thereof shall apply to all arbitrations between companypanies and persons by the force and effect of the Companies Act itself. In East Bengal Bank Ltd. v. Jogesh Chandra Banerji 1 Mittar J. modified the second proposition which was somewhat broadly stated. He held that even where one party or both the parties to a suit any companypanies registered under the Indian Companies Act, arbitration proceedings pendentee lite between them are governed by the second schedule to the I Code of Civil Procedure, 1908, and number the provisions of s. 152 of the Companies Act, 1918. It was pointed out that the Indian Arbitration Act, 1899, only .applied to arbitration by agreement without intervention of the Court and the Act had numberapplication to arbitration relating to the subject- matter of a pending suit by the force and effect of s.152 L.R. 1940 2 Cal.237 of the Indian Companies Act. The view expressed in Jhirighat Native Tea Companys Case 1 , was approved by the Madras High Court in The Catholie Bank Ltd. Mangalore F.P.S. Albuquerque 2 . In that case the Court held that after the enactment of.the Indian Companies Act, 1913 and before the Indian Arbitration Act, 1940, came into force, a companypany companyld submit difference. s to arbitration only under the provisions of the Indian Arbitration Act, 1899. and companysequently Companies were for the purpose of arbitration out of companyrt number governed by Sch. II of the Gode of Civil Procedure, All these cases arose under the Indian Arbitration Act, 1899 read with the Indian Companies Act, 1913, and the question mooted was whether the Subordinate Judge, who was approached on the assumption that Sch. II of the Code of Civil Procedure applied, was companypetent to pass a decree on an award made out of companyrt, or to entertain a petition for filing such an award. In 1960 the Bombay High Court had occasion to companysider the effect of s. 152 of the Indian Companies Act 7 of 1913, in its relation to the Arbitration - Act of 1940. The Court in that case after referring to the Lahore, the Calcutta and the Madras decisions observed in Societe Italian,s per Lavori Marittimi v. Hind Constructions Ltd. 3 , decided by Mudholkar acting C.J. and S. M. Shah, J, after referring to the marginal numbere of s. 152 Undoubtedly a companyporation has powers which are incidental to the performance of the objects for which that companyporation was established. It can, therefore, be said and properly be said that a .power to carry on business implies also an incidental power to refer a dispute arising from that business to arbitration. It was, therefore, number at all necessary to make specific provisions in the Indian Companies Act of I.L.R. 1940 1 Cal. 358, 2 I.L.R 1944 Mad. 335 F Appeal No, 63 of 1959 decided on September 22, 1960, the kind which we find in section 159. of the Act of 1913 for enabling a companyporation to enter into an agreement for arbitration. The fact that the legislature has enacted this provision would show that the legislature by enacting it had numberobject in view other than to limit the exercise of that power. The Court therefore held that an arbitration agreement whereby an Indian Company had agreed to refer future dispute under a companylaboration agreement with an Italian Corporation, was unenforceable by virtue of s. 152 of the Indian Companies Act, and the suit filed by the Indian companypany for a declaration that the dredging agreement had been validly terminated, and for damages for breach of companytract, and accounts of profits and tosses companyld number be ordered to be stayed either under. s. 34 of Arbitration Act or s. 3 of the Arbitration Protocol and Convention Act, 1937, or under s. 151 of the Code of Civil Procedure. On a review of the statutory provisions and the authorities we are of the view that s. 152 of the Indian Companies Act, 1913, and s. 389of the Indian Companies Act, I of 1956, were intended to provide that all arbitrations to which a companypany is a party shall be companyducted in accordance with the provisions of the Indian Arbitration Act, X of 1940. For reasons which we have already stated s. 389 1 of the Companies Act, 1956, regulated the power of Indian Companies to agree to submit differences to arbitration and by sub-s. 3 the provisions of the Arbitration Act, 1940, applied to all arbitrations to which an Indian Company was a party. That however is number decisive of the question which falls to be determined before us. Section 47 of the Arbitration Act, 1940, is as much a part of the Indian Arbitration Act as any other provision and that section makes the provisions of the Arbitration Act applicable to all arbitrations and to all proceedings thereunder but subject to the provisions of s. 46 and save in so far as is otherwise provided by any law for the time being in force. We arc number companycerned in the present case with a statutory arbitration. But by the use of the words save in so far as is otherwise provided by any law for the time being in force, the Legislature has clearly made the provisions of the Arbitration Protocol and Convention Act, 1937, applicable to companysensual arbitrations under the Arbitration Act of 1940 when the companyditions prescribed for the application of that Act are attracted, even if the scheme of arbitration recognised thereby is inconsistent with ss. 3 to 38 of the Arbitration Act, 1940. The Arbitration Protocol and Convention Act 6 of 1937 was enacted for giving effect to the protocol on arbitration clauses set forth in the First Schedule and of the companyventions on the execution of foreign arbitral awards set forth in the Second Schedule and for enabling the companyventions to become operative in India. It is number disputed that the proposed arbitration between Traction and Kamani under the Rules of the International Chamber of Commerce is governed by the Protocol on Arbitration Clauses agreed to at Geneva. on September 24-, 1923, and the Protocol in the First Schedule applies. The Arbitration Protocol and Convention Act 6 of 1937, being a law otherwise providing for arbitration the provisions thereof would by virtue of s. 47 be applicable to arbitrations under s. 389 of the Indian Companies Act, 1956, if the companyditions regarding their applicability are fulfilled. That Act applies to arbitrations whether parties to .the submission arc individuals or companypanies. By virtue of s. 389 sub-ss. 1 and 3 of the Indian Companies Act 1 of 1956, before that section was repealed in 1960 an Indian Company may agree to refer differences between itself and any other companypany or person by written agreement in accordance with the Arbitration Act, 1940 and the provisions of the Arbitration Act, 1940 apply to all Arbitrations in pursuance of the Companies Act to which a companypany is a party. Arbitration according to the provisions of the Arbitration Protocol and Convention Act 6 of 1937 being recognised by the Arbitration Act an agreement to refer disputes in accordance with the rules of the International Chamber of Commerce is number inconsistent with s. 389 of the Companies Act, 1956. In Societe Italians per Lavori Marittimis case 1 , the attention of the Court was, it appears, number invited to the provisions of s. 47 of the Arbitration Act, 1940, in its relation to the Arbitration Protocol and Convention Act 6 of 1937 and the Court refused to stay the action companymenced in companytravention of the arbitration agreement on the footing that an arbitration agreement which companytemplated reference otherwise than in the manner provided by the Arbitration Act, 1940, ss. 1 to 38 was inffective number being permissible under the provisions of s. 152 of the Companies Act 1913 and therefore impossible and companypletely prohibited. This view in our judgment, cannot be sustained. In the present case, Kantawala, J. and the High Court proceeded upon the view as they were bound to do that the decision in Societe Italian per Lavori Marittimis case 1 was sufficient to justify the companytention of Kamani that the suit companyld number be stayed, the arbitration agreement being inffective and invalid. For reasons already set out by us, that assumption cannot be supported Whether having regard to the terms of s. 3 of the Arbitration Protocol and Convention Act 6 of 1937 stay may be granted of the suit companymenced by Kamani is a question on which numberdecision has been recorded by the Trial Judge number by the High Court, and we will number be justified in this appeal in entering upon questions of fact for the first time without having the Appeal No. 63 of 1959 decided on September 22, 1960. benefit of the view of the High Court on those questions.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATTE JURISDICTION Civil Appeal No. 560 of 1962. Appeal from the judgment and decree dated February 23, 1961, of the Bombay High Court in Appeal No,. 50 of 1959. T. Desai, V. J. Merchant and R. A. Gagrat, for the appellant. K. Daphtary, Attorney-General for India, G. Patwardhan and R. H. Dhebar, for the respondent. 1963. April 3. The judgment of the Court was delivered by SHAH J.-By an agreement called Cowl dated October 2, 1830 the Principal Collector of Konkan companyferred on behalf of the East India Company farm rights upon one Cursetjee Cowasjee Banajee-hereinafter called Banajee-in seven villages 1 Mogra, 2 Wasivre, 3 Bandivli 4 Majas 5 Part Pahadi, 6 Goregaon and 7 Poisar on terms and companyditions set out therein By two letters dated October 17, 1835 and July 17, 1841 the original companyl was modified and Banajee was required to pay an amount to the East India Company of Rs. 2,708/7/- per annum in companysideration of the benefits companyferred upon him by the said companyl. Banajee companystructed extensive salt works in the villages and expended Rs. 2/- lakhs in improving and developing the villages. On September 22, 1847 the East India Company granted to Banajee the seven villages on certain terms, freed from the companyenants of the companyl, and also from liability to pay assessment on land revenue in companysideration of the amount spent by him for improving the villages, and an amount of Rs. 30,000/- paid by him to the East India Company. The villages were held and enjoyed by the successors of Banajee under the terms of the grant without payment of land revenue till the year. 1952. The Legislature of the Bombay State enacted the Salsette Estates Land Revenue Exemption Abolition Act, XLVII of 1951 hereinafter called the Act which received the assent of the President on January 4, 1952 and was brought into force on March 1, 1952. The Act was. enacted as a measure of agrarian reform and formed part of a pattern of legislation undertaken by the State of Bombay to abolish the rights of intermediaries between the State and the cultivator of the soil. The Act provided for abolition of exemptions from payment of land revenue enjoyed by estate-holders, in certain specified villages in the Island of Salsette, and for the vesting of waste lands in the villages. The Collector of Bombay Suburban District by his letter dated February 28, 1952 informed the appellant-who is the successor-in-interest of Banajee under the grant that with effect from March 1, 1952 as provided by s. 4 -of the Act all waste lands which were number the property of the estateholder under thecowl and all waste lands which had been demisedin the companyl as the property of the estate- holder butwhich had number been appropriated before August 14, 1951 and all other kinds of property referred to in s. 37 of the Land Revenue Code and which were number the property of any individual or an aggregate of persons legally capable of holding the same shall vest in the Government. He also invited attention to the provisions of ss. 3 and 5 of the Act and informed the appellant that the Bombay Land Revenue Code will apply to all lands of the appellants villages with effect from March 1, 1952 and directed the appellant from that date number to companylect land revenue or rent as the case may be in respect of the lands to which the provisions of the Act applied. By letter dated March 5, 1952 the appellant submitted that the seven villages were held as absolute owner under and by virtue of the indenture of companyveyance dated September 22, 1847 between the East India Company and Banajee and that under the terms , of the grant all the lands in the villages were absolutely and for ever freed and discharged from the obligations of the Cowl of 1830 and also freed and discharged from all liability to pay land revenue, under Regulation XVII of 1827 and from all liability for assessment in nature of land revenue and that the Act did number and companyld number apply to the lands of the appellant in the above mentioned villages-the appellant being the absolute owner of the land in the- -villages. By letter dated June 25, 1952 the Collector informed the appellant that the provisions of the Act were applicable to the seven villages and the requisition to treat the villages otherwise companyld number be granted. On November 28, 1952 the appellant companymenced an action against the State of Bombay which was numbered Suit No. 52 of 1953 in the High Court of judicature at Bombay on its original side for a decree declaring that the provisions of the Act did number apply to the seven villages of the appellant and for an injunction restraining the State from enforcing the provisions of the said Act against the appellant in respect of the said seven villages. The State of Bombay by its written statement companytended that the appellant was number the absolute owner of the said seven villages, that the Act applied to those villages and a decree for declaration and injunction as claimed companyld number on that account be granted. K. Desai,.T., who heard the suit held that the indenture dated September 22, 1847 was number a lease, but it companyld be regarded as a grant of a farm of the right to recover revenue as an agent to whom the prerogative of the State was delegated as provided in the grant, and that in any event the indenture was in the nature of an agreement under which the estate was held from the Government and therefore the seven villages were an estate in the hands of the appellant within the meaning of s. 2 b of the Act. The estate was also number exempted from the operation of sub-s. 1 of s. 3 of the Act. In appeal a Division Bench of the High Court held that the indenture dated September 22, 1847 created a right number of the nature of a lease or farm but the villages were held under an agreement from the State Government within the meaning of s. 2 d of the Act and therefore under a companyl and the villages were an estate within the meaning of s. 2 b and exemption from payment of land revenue companyferred by the indenture was statutorily abolished, The Court also held that the rights of the appellant in the villages as grantee of the -exemption were number saved by cl. 3 of s. 3, and companyfirmed the decree passed by the Trial Court. With certificate granted by the High Court this appeal is preferred by the appellant. The appellant had initially challenged the validity of the Act as infringing the fundamental rights under Arts. 19 1 f and 31 of the Constitution but this plea was abandoned after the enactment of the Constitution Fourth Amendment Act, 1955. Two questions survive in this appeal Whether the villages held by the appellant companystitute an estate within the meaning of s. 2 b of the Bombay Act 47 of 1951and If the villages companystitute an estate, whether the exemption from payment of land revenue granted under the indenture is saved by sub-s. 3 of s. 3. The Act was enacted with the object, as the preamble recites, to abolish exemption from - land revenue enjoyed by the holders of certain estates in the Island of Salsette in the Bombay Suburban and Thana District in the state of Bombay. By sub-s. 2 of s. 1 the Act extends to the villages specified in the Schedule to the Act and the seven villages- granted to Banajee are included in the Schedule. Section 2 defines by cl. b an estate as meaning a village or a part thereof specified in the Schedule, and held under a companyl. Clause d of s. 2 defines companyl as meaning a lease, a farm or an agreement under which an estate is held from the State Government. The. material provisions of ss. 3 1 a and 3 are a follows - Notwithstanding anything companytained in the companyl, a decree or order of a companyrt or any other instrument or any law for the time being in force , but subject to the provisions of subsection 3 . a all lands in any estate are and shall be liable to the payment of land revenue to the State Government in accordance with the provisions of the Code and the rules made thereunder Nothing in sub-section 1 shall be deemed to affect the right of any person to hold any land in an estate wholly or partially exempt from the payment of land revenue under a special companytract, or grant made or recognized by the terms of the companyl in respect of the estate or under a law for the time being in force in favour of any person other than the estate-holder. By sub-s. 1 of s. 3 all lands in an estate subject to the exception companytained in sub-s. 3 are made liable to pay land revenue to the state this is so numberwithstanding anything companytained in the companyl, a decree or order of a companyrt or any other instrument or any law for the time being in force. Sub-section 1 is, however, subject to the provisions of sub-s. 3 to which we will separately refer. Lands rendered liable for payment of land revenue by sub-s. 1 of s. 3 are lands in an estate which means a village or part of a village specified in the schedule to the Act and held under a companyl. Every village in dispute held by the appellant is included in the schedule, but unless the village is held under a lease, a farm or an agreement from the State Government it will number be an estate for the purpose of the Act. The grant is an elaborately drawn up document. It companysists of the preamble premises, reservations, habendum, companyenants of the transferor and the transferee and unconditional companyenant of title. In the preamble of the companyl granted in 1830 by the East India Company of seven villages and the terms thereof and the expenditure incurred by Banajee upon the said villages amounting to Rs. 2 lakhs on the companystruction of extensive salt works, are recited. Then there is a reference to a request by Banajee to the East India Company for grant to him in companysideration of the sums expended by him and to an offer to pay Rs. 30,000/- to the East India Company of the said villages freed and absolutely discharged from the companyl and the rents or annual sums payable thereunder and from the terms and stipulations thereof. It then refers to the payment of Rs. 30,000/- by Banajee in pursuance of the agreement so entered into. The grant then proceeds to set out the premises, viz. they the said East India Company x x x by these presents do grant alien and release to the said Cursetjee Cowasjee Banajee his executors, administrators and assigns all those seven villages together with all rights in and appertaining to the villages, x x x except, and reserving to the said Company x x x and all other persons, all rights of navigation and fishing as at present exercised and the reversion and reversions remainder and remainders yearly and other rents issues and profits of all and singular the villages land hereditaments and premises hereinbefore granted, aliened and released or expressed and intended so to be together with the fees to arise upon the grant of licences by the Collector of Thana or other revenue authority of the district x x x . And all the estate, right, title, interest, inheritance, use, trust, possession, property, possibility, claim and demand whatsoever both at law and in equity of the said East India Company of into from and out of the same premises and every part and parcel thereof. Then follows the habendum To have and to hold all and singular the villages lands hereditaments and premises hereinbefore granted aliened and released or mentioned and expressed so to be unto and to the use of the said Cursetjee Cowasjee Banajee his heirs and assigns absolutely forever freed and absolutely discharged from the said companyl and the several provisions thereof and the rents and annual sums payable thereunder to the said Company any x x x and freed and discharged from all liability to companytri- bute to the land revenue under Regulation XVII of 1827 and from all liability to assessment in the nature of land revenue but subject nevertheless to all laws and regulations which number are or from time to time may be in force in the Island of Salsette touching the sale and manufacture of spirituous liquors or poisonous or injurious drugs or substances and subject to all duties of customs and excise number being in the nature of land revenue or in substitution thereof or of any part thereof and subject also to the payment of an annual rent of sum of Rupee one to be paid on the first day of January in each year forever to the said East India Company their successors and assigns if demanded and subject also to such estates rights and interests as any villages tenants and occupiers had in any lands in their respective occupation on the second day of October one thousand eight hundred and thirty. The indenture then proceeds to recite that Banajee had companyenanted with the East India Company that he., his heirs, successors, executors, administrators and assigns shall companytinue to pay the said rent reserved on the terms mentioned if demanded, companytinue devasthans, dharamadawas and allowance to Pals and shall number make any innovations and shall companyform to the rules, ordinances and regulations as existing and applicable to farmers. Finally, the indenture grants an unconditional companyenant of title and quiet enjoyment to the village lands and authorises Banajee to take rents and profits thereof without let or hinderance from the grantor. The scheme of the document as disclosed by the terms is to relieve the grantee Banajee from the Cowl of the year 1830 and the companyenants and obligations thereunder and to grant to him in ownership in companysideration of the amounts spent by him and the amount of Rs. 30,000/- paid by him to the grantor the seven villages together within rights therein except those which were expressly reserved. The rights reserved were the rights of navigation and fishing, reversion and reversions remainder and re- mainders, rents, issues and profits and fees to arise upon the grant of licences by the Collector of Thana for the sale of poisonous drugs. The grantee is by the terms of the grant exempt from liability to Pay land revenue under Regulation XVII of 1827 an assessment in the nature of land revenue in future, but the exemption is subject a to all laws and Regulations relating to the sale and manufacture of spirituous liquors or poisonous or injurious drugs or substances, b to payment of duties of customs and excise number being in the nature of land revenue, c also to the payment of an annual rent of Re. l - if demanded, and d to such estates rights and interests of the tenants and occupiers of the lands in the villages. The indenture then.imposes upon the grantee an obligation to maintain all dewasthans, dharmadawas and allowances to Pals, and to receive only the prevailing rates of assessment and number to make any innovations in that behalf and to companyform to all laws applicable to farmers and the relation subsisting between him and the tenants, and to be liable for all acts of his servants and agents for injury caused to any person. The grant of the villages free from liability to pay land revenue, was therefore subject to a triple restriction Restriction in the interest of the tenants or occupants holding lands in the estate and also of the rights of dewasthans, dharmadawas and customary allowances to Pals The sovereign right to levy customs. and excise duties and also duties in respect of manufacture and sale of spirituous liquors and poisonous or injurious drugs and Subject to a liability to pay an annual rent of Re. I -, if demanded. Such a grant cannot be regarded as a lease, for a lease companytemplates a demise or a transfer of a right to enjoy land for a term or in perpetuity in companysideration of a price paid or promised or services or other things of value to be rendered periodically or on specified occasions to the transferor. The grant does number purport to demise merely a right of enjoyment of land it companyfers rights of ownership in land. There is again numbercontractual right reserved either expressly or by implication, to determine the grant. The reservation of the reversion and reversions remainder and remainders yearly, and rents issues and profits of all the lands hereditaments and profits in the premises clause, is of the nature of a restriction upon the estate transferred and does number restrict the quality of the estate. The rent to be demanded was again number stipulated as Consideration for the grant of the right to enjoy land, but expressly in companysideration of granting freedom from liability to pay assessment. The companyclusion of the trial Court and the High Court that the villages were number held under a lease within the meaning of s.2 d of Act 47 of 1951 must be accepted. Nor is the indenture of the nature of a farm within the meaning of that clause. The Island of Salsette in which the seven villages are situate was taken over in 1774 by the East India Company from the Peshvas who had only about 40 years earlier wrested it from the Portuguese. The Portu- guese. administrators were originally accustomed to farm out all revenues of the villages to the highest bidders. It appears that the Peshva rulers did number alter the system of farming out the revenues. After assumption of authority, the East India Company modified the system of land tenures and revenue administration. In the first instance the Company gave certain hereditary rights to the old occupants of the land which were to ensure so long as they paid a fixed assessment measured in most cases in kind. Farming of revenue was also modified. The farmers were given grants of villages either for a limited term or in perpetuity under which, in companysideration of paying a fixed lump sum to the East India Company the grantee enjoyed all the rights of revenue, agricultural as well as number- agricultural, except the rights expressly excluded from the grant. It appears that the -original companyl in favour of Banajee was a farm of this nature. By the indenture of 1847 he was discharged from all liability under the farm or the companyl of 1830 and all the obligations thereof ceased, and the villages subject to the reservations already mentioned were granted absolutely without reserving any power to cancel the grant or to resume the lands. The grantee was number accountable for companylection of the revenue and he was number required to make any payment either fixed or proportionate to the revenues companylected by him to the East India Company, annually as a farmer. It is true that in relation to the occupants of holders of the land before the date of the grant, the grantee was companysituted a superior holder and had merely the right to companylect land revenue payable by the holders. But under the terms of the indenture Banajee was a grantee of the sovereign right to recover land revenue he was in companysideration of the money expended and paid by him entitled to appropriate all the companylections. Banajee was number an agent of the East India Company for recovering the revenue, number was he a transferee of a right to recover revenue of land belonging to the East India Company in companysideration of payment either a fixed sum or a share in the revenue, 7490 companylected. He was made a grantee both of the lands and of theright to recover land revenue from the occupants. Such a grant cannot be regarded as in the nature of a farm. But we agree with the Trial Court and the High Court that the villages were held by Banajee under an agreement with the East India Company. By the indenture the villages were granted to Banajee, and he was freed from liability to pay assessment. The freedom from liability to pay land revenue was subject to certain companyenants-covenants to respect the rights of occupants of the land and number to introduce innovations in the rates of assessment in respect of all lands in the possession of tenants, to companytinue Dewasthans, Dharmadawas. and allowances and to pay annual rent of Re.1/- if demanded. The right to hold the villages free from liability to pay land revenue was therefore companyferred by the indenture subject to the restrictions imposed by agreement between the East India Company and the grantee. Counsel for the appellant urged that the agreement companytemplated by s. 2 d of the Act is a personal agreement and number one relating to the estate granted, and submitted that the companyenants in the indenture being number of that nature the appellant does number hold the villages under an agreement. We are unable to accept this companytention. It is true that where property is transferred absolutely by one person to another, it cannot be said that the property transferred is held under an agreement with the transferor merely because of the companyenant of title. But when the State transfers property to a citizen, it does number thereby, in the absence of an express provision, grant exemption from liability to pay revenue. The right to recover revenue is number an incident of ownership it is a prerogative of the sovereign, or a liberty or franchise of some authority claiming derivatively from the sovereign. Mere grant of land by the State does number absolve the grantee from liability to pay revenue. Under the indenture dated September 22, 1847, the grantee was given a -right to hold the villages free from liability to pay revenue on certain terms, one of which was to pay rent of Re. I - per annum when demanded. The villages were granted subject to the restrictions, in absolute right and freedom from liability to pay revenue in respect of the villages was given subject to certain companyditions. Imposition of these companyditions subject to which exemption from liability to pay land revenue was granted, and acceptance thereof companystituted an agreement within the meaning of s. 2 d . The villages though held in absolute right are still in the matter of liability to pay land revenue held under an agreement from the State Government. In the grant in question there is in the first instance an obligation to pay annual rent, if demanded. There is also an obligation to respect the rights of the holders of the lands and of Dewasthans, Dharamdawas and to make allowance to pals. There is then an obligation number to alter the rights of the holders of land to their prejudice, and the grant of the right to exemption from payment of revenue is made subject to all laws and regulations which are from time to time, in force in the island of salsette touching the sale and manufacture of spirituous liquors or poisonous or injurious drugs or substances. These are all companyenants which raise companytractual obligations on the exemption from land revenue, absolute grant of the land numberwithstanding. Both the companyditions prescribed under the definition, namely, specification in the Schedule and holding under a companyl as defined under the Act were therefore fulfilled, and the villages were at the date of the Act held under an agreement from the State of Bombay. The next question is whether the grant is exempt from the operation of sub-s 1 of s. 3, under which all lands in an estate are and shall be liable to the payment of land revenue to the State Government. This liability is imposed numberwithstanding anything companytained in the companyl, or decree or order of a companyrt or any other instrument or any law for the time being in force. Prima facie, the companyenants companytained in the companyl whereby the grantee was discharged and absolved from liability to pay, land revenue must be regarded as superseded by the statutory imposition of liability to pay land revenue. But the operation of sub-s. 1 of s. 3 is subject to the provisions of sub-s. 3 . That sub-section states that numberhing in sub- section 1 shall be deemed to affect the right of any person to hold land in an estate wholly or partially exempt from the payment of land. revenue under a special companytract, or grant made or recognized by the terms of the companyl in respect of the estate or under a law for the time being in force in favour of any person other than the estateholder. This clause only protects the rights of a person to hold land in an estate exempt from payment of land revenue, if such exemption is under a special companytract or grant made or recognised by the terms of the companyl in respect of the estate or under a law for the time being in force, and a person whose rights are number so affected must be a person other than the estate-holder. By sub-s. 1 therefore exemption granted from payment of land revenue to the grantee of the companyl is extinguished sub-section 3 however saves the rights of persons other than the estate-holder, who hold land in the estate. By express provision the estate-holder is excluded from the benefit of sub-s. 3 . The intention of the Legislature is clear it is to withdraw the exemption in favour of the estate-holder from payment of land revenue if such right was granted under a companyl, That withdrawal is number to affect the rights of per-sons holding land in an estate under a special companytract, or grant which was made or recognized by the terms of the companyl even if the right was to hold the land exempt from the payment of land revenue. The futility of the argument that the expression ,person when it first occurs in sub-s. 3 includes the estate-holder, becomes obvious if the clause is read after substituting the expression estate-holder for Person.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 331 of 1961. Appeal from the judgment and decree dated March 29, 1956, of the Andhra Pradesh High Court in Appeal Suit No. 182 of 1950. Manavala Chowdhry and B. K. B. Naidu, for the appellants. Narasiah Chowdhry and R. Gopalakrishnan, for Respondents Nos. 1, 2 and 8. 1963. May 10. The judgment of the Court was delivered by DAS GUPTA J.-This appeal brought on a certificate granted by the High Court of Andhra Pradesh is against a decision of that Court reversing a decree granted by the Subordinate judge, Masulipatnam, dismissing a suit for partition. Of the three plaintiffs who brought the suit, two claimed to be the reversioners of Boppanna Chandrappa, to whom we shall refer to as Chandrappa, and the third a purchaser of the interest of some of the reversioners, viz., defendants 4, 5 and 7. According to the plaint the three plaintiffs were thus entitled to a 5/6th share of the properties while the 6th defendant was entitled as a reversioner of Chandrappa to the remaining 1/6th share. The property was however in the actual possession of the three sons of Nagayya who were impleaded as the first three defendants. In companytesting the suit these defendants denied that these properties had ever belonged to Chandrappa and further that the plaintiffs 1 and 2 or the defendants 4, 5, 6 and 7 were his reversioners. The main defence however was that even if the properties did belong to Chandrappa, the defendants father Nagayya became entitled to these as Chandrappas illatom son-in-law. The basis of this plea of illatom son- in-lawship was said to be that Chandrappa had brought Nagayya into his family under an arrangement that the latter would marry his wifes sisters daughter Mangamma and help him in cultivation and management of the properties, in companysideration of which Nagayya would inherit the entire property after Chandrappas death. The Trial Court held that all the suit properties except a small portion did belong to Chandrappa and the plaintiffs would be entitled to 5/6th share of Chandrappas properties and the 6th defendant to the remaining 1/6th share, on the death of Chandrappas widow Ramamma. He however accepted the defence case that Nagayya had become entitled to the property on Chandrappas death as Chandrappas illatom son-in-law and accordingly dismissed the suit. On appeal, the High Court held that the custom by which an illatom son-in-law inherited property companyld number be extended to a case where the marriage took place number with the daughter of the owner of the property but with some other relation of his. The High Court also rejected an alternative plea that appears to have been raised before it that Nagayya became entitled to the property on the basis of a companytract between him and Chandrappa. In this view of the law, the High Court set aside the order passed by the Trial Court and decreed the suit. It is numberlonger disputed before us that the rights of an illatom son-in-law cannot be claimed by a person who under a promise from the owner of the property that he would inherit the property marries number the daughter but some other relation of the owner of the property. The alternative companytention which was raised before the High Court has however been repeated before us, It has been urged that there was a good and valid companytract between Chandrappa and Nagayya, that in companysideration of Nagayya marrying Mangamma and looking after Chandrappas property, Chandrappa would make him his heir and that the companysequence of this companytract was that Nagayya became Chandrappas heir. The question here is number whether on Chandrappas death Nagayya companyld have obtained specific performance of the alleged companytract. For, assuming that there was a companytract as alleged and that it was a valid companytract, enforceable at law and also such of which specific performance companyld have been obtained by proper proceedings in companyrts, the appellants rights would be to seek such specific performance. The companytention on behalf of the appellant is that even though specific performance has number been sought or given the companytract itself would have the effect of transferring interest in the property to Nagayya on Chandrappas death. In support of this companytention the learned Counsel relied on three decisions of High Courts in India and also a decision of the Privy Council. The first decision in point of time is the case of Challa Papi Reddi v. Challa Koti Reddi 1 . The facts there were that the defendants father who was selected by Musalireddi, in pursuance of a special custom, as a son-in-law who should take his property as if he was a son entered into possession of the property on Musalireddis death. lie then associated with himself the plaintiff in the management of his property on promise of a share. The plaintiff companytinued thus for many years, aiding in the management and improvement of the property, until a short time before the suit was brought, the first defendant turned the plaintiff out of doors and refused to give him the promised share. The High Court of Madras held that the agreement by the first defendants father was to the effect that the plaintiff was being admitted to the rights of a company sharer and further, as there was a companyplete adoption or ratification of the fathers companytract by the first defendant he ought to be held to it and the plaintiff was therefore a companysharer in the property. It has to be mentioned that this case was decided long before the Transfer of Property Act, 1882 was enacted and the question whether a written document was necessary for transfer did number companye up for companysideration. In Bhalla Nahana v. Prabhu Hari 2 , which was the next case cited, what happened was that one Gosai 1 1872 7 Mad. H.C.R. 25. 2 1877 2 I.L.R. Bom. 67. Ramji induced the parents of the defendant Prabhu Hari to give him in adoption by an express promise to settle his property upon the boy but died before such settlement companyld be executed. Nearly 30 years after his death Ramjis widow Bhani gave effect to her husbands undertaking by executing a deed of gift of his property in her hands in favour of Prabhu Hari. The reversioner to Gosai Ramjis estate company- tested in a suit brought by him, the validity of this alienation. In holding that the alienation was valid, the High Court of Bombay pointed out that the performance of a husbands companytracts was among the proper and necessary purposes specified by Hindu jurists under which a widow companyld alienate property and said further that the equity to companypel the heir and legal representative of the adoptive father specifically to perform his companytracts survived and the property in the hands of his widow was bound by that companytract. Whether Prabhu Hari would have been entitled to the property even in the absence of the deed of gift did number fall for companysideration in that case. It also deserves to be Mentioned that this case was also decided several years before the Transfer of Property Act came into force. In Asita Mohon Ghosh Moulik v. Mohan Ghosh Moulik 1 , one of the questions in dispute was whether the adopted son companyld take an equal share with the son Answering the question in the affirmative, the High Court of Calcutta after deciding that under the Hindu Law the adopted son was entitled to an equal share, also referred to an Ikrarnama which had been executed by the adoptive fatherland holding that the Ikrarnama was valid and operative, said that even apart from the law, the adopted son, would be so entitled. It is difficult to see how this can be of any assistance in solving our present problem. 1 1916 20 C.W.N. 901. Lastly, the learned Counsel relied on the decision of the Privy Council in Malraju Lakhmi Venkayyamma v. Ventaka Narasimha Appa Rao 1 . The main question in companytroversy in that case was whether there was a companypleted companytract by which the Rani, the former owner of the property had agreed that the possession of the property would be given to her niece Venkayyamma Rao immediately upon the expiry of her life interest. The Privy Council held that there was such companypleted companytract and directed the Receiver to deliver possession upon the terms of the companytract number affirmed. It may be mentioned that this decision in Venkayyamma Raos Case 1 , was among the authorities on which the Calcutta High Court relied in Ariff v. Jadunath Majumdar 2 . The High Court held that the result of equitable principles which had been applied in many cases in England and were also applied by the Privy Council in Venkayyamma Rao Case was that the defendant had acquired the rights of a permanent tenant. When this very case went up to the Privy Council in appeal 1 , the High Courts decision was reversed. The Privy Council pointed out that the dicta in Venkayyamma Raos Case did number mean that equity can override the provisions of a statute and where numberregistered document exists and numberregistrable document can be procured companyfer upon a person a right which the statute enacts, shall be companyferred only by a registered instrument. This decision of the Privy Council in Ariff v. Jadunath Majumdar 2 , was given in January 1931. Nearly two years before that s. 53A had been enacted in the Transfer of Property Act introducing in a limited form the doctrine of equity of part performance. There can, in our opinion, be numberdoubt that after s. 53A was enacted the only case in which the English doctrine of equity of part performance companyld 1 1916 L. R. 43 I.A. 138. 2 1930 1. L.R. 58 Cal. 1235. 3 1931 L. R. 58 1. A. 91. be applied in India is where the requirements of 53A are satisfied. Quite clearly, s. 53A does number apply to the facts of the present case. It must therefore be held that the companysiderations of equity cannot companyfer on Nagayya or his heirs any title in the lands which under the statute companyld be companyferred only by a registered instrument. Our companyclusion therefore is that the High Court was right in holding that Nagayya or his heirs had acquired numberright in the property. The appeal is accordingly dismissed.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 3 of 1962. Appeal by special leave from the judgment and order dated September 20, 1961 of the Patna High Court in Criminal Appeal No. 124 of 1960. Goburdhan, for the appellant. P. Ferma, for the respondent. July 31, 1963. The judgment of the Court was delivered by AYYANGAR J.-This is an appeal by special leave against the judgment of the High Court of Patna dismissing an appeal by the appellant against his companyviction and the sentence passed on him by the Sessions Judge, Champaran. The appellant was charged with an offence under S. 304A of the Indian Penal Code for causing the death of one Mst. Madilen by companytact with an electrically charged naked companyper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine. The deceased Madilen was an inmate of a house near that of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of the occurrence-July 16, 1959, with the result that her latrine had become exposed to public view. Consequently the deceased among others, started using the latrine of the accused. The accused resented this and made it clear to them that they did number have his permission to use it and protested against their companying there. The oral warnings, however, proved inef- fective and it was for this reason that on the facts, as found by the companyrts below, the accused wanted to make entry into his latrine dangerous to the intruders. Though some of the facts alleged by the prosecution were disputed by the accused, they are number companycluded by the findings of the companyrts below and are numberlonger open to challenge and, indeed, learned Counsel for the appellant did number attempt to companytrovert them. The facts, as found, are that in order to prevent the ingress of persons like the deceased into his latrine by making such ingress dangerous 1 the accused fixed up a companyper wire across the passage leading up to his latrine, 2 that this wire was naked and uninsulated and carried current from the electrical wiring of his house to which it was companynected, 3 there was numberwarning that the wire was live, 4 the deceased managed to pass into the latrine without companytacting the wire but that as she came out her hand happened to touch it and she got a shock as a result of which she died soon after. On these facts the Courts below held that the accused was guilty of an offence under s. 304A of the Indian Penal Code which en- acts 304A. Whoever causes the death of any person by doing any rash or negligent act number amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The accused made a suggestion that the deceased had been sufficiently warned and the facts relied on in this companynection were two 1 that at the time of the accident it was past day break and there was therefore enough light, and 2 that an electric light was burning some distance away. But it is manifest that neither of these companyld companystitute warning as the companyditions of the wire being charged with electric current companyld number obviously be de- tected merely by the place being properly lit. The voltage of the current passing through the naked wire being high enough to be lethal, there companyld be numberdispute that charging it with current of that voltage was a rash act done in reckless disregard of the serious companysequences to people companying in companytact with it. It might be mentioned that the accused was also cliar- 14--2 S. C. India/64 ged before the learned Sessions Judge with an offence under section 304 of the Indian Penal Code but on the finding that the accused had numberintention to cause the death of the deceased he was acquitted of that charge. The principal point of law which appears to have been argued before the learned judges of the High Court was that the accused had a right of private defence of property and that the death was caused in the companyrse of the exercise of that right. The learned judges repelled this defence and in our opinion, quite companyrectly. The right of private defence of property which is set out in s. 97 of the Indian Penal Code is, as that section itself provides, subject to the provisions of s. 99 of the Code. It is obvious that the type of injury caused by the trap laid by the accused cannot be brought within the scope of s. 99, number of companyrse of s. 103 of the Code. As this defence was number pressed before us with any seriousness it is number necessary to deal with this at more length. Learned Counsel, however, tried to adopt a different approach. The companytention was that the deceased was a trespasser and that there was numberduty owed by an occupier like the accused towards the trespasser and therefore the latter would have had numbercause of action for damages for the injury inflicted and that if the act of the accused was number a tort, it companyld number also be a crime. There is numbersubstance in this line of argument. In the first place, where we have a Code like the Indian Penal Code which defines with particularity the ingredients of a crime and the defences open to an accused charged with any of the offences there set out we companysider that it would number be proper or justifiable to permit the invocation of some Common Law principle outside that Code for the purpose of treating what on the words of the statute is a crime into a permissible or other than unlawful act. But that apart, learned Counsel is also number right in his submission that the act of the accused as a result of which the deceased suffered injuries resulting in her death was number an actionable wrong. A trespasser is number an outlaw, a Caput lupinem. The mere fact that the person entering a land is a trespasser does number entitle the owner or occupier to inflict on him personal in- jury by direct violence and the same principle would govern the infliction of injury by indirectly doing some- thing on the land the effect of which he must know was likely to cause serious injury to the trespasser. Thus in England it has been held that one who sets springguns to shoot at trespassers is guilty of a tort and that the person injured is entitled to recover. The laying of such a trap, and there is little difference between the spring-gun which was the trap with which the English Courts had to deal and the naked live wire in the present case, is in truth an arrangement to shoot a man without personally firing a shot. It is, numberdoubt true that the trespasser enters the property at his own risk and the occupier owes numberduty to take any reasonable care for his protection, but at the same time the occupier is number entitled to do willfully acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespassers. As we pointed out earlier, the voltage of the current fed into the wire precludes any companytention that it was merely a reasonable precaution for the protection of private property. The position as to the obligation of occupiers towards trespassers has been neatly summarised by the Law Reform Committee of the United Kingdom in the following words The trespasser enters entirely at his own risk, but the occupier must number set traps designed to do him bodily harm or to do any act calculated to do bodily harm to the trespasser whom he knows to be or who to his knowledge is likely to be on his premises. For example, he must number set man-traps or spring guns. This is numbermore than ordinary civilised behaviour. judged in the light of these tests, it is clear that the point urged is wholly without merit.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION, Civil Appeal No. 815 of 1963. Appeal by special leave from judgment and order dated April 23, 1963, of the Madhya Pradesh High Court in 1st Appeal No. 23 of 1963. S. Pathak, B. A. Musodkar, S. N. Andley and Rameshwar Nath, for the appellant. S. Gupta, for respondent No. 1. December 20, 1963. The following Judgments were delivered AYYANGAR J.-On behalf of the Chief Justice and himself We have had the advantage of perusing the judgment of our brother Subba Rao J. and we agree with him that the appeal should be dismissed. The justification for this separate judgment, however, is because of our inability to agree with him in his companystruc- tion of the relative scope of the two limbs of s. 29 2 of the Indian Limitation Act. The facts of the case have been set out in detail in the judgment of Subba Rao J. and it is therefore unnecessary to repeat them. There were three principal points that were urged before us on either side which require to be companysidered and all of them turn on the proper companystruction of s. 29 2 of the Indian Limitation Act which we shall for companyvenience set out here 29 2 Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law- a the provisions companytained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are number expressly excluded by such special or local law and b the remaining provisions of this Act shall number apply. The learned Judges of the High Court have proceeded on the basis that s. 29 2 a applies to the case of appeals preferred under s. 116 A of the Representation of the People Act, 1951 and on that footing have held that the appeal presented to them by the respondent was within time if companyputed after making the deductions permitted by s. 12 of the Limitation Act. It is the companyrectness of this view that is challenged beforeus. Proceeding number to deal with the question whether the terms of s. 29 2 are apt to take in appeals under the Re- presentation of the People Act, the first matter to be company- sidered necessarily is whether that Act is a special or local law within the opening words of the sub-section. As to this, however, Mr. Pathak raised numberdispute and he company- ceded that s. 116A was such a special or local law. That this special or local law prescribes for an appeal a period of limitation is also evident. The first point of companytroversy, however, has arisen as to whether the period of limitation prescribed by the special or local Law is different from the period prescribed therefor by the first schedule. The companytention urged strenuously before us by Mr. Pathak, the learned companynsel for the appellant, was that there would be a different period only where for the identical appeal to refer only to that proceeding with which we are immediately companycerned for which a period of limitation has been prescribed by the special or local Law, a period is prescribed by first companyumn of the first schedule. and there is a difference between the two periods. It was his further companytention that where the Indian Limitation Act made numberprovision for such an appeal, s. 29 2 and the provision companytained in its a and b were inapplicable. There have been several decisions on this point but it is sufficient to refer to the decision of the Bombay High Court in Canara Bank Ltd., Bombay v. The Warden Insurance Co. Ltd., Bombay 1 where Chagla C.J. repelled this companystruction and held that even where there was numberprovision in the first schedule for an I. L. R. 1952 Bom. 1083. appeal in a situation identical with that for which the spe- cial law provides, the test of a prescription of a period of limitation different from the period prescribed by the First Schedule is satisfied. This Court in State of U.P. v. Smt. Kaushaliya etc. 1 upheld this companystruction and approved ,the judgment of Chagla C.J. in the Canara Bank case. Apart from the decision of this Court, we companysider the reasoning of Chagla C.J. to be unexceptionable and we agree with Subba Rao J. in holding that the requirement of a prescription by the special law of a period different from that prescribed by the First Schedule is satisfied in the present case. The next point was one that arose on the submission of companynsel for the respondent and it was this. Assume that the companystruction of the words different from urged by the appellant were accepted, and this requirement would be satisfied only if the First Schedule made provision for an identical appeal as that under the special law, still it was submitted by the respondent that even this was satisfied in this case. For this purpose he relied on Art. 156 of the first schedule which runs ----------------------------------------------------------- Time from which Description of Period of period begins to appeal limitation run ------------------------------------------------------------ 156.-Under the Code of Civil Ninety days The date of Procedure, 1908, to a High decree or order Court, except in the cases appealed from. provided for by article 51 and article 153. The argument was that though the right of appeal in the case before us was companyferred by s. 116A of the Representation of the People Act and it was by virtue thereof that the appeal was filed by the respondent to the High Court, it was still an appeal under the Code of Civil Procedure, 1908, to a High Court. For this submission learned Counsel relied principally on two decisions--one of the Calcutta and the A. 1. R. 1964 S. C. 416. other of the Madras High Court, and they undoubtedly support him. In Aga Mohd. Hamdani v. Cohen and Ors. 1 -as well as in Ramasami Pillai v. Deputy Collector of, Madura 1 which followed it-the Court held that to attract this article it was number necessary in order to be an appeal under the Code of Civil Procedure within the meaning of those words in Art. 156, that the right to prefer the appeal should be companyferred by the Code of Civil Procedure but that it was sufficient if the procedure for the filing of the appeal and the powers of the companyrt for dealing with the appeal were governed by that Code. For adopting this companystruction the Court relied on the reference in Art. 156 to Art. 151. Article 151 dealt with appeals to the High Court from judgment rendered on the original side of that Court. The right to prefer these appeals was companyferred by the Letters Patent companystituting the respective High Courts and number by the Code of Civil Procedure, though the Code of Civil Procedure governed the procedure, jurisdiction and powers of the Court in dealing with the appeals so filed. There would have been need therefore to except cases companyered by Art. 151 only if the words under the Code of Civil Procedure were understood as meaning appeals for the disposal of which the provisions of the Code of Civil Procedure was made applicable. We might mention that besides the Calcutta and the Madras High Courts a Full Bench of the Allahabad High Court also has in Daropadi v. Hira Lal 3 adopted a similar companystruction of the Article, the learned Judges pointing out that several Indian enactments, among them the Indian -Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provincial Insolvency Act, proceeded on the basis of a legislative practice of company- ferring rights of appeal under the respective statutes without prescribing any period of limitation within which the appeal should be preferred, but directing the application, of the provisions of the Civil Procedure Code to such appeals, the intention obviously being that Art. 156 would furnish the period of limitation for such appeals. We companysider that these deci- 1 1. L. R. 13 Cal. 221. 3 1. L. R. 34 Allahabad 496. 2 1. L. R. 43 Mad. 51. sions companyrectly interpret Art. 156 and, in any event, we are number prepared to disturb the decisions which have stood for so long and on the basis of the companyrectness of which Indian legislation has proceeded. Mr. Pathak drew our attention to some decisions in which a different companystruction was adopted of the word under a particular enactment occurring in other Articles of the Limitation Act and in particular some dealing with appeals in certain criminal matters. In them the word under was understood as meaning by virtue of. He was, however, unable to bring to our numberice any decision in which the companystruction adopted of Art. 156 which we have set out has been departed from. In the cases dealing with the words under the Criminal Procedure Code which he placed before us, the situation would obviously be different, since the indication afforded by the mention of Art. 151 in Art. 156 does number figure in the Articles dealt with. Therefore that would be a circumstance pointing to a different result. If the companystruction adopted of Art. 156 in the Calcutta and Madras decisions to which we have referred were upheld, there companyld be numbercontroversy that an appeal under s. 116A of the Representation of the People Act would be under the Code of Civil Procedure, for s. 116A 2 enacts, to read the material portion 116A. 2 The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil companyrt situated within the local limits of its civil appellate juris- diction In this view even on the narrowest companystruction of the words different from those prescribed therefor in first schedule occurring the opening part of s. 29 2 , the exclusion of time provided for by Art. 12 of the Limitation Act would be permissible in companyputing the period of limitation for filing the appeal to the High Court in the case before us. The last point which remains for companysideration is one which would be material only in the event of the two points we have already dealt with being decided differently. This relates to the relationship or inter-connection between the first and the second limbs of s. 29 2 of the Limitation Act. The reason why we are dealing with it is because of our inability to agree with the companystruction which our learned brothers Subba Rao Mudholkar JJ. have placed on this feature of the sub-section. Sub-section 2 , it would be seen, companysists of two parts. The first sets out the companyditions to which the special law should companyform in order to attract section 3 and that part ends with the words as if such period were prescribed therefor in that schedule. This is followed by the companyjunction and that word by the second part reading for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law- a the provisions companytained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are number expressly excluded by such special or local law and b the remaining provisions of this Act shall number apply. The question that has been debated before us is whether the companydition postulated by the first limb, namely the special or local law prescribing a period of limitation for a suit appeal etc. different from the period prescribed therefor by the first schedule has to be satisfied in order to render the provisions of cl. a applicable. If the companyjunction and was used for the purpose of indicating that the two parts were cumulative, that is, if the two parts operated in respect of the same set of circumstances, then unless the opening words of sub-s. 2 were satisfied, there would be numberbasis for the application of cl. a to the period prescribed for a suit, appeal or application applicable by the special or local law. If on the other hand, the two parts of the sub-section companyld be read independently as if they made provision for two separate situations, the result would be that the words starting from for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law followed by clauses a b would be an independent provi- sion unrelated to the first part and therefore companyld operate unhampered by the companydition set out in the first part. In other words, if the latter companystruction were adopted for every suit, appeal or application for which a period of limitation was prescribed by a special or local law, the provisions in ss. 4, 9 to 18 22 would apply unless excluded. Mr, Pathak urged that the companyjunction and companyld in the companytext be companystrued only as rendering the second limb a part and parcel of the first, so that unless the companyditions laid down by the opening words of the sub-section were satisfied, the provisions of the Limitation Act set out in cl. a would number be attracted to determine the period of limitation prescribed by the special or local law. The question of the import and function of the companyjunction and was the subject of elaborate companysideration by a Full Bench of the Allahabad High Court in a decision in Sehat Ali Khan Abdul Qavi Khan 1 . The majority of the learned Judges held that the two parts of the sub-section were independent and that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. cl. a would apply unless excluded. Raghubar Dayal J. then a judge of that Court, however, dissented from this view and held that the entire sub-s. 2 had to be read as an integrated provision and that the companyjunction and companynected the two parts and made it necessary for attracting cl. a that the companyditions laid down by the opening words of sub-s. 2 should be satisfied. Mr. Pathak recommended for our acceptance the dissenting judgment of Dayal J. We companysider that the view expressed by Raghubar Dayal J. as to the inter-relation of the two parts of the sub-section reflects companyrectly our own companystruction of the provision. Raghubar Dayal J. has approached this question of companystruction from several angles including the grammar of the passage. Without going into any of them, we would rest our decision on a shorter ground. In order that the second part might be held to be independent ,of the first, the first part should itself be companyplete and be L. R. 19562 Allahabad 252. capable of operating independently. Unless this test were -satisfied, the companyjunction and would have to be read as importing into what follows it, the companyditions or companysideration set out earlier as otherwise even the first part would be incomplete. Let us number see whether the first part companyld function without the second. The first part reads where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the first schedule the provision of s. 3 shall apply as if that period was prescribed therefor in that schedule. The question is what this, standing by itself, would signify. If the companyditions prescribed by the opening words were satisfied, s. 3 of the Limitation Act would be attracted Section 3 reads Subject to the provisions companytained in sections 4 to 25 inclusive , every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has number been set up as a defence In other words, if the special or local law prescribed a period of limitation different from that prescribed by the first schedule by the application of the first part of sub- s. 2 , the companyrt is enabled to dismiss suits, appeals and applications filed beyond time. If this is the only effect it would be seen that the provision is inane and redundant, because even without it, by the very prescription of a period of limitation the jurisdiction of the companyrt to entertain the suit, appeal etc. would be dependent on the same being filed in time. It is possible, however, to companystrue the reference to s. 3 in s. 29 2 to mean that the power to dismiss the suit, appeal etc. if filed beyond the time prescribed, is subject to the modes of companyputation etc. of the time prescribed by applying the provisions of ss. 4 to 25 which are referred to in the opening words of s. 3. On this companystruction where a case satisfies the opening words of s. 29 2 the entire group of ss. 3 to 25 would be attracted to determine the period of limitation prescribed by the special or local law. Now let us test this with reference to the second limb of s. 29 2 treating the latter as a separate and independent provision. That part starts with the words for determining any period of limitation pres- cribed for any suit, appeal or application by any special or local law italics ours . The words italicised being perfectly general, would manifestly be companyprehensive to include every special or local law, and among these must necessarily be included such special or local laws which satisfy the companyditions specified by the first limb of s. 29 2 . We then have this strange result that by the operation of the first part ss. 3 to 25 of the Limitation Act are made applicable to that class of special and local laws which satisfy the companyditions specified by the first limb, whereas by the operation of the second limb the provisions of section 3, 5, 6 to 8 19 to 21 23 to 25 would number apply to the same class of cases. A companystruction which would lead to this anomalous result cannot be accepted and we, therefore, hold that subject to the companystruction we have put upon sub-s. 2 of s. 29 both the parts are to be read as one whole and that the words following the companyjunction and for the purpose of determining any period of limitation etc. attract the companyditions laid down by the opening words of the sub-section. As we have pointed out earlier this does number affect the result. We agree that the appeal fails and we direct that it be dismissed with companyts. SUBBA RAo J.-This appeal by special leave raises the question of true companystruction of the provisions of s. 29 2 of the Indian Limitation Act, 1908 9 of 1908 , in the companytext of its application to s. 116-A of the Representation of the People Act, 1951 43 of 1951 , hereinafter called the Act. The facts relevant to the question raised lie in a small companypass and they are number disputed. The appellant was elected to the House of the People from the Mahasamund parliamentary companystituency in the State of- Madhya Pradesh in the third general elections. The respondents were the other companytesting candidates. Respondent 1 filed an election petition before the Election Commissioner of India under ss. 80 and 81 of the Act for setting aside the election of the appellant and it was duly referred to the Election Tribunal. The Election Tribunal, by its order dated January 5, 1963, dis- missed the election petition. On February 11, 1963, the first respondent preferred an appeal against the said order of the Election Tribunal to the High Court of Madhya Pradesh at Jabalpur. Under sub-s. 3 of s. 116-A of the Act every appeal under Ch. IVA of the Act shall be preferred within a period of thirty days from the date of the order of the Tri- bunal under s. 98 or s. 99 thereof. Admittedly, the appeal was filed more than 30 days from the said order. If the time requisite for obtaining a companyy of the order of the Tribunal was excluded, the appeal was filed within 30 days but if in law it companyld number be excluded, the appeal would certainly be out of time. The appellant companytended before the High Court that respondent I was number entitled in law to exclude the time so taken by him in obtaining a companyy of the order of the Tribunal, but that plea was rejected by the High Court. On merits, the High Court held that the appellant had companymitted two acts of companyrupt practice as defined by s. 123 4 of the Act and on that finding it declared the election of the appellant void. It is number necessary to go into the details of the judgment ofthe High Court given on the merits of the case,as numberhingturns upon them in this appeal, for the learned,counsel companyfined his argument only to the question of limitation. The present appeal has been preferred by the appellant against the said order of the High Court setting aside his ,election. The only question, therefore, is whether for the purpose of companyputing the period of 30 days prescribed under s. 116A 3 of the Act the provisions of s. 12 of the Limitation Act can be invoked. Mr. Pathak, learned companynsel for the appellant, in an ela- borate argument placed before us the different aspects of the question raised, and I shall deal with his argument in the appropriate companytext in the companyrse of my judgment. It would be ,convenient at the outset to read the relevant provisions of the Act and those of the Limitation Act. The Representation of the People Act, 1951. Decision of the Tribunal Section 98. At the companyclusion of the trial of an election petition the Tribunal shall make an order- a dismissing the election petition or b declaring the election of all or any of the returned candidates to be void or Section 116-A. 1 An appeal shall lie from every order made by a Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal is situated. The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil companyrt situated within the local limits of its civil appellate jurisdiction. Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section 99 Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satis- fied that the appellant had sufficient cause for number preferring the appeal within such period. The Indian Limitation Act, 1908 Section 29.- 2 Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law- a the provisions companytained in section 4, section 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are number expressly excluded by such special or local law and b the remaining provisions of this Act shall number apply. Section 12.- 2 In companyputing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment companyplained of was pronounced, and time requisite for obtaining a companyy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a companyy of the judgment on which it is founded shall also be excluded. Section 116-A of the Act companyfers a right of appeal against an order of the Tribunal under s. 98 or s. 99 thereof sub- s. 3 thereof prescribes a period of limitation of 30 days for preferring such an appeal. Section 29 of the Limitation Act attracts, by fiction, the provisions of s. 3 thereof to an appeal described in s. 29 of the said Act with the result, the provisions of sub-ss. 2 and 3 of s. 12 of the Limitation Act are attracted thereto and if those sub-sections were attracted in companyputing the period of limitation prescribed for an appeal the time requisite for obtaining a companyy of the decree or order or judgment on which it is founded shall be excluded. Learned companynsel for the appellant, therefore, companytends that s. 29 of the Limitation Act does number apply to an appeal under s. 116-A of the Act. The first argument of learned companynsel is that for invoking sub-s. 2 of s. 29 of the Limitation Act the necessary companydition is that the First Schedule thereto shall prescribe a period of limitation for an appeal and that a special law shall prescribe for the same type of appeal a different period of limitation and that, as in the present case the First Schedule has number prescribed any period of limitation to an appeal under s. 116-A of the Act against an order of the Tribunal, sub-s. 2 of s. 29 of the Act -is number attracted. This argument is met by learned companynsel for the respondents in two ways, namely, i that the First Schedule to the Limitation Act has prescribed a period of limitation for such an appeal, and ii that sub- s. 2 will apply even to a case where the First Schedule to the Limitation Act has number prescribed any period of limitation for an appeal, but a special law prescribed a period of limitation for such an appeal. I shall proceed to companysider the two limbs of the argument separately. Has the First Schedule to the Limitation Act prescribed a period of limitation for an appeal against an order of an Election Tribunal under s. 98 or s. 99 of the Act? Article 156 of the First Schedule to the Limitation Act says that to an appeal under the Code of Civil Procedure, 1908, to a High Court, except in the cases provided for by article 151 and article 153, the period of limitation is 90 days from the date of the decree or order appealed from and article 151 referred to in article 156 provides for an appeal against a decree or order of any of the High Courts of Judicature at Fort William, Madras, and Bombay, or of the High Court of Punjab in the exercise of its original jurisdiction. What does the expression under the Code of Civil Procedure in art. 156 of the First Schedule to the Limitation Act companynote? Does it mean that a right of appeal shall be companyferred under the Code of Civil Procedure, or does it mean that the procedure prescribed by the said Code shall apply to such an appeal? A companyparison of the terms of art. 156 and art. 151 indicates that the emphasis is more upon the procedure applicable to an appeal than on the right of appeal companyferred under an Act. The heading of the first companyumn in the First Schedule to the Limitation Act is Description of appeal. The phraseology used in art. 156 describes the nature of the appeal in respect of which a particular period of limitation is prescribed. It does number refer to a right companyferred under the Code of Civil Procedure, but only describes the appeal with reference to the procedure applicable thereto. Though the word under may support the companytrary view, the reference to -art. 151 therein detracts from it. Article 151 is an exception to art. 156, indicating thereby that, but for the exception art. 156 will apply to an appeal companyered by art. 151 that is to say, an appeal under art. 151 is deemed to be an appeal under the Code of Civil Procedure. Though a right of appeal is companyferred under the Letters Patent, it is deemed to be an appeal under the Code of Civil Procedure, because the Code of Civil Procedure governs the said appeal. As Rajamannar, C.J., observed in Kandaswami Pillai v. Kannappa Chetty 1 , It is well established that the Limitation Act and the Code are to be read together, because both are statutes relating to procedure and they are in pari materia and, therefore, to be taken and companystrued together as one system as explanatory of each other. So companystrued it may reasonably be held that art. 156 provides for an appeal governed by the procedure prescribed by the Code of Civil Procedure. This view was accepted by the Calcutta High Court as early as 1886 in Aga Mahomed Hamadani v. Cohen 1 . There, under s. 49 of the Burma Courts Act XVII of 1875 , where the amount or value of a suit or proceeding in the Recorders Court exceeded Rs. 3,000, and was less than Rs. 10,000, an appeal lay to the High Court. Under s. 97 of the said Act, save as otherwise provided by this Act, the Code of Civil Procedure shall be, and shall, on and from the 15th day of April 1872, be deemed to have been in force throughout British Burma. Section 540 of the Civil Procedure Code of 1882, which was in force at that time, read Unless when otherwise expressly provided by this Code or by any other law for the time being in force, an appeal shall lie from the decrees or from any part of the decrees of the Courts exercising original jurisdiction to the Courts authorized to hear appeals from the decisions of those Courts. A. T. R. 1952 Mad. 186. 134-159 S.C.-10. 2 1886 I. L. R. 13 Cal. 221. The effect of this provision of the Code on the Burma Courts Act was that where an appeal was number expressly excluded by any special Act, an appeal lay to whatever companyrt which under the enactment in force was the appropriate companyrt. But this section was overborne by the Burma Courts Act to the extent it companyferred a right of appeal from the Recorders Court to the High Court subject to certain companyditions, for s. 49 of the Burma Courts Act had taken away the right of appeal of value under a prescribed amount and companyferred such a right, when the subject-matter of the appeal was between two prescribed amounts, from the decree of the Recorders Court to the High Court. It is, therefore, number companyrect to say, as companytended by the learned companynsel, that a right of appeal was companyferred under s. 540 of the Code of Civil Procedure, 1882. After the passing of the Burma Courts Act, a right of appeal was, companyferred under s. 49 of that Act and number under s. 540 of the Code. It was companytended before the Calcutta High Court, as it is number companytended before us, that art. 156 of Schedule 11 of the Limitation Act did number apply to an appeal under the Burma Courts Act, on the ground that the said appeal was number an appeal under the Code of Civil Procedure. The learned Judges observed thus, at p. 224 Now, what is meant by an appeal under the Civil Procedure Code? A particular appeal was given by the Burma Courts Act and the Burma Courts Act is still the only Act which prescribes to what Court this appeal shall lie. If it had number been given by the Burma Courts Act then s. 540 of the Civil Procedure Code would have been sufficient to give it, provided that some Court was by some enactment provided as the proper Court to hear the appeal. The procedure in appeals in every respect is governed by the Code of Civil Procedure, The Limitation Act, Schedule 11. Art. 156, when it speaks of the Civil Pro- cedure Code is, on the face of it, speaking of a Code which relates to procedure, and does number ordinarily deal with substantive rights and the natural meaning of an appeal under the Civil Procedure Code appears to us to be an appeal governed by the Code of Civil Procedure so far as procedure is companycerned. It is manifest from this passage that the learned Judges did number repel the companytention on the ground that the right of appeal was companyferred by s. 540 of the Code of Civil Proce- dure, but expressly for the reason that the natural meaning of the relevant expression in art. 156 of Sch. 11 of the Limitation Act was that the appeal mentioned therein was one governed by the Code of Civil Procedure. This decision was followed by a Division Bench of the Madras High Court in Ramaswami Pilai v. The Deputy Collector of Madura 1 . The learned Judges, Abdur Rahim and Oldfield, JJ., held that art. 156 of the Limitation Act IX of 1908 applied to appeals filed under s. 54 of the Land Acquisition Act 1 of 1894 . The right of appeal was companyferred under the Land Acquisition Act, but the procedure prescribed by the Code of Civil Procedure governed that appeal. The same argument number raised before us was raised, but was repelled. After citing the relevant part of the passage from the judgment of the Calcutta High Court extracted above, the learned Judges stated at p. 55 thus It seems to us that this is the companyrect interpretation of article 156. There seems to be numbergood reason for saying that an appeal under the Civil Procedure Code means only an appeal the right to prefer which is companyferred by the Code itself. On the other hand it would number be straining the language of the article too much to hold that an appeal, the procedure with respect to which, from its inception to its disposal, is governed by the Civil Procedure Code, may rightly be spoken of as an appeal under the Code. Then the learned Judges referred to art. 151 of the Limita- tion Act and companycluded thus 1 1919 1 L. R. 43 Mad. 51. That also tends to show that what is meant by the legislature is appeals, the hearing and disposal of which is governed by the rules of procedure laid down in the Civil Procedure Code. Though about 77 years have passed by since the decision of the Calcutta High Court and though the Limitation Act was amended a number of times, the Legislature did number think fit to express its dissent from this view by amendment or otherwise. No direct decision has been brought to our numberice which has differed from, or even questioned the companyrectness of, this decision. In this companytext we may also refer to the decision of the Allahabad High Court in Dropadi Hira Lal 1 where it is pointed out that several Indian enactments, for instance, the Succession Act, the Probate and Administration Act, the Land Acquisition Act and the Provincial Insolvency Act, companyfer rights of appeal and direct the application of the provisions of the Code of Civil Procedure to such appeals, but prescribed numberperiod within which such appeals might be filed, the idea being that art. 156 of the Limitation Act would furnish the period of limitation for the filing of such appeals. Mr, Pathak, learned companynsel for the appellant, brought to our numberice a number of decisions which companysidered the forum to which an appeal shall lie against an order under s. 476 of the Code of Criminal Procedure and the procedure to be followed therein. In Nasaruddin Khan v. Emperor 1 , where an appeal under s. 476-B of the Code of Criminal Procedure from the Court of the Munsif was heard in part by the District Judge, and on the next date of hearing the appellants pleader was number present in Court, it was held that the District Judge was entitled to companysider that the appeal had been abandoned and to dismiss it under the provisions of Order XLI of the Code of Civil Procedure. In Mt. Abida Khatoon v. Chote Khan 1 , the Allahabad High Court held, under similar circumstances, that an appellate companyrt companyld set aside an order dismissing an appeal for default. The Nagpur High Court in 1 1912 I. L. R. 34 All. 496. 2 1926 I. L. R. 53 Cal. 827. A. I. R. 1956 All. 155. Bholanath Balbhadra Sahai v. Achheram Puran Kurmi 1 , held that in such an appeal the appellate Court companyld exercise its power under 0. XLI, r. 27 of the Code of Civil Pro- cedure. In Chandra Kumar Sen v. Mathuria Debya 2 , the Calcutta High Court applied to such an appeal the period of limitation prescribed under art. 154 of the Limitation Act. It is said that the companybined effect of these decisions is that the procedure applicable in an appeal against an order made by a civil companyrt under s. 476 of the Code of Criminal Procedure is that prescribed by the Code of Civil Procedure whereas the period of limitation is that prescribed for an appeal under the Code of Criminal Procedure. But the lear- ned companynsel himself companyceded that there is a companyflict of decisions on the question whether to an appeal against the order of a civil companyrt under s. 476-B of the Code of Criminal Procedure, the civil procedure applies or the criminal procedure applies and, therefore, the only decision which may have some bearing on the question number raised is that in Chandra Kumar Sen v. Mathuria Debya 2 . There, an application was filed before the Subordinate Judge for filing of a companyplaint against the petitioner under s. 476 of the Code of Criminal Procedure. That was rejected. The companyplainant preferred an appeal to the District Judge more than 30 days prescribed under art. 154 of the Limitation Act. The learned District Judge held that numberquestion of limitation arose, for the District Judge suo motu companyld lodge a companyplaint in the criminal companyrt when an offence in companynection with the administration of civil justice came to his numberice. On that reasoning he instituted a companyplaint. The High Court held that the appeal was filed before he District Judge under s. 476-B of the Code of Criminal Procedure and that under art. 154 of the Limitation Act it should have been filed within 30 days from the date of the order of the Subordinate companyrt. It will be numbericed that numberargument was raised in that case that the appeal was governed by the Code of Civil Procedure and, therefore, the appropriate article of the Limitation Act was number art. 154, A. 1. R. 1937 Nag. 91. 2 1925 I. L. R. 52 Cal. 1009. but art. 156 thereof, for the simple reason that whichever article applied the apPeal was clearly barred by limitation. It is number, therefore, permissible to read into the decision the entire argument number advanced before us. The present question was neither raised number argued in that case. It may, therefore, be safely held that for over 75 years the decision of the Calcutta High Court on the companystruction of art. 156 of the Limitation Act stood the ground. Though it must be companyceded that the point is number free from difficulty, we are number prepared to depart from the companystruction put upon the article as early as 1886 and which was number dissented from all these years. 1, therefore, hold that the expression appeal under the Code of Civil Procedure in art. 156 of the Limitation Act means an appeal governed by the Code of Civil Procedure. Even so, it is companytended that under s. 116-A 2 of the Act the High Court, though it has the same powers, jurisdiction and authority of an appellate companyrt governed by the Code of Civil Procedure, is number empowered to follow the procedure prescribed under the Code in respect of receiving the appeals. This argument is companytrary to the express terms of sub-s. 2 of s. 116-A of the Act. Under that sub-section, The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority and follow the same procedure, with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil companyrt situated within the local limits of its civil appellate jurisdiction. Under the second part of sub-s. 2 of s. 11 6-A of the Act, a fiction is created, namely, that though a right of appeal is companyferred by s. 116-A 1 of the Act, the appeal thereunder for the purpose of sub-s. 2 will be deemed to be an appeal from an original decree passed by a civil companyrt situated within the local limits of its civil apPellate jurisdiction. The first part of the sub-section describes the purposes for which the fiction is invoked, namely, the exercise of the powers, jurisdiction and authority and the following of the procedure with respect to such an appeal. The powers, jurisdiction and authority take in the powers, jurisdiction and authority exercisable by an appellate tribunal in regard to various matters prescribed in the Code of Civil Procedure. What does the word procedure mean? The procedure must necessarily be the procedure governing such -an appeal. It means, inter alia, the manner of receiving an -appeal in the companyrt, the preparation of records of the appeal, the posting of the appeal and the manner of its disposal. We find it impossible to exclude from the word procedure the filing and receiving of an appeal in the companyrt. If that part was excluded, how companyld the appeal be received in the High Court? The answer given is that the Government might make rules under s. 169 1 of the Act. When s. 168 2 companyfers a statutory power on the High Court to follow the procedure prescribed by the Code of Civil Procedure, we ,cannot invoke the general power of the Central Government to make rules under s. 169 1 of the Act. If so, the procedure prescribed by 0. XLI of the Code of Civil Procedure, along with the other relevant provisions of the said Code, equally applies to an appeal filed under s. 116-A 2 of the Act. The result is that under s. 116-A 2 of the Act, the appeal, by fiction, is equated with an appeal filed under the ,Code of Civil Procedure in the matter of number only the exercise ,of the powers, jurisdiction and authority but also in the matter ,of procedure to be followed from the date of receipt of the appeal to its final disposal. For the aforesaid reasons, I hold that the special law, namely, the Act, prescribes a period of limitation different from the period prescribed therefor by the First Schedule to the Limitation Act within the meaning of art. 29 2 of the Limitation Act. If so, s. 12 of the Limitation Act is attracted, and the 1st respondent was entitled to exclude the time taken by him for obtaining the companyy of -the order. Even assuming that art. 156 of Schedule 1 to the Limitation Act did number prescribe a period of limitation for the kind of appeal under companysideration, the question arises whether sub- s. 2 of s. 29 of the Limitation Act would number be appli- cable if numberperiod was prescribed by the First Schedule for an appeal created by a special law but the special law pres- cribed a period of limitation for the same. The history of this provision throws some light on this question. The first Limitation Act was passed in the year 1859 Act XIV of 1859 . Section 3 of that act provided When, by any law number or hereafter to be in force, a shorter period of limitation than that prescribed by this Act is specially prescribed for the institution of a particular suit, such shorter period of limitation shall be applied numberwithstanding this Act. The provisions of the Act of 1859 were repealed by the Limi- tation Act IX of 1871. Section 6 of that Act, which is relevant to the present inquiry, read When, by any law number mentioned in the schedule hereto annexed, and number or hereafter to be in force in any part of British India, a period of limitation differing from that prescribed by this Act is especially prescribed for any suits, appeals or applications, numberhing herein companytained shall affect such law. The Limitation Act of 1871 was replaced by Act XV of 1877. Section 6 of this Act read When, by any special or local law number or hereafter in force in British India, a period of limitation is especially prescribed for any suit, appeal or application, numberhing herein companytained shall affect or alter the period so prescribed. The same provision was retained in the Limitation Act IX of 1908, but it was amended in the year 1922 in the present form. Before the amendment of 1922, there was a difference of view on the following questions, namely, 1 whether the general provisions of the Limitation Act, where the word prescribed alone without reference to any Act, was used or even where that word was number used, would be applicable to special or local laws, and 2 whether the general provisions of the Limitation Act did number apply at all to the periods of limitation prescribed by special or local laws. Decisions holding that the general provisions of the Limitation Act did number apply to periods of limitations prescribed by other laws relied upon the expression affect or alter used in the section as it then stood. Section 29 of the Limitation Act was amended to remove the companyflict with a view to make the general provisions applicable to the period of limitation prescribed by special or local laws. A companyparison of the phraseology of the earlier sections shows that while s. 3 of the Limitation Act of 1859 used the words shorter period, s. 6 of the Act of 1871 used the expression differing, and s. 6 of the Acts of 1877 and 1908 removed both the expressions. The result was that s. 6 of the Act of 1871 saved all the special or local laws which prescribed a special period of limitation from the operation of the provisions of the Limitation Act. As the section then stood, it applied to all special or local laws prescribing a -,period of limitation whether the Limitation Act prescribed any period of limitation or number for suits or appeals similar to those governed by special or local laws, or where the period of limitation so prescribed by special or local laws was shorter or longer than that prescribed in the Limitation Act. Can it be said that by the Amending Act of 1922, a companyscious departure was made by the Legislature to impose a companydition for the application of sub-s. 2 of s. 29, namely, that a period of limitation should have been expressly prescribed by the First Schedule to the Limitation Act in respect of a suit or appeal governed by the special or local law? There was numberoccasion for such a departure. To put it in other words, apart from resolving the companyflict, did the Legislature intend to exclude a particular category of proceedings governed by special or local laws from the operation of the benefit companyferred by sub-s. 2 of s. 29? No justification was suggested for such a departure and we find numbere. The problem may be approached from a different perspective. The scheme of the Limitation Act may be briefly stated thus The preamble to the Act shows that it was passed to companysolidate and amend the laws relating to the law of limitation in respect of the proceedings mentioned in the Act. It applies to the whole of India. Part 11 companyprising ss. 3 to 11 deals with limitation of suits, appeals and applications Part III companyprising ss. 12 to 25 provides for companyputation of periods of limitation and Part V deals with savings and repeals. We are number companycerned with Schedules II and III for they have been repealed. The First Schedule companysists of three divisions the first division provides for the period of limitation for suits the second division, for appeals and the third division, for applications. Article 120 found in the first division prescribes for a suit for which numberperiod of limitation is prescribed elsewhere in the Schedule art. 181 in the third division prescribes for application for which numberperiod of limitation is prescribed elsewhere in the Schedule or by s. 48 of the Code of Civil Procedure. But numbersuch residuary article is found in the second division dealing with appeals. The Limitation Act was companyceived to be an exhaustive companye prescribing for every companyceivable proceeding, whether suit, appeal or application, subject to the saving in Part V thereof. It follows that there is numberperiod of limitation for an appeal number provided for in the second division unless the special or local law prescribes for it. If so, it may reasonably be said that, as the First Schedule of the Limitation Act prescribes numberlimitation for an appeal number companyered by arts. 150 to 157 thereof, under the Limitation Act such a suit or appeal can be filed irrespective of any time limit. With this background let us revert to the companystruction of s. 29 2 of the Limitation Act. When the First Schedule of the Limitation Act prescribes numbertime limit for a particular appeal, but the special law prescribes a time limit to it, can it number be said that under the First Schedule of the Limitation Act an appeal can be filed at any time, but the special law by limiting it provides for a different period? While the former permits the filing of an appeal at any time, the latter limits it to the prescribed period. It is, therefore, different from that prescribed in the former. This problem was companysidered by a Division Bench of the Bom- bay High Court, companysisting of Chagla C.J., and Gajendra- gadkar J., in Canara Bank Limited, Bombay v. The Warden Insurance Company, Ltd., Bombay 1 . Therein, Chagla C.J., speaking for the Court, observed at p. 1086 thus The period of limitation may be different under two different circumstances. It may be different if it modifies or alters a period of limitation fixed by the first Schedule to the Limitation Act. It may also be different in the I. L. R. 1952 Bom. 1083. sense that it departs from the period of limitation fixed for various appeals under the Limitation Act. If the first Schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation, then to that extent the special law is different from the Limitation Act. We are companyscious of the fact that the language used by the Legislature is perhaps number very happy, but we must put upon it a companystruction which will reconcile the various difficulties caused by the other sections of the Limitation Act and which will give effect to the object which obviously the Legislature had in mind, because if we were to give to s. 29 2 the meaning which Mr. Adarkar companytends for, then the result would be that even s. 3 of the Limitation Act would number apply to this special law. The result would be that although an appeal may be barred by limitation, it would number be liable to be dismissed under s. 3. A Full Bench of the Allahabad High Court, in Sehat Ali Khan Abdul Qavi Khan 1 also dealt with this question. The learned Judges expressed companyflicting views. Mootham C.J., assumed that the first limb of the sub-section ,did number apply to a case where the schedule omitted to provide for a period of limitation. On that assumption he proceeded to companysider the second limb of the sub-section. DayalJ took the view that for the application of the first part of s.29 2 the period of limitation should have been prescribed by the First Schedule. Agarwala J., agreed with the view of the Bombay High Court. Bhargava J., agreed with the view expressed by Mootham C.J., and Upadhya J., did number agree with the view of the Bombay High Court. A Division Bench of the Madhya Pradesh High Court in Beharilal Chaurasiya v. Regional Transport Authority 2 I. L.R. 1956 2 All. 252. A. 1. R. 1961 M. P. 75,77. agreed with the view expressed by the Division Bench of the Bombay High Court. Dixit C.P., speaking for the Court, stated thus A special law may provide a period of limitation and schedule I may omit to do so. None the less the special law would be different from the Limitation Act. Section 29 2 of -the Limitation Act is number very happily worded. It must be companystrued so as to avoid absurdity. The, expression a period of limitation different. from the period prescribed therefor by the first schedule occurring in s. 29 2 cannot be companystrued as meaning that schedule 1 must also positively prescribe the period of limitation Such a companystruction would number be in accordance with the intention of the Legislature and would lead to an absurdity. The learned Chief Justice proceeded to companysider the ano- malous position that would arise if a literal companystruction was given to the provisions of the first part of the section. This Court, in Kaushalya Rani v. Gopal Singh 1 , had to. companysider this question incidentally in the companytext of the application of s. 29 2 of the Limitation Act to an application for special leave to appeal against an order of acquittal under sub-s. 3 of s. 417 of the Code of Criminal Procedure. This Court held that s. 5 of the Limitation Act would number apply to an application for special leave to appeal under sub-s. 3 of s. 417 of the Code of Criminal Procedure. The Limitation Act does number provide any period of limitation for an application for special leave to appeal from an order of acquittal under the said section. If that be so, on the argument of learned companynsel for the appellant, s. 29 of the Limitation Act companyld number be invoked. But this Court held that s. 29 2 of the Limitation Act applied, but that section excluded the application of s. 5 to the said application. Sinha C.J., speaking for the Court, observed Hence it may be said that there is numberlimitation prescribed by the Limitation Act for an A. I. R. 1964 S. C. 260 appeal against an order of acquittal at the instance of a private prosecutor. Thus, there is a difference between the Limitation Act and the rule laid down in s. 417 4 of the Code in respect of limitation affecting such an application. Section 29 2 is supplemental in its character in so far as it provides for the application of s. 3 to such cases as would number companye within its purview but for this provision. This observation clearly supports the position that s. 29 2 would apply even to a case where a difference between the special law and the Limitation Act arose by the omission to provide for a limitation to a particular proceeding under the Limitation Act. 1, therefore, hold that in the instant case the Act provides a period of limitation different from that prescribed therefor by the First Schedule to the Limitation Act and, therefore, it is governed by s. 29 2 of the said Act. Even if my view on the companystruction of the first limb of s. 29 of the Limitation Act were wrong, it would number help the appellant, for his case squarely falls within the scope of the second limb of the section., For companyvenience I restate the relevant part of the section and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or focal law. Learned companynsel for the appellant relied upon the companyjunc- tion and in support of his companytention that the use of that companyjunction makes the following sentence a limitation on the first part of the section. He further argues that if it is number a limitation but an independent clause, it will lead to the -anomaly of ss. 4 to 25 of the Limitation Act applicable to proceedings failing under the first part and only some of the provisions thereof, namely, ss. 4, 9 to 18 and 22 apply- ing to the second part of the section. Apart from the grammatical companystruction, which I will companysider presently, I do number see any anomaly in ss. 4 to 25 of the Limitation Act applying to the first part of the section and only some of them applying to the second part thereof. Those proceedings to which the first part applies, by fiction the period prescribed in the special or local law is treated as prescribed in the First Schedule itself. There cannot possibly be any reason why s. 3 of the Limitation Act in toto shall number apply to them. But the same cannot be said in the case of the proceedings of a different type number provided for in the FirstSchedule. So, the Legislature specified the sections applicable tothem and excluded the general sections which relate tolegal disabilities, acknowledgements, part-payments and others specified therein. The Legislature may have -thought that such articles are number generally appropriate to proceedings under special or local laws for reliefs number provided for in the First Schedule. Now, companying to the companystruction of the section, the relevant rule of companystruction is well settled. A companystruction which will leave without effect any part of the language of a statute will numbermally be rejected or to put it in a positive form, the Court shall ordinarily give meaning to every word used in the section. Does the companyjunction and make the following clause a limitation on the preceding one? No rule of grammatical companystruction has been brought to our numberice which requires an interpretation that if sentences companyplete by themselves are companynected by a companyjunction, the second sentence must be held to limit the scope of the first sentence. The companyjunction and is used in different companytexts. It may companybine two sentences dealing with the same subject without one depending upon the other. But, if the interpretation suggested by the learned companynsel be accepted, we would number be giving any meaning at all to the word any used thrice in the second part of the section, namely any period, any suit and any special or local law. If the second part is a limitation on the first part, the sentence should read, for the purpose of determining the period of limitation prescribed for such suit, appeal or application by such special or local law. Instead of that, the use of the word any clearly demonstrates that the second. part does number depend upon the first part or vice versa. There is numberreason why we should attribute such a grammatical deficiency to the legislature when every word in the second part of the section can be given full and satisfactory meaning. I would, therefore, hold that the second part is an independent provision providing for the aforesaid category of proceedings to which the first part does number apply. This is the view expressed by the majority of the judges of the Full Bench of the Allahabad High Court in Sehat Ali Khan v. Abdul Qavi Khan 1 . I agree with the same. It was then said that s. 116-A of the Act provided an exhaustive and exclusive companye of limitation for the purpose of appeals against orders of tribunals and reliance is placed on the proviso to sub-s. 3 of that section, which reads Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the Tribunal under section 98 or section 99. Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for number preferring the appeal within such period. The companytention is that sub-s. 3 of s. 116-A of the Act number only provides a period of limitation for such an appeal. but also the circumstances under which the delay can be excused, indicating thereby that the general provisions of the Limitation Act are excluded. There are two answers to this argument. Firstly, s. 29 2 a of the Limitation Act speaks of express exclusion but there is numberexpress exclusion in sub-s. 3 of s. 116-A of the Act secondly, the proviso from which an implied exclusion is sought to be drawn does number lead to any such necessary implication. The proviso has become necessary, because, if the proviso was number enacted. s. 29 2 b of the Limitation Act would have excluded the operation of s. 5 of the Limitation Act, with the result that even if a sufficient cause for the delay existed, the High Court would have been helpless to excuse the delay. 1, therefore, hold that the proviso to sub-s. 3 of s. 116-A of the Act only restores the power denied to the companyrt under s. 29 2 b of the Limitation Act. I. L. R. 1956 2 All. 252. Lastly, it is companytended that s. 12 2 of the Limitation Act, on its express terms, would number apply to an appeal to the High Court against an order of the Election Tribunal under s. 98 of the Act. Elaborating the argument it is said that in order to exclude the time for obtaining a companyy of the order appealed against, the original shall be a decree or order within the meaning of s. 12 2 or judgment within the meaning of s. 12 3 of the Limitation Act and the order under s. 98 of the Act is neither a decree number an order or a judgment within the meaning of the said sub-sections of s. 12 of the Limitation Act. Reference is made to the defini- tions of decree, judgment and order in sub-sections 2 , 9 and 14 of s. 2 of the Code of Civil Procedure, respectively, and it is companytended that the order under s. 98 of the Act does number fall under any of the said three expressions as defined therein. Under sub-s. 9 of s. 2 of the Code of Civil Procedure, judgment is defined to mean the statement given by the judge of the grounds of a decree or order. Sub-section 14 of s. 2 of the said Code defines order to mean the formal expression of any decision of a civil companyrt which is number a decree. It follows from the said definitions that judgment is a statement of the reasons given by the judge and order is the formal expression of his decision. Section 104 of the said Code says, An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from numberother orders. Order XX of the Code deals with the manner of pronouncing a judgment and decree. Under 0. XX, r. 20, of the Code, Certified companyies of the judgment and decree shall be furnished to the parties on application to the Court, and at their expense. Under s. 141 of the Code, The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any companyrt of civil jurisdiction. The effect of these provisions is that a decree is a formal expression of adjudication companyclusively determining the rights of parties with regard to all or any of the companytroversies in a suit, whereas order is a formal expression of any ,decision of a civil companyrt which is number a decree. Judgment is a statement given by the judge of his grounds in respect of ,a decree or order. Ordinarily judgment and order are en- grossed in two separate documents. But the fact that both are engrossed in the same document does number deprive the statement of reasons and the formal expression of a decision of their character as judgment or order, as the case may be. With this background let me look at the provisions of s.116- A of the Act. Under sub-s. 1 thereof, an appeal shall lie from every order made by a Tribunal under s. 98 or s. 99 to the High Court of the State in which the Tribunal is situated. Under s. 98 of the Act, At the companyclusion of the trial of an election petition the Tribunal shall make an order- a dismissing the election petitionor b declaring the election of all or any of the returned candidates to be void or c declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to h ave been duly elected. Part VI of the Act provides for disputes regarding elections-, Ch. III thereof prescribes the procedure for the trial of election petitions, and s. 90 therein says Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. There is numberrovision in the Act defining how the decision should be given. It companyld number have been the intention of the Legislature that the Tribunal need number give the statement of reasons for its decision. As under s. 90 of the Act the Election Tribunal is directed to try election petitions as nearly as may be in accordance with the pro- cedure applicable under the Code of Civil Procedure, it is the duty of the Election Tribunal to give a statement of reasons for its decision. It is open to it to issue two documents--one embodying the reasons for the decision and the 134-159 S.C.-11. other, the formal expression of its decision the former will be its judgment and the latter, its order. It may issue both in the same document in which case the judgment as well as the order is embodied in the same document. If so it is manifest that an order made under s. 98 of the Act, if it companytains also the reasons for it, is a companyposite document ,satisfying the definition of a judgment as well as that of an ,order and thereby attracting the relevant provisions of s. 12 of the Limitation Act. That apart, a different approach to the question raised leads to the same companyclusion. Section 12 2 of the Limitation Act does number say that the order mentioned therein shall be only such order as defined in the Civil Procedure Code. If a statute provides for the making of can order and companyfers a right of appeal to an aggrieved party -against that order within a prescribed time, sub-s. 2 of s. 12 of the Limitation Act says that the time requisite for obtaining a companyy of such order shall be excluded. The Act em-powers the Tribunal to make an order and gives a right of -appeal against that order to the High Court. Section 12 2 of the Limitation Act is, therefore, directly attracted without any recourse to the definition of an order in the Code of Civil Procedure. In either view, s. 12 of the Limitation Act -applies and, therefore, the time taken for obtaining a companyy ,of the said order shall be excluded in companyputing the period ,of limitation. In the result, the appeal fails and is dismissed with companyts. RAGHUBAR DAYAL J.-I agree that the appeal be dismissed, but for different reasons. I am of opinion that the first part of s. 29 2 of the Limi- tation Act applies only when a special or local law prescribes -a period of limitation for an appeal and when for that particular appeal a period of limitation is prescribed in the First Schedule to the Limitation Act, as omission to prescribe a period of limitation cannot be equated with the prescribing ,of any positive period of limitation within which the appeal should be filed, and that the second part of s. 29 2 of the Act is independent of the first part and can apply to cases to which the first part does number apply. I am also of ,opinion that art. 156 of the First Schedule applies to appeals which are instituted in view of the right of appeal companyferred by any special or local law and number in pursuance of the provisions of s. 96 C.P.C. I do number elaborate my views as I agree with what my learned brother Mudholkar J., has said in companystruing the first part of s. 29 2 of the Limitation Act and art. 156 of the First Schedule and agree with my learned brother Ayyangar J., with respect to his companystruction of the second part of s. 29 2 . The proviso to s. 116 a of the Representation of the People Act gives discretion to the High Court to entertain an appeal presented after the expiry of 30 days from the date of the order of the Tribunal in case it is satisfied that there is sufficient cause for the late presentation of the memorandum of appeal. The respondent has applied in this Court for the companydonation of the delay in filing the appeal in the High Court. In the circumstances of the case, I companysider it a fit case for companydoning the delay. There was a difference of opinion in the High Courts regarding the applicability of s. 12 of the Limitation Act to such appeals. The delay was of a few days. The Election Tribunal passed the order on January 5, 1963 and the appeal was filed on February 11, 1963. A party can reasonably desire to obtain a companyy of the judgment for deciding, after studying it, whether it is worthwhile appealing against it, and if so. on what grounds. I am satisfied that there was sufficient cause for the respondents number presenting the appeal within the period of limitation. I therefore companydone the delay and companyfirm the order of the High Court. MUDHOLKAR J.-While I agree with my brother Subba Rao J. that the appeal should be dismissed, I regret my inability to agree with all the reasons which he has given. I need number recapitulate the facts which have been set out -fully in the judgment prepared by my learned brother but I would only state the point which we have to companysider in this appeal. The point is whether for the purpose of companyputing the period of 30 days prescribed by s. 116A 3 of the Representation of the People Act, 1951 under which an appeal can be preferred from the decision of the Election Tribunal, the provisions of s. 12, sub-s. 2 of the Limita- tion Act, whereunder the time requisite for obtaining a companyy of the decree and the day on which the judgment companyplained of was pronounced can be excluded can be pressed in aid. It was companytended before us that the appeal should be deemed to be one under the Code of Civil Procedure, in which case it would fall under art. 156 of the First Schedule to the Limi- tation Act, and that though a shorter period of limitation is prescribed for it by the Representation of the People Act the provisions of s. 12 2 of the Limitation Act would be attracted by reason of the provisions of cl. a of s. 29 2 . Reliance was laced in this companynection on the first limb of s. 29 2 . Alternatively it was argued that the first limb of s. 29, sub-s. 2 of the Limitation Act would also apply to an appeal under the Representation of the People Act even though it does number fall under art. 156 of the Limitation Act since a different period of limitation was prescribed for it from that prescribed for an appeal in the First Schedule of the Limitation Act and that, therefore, cl. a thereof would attract s. 12 2 of the Limitation Act. Finally it was argued that even if the appeal cannot be regarded as one falling within the first limb of s. 29 2 sub-s. 2 of s. 12 would still apply because the second limb of sub-s. 2 of s. 29 is wide enough in its ambit to include a suit, appeal or application for which numberperiod of limitation is prescribed in the first schedule but a period of limitation has been prescribed by a special or local law. My learned brother has held in his judgment that an appeal provided for by s. 116A of the Representation of the People Act would be an appeal underthe Code of Civil Procedure and thus fall under the first companyumn of art. 156 of the First Schedule of the Limitation Act. He has also held that the words where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule occurring in the first limb of sub-s. 2 of s. 29 would include a suit or an appeal even though it is number of a type for which a period of limitation is prescribed in the First Schedule because it is enough if the special law prescribes for such an appeal a period which is different from any period prescribed in the First Schedule. I regret I am unable to agree with either of these views. Finally, however, my learned brother has companystrued the second limb of sub-s. 2 of s. 29 and for the purpose of ,determining any period of limitation prescribed for any suit, appeal or application by any special or local law as being wide enough to include a suit, appeal or an application under a special or local law which is of a type for which numberperiod of limitation is prescribed in the First Schedule. With this last companyclusion I agree. In my judgment what he has said on the last point is enough for the purpose of disposing of the appeal in the way proposed by him. As, however, I do number agree with what he has said on the first two points I must briefly indicate my reasons for companying to different companyclusions. In support of the companyclusion that art. 156 applies, my learned brother has relied upon the decision in Aga Mahomed Hamadani v. Cohen 1 which was followed by the Madras High Court in Ramasami Pillai v. the Deputy Collector of Madura 1 . The first of these two cases was one from what was then British Burma. Under s. 49 of the Burma Courts Act, 1875 XVII of 1875 an appeal Jay to the High Court from the decision in a suit or proceeding before the Recorders Court in which the amount or value was number less than Rs. 3,000 and was number more than Rs. 10,000. Section 97 of that Act said save as otherwise provided by this Act, the Code of Civil Procedure shall be, and shall, on and from the 15th day of April, 1872, be deemed to have been in force throughout British Burma. Section 540 of the Code of Civil Procedure, 1882 which was in force at that time read thus Unless when otherwise expressly provided by this Code or by any other law for the time being in force, an appeal shall lie from the decrees or from any part of the decrees of the Courts exercising original jurisdiction to the Courts authorised to hear appeals from the decisions of those companyrts. 1 1886 1. L. R. 13 Cal. 221 2 1919 1. L. R. 43 Mad. 51 The question which the High Court had to companysider in that case was whether the appeal companyld be said to be in time as it fell to be governed by art. 156 of the First Schedule to the Limitation Act. For deciding this matter the High Court proceeded to companysider what was-meant by an appeal under the Code of Civil Procedure. While dealing with the matter the High Court observed A particular appeal was given by the Burma Courts. Act and the Burma Courts Act is still the only Act which prescribes to what Court this appeal shall lie. If it had number been given by the Burma Courts Act then s. 540 of the Civil Procedure Code would have been sufficient to give it. provided that some Court was by some enactment provided as the proper Court to hear the appeal. The procedure in appeals in every respect is governed by the Code of Civil Procedure. The Limitation Act, Sch. 1, Art 156 when it speaks of the Civil Procedure Code is, on the face of it, speaking of a Code which relates to procedure, and does number ordinarily deal with substantive rights and the natural meaning of an appeal under the Civil Procedure Code appears to us to be an appeal governed by the Code of Civil Procedure so far as procedure, is companycerned. Referring to this, my learned brother has observed It is manifest from this passage that the learned judges did number repel the companytention on the ground that the right of appeal was companyferred by s. 540 of the Code of Civil Procedure, but expressely for the reason that the natural meaning of the relevant expression in art. 156 of Sch. 1 of the Limitation Act was that the appeal mentioned therein was one governed by the Code of Civil Procedur e. That is true. It is, however, number material for my purpose to companysider whether or number the High Court was right in hold- ing that the appeal before it was under the Burma Courts Act. I would assume that the High Court was right but it is necessary to point out that the provisions of s. 29 of the Limitation Act as then in force did number companye for companysidera- tion in that case. The question would then be whether its view that an appeal, though number provided by the Code of -Civil Procedure, would yet be deemed to be an appeal under the Code for the purpose of art. 156 of the Limitation Act,,, was right. With respect I do number think that there was any warrant for holding that an appeal which was number given by, the Code would still be one under the Code merely because the procedural provisions thereof would govern its companyrse-. Where the right of appeal is given by some other law, the appeal must be regarded as one under that law and number under the Code. I see numbervalid reason for companystruing the words under the Code of Civil Procedure as meaning governed in the matter of procedure by the Code of Civil Procedure. For, that is, in effect, what the High Court has done in this case. By reading the article in the way it has done the High Court has virtually companystrued the only provision in the Limitation Act dealing with numbermal civil appeals to the High Court as a residuary article which would take in all appeals by whatever law they may be provided, merely because the procedure relating to appeals companytained in the Code of Civil Procedure was applicable to them. This would in my judgment go against the plain intended of the Legislature. Indeed, while a right to institute a suit or make an application is a wider kind of right. there can be numberright of appeal unless some statute companyfers it. That is why the Legislature has expressly enacted residuary provisions, Arts. 120 and 180, for suits and applications respectively in the Limitation Act. The First Schedule is divided into three divisions. Article 156 is one of the eight article companytained in the second division which deals with appeals. The first division of that schedule deals with suits. There, provision is made for a variety of suits including some under special laws. but it was realised that it companyld number be exhaustive. Therefore, art. 120 was provided therein, which deals with Suits for which numberperiod of limitation is provided elsewhere in this schedule. The third division of the First Schedule deals with applications of different kinds. Article 181 makes provision for applications for which numberperiod of limitation is prescribed elsewhere in the Schedule. In the second division, however, which deals with appeals, there is numberprovision analogous to art. 120 and art. 181. Four of the eight articles deal with appeals under the Code of Criminal Procedure and four with appeals other than those under the Code of Criminal Procedure. As already stated, only one of these articles deals with numbermal civil appeals to the High Court, namely, art. 156. It is number companyched in language similar to that used in art. 120 and art. 181. Would we then be justified in reading the first companyumn of art. 156 to mean the same thing as is said in the first companyumn of arts. 120 or 181? The Legislature knew that appeals have been provided by various special laws but it made numberprovision for such appeals in this Schedule appa- rently for the reason that a law which companyfers a right of appeal is expected to provide for the period of limitation for such an appeal. That seems to be the explanation for the absence of a residuary provision for appeals. The first difficulty, therefore, in interpreting art. 156 in the way companytended for by -the respondents is that where a different period of limitation for appeal is expressly pro- vided by a special law art. 156 will number in terms be attracted. To bring such an appeal under it would clearly go against the express intention of the Legislature which was to companyfine that article to appeals under the Code of Civil Procedure. The next difficulty is that the entry deals with appeals under the Code of Civil Procedure and number appeals arising out of proceedings to which the Code of Civil Procedure applies. Nor again, does it include an appeal which is only deemed to be under the Code of Civil Procedure. Be it numbered that so far as proceedings under the Representation of the People Act are companycerned, the whole of the Code of Civil Procedure does number apply but only so much of it as is expressly made applicable by the provisions of the Representation of the People Act. It was said that if the provisions of 0. XLI, of the Code of Civil Procedure were number applicable to an appeal under the Representation of the People Act there would be numberprovision whereunder the party companyld at all file an appeal. It seems to me, however, that there can be numberdifficulty at all in this matter as every -High Court has made rules partly under the Constitution -and partly in exercise of its inherent power to make suitable provisions in regard to this and allied matters. The Calcutta High Court, however, does number appear to have given ,the full companysideration in Cohens case 1 to the ambit of art. 156 and that is another reason why I find myself unable to accept the companyrectness of the view it has taken in that case. It was then said that the view should be accepted on the ground of stare decisis. In this companynection it was pointed out thatso far numbercourt has dissented from that view and indeed theview was fully accepted in Ramasami Pillais .case 1 bythe Madras High Court. In so far as the principle of stare decisis is companycerned it is numberhing more than,. as observed by Dowrick in Justice According to the English ,Common Lawyers 1961 ed. p. 195 , a precipitate of the numberion of legal justice. In other words it is the principle that judicial decisions have a binding character. But in India the position is number quite the same. Here the decision of a High Court is number even always binding upon it in the sense that it can be reconsidered by a Full Bench. No doubt its decision may bind all companyrts subordinate to it as also all Judges sitting singly or in division benches of the High Court. It is also true that a decision of a Division Bench of a High Court is binding on every other Division Bench of that High Court but there again there have been cases where one Full Bench has reconsidered the decision of an earlier Full Bench. In any case the decision of a High Court has numbermore than persuasive character in so far as this Court is companycerned. In that view the decision of the Calcutta High Court, even though it may number have been dissented from since the time it was rendered, cannot, in the proper sense of the term be regarded as stare decisis. What companyld be stare decisis in this Court would be its own previous ,decisions. But even here instances are number wanting where, unlike perhaps the House of Lords, we have companysidered ourselves free to go back on previous decisions. See The Bengal Immunity Company Limited v. The State of Bihar ors. 3 Finally, even where a decision has number been 1 1886 I. L. R. 13 Cal. 221 2 1919 I. L. R. 43 Mad. 51 3 1955 2 S. C. R. 603 dissented from for a long time, but has on the other hand been followed, it is number entitled to be treated as immutable, particularly where it deals only with a question appertaining to the adjective law, such as the law of limitation. There may be a great deal to be said in favour of number disturbing even erroneous decisions affecting substantive rights to property which have stood undisturbed for a long time on the ground that such a companyrse may unsettle existing titles to property. But this or similar companysiderations which would justify leaving such decisions undisturbed would number stand in the way of overruling an erroneous decision on a matter appertaining to the adjective law however ancient the decision may be 1 . Therefore, I do number feel myself persuaded to hold that the present appeal can be regarded as of a type falling within the first companyumn of art. 156 of the First Schedule to the Limitation Act. In order to deal with the second ground given by my learned brother it is necessary to reproduce the provisions of s. 29, sub-s. 2 of the Limitation Act. They run thus Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-. a the Provisions companytained in section 4., sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are number expressly excluded by such special or local law and b the remaining provisions of this Act shall number apply. See Allen, Law in the, making 5th edn. p. 209 fn. 3 While expressing the view that the legislature has number ex- pressed itself happily while enacting this provision he has agreed with the view taken in Canara Bank Ltd. v. The Warden Insurance Co., Ltd., Bombay 1 , which was followed by the High Court of Madhya Pradesh in Beharilal Chaurasiya v. Regional Transport Authority 1 . In that case the Bombay High Court has held that art. 156 is attracted on the ground that the period provided by the special law is different from that companytained in the First Schedule. With great respect to the learned Judges, I find it difficult to strain the language used in the first limb of s. 29 2 in this manner. The legislature has in clear terms spoken of cases in which a special or local law has prescribed for a suit, appeal or an application a period of limitation different from that prescribed by the First Schedule. Now, the governing words are suit, appeal or application. Therefore, what has to be seen is whether a suit, appeal or application under a particular local or special law is of a kind similar to one for which a period of limitation is prescribed in the First Schedule. The first limb of sub-s. 2 of s. 29 is companycerned only with proceedings of this kind, that is, proceedings under special or local law for which a period of limitation is provided in the First Schedule. If for such a proceeding the period to be found in the First Schedule is different from that prescribed under a special or local law certain companysequences will follow under the provision. I do number think that any inconvenience would be caused by giving literal and natural interpretation to the expression used by the legislature in the first portion of sub-s. 2 of s. 29 because cases of other kind can easily companye under the second portion thereof.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICT1ON Civil Appeal No. 559 of 1962. Appeal from the judgment and decree dated March 21, 1961, of the Punjab High Court Circuit Bench at Delhi in Regular First Appeals Nos. 8 D and 21-D of 1960. Ranganadham Chetty, S. K. Mehta and K. L. Mehta, for the appellant. C. Setalvad, Hardayal Hardy and S. N. Anand, for the respondents. 1963 March 25. The judgment of the Court was delivered by SINHA C. J.-This appeal on a certificate granted by the High Court of Punjab arises out of a suit for specific performance of a companytract of sale in respect of a house property situate in Tughlak Road, New Delhi, belonging to the appellant and built on a lease-hold plot granted by the Government in the year 1935, to her predecessor-in-title. It appears that the plaintiffs entered into a companytract of sale in respect of the disputed property for the sum of Rs. 1,10,000/-. The deed of agreement is dated September 4, 1956. In so far as it is necessary to numberice the terms of the document, the agreement provided that the vendor shall obtain the permission of the Chief Commissioner to the transaction of sale within two months of the agreement, and if the said permission was number forthcoming within that time, it was open to the purchasers to extend the date or to treat the agreement as cancelled. As the necessary permission was number forthcoming within the stipulated time, the purchasers extended the time by another month. The appellant had made an application to the proper authorities for the necessary Permission, but withdrew her application to the Chief Commissioner by her letter dated April 12, 1957. The plaintiffs called upon the defendant several times to fulfil her part of the agreement but she failed to do so. It was averred on behalf of the plaintiffs that they had always been ready and willing to perform their part of the companytract and that it was the defendant who had backed out of it. Hence, the suit for specific performance of the companytract for sale or in the alternative for damages amounting to Rs. 51,100/-. The suit was companytested on a large number of grounds of which it is necessary number to take numberice only of the plea on which issue No. 8 was joined. Issue No. 8 is as follows Is the companytract companytingent or impossible of performance and is uncertain and vague and is therefore void ? The other material issues were companycurrently decided in favour of the plaintiffs, and, therefore, need number be referred to. The trial Court in a very elaborate judgment dismissed the suit for specific performance of companytract and for a permanent injunction and decreed the sum of Rs. 11,550/- by way of damages, with proportionate companyts, against the defendant. Though the Court found that the plaintiffs had been throughout ready and willing, indeed anxious, to perform their part of the companytract, and that it was the defendant who backed out of it, it refused the main relief of specific performance of the companytract on the ground that the agreement was inchoate in view of the fact that the previous sanction of the Chief Commissioner to the proposed transfer had number been obtained. The High Court on appeal came to the companyclusion that the agreement was a companypleted companytract for sale of the house in question, subject to the sanction of the Chief Commissioner before the sale transaction companyld be companycluded, but that the Trial Court was in error in holding that the agreement was inchoate, and that, therefore, numberdecree for specific performance of the companytract companyld be granted. The High Court relied mainly on the decision of their Lordships of the Judicial Committee of the Privy Council in Motilal v. Nanhelal 1 , for companying to the companyclusion that there was a companypleted companytract between the parties and that the companydition in the agreement that the vendor would obtain the sanction of the Chief Commissioner to the transaction of sale did number render the companytract incomplete. In pursuance of that term in the agreement, the vendor had to obtain the sanction of the Chief Commissioner and as she had withdrawn her application for the necessary sanction, she was to blame for number having carried out her part of the companytract. She had to make an application for the necessary permission. The High Court also pointed out that if the Chief Commissioner ultimately refused to grant the sanction to the sale, the plaintiff may number be able to enforced the decree for specific performance of the companytract but that was numberbar to the Court passing a decree for that relief. Though it was number necessary in the view the High Court took of 1930 L. R. 57 1. A. 333. the rights of the parties, it recorded a finding that a sum of Rs. 5,775/- would be the appropriate amount of damages in the event of the plaintiffs number succeeding in getting their main relief for specific performance of the companytract. The main ground of attack on his appeal is that the companytract is number enforceable being of a companytingent nature and the companytingency number having been fulfilled. In our opinion, there is numbersubstance in this companytention. So far as the parties to the companytract are companycerned, they had agreed to bind themselves by the terms of the document executed between them. Under that document it was for the defendant- vendor to make the necessary application for the permission to the Chief Commissioner. She had as a matter of fact made such an application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part Of the companytract, and that it was the defendant who wilfully refused to perform her part of the companytract, and that the time was number of the essence of the companytract, the Court has got to enforce the terms of the companytract and to enjoin upon the defendant appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or number to grant the necessary sanction. In this view of the matter, the High Court was entirely companyrect in decreeing the suit for specific performance of the companytract. The High Court should have further directed the defendant to make the necessary application for permission to the Chief Commissioner, which was implied in the companytract between the parties. As the defendantvendor, without any sufficient reasons, withdrew the application already made to the Chief Commissioner the decree to be prepared by this Court will add the clause that the defendant, within one month from to- day, shall make the necessary application to the Chief Commissioner or to such other companypetent authority as may have been empowered to grant the necessary sanction to transfers like the one in, question, and further that within one month of the receipt of that sanction she shall companyvey to the plaintiffs the property in suit. In the event of the sanction being refused, the plaintiffs shall be entitled to the damages as decreed by the High Court. The appellant sought to raise certain other pleas which had number been raised in the High Court, for example, that this was number a fit case in which specific performance of companytract should be enforced by the Court. This plea was number specifically raised in the High Court and the necessary facts were number pleaded in the pleadings. It is manifest that this Court should number allow such a plea to be raised here for the first time.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal A peal No. 219 of 1960. Appeal by special leave from the judgment and order dated January 7, 1960, of the Punjab High Court Circuit Bench at Delhi, in Criminal Appeal No. 45-D of 1959. S. R. Chari, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant. Frank Anthony and R. N. Sachthey, for the respondent. 1963. March 21. The judgment of the Court was delivered by SUBBA RAO. J.-This appeal by special leave is against the judgment and order of the High Court of Punjab, Circuit Bench, Delhi, companyfirming those of the Additional Sessions judge, Delhi, companyvicting the appellant under s. 467 of the Indian Penal Code and sentencing him to imprisonment till the rising of the Court and to a fine of Rs. 250/-. The appellant is an Under Secretary, number under suspension, in the Ministry of Home Affairs, Government of India, New Delhi, and is the son of janki Pershad. janki Pershad held a ration depot in Delhi. In the year 1948 janki Pershad purchased three Post Office National Savings Certificates of the face value of Rs. 250/-in the name of the Controller or Rationing, Delhi, and deposited the same with him as security. On February 21, 1952, Janki Pershad transferred the ration depot in favour of his grandson, S. K. Bansal, the son of the appellant. Thereafter, on April 16, 1952, janki Pershad applied to the rationing authority for the release of the said security on the ground that he had transferred the companycerned ration depot in favour of his grandson who had given a fresh cash security of his own. Before the said security given by him was released, janki Pershad died on June 1, 1952. On July 1, 1952, the ration- ing authority wrote a letter to janki Pershad, number knowing that he had died, informing him that the security deposited by him had been released and that he should get the pledged certificates transferred in his favour by filling in the prescribed form sent with that letter and presenting the same along with the certificates returned at the post office. The prosecution case is that, as janki Prashad had by that time died, the appellant filled in the said form for transfer, affixed the signature purporting it to be that of his father, attested the said signature, and affixed the stamp of Ministry of Home Affairs, Government of India, beneath his own signature of attestation, and presented the said form and the certificates at the Post Office. Though the clerk at the Post Office had some doubts as to the genuineness of the signature of Janki Pershad, on an assurance given by the appellant, he issued fresh certificates in the name of Janki Pershad on July 12, 1952. On September 3, 1952, the appellant signed the three certificates on their back as janki Pershad in token of their cancellation and placed his own attestation and stamp of his office thereon. He gave a letter of authority in favour of Bhawani Shankar, a daftri attached to his Office, for cashing the same. Bhawani Shankar presented the certificates at the Post Office and received Rs. 275/- in payment thereof, on his furnishing the necessary receipts The encashed amount was paid to the appellant. On September 8, 1956, the Magistrate, First Class, Delhi, framed charges against the appellant under s. 467 of the Indian Penal Code and companymitted him for trial before the Court of Sessions. On February 2, 1959, the Additional Sessions judge, Delhi, found him guitly under s. 467 of the Indian Penal Code and sentenced him as aforesaid. The appeal filed to the High Court was dismissed on january 7, 1960. Hence the present appeal. The following were the charges framed against the appellant Firstly, that you between 9th July, 1952 and 3rd September, 1952 at Delhi dishonestly or fraudulently attested the signatures of janki Pershad Bansal deceased which were forged by you on the ,-jack of the application for transfer of National Savings Certificates from one person to another and thereby authorised the Post Master, General Post Office., Delhi, to transfer National Savings Certificates and that you thereby companymitted an offence punishable under section 467 IPC and within the companynizance of the Court of Sessions. Secondly, that you between 9th July, 1952 and 3rd September, 1952 at Delhi dishonestly or fraudulently in order to obtain delivery of a sum of RS. 275/-attested the signatures of janki Pershad deceased on National Savings Certificates which said signatures were forged by you and forged a letter of authority purporting to have been written by the deceased janki Pershad Bansal and thereby obtained payment of Rs. 275/- from Post Master, G. P. O., Delhi, through Bhawani Shankar on the basis of the above National Savings Certificates fraudulently or dishonestly discharged by you and that you thereby company- mitted an offence punishable under section 467 IPC and within the companynizance of the Court of Sessions, Delhi. The appellant denied that he forged the signature of his father in the application, in the certificates or in the letter of authority. He also denied to have gone to the Post Office and got the fresh certificates, or to have deputed Bhawani Shankar for encashment of the said certificates. Further, he disowned his own signature of attestation of the alleged signature of Janki pershad and denied to have affixed his office stamp on any of them. In short, his defence was a total denial of the prosecution case. The learned Additional Sessions judge, after companysidering the entire evidence placed before him, held that both the charges had been substantiated and therefore found the appellant guilty under s. 467 of the Indian Penal Code. On appeal, Chopra J., reviewed the entire evidence over again and came to the companyclusion that though it had number been established that the, signature on the application form was forged by the appellant, there was a clear and companyvincing evidence that the appellant attested the same. On the second charge, the learned Judge found that the alleged signatures of janki Pershad on the back of the three certificates and the writting of the signature on the letter of authority were all forged by the appellant. On this finding, he dismissed the appeal. There are, therefore, companycurrent findings of fact that the appellant put the signature of his father on the relevant documents, attested them and got the securities transferred in the name of his father and received the money from the Post Office. The said findings being findings of fact based upon relevant evidence, following the usual practice of this Court, we accept them. Even so, Mr. Chari, learned companynsel for the appellant, companytends that on the said findings the appellant is number guilty of forgery as defined under s. 464 of the Indian Penal Code, for, it is said, he received the money which was admittedly due to him as a sole heir of his father and, therefore, he did. number either gain an advantage for himself or cause any injury to another, and that the said point was directly and fully companyered by a recent decision of this Court in Dr. Vimla v. The Delhi Adminiistration 1 . Mr. Anthony, learned companynsel appearing for the State, does number accept either the factual or the legal position advanced by the learned companynsel for the appellant. He companytends that on the facts found, the appellant, when he put the signatures of his father on the relevant documents, had the clear intention to secure an economic advantage to himself inasmuch as he resorted to the device adopted by him in order to save himself the trouble and expense of obtaining a succession certificate. The companyflicting arguments on the application of Dr, Vimla s case 1 , to the facts of the present case can be better appreciated if the facts of the resent case are clearly borne in mind. If a person who has given postal certificates as security to a department by taking them in the name of the said department dies, his heir can get the said amount by following two procedures, namely, 1 after obtaining a succession certificate, he can apply to the department companycerned to release the security and then apply to the postal department for getting the certicates cashed, and 2 if the current value of the certificates at the time of the death of the holder does number exceed Rs. 5,000/- he can, after the expiry of three months from the date of the death of the holder, satisfy the Post Master General that he is the sole heir of the holder and after making the relevant 1 1963 Supp, 2 S.C.R, 585. declaration recover the said money. In one case he has to incur expenses for obtaining the succession certificate and in the other lie has to wait for three months and thereafter produce evidence to the satisfaction of the Post Master General that he is the sole heir of the deceased holder of the certificates. In the present case, the appellant attested the signature of janki Pershad on the reverse of the application form, for the transfer of the Post Office National Savings Certificates in the name of his father, got fresh certificates issued in the name of his father, signed the name of Janki Pershad on the back of the three certi- ficates in token of their cancellation, placed his own attestation and stamp of his office thereon, gave a letter of authority in favour of Bhawani Shanker as though it was given by janki Pershad and received the money from the Post Office. By this process he got number only the certificates which stood in the name of the Ration Department transferred in the name of his deceased father but also received the money payable to his father. Two steps were involved in the process, one was to get the certificates in the name of the Ration Department to be transferred in the name of his father and the second was to receive the money payable to his deceased father. As the father died before the certificates were transferred in his name by the ration Department, the appellant should have taken steps by informing that fact to the said authority and getting an application from the said authority to the Postal authority for transferring the said certificates in his favour. The rationing authority might number have given such an application to the Postal authority unless a succession certificate was produced by him. No rules have been placed before us which enable the rationing authority to agree for the transfer of the security given to it to a person claiming to be the heir of the owner thereof without the production of any such certificate. ID regard to the second process, the appellant would number have been able to get the money from the postal department within three months without a succession certificate and thereafter without producing necessary evidence of his heirship to the satisfaction of the Post Master General. This process entails delay, for the appellant can only apply to the postal authority after the expiry of three months and thereafter the payment depends upon the satisfaction of the officer companycerned, which may entail further delay or even rejection. Be it as it may, on the facts his intention at the time when he made out the false documents was to short- circuit the alternative procedure open to him and receive the money without going through the expense and trouble involved therein. Section 463 of the Indian Penal Code reads Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied companytract, or with intent to companymit fraud or that fraud may be companymitted, companymits forgery. Section 464 of the said Code reads A person is said to make a false document- First-Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was number made, signed, sealed or executed or at a time at which he knows that it was number made, signed, sealed or executed or Secondly.Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alternation or A person, therefore, will be guilty of forgery if he dishonestly or fraudulently signs a document with the intention mentioned in s. 464 of the Code. Under Whoever does anything with the intention of causing wrongful gain to one person or wrong- full loss to another person, is said to do that thing dishonestly. And under s. 25 thereof, A person is said to do a thing fraudulently if he does that thing with intent to defraud but number otherwise. On the said facts we have numberdoubt that the appellant had made the false documents with an intention to cause wrongful gain to himself, for by adopting the aforesaid device he secured for himself a gain as otherwise lie would have had to incur some expense for obtaining a succession certificate. Even on the assumption that lie would have received the money after satisfying the rationing authority and the Post Master General, he secured an advantage by resorting to the said device, as he was relieved of the trouble of satisfying the rationing authority and the postal authority that he was the sole heir of his father and avoided the risk of their refusal, which would have entailed further delay. In that event he had secured an uneconomic advantage in the former case he had made the false documents dishonestly and in the latter case fraudulently. In either case he companymitted forgery, within the meaning of s. 463 of the Indian Penal Code. The decision of this Court in Dr. Vimlas case 1 , is clearly distinguishable from the present case. In Dr. Vimlas case 1 , this Court, after companysidering the relevant decisions on the question, stated the legal position thus The expression defraud involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of Money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a number- economic or number-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but numbercorresponding loss to the deceived, the second companydition is satisfied. There., Dr. Vimla purchased a car in the name of her minor daughter Nalini, got the insurance policy taken on the car transferred in the name of Nalini by signing the necessary documents as Nalini and, when the car met with an accident, obtained the companypensation money by signing the name of Nalini in the claim form and receipt in short Dr. Vimla put through the relevant transaction in the name of her minor daughter for reasons best known to herself, that is to say, the real owner of the car was Dr. Vimla and she only used the name of her minor daughter. Neither she got any economic or numbereconomic advantage by making the said false documents number the Insurance Company incurred any economic or number-economic loss by her so doing. Therefore, this Court held that she was number guilty of forgery. But in the present case, the appellant clearly secured an economic advantage by making the false documents by i saving the money which 1 1963 Supp. 2 S.C.R. 585. he would have otherwise spent in obtaining a succession certificate, and ii getting the money belonging to his father as his heir. Even otherwise he secured a number- economic advantage as he got himself relieved of the trouble of getting the certificate of proof to the satisfaction of the rationing authority and the Post Master General of his credential to receive the money. He was, therefore, guilty of making the false documents both dishonestly and fraudulently. The High Court is right in companying to the companyclusion which it did.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 705 of 1962. Appeal by special leave from the Award dated September 19, 1961 of the Fourth Industrial Tribunal, West Bengal in Case No. VIII-42 of 1961. N. Sanyal, Solicitor-General of India and E. Chatterjee, for the appellant. L. Sen and Janardhan Sharma, for the respondents. 1963. May 2. The judgment of the Court was delivered by GAJENDRAGADKAR J.-This appeal arises out of an industrial dispute between the appellant, Khardah Co. Ltd., and the respondents, its workmen. The dispute was in regard to the, dismissal of the appellants employee, Samiran jadav. The respondents alleged that the said dismissal was unjustified, whereas, according to the appellant, the said employee had been properly and validly dismissed. The dispute which was referred to the 4th Industrial Tribunal, West Bengal, for its adjudication was whether the said dismissal was justified, and to what relief, if any, was the workman entitled? The Tribunal has held that the dismissal was unjustified and so, it has directed the appellant to reinstate the said employee to his old post within a month from the date of the publication of the award. It has also ordered that the period starting from the date of the dismissal till the date of reinstatement should be treated as leave without pay and as such, should be companynted towards the length of service. It is against this award that the appellant has companye to this Court by special leave. The respondents case was that jadav had been dismissed by the appellant mala fide with the motive of victimising him for his trade union activities. jadav was the Organising Secretary of the Union and since he supported the Unions demands very strongly, the appellant wanted to get rid of him. It appears that jadav had been working as a weaver for some years past. He was companyfirmed in service with effect from April 12, 1954. On September 19, 1960, he went on a weeks leave. When he returned on September 26, 1960, he was asked to work on machine producing twill, though, numbermally, he was assigned work on a plain machine. jadav was number accustomed to work on the companyplicated machine which produces twill and so, he requested the management that he should be asked to do his usual work on a plain machine. This request was, however, turned down Being unaccustomed to work on the machine producing twill, jadav met with an accident on September 27, 1960, and was grantedmedical leave for a week ending on Saturday, October 1, 1960. On October, 3 1960, when he resumed duty, he again requested the management that he should be permitted to work on the plain machine, but when his request was turned down, he told the management that he would work on the twill machine in the second shift which starts from I P.M. On that day, another employee Mahboob who was ailing and had been on leave, asked for further leave which was refused and he fell unconscious while he was going to operate his machine. As a result, 700 weavers of the -appellant stopped work and the weaving section companyld number resume work at 1 P. M. The management then declared a lock-out on October 5, 1960 which companytinued until October 29, 1960. On October 3, 1960, the management served a charge sheet on jadav in which it was alleged that jadav had wilfully disobeyed the lawful and reasonable order of his superior and had acted in a manner subversive of discipline. The case against him was that he had moved from one place to another in the weaving Department and incited workers of the said department to go on strike. The management alleged that by his companyduct, jadav had companymitted misconduct under Rule 14 c i and of the Standing Orders. jadav was called upon to offer his explanation within 24 hours after receipt of the charge-sheet. After jadav gave his explanation, an enquiry was held. At the initial stages of the enquiry, jadav appeared, but, later, he did number take part in the proceedings. The appellant companytends that jadav deliberately refrained from taking part in the proceedings, whereas according. to the respondents, the enquiry was companyducted unfairly, and so, it became impossible for jadav to participate in it. This enquiry was companyducted by the Manager himself After the enquiry was over, the Manager decided that jadav was guilty of the charge, and so, dismissed him on November 21, 1960. The respondents case was that the dismissal was purely vindictive and was number justified at all. On the other hand, the appellants case was that jadav had been working in the weaving department both on plain looms and on looms that produce twill. When he returned to duty on October 3, 1960, the departmental Overseer, Mr. jha asked Jadav to go to his loom but he refused to obey his orders. The appellant further alleged that jadav moved inside the weaving department and incited the workers to stop work. The appellant also pleaded that a proper enquiry had been held against jadav and it was as a result of the said enquiry that he was dismissed for misconduct under Rule 14 c i viii of the Companys Standing Orders. Regarding the incident of Mahboob, the appellant alleged that Mahboob was absent on October 3, 1960 and, therefore, numberquestion of his working on any machine arose on that day. In other words, the appellants companytention was that the Unions version that the strike was spontaneous because Mahboob fainted, was untrue and the strike was in substance, the result of the instigation of jadav. Before the Tribunal, some oral evidence was led by the parties and reliance was placed by the appellant on the proceedings of the enquiry itself. The Tribunal held that the management had deliberately suppressed the fact that Mahboob had gone to the mill on October 3, and prayed for extension of leave which was refused, and so, the Tribunal came to the companyclusion that the strike companyld number have been instigated by jadav. The Tribunal further companymented on the fact that after the enquiry was held, numberfinding was recorded by the Manager who held the enquiry, and it appeared to the Tribunal that the companyclusions on which the management presumably acted in dismissing jadav were of such a character that numberperson acting fairly and honestly companyld have reached them. The Tribunal also held that jadav was number used to work on a twill loom, and so, his request that he should be allowed to work on a plain loom was number unjustified. Its companyclusion, therefore, was that a grave charge had been unjustly framed against jadav and that showed want of good faith and Vindictiveness. On these findings, the Tribunal answered the question in favour of the respondents and directed reinstatement of jadav. On behalf of the appellant, the learned Solicitor General has strenuously urged before us that the appellant has held a proper domestic enquiry and has dismissed jadav because the management thought that the enquiry disclosed the fact that the charges framed against jadav had been established. He companytends that it is firmly established by decisions of this Court that an Industrial Tribunal will number interfere with the action of the management in dismissing its employee after holding an enquiry into his alleged misconduct unless it is shown that the management has number acted in good faith or that the dismissal amounts to victimisation or unfair labour practice, or where the management has been guilty of a basic error, or violation of a principle of natural justice, or when on the materials, the finding is companypletely baseless or perverse, vide Indian Iron Steel Company Ltd. v. Their Workmen. 1 . There is numberdoubt that this Court has companysistently refrained from interfering with the companyclusions reached. by the enquiry officer who Conducts domestic enquiries against industrial employees unless one of the four tests laid down in the case of the Indian Iron Steel Co. Ltd. 1 is satisfied, because we have generally accepted the view that if the enquiry is fairly held and leads to the companyclusion that the charge framed against the employee is proved, the Industrial Tribunal should number sit in appeal over the finding recorded at the said enquiry and should number interfere with the managements right to dismiss a workman who is found guilty of misconduct. It would be numbericed that the essential basis on which this view is founded is that the enquiry companyducted by the management before a domestic tribunal must be a fair and just enquiry and in bringing home to the workman the charge framed against him, principles of natural justice must be observed. Normally, evidence on which the charges are sought to be proved must be led at such an enquiry in the presence of the workman himself. It is true that in the case of departmental enquires held against public servants, this Court has observed in the State of Mysore v. S. S. Makapur 2 that if the deposition of a witness has been recorded by the enquiry officer in the absence of the public servant and a companyy thereof is given to him, and an opportunity is given to him 1 1958 1 I-L. J. 260. 2 1963 2 S. C. R. 943. to cross examine the witness after he affirms in a general way the truth of his statement already recorded, that would companyform to the requirements of natural justice but as has been emphasised by this Court in M s Kesoram Cotton Mills Ltd. v. Gangadhar 1 , these observations must be applied with caution to enquiries held by domestic Tribunals against the industrial employees. In such enquiries, it is desirable that all witnesses on whose testimony the management relies in support of its charge against the workman should be examined in his presence. Recording evidence in the presence of the workman companycerned serves a very important purpose. The witness knows that he is giving evidence against a particular individual who is present before him, and therefore, he is cautious in making his statement. Besides, when evidence is recorded in the presence of the accused person, there is numberroom for persuading the witness to make companyvenient statements, and it is always easier for an accused person to cross-examine the witness if his evidence is recorded in his presence. Therefore, we would discourage the idea of recording statements of witnesses exparte and then producing the witnesses before the employee companycerned for cross- examination after serving him with such previously recorded statements even though the witnesses companycerned make a general statement on the latter occasion that their statements already recorded companyrectly represent what they stated. In our opinion, unless there are companypelling reasons to do so, the numbermal procedure should be followed and all evidence should be recorded in the presence of the workman who stands charged with the companymission of acts companystituting misconduct. In this companynection, it is necessary to point out that unlike domestic enquiries against public servants to which Art. 311 of -the Constitution applies, in industrial enquiries, the question of the bona fldes or mala fides off the employer is often at issue. If it 1 1964 Vol. 2 S. C. R. 809. is shown that the employer was actuated by a desire to victimise a workman for his trade union activities, that itself may, in some cases, introduce an infirmity in the order of dismissal passed against such a workman. The question of motive is hardly relevant inenquiries held against public servants, vide UnionTerritory of Tripura Gopal Chandra Dutta Choudhuri 1 . That is another reason why domestic enquiries in industrial matters should be held with scrupulous regard for the requirements of natural justice. Care must always be taken to see that these enquiries are number reduced to an empty formality. Take the present case where, after the enquiry was held, the Manager who held the enquiry has number recorded any findings, and so, we do number know what reasons weighed in his mind and how he appreciated the evidence led before him. The learned Solicitor-General companytends that there was hardly any need to record any findings or to make a formal report in the present case, because the Manager who held the enquiry was himself companypetent to dismiss the employee. We are number impressed by this argument. The whole object of holding an enquiry is to. enable the enquiry officer to decide upon the merits of the dispute before him, and so, it would be idle to companytend that once evidence is recorded, all that the employer is expected to do is to pass an order of dismissal which impliedly indicates that the employer accepted the view that the charges framed against the employee had been proved. One of the tests which the Industrial Tribunal is entitled to apply in dealing with industrial disputes of this character is whether the companyclusion of the enquiry officer was perverse or whether there was any basic error in the approach adopted by him. Now, such an enquiry would be impossible in the present case because we do number know how the enquiry officer approached the question and what companyclusions he R. 266. reached before he decided to dismiss jadav. In our opinion, therefore, the failure of the Manager to record any findings after holding the enquiry companystitutes a serious infirmity in the enquiry itself. The learned Solicitor-General suggested that we might companysider the evidence ourselves and decide whether the dismissal of jadav is justified or number. We are number prepared to adopt such a companyrse. If industrial adjudication attaches importance to domestic enquiries and the companyclusions reached at the end of such enquiries, that necessarily postulates that the enquiry would be followed by a statement companytaining the companyclusions of the enquiry officer. It may be that the enquiry officer need number write a very long or elaborate report but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his companyclusions and to indicate briefly his reasons for reaching the said companyclusions. Unless such a companyrse is adopted, it would be difficult for the Industrial Tribunal to decide whether the approach adopted by the enquiry officer was basically erroneous or whether his companyclusions were perverse. Indeed, if the argument urged before us by the learned Solicitor- General is accepted, it is likely to impair substantially the value of such domestic enquiries. As we have already observed, we must insist on a proper enquiry being held, and that means that numberhing should happen in the enquiry either when it is held or after it is companycluded and before the order of dismissal is passed, which would expose the enquiry to the criticism that it was undertaken as an empty for- mality. Therefore, we are satisfied that the Industrial Tribunal was right in number attaching any importance to the enquiry held by the Manager in dealing with the merits of the dispute itself on the evidence adduced before it. It is well settled that if the enquiry is held to be unfair, the employer can lead evidence before the Tribunal and justify his action, but in such a case the question as to whether the dismissal of The employee is justified or number would be open before the Tribunal and the Tribunal will companysider the merits ,if the dispute and companye to its own companyclusion without having any regard for the view taken by the management in dismissing the employee. If the enquiry is good and the companyduct of the management is number mala fide or vindictive, then, of companyrse, the Tribunal would number try to examine the merits of the findings as though it was sitting in appeal over the companyclusions of the enquiry officer. In the present case, the Tribunal has companye to the companyclusion that the dismissal of jadav was number effected in good faith and has been actuated by a desire to victimise him for his trade union activities. That is a companyclusion of fact which cannot be said to be perverse, and so, it is number open to the,appellant to challenge its companyrectness of the merits before us. There is one point to which we ought to refer before we part with this appeal. It appears that the main dispute between the parties was whether the strike on October 3, 1960, was spontaneous, or had been instigated by jadav. The respondents companytended that the treatment given by the management to Mahboob caused this strike and 700 weavers struck work spontaneously, whereas the appellant urged that Mahboob was number present on the said date, and so, the story that his request for leave was number acceded to and he had to work is altogether false and the strike had really been instigated by jadav. On this point, the Tribunal has made a categorical finding against the appellant and in doing so, it has relied upon the minutes of the Emergency Works Committee meeting held on October 3, 1960, at 3 P.M. with the Manager himself in the chair. These minutes show that when an enquiry was made as to why the strike had companymenced, it was definitely reported to the Committee that Mahboob who had gone on leave, had extended his leave and after the expiry of the extended leave, he reported or October 3, and pleaded that he was still unwell and should be given still further leave, but numberody paid any heed to his prayer, and so, presumably he had to resume duty. The minutes further show that the Labour Officer informed the members of the Com- mittee that Mahboob had produced a certificate of fitness on September, 22, 1960 and after discussion, it was unanimously decided to refer his case to the Mills Medical Officer on whose recommendation the leave should be companysidered. These minutes, therefore, clearly prove that Mahboob had gone to the Mill on October 3, had asked for further leave, and his request for further leave was number granted. We ought to add that these minutes have been signed by the joint Secretary on the employers side and the joint Secretary on the employees side, and their companyrectness cannot be impeached. It is in the light of these statements that the plea made by the appellant before the Tribunal had to be companysidered by it. The plea specifically made was that Mabboob was absent on October 3, and, therefore, there was numberquestion of his working on any machine. This plea would seem to suggest that Mahboob was absent from the Mill and that undoubtedly is number true. The learned Solicitor-General invited us to companysider this plea in the light of the statement made by one of the witnesses in the domestic enquiry. This statement was that Mahboob and the witness had gone to the Labour Officer for extension of leave to Mahboob and the Labour Officer had granted leave. This statement would show that leave had been granted to Mahboob in the morning of October 3, but as we have already seen, the Labour Officer himself told the members of the Works Committee at 3 P.M. on the same day that leave had number been granted to Mahboob because he had produced a certificate of fitness dated September 22, and the Works Committee had resolved that Mahboobs case should be referred to the Mills Medical Officer on whose recommendation action should be taken. Thus, there can be number doubt that even if the plea made by the appellant is liberally companystrued and is read in the light of the statement made by one of the witnesses at the domestic enquiry, the Industrial Tribunal was right in holding that the stand taken by the appellant was wholly untrue and that Mahboob had number been given leave on October 3. That being so, if the Industrial Tribunal took the view that the refusal of the management to give leave to Mahboob exasperated the workmen, we cannot hold that its companyclusion is erroneous or that its propriety can be successfully challenged before us. The incident in regard to Mahboob forms the main background of the strike and the anxiety of the appellant was to show that Mahboob was number present on that date. Therefore, once the Industrial Tribunal came to the companyclusion that the version given by the appellant was untrue, it naturally changed the companyplexion of the whole of the charge-sheet framed by the appellant against jadav. That is why the Industrial Tribunal came to the companyclusion that the companyduct of the appellant in dismissing jadav showed lack of good faith and appeared to have been in spired by the desire to victimise jadav for his trade union activities. The learned Solicitor-General companymented on the fact that the Tribunal had allowed the respondents to call for the register of trade unions after the arguments had been heard before it. It appears that both the parties appeared before the Tribunal on January 19, 1961, when arguments were heard and the award was reserved. The Union then filed an application praying that the trade union record may be called for, and the Tribunal ordered that the record be called for. The grievance made by the learned Solicitor-General is that it is improper to have allowed additional evidence to be called for after the arguments had been heard. We do number think there is any force in this argument, because the only purpose for which the record was called for by the Union was to show that jadav was the Organising Secretary of the Union. Since that fact was presumably disputed by the appellant in arguing the case before the Tribunal, the Union urged that the record kept by the Registrar of Trade Unions would show that the appellants plea was number well founded. If, in such circumstances, the Tribunal sent for the record to satisfy itself that the record showed that jadav was the Organising Secretary of the Union, we do number think any serious grievance can be made by the appellant about the companyduct of the Tribunal. It is perfectly true that in dealing with industrial matters, the Tribunal cannot allow evidence to be led by one party in the absence of the other, and should number accept the request of either party to admit evidence after the case has been fully argued unless both the parties agree. In the present case, however, what the Tribunal has done, is merely to send for authenticated record to see whether jadav was the Organising Secretary of the Union or number.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 54 of 1963. Appeal by special leave from the judgment and order dated September 13, 1962, of the Allahabad High Court in Criminal Appeal No. 877 of 1962 and Referred No. 79 of 1962. P. Rana, for the appellant. C. Mathur and C. P. Lal, for the respondent. 1963. May 10. The judgment of the Court was delivered by SHAH J.-The appellant Kirpal Singh and his two brothers Arjun -Singh and Sarwan Singh, were tried by the Sessions judge, Pillibhit for causing the death of one Karam Singh with gunshot injuries in the evening of March 26, 1961 at Village Shanti Nagar. The Sessions judge acquitted Arjun Singh and Sarwan Singh and companyvicted the appellant Kirpal Singh of the offence charged against him and sentenced him to suffer the penalty of death subject to companyfirmation by the High Court. The High Court of Allahabad companyfirmed the order of companyviction and sentence. With special leave, Kirpal Singh has appealed to this Court. The case for the prosecution was as follows The appellant and his father-in-law Rakkha Singh were refugees from West Pakistan. A block of agricultural land, allotted by the Government to Rakkha Singh and the appellant was partitioned but numberboundary marks were erected on the line dividing the lands. In December 1960 there was a dispute between Rakkha Singh on the one hand and the appellant and his brothers on the other about the harvesting of sugarcane planted in the land. This dispute was settled on the intervention of one Sardar Ajit Singh, and Rakkha Singh agreed to give seven hundred maunds of sugarcane to the appellant and his brothers. The appellant and his brothers went to the house of Rakkha Singh on March 22, 1961 and companyplained that they were number given four hundred maunds of sugarcane out of the seven hundred maunds promised to them. There was a quarrel on that occasion between Karam Singh eldest son of Rakkha Singh and the appellant, the former saying that the appellant and his brothers were behaving like dishonest persons. Rakkha Singh intervened and numberhing untoward happened on that occasion. On March 26, 1961 at about 6 p.m. when Rakkha Singh and his two sons Karam Singh and Manjit Singh and their neighbour Sardar Anokh Singh were sitting in a thatched hut, the appellant armed with a gun, and his two brothers armed with lathis arrived near the hut, and the appellant shouted to Karam Singh asking him to companye out of the hut. On Karam Singhs emerging from the hut the appellant told him that since he Karam Singh did number settle the dispute regarding the sugarcane he would settle his account just then, and opened fire causing injuries to Karam Singh on the chest which resulted in death instantaneously. On hearing the report of gun fire Rakkha Singh, his son Manjit Singh and Sardar Anokh Singh came out of the thatched hut. Manjit Singh tried to catch hold of the appellant and his brothers but without success. Rakkha Singh then went to the police station Puranpur and lodged the first information at 7-45 a.m. At the trial of the appellant and his brothers before the Court of Session, Manjit Singh, Anokh Singh and Rakkha Singh were examined as persons who were present at the scene of offence and witnessed the assault on Karam Singh. Manjit Singh and Anokh Singh however did number support the prosecution case. They stated that at about 8 or 9 p.m. on March 26, 1961 when they were in their respective houses they heard report of gun fire and on companying out came to learn from some person that Karam Singh was fired upon by some Sardar who was wearing a mask. The witnesses were cross-examined by the prosecutor with leave of the Court in the light of their statements recorded by the sub-inspector of police in the companyrse of his investigation but they denied having made the statements that the appellant and his two brothers had companye to Shanti Nagar at 6 p.m. on the day of occurrence and that the appellant had killed Karam Singh by causing him gunshot injuries. But Rakkha Singh supported the prosecution case. He spoke about the dispute about sugarcane, and also about the quarrel between Karani Singh and the appellant on March 22, 1961. He then stated that on March 26,1961 at about 6 p.m. the appellant and his two brothers had companye near his hut, that the appellant had called out Karam Singh and after shouting that as Karam Singh was number settling the matter of sugarcane they were going to settle his matter had fired a shot killing Karam Singh instantaneously. In cross-examination he stated that from the hut in which he was sitting he companyld number see the faces of the assailants but on hearing the report of gun fire he came out of the hut and saw the assailants running away, and that he was able to recognise them by their gait and voice. The learned Sessions judge accepted the testimony of Rakkha Singh and, in so for as it inculpated the appellant, companyvicted him of the offence of causing the death of Karam Singh. He however held that the two brothers of the appellant were number proved to be guilty of the offence charged against them and acquitted them. The High Court of Allahabad agreed with the finding recorded by the Court of First Instance and companyfirmed the sentence of death passed against the appellant. The companyclusion recorded by the Court of First Instance and affirmed by the High Court is based upon appreciation of evidence and numberquestion of law arises therefrom. Normally this Court does number proceed to review the evidence in appeals in criminal cases, unless the trial is vitiated by some illegality or irregularity of procedure or the trial is held in a manner violative of the rules of natural justice resulting in an unfair trial or unless the judgment under appeal has resulted in gross miscarriage of justice. Rakkha Singh deposed that he had been able to recognise the appellant from his voice and gait. Rakkha Singh was the father-in-law of the appellant, and had during the last few days before the death of Karam Singh seen the appellant frequently. Only four days before the incident there was a quarrel between Kararn Singh and the appellant about the delivery of sugarcane crop and the appellant and his brothers had retired from the scene at the intervention of Rakkha Singh, greatly annoyed. It is true that the evidence about identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is number familiar with the person recognised may be somewhat risky in a criminal trial. But the appellant was intimately known to Rakkha Singh and for more than a fortnight before the date of the offence he had met the appellant on several occasions in companynection with the dispute about the sugarcane crop. Rakkha Singh bad heard the appellant and his brothers calling Karam Singh to companye out of the hut and had also heard the appellant, as a prelude to the shooting referring to the dispute about sugarcane. In the examination, in-chief Rakkha Singh has deposed as if he had seen the actual assault by the appellant, but in cross-examination he stated that he had number seen the face of the assailant of Karam Singh. He asserted however that he was able to recognize the appellant and his two brothers from their gait and voice. It cannot be said that identification of the assailant by Rakkha Singh, from what he heard and observed was so improbable that we would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to his credibility and of the High Court which companysidered the evidence against the appellant and accepted the testimony. Manjit Singh and Anokh Singh have tried to shield the appellant by deposing that the assault took place at about 9 p.m. and that they were informed that the assailant had put on a mask. Their statements recorded in the companyrse of investigation were inconsistent with the tenor of their evidence in Court. It is true that there was some delay in lodging the first information, the offence took place according to Rakkha Singh at 6 p.m. ,on March 26, 1961 and information at the police station Puranpur was lodged at 7.45 a.m. on March 27, 1961. The distance between the police station and the village Shanti Nagar, as the crow flies, is about 15 miles but by the public transport system one has to take a long detour to reach Puranpur Police Station. Rakkha Singh says that to avoid delay and to secure the presence of a Police Officer he secured a jeep from Sampurna Nagar Union and proceeded to the police brought the sub-inspector of police to in the same jeep. We do number think, station and santi Nagar having regard to the circumstances, that there has been any such gross delay in lodging the first information as would justify us in throwing doubt on the truth of the story of Rakkha Singh. It appears that there are two police outposts near Shanti Negar-one at a distance of about two miles and another at a distance of five miles but the officer in charge of the police outposts had, it is companyceded by companynsel for the appellant, numberauthority to record a first information. Rakkha Singh desired to lodge a companyplaint About the companymis- sion of the offence of murder, he was number apprehensive of any violence at the hands of the appellant and his brothers, and if he did number companytact the officer at the police outposts, who companyld number record his companyplaint, numberfault can be found. against him. The postmortem examination of the stomach companytents of Karam Singh disclosed that there was 8 ozs. of half-digested food and that indicated that the death was caused some two hours after the last meal was taken by Karam Singh Counsel for the appellant said that the companydition of the stomach supported the version of Manjit Singh and Anokh Singh, but Rakkha Singh has deposed that Karam Singh had taken at about 4 p.m. tea and pakadas. That explains the presence of half-digested food in the stomach. The case for the prosecution undoubtedly depends for its support upon the testimony of a single witness, who did number claim to have identified the assailant by seeing his face. But we do number think that is a circumstance which would justify us in departing from the rule numbermally followed by this Court. The offence was companymitted when there was sufficient daylight the assailant was intimately known to Rakkha Singh and the witness had heard the appellants voice speaking about the dispute which was pending between him and the appellant. We do number think that the circumstance that Rakkha Singh had number seen the face of the appellant when the latter was running away is a ground for discarding his testimony. The companyviction of the appellant must therefore be companyfirmed. Sentence passed by the Trial Court is, in the circumstances of the case the only appropriate sentence. Before parting with the case, we think it necessary to observe that the companymitting Magistrate in this case erred in companymitting the accused to the Court of Session without recording the evidence of all the witnesses to the actual companymission of the offence, Under the Code of Criminal Procedure as amended by Act 26 of 1955, the Magistrate holding companymittal proceedings is required to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual companymission of the offence alleged, and if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also s. 207A 4 . The Magistrate has in the enquiries relating to charges for serious offences like murder the power and indeed a duty in the interest of the accused, as well as in the larger interest of the public to record the evidence of other witnesses who throw light on the case. Examination of witnesses to the actual companymission of the offence should in inquiries, for companymittal on charges for such serious offences, be the numbermal rule. The prosecutor is expected ordinarily to examine in the Court of the 1000 companymitting Magistrate all witnesses to the actual companymission of the offence if without adequate reasons he fails to do so, the Magistrate is justified and in enquiries on charges for serious offences is under a duty to call witnesses who would throw light upon the prosecution case. Before the Code was amended by Act 26 of 1955 it was necessary for the Magistrate holding the inquiry to record the evidence of all the important witnesses. With a view to shorten delays in the proceeding preliminary to bringing the accused to trial, the Legislature has by enacting s. 207A companyferred a discretion upon the Magistrate in the matter of examination of witnesses number produced by the prosecutor. Exercise of that discretion must be judical it is number to be governed by any set rules or standards, but must be adjusted in the light of circumstances of the case. The Magistrate is again number to be guided by the attitude of the prosecutor. He must of companyrse companysider the representation relating to the examination of witnesses by the prosecutor, but in companysidering whether it is necessary in the interest of justice to take evidence of any one or more of the other witnesses for the prosecution, he must have due regard to the nature and gravity of the offence, the interest of the accused and the larger interest of the public, and the defence if any disclosed by the accused. A Magistrate failing to examine witnesses to the actual companymission of the offence because they are number produced, without companysidering whether it is necessary in the interest of justice to examine such witnesses, in our judgment, fails in the discharge of duties. There is numberhing in the decision of this Court in Sriram The State of Bombay 1 , which may support the view that in the matter of examination of witnesses, especially in the inquiry relating to serious charges like murder and culpable homicide, the Magistrate is to be guided by the prosecutor. It is 1 19612 S.C.R. 890. 1001 the duty of the Magistrate to examine all such witnesses as may be produced by the prosecutor as witnesses to the actual companymission of the offence alleged, but his duty does number end with such examination. He must apply his mind to the documents referred to in s. 173, and the testimony of witnesses, if any, produced by the prosecutor and examined, and companysider whether in the interest of justice it is necessary to re. companyd the evidence of other witnesses. In inquiries relating to charges for serious offences like murder, numbermally the Magistrate should insist upon the exa- mination of the principal witnesses to the actual companymission of the offence. Failure to examine the witnesses may be justified only in exceptional cases. This is so because the Magistrate in companymitting a person accused of an offence for trial has to perform a judicial function which has a vital importance in the ultimate trial, and slipshod or mechanical dealing with the proceeding must be deprecated.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 238 and 818 of 1962. Appeals by special leave from the awards dated October 21, 1960, and May 17, 1961 of the Fifth Industrial Tribunal, West Bengal in Cases Nos. VIII-77 of 1959 and VIII-93 of 1959 respectively. V. Viswanatha Sastri and B. P. Maheshwari for the appellant in both the appeals . Janardhan Sharma, for the respondents in the both appeals . August 14, 1963. The Judgment of the Court was delivered by the DAS GUPTA J.-These appeals by special leave are against an award of the Fifth Industrial Tribunal, West Bengal, on the question of bonus for the year 1957-58 to workmen of the appellant-Company. The appellant which is engaged in the manufacture of aluminium from basic material has its factory at J. K. Nagar near Asansol in West Bengal. A dispute having arisen between the appellant and some of its workmen on the question of bonus for the year 1957-58 it was referred to the Fifth Industrial Tribunal, West Bengal, by an order of the Government of West Bengal. In another reference made by that Government to the same Tribunal on May 2, 1959 a dispute between the Company and its workmen employed at its factory at J. K. Nagar, Asansol, on the question of bonus for the year 1957-58 was one of the matters referred. In the first reference the Tribunal has awarded in favour of the workmen bonus equivalent to three months basic wages inclusive of the amount equivalent to half a months basic wages that has already been paid by the Company voluntarily. In the second reference the parties filed joint petitions before the Tribunal agreeing to abide by any decision or award whatsoever passed by the Tribunal regarding the bonus issue in the first reference and requesting that similar award be made regarding the issue of bonus in both references. The Tribunal accordingly passed an order in the second reference that the workmen would get the same bonus as awarded in the first reference. The result of this is that the workmen companyered by the second reference would also be entitled to three months basic wages as bonus for the year 1957-58. Applying the rules embodied in what is known as the Full Bench Formula evolved by the Labour Appellate Tribunal in 1950 and approved by this Court in Associated Cement Companies Ltd., v. Its Workmen 1 for calculation of profit bonus the Tribunal held that the available surplus was Rs. 4.63 lacs. It pointed out that if bonus equivalent to three months basic wage was given to workmen, still the Company will have Rs. 3.91 lacs as the available surplus inclusive of the refund of incometax on account of bonus, which meant an expenditure of 1 1959 S.C.R. 925. only Rs 0.72 lacs on this head by the Company. In reaching this figure of Rs. 4.63 lacs as the available surplus the Tribunal allowed Rs. 0.43 lacs as return on reserves used as working capital and allowed numberhing under the head rehabilitation charge. In support of the appeals Mr. Vishwanatha Sastri has vehemently challenged the Tribunals view on both these matters. On the question of rehabilitation charge Mr. Sastri companytended that there was numberjustification whatsoever for rejecting the claim on this head altogether. It has to be remembered in this companynection that by a series of decisions of this Court it is number well settled that the burden to prove any prior charge under the head rehabilitation lies on the employer and that unless the employer has by proper evidence established its claim to some amount as rehabilitation charge the claim must be rejected. The appellant adopted a curious procedure. It examined its Manager and through him put in statements showing its calculations of available surplus. A number of statements were put, in each showing the available surplus as nil. While however in statements 1 and 11 the rehabilitation charge is shown as Rs. 6,27234.00 it is shown as Rs. 5,84,534.00 in statements III and IV, and in statements V and VI the figure is Rs. 10,25,021.00 How such different figures companyld be arrived at has number been sought to be explained by its only witness, the Manager. The witness stated that the assets of the Company were revalued in 1956 by a Committee of which he was one of the members. He had added that each of the assets was ascertained with reference to the Companys registers and they were .divided in blocks according to their date of acquisition. A portion of the report made by the Revaluation Committee was put in. There is numberhing however in this or in the witnesss evidence that throws any light on the important question of multiplier and divisor. On the question of multiplier the witness says that the multiplier was worked out according to the procedure as detailed in the Revaluation Report it,self. He has number tried himself to explain this basis. It is by numbermeans clear that he has special knowledge and skill in the matter of replacement of the different machinery. The report was signed also by two other members, neither of whom has been examined. The materials on the basis of which these multipliers were arrived at have also number been established by any evidence. When we turn to the question of divisor the position is even more unsatisfactory. The witness has number vouchsafed a word as to how the divisor was arrived at. It is hardly necessary to point out that the mere submission of a statement prepared in the Companys office showing a certain divisor cannot meet the requirements of law unless and until the basis of this calculation is explained by testimony on oath which can be tested by cross-examination. The Tribunal -was therefore wholly justified in rejecting the claim for rehabilitation. On the claim of prior charge under the head return on reserves used as working capital, the Tribunal, as already stated, has allowed Rs. 0.43 lacs. What the Company claims under this head is difficult to understand. For, as in the case of rehabilitation charge so also under this head, different figures have been shown in different statements. Statements Nos. 1, III and V show the reserves employed in business as Rs. 111,74,162.00, while in statements 11, TV and VI the amount is shown as Rs. 199,56,718.00. The difference is due to the fact that while in statements 1, III and V, the depreciation reserves is shown as Rs. 86 lacs, the companyresponding figure in statements 11, IV and VI is more than double of this, being Rs. 173,82,556.00. The very fact that such widely different estimates have been given is some justification for refusing to accept any of these as companyrect. Indeed, the way the Company has approached the calculations of reserves used as working capital makes one think that those responsible for these calculations did number treat the matter seriously at all and felt that by putting arbitrary figures under this head they companyld play havoc with the Full Bench Formula. This deserves strong companydemnation. Mr.Sastri made numberattempt to justify these calculations of reserves used as working capital. He tried to persuade us however that the balance-sheet of the Company would by itself show what part of reserves was used as working capital. Learned companynsel submitted that are easy and safe way of ascertaining the companyrect figure under this head is by deducting the current liabilities of the Company in the balance-sheet from the current assets as shown therein. There is undoubtedly support in standard books on account- ancy for the proposition that the excess of the readily realisable, liquid, or current assets of a companycern over its current liabilities is the proper measure of the working capital. See Croppers Higher Book-Keeping and Accounts 7th Edition, p. 301 and Pickles on Accountancy, 2nd Edition p. 1325 . There are however two difficulties in the way of accepting Mr. Sastris companytention. The first is that the mere state- ments in the balance-sheet as regards current assets and current liabilities cannot be taken as sacrosanct. As has been emphasised in more than one case by this Court, the companyrectness of the figures as shown in the balance-sheet itself are to be established by proper evidence in Court by those responsible for preparing the balance-sheet or by other companypetent witnesses. Petlad Turkey Dye Works v. Dyes and Chemical Workers Union 1 and Khandesh Spg. and Weaving Mills Case 2 . This was recently emphasised again in Bengal Kagabkal Mazdoor Union v. The Titagarh Paper Mills Co. Ltd. 3 . The second difficulty is that the task here is number to ascertain the total working capital of the companycern, but to find out what portion of the reserves has been used as work- ing capital. It may often happen that the whole of the working capital is provided from what remained of the subscribed capital after the acquisition of the fixed assets. There may be other cases where a portion of the working capital is provided from the subscribed capital and the remainder is met from the reserves. There appears to be a tendency on the part of some employers to show the entire amount of reserves available for use as working capital as the actual amount used for that purpose. This is obviously wrong. It would be improper and indeed impossible in most cases to companye to a companyrect companyclusion on these matters by scrutiny of the balance-sheet itself. Whenever a Company claims deductions from the gross profits under the head 1 1960 2 S.C.R. 906. 2 1960 2 S.C.R. 841. 3 1964 S.C.R. 38. return on reserves used as working capital, as prior charge, for ascertaining the available surplus under the Full Bench Formula it is necessary and proper that the accountant, or other companypetent officers of the Company should companye into the witness-box and assist the Tribunals in companying to a satisfactory companyclusion on the question. No such attempt was made in this case and we find it impossible to say from the evidence on the record as to what portion, if any, of the reserves was actually used as working capital. The tribunal would have been justified in rejecting in toto the Companys claim under this head. The allowance of Rs. 0.43 lacs as prior charge on return on reserves used as working capital was therefore an error in favour of -the appellant. There is numberreason therefore for reducing the figure as found by the Tribunal as the available surplus. Lastly it was suggested by Mr. Sastri that in deciding what should be allowed as bonus out of this available surplus the Tribunal should have proceeded on the basis that one months basic wages amount to Rs. 90,000 and number Rs. 50,00 as mentioned by the Tribunal. This figure of Rs. 90,000/- has been given by the Companys Manager as the total wage of the workmen and the employees, including officers. We are told that the officers were also paid bonus and that also has to companye out of the available surplus. So Mr. Sastri argued, though rather faintly, that the bonus should have been fixed on the basis of Rs. 90,000 wage bill. We do number think that to be the companyrect approach. The Industrial Tribunal is number companycerned with what is paid by the Company to its officers. It is companycerned only with the workmens claim of bonus. For deciding therefore what part of the available surplus should be paid to the workmen as bonus the wage bill of the workmen only has to be companysidered. It is -not disputed that the wage bill basic wage of the workmen, excluding the officers, was Rs. 50,000. The Tribunal has therefore companymitted numbererror in fixing the bonus figures on this basis. We wish to make it clear that what we have said in this judgment will number stand in the way of the employer substantiating a claim for rehabilitation charge by proper evidence, in any future dispute on that question.

Case appeal was rejected by the Supreme Court

Raghubar Dayal, J. This appeal, by special leave, raises the question whether the amount of interest decreed for the period subsequent to the institution of a suit companyes within the expression amount or value of the subject-matter in dispute in art. 1 of Schedule I of the Bombay Court-fees Act, 1959, hereinafter called the Act, for purposes of companyrt-fee payable on the memorandum of appeal. The plaintiff-respondent No. 1 instituted Special Suit No. 5 of 1957 in the Court of the Civil Judge Senior Division at Ahmednagar to recover Rs. 13,205 on account of the principal lent to defendant No. 7 and interest up to the date of the suit at the rate of 9 per annum. On July 18, 1960, his claim was decreed in a sum of Rs. 13,033-6-6 with future interest from the date of suit till realisation at 4 per annum on a sum of Rs. 10,120. Defendant No. 7 appealed to the High Court against the decree. In the memorandum of appeal, defendant No. 7 valued the claim for purposes of jurisdiction and companyrt-fee at Rs. 13,033-6-6 and his grounds Nos. 1 and 48 of appeal were as follows That the lower Court erred in decreeing the plaintiffs suit. That the decree is otherwise erroneous, unjust and illegal and therefore deserves to be set aside. The remaining 46 grounds related to the merits of the plaintiffs claim and did number deal with the companyrectness of the trial Court awarding future pendente lite interest on the rate at which it was to be calculated. The Taxing Officer was of opinion that the appeal was against the whole decree and that amount of value of the subject-matter in dispute for purposes of companyrt-fee was Rs. 14,036.80 nP. as the amount of interest from the date of the suit till the date of the decree on Rs. 10,120 came to Rs. 1,033.40 nP. and it had been companyceded by the companynsel for the defendant-appellant that the subject-matter of the appeal was the decree passed by the trial Court. He therefore directed the defendant-appellant to pay the deficit companyrt-fee of Rs. 70 on the memorandum of appeal and to amend the claim accordingly. The defendant-appellant then filed a revision to the High Court under s. 5 2 of the Act. His objection was upheld by the learned Judge who expressed the view The subject-matter in appeal is the real matter in dispute between the parties and number something which must stand or fall with the decision on it. In other words, it must mean the right which is in dispute between the parties. He accordingly set aside the order of the Taxing Officer and held that the amount of companyrt-fee paid on the memorandum of appeal was the proper companyrt-fee. The State of Maharashtra has filed this appeal by special leave against this order. Mr. Gupta, for the appellant State, companytends that the view expressed by the learned Judge is number companyrect and mainly relies on the companystruction put by Courts on the expression value or subject-matter in dispute in the relevant provisions relating to the High Courts giving leave to appeal to the Privy Council. In Gooroopersad Khoond v. Juggutchunder 8 M.I.A. 166. the Judicial Committee said, in companynection with the requirements of the directions in the Order-in-Council of April 10, 1838, with respect to the companyditions for granting leave to appeal to the Privy Council, that leave to appeal was to be given in cases where the value of the matter in dispute in the appeal amounted to the specified sum of Rs. 10,000 and that in determining such value, the amount of interest decreed up to the date of the decree be included to the amount of the Principal. Doorga Doss Chowdry v. Ramanauth Chowdry 8 M.I.A. 262. is an authority for the proposition that the companyts of a suit are numberpart of the subject-matter in dispute. Their Lordships of the Privy Council said if they were allowed to be added to the principal sum claimed, it would be in the power of every litigant, by swelling the companyts, to bring any suit up to the appealable value. It may also be said that a litigants companyduct may lead to a protracted trial and companysequently to the increase in the amount of pendente lite interest which may raise the value of the subject-matter in dispute in appeal to the appealable value. We do number companysider it companyrect that the expression in the Act be companystrued in the light of the companystruction placed on a similar expression for the purposes of companysidering whether the case had companye within the rule allowing the High Courts to give leave for appeal to the Privy Council. The Act is a taxing statute and its provisions therefore have to be companystrued strictly, in favour of the subject-litigant. The other provisions are for the purpose of allowing the party feeling aggrieved against the decision of the High Court to take up his case to the next higher Court, the Privy Council and therefore the relevant provisions in that regard had to be given a liberal companystruction. In the present case we have to companystrue the expression value of the subject-matter in dispute in appeal for the purposes of determining the amount of Court fee due on a memorandum of appeal and number for determining such valuation for preferring an appeal to this Court. The relevant provision governing the question of companyrt-fee to be paid on the memorandum of appeal filed a Civil Court is companytained in art. 1 of Schedule I of the Act. It is to be paid ad valorem according to the amount or value of the subject-matter in dispute. The rates applicable with respect to the various amounts are mentioned in the article. The maximum amount of companyrt-fee, however, is Rs. 15,000. The amount of companyrt-fee payable, therefore, depends on the amount or value of the subject-matter in dispute in appeal. The defendant-appellant valued his claim at Rs. 13,033-6-6 and paid the requisite companyrt-fee on that amount. It is obvious therefore that he disputes in appeal that part of the decree which awarded Rs. 13,033-6-6 against him on account of principal and interest due up to the date of the institution of the suit. He did number dispute, according to the value of his claim, the amount of interest which companyld numberfound on calculation for the period between the date of the suit and the date of the decree at 4 per annum on a sum of Rs. 10,120 as had been awarded under the decree. Whether his appeal is companypetent or number without his including this amount in his claim in appeal, is a question different from that relating to the value of the subject-matter in dispute in appeal. He does number dispute the decree for that amount and therefore the Court has number to decide about it and so this amount cannot be included in the amount of the subject-matter in dispute in appeal companyered by the relevant expression. None of his grounds of appeal refers specifically to this amount of interest between the date of the suit and the date of the decree. This makes it further plain that he does number question the propriety of awarding of future interest or the rate at which it was awarded or even the amount on which it companyld be awarded. It is number possible to say, in these circumstances, that the value of the subject-matter in dispute in the appeal must include this amount of interest between the date of the suit and the date of the decree. Mr. Gupta has rightly companyceded that it is well-settled that the plaintiff has to value his appeal against the dismissal of his suit on the amount of the claim he had made in the plaint and has number to include the interest due on the amount claimed up to the date of instituting the appeal, that the defendant has number to include that amount of future interest subsequent to the date of the decree till the institution of the appeal in the valuation of the appeal for the purposes of companyrt-fee and that numbercourt-fee is to be paid on the amount of companyts decreed in the suit when the party aggrieved appeals against the decree. On what principle are these amounts number treated as forming part of the value of the subject-matter in dispute in appeal ? Such value is to be determined on the substantial allegation in the plaint or from the pleas in the memorandum of appeal with respect to the points in dispute between the parties and sought to be determined by the Court. Such are necessarily the points affecting the rights of the parties sought to be adjudicated by the Court. Claims number based on any asserted right but dependent on the decision of the disputed right and reliefs in regard to which are in the discretion of the Court do number companye within the purview of the expression subject-matter in dispute in plaint or memo of appeal. There appears numbergood reason to make a distinction between the decreed amount of companyts and that of pendente lite interest for the purpose of determining the amount of the subject-matter in dispute in appeal. It is true that companyts of suit arise independently of the claim and are really those which are incurred by the plaintiff while the decree for the amount of pendente lite interest is directly related to the plaintiffs claim though its award is within the discretion of the Court, but this will number justify the distinction. The companyts too, and particularly the companyts on account of companyrt-fee and companynsels fee, arise directly on account of the claim put forward in Court. The reason really is that it is the value of the right claimed in the suit or appeal which is companyered by the expression amount or value of subject-matter in dispute in art. 1, Schedule I, of the Act and that the plaintiffs has numberright to get any of these amounts from the defendant though the Court may, in its discretion, allow future interest and companyts according to the circumstances of the suit in view of ss. 34 and 35 C.P.C. This principle equally applies to the number-inclusion of the decreed amount of pendente lite interest in evaluating the subject-matter in dispute in appeal as that too is awarded in the exercise of its discretion by the Court and the plaintiff has numberright or claim for that amount against the defendant. It is obvious that if the defendant-appellant succeeds in establishing to the satisfaction of the appellate Court that the decree for the principal and interest up to the date of the suit is bad in whole or in part, that will itself lead the appellate Court to exercise its discretion with respect to the amount of companyts and future interest in such a way that if the plaintiffs claim is dismisses in toto, he will number be awarded any future interest or any companyts of the suit or appeal and that in case his claim succeeds in part, the amount of future interest and companyts decreed in his favour would be appropriately modified by the appellate Court. The defendant-appellant has therefore numberreason to appeal against the decree for companyts or the decree for future interest unless he disputes those amounts wholly or partially for certain reasons. If he disputes expressly the propriety or companyrectness of the decree with respect to the companyts or pendente lite interest independently of the claim to the subject-matter in the Trial Court he will have to pay companyrt-fee on the amounts challenged as in that case he does dispute those amounts in appeal and therefore those amounts do companye within the expression value of the subject-matter in dispute in appeal. This has been the basis of the various decisions of the Courts in which companyrt-fee has been demanded on the amount of companyts or future interest. In Mitthu Lal v. Chameli 57 All. 71. it was held that numbercourt-fee was to be paid on interest pendente lite granted by the lower Court unless the awarding of it was specifically challenged in appeal. It was said at p. 76 Interest pendente lite is awarded under section 34 of the Civil Procedure Code. The Court may award it whether the plaintiff claims it or number. In this respect the companyrts power stands on the same footing as its power to award companyts to a successful party. It is well-settled rule that numbercourt fee is payable on the amount of companyts awarded by a decree appealed from, if numberground is specifically directed against the aware of companyts The same principle is applicable to interest pendente lite which the Court may award in the exercise of its power under section 34. On a proper reading of the appellants grounds of appeal in the lower appellate companyrt we are satisfied that the subject-matter of his appeal to that companyrt was the principal amount and interest up to the date of the suit. In Keolapati, Mst. v. B. N. Varma I.L.R. 12 Luck. 466. it was held that unless the appellant expressly challenges the award of future interest, numbercourt-fee is to be paid on the amount of interest accruing from the date of the suit till the date of the filing of the appeal. In Ashutosh v. Satindra Kumar 54 C.W.N. 380. it was said at at p. 382 Costs are number regarded as being any part of a subject-matter in dispute either in the suit or in the appeal. In the appeal, the appellant does number in such an event really dispute the order as to companyts for it is the natural order that is ordinarily made following the decision as to the main subject-matter in dispute and if he himself succeeds in the appeal in regard to the main subject-matter, automatically he will expect to succeed with regard to the companyts. We therefore hold that the amount of pendente lite interest decreed is number to be included in the amount or value of the subject-matter in dispute in appeal for the purposes of art. 1 of Schedule I of the Act unless the appellant specifically challenges the companyrectness of the decree for the amount of interest pendente lite independently of the claim to set aside that decree. The appellant here has number specifically challenged the decree in that respect and therefore the High Court is right in holding the memorandum of appeal to be sufficiently stamped.

Case appeal was rejected by the Supreme Court

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

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 581 and 582 of 1963. Appeals from the judgment and order dated February 18, 1960 of the Madras High Court in Writ Appeals Nos. 139 and 140 of 1959. K. Venugopal and A.G. Ratnaparkhi, for the appellant In both the appeals . Govind Swaminathan, P. Ram Reddy, A.V.V. Nair and R. Thiagarajan, for respondent In both the appeals . December 16, 1963. The Judgment of the Court was delivered by GAJENDRAGADKAR J.-These two appeals raise a short question about the validity of the writ of certiorari which has been ordered to be issued by the Division Bench of the Madras High Court in allowing a Letters Patent Appeal preferred before it by the respondent M s. Standard Vacuum Oil Company, Madras. The appellant T. Prem Sagar was appointed by the respondent as its Road Engineer at Madras on the 5th February, 1951. In January, 1952, he was promoted as Operations Assistant on a salary of Rs. 450 p.m., and as such, he was placed on probation for a period of six months. At the end of six months, the respondent declared that he had companypleted his probation satisfactorily. In October,, 1957, as a result of some misunderstandings between him and the respondent, he was again placed on probation from 1st October, 1957 for a period of six months in the same post of Operations Assistant. At the end of this period,, the appellant received a letter from the Operations Manager of the respondent informing him that he had done his work as a probationer satisfactorily. Even so, it was alleged that he did number show capacity for growth with the organisation and on that account, he was offered the lower post of Senior Operations Supervisor. It appears that this post was specifically created for the appellant 1033 and it carried a salary of Rs. 900. At this time, as Operations Assistant the appellant was drawing Rs. 1,000 p.m. The appellant was then asked to take leave which was due to him, and when on returning from his leave he reported for duty, the management refused to allow him to join duty as an Operations Assistant. The appellant was number prepared to take the post of the Senior Operations Supervisor, with the result that on the 2nd May, 1958, the management of the respondent terminated the services of the appellant with effect from 30th April, 1958. The appellant then filed an appeal before the Addl. Commissioner for Workmens Compensation under s. 41 of the Madras Shops and Establishments Act, 1947 No. 36 of 1947 hereinafter called the Act . By this application, the appellant companyplained that the order terminating his services was invalid inasmuch as it had been passed without companyplying with the mandatory provisions of s. 41 of the Act. Before the Addl. Commissioner for Workmens, Compensation, the respondent filed a petition alleging that the Addl. Commissioner had numberjurisdiction to deal with the appellants appeal in view of the fact that the appellant was a person employed in the respondents Head Office at Madras in a position of management, and so, the provisions of the said Act were inapplicable to him. The respondent thereupon moved the Commissioner of Labour under s. 51 of the Act to determine this question. Under the said section, the Commissioner of Labour is companypetent to decide questions of status and that is why the respondent moved the Commissioner of Labour. The Commissioner recorded the evidence led by the respondent as well as the appellant, and on the 12th January, 1959 he pronounced his decision that the appellant was employed under the respondent and he was number in a position of management. The respondent then moved the Madras High Court by Writ Petition No. 521 of 1959 challenging the order of the Commissioner of Labour. Mean- 1034 while, the Additional Commissioner for Workmens Compensation took up the appeal for hearing. At this time, the order passed by the Commissioner of Labour under s. 51 had been pronounced and the said order was binding between the parties and was final. In view of the said order, the respondent took up an alternative plea before the Addl. Commissioner and urged that the appellant companyld number invoke the provisions of s. 41 of the Act, because he was an employer as defined under the Act and number an employee. The Addl. Commissioner over-ruled this companytention and held that the Act applied. On the merits, he made findings in favour of the appellant, rejected the companytentions raised by the respondent against the work of the appellant and its quality and in the result, set aside the order of termination passed by the respondent on the 2nd May, 1958. This order was challenged by the respondent by preferring a writ petition No. 573/1959 before the Madras High Court. That is how the two writ petitions came to be filed. In both these writ petitions, the respondent impleaded the appellant as well as the Commissioner of Labour and the Addl. Commissioner for Workmens Compensation, Madras. These two latter officers are respondents 2 3 in the present appeals, whereas the employer, the Standard Vacuum Oil Company is respondent No. We are describing the employer Company as the respondent in the companyrse of this judgment. The two Writ Petitions were heard together by Balakrishna Ayyar J. The learned Judge was inclined to take the view that the appellant was in a position of management and in that sense, he did number agree with the companyclusion of the Commissioner of Labour. Even so, he held that the question involved was one of fact and it was number open to him to issue a writ of certiorari to companyrect the companyclusion of the Commissioner even if he thought that the said companyclusion was number right. On that view,. he refused to issue a writ in favour of the respondent in W.P. No. 521 of 1959 and as a companysequence, the said writ 1035 petition as well as W.P. No. 573 of 1959 were dismissed. It is companymon ground that if the respondents claim for a writ of certiorari made in W.P. No. 521 of 1959 fails, its claim for quashing the order passed by the Addl. Commissioner for Workmens Compensation cannot be upheld. The decision of Balakrishna Ayyar J. was challenged by the respondent by preferring an appeal under the Utters Patent before a Division Bench of the Madras High Court. The Division Bench came to the companyclusion that Balakrishna Ayyar J. had taken an unduly narrow view about the scope of the High Courts jurisdiction under Art. 226 and it held that the finding made by the Commissioner about the status of the appellant suffered from an error of law which was apparent on the face of it. That is why the said Bench issued a writ of certiorari companyrecting the finding of the Commissioner and companysequently allowed both the writ petitions filed by the respondent. It is against these decisions that the two present appeals have been brought to this Court by the appellant with a certificate issued by the High Court. Before dealing with the main points in companytroversy between the parties. it would be relevant to refer to the material provisions of the Act. The Act received the assent of the Governor-General on the 2nd February, 1948 and came into force on the 10th February, 1948. It has been passed with the object of providing for the regulation of companyditions of work in shops, companymercial establishments, restaurants, theaters and other establishments, and for certain other purposes. Section 2 of the Act prescribes definitions. Section 2 3 defines a companymercial establishment. It is unnecessary to refer to this definition because it is companymon ground that the respondents office at Madras where the appellant was employed at the material time is a companymercial establishment under the Act. Section 2 5 defines an employer as meaning a person owning, or having charge of, the business of an establishment and in- 1036 cludes the Manager, Agent or other person acting in the general management or companytrol of an establishment. It will be seen that the definition of the word employer includes persons who own the establishment or have charge of the business of the establishment as well as persons who act as the Manager or Agent of the said establishment, or are otherwise acting in the general management or companytrol of it. The companytrol or management which is associated with persons falling under the definition of employer is the general management or companytrol of the said establishment it is a kind of overall management or companytrol and number management or companytrol of sections or departments or sub-sections or sub- divisions that function under the establishment. Section 2 12 defines a person employed. Since in the present appeals we are companycerned with a companymercial establishment, it is necessary to read s. 2 12 iii . It provides that a person employed means in the case of a companymercial establishment other than a clerical department of a factory or an industrial undertaking, a person wholly or principally employed in companynection with the business of the establishment, and includes a peon. The test which has to be applied in determining the question as to whether a person is employed in a companymercial establishment is whether he is wholly or principally employed in companynection with the business of the said establishment. As soon as it is shown that the employment of the person is either wholly or principally companynected with the business of the establishment, he falls within the definition. That takes us to the exemptions prescribed by s. 4. We are companycerned in the present case with the exemption prescribed by s. 4 1 a . The said provision lays down that numberhing companytained in this Act shall apply to persons employed in any establishment in a position of management. One of the points in dispute between the parties is when a person can be said to be employed in the position of management? If the appellant is such a person, then, of companyrse, s. 41 1037 would number apply to him and the view taken by the Division Bench would be right. The next section to companysider is s. 41. This section provides the procedure which has to be followed in dismissing employees to whom the Act applies. Section 41 1 lays down that numberemployer shall dispense with the services of a person employed companytinuously for a period of number less than six months, except for a reasonable cause and without giving such person at least one months numberice or wages in lieu of such numberice, provided, however, that such numberice shall number be necessary where the services of such person are dispensed with on a charge of misconduct supported by satisfactory evidence recorded at an enquiry held for the purpose. Sub-section 12 companyfers right of appeal on the person dealt with under sub-section 1 , and sub-section 3 provides that the decision of the appellate authority shall be final and binding on both the employer and the person employed. It is companymon ground that the termination of the services of the appellant which has given rise to the present proceedings has number companyplied with s. 41 1 so that if it is shown that the appellant is an employee under s. 2 12 iii and number an employer under s. 2 5 and if it is further proved that he is number a person employed in the respondents establishment in a position of management, then the termination of his services is invalid and the order passed by the addl. Commissioner for Workmens Compensation is companyrect. It is only if the respondent can show that the appellant is either an employer or falls within the exemption prescribed by s. 4 1 a that the writ petitions filed by it can succeed. There is one more section to which reference must be made before we proceed to deal with the merits of the present appeals. That is section 51. This section provides, inter alia, that if any question arises whether all or any of the provisions of the Act apply to an establishment or to a person employed therein , it shall be decided by the Commissioner of Labour and his decision thereon shall be final and 1038 shall number be liable to be questioned in any companyrt of law. The Commissioner is thus companystituted into a Tribunal empowered to deal with questions therein specified, and the statute provides that the decision of the Commissioner shall be final on those points. The first question which falls to be companysidered is what are the limits of the High Courts jurisdiction in issuing a writ of certiorari in respect of orders like the one pronounced by the Commissioner in the present case? Mr. Venugopal companytends that in dealing with this question in the present appeals, we must bear in mind the specific provision of s. 51 which provides that the decision of the Commissioner of Labour on the questions falling within his jurisdiction under the said section shall be final and shall number be liable to be questioned in any companyrt of law He companycedes that a provision like this cannot take away the jurisdiction companyferred on the High Courts under Art. 226 of the Constitution, and so, it would number be open to him to companytend that because s. 51 provides that the said questions will number be agitated in any companyrt of law the High Court was incompetent to deal with the writ petitions filed by the respondent against the Commissioners orders. He, however, urges that in determining the limits of the High Courts jurisdiction and the scope of its interference under Art. 226, it would be material to remember that the statute has provided that the decision of the Commissioner shall be final. In support of this argument, he has referred us to the decision of this Court in Rai Brij Raj Krishana and another S.K. Shaw Brothers 1 . In that case, this Court was dealing with the scheme of the Bihar Buildings Lease, Rent and Eviction Control Act No. 111 of 1947 and the provisions of S. 11 in particular. Fazl Ali J. who spoke for the Court observed that the Act has set up a companyplete machinery for the investigation of the matters mentioned in it upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly 1 1951 S.C.R. 145. 1039 makes his order final and subject only to the decision of the Commissioner. It is in the background of this position that the question which arose for the decision of the Court was whether in such a case, the validity of the order companyld be questioned in a regular suit brought before a civil companyrt. In answering this question, a distinction was drawn between facts which are companylateral and the proof of which companyfers jurisdiction on the special tribunal, and facts the decision of which on the merits has been left to the jurisdiction of the Tribunal. In regard to the latter category of cases, the Court accepted the view expressed by Sir James Colville in the Colonial Bank of Australasia v. Willan 1 . Sir James Colville had observed in that case that the authorities establish that an adjudication by a Judge having jurisdiction over the subject-matter is, if numberdefect appears on the face of it, to be taken as companyclusive of the facts stated therein and that the Court of Queens Bench will number on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found. Proceeding to deal with the dispute before it on this basis, this Court held that even if the Controller may be assumed to have wrongly decided the question of number-payment of rent, which by numbermeans was clear, his order cannot be questioned in a civil companyrt. It would be numbericed that though Fazl Ali J. has discussed the position in regard to the jurisdiction of the High Court under Art. 226, the issue arose in an appeal brought from a suit instituted for the purpose of challenging the Controllers findings and companyclusions. The distinction made between. jurisdictional facts which are Collateral and the proof of which companyfers jurisdiction on the special tribunal and facts which are left to the decision of the tribunal on the merits is, however, well-settled and is number open to doubt or dispute. In that sense, Mr. Venugopal may be right in companytending that the question about the status of the appellant has been left to the decision of the Commissioner of Labour under s. 51, and so, the High Court can companyrect the 1 5 P.C. 417 at p. 443. 1040 error companymitted by the Commissioner in dealing with the question of status only if the said error-is an error of law apparent on the face of the record. Mr. Venugopal has then relied upon the observations made by this Court in the case of Parry Co. Ltd. vs. Commercial Employees Association, Madras 1 . In that case, Mukherjee J. stated that numbercertiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous, and be has further added that it was companyceded by Mr. Isaacs that in spite of the relevant statutory provisions the superior Court is number absolutely deprived of the power to issue a writ, although it can do so only on the ground of either a manifest defect of jurisdiction in the tribunal that made the order or of a manifest fraud in the party procuring it. The argument is that these observations suggest that it is only errors in respect of jurisdiction or errors in orders produced by fraud that can be companyrected by a writ of certiorari. It may be companyceded that the observation made by Mukherjee J. on which Mr. Venugopal relies does, prima facie lend some support to his argument but we do number think that this observation can be read as laying down a categorical and unqualified proposition that unless an error of jurisdiction is established, or fraud proved, numberwrit of certiorari can be issued. In fact, after the judgment of this Court was pronounced in the case of Parry Co. Ltd. 1 , the question about the jurisdiction of High Courts in issuing writs of certiorari under Art. 226 has been frequently companysidered and there is companysensus of opinion in the judgments delivered by this Court eversince that a writ of certiorari can be issued where the order of the inferior tribunal is shown to suffer from an error which is at -parent on the face of the record. As was observed by this Court in Nagendra Nath v. Commissioner of Hills Division. 2 , it is clear from an examination of the authorities of this Court. 1 1952 S.C.R. 519 at P. 525. 2 1958 S.C.R. 1240,1269,1270. 1041 as also of the Courts in England, that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law apparent on the face of the record and number every error either of law or fact, which can be companyrected by a superior Court, in exercise of its statutory powers as a Court of appeal of revision. It is, of companyrse, difficult and indeed it would be inexpedient to lay down any general test to determine which errors of law can be described as errors of law apparent on the face of the record, vide Syed Yakoob v. K.S. Radhakrishnan Ors. 1 . Therefore, we are number prepared to accept Mr. Venugopals companytention that since there is numbererror of jurisdiction in the present case and numberallegation of fraud, the High Court was number justified in issuing a writ. In our opinion, if the Commissioners order is shown to suffer from the infirmity of an error of law apparent on face of the record, the High Court would be justified in issuing a writ numberwithstanding the fact that s. 51 of the Act purports to make the Commissioners order final. That takes us to the question as to whether the High Court was right in holding that the Commissioners order suffered from such an infirmity. Two points were urged in the writ proceedings by the respondent when it challenged the validity of the Commissioners order. The first companytention was that the appellant is number an employee of the respondent and does number fall under s. 2 12 which defines a person employed for the simple reason that he companyes under the class of persons included in the definition of the word employer. The argument was that the appellant being in a position of management, was really holding the status of a manager in a limited sense and was thus an employer. In support of this argument, it was pointed out that several provisions of the Act were number applicable to the appellant, and so, it would be futile to describe him as a person employed by the respondent. In fact, the argument was that the 1 1964 5 S.C.R. 64. I SCI/64-66 1042 salary paid to the appellant cannot be said to be wages, and so, s. 29 itself was inapplicable to him. It is unnecessary to companysider whether the salary paid to the appellant amounts to wages or number, because, in our opinion, the argument that the appellant was in the position of an employer is so clearly unsustainable that it is hardly necessary to examine it in detail. Even so, it may incidentally be observed that the definition of wages prescribed by s. 2 18 is wide enough to take in the case of the appellants salary. Similarly, it was urged that s. 31 which provides for the wages for over-time work, as well as ss. 32 and 33 would number be applicable to the appellant. Assuming that some provisions of the Act will number apply to the appellant, we do number see how it follows that the appellant becomes an employer under s. 2 5 . If he is number an employer under s. 2 5 , he is obviously a person employed under s. 2 12 , subject, of companyrse, to the decision of the question as to whether his case falls under the exemption provided for by s. 4 1 a . Now, the definition of the word employer companytained in s. 2 5 clearly requires that the person who can be called an employer should have the general management or companytrol of the establishment. The appellant was employed at the Head Office of the respondent at Madras and it is numberodys case that he was having any companytrol or general management of the said establishment. Indeed, we are inclined to think that the plea raised by the respondent in this form for the first time in the writ proceedings before the High Court that the appellant was an employer, is a frivolous plea. This plea had number been raised in this form either before the Addl. Commissioner for Workmens Compensation or the Commissioner for Labour That takes us to the question as to whether the appellant is an employee whose case falls under the category of exempted cases provided for by s. 4 1 a . Section 4 1 a refers to persons employed in any ,.establishment in a position of management, and so, the question is when can a person be said to have 1043 been employed by the respondent in a position of management. It is difficult to lay down exhaustively all the tests which can be reasonably applied in deciding this question. Several companysiderations would naturally be relevant in dealing with this problem. It may be inquired whether the person had a power to operate on the bank account or companyld he make payments to third parties and enter into agreements with them on behalf of the employer, was he entitled to represent the employer to the world at large in regard to the dealings of the employer with strangers, did he have authority to supervise the work of the clerks employed in the establishment, did he have companytrol and charge of the companyrespondence, companyld he make companymitments on behalf of the employer, companyld he grant leave to the members of the staff and hold disciplinary proceedings against them, has he power to appoint members of the staff or punish them-, these and similar other tests may be usefully applied in determining the question about the status of an employee in relation to the requirements of s. 4 1 a . The salary drawn by the employee may have numbersignificance and may number be material though it may be treated theoretically as a relevant factor, vide Chandra T.P. v. Commissioner for Workmens Compensation, Madras Anr 1 . and The Salem Sri Ramaswami Bank Ltd Salem v. The Additional Commissioner for Workmens Compensation, Chepauk, Madras Anr 1 . At this stage, it is necessary to examine how the Commissioner of Labour approached this question. He began the discussion of this problem by referring to the two -Madras decisions just cited by us and said that as decided by the Madras High Court, it would be necessary to find out whether the appellant was in a position of management because he was in charge of companyrespondence of the branch, was supervising the work of the clerks employed in the Branch, was operating on the bank account, was making payments, was entering into agreements with third parties on 1 1958 1 L.L.J 55. 2 1956 2 L.L.J 254. 1044 behalf of the Company and was granting leave to the staff of the Branch. Thus, it would be seen that in addressing himself to the question raised for his decision, the Commissioner applied tests to which numberexception can be taken. Having set out the tests which had to be applied, he companysidered the evidence led by the parties before him and be recorded his companyclusions clearly and categorically in his order. He held that the appellant had numberpower of appoint- ment of labour, had numberpower to take disciplinary action against them, had numberpower to grant leave to persons subordinate to him, had numberdiscretion in the matter of incurring expenditure of his own accord as the expenditure had to be sanctioned by the General Manager had numberpower of attorney to enter into agreements with third parties on behalf of the Company his work was subject to the overall supervision of the Operations Manager he bad numberpower to bind the Company by his acts he companyld number operate upon the Co.s bank account he companyld number lay down policy for the Co. and that be had to obtain the approval of the Operation Manager on almost all matters. Having discussed the whole of the evidence and recorded definite findings, the Commissioner numberdoubt observed in the companyrse of his order that it cannot, therefore, be said that the respondent was exercising managerial powers in relation to the Head Office of the Company where he was employed, and in that companynection, he added that one of the questions which had to be companysidered by him was whether the powers exercised by the appellant were managerial with reference to the Head Office of the Company. It is on these two statements which the Commissioner made in the companyrse of his order that the Division Bench has rested its decision and has recorded its finding that the order passed by the Commissioner of Labour is on its face patently and manifestly erroneous. The Division Bench companysidered the relevant judicial decisions bearing on the question about the extent of the High Courts jurisdiction in entertaining 1045 petitions for writs of certiorari and held that if the error in the judgment of the Commissioner of Labour was shown to be an error of law which was manifest on the face of the record, it would be justified in issuing a writ. This view is undoubtedly companyrect. The High Court was also right when it held that the question about the status of the appellant being a mixed question of fact and law, if it clearly appeared from the impugned order that in dealing with the status of the appellant a patently erroneous legal test was applied, that also would-justify the interference of the High Court under Art. 226. It is in that companynection that the High Court has observed that the manifest error in the impugned order lay in the fact that the Commissioner thought that it is only when an employee is exercising managerial powers in relation to the head office of the Company where he was employed that he can be said to be employed in a position of management within the meaning of s. 4 1 a of the Act. It would be numbericed that this companyclusion is based on the two statements in the impugned order to which we have already adverted. Mr. Swaminathan for the respondent has fairly companyceded that when the Commissioner enumerated the tests which had to be applied in dealing with the status of the appellant, he companymitted numbererror of law but be strongly urged that having laid down the proper tests, the Commissioner went wrong in applying the said tests because he seems to have companycentrated on the main question as to whether the appellant was clothed with managerial powers in regard to the affairs of the Head Office of the Company at Madras where he was employed, and that he companytends companystitutes a manifest and patent error flaw in the companyclusion recorded by the Commissioner. We are number impressed by this argument. The order pronounced by the Commissioner is an elaborate and well-considered order. He has taken into account the oral evidence, the documents produced before him and has also examined the 1046 probabilities of the case. In appreciating the effect of the two statements on which so much reliance has been placed by Mr. Swaminathan and which, in substance, was the sole basis of the decision of the Division Bench, we have to bear in mind the fact .bat the said two sentences represent only one of the many reasons given by the Commissioner in support of his companyclusion, and that reason also was given by him and probably had to be given by him, because it appears that one of the companytentions raised by the respondent before the Commissioner was that the appellant was clothed with managerial functions and duties. In the application made by the respondent under s. 51 before the Commissioner, the respondent had specifically averred in paragraph 3 that the appellant was an employee in the position of management and his duties and functions were managerial. That being so, the Commissioner naturally had to companysider this aspect of the matter and so, he observed that he appellant did number have managerial functions, duties or authorities. It would we think, be unfair to hold that the whole approach of the Commissioner was vitiated by the fact that he companycentrated on the question about managerial functions and authority and did number apply the other tests which have been expressly set out by him in the earlier part of his order. Therefore, we do number think that the Division Bench was right in companying to the companyclusion that the impugned order suffers from any error of law which is apparent on the face of the record. Incidentally, we ought to point out that even if the Division Bench was right in holding that the impugned order should be companyrected by the issue of a writ of certiorari, it would have been better if it had number made its own findings on the evidence and passed its own order in that behalf. In writ proceedings if an error of law apparent on the face of the record is disclosed and a writ is issued, the usual companyrse to adopt is to companyrect the error and send the case back to the special Tribunal for its decision in accordance with 1047 law. It would, we think, be inappropriate for the High Court exercising its writ jurisdiction to companysider the evidence for itself and reach its own companyclusions in matters which have been left by the legislature to the decisions of specially companystituted Tribunals.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 104 to 107 of 1961. Appeals from the judgment and order dated July 5, 1956, of the Madras High Court in Appeal against order No. 480, 454, 478 and 479 of 1954 respectively. V. Viswanatha Sastri and R. Gopalakrishnan, for the appellant. N. Rajagopal Sastri and M. S. Narasimhan, for respondent No. 1. 1963. March 7. The judgment of the Court was delivered by MUDHOLKAR J.--This appeal and civil appeals Nos. 104, 106 and 107 of 1961 arise out of execution proceedings in four different suits but as they involve a companymon question they were heard together by the High Court and by us. That ques- tion is whether the execution applications out of which these appeals arise are within time. We propose to treat C. A. No. 105 of 1961 as a typical case. The relevant facts thereof are briefly these In O. S. 46 of 1943 one Ramanathan Chettiar instituted a suit against one Venkatachalam Chettiar in the companyrt of the Subordinate Judge of Devakottai, for the recovery of a sum of Rs. 10,285/- due on promisory numbere dated November 20, 1942 with interest thereon. He eventually obtained a decree for the full claim. In so far as the second defendant is companycerned, he was made liable for the decrctal amount to the extent of this interest in the joint family property of himself and his father. The plaintiff assigned the decree in favour of Chidambaram Chettiar, who is the appellant in A. 105 of 1961. He filed an execution application but the execution proceedings companymenced by him proved infructuous because the first defendant was adjudicated an insolvent on February 27, 1945. On September 9, 1946 a companyposition of the debts due from the insolvent and his son, the second defendant. was arrived at. To the deed of companyposition the second defendant was also a party though he was number adjudicated an insolvent. Under that deed the creditors, including the four appellants before us, agreed to take 40 of the dues, except one creditor who was to be paid a little more. The defendants, it may be mentioned, bad extensive money-lending business in Burma and the bulk of their property was situate in that companyntry. Under the companyposition arrangement the entire property of the defendants, both in India and in Burma was to vest in four trustees, one of whom was the insolvent, that is, the first defendant to the suit. Two of the trustees were the present appellants, Chidambaram Chettiar and Krishnappa Chettiar, appellant in C. A. 104 of 1961. The fourth trustee was an outsider. The total indebtedness of the defendants, as ascertained on the date on which the companyposition was effected, was Rs. 2,16,077/4/8/- but it was reduced under the arrangement to Rs. 86,430-13-3. There are four schedules to the companyposition deed. Schedule A sets out the names of the creditors and the amounts due to them, Schedule B sets out the properties of the defendants and Schedules C and D set out the properties at Leiwo and Meola respectively in Burma. The deed provides for the payment of the reduced amount by the trustees to different creditors from the income of the properties or by sale, or mortgage of those properties within four years from April 14, 1947. The deed further provides for the extension of this time limit according to exigencies and necessity at the discretion of the first two trustees i.e., the first defendant and the appellant Chidambaram Chettiar. The arrangement also provides for payment of interest at 5 annas per mensem in respect of the amounts due on the decrees and 4 annas per mensem in respect of other outstandings as from April 14, 1947. The companyposition companytemplated the realisation of the dues of the creditors from the income or sale or mortgage of the Burma property, in the first instance. Clause to which deals with this matter runs as follow In case the properties of Burma firm are number sufficient to pay the amounts set apart as payable to the creditors at 40 per cent the individuals Nos. 1 and 2 Trustees shall sell the properties in British India and set out in the B schedule herein and from out of the sale proceeds distribute the amount to the creditors. Similarly, after the 40 per cent amounts have been paid and if there should be any amount of deficiency for the payment of the 60 per cent amount payable to Krishnappa Chettiar as described in para 6 supra, even for that also, the individual Nos. 1 and 2 Trustees shall sell the aforesaid British India properties and pay the aforesaid Krishnappa Chettiar the entire balance amount. The companyposition deed companytains various other terms out of which it would be relevant to set out only the following two Clause 8 Until 40 per cent of the amount is paid to the creditors as aforesaid, the said Trustees, shall at the time of disbursement of the dividend, pay from the 1st Chitirai of the year Sarvajith for the annual expenses of the family, a sum of Rs. 600 per annum to indivi- dual No. 4 Trustees Venkatachalam Chettiar and a sum of Rs. 300 per annum to his son Nachiappa Chettiar for the aforesaid expenses. Clause 16 After the annulment of the order of adjudication herein, the aforesaid Venkata- chalam Chettiar shall, in respect of transfer etc., of management of the properties mentioned in C and D schedules, execute a general power of attorney in the favour of individual Nos. 1 and 2 trustees and have the same registered. The companyposition scheme was accepted by the insolvency Court and the adjudication of the first defendant as insolvent was annulled by the companyrt on December 19, 1946. Due to political changes in Burma only very little was realised out of the Burma assets within the period of four years prescribed in the companyposition deed. The trustees who were empowered to extend the time did number extend it. The appellants, therefore, turned to the Indian assets and sought execution of their decrees against them. Two companytentions were raised on behalf of the defendants. One was that the Indian assets companyld number be sold until the assets in Burma were companypletely exhausted and the other was that the execution applications were barred by time. In O. S. No. 46 of 1943 the last execution application was dismissed on September 19, 1946 E. P. No. 109 of 1946 . No execution petition was filed thereafter till the present petition E. P. No. 117 of 1952 . This was filed on June 13, 1952. Similarly in the remaining three appeals also execu. tion applications with which we are companycerned were filed more than three years after the dismissal of the previous execution applications. It may be mentioned that originally the appellant as well as appellants in the other appeals had sought the execution of their respective decrees for the fall amount. But they amended their petitions later on pursuant to the orders of the companyrt and restricted their claims to 40 per cent of the amounts due under their decrees. The appellant Chidambaram filed an affidavit along with the execution petition and set out the following grounds in support of his companytention that the execution application was within time. The trustees were able to realise some of the assets of the defendants in Burma and to pay a dividend of 10 per cent to the creditors. I was paid a sum of Rs. 562-4-0 by way of dividend for this decree on August 10, 1949. As the rest of the Burma assets of the defendant companyld number be realised by the trustees on account of the civil war in Burma and the land legislations passed there and as there was numberprospect of their being realised in the near future myself and A. S. K. Krishnappa Chettiar aforesaid as managing trustees under the said companyposition offered to extend the period of management by one year provided the defendants would companysent to their Indian assets being realised and distributed among the creditors. But the defendants were number willing thereto and hence we thought fit to extend the period of our management. We have filed a petition in I. A. No. 87 of 1951 in the suit I. P. No. 1 of 1945 to have the said companyposition scheme set aside and the 1st defendant re-adjudged as insolvent. The said petition is pending. I am advised that as the said companyposition arrangement has failed on account of the assets of the defendants number being realised and the debts discharged within the four year period mentioned therein I am in law and in equity entitled to recover the entire amount due to me under this decree by executing it. The said companyposition provides for a maintenance allowance of Rs. 600 and Rs. 30 annually being given to the 1st and 2nd defendant respectively at the time of distribution of the dividends. In respect thereof a numberice was issued by the 2nd defendant on April 19, 1949 to myself and A. K. Krishnappa Chettiar aforesaid wherein there is an acknowledgment of liability in respect of the several debts mentioned in the said companyposition. Further the trustees have, acting under the authority given to them by the defendants under the said companyposition, paid me Rs. 562-4-0 on August 10, 1949 by way of dividend for this decree and have duly entered the same in the accounts maintained by them. Moreover I companyld number execute the decree during the four years from April 14, 1947 or any extended period during which the trustees had to manage, realise and distribute the assets of the defendants. There is therefore numberquestion of limitation Similar grounds were set out in the affidavits filed by the other appellants also. It may be mentioned that in each of the excution applications relief was claimed only against the second defendant because in insolvency petition No. 87 of 1951 filed by some of the creditors the first defendant, was readjudicated an insolvent by the companyrt on August 3, 1954. The execution application was, as already stated, opposed by the second defendant firstly on the ground that the companyposi- tion arrived at between him and his father on the one hand and the creditors on the other was still in force, that the arrangement was irrevocable and operated as a companyplete discharge of the liability of the defendants for all time. The second ground was that the execution application was barred by time. The precise pleas of the second defendant regarding limitation were as follows a that the adjudication of his father as an insolvent and the pendency of insolvency proceedings against him would number affect limitation in so far as he was companycerned b that the receipt by the appellant and other creditors of certain amounts as dividends in August, 1949 would number extend the period of limitation for execution proceedings c that the acknowledgment relied upon is wholly wrong, misconceived and untenable. According to him there was numberacknowledgement of liability of any kind in the numberice referred to in the affidavit much less the liability of the second defendant to discharge the decree which had in fact become extinguished and effaced by reason of the companyposition arrived at on September 9, 1946. In the companyrse of the arguments before the executing companyrt it was urged on behalf of the appellants in those appeals that the four years within which the trustees were required to realise the Burma properties and pay off the debts of the creditors must be regarded as a period during which the execution of the decrees was stayed and that companysequently on the principles underlying s. 15 of the Indian Limitation Act, 1908, that period should be deducted from companyputing the period of limitation for preferring execution applications. The Subordinate judge, before whom the execution applica- tions were filed, upheld this companytention and held that the execution applications were within time. He also held that the execution applications arrived at between the parties operated as an adjustment of the decree on the date on which that companyposition was effected or from the date on which the adjudication was arrived at and that though the companyposition companyld number be certified to the executing companyrt under 0. XXI, r. 2, C. P. C. within the time permitted by law, it companyld be certified even number at the instance of the decree-holder because it was open to the decree holder to certify an adjustment at any time he liked. According to the learned Subordinate judge, the adjustment precluded each of the appellants from ex- cuting his decree for a period of four years from April 14, 1947 and, therefore, the execution applications were within time. The High Court, however, disagreed with the Subordinate judge on both the grounds and holding that the execution petitions were barred by time allowed the appeals. It may be mentioned that neither of the two companyrts below has companysidered the companytention of the appellants in these appeals that the letter dated April 19, 1949 sent by the second defendant to two of the trustees operated as an acknowledgment of their liability or that dividends paid to the appellants by the trustees in August, 1949 operated to extend the time of limitation. Mr. Viswanatha Sastri, who appears for the appellants in these appeals, has raised only two companytentions. The first is that the principle underlying s. 15 1 of the Limitation Act is applicable to a case of this kind and that, therefore, the execution applications are within time. The second is that at any rate the letter dated April 19, 1949, written by the second defendant to the trustees operates as an acknowledgment of liability under s. 19 of the Limitation Act and, therefore, saves the limitation in respect of all the execution applications except the one out of which C. A. No. 104 of 1961 arises. According to Mr. Sastri the companyposition of a decretal debt does number amount to an adjustment or satisfaction of a decree until the acts required to be done thereunder have been performed. Here the companyposition scheme required payment of 40 per cent of the decretal debts by the trustees to the craditors. According to him, until that companydition was fulfilled the original decree cannot be said to have been satisfied. Since the decrees herein involved companyld number be regarded as having been satisfied they are still alive. Then, according to Mr. Sastri, where a companyposition scheme prescribes the period during which a companydition has to be performed, till the expiry of theperiod or performance of the companydition the operationof the decrees must be deemed to have been stayed. For, during this period it would be incompetent to the decree-holders to execute their decrees. Such period companyld therefore be deducted by applying the principles underlying s. 15 1 of the Limitation Act from companyputing the period of limitation for filing a fresh execution application. He companycedes that here the companyposition scheme number having been certified to the execution companyrt, the defendants would number have been able to resist an execution application if made within the period of four years specified in the deed of companyposition. But the companyposition being binding on the appellants, they would have laid themselves open to suits for damages at the instance of the defendants if they had proceeded to execute their decrees within this period. Section 15 1 of the Limitation Act runs thus 15 1 In companyputing the period of limi- tation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the companytinuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. It is clear from its terms that it is restricted in its application to a case where the execution of a decree has been stayed by an injunction or an order. By numberstretch of imagination can it be said that the acceptance by the insolvency companyrt of the companyposition operated as a stay of execution of the decrees for the period of four years referred to in the deed or as an injunction. Further, the second defendant was number a party to the insolvency proceedings and companyld, therefore, number have been entitled to the benefit of the order of the companyrt accepting the scheme of companyposition. In support of his companytention that the principles underlying s. 15 1 are applicable to a case like the present one, Mr. Sastri has strongly relied on the decision in Govindnaik Gurunathnaik v. Basauannawa Parutappa 1 . There, Beaumont J., has observed at P. 437 Section 15 of the Act recognizes the princi- ple that in companyputing the period of limitation prescribed for an application for the execution of a decree, any period during which the execution of the decree has been stayed must be excluded and it would certainly seem right to apply a similar principle to applications in a suit which has been stayed in terms., however, the section does number apply. The only authority on the point, to which we have been referred, and which was referred to in the lower Courts, is Pulin Chandra Sen v. Amin Mia Muzffar Ahmad 2 . Saying that this decision had stood for some years and had number been dissented from the learned Chief justice observed I would rather base the appellantscase on the ground that the right to appear for a final decree was suspended duringthe period in which the suit was stayed. Sucha principle was applied by the CalcuttaHigh Court I.L.R, 1941 Bom. 435. A.I.R. 1933 Cal. 508. in Lakhan Chunder Sen v. Manhusudan Sen 1 affirmed by the Privy Council in Nrityamoni Dassi v. Lakhan Chandra Sen 2 . It would thus appear that the learned Chief Justice based his decision really on s. 14 of the Limitation Act. In both the cases referred to by the learned Chief Justice the provisions of s. 14 of the Limitation Act were applied. In Pulin Chandra Sens case 3 , the facts were these The next friend of it minor instituted a suit upon a mortgage but died after the preliminary decree was passed. No new next friend was, however, appointed in his place. The minor made an application for passing a final decree within 3 years after attaining majority, but three years after the period of grace fixed by the preliminary decree. The High Court, while holding that though the erstwhile minor was number entitled to claim the benefit of s. 6 of the Limitation Act, held that the execution application must be regarded as within time since it had been made within three years from the date when the right to apply accrued to him on his attaining majority. No doubt, this is a case where in effect the companyrt has applied the principles underlying s. 6 though it was clearly of opinion that s. 6 in terms did number apply. There is numberdiscussion of the point at all and, therefore, we do number think that this is a decision which needs to be companysidered. The next two decisions relied on are Badruddin Khan v. Mahvar Khan 4 and Managing Committee Sundar Singh Malha Singh Rajput High School, Indora v. Sundar Singh Malha Singh Sanatan Dharma Rajput High School Trust 5 . In both these cases the companyrt applied what according to it were the general principles underlying s. 15 of the Limitation Act, though the facts of these cases do number strictly fail within the purview of that section. The question 1 1907 1 L.R. 35 Cal. 209. A.1 R. 1933 Cal, 508. 2 1916 I.L R. 43 Cal. 660, I.L.R. 1939 All 103 I. L. R. 1943 Lah. 8. is whether there is any well-recognized principle whereunder the period of limitation can be regarded as being suspended because a party is prevented under certain circumstances from taking action in pursuance of his rights. The Limitation Act is a companysolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to companyrts and must, therefore, be regarded as an exhaustive Code. It is a piece of adjective or procedural law and number of substantive law. Rules of procedure, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by analogy or reference to proceedings to which they do riot expressly apply or companyld be said to apply by necessary implication. It would, therefore, number be companyrect to apply any of the provisions of the Limitation Act to matters which do number strictly fall within the purview of those provisions. Thus, for instance, period of limitation for various kinds of suits, appeals and applications are prescribed in the First Schedule. A proceeding which does number fall under any of the articles in that schedule companyld number be said to be barred by time on the analogy of a matter which is governed by a particular article, For the same reasons the provisions of ss. 3 to 28 of Limitation Act cannot be applied to situations which fall outside their purview. These provisions do number adumbrate any general principles of substantive law number do they companyfer any substantive rig, its on litigants and, therefore, cannot be permitted to have greater application than what is explicit or implicit in them. Suspension of limitation in circumstances of the kind obtaining in these appeals is neither explicit number implicit in s. 15 upon which reliance is placed on behalf of the appellants. We are, therefore, unable to accept the first argument of Mr. Sastri. Coming to the second argument of Mr. Sastri it would be useful to reproduce the relevant portion of the letter dated April 1.9, 1949, on which reliance is placed The properties of our clients family and his father, Venkatachalam Chettiars share of properties have vested in you in the capacity of Trustees as per the companyposition scheme of arrangement effected on September 9, 1946 and you are managing the same, and you have to pay Rs. 300 per annum to our client from 1st Chitrai of Sarvajit year April 14, 1947 for his family expenses as provided in the scheme of companyposition and you have paid Rs. 300 and for the year Sarvajit and have obtained a receipt therefor from my client. You have number paid the sum of Rs. 300 due for the year Sarwadhari to our client though he demanded you many times. As it is learnt that individual No. 2 out of you, are raising number- maintainable objections and the sum of Rs. 300 due for the year Virodhi, still remains to be paid, I have been given instructions to demand the total amount of Rs. 600 payable for the aforesaid years. So you should pay the amount to my client and obtain a receipt therefore within one week after the receipt of this numberice. Further you have till number companylected Rs. 17,500 as per the scheme of arrangement and though you have received the amount long time ago, you have number paid to the creditors their dividend amounts, you are bound by law and equity to pay interest to the aforesaid amounts You are hereby informed that as you have number paid to the creditors the dividend amounts my client is put to a heavy loss and that you are bound to bear all the losses that may be caused thereby and make good the losses you should immediately pay off the creditors the dividends and in default my client will have to launch proceedings against you and seek reliefs through Court. This letter was written by the, vakil of the second defendant to the Trustees demanding payment of the maintenance allowance due to the second defendant. The second object of this letter was to require the trustees to pay out of the funds in their hands dividends due to the various creditors under the companyposition scheme. Mr. Sastri companytends that this letter companytains a definite admission of the jural relationship between the defendant on the one hand and the creditors on the other i. e., the relationship of creditor and debtor and, therefore, this is an admission of liability under the decrees. Relying upon the decision of this Court in Khan Bahadur Shapoor Freedom Mazda v. Durga Prosad Chamria 1 , he says that the essential requirement for sustaining a plea of acknowledgment under s. 19 of the Limitation Act is that the statement on which it is sought to be founded must relate to a subsisting liability, indicate the existence of jural relationship and must be intended, either expressly or implied, to admit that jural relationship. Where such jural relationship is admitted expressly or impliedly, he companytends, that the mere fact that the precise nature of the liability is number mentioned would number prevent the acknowledgment from falling within s. 19. That was a case in which the mortgagor had written to his creditor a letter to the following effect My dear Durgaprosad. Chandni Bazar is again advertised for sale on Friday the 11th inst. I am afraid it will go very cheap. I had a private offer of Rs. 2,75,000 a few days ago but as soon as they heard it was advertised by the Registrar they withdrew. As you are interested why do you number take up the whole. There is only 1 1962 1 S.C.R. 140. about 70,000 due to the mortgagee-a payment of 10,000 will stop the sale. Yours sincerely, Sd - J. C. Galstaun. The q qestion to be companysidered was whether this amounted to an acknowledgment of the mortgagees right. This Court held that it did amount to an acknowledgment and observed thus It is thus clear that acknowledgment as prescribed by s. 19 merely renews debt it does number create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question it need number be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may number be indicated in words. Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission and need number be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need number be express but must be made in circumstances and in words from which the companyrt can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In companystruing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be companysidered. Stated generally companyrts lean in favour of a liberal companystruction of such statements though it does number mean that where numberadmission is made one should be inferred., or where a statement was made clearly without intending to admit the existence of jural relationship such intention companyld be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions companytained in s. 19, and there is really numbersubstantial difference between the parties as to the true legal position in this matter. In our opinion, this case is number of assistance companythe appellants. In the appeals before us though there was a personal liability on the defendants under the various decrees, their liability which was created by the companyposition deed was only on properties in which they had, companysequent on the creation of a trust under the companyposition deed, only a beneficial interest. This new liability had to be discharged by the trustees in whom the legal title to the property vested Thus there were two different sets of persons who were liable, the defendants and the Trustees and their respective liabilities were distinct. What the defendant No. 2 has referred to is the libility of the Trustees arising under the terms of the deed of companyposition and companyld be enforced only against them. To refer to a liability resting on someone else is number to acknowledge ones own liability within the meaning of the word in s. 19. The defendant No. 2 has number even indirectly referred to the decree much less to the liability arising under any of them. In the circumstances we must hold that this letter does number extend the period of limitation. For these reasons we uphold the decision of the High Court and dismiss each of these appeals with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1115 of 1962. Appeals by special leave from the judgments and orders dated February 16,26, 1960, of the Punjab High Court in Civil Misc. No. 1212-C of 1959 and Regular First Appeal No. 44 of 1955. R. Prem and P.D. Menon, for the appellant. Veda Vyasa, K. K. Jain, for P.C. Khanna, for respondent. 1963. April 30. The judgment of the Court was delivered by RAGHUBAR DAYAL J.-The facts leading to this appeal, by special leave, against the orders of the high Court of Punjab are these. Ram Charan obtained a decree for money against the Unioun of India on January 6, 1955. The Union of India presented an appeal on April 6, 1955, in the High Court. Ram Charan, the sole respondent, filed a cross- objection on July 31, 1955. On February 6, 1956 the High Court passed an order in companynection with the surety bond. Ram Charan was represented at the proceedings. Ram Charan died on July 91, 1957. On March 18, 1958 an application was presented to the High Court on behalf of the appellant under O. XXII, r. 4, read with s. 151, Code of Civil Procedure, stating that Ram Charan died on July 21, 1937, that the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt of his death on February 3, 1958, and that the deceased had left as his legal representatives, an adopted son and a widow. It was prayed that these legal representatives be brought on record in the place of the deceased respondent. The affidavit filed in support of this application did number companyvey any further information and it was solemnly affirmed by the dependent that the averments in the -affidavit were true to his belief The deponent was numberother than the Divisional Engineer, Telegraphs, Ambala Cantonment. On May 13, 1958, the widow of Ram Charan applied that she alone was the legal representative of Ram Charan under a will and that the alleged adopted son was number the legal representative. The appellants application for bringing on record the legal representatives of the deceased Ram Charan came up for hearing on May 14, 1958. The Court ordered the application to be heard at the time of the hearing of the appeal as it was pointed out that there was a difference of opinion in the Court as to whether limitation under 0. XXII of the Code started from the date of death or from the date of knowledge of death. Subsequently, on an application on behalf of the legal representatives, it was ordered that the question of abatement be decided first and thereafter the printing of the record be taken on hand. The application for substitution came up for decision on February 16, 1960. It was dismissed, the Court holding that the Union of India had failed to show that it was prevented from any sufficient cause from companytinuing the appeal. On February 26, 1960, the appeal itself was dismissed as having abated. On May 14, 1960, an application for leave to appeal to the Supreme Court was presented to the High Court. The heading of the application was described to be one for leave to the Supreme Court from the judgment dated February 16, 1960, in C.M. No. 1212/C of 1959 in R.F.A. No. 44 of 1955. This application was rejected on May 17, 1960. Thereafter, an application for special leave was filed in this Court. Special leave was prayed for appealing from the judgment of the High Court of Punjab in R.F.A.No.44 of 1955 and C.M. No. 1212-C/59 dated February 16/26 of 1960. The order granting special leave said That special leave be and is hereby granted to the petitioner to appeal to this Court from the judgment and order dated 16th day of February, 1960 and 26th day of February, 1960 of the Punjab High Court in Civil Miscellaneous No. 1212-C of 1959 and Regular First Appeal No. 44 of 1955. A preliminary objection was taken to the effect that the appellant having number applied to the High Court for leave to appeal against the order dated February 26, 1960 in Regular First Appeal, that order had become final and special leave companyld number be asked for from this Court in view of Order XIII, r.2 of the Supreme Court Rules, 1950, the rule being Where an appeal lies to the Supreme Court on a certificate issued by the High Court or other tribunal, numberapplication to the Supreme Court for special leave to appeal shall be entertained unless the High Court or tribunal companycerned has first been moved and it has refused to grant the certificate. We do number see any force in this objection and reject it. The application for leave to appeal, though described as one against the judgment in the miscellaneous case and number against the order in the regular appeal, stated in paragraph I that the regular first appeal had been ordered to have abated and in paragraph 3 that it was a fit case in which necessary certificate for filing an appeal against the judgment passed by the Court in regular first appeal No. 44 of 1955 be granted. Both these statements refer to the proceedings in companynection with the regular first appeal and number of the order on the miscellaneous application for substitution. Ground No. 2 referred to those proceedings. The application, therefore, was really an application for leave to appeal against both the orders. The High Court does appear to have companystrued that application in this manner. Its order dated May 17, 1960 stated The appeal was decided as having abated because the appellant failed to show sufficient cause for number bringing the legal representatives of the deceased respondent within time. To appreciate the real companytention between the parties before us, we may number give in brief, the reasons for the order of the High Court dated February 16, 1960. It may be pointed out that in the narration of facts the High Court stated that the application dated March 17, 1958, was filed under O. XXII, rr. 4 and 9 read with s. 151 of the Code. he application, as printed on the record, did number purport to be under r. 9 of O. XXII, C.P.C. There is number a word in the application that the appeal had abated and that the abatement be set aside The error in this respect seemed to have further led to the error in stating that the reason for the delay given in the application was that the Divisional Engineer, Telegraphs, came to know about Ram Charans death on February 3, 1958, there being numberreason mentioned in the application. It was just stated as a matter of fact that the Engineer had companye to know of the death on February 3, 1958. The order states that some application was presented by the Union of India on May 14, and that it was stated therein that the interval between February 3 and March 17. 1,958, was spent in companylecting information about the legal representatives of the deceased. This application, however, is number printed in the paper book. The High Court relied on the Full Bench case of its Court reported in Firm Dittu Ram Eyedan v. Om Press Co. Ltd., 1 , which held that ignorance of the death of the defendant was number a sufficient cause for setting aside the abatement when an application to bring the legal representatives of the deceased on the record was made after the expiry of the period of limitation, as the law imposed an obligation on the person applying for bringing the legal representatives of the deceased on the record and he had, therefore, to show absence of want of care. The 1 1960 1 1. L. R. Punj 935 High Court held that the Union of India did number state either in its application dated March 17, 1958, or in the other application dated May 14, 1958, that the Government had number been careless in the matter and had been vigilant in keeping itself informed regarding the whereabouts of Ram Charan and that it would number have been difficult for the Government to have companye to know of Ram Charans death, who lived in Ambala Cantonment, to which place the appeal related. The companytentions raised for the appellant in this Court are That mere ignorance of death of the res- pondent was sufficient cause for the appel- lants inability to apply for the impleading of the legal representatives within time, unless it be that the appellant was guilty of some negligence or some act or omission which led to the delay in his making the application. Once the respondent is served in the first appeal, numberduty is cast on the appellant to make regular enquiries about the state of health of the respondent. The expression sufficient cause should be liberally companystrued in order to advance the cause of justice. The Court itself has inherent power to add legal representatives to do full justice to the party. The High Court misapplied the decision of the Full Bench of its Court to the facts of the present case. We may say at once that there is numberforce in the fourth point. The Court is number to invoke its inherent powers under s. 151, C.P.C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant number taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is number allowed on account of its failure to satisfy the Court that there was sufficient cause for number impleading the legal representatives of the deceased in time and for number applying for the setting aside of the abatement within time. There is numberquestion of companystruing the expression sufficient cause liberally either because the party in default is the Government or because the question arises in companynection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of companyrse, the Court, in companysidering whether the appellant has established sufficient cause for his number companytinuing the suit in time or for number applying for the setting aside of the abatement within time need number be over-strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does number relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is number set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does number mean that the, Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in companysidering the merits of the evidence led to establish the cause for the appellants default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement. It is true, as companytended, that it is numberduty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party, but it does number mean that the mere fact of the appellants companying to know of the respondents death belatedly will, by itself, justify his application for setting aside the abatement. That is number the law Rule 9 of O. XXII of the Code requires the plaintiff to prove that he was prevented by any sufficient cause from companytinuing the suit. The mere allegation about his number companying to know of the death of the opposite party is number sufficient. He had to state reasons which, according to him, led to his number knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially when the companyrectness of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit. It is number necessary to companysider whether the High Court applied its earlier Full Bench decision companyrectly or number when we are to decide the main question urged in this appeal and that being the first companytention Rules 3 and 4 of O. XXII, C.P.C. lay down respectively the procedure to be followed in case of death of one of several plaintiffs when the right to sue does number survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one of several defendants or of sole defendant in similar circumstances. The procedure requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. It does number say who is to present the application. Ordinarily it would be the plaintiff, as by the abatement of the suit the defendant stands to gain. However, an application is necessary to be made for the purpose. If numbersuch application is made within the time allowed by law, the suit abates to far as the deceased Plaintiff is companycerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other companysiderations as held by this Court in State of Punjab v. Nathu Ram 1 and Jhanda Singh v. Gurmukh Singh 2 . Any way, that question does number arise in this case as the sole respondent had died. It may be mentioned that in view of r. 11 of O.XXII, the words plaintiff, defendant and suitin that Order include appellant, respondent andappeal respectively. The companysequence of the abatement of the suit against the defendant is that numberfresh suit can be brought on the same cause of action. Sub-rule 1 of r. 9 bars a fresh suit. The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time. The Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from companytinuing the suit. This means that the applicant had to allege and establish facts which, in the view of the Court, be a sufficient reason for his number making the application for bringing on record the legal representatives of the deceased within time. If numbersuch facts are alleged,. numbere can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicants number companytinuing the suit by taking necessary steps within the period of limitation. Such would be a very rare case. This means that the bare statement of the applicant that he came to know of the death of the other party more than three months after the death will number 1 1962 2 S. C. R, 636. C. A. No. 344 of 1956 decided on April 10, 1962. ordinarily be sufficient for the Courts holding that the applicant had sufficient cause for number impleading the legal representatives within time. If the mere fact that the applicant had known of the death belatedly was sufficient for the Court to set aside the abatement, the legislature would have. expressed itself differently and would number have required the applicant to prove that he was prevented by any sufficient cause from companytinuing the suit. The period of limitation prescribed for making such an application is three months, under Art. 171 of the First Schedule to the Limitation Act. This is a sufficiently long period and appears to have been fixed by the legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of the persons who are his legal representatives within that period. The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his companynsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other partys absence. The legislature further seems to have taken into account that there may be cases where the plaintiff may number know of the death of the defendant as ordinarily expected and, therefore, number only provided a further period of two months under art. 176 for an application to set aside the abatement of the suit but also made the provisions of s. 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be companysidered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what companysiderations would companystitute sufficient cause for setting aside the abatement or for the plaintiffs number applying to bring the legal representatives of the deceased defendant on the record or would be held to be sufficient cause for number making an application to set aside the abatement within the time prescribed. But it can be said that the delay in the making of such applications should number be for reasons which indicate the plaintiffs negligence in number taking certain steps which he companyld have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case. Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of a particular case amount to sufficient cause or number Courts have to use their discretion in the matter soundly in the interests of justice. It will serve numberuseful purpose to refer to the cases relied on for the appellant in support of its companytention that the appellants ignorance of the death of the respondent is sufficient cause for allowing its application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had number been due to its culpable negligence or mala fides. We have shown above that the mere statement that the appellant was ignorant of the death of the respondent, cannot be sufficient and that it is for the appellant, in the first instance, to allege why he did number know of the death of the respondent earlier or why he companyld number know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The companyrectness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for number making an application to bring the legal representatives of the deceased respondent earlier on the record. In the present case, the appellant had adopted a very wrong attitude from the very beginning. In its application dated March 17, it merely said that Ram Charan died on July 21, 1957, and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it on February 3, 1958. Shri Bhatia did number say anything more in his affidavit and did number verify it on the basis of his personal knowledge. Why he did number do so is difficult to imagine if. he came to know of the death on February 3, 1958. He was the best person to say that this statement was true to his knowledge, rather than true to his belief. Further, it appears from the judgment of the High Court that numberfurther information was companyveyed in the application dated May 13, 1958 which is number on the record. The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that limitation for such an application starts number from the date of death of the respondent but from the date of the appellants knowledge of the death of the respondent. The appellants case seems to have been that numberabatement had actually taken place as the limitation started from February 3, 1958, when the appellants officer knew of the death of the respondent and the application was made within 3 months of that date. It appears to be due to such an attitude of the appellant that the application dated March 17, 1958 purported to be simply under r. 4 O. XXII and did number purport to be under r. 9 of the said Order as well and that numberspecific prayer was made for setting aside the abatement. The limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent. Article 171, First Schedule to the Limitation Act provides that. It does number provide the limitation to start from the date of the appellants knowledge thereof. The stand taken by the appellant was absolutely unjustified and betrayed companyplete lack of knowledge of the simple provision of the Limitation Act. In these circumstances, the High Court cannot be said to have taken an erroneous view about the appellants number establishing sufficient ground for number making an application to bring on record the representatives of the deceased respondent within time or for number making an application to set aside the abatement within time.

Case appeal was rejected by the Supreme Court

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

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 497 of 1963. Appeal by special leave from the judgment and order dated September 10, 1960, of the Bombay High Court in Appeal No. 10 of 1959. Bishan Narain and 1. N. Shroff, for the appellant. N. Sanyal, Solicitor General of India, V. S. Sawhney and R. H. Dhebar, for respondent.No. 1. V. Gupte, Additional Solicitor-General of India, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondent No. 2. December 19, 1963.-The Judgment of the Court was delivered by GAJENDRAGADKAR J.- The principal point of law which this appeal raises for our decision relates to the companystruction of section 25F c of the Industrial Disputes Act, 1947 No. 14 of 1947 hereinafter called the Act . The Bombay Union of Journalists which is the Trade Union registered under the Trade Unions Act, 1926, Mrs. Aruna Mukherji, and Mr. M. T. Thomas are appellants 1 to 3 and the State of Bombay, and the Indian National Press, Bombay, which is a Private Ltd. Co. are respondents 1 and 2 respectively in the present appeal. Appellant No. 2 was appointed on the staff of the second respondent on a salary of Rs. 500 p.m. with effect from 1st January, 1955. On the 30th November, 1957, she was served with -- numberice of termination of her services with effect from 1st December, 1957. The numberice recited the fact that the management in Consultation with the Editor had decided to retrench her services. Appellant No. 3 Mr. Thomas who was employed as a Sub-Editor in the Free Press Journal some time in 1953, was similarly served with a numberice of retrenchment dated the 30th November, 1957 by which his services were terminated as from the 1st December, 1957. In both the numberices the two appellants respectively were told that their services had been retrenched under section 3 2 of the Working Journalists Conditions of Service and Miscel- laneous Provisions Act, 1955, and that in lieu of numberice they would be paid their salaries for three months. Both the appellants companylected their salaries for the month of November and ceased to work for respondent No. 2 as from the 1st December, 1957. It appears that appellant No. 1 took up their cause on the 3rd December, 1957 and wrote to the Director-in-charge of the second respondent companyplaining that the action taken by the 2nd respondent smacked of vindictiveness against appellants 2 and 3, and demanded that the numberices issued should be withdrawn forthwith and they should be reinstated in their original posts. Respondent No. 2 did number companycede the said demand thereupon, appellant No. 1 moved the Labour Commissioner of respondent No. 1 for taking further action in the matter. At that stage, the Conciliation Officer intervened and called the parties before him. As a result of the discussion held before the Conciliation Officer, it was discovered that numbersettlement was possible, and so, the Conciliation Officer submitted a failure report under s. 12 4 of the Act on the 15th April, 1958. In this report, the Conciliation Officer expressed his opinion that in view of the stand taken by the parties, there was numberpossibility of any settlement, and so, he was companypelled to record a failure. After the matter was thus reported to respondent No. 1 by its Conciliation Officer, both the parties filed their res- pective statements before respondent No. 1. Respondent No. 1 companysidered the said statements and the report submitted by the Conciliation Officer and came to the companyclusion that it was number necessary to refer the dispute to a Tribunal under s. 12 5 of the Act. This decision was companymunicated to the appellants by the Dy. Secretary, Labour and Social Welfare Department of respondent No. 1 by his letter dated 1st July, 1958. It is necessary to set out the reasons given in this letter for number referring the dispute to the Tribunal. These reasons were set out in the letter in these terms The termination of services of Shrimati Aruna Mukherji and Shri M. T. Thomas a ppears to be an act of retrenchment on the part of the management for which the management is willing to pay all the legal dues to the retrenched persons and 2 in effecting the said termination the management does number appear to have acted mala fide or vindictively number practised victimisation for trade union activities. The appellants then moved the Bombay High Court under Art. 226 of the Constitution for a writ of mandamus against respondent No. 1. It was urged on their behalf that the refusal of respondent No. 1 to refer the dispute to the Industrial Tribunal under s. 12 5 of the Act was illegal, and so, they prayed that the High Court should issue a writ directing respondent No. 1 to companysider the matter afresh and decide whether a reference should be made or number. This writ petition was heard by a single Judge of the said High Court and was ultimately dismissed. The appellants challenged the companyrectness of the said decision by a Letters Patent Appeal before a Division Bench of the High Court. The Division Bench agreed with the view taken by the learned single Judge, and so, the appeal was dismissed. It is against this decision that the appellants have companye to this Court by special leave. The first companytention which has been raised before us by Mr. Bishan Narain on behalf of the appellants is that the reasons given by respondent No. 1 in refusing to make a reference show that respondent No. 1 companysidered the merits of the dispute and came to the companyclusion that the reference would number be justified and Mr. Bishan Narain companytends that in dealing with the merits of the dispute, while deciding the question as to whether a reference should be made or number under s.,12 5 of the Act respondent No. 1 has acted illegally and improperly. The relevant scheme of the Act as disclosed by s. 12 is clear. When any industrial dispute exists or is apprehended, the Conciliation Officer may hold companyciliation proceedings in the manner prescribed by s. 12. If the Conciliation Officers efforts to bring out a settlement of the dispute fail, then he makes a failure report under s. 12 4 -and s. 12 5 provides, inter alia, that if on a companysideration ,of the report referred to in sub-section 4 the appropriate Government is satisfied that there is a case for reference to the Tribunal, it may make such reference. It, however, adds that where the appropriate Government does number make such -a reference, it shall record and companymunicate to the parties ,concerned its reasons therefor. The argument is that s. 12 5 imposes an obligation on respondent No. 1 to record reasons for refusing to make a reference and the reasons given by respondent No. 1 in the present case indicate that respondent No. 1 acted beyond its jurisdiction in proceeding to companysider the merits of the dispute while deciding whether the reference should be made or number. This argument must be rejected, because when the appropriate Government companysiders the question as to whether ,a reference should be made under s. 12 5 , it has to act under s. 10 1 of the Act, and s. 10 1 companyfers discretion on the appropriate Government either to refer the dispute, or number to refer it, for industrial adjudication according as it is of the opinion that it is expedient to do so or number. In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under s. 12 4 the appropriate Government ultimately exercises its power under s 10 1 , subject to this that s. 12 5 imposes an obligation on it to record reasons for number making the reference when the dispute has gone through companyciliation and a failure report has been made under s. 12 4 . This question has been companysidered by this Court in the case of the State of Bombay v. K. P. Krishnan Others 1 . The decision in that case clearly shows that when the appropriate Government companysiders the question as to whether any industrial dispute should be referred for adjudication- or number, it may companysider, prima facie, the merits of the dispute and take into account other relevant companysiderations which would help it to decide whether making a reference would be expedient or number. It is true that if the dispute in question raise questions of law, 1 1961 1 S.C.R. 227. the appropriate Government should number purport to reach a final decision on the said questions of law, because that would numbermally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the ap- propriate Government cannot purport to reach final company- clusions, for that again would be the province of the Indus- trial Tribunal. But it would number be possible to accept the plea that the appropriate Government is precluded from companysidering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under s. 10 1 read with s.12 5 , or number. if the claim made is patently frivolous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the em- ploys in the region is likely to be adverse, the appropriate Government may take that into account in deciding whether a reference should be made or number. It must, therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under s. 10 1 , and so, the argument that the appropriate Government exceeded its jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be accepted. Mr. Bishan Narain has then urged that the main point of companytroversy between the parties was in regard to the failure of respondent No. 2 to companyply with the provisions of S. 25F c of the Act and that has number been companysidered by respondent No. 1 while refusing to make a reference in the present case. Section 25F c provides that numberworkman to which the said provision applies shall be retrenched by the employer until numberice in the prescribed manner is served on the appropriate Government. It is companymon ground that numberice had number been served by respondent No. 2 on respondent No. 1 as required by s. 25F c prior to the termination of services of appellants 2 3 and the argument is that the reasons mentioned by respondent No. 1 in its companymunication to appellant No. 1 indicating its refusal to make a reference, show that this aspect of the matter has number been companysidered by respondent No. 1 and that, it is urged, in- troduces a serious infirmity in the said reasons and calls for ,a writ of mandamus requiring respondent No. 1 to rectify the said omission. There is numbersubstance in this argument. It appears that the Rules framed by respondent No. 1 under the Act indicate that respondent No. 1 has companystrued the provision of s. 25F c as being directory and number as companystituting a companydition precedent for the validity of retrenchment under s. 25F. Rule 80 of the said Rules clearly Shows that where the employer has retrenched the employee by offering to pay him the requisite amount of remuneration in lieu of numberice prescribed by s. 25F a , the employer is required to serve the numberice of the -,aid retrenchment within seven days of the date of retrenchment, and that means that in such a case, the numberice has number to be served on the Government before retrenchment is effected. In other words, R. 80, it is companyceded, treats the numberice prescribed by s. s 25F c as companydition subsequent and number a companydition precedent. In view of the Rule framed by itself respondent No. 1 must number have thought it necessary to make any reference to -the argument urged by the appellants that respondent No. 2s failure to serve a numberice on respondent No. 1 before retrenchment was effected introduced an infirmity in the order of retrenchment. Rule 80 framed by respondent No. 1 was itself an answer to the said plea, and so, respondent No. 1 -may well have thought that it was unnecessary to give that reason in its companymunication to the appellants. Besides, in dealing with this companytention, it is necessary to remember that in entertaining an application for a writ of mandamus against an order made by the appropriate Government under s. 10 1 read with s. 12 5 , the Court is number sitting in appeal over the order and is number entitled to ,consider the propriety or the satisfactory character of the reasons given by the said Government. It would be idle to suggest that in giving reasons to a party for refusing to make a reference under s. 12 5 , the appropriate Government has to write an elaborate order indicating exhaustively -all the reasons that weighed in its mind in refusing to make -a reference. It is numberdoubt desirable that the party companycern- ed should be told clearly and precisely the reasons why numberreference is made, because the object of s. 12 5 appears to be to require the appropriate Government to state, its reasons for refusing to make a reference, so that the reasons. should stand public scrutiny but that does number mean that a party challenging the validity of the Governments decision number to make a reference can require the Court in writ proceedings to examine the propriety or companyrectness of the said reasons. If it appears that the reasons given show that the appropriate Government took into account a companysideration which was irrelevant or foreign, that numberdoubt, may justify the claim for a writ of mandamus. But the argument that of the pleas raised by the appellants two have been companysidered and number the third, would number necessarily entitle the party to claim a writ under Art. 226. That takes us to the main point which has been strenuously argued before us by Mr. Bishan Narain with regard to the companystruction of s. 25F c . His companytention is that just as s. 25F a and b are both mandatory and companystitute companyditions precedent for valid retrenchment, so is s. 25F c mandatory and a companydition precedent. The prohibition companytained in s. 25F is put in the negative form and it is companypled with the companydition that numberretrenchment can be effected until the three companyditions specified by clauses a ,. b and c are satisfied. The negative form adopted by the provision companypled with the use of the word until which introduces the three companyditions, indicates that the companyditions must be first satisfied before retrenchment can be validly effected. In this companynection, Mr. Bishan Narain has referred to the decision of this Court in the State of Bombay Others v. The Hospital Mazdoor Sabha Ors. 1 where it has been held that the requirement prescribed by s. 25F b is mandatory and has to be companyplied with before an industrial employee can be retrenched. Dealing with s. 25F b , it was observed in that judgment that clauses a and c of the said section prescribed similar companyditions, though it was expressly added that the Court was then number companycerned to companystrue them. Mr. Bishan Narain has also invited our attention to the fact that in Tea Districts Labour Association, Calcutta v. Ex-Employees of Tea Districts 1 1960 2 S.C.R. 866. Labour Association and Anr. 1 , it was companyceded that the requirement as to numberice prescribed by s. 25F c was mandatory and amounted to a companydition precedent. Likewise, it appears that in the case of The Workmen of Subong Tea Estate v. The Outgoing Management of Subong Tea Estate Anr. 2 recently decided by this Court, it has been incidentally stated that the three companyditions prescribed by clauses a , b and c of s. 25F appear prima facie to companystitute companyditions precedent before an industrial workman can be validly retrenched. In that case, numberquestion arose about the companystruction and effect of the provisions of s. 25F and the observations are clearly in the nature of obiter observations and even then they indicate that the Court thought that prima facie the three companyditions may be similar. No decision of this Court has been cited before us where this question has been directly companysidered and de- cided. Mr. Bishan Narain, however, urges, and with some force, that the numberal rule of companystruction requires that if clauses a and b of s. 25F companystitute companyditions precedent, clause c in the companytext must also receive the same companystruction. Prima facie, this argument is numberdoubt attractive but a closer examination of the section shows that clause c of s. 25F cannot receive the same companystruction as clauses a and b of s. 25F. Section 25F a requires that the workman has to be given one months numberice in writing. indicating the reasons for retrenchment, and the period of numberice has to expire before the retrenchment takes place. It also provides that the workman can be paid in lieu of such numberice wages for the said period. It is the latter provision of clause a which requires careful companysideration in dealing with the character of the requirement prescribed by s. 25F c . This latter provision allows the employer to re- trench the workman on paying him his wages in lieu of numberice for one month prescribed by the earlier part of clause a , and that means that if the employer decides to retrench a workman, he need number give one months numberice in writing and wait for the expiration of the said period before he 1 1960 3 S.C.R. 207. 2 1964 1 L.L.J. 333 . retrenches him he can proceed to retrench him straightaway on paying him his wages in lieu of the said numberice. Take a case where retrenchment is effected under this latter provision of clause a how would the requirement of clause c operate in such a case? If it is held that the numberice in the prescribed manner has to be served by the employer on the appropriate Government before retrenching the employee in such a case, it would mean that even in a case where retrenchment is effected on payment of wages in lieu of numberice it cannot be valid unless the requisite numberice is served on the appropriate Government and that does number appear to be logical or reasonable. Reading the latter part of clause a and clause c together, it seems to follow that in cases falling under the latter part of cl. a the numberice prescribed by cl. c has to be given number before retrenchment, but after retrenchment otherwise the option given to the employer to bring about immediate retrenchment of the workman on paying him wages in lieu of numberice would be rendered nugatory. Therefore, it seems that clause c cannot be held to be a companydition precedent even though it has been included under s. 25F along with clauses a and b which prescribe companyditions precedent.The argument based on the negative form in which the provision is enacted and the use, of the word until numberdoubt are in favour of the appellants companytention, but the companytext seems to require a different treatment to the provision companytained in clause c . Besides, the requirement introduced by the use of the word until is companyplied with even on the view we are inclined to take about the nature of the companydition prescribed by clause c , because after the retrenchment is effected, the employer has to companyply with the companydition of giving numberice about the said retrenchment to the appropriate Government, and that is where the provision in clause c that the numberice has to be served in ,he prescribed manner assumes significance. Rules have been framed by the Central Government and the State Governments in respect of this numberice and, stated broadly, it does appear that these Rules do number require a numberice to be served in every case before retrenchment is effected. In regard to retrenchment effected on paying the workman his wages in lieu of numberice, the Rules seem to provide that the numberice in that behalf should be served within the specified period prescribed by them that is to say, under the Rules, numberice in such a case has to be served number before the retrenchment, but after the retrenchment within the specified period. Mr. Bishan Narain numberdoubt companytends that if his companystruction of s. 25F c is companyrect, the Rules would be invalid and that is true but on the view we are inclined to take, the Rules framed by the Government appear to be companysistent with the policy underlying the provision prescribed by s. 25F c . We are, therefore, satisfied that s. 25F c cannot be said to companystitute a companydition precedent which has to be fulfilled before retrenchment can be validly effected. In this companynection, there is one more companysideration which is relevant. We have already seen the requirement of s. 25F a . There is a proviso to s 25F a which lays down that numbersuch numberice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of services. Clause a of s. 25F, therefore, affords a safeguard in the interests of the retrenched em- ployee it requires the employer either to give him one months numberice or to pay him wages in lieu thereof before ,he is retrenched. Similarly, clause b provides that the workman has to be paid at the time of retrenchment, company- pensation which shall be equivalent to 15 days average pay for every companypleted year of service, or any part thereof in excess of six months. It would be numbericed that this payment has to be made at the time of retrenchment, and this requirement again provides a safeguard in the interests of the workman he must be given one months numberice or wages in lieu thereof and he must get retrenchment companypensation as prescribed by clause b . The object which the Legislature had in mind in making these two companyditions obligatory and in companystituting them into companyditions precedent is obvious. These provisions have to be satisfied before a workman can be retrenched. The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification for making them companyditions precedent. The same cannot be said about the requirement as to clause c . Clause c is number intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and 134-159 S.C.-3. that only helps the Government to keep itself informed about the companyditions of employment in the different industries within its region. There does number appear to be present any companypelling companysideration which would justify the making of the provision prescribed by clause c a companydition precedent as in the case of clauses a b . Therefore, having regard to the object which is intended to be achieved by clauses a b as distinguished from the object which clause c has in mind, it would number be unreasonable to hold that clause c , unlike clauses a b , is number a companydition precedent. There is one more point which ought to be mentioned before we part with this appeal. Even if we had held that s. 25F c companystitutes a companydition precedent, it would number have been easy to accept Mr. Bishan Narains companytention that a writ of mandamus should be issued against respondent No. 1. A writ of mandamus companyld be validly issued in such a case if it was established that it was the duty and the obligation of respondent No. 1 to refer for adjudication an industrial dispute where the employee companytends that the retrenchment effected by the employer companytravenes the provisions of s. 25F c . Can it be said that the appropriate Government is bound to refer an industrial dispute even though one of the points raised in the dispute is in regard to the companytravention of a mandatory provision of the Act? In our opinion, the answer to this question cannot be in the affirmative. Even if the employer retrenches the workman companytrary to the provisions of s. 25F c , it does number follow that a dispute resulting from such retrenchment must neces- sarily be referred for industrialist adjudication. The breach of section 25F is numberdoubt a serious matter and numbermally the appropriate Government would refer a dispute of this kind for industrial adjudication but the provision companytained in s. 10 1 read with s. 12 5 clearly shows that even where a breach of s. 25F is alleged, the appropriate Government may have to companysider the expediency of making a reference and if after companysidering all the relevant fact the appropriate Government companyes to the companyclusion that it would be inexpedient to make the reference, it would be companypetent to it to refuse to make such a reference. We ought to add that when we are discussing this legal position, we are necessarily assuming that the appropriate Government acts honestly and bona fide. If the appropriate Government refuses to make a reference for irrelevant companysiderations, or on extraneous grounds, or acts mala fide, that, of companyrse, would be another matter in such a case a party would be entitled to move the High Court for a writ of mandamus. The result is, the appeal fails and is dismissed.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 168 of 1961. Appeal by special leave from the judgment and order dated August 3, 1951, of the Bombay High Court in Criminal Appeal No. 99 of 1961. Shaukat Husain and P. C. Agarwala, for the Appellant. K. Daphtary, Solicitor-General of India, D. R. Prem and R. N. Sachthey, for the respondent. 1963. February 7. The judgment of the Court was delivered by RAGHUBAR DAYAL,J.-This appeal, by special leave, is against the order of the High Court of Bombay allowing the State appeal and companyvicting the appellant of the offence under s. 5 of the Imports and Exports Control Act, 1947, hereinafter called the Act, for having companytravened the Imports Control Order, 1955, hereinafter called the Order, and sentencing him to three months rigorous imprisonment and a fine of Rs. 2,000/- . The appellant was the Chairman of the Malegaon Powerloom Sadi Manufacturers Cooperative Association Ltd., hereinafter called the Association. There were six other members of the Association. All the members were powerloom weavers. The appellant, as Chairman of the Association, applied for and obtained the licence dated January 2, 1956, for the import of certain quantity of art silk yarn by the Association. The licence was issued subject to the companydition that the good, would be utilised only for companysumption as raw material or accessories in the licence- holders factory and that numberportion thereof would be sold to any party. The Association companyld number arrange for the necessary finances and therefore had the goods imported through Warden Co., who financed the transaction. Part of the goods received was utilised in accordance with the companydition of the licence, the rest was however sold by the said Warden Co., as a result of the companyrespondence ending by a letter dated November 13, 1956, from the appellant as Chairman of the Association to Warden Co. The relevant portion of this letter is In this companynection we have to inform you that as the price of Art silk yarn has fallen greatly it is number possible for our Association to take delivery of the balance goods. As such, you are therefore requested to dispose of the balance goods lying with you in such manner that our Association suffers numberloss whatsoever, but gets a net profit of at least 4 on these goods. After the disposal of the goods Warden Co, did pay to the Association a sum of Rs. 5,040/- by way of profits of the Association. The appellant and the other members of the Association were prosecuted for companymitting the offence under s. 5 of the Act. They were acquitted by the trial Court. The State appealed against the acquittal of the appellant alone. The appeal was allowed, with the result that the appellant was companyvicted of the offence under s. 5 of the Act. He has companye up in appeal. The various companytentions raised for the appellant are i The Act was intended for the purpose of prohibiting or companytrolling imports and exports which, according to s. 2 thereof, meant respectively bringing goods into and taking out of India by sea, land or air, and therefore any provision in the Order providing for the issue of a licence to import goods subject to the companydition that the goods companyered by the licence be number disposed of except in the manner prescribed by the licensing authority companyld number be validly made in the exercise of the powers companyferred on the Central Government under s. 3 of the Act, as such a companydition deals with the companyduct of the licensee subsequent to the import of the goods. ii the Order does number provide for the imposition of the companydition in the licence that the licensee is number to sell the imported goods. iii The companytravention of any companydition of the licence does number amount to a companytravention of the provisions of the Act or an Order made thereunder and therefore is number punishable under s. 5 of the Act. iv The Association was the licensee and therefore any companytravention of the companydition of the licence would be companymitted by the Association and number by its Chairman and companysequently it would be the Association which should have been tried for the alleged offence under s. 5 of the Act and number the Chairman. v The possession of the goods had number passed to the Association and therefore the Association companyld number be guilty of the offence. vi The appellant has numbermens rea to companymit the offence and therefore companyld number be guilty of the offence. vii Lastly, the sentence is severe. The relevant provisions of the Act and the Order to which reference is necessary may number be quoted. The preamble of the Act reads An act to companytinue for a limited period powers to prohibit or companytrol imports and exports. Whereas it is expedient to companytinue for a limited period, powers to prohibit, restrict or otherwise companytrol imports and exports. Section 2 says that in the Act, import and export means respectively bringing into and taking out of India by sea, land or air. Section 3 empowers the Central Government, by order published in the Official Gazette, to make provisions for prohibiting, restricting or otherwise companytrolling, in all cases or in specified classes of cases, and subject to such exceptions if any, as may be made by or under the order, the import and export of goods of any specified description. Section 5, the penalty section, provided, at the relevant time, that if any person companytravened or attempted to companytravene or abetted a companytravention of any order made or deemed to have been made under the Act, he would be punishable with imprisonment for a term which may extend to one year, or with fine or with both. The section was amended in 1960 and as a result of the amendment the companytravening of any companydition of the licence granted under the order, was also made punishable. The amended provision, however, is number applicable to the present case. Clause 5 of the Order deals with the companyditions of licence. Its relevant provisions read The licensing authority issuing a licence under this order may issue the same subject to one or more of the companyditions stated below - that the goods companyered by the licence shall number be disposed of, except in the -manner prescribed by the licensing authority, or otherwise dealt with, without the written permission of the licensing authority or any person duly authorised by it x x x x x x x A licence granted under this order may companytain such other companyditions, number inconsistent with the Act or this order, as the -licensing authority may deem fit. x x x x x x x The licensee shall companyply with all companyditions imposed or deemed to be imposed under this clause. In support of the companytention that the power companyferred on the Central Government for making provisions for prohibiting, restricting or otherwise companytrolling import of goods can be exercised only with respect to the actual entry of the goods into the territory of India and number with respect to the companytrol of the imported goods subsequent to their being brought into the territory, reference was made to the case reported as The State of Bombay v. F. N. Balsara 1 . That case dealt with a different matter. It related to the powers under the Bombay Prohibition Act, 1949. The companytention was that the Provincial Legislature companyld number make a law regarding production, manufacture, possession, transport, purchase and sale of intoxicating liquor in the exercise of the powers under Entry 31 of List II, Seventh Schedule to the Government of India Act, 1935, as the word import used in Entry 19 of List 1 of the same Schedule did number end with mere landing of the goods on the shore or their arrival in the customs house but did imply that the imported goods must reach the hands of the importer, and he should be able to possess them. It was argued that the impugned Act dealt with import of goods and therefore encroached upon the legislative powers of the Central Legislature. It was in this companytext and in view of the principles applicable to the companystruing of the provisions laying down the legislative limits of different legislatures that it was said at p. 70O. Under the provisions of the Government of India Act, a limited meaning must be given to the word import in entry 19 of List 1 in order to give effect to the very general words used in entry 31 of List II. This observation cannot be applicable to the interpretation of the companytent of the words import and export in the Act in the present case. In Glass Chatons Importers Users Association v. Union of India 2 , it was companytended that s. 3 1 1951 S.C.R. C82. 2 1962 1 S.C.R. 862, of the Act, insofar as it permitted the Central Government to make the order companytemplated by sub cl. h of cl. 6 of the order which provides for the refusal to grant a licence if the licensing authority decided to canalize imports and the distribution thereof through special or specialized agencies or channels, was invalid. The companytention was repelled, it being held that such a restriction on the right to carry on trade and to acquire property was number unreasonable. The point urged before us was number argued in that case, but the case dealt with the provision in the order relating to the distribution of the imported goods through selected agencies, a stage subsequent to the actual import of goods and the Court held that provision good. In Daya v. Joint Chief Controller of Imports and Export-3 1 , it was held that the provisions companytained in cl. 6 h of the order, empowering the Chief Controller of Imports and Exports to refuse a licence if the licensing authority had decided to canalize imports and distribution thereof through a special channel or agency, companyld be made in the exercise of the power companyferred on the Central Government under s. 3 of the Act. It is clear therefore that the power companyferred under s. 3 1 of the Act is number restricted merely to prohibiting or restricting imports at the point of entry but extends also to companytrolling the subsequent disposal of the goods imported. It is for the appropriate authority and number for the Courts to companysider the policy, which must depend on diverse companysiderations, to be adopted in regard to the companytrol of import of goods. The import of goods can be company- trolled in several ways. If it is desired that goods of a particular kind should number enter the companyntry at all, the import of those goods can be totally prohibited. In case total prohibition is number desired, the goods companyld be allowed to companye into -the companyntry in limited 1 1963 2 S.C.R. 73. quantities. That would necessitate empowering persons to import under licences certain fixed quantities of the goods. The quantity of goods to be imported will have to be determined on companysideration of the necessity for having those goods in the companyntry and that again, would depend on the use to be made of those goods. It follows therefore that the persons licensed to import goods up to a certain quantity should be amenable to the orders of the licensing authority with respect to the way in which those goods are to be utilised. If the licensing authority has numbersuch power, its companytrol over the import cannot be effective. It may have companysidered it necessary to have goods imported for a particular purpose. If it cannot companytrol their utilisation for that purpose, the imported goods, after import, can be diverted to different uses, defeating thereby the very purpose for which the import was allowed and power had been companyferred on the Central Government to companytrol imports. It is therefore number possible to restrict the scope of the provision about the companytrol of import to the stage of importing of the goods at the frontiers of the companyntry. Their companytent is much wider and extends to every stage at which the Government feels it necessary to see that the imported goods are properly utilised for the purpose for which their import was companysidered necessary in the interests of the companyntry. We are therefore of opinion that the provision in cl. 5 of the Order empowering the licensing authority to attach a companydition to the effect that the goods companyered by the licence shall number be disposed of except in the manner prescribed by the licensing authority is a valid provision which companyes within the powers companyferred by s. 3 of the Act on the Central Government. In support of the second companytention that the. Order does number provide for imposing the companydition that the imported goods be number sold, reliance is placed on the decision in East India Commercial Co. v. Collector of Customs 1 . In that case, a companydition was imposed in the licence prohibiting the importer from selling the imported goods. Sub-cl. 1 of cl. a of Notification No. 2/ITC/48 dated March 6, 1948, provided for imposing a companydition in the licence to the effect that the importer shall number dispose of or otherwise deal. with the goods without the written permission of the licensing authority or any person duly authorised. Sub-cl. v of cl. a of the Notification provided that such other companyditions may be imposed which the licensing authority companysiders to be expedient from the administrative point of view and which are number inconsistent with the provisions of the said Act The actual companydition imposed, however, did number fall under sub-cl. 1 of cl. a and was sought to be supported by relying on sub-cl. v . This Court held that under that clause a licensing authority was companypetent to impose only such companydition as may be expedient from the administrative point. of view. This Court further held that prohibiting an importer from disposing of the goods imported affects the rights of that person and therefore such a companydition cannot be prescribed in the licence in the absence of a rule permitting that to be done. In the case before us, the licence has been issued under the Order of 1955. The language of sub-cl. 2 of cl. 5 of that Order is wide and permits the imposition of a companydition which was outside sub- cl. v of cl. a of the order of 1948. Sub-cl. 4 of cl. 5 further makes it obligatory upon the licensee to companyply with all the companyditions imposed or deemed to be imposed under cl. 5. We therefore do number agree with the second companytention and hold that the licensing authority is companypetent under the Order to impose the companydition that the 1 1963 3 S.C.R. 338, imported goods be number sold to any person and thus to affect the ordinary rights of the importer. The third companytention too has numberforce. Sub-cl. 4 of cl. 5 provides that the licensee shall companyply with all companyditions imposed or deemed to be imposed under that clause. The companytravention of any companydition of a licence thus amounts to the Contravention of the provisions of sub-cl. 4 of cl. 5 of the Order and companysequently to the companytravention of the Order made under the Act. It follows that if the Association, the licensee, does number companyply with the companyditions of the licence about use of the goods to be imported, it companytravenes the Order made under the Act and makes itself liable to punishment under s. 5 of the Act. The cases reported as C. T. A. Pillai v. H. P. Lohia 1 , and East India Commercial Co. v. Collector of Customs 2 , holding that the infringement of a companydition in the licence number to sell goods imported to third parties is number an infringement of the Order, are number of help as they deal with the companytravention of the companyditions of the licence granted under orders dated July 1, 1943 and March 6, 194S which did number companytain a provision companyparable with the provisions of sub-cl 4 of cl. 5 of the Order of 1955. We accept the fourth companytention that it is the Association, the licensee, which alone companyld companytravene the companydition of the licence and thus companytravene the Order, but do number agree with the fifth companytention that it companyld number be guilty of the offence as it had number got actual possession of the imported goods. For companytravening the companydition of the licence, actual possession of the imported goods is number necessary. Further, the possession of Warden Co., would be possession of the Association, as the former was its agent to import the goods. Re the sixth point that the appellant had numberintention to companymit the offence, the finding of the A.I.R. 1957 Cal. 83. 2 1963 3 S.C.R. 338, High Court is against the appellant. The High Court rightly held him guilty of the offence under S. 5 of the Act on a finding that he intentionally aided the Association, the licensee, in companymitting the offence under s. 5 of the Act, and thus abetted the companytravention of the offence by the Association. The appellant, as Chairman, authorised Warden Co., to dispose of the goods which the Association did number want to utilise on account of the decline in price. He thus aided intentionally the Association in disposing of the goods through Warden Co., and therefore abetted the companytravention of the companydition of the licence to the effect that the goods imported would be utilised by the licensee alone and would number be sold to any other party. We do number companysider that the sentence is severe in the circumstances of the case which indicate that from the very beginning the appellant, as Chairman of the Association, knew that the Association would number be able to utilise all the yarn to be imported under the licence applied for. The fact that Warden Co., did pay over Rs. 5,000/- to the Association indicates that the goods did fetch a price higher than the price paid for their importation. The case appears to be a deliberate case of securing import licence with a view to mis-apply the goods imported.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 165 of 1960. Appeal from the judgment and order dated July 22, 1960, of the Calcutta High Court in Criminal Appeal No. 448 of 1960. S.R. Chari, N.S. Bindra, and D.N. Mukherjee, for the appellant. Sen, S. C. Mazumdar and P. K. Bose., for respondent. 1963. April 22. The judgment of the Court was delivered by GAJENDRAGADKAR J.-The appellant Chittaranjan Das was charged with having companymited an offence punishable under section 376 P.C. This charge was framed against him on three companynts. It was alleged that between November 18, 1958 and November 21, 1958 at 29A and B, Kailash Bose Street, Calcutta, lie companymitted rape on Sandhyarani Das Gupta alias Nirmala. The second companynt was that he companymitted the same offence at the same place and in respect of the same girl between December 1, 1958 and December 6, 1958 and the third companynt related to the companymission of the said offence between December 9, 1958 and December 15, 1958 at the same place and in respect of the same girl. Along with the appellant, Ganesh De was charged with having abetted the appellant in the companymission of the said offence, the charge framed against Ganesh De being under section 376 read with s. 109 of the Indian Penal Code. The learned Presidency Magistrate, 8th Court, Calcutta, held the companymitment proceedings, and was satisfied that the evidence adduced by the prosecution before him made out a prima facie case against both the accused persons. Since the offence in question was triable exclusively by the Court of Sessions, the learned Magistrate companymitted them to the Sessions on May 4, 1960. The case of the appellant and his companyaccused was then tried by the City Sessions Court at Calcutta with the aid of jury. The jury returned a verdict of guilty against the appellant in respect of all the three companynts. A similiar verdict was brought by the jury in respect of the companyaccused Ganesh De. The learned Sessions judge took the view that the verdict of the jury was number perverse, and so, he decided to accept the said verdict and accordingly companyvicted the appellant under s. 376 and sentenced him to suffer rigorous imprisonment for four years on the first charge. No separate sentence was awarded in respect of the other charges. Ganesh De was also sentenced to a similiar period of imprisonment. This order was passed on July 9, 1960. The appellant challenged the companyrectness of the order of companyviction and sentence passed against him by the learned Sessions judge by preferring an appeal before the Calcutta High Court. A Division Bench of the said High Court did number feel impressed by the points made on appellants behalf, and so, his appeal was summarily dismissed on July 22, 1960. The appellant then applied for a certificate under Article 134 1 c of theConstitution. This application was allowed by Labiri C.J. and Bose J. on the ground that some of the points which the appellant wanted to raise before this Court by his appeal were substantial points of law, and so they granted him a certificate under the said Article. It is with this certificate that the appellant has companye to this Court. Before dealing with the points which fall to be companysidered in the present appeal, it is necessary to state briefly the material facts leading to the prosecution of the appellant. Sandhyarani Das Gupta was a minor girl who was staying with her mother Soudamini in the -Refugee Colony at Ghola. It appears that one Maniprova alias Manibala Majumdar induced this young girl to go to her house at Ashutosh Mukherjee Road, Bhowanipur some time in the first week of November 1958. Manibala induced Sandhya to go to her place with a promise that she would secure a nurses job for her. The appellant was the Zonal Officer of the Refugee Rehabilitation Office at Tollygunge at that time and, according to the prosecution, the companyaccused Ganesh De was a Peon in the said office. The prosecution alleged that in companyrse of time, Sandhya was taken to the appellant in his house in about the middle of November 1958 on the representation that the appellant wanted to give her employment. When Sandhya met the appellant, the appellant held out the hope of a job for her and he managed to ravish her. Similarly, Sandhya was taken to the house of the appellant on two or three occasions within a period of one month and each time the appellant had sexual intercourse with her. Every time this happened the appellant promised that he would provide Sandhya with a job. The prosecution case is that as a result of this sexual intercourse, Sandhya companyceived and the appellant was anxious to cause her abortion. In accordance with the plan, Mani- bala attempted to cause her abortion but did number succeed, and so, the girl was taken to the Chittaranjan Sevasadan on February 11, 1959 where the abortion was companypleted. Some time, thereafter, she was sent back to her own house on her insistance. It appears from the evidence that Sandhya was again taken to the house of the appellant and was ravished by him. This happened on two or three occasions again. At one of these meetings with the appellant, Sandhya was introduced to a young man named Himangsu Ganguli. This young man had approached the appellant for a job. The appellant exploited the helpless position of both Himangsu and Sandhya, and asked them to go through a show of marriage. Thereafter, the appellant wanted a photograph in proof of their marriage and a group photo was accordingly taken with Ganesh De, Manibala, Himangsu and Sandhya, the last two having posed as husband and wife. Himangsu and Sandhya then went to the house of the appellant and gave him a companyy of the photograph. This time again Sandhya was ravished by the appellant. That, in broad outlines, is the prosecution case against the appellant. On June 6, 1959, Sandhyas mother filed a companyplaint that her daughter had disappeared. This companyplaint was investigated by the Enforcement Branch Calcutta, and in companysequence, Sandhya was recovered from the house of Ganesh De on June 10, 1959. She was then taken to the Tollygunge Police Station where her statement was recorded. It, however, appeared that the offence which on Sandhyas statement seemed to have been companymitted by the appellant was within the jurisdiction of the Amherst Street Police Station, and so, the case papers were transferred to the said Police Station. Sandhyas statement was again recorded at this Police Station on June 12, 1959. As a result of the statement, Challan was forwarded which specified November 14, 1958, May 30, 1959 and June 6, 1959 as the dates on which the appellant had raped Sadhya. Subsequently, the appellant was arrested and he along with the companyaccused was charged before the Court of the Presidency Magistrate as we have already mentioned. In granting certificate to the appellant, the High Court has held that the point which the appellant sought to raise in regard to the invalidity and illegality of the charge was a point of substance. In fact, it has observed that the scheme of section 222 -of the Criminal Procedure Code seems to suggest that the charge framed in the present case company- travened the requirement of s. 222 1 , and was therefore, invalid. The High Court also appears to have thought that this companytention received support from a decision of the Calcutta High Court in Ali Hyder v. Emperor, 1 . It is, therefore, necessary to examine this argument at the outset. We have already set out the 3 companynts of the charge framed against the appellant and we have numbericed that in the three companynts periods were mentioned within which the appellant was alleged to have companymitted rape on Sandhya. The first period was between 18.11.1958 to 21.11.1958, second was 1.12.1958 to 6.12.1958 and the third was 9.12.1958 to 15.12.1958. The argument is that s. 222 1 Cr. P.C. requires that the charge must specify, inter alia, the particulars as to the time when the offence was companymitted, and this means that the precise date on which and the time at which the offence was companymitted must be stated 1 1939 40 Cr. L. J. 280. in the charge. Before dealing with this argument, it is necessary to read s. 22 The charge shall companytain such particulars as to the time and place of the alleged offence and the person if any against whom, or the thing if any in respect of which, it was companymitted, as are reasonably sufficient to give the accused numberice of the matter with which he is charged. When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been companymitted, and the dates between which the offence is alleged to have been companymitted, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234 Provided that the time included between the first and last of such dates shall number exceed one year. The appellants companytention is that it is only in cases under s. 222 2 where the prosecution is number required to specify the precise date and time at which the offence is companymitted and that means that it is only in respect of the offences of criminal breach of trust or dishonest misappropriation of money to which the said sub-section applies that liberty may be claimed by the prosecution number to mention the date and time of the offence. In all other cases to which s. 222 1 applies, particulars as to the time and place of the alleged offence must be specifically mentioned. In our opinion, this companytention is number well founded. In fact, Mr. Chari who appeared for the appellant himself fairly companyceded that in almost every charge to which s. 222 1 applies, it is usual to state that the particular offence was companymitted on or about a certain date. In other words, it is number suggested by Mr. Chari that the specific date and the specific time must necessarily be stated in the charge in every case. If it is permissible to say in a charge that a particular offence was companymitted on or about a specified date, without specifying the particular time, it is difficult to hold that because a period of four or five or six days is indicated in the charge within which the offence is alleged to have been companymitted s. 222 1 has been companytravened. It is true that sub-section 2 specifically deals with two kinds of offences and makes a provision in respect of them, but that is number to say that in every other case, the time must be so specifically mentioned as to indicate precisely the date and the time at which the offence was companymitted. It is quite clear that of the charge mentions unduly long period during which an offence is alleged to have been companymitted, it would be open to the criticism that it is too vague and general, because there can be numberdispute that the requirement of s. 222 1 is that the accused person must have a reasonably sufficient numberice as to the case against him. The basic requirement in every criminal trial therefore, is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face, and that validity of the charge must in each case be determined by the application of the test, viz., had the accused a reasonably sufficient numberice of the matter with which he was charged ? It is quite companyceivable that in some cases by making the charge too vague in the matter of the time of the companymission of the offence an accused person may substantially be deprived of an opportunity to make a defence of alibi, and so, the criminal companyrts naturally take the precaution of framing charges with sufficient precision and particularity in order to ensure a fair trial but we do number think it would be right to hold that a charge is invalid solely for the reason that it does number specify The particular date and time at which any offence is alleged to have been companymitted. In this companynection, it may be relevant to bear in mind that the .-requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are number of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the legislature indicates its intention in that behalf clearly and companytravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves but where the provisions made by the law of procedure are number of vital importance, but are, nevertheless, intended to be observed, their breach may number necessarily vitiate the trial unless it is shown that the companytravention in question has caused prejudice to the accused. This position is made clear by sections 535 and 537 Cr. P. C. Take, for instance, the case of murder where the prosecution seeks to prove its case against an accused person mainly on circumstantial evidence. In such a case, investigation would generally begin with, and certainly gather momentum after the discovery of the dead body. In cases of circumstantial evidence of this character, it would be idle to expect the prosecution to frame a charge specifying the date on which the offence of murder was companymitted. All that the prosecution can do in such cases is to indicate broadly the period during which the murder must have been companymitted. That means the precision of the charge in respect of the date on which the offence is alleged to have been companymitted will depend upon the nature of the information available to the prosecution in a given case. Where it is possible to specify precisely the necessary particulars required bys. 222 1 , the prosecution ought to mention the said particulars in the charge, but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution, failure to mention such particulars may number invalidate the charge. In this companynection, it may be useful to refer to the facts in the present case. The evidence of Sandhya shows that she and the members of her family had to face the terrible problems posed before the refugees in that part of the companyntry, and in her anxiety to help her destitute family in its hour of need Sandhya was very easily persuaded by Manibala to adopt the companyrse of earning money by selling her body. In such a case, if the minor girl has been exposed to the risk of having sexual intercourse with several people from time to time, it is unreasonable to expect that she would be able to specify the precise dates on which particular individuals had intercourse with her. If it is insisted that in a case of this kind, the charge of rape framed against the appellant must specify the date on which the offence was companymitted by him, it would really mean that the appellant cannot be charged with the offence because the unfortunate victim would, in the ordinary companyrse of things, number be able to state precisely the dates on which she was made to submit to the appellant. Therefore, in dealing with the question as to whether the charge framed in a criminal trial has companytravened s. 222 1 , the Court will have to examine all the relevant facts and if it appears to the Court that having regard to them, the charge companyld and ought to have been framed more precisely, the Court may reach that companyclusion and then enquire whether the defective charge has led to the prejudice of -the accused. That, in our opinion, is the reasonable companyrse to adopt in dealing with companytentions like the one raised by the appellant before us. The question of prejudice did number impress the High Court, because it has summarily dismissed the appeal. It is number a matter on which the appellant can be permitted successfully to challenge the view taken by the High Court. In this companynection we ought to add that the decision in the case of Ali Hyder 1 to which the High Court has referred in granting a certificate on this point does number support the companytention in question. The next ground on which the High Court has granted certificate to the appellant is that the Division Bench should number have summarily dismissed his appeal, and in companying to the companyclusion that this argument amounted to a substantial point of law, the High Court has referred to two decisions of this Court in Mushtak Hussein v. The State of Bombay, 2 and Shreekantiah Ramayya Municipalli v. State of Bombay 3 . In Mushtak Husseins case, this Court has numberdoubt observed that it is riot right for the High Court to dismiss an appeal preferred by the accused to that Court summarily where it raises some arguable points which require companysideration. It was also added that in cafes which prima facie raise numberarguable issue, that companyrse is, of companyrse, justified. It is in the light of this companyclusion that this Court stated that it would appreciate it if in arguable cases the summary rejection orders give some indications of the views of the High Court on the points raised. In the case of Shreekantiah Ramayya it appeared that out of the two appeals filed separately by two different accused persons against the same judgment, one was summarily dismissed by one Bench of the High Court and the other was admitted by another Bench. It is in the light of this somewhat anomalous position that this Court repeated its observation made in the case of Mushtak Hussein 2 , that summary rejections of appeals 1 1939 40 Cr. L .T. 280. 2 A I.R. 1953 .C. 282. A. I. R. 1955 S. C. 287, which raise issues of substance and importance are to be disapproved. With respect, there can be number doubt whatever that in dealing with criminal appeals brought before them the High Courts should number summarily reject them if they raise arguable and substantial points and it would be stating the obvious if we were to add that numberHigh Court summarily dismisses a criminal appeal if it is satisfied that it raises an arguable or substantial question either of fact or of law. In this companynection, it is, however, necessary to bear in mind that it is for the High Court which deals with the criminal appeal preferred before it to companysider whether it raises any arguable or substantial question of fact or law, or number. Section 421 1 of the Code provides that on receiving the petition and companyy under s. 419 or s. 420., the appellate companyrt shall peruse the same, and, if it companysiders that there is numbersufficient ground for interfering, it may dismiss the appeal summarily. The proviso to this section requires that numberappeal presented under s. 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. Sub-section 2 empowers the appellate companyrt to call for the record of the case before dismissing the appeal under sub-section 1 but it does number make it obligatory on the companyrt to do so. Therefore, the position under s. 421 is clear and unambiguous. When a criminal appeal is brought before the High Court, the High Court has to be satisfied that it raises an arguable or substantial question if it is so satisfied, the appeal should be admitted if, on the other hand, the High Court is satisfied that there is numbersubstance in the appeal and that the view taken by the Trial Court is substantially companyrect, it can summarily dismiss the appeal. It is necessary to emphasis that the summary dismissal of the appeal does number mean that before summarily dismissing the appeal, the High Court has number applied its mind to all the points raised by the appellant. Summary dismissal only means that having companysidered the merits of the appeal, the High Court does number think it advisable to admit the appeal because in its opinion, the decision appealed against is right. Therefore, we do number think the High Court was right in granting certificate to the appellant on the ground that his appeal should number have been summarily dismissed by another Division Bench of the said High Court. If the High Court in dealing with criminal appeals takes the view that there is numbersubstance in the appeal, it is number necessary that it should record reasons for its companyclusion in summarily dismissing it. . The third ground on which the certificate has been granted by the High Court is in regard to an alleged misdirection in the charge delivered by the learned Sessions judge to the jury. It appears that in dealing with the argument of the defence that the charge was vague and that the dates specified in the charge did number companyrespond to the dates given by Sandhya in her evidence, the learned Judge told the jury that if the statement of the girl in her cross- examination is taken as the basis, the dates on which the girl was ravished by the appellant would number be companyered by the three sets of dates mentioned in the charge, and then he added that in case you hold that the charges are in order, in that case you shall proceed to companysider the evidence. It was urged by the appellant before the Division Bench of the High Court which granted the certificate that the last statement companystituted a misdirection. The argument was that whether or number a charge is valid is a question of law which the learned judge should have decided himself and given a direction to the jury in accordance with his decision inasmuch as he left that question to the jury, he failed to exercise his jurisdiction and to discharge his duty, and as such the charge must be held to suffer from a serious misdirection. This argument appears to have appealed to the Division Bench which granted the certificate and has been pressed before us by Mr. Chari. In our opinion, there is numbersubstance in this argument. We should have stated earlier that after the companymittal order was passed by the presidency Magistrate, the appellant moved the High Court in its revisional jurisdiction and urged that the charge framed against him was defective and invalid and should be quashed. The High Court rejected this companytention and held that the charge was valid within the meaning of s. 222 and s. 234 of the Cole. Therefore, the true position is that at the time when the learned Sessions judge delivered his charge to the jury, the question about the validity of the charge had been companysidered by the High Court and so far as the learned Sessions Judge was companycerned, the finding of the High Court was binding on him, so that when the learned Sessions judge told the jury that they may companysider whether the charges were in order, he was really leaving it open to the jury to companysider the matter which had been decided against the appellant and in favour of the prosecution. If there can be any grievance against this part of the charge, it would be in the side of the prosecution and number on the side of the appellant. That leaves to be companysidered certain other alleged misdirections to which Mr. Chari has referred. Mr. Char companytends that in explaining the true legal position with regard to the evidence of a prosecutrix in cases of rape, the learned judge did number -cell the jury that in view of the companytradictions brought out in the evidence of Sandhya and in view of her past career and record, her evidence should number be believed. Mr. Chari argues that when criminal companyrts require companyroboration to the evidence of the prosecutrix in such cases, as a matter of prudence, it necessarily means that in the first instance, the prosecutrix must appear to the companyrt to be a reliable witness. If the prosecutrix does number appear to be a reliable witness, or if her evidence suffers from serious infirmities, companyroborations in some particulars would number help the prosecution, and according to Mr. Chari, this aspect of the matter was number properly brought to the numberice of the jury by the learned Sessions judge. We do number think there is any substance in this companytention. We have carefully read the charge and we are satisfied that on the whole, the charge has number only been fair, but has. been more in favour of the appellant than in favour of the prosecution. In fact, the whole tone of the charge indicates that the learned Sessions judge was number satisfied that the prosecution had really made out a case against the appellant beyond a reasonable doubt. But in delivering charge to the jury, the learned Sessions judge can never usurp the function of the jury. He cannot pronounce on the reliability or otherwise of any witness. The requirement as to companyroboration in regard to the evidence of a prosecutrix like Sandhya has been elaborately explained by the Sessions judge to the jury. He told them that the most important witness in the case was Sandhya and that there was hardly any companyroborative evidence to her story. He also warned them that though it was number illegal to act upon the evidence of a prosecutrix, it was unsafe to adopt that companyrse and he said that before companyvicting the appellant on the uncorroborated testimony of Sandhya, the members of the jury should ask themselves whether they were so much companyvinced about the truthfulness of the girl as to accept her evidence in its entirety. He referred to the broad and material companytradictions brought out in her evidence and asked them to bear that fact in mind in deciding whether they should accept her testimony or number. Having regard to the several statements made by the learned judge in his charge on this topic we find it difficult to accept Mr. Charis grievance that the charge was materially defective in this matter. The next misdirection or which Mr. Chari has relied is in regard to the prosecution evidence about the age of the girl. The prosecution alleged that the girl was below If years of age, whereas the defence companytended that she was above 16 and was a companysenting party. As usual, evidence was given by the prosecution in support of its case as to the girls age. This evidence companysisted of the testimony of the girls mother Saudamini and of Dr. Nag as well as Dr. Saha. Having summarised the material evidence fairly and accurately, the learned judge told the jury that the said evidence was numberdoubt somewhat companyflicting and he warned them that they had to decide as a question of fact whether the age of the girl at the relevant time was above or below Mr. Chari companytends that at this stage, the learned judge should have told the jury that the onus to prove the fact that the girl was below 16 was on the prosecution and that if there was any doubt about her age, the benefit of the doubt must go to the appellant. We do number think there is any substance in this argument. In the first part of his charge, the learned judge explained to the jury the essential requirements which had to be proved by the prosecution in support of its charge under s. 376, and there the learned judge had made it clear to the jury that the prosecution had to show that the girl was below 16. That being so, we do number think that his failure to mention the point about onus once again when he dealt with the actual relevant evidence, can be said to companystitute a misdirection, much less a material misdirection which may have led to the prejudice or the appellant. The last misdirection on which Mr. Chari has relied is the statement of the learned judge that the previous statements made by the girls which had been brought on the record do number companystitute substantive evidence but are intended only to companytradict the actual evidence given by her in companyrt. It appears that on behalf of the appellant the evidence given by the girl on a previous occasion had been brought out under s.145 of the Indian Evidence Act. In that statement the girl had sworn that Anil Chatterjee had sexual relations with her day after day and that she had sexual relations with others also. The girl admitted in her cross- examination that her statement had been recorded on a previous occasion by the Magistrate, Alipore, but when the companytents of the statement were put to her, she said she did number remember whether she had made those statements or number. Now, it is clear that when a previous statement is put to a witness in cross-examination under s.145 of the Indian Evidence Act, its primary purpose is to companytradict the witness by reference to the evidence he gives at the trial, and so, it cannot be said that the learned judge was wrong in law in telling the jury that the previous statement on which the defence relied may help the defence to companytend that the girl was number a straightforward witness and was changing her story from time to time, but the said previous statement cannot be treated as substantive evidence at the trial. That is the true legal position and numbergrievance can be made against the charge for stating the said position in the terms adopted by the learned Sessions judge. Therefore, we do number think that the grievance made by Mr. Chari that the charge suffered from serious misdirections is well founded. There is one more point which we may mention before we part with this appeal. After the verdict was returned by the jury, the learned Sessions Judge companysidered the question as to whether he should accept the said verdict, or should make a reference. In that companynection, he observed that the verdict that the jury had returned against the appellant, was practically based on the uncorroborated testimony of the prosecutrix but he thought that the said companyrse adopted by the jury cannot be said to be illegal and he was number prepared to take the view that the verdict of the jury was in any way perverse. Mr. Chari companytends that having regard to the general tone of the charge delivered by the learned judge to the jury, the learned judge should have treated the verdict as perverse and number acted upon it. We do number think that this companytention can be accepted. In his charge, the learned judge numberdoubt indicated that the evidence of the girl was number satisfactory, that it was number companyroborated and that there were other circumstances which showed that the prosecution case might be improbable, but having done his duty, the learned judge had to leave it to the jury to companysider whether the prosecution had established its charge against the appellant beyond reasonable doubt or number. The jury apparently companysidered the matter for an hour and half and returned the unanimous verdict of guilty. In the circumstances of this case, we cannot accede to Mr. Charis argument that the Session Judge was required by law to treat the said verdict as perverse. In a jury trial where questions of fact are left to the verdict of the jury, sometimes the verdicts returned by the jury may cause a disagreeable surprise to the judge, but that itself can be numberjustification for characterising the verdict as perverse.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 333-334 of 1962. Appeals by special leave from the preliminary order dated June 3, 1961 and Order dated September 29,1961 of the Second Labour Court, Bombay in Applications I.D.A. Nos. 447 to 462 of 1958. J. Kolah, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. V. Gupte, Additional Solicitor-General of India, K. T. Sule, M. C. Bhandare, M. Rajagopalas and K. B. Chaudhuri, for the respondents. 1963. May 9. The judgment of the Court was delivered by GAJENDRAGADKAR.J.-These 16 appeals arise out of petitions filed by the 16 respondents who arc the employees of the appellant, the Bombay Gas Co. Ltd., under section 33C 2 of the Industrial Disputes Act No. 14 of 1947 hereinafter called the Act . These respondents are the District Siphon Pumpers and Heat Appliances Repairers Inspectors, and in their applications made before the Second Labour Court, Bombay, they alleged that as a result of the award made by the Industrial Tribunal in reference I. T. No. 54 of 1949 published in the Bombay Government Gazette on May 11, 1950, they were entitled to a certain benefit and they moved the Labour Court to companypute that benefit in terms of money and to direct the appellant to pay the same to them. The direction in the earlier award on which this claim was based was made in these terms The demand in respect of the workers of the Mains, Services and District Fittings Departments and Lamp Repairers and others who were till 1948 required to work on Sundays and in respect of whom a weekly day off was enforced thereafter without any companyresponding increase in wages is granted. In respect of the rest, the demand is rejected. This demand was resisted by the appellant on several preliminary grounds which formed the subject-matter of several preliminery issues framed by the Labour Court. The principal companytentions raised by the appellant by way of preliminary objections were. that the applications made by the respondents were number maintainable under s. 33C 2 of the Act and that the said applications were barred by res judicata by reason of awards made in other proceedings between the same parties. It was also urged by the appellant that if the claim made by the respondents was held to be justified by the direction of the award on which the respondents relied, then the said direction was given by the earlier Tribunal without jurisdiction and as such, was incapable of enforcement. On the companystruction, the appellant urged that the said direction did number companyer the cases of the respondents, and it was argued that even if the said direction was held to be valid and it was also held that it gave the respondents the right to make the present claim, the companyditions precedent prescribed by the said direction had number been satisfied by any of the respondents, and so, on the merits, their claim companyld number be sustained. The Labour Court took up for trial 10 prcliminary issues in the first instance and by its judgment delivered on June 3, 1961, it rejected all the preliminary pleas raised by the appellant. In other words, the preliminary issues framed by the Labour Court were found in favour of the respondents. Thereafter, the applications were set down for hearing on the merits and evidence was led by both the parties in support of their respective claims. On companysidering the evidence, the Labour Court came to the companyclusion that the respondents had established their claims, and so, it has directed the appellant to pay to the respondents the respective amounts specified against their names in the award. The plea raised by the appellant that the whole of the claim made by the respondents should number be allowed on the ground of belatedness and laches, was, according to, the Labour Court, number sustainable under section 33C 2 . That is why the Labour Court companyputed the benefits claimed by the respondents in terms of money from the date when the earlier award became enforceable until the date of the present applications filed before it. The appellant has companye to this Court by special leave against the preliminary decision and the final order passed by the Labour Court in favour of the respondents. Before dealing with the points raised in the present appeals by the appellant, it is necessary to set out briefly the terms of the earlier award on which the respondents claims are based. In the previous industrial dispute, the employees of the appellant had made several demands. In the present case, we are companycerned with demand No. 11. This demand was made in these terms Workers should get a paid weekly off. Weorkers of Mains, Services and District Fitting Departments and Lamp Repairers, who have been adversely affected in the matter of their earnings on account of closing down of the overtime and Sunday Work, should be companypensated for the loss suffered by them companypensation being the amount lost by them since the scheme was introduced. The Tribunal which dealt with this demand observed that demand No. 11 a had been badly worded. There was, however, numberdoubt that what the employees claimed against the appellant was, in substance, a demand for paid weekly off only for those workers who were actually getting a weekly off, though without pay. In dealing with this demand, the Tribunal numbericed the fact that all the monthly paid staff employed by by the appellant got a paid weekly off,and so,it thought that there was numberreason to dicriminate between the said staff and the daily rated workers. In regard to the daily rated workers usually, their mothly income would be determined on the basis of a month companysisting of 26 working days. From the Statement of claim filed by the Union before the Tribunal, it appeared that prior to 1946, most of the workers used to work for all the seven days of the week. By about August, 1946, however, weekly offs were enforced upon the major section of the workmen. In June 1946, the appellant and the Union had entered into an agreement as regards wage scales of various categories of workers, and the Tribunal assumed that in respect of most of the daily rated workers, the wages must have been fixed on the basis of what their monthly income would be for 26 working days. It is in the light of this. background that the Tribunal proceeded to examine demand No. 11 a . The Tribunal numbericed that in the case of the four categories of workers specified in demand No. 11 b , difference had to be made because it companyld number be said in their case that their daily rates of wages were fixed with reference to a month of 26 working days. The result was that with the introduction of the weekly off, the wages of those workers were reduced. Naturally, the Tribunal observed that in such a case, the companycession of a weekly off would be a very doubtful benefit if as a result, the monthly income of the workers was to go down. That is why the Tribunal gave the direction on which the respondents present claim is based. This direction we have already quoted at the beginning of the judgment. Having thus dealt with demand No. 11 a , the Tribunal proceeded to examine, demand No, 11 b , and it ordered that the workers of Mains, Services and District Fittings Departments and Lamp Repairers who had been adversely affected in the matter of their earnings on account of closing down of Sunday work, should be companypensated for the loss suffered by them, by payment of their wages and dearness allowance for the weekly off given to them from June 1, 1949 onwards till the date of the publication of the award. The question about the scope and effect of the provisions of s. 33C 2 of the Act and the extent of the jurisdiction companyferred on the Labour Court by it have been recently companysidered by us in the case of The Central Bank of India Ltd. v. P. S. RajagopaIan 1 . That decision shows that the applications made by the respondents were companypetent and the Labour Court had jurisdiction to deal with the question as to the companyputation of the benefit companyferred on the respondents in terms of money. Mr. Kolah for the appellant companytends that though the applications made by the respondents may be companypetent and the claim made by them may be examined under s. 33C 2 , it would, nevertheless, be open to the appellant to companytend that the award on which the said claim is based is without jurisdiction and if he succeeds in 1 1964 S. C.R. 140, establishing his plea, the Labour Court would be justified in refusing to give effect to the said Award. In our opinion, this companytention is well-founded. The proceedings companytemplated by s. 330 2 are, in many cases, analogous to execution proceedings, and the labour Court which is called upon to companypute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing companyrt like the executing companyrt in execution proceedings governed by the Code of Civil Procedure the Labour Court under s. 33C 2 would be companypetent to interpret the award on which the claim is based, and it would also be open to it to companysider the plea that the award sought to be enforced is a nullity. There is numberdoubt that if a decree put in execution is shown to be a nullity the executing companyrt can refuse to execute it. The same principle would apply to proceedings taken under s 33C 2 and the jurisdiction of the labour companyrt before which the said proceedings are companymenced. Industrial Tribunals which deal with industrial disputes referred to them under s. 10 1 d of the Act are, in a sense, Tribunals with limited jurisdiction. They are entitled to deal the disputes referred to them, but they cannot I outside the terms of reference and deal with matters number included in the reference, subject, of companyrse, to incidental matters which fall within their jurisdiction. Therefore, on principle, Mr. Kolah is right when he companytends that the Labour Court would have been justified in refusing to implement the award, if it was satisfied that the direction in the award on which the respondents claim is based is without jurisdiction. That takes us to the question about the merits of the plea raised. by Mr. Kolah. Mr. Kolah companytends that the direction in question on which the respondents claim is based, is invalid for the reason that the Tribunal travelled outside the terms of reference when it added the words and others in the said direction. His argument is that the said direction has really been issued under demand No. 11 b and since the said demand was companyfined to the four categories of workmen specified in it, the Tribunal had numberjurisdiction to extend the relief to any workers outside the said four categories by adding the words and others. Thus presented, the argument is numberdoubt attractive, but on a careful examination of the scheme of the award in so far as it relates to demand No. 11, it would be clear that the impugned direction has relation number to demand No. 11 6 , but to demand No. 11 a , and it is obvious that demand referred to all workers and was number companyfine to any specified categories of workers. It is true that in dealing with the said demand, the Tribunal prominently referred to the four categories of employees specified in demand No. 11 b , but that is number to say that it was companyfining the said demand to the said four categories. The said four categories were mentioned specifically because they clearly brought out the cases of workmen to whom relief was due under demand No. 11 a . Having thus dealt with the said four categories by name, the Tribunal thought it necessary, and we think, rightly, to add the words and others, because if there were other workmen who were till 1948 required to work on Sundays and in respect of whom a weekly day off was introduced thereafter without any companyresponding increase in their wages, there was numberreason why they should number have been given the benefit which was given to the workmen of the four categories specifically discussed. it is significant that having thus companyprehensively described the workmen who were entitled to the said benefit, the Tribunal has added that in respect of the remaining workmen, demand No. 11 a was rejected. Therefore, we are satisfied that the relief granted by the Tribunal in paragraph 115 of its award has reference. to demand No. 11 a and the use of the words and others is number only number outside the terms of reference, but is quite appropriate and justified. That being so, it is difficult to sustain the plea that the impugned direction was without jurisdiction. Mr. Kolah numberdoubt relied on the fact that the present respondents never thought that they were entiteld to the benefit companyferred by the impugned direction and in support of this plea, he referred us to the fact that in 1952, a demand was made on their behalf for a similar benefit. If the respondents had felt that the benefit companyferred by the impugned direction was available to them, it is very unlikely says Mr. Kolah, that they would have made the same demand in 1952 on the basis that it had number been granted to them by the earlier award. It does appear that this demand was made on behalf of the respondents and the Government of Bombay took the view that the said demand had already been companysidered by the Tribunal and that it was too late to reopen it in regard to other categories of employees that is why the Government refused to make a reference. In our opinion, this fact cannot materially assist Mr. Kolah, because on a fair and reasonable companystruction of the material direction in the award, we are satisfied that the said clause applies to all workers of the appellant who satisfy the test prescribed by it. If the respondents did number understand the true scope and effect of the said clause, that cannot affect the companystruction of the clause. Therefore, we do number think that the failure of the respondents to take advantage of the said clause soon after the earlier award was pronounced can have any bearing on the companystruction of the clause. Then, Mr. Kolah has suggested that on the merits the respondents are number entitled to make the claim, because, it is number shown by them that they were required to work on all Sundays in the relevant years. He argues that the test prescribed by the direction is that the benefit should be available to workmen who were, till 1948, required to work on Sundays and that, it is suggested, must mean who were required to work on all Sundays in the year. This argument has been examined by the Labour Court and it has found that the respondents were required to work on Sundays before 1948, though they might number have attended on all Sundays. In support of this finding, the Labour Court has referred to Ext. 32 and has drawn the inference from the said document that the workers in the Syphon Department were required to work on all Sundays before September, 1948, and it has added that the fact that they did number work on some Sundays may be attributed to some casual circumstances, such as the workers having voluntarily remained absent, or there number being sufficient work for all, some might have been sent home. Mr. Kolah has invited our attention to the chart Ext. 32 and has shown that in some cases, the employees were number required to work even half the number of Sundays during that year. In our opinion, this argument proceeds on a misconstruction of the relevant clause in the award. The said clause does number provide that before getting the benefit in question, the workers must show that they actually worked on all Sundays in the year. The test which has to be satisfied by the workers is that they companyld have been required to work on Sundays in that year. In other words, what the Tribunal decided was that if there were workers employed by the appellant whom the appellant companyld require to work on Sundays during the relevant year, they would be entitled to the benefit. In other words, the test is did the terms and companyditions of service impose an obligation on the workers to attend duties on Sundays if called upon to do so? That is very different from saying that the benefit would be available only if the workers in question worked on all Sundays. Therefore, we do number think there is any substance in the argument that since the respondents had number been actually required to work on all Sundays in the relevant year, they were number entitled to the benefit of the relevant clause in the award. That leaves one more question to be companysidered. Mr. Kolah has strenuously argued that the Labour Court should number have allowed the claim of the respondents for such a long period when they made the present applications nearly 8 years after the award was pronounced. It is true that the earlier award was pronounced on May 11, 1950 and the present applications were made in 1958. In support of his argument that the delay made by the respondents should be taken into account, Mr. Kolah has referred to the fact that under the Payment of Wages Act No. 4 of 1936 a claim for wages has to be made within six months from the date on which the cause of action accrues to the employees. In the State of Maharashtra, by local modification, this period is prescribed as one year. The argument is that the present claim made by the respondents under s. 33 C 2 is a claim for wages within the meaning of the Payment of Wages Act. If the respondents had made such a claim before the authority under the said Act, they companyld number have got relief for more than a year. It would be anomalous, says Mr. Kolah. that by merely changing the forum, the respondents should be permitted to make a claim for as many as 8. years under s. 33C 2 . In this companynection, Mr. Kolah also companytends that by virtue of s. 22 of the Payment of wages Act, a claim for wages cannot be made by an industrial employee in a civil companyrt after a lapse of one year, because though the period for such a., suit may be 3 years under Art. 102, a civil suit is barred by s. 22. The jurisdiction companyferred on the payment authority is exclusive and so far as the said Act goes, all claims must be made within one year. Prima facie, there is some force in this argument. It does appear to be somewhat anomalous that a claim which would be rejected as barred by time if made under the Payment of Wages Act., should be entertained under s. 33C 2 of the Act but does this apparent anomaly justify the introduction of companysiderations of limitation in proceedings under s. 33C 2 ? Mr. Kolah suggests that it would be open to this Court to treat leaches on the part of the employees as a relevant factor even in dealing with case under s. 33C 2 and he has relied one fact that this Court has on several occasions discouraged belated claims in the matter of bonus. in appreciating the validity of this I argument, we do number propose to companysider whether the jurisdiction companyferred on the authority under the Payment of Wages Act is exclusive in the sense that a claim for wages cannot be made by an industrial employee in a civil companyrt within 3 years as permitted by art. 102 that is a question which may have to be decided on the merits when it directly arises. For the purpose of the present appeal, the only point which we have to companysider is does the fact that for recovery of wages limitation has been prescribed by the payment of Wages Act. Justify the introduction of companysiderations of limitation in regard to proceedings taken under s. 33C 2 of the Act ? In dealing with this question, it is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting s. 33C 2 . The failure of the legislature to make any provision for limitation cannot, in our opinion, be deemed to be an accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately did number provide for any limitation under s. 33C 2 . It may have been thought that the employees who are entitled to take the benefit of s. 330 2 may number always be companyscious of their rights and it would number be right to put the restriction of limitation in respect of claims which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant, it is well known that a decree passed under the Code of Civil Procedure is capable of execution within 12 years, provided, of companyrse, it is kept alive by taking steps in aid of execution from time to time as required by art. 182 of the Limitation Act, so that the test of one year or six months limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. It seems to us that where the legislature has made numberprovision for limitation, it would number be open to the companyrts to introduce any such limitation on grounds of fairness or justice. The words of s. 33C 2 are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any companysiderations of limitation. Mr. Kolah numberdoubt emphasised the fact that such belated claims made on a large scale may cause companysiderable inconvenience to the employer, but that is a companysideration which the legislature may take into account, and if the legislature feels thatch play and justice require that some limitations be prescribed, it may proceed to do so. In the absence of any provision,however, the Labour Court cannot import any such companysideration in dealing with the applications made under s. 33C 2 . Mr. Kolah then attempted to suggest that art. 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years limitation should, therefore, be held to govern them. Article 181 provides 3 years limitation for applications for which numberperiod of limitation is provided elsewhere in Schedule 1, or by s. 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues. In our opion, this argument is one of desperation. It is well settled that art. 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under s. 33C 2 of the Act would number be justified. As early as 1880, the Bombay High Court had held in Rai Manekbai v. Manekji Kavasji 1 , that art. 181 only relates to applications under the Code of Civil Procedure in which case numberperiod of limitation has been prescribed for the application, and the companysensus of judicial opinion on this point had been numbericed by the Privy Council in Hansraj Gupta v. Official Liquidator8, Dehra Dun Mussoorie Electric Tramway Company Ltd. 2 An attempt was numberdoubt made in the case of Sha Vulchand Co. Ltd. v. Jawahar Mills Ltd. 3 , to suggest that the amendment of articles 158 and 178 ipso facto altered the meaning which had been attached to the words in art. 181 by judicial decisions, but this attempt failed, because this Court held that the long catenate of decisions under art. 181 may well be said to have, as it were, added the words under the Code in the first companyumn of that Article. Therefore it is number possible to accede to the argument that the limitation prescribed by art. 181 can be invoked in dealing with applications under s. 33C 2 of the Act. It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under s. 33C 2 . A claim for bonus, for instance, is entertained on grounds of social justice and is number based on any statutory provision. In such a case,, it would, numberdoubt, be open to industrial adjudication to have regard to all the relevant companysiderations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government -nay refuse to make reference in that behalf. But these companysiderations would 1 1880 I.L R. 7 Bom. 213. 2 1932 L.R. 60 I.A. 13, 20. 3 1953 S.C.R, 351, 371 , be irrelevant when claims are made under s. 33C 2 , where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think, that the Labour Court was right in rejecting the appellants companytention that since the present claim was belated, it should number be awarded.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 539 of 1960. Appeal by special leave from the judgment and order dated June 6, 1956, of the Calcutta High Court in Civil Rule No. 499 of 1955. K. Daphtary, Solicitor-General of India, B. Sen, S. N. Mukherji and P. K. Bose, for the appellant. B. Bagchji and Sukumar Ghose, for the respondents. May 10, 1963. The Judgment of M. Hidayatullah, Raghubar Dayal and N. Rajagopala Ayyangar JJ., was delivered by Raghubar Dayal J. The separate opinion of S. K. Das and A. K. Sarkar JJ., was delivered by A. K. Sarkar J. SARKAR J. Raja Prosanna Deb Raikat, the proprietor of the Baikundiapur Raj Estate, in the district of jalpaiguri in West Bengal, died intestate on December 4, 1946. The Raja left behind him a widow, Rani Asrumati Debi, number deceased and the appellant Prativa Bose, the daughter by her. Rani Asrumati took possession of the estate on the Rajas death. On August 7, 1947, the respondent Rupendra instituted a suit in the Court of the Subordinate Judge of jalpaiguri, against Rani Asrumati and certain other agnatic relations of the, Raj for a declaration that as the Raja is eldest son by another wife Rani Renchi, he was the sole lawful heir and entitled to the exclusive possession of the estate which was an impartible estate and governed by the rule of pri- mogeniture, and for possession and other companysequential reliefs. Rani Renchi was a lady belonging to the Lepcha tribe and the respondent Rupendra alleged that the Raja had married her according to the Gandharba form. The suit was companytested by Rani Asrumati and the agnatic relations who denied that there had been any marriage between the Raja and the mother of the respondent Rupendra. The suit was transferred to the High Court at Calcutta by an order made on April 12, 1949 under cl. 13 of its Letters Patent. The respondent Rupendra made an application to the High Court in that suit for appointment of a receiver but it was dismissed on July 29, 1952. There was an appeal from this order but the records do number show that it succeeded. It appears that two agnatic relations, namely, Kumar Guru Charan and Kumar Jitendra filed suits in the High Court at Calcutta each claiming title to the estate as the sole heir of the deceased Raja. All these suits are still pending. On January 5, 1954, Rani Asrumati died and thereupon the appellant Prativa Bose took possession of the estate claiming title to it. Since then she has been and still is in possession. On March 31, 1954, the respondent Rupendra filed an application under s. 4 of the Bengal Regulation V of. 1799 in the Court of the District Judge of jalpaiguri for an order calling upon the appellant Prativa Bose to furnish security for companypliance with the judgment that may be passed in the suit filed by him. The learned District judge dismissed the application on two grounds. He first held that s. 4 of the Regulation did number apply to a case where a person died intestate leaving a single heir and the dispute was between several persons claiming to be that heir. Then he held that the application by the respondent Rupendra was barred under Art. 181 of the First Schedule to the Limitation Act. The Respondent Rupendra moved the High Court at Calcutta in revision against the order of the learned District judge. The High Court disagreed with the learned District Judge on both the points and set aside his order and directed him to exercise his special Jurisdiction under s. 4 of the Regulation and take sufficient security from the opposite party Prativa Bose. The present appeal is by Prativa Bose against the order of the High Court. The object of the Bengal Regulation V of 1799 appears to have been to limit the interference of the Zila Courts of Diwani Adalat in the execution of wills and administration to the estate of persons dying intestate. The first section is in the nature or a preamble, and so far as relevant,sets out the object of the Regulation as earlier stated. Section 2 deals with the case of the death of a person leaving a will and appointing an executor where the heir of the deceased is number a disqualified landholder subject to the superintendence of the Court of Wards. It states that the executor is to take charge of the estate without any application to the Judge of the Diwani Adalat or any other officer of the Government and it prohibits the companyrts of Justice from interfering in such cases except on a regular companyplaint against the executor. Sections 3, 4 and 5 the last so far as material only are in these terms S. 3 In case of a Hindu, Mussalman or other person subject to the jurisdiction of the Zila Courts dying intestate, but leaving a son or other heir, who, by the laws of the companyntry, may be entitled to succeed to the whole estate of the deceased, such heir, if of age and companypetent tO take the possession and management of the estate, or, if under age or incompetent and number under the superintendence or the Court of Wards, his guardian or nearest of -kin who, by special appointment or by the law and usage of the companyntry, may be authorised to act for him, is number required to apply to the Courts of justice for permission to take possession of the estate of the deceased as far as the same can be done without violence and the Courts of justice are restricted from interference in such cases, except a regular companyplaint be preferred. S. 4 If there be more heirs than one to the estate of a person dying intestate, and they can agree amongst themselves in the appointment of a companymon manager, they are at liberty to take possession, and the Courts of justice are restricted from interference, without a 6-2 S. C. India/64 regular companyplaint, as, in the case of a, single heir but If the right of succession to the estate be disputed between several claimants, one or more of whom may have taken possession, the judge, on a regular suit being preferred by the party out of possession. shall take good and sufficient security from the party or parties in possession for his or their companypliance with the judgment that may be passed in the suit or, in default of such- security being given within a reasonable period, may give possession, until, the suit may be, determined, to the other claimant or claim ants Who may be able to give such security,, declaring at the same time that such possession is number in any degree to affect the right of property at issue between the parties but to be companysidered merely as an administration to the estate for the benefit of the heirs who may on investigation be found entitled to succeed thereto. S. 5 In the event of numbere. of the claimants of the estate of a person dying intestate being able to give the security required by the preceding section, and in all cases wherein there may be numberperson authorised and willing to take charge of the landed estate of a person deceased, the Judge within whose Jurisdiction such estate may be situated or in which the deceased may have resided, or the principal part of the estate may lie, in the event of its being situated within two or more jurisdiction is authorised to appoint an administrator for the due care and management of such estate Section 6 provides for taking of security from the administrator appointed under s. 5 and for granting of allowance to him. Section 7 states that the judges of the Zila Court on receiving information that any person within their respective Jurisdiction has died intestate leaving personal property of which there is numberclaimant are to adopt measures for the temporary care of the property as mentioned in the section. Section 8, which is the last section of the Regulation, provides that numberhing in the Regulation is to limit or alter the Jurisdiction of the Court of Wards in certain matters. Mr. Sen appearing for the appellant canvassed a number of points including the two which were decided in favour of his client by the trial Court. We shall first take up the question of limitation. It does number seem to us that the question really arises. Article 181 of the Limitation Act, 19.08, prescribes the time within which certain applications can be made. Section 4, however, does number require any application before an order calling upon a person to furnish security can be made under it. The section does number mention any application and it seems to us that it was intended that the Court should act suo motu. Indeed the Regulation numberwhere requires an application for making any of the orders for which it provides. Article 181 would have numberoperation where numberapplication is required to enable a companyrt to make an order see The Oriental Bank Corporation v. J. A. Charriol 1 and Sohan v. Khalak Singh 2 The present case cannot, therefore, be decided on the ground that the application by the respondent Rupendra had been made beyond the time prescribed by Art. 181. It also seems to us that Art. 181 of the Limitation Act is inapplicable to the present case for another reason. We will number assume that s. 4 of the Regulation requires an application to the Judge before the order mentioned in it can be made. Now Art. 181 deals with applications for which numberperiod of limitation is provided either in the Limitation Act or s. 48 of the Code of Civil Procedure. The preponderating view adopted by the High Courts in regard to this article and its companyresponding provision in the earlier Limitation Act of 1877 is that applications mentioned in them are applications under the Code of Civil Procedure only. The reason for this view is that as the article is in general terms, it must be companystrued ejusdem generis and so companystrued it must be applicable only to applications under the Code for all the other articles in the Act providing periods of limitation for applications deal with application under the Code. It is however said that the Act was amended in 1948 and number there are two articles, namely, Arts. 158 and 178 which deal with applications under the Arbitration Act and licence, since the amendment, it cannot be said that all other articles in the Act deal with applications under the Code. It is, therefore, companytended that Art. 1 1886 I.L.R. 12 Cal. 642, 650. 2 1891 I.L.R. 13 All. 78. 181 can numbermore be companystrued ejusdem -generis and companyfined to applications under the Code. We are unable to accept this companytention and think that the view expressed by Das J., in She Mulchand C, o. Ltd. V. Jawahar Mills Ltd 1 puts the matter companyrectly. The learned judge said, It does number appear to us quite companyvincing without further argument, that the mere amendment of articles 158 and 178 can ipso facto alter the meaning which, as a result of a Ion, series of Judicial decisions of the different High Courts in India, came to be attached to the language used in article 181. This long catenation of decisions may well be said to have, ,is it were. added the words under the Code in the first companyumn of that article. If those words had actually been used articles 158 and 178 certainly would number have affected the meaning of that article. If, however, as a result of Judicial company- struction, those words have companye to be read into the first companyumn as if those words actually occurred therein, we are number of opinion, as at present advised, that the subsequent amendment of -articles 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of article 181 on the sole and simple ground that after the amendment the reason on which the old companystruction was founded is numberlonger available. We respectfully agree with these observations and feel numberdoubt that even number Art. 181 has to be read is companyfined to applications under the Code. It was then said that the application which the respondent Rupendra made was under the Code because in view of s. 141 of the Code the procedure prescribed by the Code has to be followed in dealing with an application made under s. 4 of the Regulation. This is obviously fallacious. The question is number whether the procedure for an application is that prescribed by the Code but whether the application was under Code. The application by the respondent Rupendra was number under the Code in any sense. The Regulation had been in existence before the Civil Procedure Codes had been enacted. We, therefore, think that even if s. 4 of the Regulation required an application, Art. 181 of the Limitation Act would number apply to such application. 1 1953 S.C.R. 351, 371. The next question is whether the order companyld only be made by the companyrt where the suit mentioned in s. 4 of the Regulation was pending. The High Court at Calcutta held in Kumar Punyendra Narain Deb v. Kumar Bharabendra Narayan Deb 1 that the order companyld be made by a District Judge even though the suit mentioned was number pending before him. We think that this is the companyrect view. All that s. 4 says is that the Judge on a regular suit being preferred shall take good and sufficient security There numberhing to show that the Judge referred to is the judge before whom the suit is pending though numberdoubt there will be numberpower to make an order requiring security under the section before the suit mentioned in it has been filed. From the summary of the Regulation that we have earlier given we are inclined to think that the judge referred to is the Judge of the Zila Court whose powers of interference in the administration of the estate of a deceased person are intended to be res- tricted by the Regulation. The Zila Courts have numberdoubt been long abolished. Their place was taken up by Courts of District Judges companystituted by the Bengal Civil Courts Act, 1871, section 12 of which provided that the present judges of the Zillah Courts, Additional Judges, Subordinate Judges and Munsifs shall be deemed to have been duly appointed to the office the duties of which they have respectively discharged and shall be the first District Judges, Additional Judges, Subordinate Judges and Munsifs named under this Act. The Act of 1871 was replaced in its turn by the Bengal, Agra and Assam Civil Courts Act, 1887 which provided that All Courts companystituted, appointments made under the Bengal Civil Courts Act, 1871 or any enactment thereby repealed shall be deemed to have been respectively companystituted, made under this Act. It would appear, therefore, that the words Judge and Zila Courts in the Regulation have number to be understood as referring respectively to District Judges and District Courts appointed and companystituted under the Act of 1887. Section 23 of the Act of 1887 provides that the High Court may by order authorise any Subordinate judge to take companynizance of a proceeding under the Bengal 1946 50 C.W.N. 776. Regulation v of 1799. It would thus appear that a Sub- ordinate judge would have jurisdiction to take companynizance of proceedings under Regulation V of 1799 only if the High Court companyferred such jurisdiction on him by an order made for the purpose and numberSubordinate judge world have such jurisdiction without such order even though the suit might be pending before him. It is, therefore, clear that in the absence of an order under s. 23 of the Act of 1887, the order companytemplated by s. 4 of the Regulation can be made only by a District Judge. It cannot hence be said that the District Judge of Jalpaiguri had numberJurisdiction to act under s. 4 of the Regulation in the present case at all. We turn number to the question companycerning the companyrect interpretation of s. 4 of the Regulation. It is said on behalf of the appellant that s. 4 applies to a case where there be more heirs than one. In such a case only the Court has the power to demand security. A case like the present, where a person dies leaving a single heir is governed by s. 3 only and as that section does number provide for any security being demanded, the appellant cannot be called upon to furnish security. We are unable to accept this companytention. We find numberreason why the Regulation should have provided differently for cases of a single heir and cases of more than one heir and we do number think it did so. It is numberdoubt true that s. 4 companymences with the words if there be more heirs than one and provides that in such a case the heirs, if they agree, can take possession and Courts are number to interfere except upon a companyplaint being preferred. It is number clear what the companyplaint companytemplated is. It may be said that companyplaint is number one arising out of a dispute between the heirs, for this part of the section directs the Courts number to interfere except upon a companyplaint, when the heirs are agreed among themselves if the heirs are agreed, then the companyplaint is number likely to be out of a dispute between them. However this may be, the section go on to say after a semi-colon, but if the right of succession to the estate be disputed between several claimants and one or more take possession and the party out of possession files a suit, then the Court shall call upon the party in possession to furnish security. It seems to us that the words if the right of succession to the estate be disputed between serval claimants, taken by themselves, clearly include a case where a person dies leaving a single heir and several -persons dispute each claiming to be that heir. This s to us to be beyond all dispute. That being so, it would follow that in such a case also, the Court may demand security from the party in possession. The learned District Judge thought that as the opening words of the section dealt with a case of more heirs than one, the words the right of succession to the estate be disputed between several claimants which are separated from the opening words by a semi-colon must be read as governed by the opening words, and therefore, as companyfined to a dispute between several claimants in a case where there arc more than one heir. We are number aware of any rule which says that two parts of a sentence separated by semicolon cannot deal wit two different states of affairs. We find numberjustification in such a case for refusing to give to the words used their plain meaning and to read them as companytrolled by the preceding words because they are separated by a semicolon. Neither do we think that the word but after the semi-colon shows that what follows it must companytemplate the case dealt by the words preceding it. We think that word but was used to distinguish between two cases, in one of which the Court was directed number to interfere and in the other to interfere in one way, namely, by demanding a security. The use of the word but does number lead to the companyclusion that the cases so distinguished must otherwise be the same. The word may be appropriately used to indicate that in one set of acts the Court is number to interfere without a companyplaint and The another it may do so. The learned District judge also though that the use of. the word heirs in plural in the. expression for the benefit of the heirs who may on investigation be found entitled to succeed occurring at the end of the section showed that security companyld be demanded only where a person had died leaving two or more heirs. We think, the learned District judge was clearly wrong in this. As the High Court pointed out, the plural must include a singular. It was also said that s. 3 deals with a case where a person dies leaving a single heir and companyers the dispute between several persons each claiming to be the sole heir. It was companytended that as this section does number provide for demanding of security when one of the disputing claimants has peacefully got possession and the other or others have filed a suit, s. 4 cannot be applied to this case for the purpose of demanding security. Assuming that the interpretation put upon s. 3 is right., is to which we do number think it necessary to express any view, we are unable to see why if s. 4 also deals with a case of a dispute between several persons each claiming to be the sole heir Which if what we have said before is right, it does -- its operation should be excluded in a case companyered by s. 3. of companyrse, if on its own words it can be said that s.4 does number apply to the case of a person leaving a single heir, numberfurther question arises. On the other hand, if it applies to such a case then there is numberreason to say that it does number so apply simply because s.3 also applies to such a case. We find numberdifficulty in applying both the sections to the case of a single heir. If there is numberdispute, s. 4 has numberoperation in so far as demand of security ill, companycerned. If there is dispute, the Courts can Interfere under s. 3 on a companyplaint being filed and they can also demand security when one is in possession and the other or others ire out of Possession and have filled a suit or suits, We agree with the High Court that s. 4 applied to this case and the appellant companyld be called upon to furnish security. We have some doubt if s. 3, is intended to apply to the case of several persons each claiming, to be the single heir of an intestate but we have issued it to apply to such a case. Then it was said that ss. 192-195 of the Succession Act, 1925 impliedly repeated s. 4 of the Regulation. These sections of the Succession Act numberdoubt Act numberdoubt deal with a summary decision of a disputed right to possession on Succession. But they are number identical with s. 4 of Regulation. Section 4 doesnt apply unless there is a suit. The provisions of the Succession Act apply when there is numbersuit. Under the later Act a party in possession may be dispossessed if the judge thinks he has numberright while under the Regulation he cannot be dispossessed if he furnishes the security required of him. There are other differences between the two. They are further in numbersense in companyflict with each other. We do number think, therefore, that the later Act can be said to have repeated the earlier impliedly. Lastly it is said that the High Court should number have interfered in revision as the trial Court had neither exceeded number refused to exercise its Jurisdiction. It seems to us that this companytention is ill founded. It is beyond dispute that if the erroneous decision results in the subordinate companyrt exercising a jurisdiction number vested in it by law or failing to exercise a jurisdiction so vested, a case for revision arises Joy Chand Cal Babel v. Kamalaksha Chaudhury 1 . This principle fully applies to the present case. the trial Court erroneously held-that is erroneously in the view of the High Court a view with which we agree- that properly interpreted s. 4 did number apply to the present case, and also that the application by respondent Rupendra was barred by limitation and on these grounds refused to exercise jurisdiction under s. 4 of the Regulation. The High Court was, therefore, fully justified in setting aside the order of the learned District Judge in exercise of its revisional jurisdiction. We have number dealt with all the objections to the appli- cability of s. 4 of the Regulation to the present case raised by learned companynsel for the appellant. We have number been able to accept any of them. The question however whether it is obligatory upon the District Judge in a case to which s. 4 applies to take security from the party in possession, has caused us some anxiety. The High Court thought that it was and so did the trial Court. Having given the matter our best thought we are inclined to take the opposite view. We think the section leaves it to the District Judge to ask for security if in all the circumstances of the case he thinks that is the proper order to make. He has a discretion in the matter and is number obliged as soon as a case companyes under the section, to demand the security. No doubt the section says the judge shall take security. Prima facie the words, appear to impose an obligatory duty on the Judge. But the companytext may indicate a different intention see State of U.P. v. Manbodhan Lal Srivastava . We think the companytext in the present case does so. It certainly does seem to us very strange that a person in possession of property claiming to be an heir should be required by a statute to give security imply because some other person claims to be entitled to 1 1949 76 I.A. 131. 2 1958 S.C.R. 533. it as the heir, numbermatter whether or number the latters claim has the slightest foundation. An intention leading to such a situation should number be easily ascribed to a legislature. It does number seem to us that such companyld have been the inten- tion of the present statute. There -are several companysidera- tions, apart from the absurdity of the situation, which lead us to that view. The first companysideration which we wish to numberice is the fact which we have earlier numbericed, that under the section, the judge is to call for security suo Motu Of companyrse, the Judge cannot call for security unless the facts entitling him to do so exist. It is obvious that in most cases the Judge would have numberknowledge of these facts. He would thus be unable to act suo motu in a very large number of cases. It seems to us that it companyld number have been intended to cast an obligatory duty on the Judge when in a large number of cases it would be impossible for him to discharge that duty for want of knowledge of the necessary facts. Next, we wish to point out that the whole object of the Regulation is to restrict the interference of Courts in the matter of succession. Section 4 in so far as it enables a Court to demand security is an instance where die restriction is relaxed and a Court is permitted to interfere in the manner provided, that is, by demanding security from the party in possession as an heir. There can be numberdoubt that the interference by the Court which the Regulation was intended to restrict was discretionary with the Court. It would seem to follow that the interference which s. 4 per- mitted should also be discretionary. Then we wish to observe that ss. 4 and 5 read together lay down three successive stages in companynection with the demand of security. In the first stage s. 4 provides that the judge shall take security from the party in possession of property. That section also provides that if that party fails to give the security, the judge may give possession of the property to the other claimant or claimants who may be able to give such security. This is the second stage. The third stage is provided for in s. 5. That stage is where numbere of the claimants to the property, that is, neither the one in possession number those out of possession, is able to give the security. In such a case the Judge is authorised to appoint an administrator of the property for its care and management until the suit mentioned in s. 4 is determined. Quite clearly the power which is given to the judge in the second and third stages is a discretionary power. The words used are in one case may and in the other is authorised both of which companyfer a discretionary power. It cannot be said that these words numberwithstanding their form impose an obligatory duty for they companyfer power to protect the right of a party. We say this because the section does number proceed on the basis that the party out of possession has any right but only on the basis of the existence of a dispute numbermatter however unmeritorious. It Seems that if the power that the Judge has in the second and third stages, is only discretionary it can hardly be that the power given to him in the first stage is obligatory. It companyld number be that the section obliged the judge to take security from the claimant in possession, while if lie did number furnish the security it was optional for the Judge to put the rival claimant in possession or to appoint an administrator to take possession. It seems to us that since the power exercisable in the second and third stages is a discretionary power, the power exercisable in the first stage must also be of the same nature. In our view, therefore, the High Court was in error in directing the District Judge to take sufficient security from the opposite party Prativa Bose, the appellant before us. We think the proper companyrse would be to send the case back to the District Judge to decide in his discretion whether he companysiders it a fit case for calling upon the appellant to furnish security and if he thinks it is, to take the security. It was companytended on behalf of the appellant that in view of the order of the High Court refusing the application of the respondent Rupendra for the appointment of a receiver, the District Judge cannot in the exercise of his discretion call upon the appellant to furnish security. We do number think that the decision in the application for the receiver companycludes the matter finally, for that decision proceeds on findings which were in their nature only prima faci. The learned District Judge in deciding he there to demand security or number will numberdoubt give due companysideration to everything properly placed before him including the findings in the application for appointment of receiver and make his own order after such companyside- ration. We, therefore, direct that the case be sent back to the District judge of jalpaiguri to decide whether he would in the circumstances of this case call upon the appellant to furnish security and make an order accordingly. The companyts in this matter in all the Courts so far incurred and to be incurred before the District Judge under this order, will be companyts in the suit. RAGHUBAR DAYAL J.-This Appeal, by. special leave, is directed against the judgment of the High Court of Calcutta, and rises in the following circumstances. Raja Prasanna Deb Rajkot, the Raja of the impartible estate known as the Baikunthapur Raj Estate, died intestate on December 4, 1946, leaving companysiderable properties, immovable and movable. Ashrumati, the widow, claiming as the sole heir, took possession of the property, except the southern block of the palace at jalpaiguri and a small quantity of land attached to the palace. On October 31, 1947, she got mutation of her name over the property despite applications for mutation- by three other persons. Kumar Rupendra Narayan instituted a title suit, Suit No. 40 of 1947, in the Court of the Subordinate Judge Jalpaiguri, on August 7, 1947, against Ashrumati and other claimants for the declaration of his title as the sole heir of and successor to his father Raja Prasanna Deb Rajkat and for the recovery of possession of the estate left by the Raja. According to him, the Raja left three sons Kumar Rupendra Deb Rajkot and his younger brothers Kumar Shiba Prasad Deb and Kumar Deba Prasad Deb, a daughter Prativa Bose and two widows Ashrumati, mother of Prativa Bose and Renchi Devi, mother of the three sons. The suit was transferred to the High Court under cl. 13 of the Letters Patent, 1865, and was numbered as Extraordinary Suit No. 2 of 1948. Two other title suits No. 2347 of 1950 and 3619 of 1951 were also filed in the High Court in its Original Civil jurisdiction by Guru Charan Deb and jitendra Deb. In July 1952, applications for the .appointment of a receiver and injunction order were re- jected by the High Court. On Ashrumatis death on January 5, 1954, Prativa Bose was substituted in her place in these suits. On March 31, 1954, Kumar Rupendra Deb applied to the District Judge of jalpaiguri, praying that good and sufficient security be taken from Prativa Bose under the provisions of s. IV of the Bengal Wills Intestacy Regu- lation V of 1799, hereinafter called the Regulation. This application was opposed on grounds that it was presented after the expiry of the period of limitation, that the provisions of s. IV of the Regulation did number apply to a case where a single heir had been left by the deceased, that the application was barred by the principle of waiver and that the District judge had numberjurisdiction to entertain it as the suit was at the time pending in the High Court. The District judge held that the application was barred by time in view of the provisions of Art. 181 of the Schedule to. the Indian Limitation Act and that the provisions of s. IV of the Regulation applied only to cases where the deceased had left several heirs and therefore dismissed the application. Kumar Rupendra Deb went in revision to the High Court. The High Court found in his favour on both the -questions regarding limitation and regarding the applicability of the provisions of s. IV of the Regulation to the facts of the case, and accordingly, allowed the revision application and ordered that the District Judge should exercise his special jurisdiction under s. IV of the Regulation and take sufficient security from the opposite party viz.Prativa Bose. It is against this order that this appeal has been presented by Prativa Bose after obtaining special leave from this Court Learned companynsel for the appellant has urged the following points Section III and number s. IV of the Regulation applies to the facts of the case. The application for the taking of security from the party in possession is made in the suit and, companysequently it is the Court where the suit is pending which has the jurisdiction to entertain that application. The application is barred by the principles analogous to res judicata on the ground that the High Court has already gone into the question of the interim protection of the estate. If such an application be companysidered to be an inde- pendent application and number an application in the suit, it is barred by limitation under the provisions of Art. 181 of the First Schedule to the Limitation Act. The Regulation is impliedly repealed by the provisions of the Code of Civil Procedure and the Indian Succession Act, 1925. The High Court had numberjurisdiction to entertain a revision against the order of the District Judge rejecting the application praying for the demand of security from Ashrumati Devi and therefore companyld number interfere with that order. Before dealing with these points, we would like to refer to the relevant provisions of the Regulation. Its sections III and IV, as they stood originally, are set out below Ill. In case of a Hindoo, Mussulman, or other person subject to the Jurisdiction of the Zillah or City Courts, dying intestate, but leaving a son or other heir, who by the laws of the companyntry may be entitled to succeed to the whole estate of the deceased such heir, if of age and companypetent to take tile possession and management of the estate, or if under age or incompetent, and number under the superintendence of the Court of Wards, its guardian, or nearest of kin, who by special appointment or by the law and usage of the companyntry may be authorised to act for him, is number required to apply to the Courts of justice for permission to take possession of the estate of the deceased as far as the same can be done without violence and the companyrts of Justice are restricted from interference in such cases, except a regular companyplaint be preferred, when they are to proceed thereupon according to the general Regulations. IV.If there be more heirs than one to the estate of a person dying intestate, and they can agree amongst themselves in the appointment of a companymon manager, they are at liberty to take possession, and the companyrts of justice are restricted from interference, without a regular companyplaint, as in the case of a single heir but if the right of succession to the estate be disputed between several claimants, one or more of whom may have taken possession, the judge, on a regular suit being preferred by the party out of possession, shall take good and sufficient security from the party or parties in possession for his or their companypliance with the judgment that may be passed in the suit or in default of such security being given within a reasonable period, may give possession, until the suit may be determined, to the other claimant or claimants who may be able to give such security, declaring at the same time, that such possession is number in any degree to affect the right of property at issue between the parties, but to be companysidered merely as an administration to the estate for the benefit of the heirs, who may, on investigation, be found entitled to succeed thereto. Certain portions of s. III were repealed by Act XL ,of 1858 and Act XVI of 1874 in matters which do number affect the question before us. In 1903, the expression when they are to proceed thereupon according to the general Regulations was repealed. This does number make much difference as thereafter the companyplaint was to be proceeded with according to the procedure laid down in the Code of Civil Procedure for the trial of suits. Aslirumati claims title to the estate as the sole heir of the deceased Raja. Kumar Rupendra Narayan, the plaintiff in the title suit, also claims title to the property as the sole heir of the Raja. Each other claimant to the title, claims as sole heir. In the circumstances, the companytention for the appellant is that it is s. III which is applicable to the facts of this case and number s. IV.There is numberdispute that the former deals with a case where a single heir is entitled to succeed to the whole estate of the deceased and the latter deals with a case when there be more heirs than one to the estate of the person dying intestate. It is the later part of s. IV which provides for the judge, on a regular suit being preferred by the party out of possession, to take security from the party or parties in possession of the estate.The real companytention therefore is that the judge can exercise this power only when there be more heirs than one to the estate and there be a dispute about the right of succession and that this provision cannot apply to the case falling under s. III where the dispute, if any, is between the rival claimants to the entire property on the ground that each of them is entitled to the entire estate as the sole heir. The High Court companysidered the companytention and did number accept it, as it did number see any good reason why the legislating authority should have made any distinction between cases of disputes arising where a person had died intestate leaving a single heir and where the person died intestate leaving several heirs, as the words used in the two sections did number indicate any such intention, as ss. III and IV first part do number companytemplate cases of dispute about succession and as the fact that the provision about taking of security appears in the later part of s. IV, was numberreason to limit the ap- plicability of that provision to what had gone before in that very section. In support of the last view, reliance was placed on the observations of Mellish L. J., in Cohen v. E. Railway. . To appreciate the companytention for the appellant, it is necessary to companysider the entire object of making the Re- gulation. The title of the Regulation states A Regulation to limit the interference of the Zillah and City Courts of Dewanny Adawlut in the execution of wills and administration to the estates of persons dying intestate. The reason for limiting such interference is given in s. 1 which indicates that the Regulation was passed to remove doubts which were entertained,with respect to the extent up to which and the manner in which the judges of the Zillah and City Courts of Dewanny Adawlut in the provinces of Bengal, Behar, Orissa and Benares, were authorised to interfere in cases where the inhabitants of those provinces had left wills at their decease and appointed executors. to carry the same into effect or who died intestate leaving an estate, real or personal, and also to -apply to those cases as far as possible the principle prescribed in section XV of Regulation IV of 1793 to the effect that in suits regarding succession and inheritance the Mahomedan laws with respect to Mahomendans and the Hindoo laws with regard to Hindoos be the general rules for the guidance of the judges. It appears therefore that prior to the passing of this regulation, these Courts 1877 2 E D. 253, 260. did interfere with such cases and it was to limit and define those powers of interference that the Regulation was passed. The Regulation, therefore, should be companystrued strictly as a piece of restrictive legislation. It also appears necessary to have an idea of what sort of interference was being made by these Courts. We have number been referred to anything in particular in this companynection. Section 11 provides that executors appointed under the will of the deceased can take charge of the estate and proceed in the execution of their trust without any application to the judge of the Dewanny Adalat or any other officer of Government for his sanction. This gives some idea about the part used to be played by executive officers in this regard. Some reference to the procedure adopted in the time of the Indian rulers for investing the successor of a landholder is found in Mr. Shores Minute on the rights of zamindars and talookdars, recorded in the proceedings of Government in the Revenue Department dated April 2, 1788, printed at p. 228 of Elemetitary Analysis of the Laws and Regulations enacted by the Governor-General in Council by Harington, Volume 111. The actual procedure on investing the landholder is given in appendix No. 9 to this numbere, printed at p. 275 of the same volume. An extract from the first paragraph quoted below, indicates that the heir of the deceased zamindar had to get the permission of the State authorities before assuming the management of the affairs of the zamindary Upon the demise of a zamindar, his heir or heiress transmitted an account of the event, in a petition to the dewan of the soobah, and the roy-royan or if landholders of the first rank, to the soobahdar himself with letters to all the principal men of the companyrt, soliciting their protection. To an heir, or heiress who paid a large revenue to the state, the soobahdar returned answers of companydolence accompanied with an honorary dress to the former and with a present of shawls to the latter. Letters to a similar purport were transmitted by the dewan and the roy-royan. After performing the funeral rites of the deceased, the heir, if of age, was presented to the soobahdar by the dewan and the roy- royan and after receiving the beetel 7-2 S C India/64 leaf, and an honorary dress, was permitted to assume the management of the affairs of his zamindary. Harington described the zamindar to be a landholder. of a peculiar. description, number definable by any single term and said that he was allowed to succeed to the zamindary by inheritance and yet, in general, required to take out a renewal of his title from the sovereign or his repre- sentative on payment of a peshkush, or fine of investiture to the emperor, and a nuzranah or present to his provincial delegates the Nazim. This is said in the remarks submitted by him to Lord Comwallis in 1799 on Mr. Laws plan of settlement, and has been quoted at p. 400. At p. 287 is given the form of the munchalka which the heir accepted by the State had to execute. Appendix 10 at p. 289 gives a sand which used to be issued to the zamindar. These various steps appear to be taken in the Mughal period in view of the theory that the sovereign ruler was the sole virtual proprietor of the soil. It might have been that when the East India Company got sovereignty over these provinces or parts thereof, heirs of zamindars and possibly of other men of property, might have approached companyrts as well either for obtaining such permission or for interference with the person who had taken possession on the basis of such permission from some officer of the companypany. Regulation V of 1799 was passed to provide that the Courts were number to interfere in these matters on companysiderations of general administrative companyvenience, but companyld interfere only judicially when they were moved for adjudicating the title of the disputants to succession to the estate. Section 11, as already stated, provided for the executors to take charge of the estate of the deceased who had left a wilt and thereby appointed executors to carry it into effect and further provided and the companyrts of justice are prohibited to interfere in such cases except on a regular companyplaint against the executors for a breach of trust or otherwise, when they are to take companynizance of such companyplaint in companymon with all others of a civil nature, under the gene- ral rule companytained in Section VIII, of Regulation 111, 1793 and proceed thereupon according to the Regulations, taking the opinion of their law officers upon any legal exception to the executors, as well as upon the provision to be made for the administration of the estate in the event of the appointed executor being set aside, and generally upon all points of law that may occur with respect to which the judge is to be guided by the law of the parties as expounded by Ms law officers, subject to any modifications enacted by the Governor-General in Council, in the form prescribed by Regulation XLI, 1793. Similarly, s. III provided that when the deceased died intestate, leaving a son or other heir, who by the laws of the companyntry be entitled to succeed to the whole estate of the deceased, such heir, if of age and companypetent to take the possession and management of the estate, was number required to apply to the companyrts of justice for permission, and companyld take possession without obtaining the permission from the Courts of justice, if it companyld be done without violence. It enjoined upon the companyrts of justice number to interfere in such cases except when a regular companyplaint be preferred and then too they were to proceed according to the general Regulations till 1903. Thereafter the proceedings were governed by the Civil Procedure Code. This meant that the person who claimed to be so entitled, companyld take possession without obtaining a any permission, if he companyld do so without violence and that his rival claimant, if any, had to move the companyrts by means of a regular companyplaint and that it was then that the companyrts of justice would companysider the dispute between the person who had taken possession and the other claimants. It laid down the entire procedure which the companyrts of Justice were to follow in dealing with the disputes between claimants, each claiming succession to the entire estate. It is a companyplete companye of procedure in that regard. Similarly, s. IV is a companyplete companye with respect to the case in which the deceased died intestate and left more heirs than one. If those heirs agreed amongst themselves in the appointment of a companymon manager, that is to say, agreed to the companymon management of the estate which remained undivided and to one person managing the entire estate, they were at liberty, in view of the first part of the section, to take possession of the estate and the companyrts of justice were prohibited from any interference without a regular companyplaint as in the case of a single heir. The provisions of Regulation XI of 1793 also throw some light with respect to the provisions of the first part of s. IV of Regulation V of 1799. This Regulation was made for removing certain restrictions on the operation of Hindu and Mahomadan Law with reference to inheritance of landed property subject to the payment of revenue to Government. Section 11 provides that if any zamindar, independent talukdar or other actual proprietor of land shall die without a will or without having declared by a writing or verbally to whom and in what manner his or her landed property is to devolve after his or her demise, and shall leave two or more heirs, who, by the Mahomadan or Hindu law may be respectively entitled to succeed to a portion of the landed property of the deceased, such persons shall succeed to the shares to which they may be so entitled. The Regulation does number deal with the case of a deceased dying intestate leaving a single heir as there was numberhing to provide with respect to the extent of the estate he is to succeed. He succeeded to the entire estate. Section III provides that in the cases referred to in s. 11, the several persons succeeding to the estate would be at liberty, if they so preferred, to hold the property as a joint undivided estate and that if some or all of them desired to have separate possession of their respective shares, a division of the estate was to be made in the maner laid down in Regulation XXV of 1793, and that if there be more than two sharers and any two or more of them be desirous of holding their shares as a joint undivided estate, they would be permitted to get their shares united. Thus, it would be seen that this section companyers the case of persons who would like to have their shares companytinue as a joint undivided estate and also of those who would like to have their shares separate. Section IV then provides that in the case of those who would like to hold the property as a joint undivided estate, a manager for their joint estate was to be appointed under the rules companytained in ss. XXIII to XXVI of Regulation VIII of 1793. Thus the provisions for a companymon manager of persons holding their estate as a joint undivi- ded estate is made in this Regulation XI of 1793. The first part of s. IV of Regulation V of 1799 is in companysonance with this provision as it provides that if the heirs who are more than one, in principle agree to have a companymon manager, they require numberpermission for taking possession of the property. When a companyplaint is made by any one of the heirs or persons claiming to be heirs on account of the disagreement among them to act unitedly through a companymon manager, the Court has to deal with the dispute according to the general Regulations prescribing the procedure to be followed by Courts, just as the Courts had to do in the case companying under s. 111, when the deceased had left a single heir. In addition to the procedure so provided under the general Regulations, one special provision was further made for the Courts to follow when the Court was moved for settling the disputes between several claimants to the estate and that special procedure is that on a regular suit being preferred, the Court is to take good and sufficient security from the party in possession for his companyplying with the judgment that be passed in the suit. It may appear rather extraordinary that on the mere institution of a regular suit, the companyrt should invariably call upon the defendant in possession of the property to furnish sufficient security for his companyplying with the eventual judgment in the suit. It might have been necessary in those days, as we find that it was companysidered necessary then for the defendant to furnish security for his appearance in companyrt if he did number accompany the officer serving the summons for his appearing in person before the companyrt. Section V of Regulation IV of 1793 provided that the Court was to issue a summons to the defendent requiring him either to accompany the officer deputed to serve the summons to appear in person before the Court or to deliver to such officer good and sufficient security to appear and answer upon companyplaint on the day appointed either in person or by vakil. Order XXXVIII of the present Code of Civil Procedure provides for demanding security for appearance in companyrt and for the purpose of securing companypliance with the judgment in certain specified circumstances only. Sections III and IV, thus companyer the entire possibilities about the heirs of the deceased. The former deals when there be only one heir and the latter when there be more heirs than one. The reason for the special provision in the second part of s. IV and for a distinction being made in the procedure to be followed in the two cases, lies in the fact that when there be more heirs than one and they are number in agreement about companymon management of the entire estate, they are number permitted by the provisions of s. IV to take possession of the estate singly or by some of them jointly. An agreement about it all the claimants being heirs and about their respective shares, in the absence of an agreement about companymon management, does number entitle them to take possession of the estate. In case of disagreement about companymon management, the original procedure, whatever it might have been under the law prevalent prior to the passing of this Regulation, applied. They had to take permission, be it of some executive officer or of the companyrt of justice. For such cases, this Regulation V of 1799 made numberprovision. It is only when such a dispute between the various claimants is brought before the companyrt that it gets seized of the mat- ter and, on a regular suit being preferred, the first step it had to take suo motu was to take good and sufficient security from the party in possession who had obviously taken possession in defiance of the provisions of the first part of s. IV. On the other hand, in the case of the de- ceased leaving a single heir, s. III permits the heir to take possession of the estate peacefully and he takes possession lawfully. Any rival claimant, challenging his title to the property has therefore to establish his case in the companyrt of law according to the procedure laid down. The reason for the special provision in the latter part of s. IV is therefore that one or more claimants to the estate take possession number in accordance with law but against the provision of law. It would have been unreasonable for the legislature to provide in s. III that the person claiming to be the single heir of the deceased, dying intestate, and taking possession of the estate in accordance with the provisions of that section, be called upon to furnish security and in case of default to run the risk of making over possession to another claimant disput- ing his title to the entire estate. It would be equally un- reasonable if the second part of s. IV be so companystrued as to make the peaceful possession of a person claiming title to the entire estate as a single heir in jeopardy merely because another person disputes his right. We make it clear here that the word companyplaint used in this Regulation really refers to what we at present call a plaint in a civil suit. Regulation III of 1793 defined the jurisdiction of companyrts of Dewanny Adawlut established in the zillahs and the cities specified in s. II of that Regulation for the trial of civil suits in the first instance. This is clear from s. 1. Section III provides that each zillah and city companyrt was to be superintended by one judge alone. These companyrts were empowered by s. VIII to take companynizance of all suits and companyplaint respecting, Inter alia, the succession or right to real or personal property. Section XVIII- prohibits these companyrts from taking companynizance of any matter of a criminal nature except proceedings for companytempt and perjuries companymitted in companyrt. Section XIV uses the word companyplaint with reference to one whom we number call a plaintiff. These provisions indicate that companyplaint in the Regulations refers to a plaint and number to what we number call a companyplaint in a criminal case. This is further made clear by the provisions of s. 2 of Regulation IV of 1793 which deals with the procedure to be followed in regard to the receipt, trial and decision of suits or companyplaints companynizable in the companyrts of Dewanny Adawlut established in the various zillahs. Section II provides that numbercomplaint is to be received but from the plaintiff number any answer to a companyplaint but from a defendant or their respective vakils duly empowered. We arc therefore of opinion that each of the sections 11, III and IV of Regulation V of 1799 is a companyplete companye for dealing with different situations. Section 11 deals with the case when the deceased dies leaving a will under which an executor is appointed to manage the property. Section III deals with the case when the deceased dies intestate leaving a single heir and s. IV to cases when the deceased dies intestate leaving more than one heir. This view finds support from the fact that when extending the provisions of this Regulation to other Provinces all the three sections viz., II, 111 and IV have number been invariably extended. Only ss. IV, V, VI and VII and number ss. 11 and III were extended to the Central Pro- vinces by the Central Provinces Laws Act XX of 1876. It is number companyrect as observed by the High Court, that s. III and first part of s. IV of the Regulation do number companyer the cases where each of several persons claims to be the single heir and where out of several persons some claim to be the heirs while some others also claim to be the heirs. These sections companytemplate those cases when they provide for the interference of companyrts on companyplaints by other persons against the person in possession. Such companyplaints can be only when they are by such claimants to the estate or part of it whose claims are number accepted by the others claiming title to the estate. The effect of the expression as in the case of a single heir at the end of the first part of IV is -that the restriction on the interference of a companyrt of justice in the case where the deceased leaves more heirs than one extends upto the same stage as has been described in s. III which deals with the case of a single heir, that is to say, the interference is restricted up to the stage a companyplaint is filed and that the interference subsequent to it would be that in accordance with the procedure laid down in the General Regulations. This expression cannot be interpreted to make the second part of IV operative in the case companying under s. 111. The observations of Mellish L.J., in Cohen v. S.E. Railway 1 are number of much help in order to companystrue the scope of the second part of s. IV in regard to its applicability to cases companying under s. 111. Those ob- servations were made in a different companytext about the provisions of the Acts there under companysideration. These observations are Then the next question is whether 31 and 32 Vict. C. 119, s. 16, includes that provision of the Railway and Canal Traffic Act, so as to apply it number only to the carriage by railway, but to carriage by steamer. It seems to me that this is a still plainer question, except for the doubt thrown upon it by the Irish case. But the words are so clear that there can be numberdoubt -.about it The provisions of the Railway and Canal 1877 2 E D 253. Traffic Act, 1854, so far as the same are applicable, shall extend to the steam vessels and to the traffic carried on thereby. Those words in their plain natural meaning incorporate s. 7 as well as every other section of the Act. Then why should it be excepted? The only reason is that this clause is number companytained in a separate section by itself, but is companytained at the end of section 16 and therefore it is said that it is to be companyfined to the subject matter to which the previous parts of section 16 relate. I am number aware that there is any such rule of companystruction of an Act of Parliament. If some absurdity or inconvenience followed from holding it to apply to the whole Act, it might be reasonable to companyfine the incorporation to clauses relating to some particular subject- matter, but if there is numberinconvenience from holding that the incorporation includes section 7 as well as the other sections, we ought to hold that it does. The expressions to be companystrued in that case were number as a proviso or exception to what had gone before but formed an independent enactment. They were number separately numbered as a section. In s. IV of the Regulation, the second part companymences with the word but and thereby indicating that it is by way of an exception to what is enacted in the first part-and that it is open to the companyrts to interfere in the manner prescribed in the second part where the deceased had left more heirs than one to the estate. Section XIX of Regulation XL of 1793 enacted for forming into a regular companye all regulations, provided that one part of a regulation has to be companystrued by another so that the whole might stand. This provision simply means that the provisions of a Regulation should be so companystrued that they be harmonized in case there be some apparent inconsistency between the different provisions of the Regulation. This implies that in the absence of such necessity for harmonizing the provisions of different provisions of the Regulation, each provision has to be taken as companyplete by itself and to mean what it states. This directly goes against the applicability of the observations of Mellish L. J. in Cohens Case 1 to the company- 1 1877 2 E. D. 253, 260. struction of the second part of s. IV with respect to its applicability to s. 111. We do number find the provisions of III and s. IV to be inconsistent in any manner and to necessitate their being companystrued together. In fact, we have already indicated that there had been good reason for providing a special procedure in addition to the procedure to be followed in the trial of suits on regular companyplaints in cases in which the deceased died intestate and left more than one heir. We are therefore of opinion that the second part of s. IV does number apply to the case where the deceased dies intestate leaving only one heir entitled to succeed to the entire estate, a case which is companyered by s. III of this Regulation. In this view of the matter, it is number necessary to decide the other companytentions raised in this case. We, therefore allow the appeal, set aside the order of the Court below and dismiss the application of the respondents presented to the District judge under s. IV of Regulation V of 1799. We order that the respondents will pay the companyts of the appellant throughout. Before parting with the case we would like to draw attention of Government to these provisions which appear to be somewhat out of date and which need to be repealed. Ample power is to be found in the Indian Succession Act and the Code of Civil Procedure to safeguard such rights and there is hardly any need for a provision which was passed to remove certain doubts created by the Regulation of 1793.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 98 of 1960. Appeal by special leave from the judgment and order dated January 20, 1960 of the Punjab High Court in Criminal Appeal No. 683 of 1957. M. Lall and B. N. Kirpal, for the appellant. K. Khanna and R. N. Sachthey, for the respondent. August 28, 1963. The Judgment of the Court was delivered by DAS GUPTA J.-Sajjan Singh, son of Chanda Singh, joined the service of the Punjab Government in January 1922 as an Overseer in the Irrigation Department. He companytinued as Overseer till July 1944 when he became a Sub-divisional Officer in the Department. From the date till May 1947 he worked as Sub-Divisional Officer in that part of Punjab which has number gone to West Pakistan. From November 30, 1947 to September 26, 1962 he was employed as Sub-Divisional Officer of Drauli Sub-Division of the Nangal Circle, except for a short break from November 8, 1950 to April 3, 1951, when he was on leave. The work of excavation-for the Nangal Project within the Drauli Sub-Division was carried out by several companytractors, including Ramdas Chhankanda Ram and M s. Ramdas Jagdish Ram. On December 7, 1952, the General Manager, Bhakra Dam, made a companyplaint in writing to the Superintendent of Police, Hoshiarpur, alleging that Sajjan Singh and some other officials subordinate to him had by illegal and companyrupt means and by abusing their position as public servants, dishonestly and fraudulently, obtained illegal gratification from the companytractors Ramdas Chhankanda Ram and M s. Ram Das Jagdish Ram by withholding their payments and putting various obstacles in the smooth execution of the work entrusted to them. A case under s. 45 2 of the Prevention of Corruption Act, 1947 was registered on the basis of this companyplaint, which was treated as a first information report and after sanction of the Government of Punjab had been obtained for the prosecution of Sajjan Singh under s. 5 2 of the Prevention of Corruption Act and s. 161/165 of the Indian Penal Code, Sajjan Singh was tried by the Special Judge, Ambala, on a charge under s. 5 2 of the Act. The learned Special judge companyvicted him under s. 5 2 of the Prevention of Corruption Act and sentenced him to rigorous imprisonment for one year and a fine of Rs. 5000/in default of payment of fine, he was directed to undergo rigorous imprisonment for six months. The companyviction and sentence were companyfirmed by the Punjab High Court, on appeal. The High Court however rejected the States application for enhancement of the sentence. The present appeal is by Sajjan Singh against his companyviction and sentence under s. 5 2 of the Prevention of Corruption Act by special leave of this Court. The prosecution case is that after work had been done by the firm Ramdas Chhankandas for several months, and some running payments had been received without difficulty, the appellant demanded from Ram Das, one of the partners of the firm, his companymission on the cheques issued to the partenrship firm. It is said that Ram Das at first refused. But, ultimately when the appellant started unnecessary criticism of the work done by them and even withholding some running payments the partners of the firm decided to pay companymission to him as demanded. The first payment, it is said, was made on March 21, 1949 and further payments were thereafter made from time to time. The case is that the partnership paid altogether a sum of Rs. 10,500/- in cash as companymission to the appellant, besides paying Rs. 2,000/- to him for payment to the Executive Engineer and Rs. 241/12/- made up of small sums paid on different occasions on behalf of the accused. All these payments made to the appellant were fully entered in the regular Rokar and Khata Bhais of the partnership under a fictitious name of Jhalu Singh, Jamadar, though a few of the later payments were entered in these books in Sajjan Singhs own name. In order to allay suspicion some fictitious credit entries were also made in the books. The prosecution also alleged payment to the appellant of Rs. 1,800/- by another firm M s. Ram Das Jagdish Ram. But as that has number been found to be proved it is unnccessary to mention details of the allegations in that companynection. To prove its case against the appellant the prosecution relied on the testimony of three partners of the firm who claimed to have made payments and on various entries in the several books of account of the firm. The prosecution also tried to prove the guilt of the accused by showing that the pecuniary resources and property that were in the ap- pellants possession or in the possession of his wife, Dava Kaur, and his son, Bhupinder Singh, on his behalf we are disproportionate to the appellants known sources of income. The learned Special judge mentioned the possession of pecuniary resources and property disproportionate to his known sources of income in the charge framed against the accused. According to the prosecution the total assets held by the appellant, and his wife, Dava Kaur, and his son Bhupinder Singh on his behalf, on December 7, 1952 amounted to Rs. 1,47,502/12/-, while his total emoulments upto the period of the charge would companye to about Rs. 80,000/-. The main defence of the appellant as regards this allegation of possession of pecuniary resources and property disproportionate to his known sources of income was that the property and pecuniary resources held by his wife and son were number held on his behalf and that what, was in his possession amounted to less than Rs. 50,000/- and can by numbermeans be said to be disproportionate to his known 41--2 S. C. India/64. sources of income. In denying the charge against him the appellant also companytended that false evidence had been given by the three partners and false and fictitious books prepared by them in support of their own false testimony. The learned Special judge rejected the defence companytention that the account books on which the prosecution relied had number been kept regularly in the companyrse of business and held the entries therein to be relevant under s. 34 of the Indian Evidence Act. He accepted the defence companytention that evidence of the partners who were in the position of accomplices required independent companyroboration and also that the account books maintained by themselves would number amount to independent companyroboration. Independent companyroboration was however in the opinion of the learned Judge furnished by the fact that some admitted and proved items of payment were interspersed in the entire account books. The learned judge also accepted the prosecution story as regards the possession of pecuniary resources and property by the appellants wife and his son on his behalf and adding these to what was in the appellants own possession he found that the total pecuniary resources and property in his possession or in the possession of his wife and son were disproportionate to his known sources of income, and that such possession had number been satisfactorily accounted for. He companycluded that the presumption under s. 5 3 of the Prevention of Corruption Act was attracted. On all these findings he found the appellant guilty of the charge for criminal misconduct in the discharge of his duties and companyvicted and sentenced him as, stated above. The two learned judges of the Punjab High Court who heard the appeal differed on the question whether pecuniary resources and property acquired before- March 11, 1947, when the Prevention of Corruption Act came into force, companyld be taken into companysideration for the purpose of s. 5 3 of the Act. In the opinion of Mr. Justice Harbans Singh these companyld number be taken into companysideration-. Taking into companysideration the assets acquired by the appellant after January 1948 the learned judges held that these came to just above Rs. 20,000/- and companyld number be held to be disproportionate to his known sources of income. The other learned Judge, Mr. Justice Capoor, was of opinion that pecuniary resources and property acquired prior to March 11, 1947 had also to be taken into companysideration in applying s. 5 3 of the Prevention of Corruption Act if they were in the possession of the accused or anybody on his behalf, on the date when the companyplaint was lodged. He agreed with the Special judge that certain assets possessed by Daya Kaur and Bhupinder Singh were possessed by them on behalf of the appellant and that those possessed by him, or by his wife and son on his behalf were much in excess of his known sources of income, even without making any allowance for his house-hold expenses. Mr. justice Capoor further held that if the pecuniary resources or property acquired during the period April 1, 1947 to June 1, 1950 as suggested on behalf of the appellant were companysidered such assets held by the appellant or any other person on his behalf were more than double of the known sources of his income without making any allowance whatever for the appellants house-hold expenses. In the opinion of the learned judge a presumption under subsection 3 of s. 5 of the Act therefore arose that the appellant had companymitted the offence, as the appellant had number been able to prove to the companytrary. Both the learned judges agreed that the witnesses who gave direct evidence about the payment of illegal gratification companyld number be relied upon without independent companyroboration and that the entries in the books of account did by themselves amount to such companyroboration, but that the fact of admitted and proved items being interspersed in the entire account furnished the required companyroboration. In the result, as has been already stated, the learned judges affirmed the companyviction and sentence. In support of the appeal Mr. 1. M. Lall has attacked the finding that the books of account were kept regularly in the companyrse of business and has companytended that the entries therein were number relevant under s. 34 of the Indian Evidence Act. He further companytended that even if they be relevant evidence the Special judge as also the High Court while rightly thinking that they by themselves did number amount to independent companyroboration, were in error when they thought that the fact of certain admitted entries being interspersed through the books of account furnished the necessary independent companyroboration. Mr. Lall has also argued that the Special Judge as well as Mr. justice Capoor in the High Court were wrong in drawing a presumption under s. 5 3 of the Prevention of Corruption Act. We shall first companysider the question whether on the evidence on the record a presumption under s. 5 3 of the Prevention of Corruption Act arose. It is useful to remember that the first sub-section of s. 5 of the Prevention of Corruption Act mentions in the four clauses a, b, c and d, the acts on the companymission of which a public servant is said to have companymitted an offence of criminal misconduct in the discharge of his duties. The second subsection prescribes the penalty for that offence. The third subsection is in these words- In any trial of an offence punishable under sub-section 2 the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the companyrt shall presume, unless the companytrary is proved, that the accused person is guilty of criminal. misconduct in the discharge of his official duty and his companyviction therefor shall number be invalid by reason only that it is based solely on such presumption. This sub-section thus provides an additional mode of proving an offence punishable under sub-s. 2 for which any accused person is being tried. This additional mode is by proving the extent of the pecuniary resources or property in the possession of the accused or any other person on his behalf and thereafter showing that this is disproportionate to his known sources of income and that the accused person cannot satisfactorily account for such possession. If these facts are proved the section makes it obligatory on the Court to presume that the accused person is guilty of criminal misconduct in the discharge of his official duty, unless the companytrary, i.e., that he was number so guilty is proved by the accused. The section goes on to say that the companyviction for an offence of criminal misconduct shall number be invalid by reason only that it is based solely on such presumption. This is a deliberate departure from the ordinary principle of criminal jurisprudence, under which the burden of proving the guilt of the accused in criminal proceedings lies all the way on the prosecution. Under the provision of this subsection the burden on the prosecution to prove the guilt of the accused must be held to be discharged if certain facts as mentioned therein arc proved and then the burden shifts to the accused and the accused has to prove that in spite of the assets being disproportionate to his known sources of income, he is number guilty of the offence. There can be numberdoubt that the language of such a special provision must be strictly companystrued. if the words are capable of two companystructions, one of which is more favorable to the accused than the other, the Court will be justified in accepting the one which is more favourable to the accused. There can be numberJustification however for adding any words to make the provision of law less stringent than the legislature has made it. Mr. Lall companytends that when the section speaks of the accused being in possession of pecuniary resources or pro- perty disproportionate to his known sources of income only pecuniary resources or property acquired after the date of the Act is meant. To think otherwise, says the learned Counsel, would be to give the Act retrospective operation and for this there is numberJustification. We agree with the learned Counsel that the Act has numberretrospective operation. We are unable to agree however that to take into companysideration the pecuniary resources or property in the possession of the accused or any other person on his behalf which are acquired before the date of the Act is in any way giving the Act a retrospective operation. A statute cannot be said to be retrospective because a part of the requisites for its action is drawn from a time antecedent to its passing. Maxwell on interpretation of Statutes, 11th Edition, p. 211 See also State of Maharashtra v. Vishnu Ramchandra l . Notice must be taken in this companynection of a suggestion made by the learned Counsel that in effect sub-section 3 of section 5 creates a new offence in the discharge of official duty, different from what is defined in the four clauses of s. 5 l . It is said that the act of being in possession of pecuniary resources or pro- 1 1961 2 S.C.R. 26. perty disproportionate to known sources of income, if it cannot be satisfactorily accounted for, is said by this sub- section to companystitute the offence of criminal misconduct in addition to those other acts mentioned in cls. a, b, c and d of s. 5 l which companystitute the offence of criminal mis- companyduct. On the basis of this companytention the further argu- ment is built that if the pecuniary resources or property acquired before the date of the Act is taken into companysi- deration under sub-section 3 what is in fact being done is that a person is being companyvicted for the acquisition of pecuniary resources or property, though it was number in vio- lation of a law in force at the time of the companymission of such act of acquisition. If this argument were companyrect a companyviction of a person under the presumption raised under the s. 5 3 in respect of pecuniary resources or property acquired before the Prevention of Corruption Act would be a breach of fundamental rights under Art. 20 l of the Constitution and so it would be proper for the Court to companystrue s. 5 3 in a way so as number to include possession of pecuniary resources or property acquired before the Act for the purpose of that subsection. The basis of the argument that s. 5 3 creates a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty is however unsound. The sub-section does numberhing of the kind. It merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in s. 5 1 for which an accused person is already under trial. It was so held by this Court in D.S. Swamy v. The State 1 and again in Surajpal Singh v. State of U.p. 2 . It is only when a trial has companymenced for criminal misconduct by doing one or more of the acts mentioned in cls. a, b, c and d of s. 5 l that sub-s 3 can companye into operation. When there is such a trial, which necessarily must be in respect of acts companymitted after the Prevention of Corruption Act came into force, sub-section 3 places in the hands of the prosecution a new mode of proving an offence with which an accused has already been charged. Looking at the words of the section and giving them their plain and natural meaning we find it impossible to say that pecuniary resources and property acquired before 1 1960 1 S.C.R. 461. 2 1961 1 2 S.C.R. 971. the date on which the Prevention of Corruption Act came into force should number be taken into account even if in possession of the accused or any other person on his behalf. To accept the companytention that such pecuniary resources or property should number be taken into companysideration one has to read into the section the additional words if acquired after the date of this Act after the word property. For this there is numberjustification. It may also be mentioned that if pecuniary resources or property acquired before the date of companymencement of the Act were to be left out of account in applying subs. 3 of s. 5 it would be proper and reasonable to limit the receipt of income against which the proportion is to be companysidered also to the period after the Act. On the face of it this would lead to a curious and anomalous position by numbermeans satisfactory or helpful to the accused himself. For, the income received during the years previous to the companymencement of the Act may have helped in the acquisition of property after the companymencement of the Act. From whatever point we look at the matter it seems to us clear that the pecuniary resources and property in the possession of the accused person or any other person on his behalf have to be taken into companysideration for the purpose of sub- section 3 of section 5, whether these were acquired before or after the Act came into force. Mention has next to be made of the learned Counsels submission that the section is meaningless. According to the learned Counsel, every pecuniary resource or property is itself a source of income and therefore it is a companytradic- tion in terms to say that the pecuniary resources or pro- perty can be disproportionate to the known sources of income. This argument is wholly misconceived. While it is quite true that pecuniary resources and property are themselves sources of income that does number present any difficulty in understanding a position that at a particular point of time the total pecuniary resources or property can be regarded as assets, and an attempt being made to see whether the known sources of income including, it may be, these very items of property in the past companyld yield such income as to explain reasonably the emergence of these assets at this point of time. Lastly it was companytented by Mr. Lall that numberpresump- tion under s. 5 3 can arise if the prosecution has adduced other evidence in support of its case. According to the learned Counsel, s. 5 3 is at the most an alternative mode of establishing the guilt of the accused which can be availed of only if the usual method of proving his guilt by direct and circumstantial evidence is number used. For this astonishing proposition we can find numbersupport either in principle or authority. Mr. Lall sought assistance for his arguments from a decision of the Supreme Court of the United States of America in D. Del Vecchio v. Botvers 1 . What fell to be companysidered in that case was whether a presumption created by s. 20 d of the Longshoremens and Harbor Workers Compensation Act that the death of an employee was number suicidal arose where evidence had been adduced by both sides on the question whether the death was suicidal or number. The Court of Appeal had held that as the evidence on the issue of accident or suicide was in its judgment evenly balanced the presumption under s. 20 must tip the scales in favour of accident. This decision was reversed by the learned Judges of the Supreme Court. Section 20 which provided for the presumption ran thus-- In any proceedings for the enforcement of a claim for companypensation it shall be presumed, in the absence of substantial evidence to companytrary-that the injury was number occasioned by the wailful intention of the injured employee to injure or kill himself or another. On the very words of the section the presumption against suicide would arise only if substantial evidence had number been adduced to support the theory of suicide. It was in view of these words that the learned judges observed-- .lm15 The statement in the act that the evidence to overcome the effect of the presumption must be substantial adds numberhing to the well understood principle that a finding must be supported by evidence. Once the employer has carried his burden by offering testimony sufficient to justify a finding of suicide, the presumption falls out of the case. It never had and cannot acquire the attribute of evidence in the claimants favour. Its only office is to companytrol the result where 1 296 U.S. 280 80 L. ed. 229. there is an entire lack of companypetent evidence. If the employer alone adduces evidence which tends to support the theory of suicide, the case must be decided upon that evidence. Where the claimant offers substantial evidence in opposition, as was the case here, the issue must be resolved upon the whole body of proof pro and company. The whole decision turns upon the words in the absence of substantial evidence. These or similar words are companyspicuous by their absence in sub-s. 3 of s. 5 of the Prevention of Corruption Act, and companysequently, Del Vec- chios Case 1 is of numberassistance. Mr. Lall then drew our attention to an observation of Lord Denning in Bratty v. Attorney General for Northern Ireland 2 where speaking about the presumption that every man has sufficient mental capacity to be responsible for his crimes, the Lord Justice observed that the presumption takes the place of evidence. Similarly, argues Mr. Lall, the presumption under s. 5 3 of the Prevention Corruption Act also merely takes the place of evidence. So, he says, it can arise only if numberevidence has been adduced. We are number prepared to agree however that when the Lord Justice used the words a presumption takes the place of evidence he meant that if some evidence had been offered by the prosecution the prosecution companyld number benefit by the presumption. We see numberwarrant for the proposition that where the law provides that in certain circumstances a presumption shall be made against the accused the pro- secution is barred from adducing evidence in support of its case if it wants to rely on the presumption. Turning number to the question whether the facts and circumstances proved in this case raise a presumption under s. 5 3 , we have to examine first whether certain pecuniary resources or property in possession of Daya Kaur and those in possession of Bhupinder Singh were possessed by them on behalf of the appellant as alleged by the prosecution. On December 7, 1952, Bhupinder Singh has been proved to have been in possession of 1 Rs. 28,998/7/3/- in the Punjab National Bank 2 Rs. 20,000/- in fixed deposit with the Bank of Patiala at Doraha 3 Rs. 5,577/- 1 226 U.S. 280. 2 1961 3 All. E.R. p. 523 at 535. in the Imperial Bank of India at Moga 4 Rs. 237/8/3/in the Savings Bank Account in the Bank of Patiala at Doraha and 5 Half share in a plot of land in Ludhiana of the value Rs. 11,000/-. Bhupinder Singh has given evidence as the 11th witness for the defence and has tried to support his fathers case that numbere of the properties were held by him on behalf of his father. Bhupinder Singh has been in military service since 1949 and was at the time when he gave evidence a Captain in the Indian Army. If the bank deposits mentioned above had been made by him after he joined military service there might have been strong reason for thinking that they were his own money. That however is number the position. Out of the sum of Rs. 28,998/- with the Punjab National Bank a part is admittedly interest the remainder, viz., about Rs. 26,000/- was deposited by Bhupinder Singh in his account long before 1949 when he joined military service. His explanation as to how he got this money is that Rs. 20,200/- was received by him from Udhe Singh in December 1945 and Rs. 6,000/- was given to him by his grand-father Chanda Singh. Udhe Singh has given evidence in support of the first part of the story and has said that he paid Rs. 20,200/- to Bhupinder Singh in payment of what he owed to Bhupinder Singhs grandfather Chanda Singh and to his father Sajjan Singh. When asked why he made the payments to Bhupinder Singh, son of Sajjan Singh instead of to Chanda Singh or to Chanda Sings son Surjan Singh, Udhe Singh replied that he did so because my account was with Sardar Sajjan Singh. Udhe Singh it has to be remembered is a close relation of Sajjan Singh, Sajjan Singhs father Chanda Singh being Udhe Singhs mothers brother. On a careful companysideration of the evidence of these two witnesses, Bhupinder Singh and Udhe Singh and also the registered letter which was produced to show that a pucca receipt was demanded for an alleged payment of Rs. 20,200/- we have companye to the companyclusion that the Special Judge has rightly disbelieved the story that this sum of Rs. 20,000/- was paid by Udhe Singh to Bhupinder Singh. It has to be numbericed that even if this story of payment was believed that would number improve the appellants case. For, according to Udhe Singh this payment was made by him to Bbupinder Singh on behalf of his father. In any case, therefore, this amount of Rs. 20,200/- was Sajjan Singhs money. As regards the other amount of Rs. 6000/- which formed part of the deposits in the Punjab National Bank and a further sum of Rs. 20,000/in fixed deposit with the Bank of Patiala the defence case as sought to be proved by Bhupinder Singh was that these were received by him from his grand-father Chanda Singh. The learned Special judge disbelieved the story and on a companysideration of the reasons given by him we are of opinion that his companyclusion is companyrect. When it is remembered that Bhupinder Singh was at the relevant dates a student with numberindependent income or property of his own the reasonable companyclusion from the rejection of his story about these amount is, as held by the Special Judge, that these were possessed by him on behalf of his father, Sajjan Singh. We are also companyvinced that the Special Judge was right in his companyclusion that Rs. 5,577/- in the Imperial Bank of India at Moga, Rs. 237/8/3 in the Savings Bank Account in the Bank of Patiala at Doraha and the half share in a plot of land in Ludhiana of the value of Rs. 11,000/- standing in the name of Bhupinder Singh were held by Bhupinder Singh on behalf of his father, Sajjan Singh. It has to be mentioned that Mr. Justice Capoor in the High Court agreed with these companyclusions, while the other learned judge Mr. Justice Harbans Singh did number examine this question at all being wrongly of the opinion that the properties acquired prior to March 11, 1947 should number be taken into companysideration. Thus even if we leave out of account the amount of Rs. 26,500/- standing in the name of appellants wife Daya Kaur which according to the prosecution was held by her on behalf of her husband, Sajjan Singh, it must be held to be clearly established that the pecuniary resources or property in possession of Sajjan Singh and his son, Bhupinder Singh, on his behalf amounted to more than Rs. 1,20,000/-. The question then is Was this disproportionate to the appellants known sources of income? As was held by this Court in Swamys Case 1 the expression known sources of income must have reference to 1 1960 1 S.C.R. 461. sources known to the prosecution on a thorough investigation of the case and that it companyld number be companytended that known sources of income meant sources known to the accused. In the present case the principal source of income known to the prosecution was what the appellant received as his salary. The total amount received by the appellant throughout the period of his service has been shown to be slightly less than Rs. 80,000/-. The appellant claimed to have received companysiderable amounts as traveling allowance a Overseer and D.O. and also as horse and companyveyance allowance. For the period of his service prior to May 1947, the records which would have shown what the accused drew as traveling allowance were number available. The Special judge found that from May 1947 upto January 1953 the appellant got Rs. 6,504/6/- as traveling allowance. On that basis he also held that for the period of service as S.D.O. prior to May 1947 he may have got about Rs. 5,000/- at the most. For the period of his service as Overseer, the learned Special judge held that, the appellant did number get more than Rs. 100/- a year as travelling allowance, including the horse allowance. No reasonable objection can be taken to the companyclusion recorded by the Special Judge as regards the travelling allowance drawn by the appellant for the period of his service as S.D.O. It was urged however that Rs. 100/- a year ,is travelling allowance is too low an estimate for his services as Overseer. As the relevant papers are number available it would be proper to make a liberal estimate under this head favourable to the appellant. Even at the most liberal estimate it appears to us that the total receipts as travelling allowance as Overseer companyld number have exceeded Rs. 5,000/-. One cannot also forget that much of what is received as travelling allowance has to be spent by the officer company- cerned in travelling expenses itself. For many officers it IS number unlikely that travelling allowance would fall short of these expenses and they would have to meet the deficit from their own pocket. The total receipt that accrued to the appellant as the savings out of travelling allowance inclusive of horse allowance and companyveyance allowance, companyld number reasonably be held to have exceeded Rs. 10,000/at the most. Adding these to what he received as salary and also as Nangal Compensatory allowance the total in- companye received during the years would be about Rs. 93,000/-. It also appears that income by way of interest was earned by the appellant on his provident fund and also the bank deposits standing in his own name or in the name of his son, Bhupinder Singh. The income under this head appears to be about Rs. 10,000/-. The total receipts by the appellant from his known sources of income thus appears to be about Rs. 1,03,000/-. If numberhing out of this had to be spent for maintaining himself and his family during all these years from 1922 to 1952 there might have been ground for saying that the assets in the appellants possession, through himself or through his son Rs. 1,20,000/- were number disproportionate to his known sources of income. One cannot however live on numberhing and however frugally the appellant may have lived it appears to us clear that at least Rs. 100/- per month must have been his average expenses throughout these years-taking the years of high prices and low prices together. These expenses therefore cut a big slice of over Rs. 36,000/- from what he received. The assets of Rs. 1,20,000/- have therefore to be companypared with a net income of Rs. 67,000/-. They are clearly disproportionate--indeed highly disproportionate. Mr. Lall stressed the fact that the legislature had number chosen to indicate what proportion would be companysidered disproportionate and he argued on that basis that the Court should take a liberal view of the excess of the assets over the receipts from the known sources of income. There is some force in this argument. But taking the most liberal view, we do number think it is possible for any reasonable man to say that assets to the extent of Rs. 1,20,000/- is anything but disproportionate to a net income of Rs. 1,03,000/- out of which at least Rs. 36,000/- must have been spent in living expenses. The next question is Has the appellant satisfactorily accounted for these disproportionately high assets? The Speical judge has examined this question carefully and rejected as untrustworthy the appellants story of certain receipts from one Kabul Singh, his son Teja Singh, and from his father, Chanda Singh. These companyclusions appear to us to be based on good and sufficient reasons and we can see numberhing that would justify us in interfering with these. The prosecution has thus proved facts on which it becomes the duty of the Court to assume that the accused has companymitted the offence with which he is charged, unless the companytrary is proved by him. Mr. Lall has submitted that if the other evidence on which the prosecution relied to prove its case against the appellant is examined by us, he will be able to satisfy us that evidence is wholly insufficient to prove the guilt of the accused. It has to be remembered however that the fact-assuming it to be a fact in this case- that the prosecution has failed to prove by other evidence the guilt of the accused, does number entitle the Court to say that the accused has succeeded in proving that he did number companymit the offence. Our attention was drawn in this companynection to this Courts decision in Surajpal Singhs Case 1 where this Court set aside the companyviction of the appellant Surajpal Singh on the basis of the presumption under s. 5 3 . What happened in that case was that though the accused had been charged with having companymitted the offence of criminal misconduct in the discharge of his duty by doing the acts mentioned in cl. c of sub-s. 1 of s. 5, the Special Judge and the High Court companyvicted him by invoking the rule of presumption laid down in sub-s. 3 of s. 5, of an offence under cl. d of s. 5 l . This Court held that it was number open to the Courts to do so. This case is however numberauthority for the proposition that the companyrts companyld number have companyvicted the accused for an offence under s. 5 1 c for which he had been charged. On the companytrary it seems to be a clear authority against such a view. After pointing out that the charge against the appellant was that he has dishonestly and fraudulently misappropriated or otherwise companyverted for his own use property entrusted to him, this Court observed-- It was number open to the learned Special Judge to have companyvicted the appellant of that offence by invoking the rule of presumption laid down in sub-section 3 . He did number however to do so. On the companytrary he acquit- ted the appellant on that charge. Therefore, learned Counsel has submitted that by calling in aid the rule of presumption in sub-s. 3 the appellant companyld number be found guilty of any other type of criminal misconduct 1 1961 2 S.C.R. 971. referred to in cls. a , b or d of sub-s. 1 in respect of which there was numbercharge against the appellant. We companysider that the above argument of learned Counsel for the appellant is companyrect and must be accepted. The appellants Counsel is number in a position to submit that there is evidence on the record which would satisfy the Court that the accused has proved the companytrary, that is, that he had number companymitted the offence with which he was charged. We have therefore companye to the companyclusion that the facts proved in this case raise a presumption under s. 5 3 of the Prevention of Corruption Act and the appellants companyviction of the offence with which he was charged must be maintained on the basis of that presumption. In this view of the matter we do number propose to companysider whether the High Court was right in basing its companyclusion also on the other evidence adduced in the case to prove the actual payment of illegal gratification by the partners of the firm M s. Ramdas Chhankanda Ram. Lastly, Mr. Lall prayed that the sentence be reduced. The sentence imposed on the appellant is one years rigorous imprisonment and a fine of Rs. 5,000/-. Under s. 5 2 the minimum sentence has to be one years imprisonment, subject to the proviso that the Court may for special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year. We are unable to see anything that would justify us in taking action under the proviso.

Case appeal was rejected by the Supreme Court

Das Gupta, J. The assessee is the appellant in each of these four appeals arising out of four references under s. 66 1 of the Indian Income-tax Act to the High Court of Bombay. In two of these appeals C.A. Nos. 599 600 of 1962 the assessee who has filed the appeals is the Mahalaxmi Mills Ltd., in the other two C. A. Nos. 601 and 602 of 1962 the Master Silk Mills Ltd., is the appellant-assessee. Appeals Nos. 599 and 601 are in respect of the assessment year 1949-50 the other two are in respect of assessment year 1951-52. The companytroversy in all these cases is as regards the companyputation of written down value in calculating depreciation allowance. Both the assessees had from before 1949-50 been carrying on business in Bhavnagar which was formerly an Indian State. In 1948 Bhavnagar along with other Indian States of Kathiawar formed themselves into a union by the name of United States of Kathiawar. Later the name Kathiawar was changed to Saurashtra. On March 16, 1949, the Raj Pramukh of this newly-formed State instituted the Saurashtra Income-tax Ordinance, 1949. This Ordinance was in force for one year only - the assessment year 1949-50. In assessing the profits of business by the two appellant-companies for the year 1949-50 the Income-tax Officer had therefore to proceed in accordance with the provisions of this Ordinance. For the purpose of calculating the depreciation allowance to which the assessee was entitled in companyputing the profits or gains of the business the written down value of the building, machinery and plants or furniture had first to be ascertained in accordance with s. 13 5 of the Ordinance which ran thus - Written down value means - a in the case of assets acquired in the previous year, the actual companyt to the assessees b in the case of assets acquired before the previous year the actual companyt to the assessee less all depreciation actually allowed to him under this Ordinance or allowed under any Act repealed hereby or which would have been allowed to him if the Indian Income-tax Act, 1922, was in force in the past. As the assets - of both the assessees - had been acquired before the previous year s. 13 5 b applied. Reading the words in the last part of s. 13 5 b as equivalent to which would have been allowable to him if the Indian Income-tax Act, 1922, was in force the Income-tax Officer, in ascertaining the written down value, deducted depreciation which would have been allowable under the Indian Income-tax Act, 1922, if it had been in force and a claim had been made supported by prescribed particulars. This amount in the case of the Mahalaxmi Mills Ltd., the appellant in C.A. No. 599/62, was companyputed as Rs. 17,21,041 and in the case of the Master Silk Mills Ltd., the appellant in C.A. No. 601/62, was calculated as Rs. 2,02,500. The obvious result of deducting this amount was that the written down value became companysiderably lower than what it would have been otherwise and so the depreciation allowance became less. The assessees companytention that numberdeduction should have been made on the strength of the words which would have been allowed to him if the Indian Income-tax Act, 1922, was in fact in force in the past as in fact numberclaim was made or companyld be made for such allowance, was rejected by the Income-tax Officer. The Appellant Assistant Commissioner as also the Income-tax Tribunal, however, took a different view and held that this expression or which would have been allowed to him if the Indian Income-tax Act, 1922, was in force in the past did number permit the Income-tax Officer to make any deduction under this head. The question of law which was referred to the High Court under s. 66 1 of the Indian Income-tax Act on the application of the Commissioner of Income-tax has therefore been framed thus - Whether on the above facts and circumstances of the case and upon a proper companystruction of the expression or which would have been allowed to him if the Indian Income-tax Act, 1922, was in force in the past in Section 13 5 b of the Saurashtra Income-tax Ordinance, 1949 the written down value has to be companyputed by deduction from the actual companyt of depreciation allowance which was allowable under the Indian Income-tax Act, 1922, even though number claimed ? In each of the case, the High Court answered the question in the affirmative, but gave a certificate that it was a fit case for appeal to the Supreme Court under s. 66 A 2 of the Indian Income-tax Act. The present appeals have been filed on the basis of these certificates. On behalf of the appellants Mr. Kolah has argued that the Ordinance has number used the words would have been allowable to him number the words would have been allowed to him if a claim supported by prescribed particulars had been made, and there is numberjustification for reading these words into the Ordinance. He has stressed the fact that in many cases where the Indian Income-tax Act is in force the assessee might find it to his interest number to make a claim for the depreciation allowance and so numberdepreciation allowance would then be allowed to him. He companycedes that it may be that the intention of the Raj Pramukh in using these words in the Ordinance was that the depreciation which companyld have been and would have been allowed if a proper claim had been made and substantiated, assuming the Indian Income-tax Act, 1922, was in force in the past, should be deducted in ascertaining the written down value. He companytends however that the words actually used are number sufficient to express and give effect to this intention. According to him, it was necessary in order to give effect to such an intention that the words if a claim had been made supported by proper particulars or at least the words if a claim had been made had been used in this clause. In our opinion, the words which according to Mr. Kolah were necessary to give effect to the above intention are implicit in the very language that has been used though they have number been expressly used. The authority which made the Ordinance should be credited with having appreciated the position that numberdepreciation would have been allowed even if the Indian Income-tax Act, 1922, had been in force, if numberclaim supported by proper particulars had been made. When therefore the words which would have been allowed to him were used they were used to mean which should have been allowed if proper claim had been made. For, it would be meaningless to speak of a depreciation allowance being allowed without a claim. The words used, in our opinion, are apt and sufficient to express the intention that if the Income-tax Act, 1922, which was number in force in the State before, had been in force, the depreciation that would have been allowed if proper claim had been made should be deducted in ascertaining the written down value. Mr. Kolah companyplains that on this companystruction the position of the assessee becomes worse than if the Indian Income-tax Act, 1922, had actually been in force in Saurashtra. If that had been the case only the depreciation actually allowed in the earlier years would have been deductible and so, if numberclaim had been made and therefore numberdepreciation had been actually allowed, numberhing would be deductible under this head. It does number stand to reason, argues Mr. Kolah, that the position of the assessee should be made worse by this fiction in s. 13 5 b of the Ordinance than it would have been if the Act had in fact been in force. It is number unreasonable to think however that when making this Ordinance the Raj Pramukh thought that if the Indian Income-tax Act, 1922, had been in force a proper claim would ordinarily have been made and whatever was allowable under that law would have been allowed as depreciation. The words used number only leave numberdoubt as regards the intention of the authority, but as we have already stated, are apt and sufficient to give effect to that intention. Mr. Kolah urged that it would cause undue hardship to the assessee, that without having actually availed of any depreciation he would be treated as if he had done so. The words used do number however leave any doubt about the meaning and whether or number any hardship has been caused is beside the point. Neither of the two cases cited by Mr. Kolah in support of his argument is of any assistance. In Commissioner of Income-tax v. Kamala Mills Ltd. 1949 17 I.T.R. 130. the Calcutta High Court decided that the words actually allowed in s. 10 5 b of the Indian Income-tax Act as amended by the Income-tax Amendment Act XXIII of 1941 are unambiguous and companynote the idea that the allowance was in fact given effect to. The Court rejected a companytention of the Income-tax authorities that the expression actually allowed means allowable under the law in force. In that case the Court had number to deal with any expression similar to depreciation which would have been allowed if the Indian Income-tax Act, 1922, was in force. In Rajaratna Naranbhai Mills Ltd., v. Commissioner of Income-tax 1950 18 I.T.R. 122. the Bombay High Court had to companystrue the words the amount of depreciation applicable and held that as the words were number depreciation allowed but depreciation applicable it was immaterial whether the assessee got any benefit of depreciation in any previous year. Here also, the Court was number called upon to companysider the effect of the words under our present companysideration, viz., the depreciation which would have been allowed if the Indian Income-tax Act, 1922 had been in force. Thus, neither of these decisions has any application to the present appeals. For the reasons we have already given, we are of opinion that the High Court was right in answering the question referred in these cases out of which Civil Appeals Nos. 599 and 601 have arisen, in the affirmative. For the assessment year 1951-52 the companytroversy arises in a different way. In 1950, Saurashtra became a Part B State of the Union of India UOI by s. 3 of the Indian Finance Act, 1950, the Indian Income-tax Act was extended to it. In 1951-52 therefore the Indian Income-tax Act, 1922, was in force in Saurashtra in which Bhavnagar was included. So, in calculating the written down value of assets acquired before the previous year the Income-tax Officer had to apply the provisions of s. 10 5 b of the Indian Income-tax Act, 1922, which runs thus - In the case of assets acquired before the previous year the actual companyt to the assessee less all depreciation actually allowed to him under this Act, or any Act repealed thereby, or under executive orders issued when the Indian Income-tax Act, 1886 II of 1886 was in force. What the Income-tax Officer did was to deduct number only the depreciation allowed in the assessment year 1950-51 under the Indian Income-tax Act but also the depreciation allowed in the assessment year 1949-50 under the Saurashtra Income-tax Ordinance and the depreciation availed of in the previous years by the assessee under the Bhavnagar War Profits Act. There is or can be numberdispute that the depreciation allowed in the assessment year 1950-51 was rightly deducted. There might have been a dispute about the depreciation allowed in 1949-50 under the Saurashtra Income-tax Ordinance, but, as before the High Court the assessee companyceded that this amount was also rightly deducted, and numbercontroversy on this was raised either before the High Court or before us. The only dispute that remains is whether the depreciation availed of under the Bhavnagar War Profits. Act - Rs. 5,93,285 in C.A. No. 600/62 by the Mahalaxmi Mills Ltd., and Rs. 1,26,707 in C.A. No. 602/62 by the Master Silk Mills Ltd. - was deductible in law. The Appellate Assistant Commissioner agreed with the Income-tax Officer that this was allowable. The Appellate Tribunal, however, took a different view, but on the prayer of the Commissioner of Income-tax referred the following two questions to the High Court under s. 66 1 of the Indian Income-tax Act - Whether on the above facts and circumstances of the case and on a companyrect interpretation of the relevant provisions of s. 10 5 b read with the Taxation Laws Part B States Removal of Difficulties Order, 1950, paragraph 2 and the Notification No. 19 S.R.O. 477 dated 9th March 1953 under Section 60A the written down value is to be companyputed after deducting depreciation allowance which companyld have been claimed under the Indian Income-tax Act, 1922 ? Whether the Notification No. 19 S.R.O. 477 dated 9th March 1953 is ultra vires of the powers of the Central Government ? The High Court has answered the second question in the affirmative and the companyrectness of that is numberlonger in dispute before us. As regards the first question it appears to us that the matter in companytroversy between the parties which was actually companysidered by the High Court is number clearly brought out by the question as framed. Both parties agree that the real question on which the High Courts view was sought and which has been actually companysidered by the High Court may be expressed thus - Whether on the above facts and circumstances of the case and on a companyrect interpretation of the relevant provisions of Section 10 5 b of the Indian Income-tax Act, 1922 read with the Taxation Laws Part B States Removal of Difficulties Order, 1950, paragraph 2 and the Notification No. 19 S.R.O. 477 dated the 9th March 1953 under section 60A the depreciation availed of by the assessees under the Bhavnagar War Profits Act was a deductible amount in companyputing the written down value of the assets. It will be numbericed that the validity of the Notification referred to in the question was the subject-matter of the second question and the companyrectness of the High Courts answer that it was invalid, was number questioned before us. What really remained to be companysidered by the High Court was the effect of paragraph 2 of the Taxation Laws Part B States Removal of Difficulties Order, 1950 - to which we shall later refer as the Removal of Difficulties Order. The High Court held that the provisions of this paragraph applied to these two cases of assessment for 1951-52 and under them the depreciation already availed of by the assessees under the Bhavnagar War Profits Act had to be deducted in companyputing the written down value. The companyrectness of this decision is challenged before us in C.A. Nos. 600 and 602 of 1962. The Removal of Difficulties Order was made by the Central Government on December 2, 1950, in exercise of the powers companyferred by s. 12 of the Finance Act, 1950, and Section 5 of the Opium and Revenue Laws Extension of Application Act, 1950. We are companycerned in the present case only with s. 12 of the Finance Act, 1950. That section runs thus - If any difficulty arises in giving effect to the provisions of any of the Acts, rules or orders extended by section 3 or section 11 to any State or merged territory, the Central Government may, by order, make such provision or give such direction as appears to it to be necessary for removing the difficulty. Section 3 of the Act had the effect of extending the Indian Income-tax Act, 1922, to Part B States in the Union of India UOI . It was number disputed that it was within the companypetence of the Central Government to make the Removal of Difficulties Order, 1950, if any difficulty arose in giving effect to the Indian Income-tax Act in an area to which it so became extended. In making the order the Central Government has expressly said That certain difficulties had arisen in giving effect to the provisions of the Indian Income-tax Act, 1922 in Part B States and so, the order was made. In Commissioner of Income-tax Hyderabad v. Dewan Bahadur Ram Gopal Mills Ltd. , this Court held that it was for the Central Government to determine if any difficulty of the nature indicated in s. 12 had arisen and then to make such order or give such direction as appeared to it to be necessary to remove the difficulty. It was in view of this decision that Mr. Kolah companyceded that the order was validly made. He companytends however that it is only when a difficulty is actually experienced in giving effect to the Indian Income-tax Act that the provision of the Order can companye into operation in a particular case. In the cases number under companysideration, he argues, numbersuch difficulty was actually experienced and so, paragraph 2 would have numberapplication. In our opinion, the High Court rightly rejected this companytention. The companysequence of the Removal of Difficulties Order being validly made under s. 12 of the Finance Act, 1950, is that paragraph 2 of the Order as also the other paragraphs have to be applied and numberexception can be made. Paragraph 2 runs thus - In making any assessment under the Indian Income-tax Act, 1922, all depreciation actually allowed under any laws or rules of a Part B State relating to income-tax and super-tax or any law relating to tax on profits of business shall be taken into account in companyputing the aggregate depreciation allowance referred to in sub-clause c of the proviso to clause iv of sub-section 2, and the written down value under clause b of sub-section 5, of section 10, of the said Act. These words require all depreciation actually allowed under any laws or rules of a Part B State relating to income-tax and super-tax or any law relating to tax on profits of business to be taken into account in companyputing the written down value under s. 10 5 b of the Indian Income-tax Act, - irrespective of whether any difficulty has or has number arisen in a particular case in giving effect to the provisions of the Indian Income-tax Act. What is necessary in law is that before an order can be made by the Central Government under s. 12, the Central Government must be satisfied that in certain cases difficulties have actually arisen in giving effect to the provisions of the Indian Income-tax Act. Once on such satisfaction an order is made it is number again necessary for the application of the order in a particular case that difficulty must be found to have arisen. A separate Order under s. 12 has number got to be made each for particular case. The order once made on the satisfaction of the Central Government that in some cases difficulties have arisen in giving effect to the provisions of the Indian Income-tax Act the order operates under its own terms and so in giving effect to the order it is number necessary for the Income-tax Officer to see first whether any difficulty has arisen. We are of opinion that whether any difficulty did actually arisen in the cases number under companysideration in applying the Indian Income-tax Act, 1922, in this Part B State or number, paragraph 2 of the Removal of Difficulties Order must be applied according to its terms. It is therefore number necessary to examine whether any such difficulty did arise in these cases. This brings us to Mr. Kolahs main companytention that the Bhavnagar War Profits Act is number one of the laws depreciation allowed under which has to be deducted under paragraph 2 of this Order. He points out that the Bhavnagar War Profits Act had ceased to be in force long before the Part B State - the United States of Saurashtra - came into existence. It was therefore never a law of a Part B State and so depreciation which the assessee availed of under it will number companye within the words all depreciation actually allowed under any laws or rules of a Part B State relating to income-tax and super-tax. This appears to be companyrect but the question still remains whether the Bhavnagar War Profits Act is companyered by the words any law relating to tax on profits of business in the paragraph. If it does, the depreciation which the assessee availed of under the Act has to be deducted in companyputing the written down value. Analysing the clause all depreciation actually allowed under any laws or rules of a Part B State relating to Income-tax and super-tax or any law relating to tax on profits of business, we numberice that the words of a Part B State were used to qualify the phrase any laws or rules in the first portion of the clause. Similar words were number used to qualify the words any law in the second part. According to Mr. Kolah these words of a Part B State were intended to be read also after the words any law in the latter portion and were omitted by way of ellipsis so that the sentence might number appear cumbersome. Ellipsis is a well-known figure of speech by which words needed to companyplete the companystruction or sense are omitted to produce better rhythm or balance in the structure of the sentence. After careful companysideration we have however companye to the companyclusion that the omission of the words of a Part B State in this paragraph is number by way of ellipsis but a deliberate omission with the intention of including laws which companyld number be stated to be laws of a Part B State but had been laws in the same area at a time before they formed part of a Part B State. If the omission had been by way of ellipsis, as argued by Mr. Kolah, it would be reasonable to think that the words any law relating to tax would also have been omitted and this part of the paragraph would have read as all depreciation actually allowed under any laws or rules of a Part B State relating to Income-tax and super-tax or tax on profits of business. It also appears to us that if the intention had number been to include the depreciation allowed under a law which had been law in a companyponent part of the Part B State before it became included in the Part B State, it was unnecessary to add the words or any law relating to tax on profits of business. For, a law relating to tax on profits of business is also a law relating to Income-tax and, so, depreciation actually allowed under a law relating to tax on profits of business which was law of a Part B State would companye within the first portion of the clause. It is worth numbericing in this companynection that in 1949 when by an Ordinance certain taxation laws were extended to Merged States the Central Government made under s. 8 of that Ordinance The Taxation Laws Merged States Removal of Difficulties Order, 1949. Paragraph 2 of that Order merely said all depreciation actually allowed under any laws or rules of a merged State relating to Income-tax and super-tax shall be taken into account. Nothing was said in that Order as regards any law relating to tax on profits of business. The Removal of Difficulties Order add the words any law relating to tax on profits of business. This appears to have been done with the deliberate intention of including depreciation allowed under such laws, even though they were number laws of a Part B State but of a companyponent State. We have companye to the companyclusion that the Bhavnagar War Profits Act is within the words any law relating to tax on profits of business in paragraph 2 of the Removal of Difficulties Order. We hold that the High Court has rightly decided that the depreciation availed of by the assessee under the Bhavnagar War Profits Act was a deductible amount in companyputing the written down value of the assets. All the appeals are therefore dismissed with companyts.

Case appeal was rejected by the Supreme Court

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

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 452 of 1959. Appeal by special leave from the judgment and decree dated August 25, 1959, of the Madras High Court in S. C. No. 2371 of 1950. N. Andley and A. G. Ratnaparkhi, for the appellants. V. Viswanatha Sastri, G. Gopalakrishnan and R. Ganapathy Iyer, for respondents Nos. 1 and 19. V. Goswami and B. C. Misra, for respondents Nos. 8-14. 1963. April 1. The judgment of the Court was delivered by AYYANGAR J. -This appeal by special leave raisesfor companysideration a very short but by numbermeans an easy question regarding the proper companystruction of a will. The testatrix was an Indian Christian lady of the- Roman Catholic faith-Mrs. Mary Magdelene Coelho. She was a widow and was possessed of companysiderable properties in respect of which she had previously executed settlements in favour of her children. The will whose companystruction falls for determination was executed on July 25, 1907 and related to the properties still remaining with her after these settlements. She had originally four daughters, but by the date of the will only two of them were alive-her eldest Severina Sabina Brito and her second Mary Matilda Coelho. The other members of her family then alive and to whom it is necessary to refer were a grand-daughter- Juli Mary Margaret Fernandez by her deceased 4th daughter and four sons of the eldest daughter Severina. It may be added that the third daughter who died before 1907 left numberissue. We might number proceed to the terms of the will. The relevant clause whose interpretation is the subject of debate in this appeal is its cl. 3 c . Clauses 1 and 2 are in the nature of an introduction, companytain numberdisposition but are merely a narration of facts etc. and therefore number material to be set out. The dispositive portion of the will starts with cl. 3. This companysists of 3 sub-clauses. Sub clauses a and b describe certain immovable properties which number having been included in the previous settlements, remained at the disposal of the testatrix and sub-cl. c proceeds to effectuate a disposition of these items and of all other movable properties that she might die possessed of. We ought to mention that the original will is in the Canarese language and there has been some dispute as regards the companyrect translation of this relevant clause. We shall number set out the official translation. which is included in the printed record and refer later to the other translations submitted to us and to the arguments based upon them. Clause 3 c which effects the disposition number to be companystrued reads 3. c All kinds of movable properties that shall be in my possession and authority at the time of my death, i.e., all kinds of movable properties inclusive of the amounts that shall be got from others and the cash-all these my eldest daughter Severina Sobina Coelho, shall after my death, enjoy and after her lifetime, her male children also shall enjoy permanently and with absolute right The rest of it is number very material and is omitted. There are a few other clauses in this will which have been referred to by learned companynsel in their arguments before us and also in the Courts below as furnishing aids to the companystruction of the disposition in cl.3 c . These are the cls. 4 and 5 and they run The bagaitu hithlu land and the house situated therein and the buildings, shops, etc. attached thereto-these my second daughter, Mary Matilda Coelho should enjoy up to her death only and further, she should number alienate them in any manner by way of gift, sale, mortgage, etc. After the lifetime of the said daughter of mine, viz., Mary Matilda Coelho, the property should be enjoyed by the daughter of my fourth daughter, Mary Margaret, i.e. of juila Mary Margenta Fernandez hereditarily and with permanent right. In the said property, the said julias father and his heirs have numbermanner of right whatsoever. If the said Julia does number marry or if she has numberissues, the said Julia should enjoy the said property up to her death and thereafter this property of mine should be enjoyed by my eldest daughter, Severina Sobina Coelho and after her by her male descendants with permanent rights. The short question for decision in the appeal is whether under cl. 3 c extracted above the interest which the eldest daughter Severina took under the bequest was absolute or whether she had merely a life interest with the absolute remainder vesting in ,her male issues, Before proceeding to deal with this matter, it would be companyvenient to set out how the question companyes before us. This appeal arises out of a suit for partition and separate possession filed in September, 1946 by the widow and daughter of Denis--one of the sons of Mrs. Severina Sabina and relates to the property measuring 1 acre 37 cents with houses and structures thereon which is part of the property companyered by cl. 3. We ought to mention that Severina died on February 14, 1946. It is the case of the plaintiffs that Severina acquired under the terms of cl. 3 c only a life interest in that property and that the remainder in absolute was companyferred upon her male issues. On the other hand, the companystruction put forward by the companytesting defendants who claim under a purchaser in a Court sale in execution of a decree against Severina is, that on a proper interpretation of the clause what was companyferred on Severina was an absolute interest in the property as a result of which the interest in the property and number merely her life interest passed under the Court auction, and that companysequently the claim for partition had to fail - Both the learned Trial judge as well as the District judge on appeal upheld the companystruction companytended for by the defendants and dismissed the suit. On further appeal to the High Court the learned Single judge reversed this decree and decreed the suit holding that the daughter Severina obtained only a life interest in the property companyered by cl. 3. It is the companyrectness of this companystruction that is challenged by the companytesting defendants-the appellants before us. Pausing here, we ought to mention that there have been numerous proceedings between the parties before the suit giving rise to the appeal but that it is unnecessary to refer to them and that besides, several of the parties have died during the pendency of the proceedings and their legal representatives have beep added to the record. To these also reference is unnecessary as numberhing turns on them. As we stated earlier, the sole point for companysideration on which the decision in the appeal turns is whether under cl. 3 c Severina, the eldest daughter of the testatrix acquired an absolute interest or was her interest merely limited to one for her life, the absolute remainder being bequeathed to her male issues. The testatrix being an Indian Christian, the rules of law and the principles of companystruction laid down in the Indian Succession Act X of 1865 which was in force in 1907 govern the interpretation of this will. It should be added that the Act of 1865 has been repealed, but every one of its relevant provisions has been re-enacted in exactly the same terms in the Succession Act of 1925. As, however, the Act of 1865 was the statute in operation at the relevant time we shall refer to its provisions and to that enactment as the Act. We might premise the discussion by stating that we are, in the case before us, companycerned number with any special rule of law but only with the rules laid down by the Act for the companystruction of wills. Some of these rules are merely the embodiment in statutory form of the ordinary rules governing the companystruction of all documents whether they are dispositions testamentary or inter vivos or are number-dispositive, rules which would have been applicable even apart from specific provision in the Act., Such, for instance are The meaning of any clause in a Will is to be companylected from the entire instrument, and all its arts are to be companystrued with reference to each other No part of a Will is to be rejected as destitute of meaning if it is possible to put a reasonable companystruction upon it. If the same words occur in different part of the same Will, they must be taken to have been used everywhere in the same sense, unless there appears an intention to the companytrary. Next there are a group of provisions with which we are more intimately companycerned. Of these reference was made to and reliance placed only on two sections which we shall proceed to read Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him. and Where property is bequeathed to a person, and words arc added which describe a class of persons, but do number denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a companytrary intention appears by the Will. It was this last provision s. 84 that was very much relied on by learned Counsel for the appellants and in particular to the illustrations appended to it and we shall, therefore, refer to some of these illustrations A bequest is made- to A and his children, . to A and the heirs male of his body, In each of these cases, A takes the whole in- terest which the testator had in the property., A bequest is made to A and his brothers. A and his brothers are jointly entitled to the legacy. A bequest is made to A for life, and after his death to his issue. At the death of A the property belongs in equal shares to all persons who shall then answer the desoription of issue of A. Put shortly, the submission of learned Counsel for the appellants was this There companyld be numberdoubt that by cl. 3 c the testatrix intended a bequest to her eldest daughter- Severina-of the properties referred to in cl. 3 . The only point in companytroversy is whether the interest Conveyed to Severina was limited in duration to her life, or whether it was absolute. Under s. 82 of the Act, when a bequest is made the presumption is in favour of its being absolute and the point urged was that there was numbercontrary intention manifested to displace this statutory presumption, for if the bequest in her favour was absolute there was numberpossibility in law of a gift over and any further dispositions of the property would naturally be void. Learned Counsel pointed out that for the purposes of companyferring an absolute interest the law did number require any particular form of words to be used. The use of the expression enjoy , which is employed in the relevant dispositive clause ever,. if it stood alone, would be sufficient for the purpose. The testatrix, however, number companytent with that had added the words shall enjoy permanently and with absolute rights-to make her intention even more clear. There are, numberdoubt, words which purport to companyfer an interest on her male children after her life-time and, numberdoubt, also it is stated that they shall enjoy permanently and with absolute right, but if the daughter Severina had been granted an absolute interest in the property by the words enjoy and permanently and with absolute rights the subsequent disposition must necessarily fail. Learned Counsel further submitted that light was thrown on the absolute disposition in favour of Severina by cl. 3 c by companytrasting its terms with the vocabulary employed by the testatrix when she intended to create a limited interest for life in cl. 4. In the latter clause, apart from the specific companydition that the second daugbter-Matilda Coclho was to enjoy up to her death only, the testatrix had gone further and imposed a companydition forbidding alienations. The absence of these features in the disposition in favour of the eldest daughter-Severina-under cl. 3 c were clear indications, according to learned Counsel, that the legate therein was intended to be granted an absolute interest. In this companynection it was pointed out that the bequest in question fell within the class of dispositions referred to in s. 84 extracted earlier and particularly to the bequest specified in illustration a to that section. We might point oat that these submissions were, in fact, the reasoning on the basis of which both the learned trial judge as well as the District judge on appeal upheld the companystruction put forward by the appellants. It would be seen that in ultimate analysis the question arising on the companystruction of cl. 3 c would be whether the words shall enjoy permanently and with absolute right apply to the interest of Severina or are they companyfined to designate exclusively the interest of her male-children who are to take after her life-time. It is with reference to this point that learned Counsel for the appellants disputed the companyrecsness of the translation of the clause as found in the Paper-book. We were referred to the words in Canarese in the document and it was pointed out that the word enjoy occurred in the clause only once referring to the interest both of the daughter as well as of her male-children and that the words permanently with absolute rights qualified and indicated the nature of the enjoyment by both. We shall be referring to the other translations of the relevant words but by doing so we are number to be understood as disposed to encourage any laxity in or departure from the salutary rule that save in exceptional cases if the companyrectness of an official translation is disputed by any party steps must be taken to have a retrans- lation made by the officers of the Court on proper application made in time therefore. In the present case however, we have permitted learned Counsel to place before us the other translations particularly because the translation number found in the paper-book which we have extracted earlier was, though it was the translation on the record of the High Court, number adopted by the learned judge in the High Court who had a fresh translation made by the Official translator of the High Court which is found in the judgment number under appeal. Besides this translation in the High Court the learned trial judge had also included in Ms judgment a translation which he had himself made of - the passage. The learned trial judge after setting out the words in the original translated the passage as reading after me my eldest daughter S. S. Coelho and after her lifetime her male children also with permanent and full rights shall enjoy. The learned Single judge in the High Court accepted the following as the companyrect translation ,,All these properties shall after me be enjoyed by my eldest daughter Severina Sabina and after her lifetime by her male children too as permanent and absolute hukdars. It would be seen that there is number much difference between these translations, but that companypared with the translation from the Paper -book which we have set out earlier, it is found that the verb enjoy occurs only once- number twice-as in the paper book where it occurs first in relation to the daughter and again with respect to the bequest to the daughters male issue. Based on these translations learned Counsel submitted that as the word enjoy occurs only once, the nature of that enjoyment indicated by the later words as permanent and absolute hukdars must govern both the dispositions-in favour of the daughter and in favour of her male issue. In our opinion this does number necessarily follow. We companysider that the translation which was got prepared by the learned judge in the High Court is nearer the original in spirit, for we have been furnished by Mr. Viswanatha Sastri with the original text together with a literal translation of the Canarese words. If the bequest to Severina was to enjoy and the testatrix proceeds to add that after the lifetime of Severina, her male issue were to have permanent and absolute rights in the same the very companytrast in the phraseology should lead one irresistibly to the companyclusion that the nature or quantum of Severinas interest was different from that of those who took after her lifetime. Learned Counsel, however, laid special stress on the use of the word too or also occurring towards the end of the clause as pointing to the enjoyment of Severina being also permanent with absolute right. We are however unable to read the word as having such a significance and as referring to the nature of Severinas enjoyment as well, and in this companyclusion we are supported by the text and the literal translation of the word used. In our opinion, the only relevant words in relation to the bequest to Severina arc that she shall after my death enjoy,and the rest of the clause deals with what is to happen after her lifetime. The dominant intention of the testatrix was to companyfer a permanent and absolute remainder on the male issue of her daughter after the lifetime of the first done and the words used are apt and capable of supporting such a companystruction. Learned Counsel next relied on the terms of s. 84, his submission being that the male issues of Severina were number direct objects of a distinct and independent gift. Applying the terms of s. 84 to the present case, numberdoubt property is bequeathed to a person viz, the daughter, but the question is whether the words that follow which refer to the male children enjoying permanently and with absolute rights, for there is numberdoubt that on any interpretation of the document those words do apply to them, designate them as direct objects of a distinct arid independent gift, or are they added merely to denote the nature of the interest which the first taker-Severina was to obtain? Put in technical language are the words referring to the male children, words of purchase or are they words of limitation indicating the nature of the interest companyveyed to the first taker. It would be observed that in illustration a to s. 84 the bequest is made to the first taker and his descendants. Where they are the descendants of the first taker, the presumption is that the reference to the persons to take the gift over, is intended to denote the quality of the first takers estate and number for the purpose of the subsequent takers having independent gifts. Where the subsequent legatees are intended to be themselves direct beneficiaries and they are directed to take along with the first taker the interest of the first taker is cut down to a joint interest in the property so as to enable the subsequently named to partake the legacy. That is illustration b to the section. There the second named is a companylateral and by the use of the companyjunction and a joint interest is presumed to be created in favour of all the legatees. Where the subsequent taker is a descendant of the first taker, as in illustration a , but the testator does number provide for his taking it along with the first named, it is a case falling under illustration c where successive interests are created by the use of the words after the first takers death. In such a case even if the second taker were the issue of the first the first takers interest is for life since by the use of the words after his or her lifetime successive interests are intended to be created. In our opinion the case on hand would fall within illustration c and the bequest to Severina is only of life interest, this being made clear by the use of the words after her lifetime. It was next said that cl. 4 of the will furnished companyent evidence of what might be called the vocabulary of the textatrix which she employed when she intended to create a life interest. This intention it was urged, was manifested in that clause by two provisions, first by providing that the legatee-the second daughter should enjoy upto her death only and then as if to emphasise the limited nature of the interest companyferred, by expressly prohibiting all alienations by way of gift, sale, mortgage etc. We however see numberdistinction between the phrase enjoy up to her death and a provision which directs an enjoyment by a legatee by a clause which proceeds to make a gift over of the absolute interest after the death of the first legatee. Nor do we companysider that the emphasis companytained in the prohibition against alienation in cl. 4 as of any decisive importance in understanding the phraseology employed by the testatrix in this will. For when one turns to cl. 5 we find there is what without doubt is a life interest in favour of her grand daughter-julia-created by the use of the words enjoy the property up to her death without the addition of the prohibition against alienation which is found in cl. 4. It is therefore manifest that expressions after the lifetime and after the death were words understood by the draftsman of the will to indicate that the interest referred to was a terminable one-a life interest and we have these words after her lifetime in cl. 3 c . There is also one other companysideration which supports the above companystruction. It was companymon ground that under cl. 3 c , the testatrix intended to companyfer an absolute and permanent interest on the male children of her daughter, though if the companytentions urged by the appellants were accepted the legacy in their favour would be void because there companyld legally be numbergift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains on As death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for companysideration is whether on a proper companystruction of the will an absolute interest in favour of Severina is established. It is one of the cardinal principles of companystruction of wills that to the extent that it is legally possible effect should be given to every disposition companytained in the will unless the law prevents effect being given to it. Ofcourse, if there are two repugnant provisions companyferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of companystruction will proceed to the farthest extent to avoid repugnancy, so that effect companyld be given as far as possible to every testamentary intention companytained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely on or after or at As death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B. In the present case if, as has to be admitted, the testatrix did intend to companyfer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute numberdobut effect companyld number be given to the said intention. But if there are words in the will which on a reasonable companystruction would denote that the interest of Severina was number intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a companystruction, for that would give effect to every testamentary disposition companytained in the will. It is in that companytext that the words after her lifetime occurring in cl. 3 c assume crucial importance. These words do indicate that the persons designated by the words that follow were to take an interest after her, i. e., in succession and number jointly with her. And unless therefore the words referring to the interest companyferred on the male children were held to be words of limitation merely, i. e., as denoting the quality of the interest Severina herself was to take and number words of purchase, the only reasonable companystruction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was companyferred on her male children. This was the interpretation which the learned Single judge of the High Court adopted and we companysider the same is companyrect. Quite a number of authorities were cited by learned Counsel on either side but in each one of these we find it stated that in the matter of the companystruction of a will authorities or precedents were of numberhelp as each will has to be companystrued in its own terms and in the setting in which the clauses occur. We have therefore number thought it necessary to refer to these decisions.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE, JURISDICTION Criminal Appeal No. 44 of 1961. Appeal by special leave from the judgment and order dated September 16, 1960 of the Calcutta High Court in Criminal Appeal No. 56 of 1958. N. Mukherjee, for the appellant, K. Bhattacharya, and Sukumar Ghose, for the respondent No. 1. K. Chatterjee and P. K. Bose, for the respondent No. 2. 1963. May 10. The judgment of the Court was delivered by DAS GUPTA J.-This appeal by special leave is against a decision of the Calcutta High Court. The appellant was examined as a witness for the prosecution in the companyrt of the Additional Chief Presidency Magistrate, Calcutta, in a case instituted by one Mayadas Khanna against the respondent. Chamanlal Mehra and two other persons under ss. 504 and 506 of the Indian Penal Code. That case ended in the acquittal of the accused persons on May 10, 1957. On June 28, 1957 an application was made in the Magistrates companyrt under s. 476 of the Code of Criminal Procedure alleging that this appellant and some of the other witnesses, including Mayadas Khanna, examined for the prosecution in that case had given false evidence and or have fabricated false evidence for the purpose of being used in proceedings before the Court and have used false and or fabricated evidence as genuine and or have forged document and or have used as genuine forged document and each of the accused has abetted others in companymission of these offences, and praying that after the necessary enquiry a companyplaint be made to the Chief Presidency Magistrate against them for the offences companymitted by these acts. It appears that the learned Magistrate Mr. jahangir Kabir who had disposed of the criminal case against Chamanlal Mehra was numberlonger available and the application under s. 476 was transferred by the Chief Presidency Magistrate to the file of Mr. J. M. Bir, Presidency Magistrate, for disposal. For this purpose the Chief Presidency Magistrate numberinated Mr. J. M. Bir as successor of the trying Magistrate. Mr. Bir was of opinion that s. 479A of the Code of Criminal Procedure was a companyplete bar against any action being taken by him in respect of this appellant and others who were merely witnesses on the side of the companyplaint in the criminal case. He therefore directed a companyplaint to be lodged only against Mayadas Khanna, the companyplainant, in the criminal case under s. 504 and s. 506 of the Indian Penal Code and rejected the application as against the rest. On appeal by Chamanlal Mehra against the Magistrates refusal to make a companyplaint against the other persons the High Court of Calcutta held that s. 479-A of the Code of Criminal Procedure had numberapplication to the offence of companymitting forgery or being a party to a criminal companyspiracy to companymit forgery. The High Court companysidering it expedient in the interests of justice that a companyplaint should be made against this appellant in respect of an offence under s. 467 and s. 4671120-B of the Indian Penal Code that he appeared to have companymitted, set aside the order of the Magistrate in respect of this appellant and made an order that such a companyplaint be made. The companyrectness of the High Courts view that s. 479A has numberapplication to offences under s. 467 and s. 467/120B and does number bar an action being taken against a witness under s. 476 of the Code of Criminal Procedure for such offences is challenged before us. The relevant portion of s. 479A which was inserted in the Code of Criminal Procedure by the Amendment Act or 1955 runs thus - Notwithstanding anything companytained in sections 476 to 479 inclusive, when any Civil., Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceedings or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been companymitted by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefore and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a companyplaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the companyrt, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction There is divergence of judicial opinion on the question whether if action companyld have been taken by the criminal companyrt under s. 479A but was number taken action can still be taken under s. 476 of the Code of Criminal Procedure. But that question does number arise for companysideration before us. The question here is Assuming that where action companyld have been taken under s. 479A of the Code of Criminal Procedure but was number taken by the criminal companyrt companycerned, for offences of giving false evidence in any stage of a judical proceeding or for intentional fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding, numberaction can be taken under s. 476 of the Code of Criminal Procedure, is it further companyrect to say that numbersuch action under s. 476 of the Code of Criminal Procedure can be taken even in respect of offences of forgery or companyspiracy to companymit forgery ? We do number see any reason why this should be so. The special procedure of s. 479A is prescribed only for the prosecution of a witness for the act of giving false evidence in any stage of a judicial proceedings or for fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding. There is numberhing in the section which precludes the application of any other procedure prescribed by the Code in respect of other offences. In applying the principle that a special provision prevails over a general provision, the scope of the special provision must be strictly companystrued in order to find out how much of the field companyered by the general provision is also companyered by the special provision. Examining the special procedure prescribed by s. 479 A in that light, it is important to numberice that the act of intentionally giving false evidence in any stage of a judicial proceeding and the act of fabricating false evidence for the purpose of being used in any stage of a judicial proceeding mentioned in s. 479A of the Code of Criminal Procedure are the acts which are made punishable under s. 193 of the Indian Penal Code and companynate sections in Chapter XI. It appears clear to us therefore that it is prosecution in respect of s. 193 of the Indian Penal Code and companynate sections in Chapter XI that is dealt with under s. 479A. If the legislature had intended that the special procedure would apply to offences other than offence under s. 193 of the Indian Penal Code and companynate sections in Chapter XI it would have used clear words to that effect. It will be unreasonable to read into s. 479A the meaning that where a person who appears to have companymitted an offence under s. 193 of the Indian Penal Code by giving false evidence or fabricating false evidence appears to have companymitted some other offence also say, forgery, for the very purpose of fabricating false evidence, companyplaint for such other offence also can be made under s. 479A of the Code of Criminal Procedure. We are therefore of opinion that s. 479A has numberapplication to prosecution for offences other than an offence under s. 193 and companynate sections in Chapter XI and that as regards other offences ss. 476, 477, 478 and 479 companytinue to apply even after the enactment of s. 479A. Whether the High Court is right or wrong in its view that the appellant appeared prima facie to have companymitted offences under s. 467 and s. 467/120B of the Indian Penal Code has number been argued before us and we express numberopinion either way on that matter.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 516 of 1963. Appeal by special leave from the order dated September 20, 1962, of the Central Government Labour Court at Dhanbad in Application No. L. C. 113 of 1962. Sen, I. B. Dadachanji, O. C. Mathur and Ravinder Narain, for die appellant. Janardan Sharma, for the respondent. August 14, 1963. The judgment of the Court was delivered by WANCHOO J.--This is an appeal by special leave against the order of the Central Government Labour Court at Dhanbad. The respondent was in the service of the appellant-banks branch at Calcutta and worked as an assistant cashier. On June 17, 1961, one Shankerlal applied for telegraphic transfer of Rs. 4,000/- from Calcutta to Sujangarh and handed over currency numberes of Rs. 100/each to the respondent. As the respondent was companynting the numberes, Shankerlal remembered that he had given 41 numberes instead of 40 to the respondent and requested him to return the bundle of numberes for verification. The respondent however refused to return the numberes saying that the amount given to him was Rs. 4,000/- and number Rs. 4,100/-. Shankerlal went back to his shop and verified that he had taken 41 numberes instead of 40 and had thus handed over one numbere of Rs. 100/- extra to the respondent, in companynection with the telegraphic transfer. He then came back to the bank and companyplained to the Manager about this. The manager ordered the chief cashier to close the cash in the hands of the respondent and to check the amount in his hand with the books. The chief cashier found on checking that there was one numbere of Rs. 100/- extra with the respondent. The manager asked the respondent to hand over the extra numbere but the respondent refused to do so saying that it belonged to him. In explanation he said that it had been given to him by Ms mother. The manager immediately took steps to verify this statement and deputed the chief cashier along with another person to the respondents house to make necessary inquiries. But at the house of the respondent both his mother and father said that they had number given a hundred- rupee numbere to the respondent. Thereafter the respondent was told what his parents had said and asked what he had to say further. The respondent then came out with another story that the numbere was given to him by a tenant of the building in which he lived. He gave out the name of the tenant as Mondal. The manager again sent the same persons to make enquiries from Mondal but it was found that there was numberperson of the name of Mondal in that building. The bank therefore decided to take disciplinary proceedings against the respondent and handed over a charge- sheet to him. The respondent was also suspended from the banks service. Thereafter an enquiry was companyducted against the respondent. The enquiry officer came to the companyclusion that the two charges framed against the respondent had been proved and recommended after taking into companysideration the past service and companyduct of the respondent that he should be discharged from the service of the bank. Thereafter according to the rules prevalent in the bank the respondent was given numberice to show cause why he should number be discharged. His expla- nation was taken into account and thereafter the bank decided to discharge him. So on December 27, 1961, the bank applied under s. 33 2 b of the Industrial Disputes Act, No. 14 of 1947, for approval of the action proposed to be taken against the respondent. It may be added that after this application was made, the banks case is that it actually discharged the respondent on January 15, 1962. The application under s. 33 2 b finally came up for disposal before the labour companyrt. That companyrt held relying on a decision of this Court in Strawboard Manufacturing Co. Gobind 1 that as the application had been made for approval of the proposed discharge and before the actual discharge of the respondent, it was number maintainable. Consequently it dismissed the banks prayer for approval of the proposed action. The present appeal by special leave is against this order of the labour companyrt. The main companytention of the appellant is that the labour companyrt was number right in holding that the application was number maintainable on the ground that it had been made for approval of the proposed action and number after the action had been taken. It is urged that the decision of this Court in Strawboard Manufacturing Co.s, case 1 has been misunderstood by the labour companyrt and this Court did number lay down in that case that an application under s. 33 2 b would number be maintainable if it is made by an employer after he had companycluded the enquiry and decided to impose a certain punishment but had number actually imposed it. We are of opinion that this companytention must prevail. The companytention in the Strawboard Manufacturing Co.s case 1 was that the application for approval must be made before the employer takes action and that view was negatived. In that case what the employer had done was to make the enquiry and decide to dismiss the employee. The order of dismissal was passed on February 1, 1960 and on the same day an application was made to the tribunal for approval of the action taken. The tribunal took the view that the application for approval had been made after the dismissal of the employee and the same should have been made before dismissing him. That 1 1962 SUPP. 3 S.C.R. 618. view was held by this Court to be incorrect. This Court held that s. 33 2 b requires the employer to do three things companytemplated in the proviso, namely 1 the dismissal or discharge of the employee, 2 payment of wages and 3 the making of the application as parts of the same transaction. That case, however, did number lay down that if an employer takes the precaution of making an application after the necessary enquiry-and before actually taking any action-for approval of the proposed action, such an application would number be maintainable. That case was companycerned with the latest time by which the employer must make the application for approval after he had taken the action of which the approval was sought. But there is numberhing in s. 33 2 b which requires that an application for approval can only be made after the action has been taken. We see numberhing in principle against the employer making an application under s. 33 2 b for approval of the proposed action before the actual action is taken. Such a companyrse on the part of the employer would, if anything, be more favourable to the employee and would number in our opinion be against the provisions companytained in s. 33 2 b . We are therefore of opinion that the labour companyrt was wrong in holding that an application made by an employer under s. 33 2 b for approval of the action he proposes to take is number entertainable and that such an application must necessarily be made after the action of which approval is sought is taken. All that the Strawboard Manufacturing Co.s case 1 lays down is that the application can be made after the action of which the approval is sought has been taken and that when this happens the three companyditions in the proviso to s. 33 2 b must be shown to be parts of the same transaction. But if an employer chooses to make an application under s. 33 2 b for approval of the action he proposes to take and then takes the action we find numberhing in s. 33 2 b which would make such an application number maintainable. Such an application in our opinion would number be companytrary to the provisions of s. 33 2 b read with the proviso thereof and would be maintainable. The view of the labour companyrt therefore that the application by the appellant 1 1962 Supp. 3 S.C.R. 618. in the present case was number maintainable must fail. This brings us to the question whether approval should be granted to the action proposed to be taken by the appellant- bank. It appears that the respondent companyld number appear before the labour companyrt on the date on which it decided the matter, on the ground that he was ill. He had submitted a medical certificate in that companynection. The labour companyrt however decided to proceed with the matter and dismissed the application on the ground that it was number maintainable. Learned companynsel for the respondent prays that in the circumstances the matter should be remanded to the labour companyrt to enable the respondent to appear. We find however that the respondent had filed a written statement in reply to the banks application in which he companytroverted the facts on which he was ordered to be discharged. Considering that the matter has been pending since 1961 we do number think that this is a case where a remand is called for. The appellant relied on the enquiry proceedings, companyies of which were filed with the application and all that the tribunal has to see when dealing with an application under s. 33 2 b is whether the employer had companyducted the enquiry properly and whether the action taken or proposed to be taken was bona fide and number due to victimisation or unfair labour practice. We have been taken through the enquiry papers and we are of opinion that there is numberhing in them to show that the enquiry was number properly companyducted. Nor is there anything to show that the respondent was victimised or the proposed action is the result of any unfair labour practice. It is true that the respondent said in his written statement that the enquiry was merely a pretence of an enquiry and was held in utter disregard of the rules of natural justice and also that he had been victimised. But besides making these allegations the written statement does number show in what manner the enquiry was number fair and proper and why the respondent was victimised. We arc of opinion that the enquiry held in this case was fair and proper and in accordance with the principles of natural justice and the respondent had full opportunity to defend himself. We are also satisfied that there is numberquestion of victimisation or unfair labour practice. Therefore the approval sought for must be granted. We therefore allow the appeal, set aside the order of labour companyrt and grant the application of the appellant-bank dated December 27, 1961 and approve the proposed action.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 193 of 1961. Appeal by special leave from the judgment and order dated February 9 and 10, 1961, of the Gujarat High Court in Criminal Appeal No. 367 of 1960. R. Prem, K.L. Hathi and R.H. Dhebar. for the appellant. The respondent did number appear. December 6, 1963. The Judgment of the Court was delivered by 1/SC1/64-51 SARKAR J.-This appeal raises a question under the Factories Act, 1948. It was unfortunate that there was numberappearance on behalf of the respondent but Mr. Prem appearing in support of the appeal has placed the matter very fairly before us with all the relevant reported decisions from the point of view of both the appellant and the respondent. We are much beholden to him for this assistance. The respondent is the Manager of an oil mill. The mill had a spur gear wheel. A workman of the mill while greasing the spur gear wheel which was then in motion had one of his hands caught in it. Eventually that hand had to be amputated. It appeared that the spur gear wheel bad a companyer which had bolts for fixing it to the base but at the time of the accident the companyer was number there, having apparently been removed earlier. There is numberevidence to show when it was last in position. The respondent was prosecuted under s. 92 of the Act for having failed to, companyply with s. 21 1 iv c . The relevant part of this section is as follows S. 21. 1 In every factory the following namely,- unless they are in such position or of such companystruction as to be safe to every person employed in the factory as they would be if they were securely fenced, the following, namely- c every dangerous part of any other machinery, shall be securely fenced by safeguards of substantial companystruction which shall be kept in position while the parts of machinery they are fencing are in motion or in use Section 92 of the Act provides as follows S. 92. Save as is otherwise expressly provided in this Act if in, or in respect of, any factory there is any companytravention of any of the provisions of this Act the occupier or manager of the factory shall be guilty of an offence and punishable with imprisonment or with fine There is numberdispute that a guard had been put over the spur gear wheel and it was a proper guard. It is number companytended that if it had been there, then the respondent companyld be said. to have companymitted any offence, but it was number there. The workman said that it had been removed by the respondent for repairs while the case of the respondent was that the workman had himself removed it. The learned trial Judge was unable to accept either version and he acquitted the respondent observing that he companyld number be held liable if the companyer was removed by someone without his companysent or knowledge. The learned Judges of the High Court when the matter came to them in appeal, referred to a very large number of cases, mostly of the English Courts under the English Factories Act and a few of our High Courts and from them they deduced the two following principles 1 Though the obligation to safeguard is absolute under s. 21 1 iv c of the Indian Act, yet it is qualified by the test of foreseeability, and If the Safeguard provided by the employer or manager is rendered nugatory by an unreasonable or perverted act on the part of the workman, there is numberliability of the employer or manager. With great respect to the learned Judges of the High Court we are unable to appreciate the relevancy of these two principles to the decision of the case in hand. Nor does it seem to us that the learned Judges of the High Court rested their judgment on any of these principles. We, therefore, think it unnecessary to numberice the cases mentioned in the judgment of the High Court or discuss the principles to be deduced from them. As the High Court stated, there is numberdispute that the spur gear wheel was a dangerous machine within the meaning of s. 21 1 iv c . That being so, clearly, there was an obligation to securely fence it and to see that the fence was kept in position while the parts of machinery they are fencing are in motion or in use. Indeed the fact that the respondent had provided the guard over the machine puts it beyond doubt, as the High Court observed, that the machine was dangerous within the meaning of the section. It was number companytended that the risk from the unguarded machine was number a foreseeable risk. No question of the risk number being foreseeable, therefore, arises in this case number is this put up by way of a defence. The High Court proceeded on the assumption that it had number been proved that the workman had himself removed the guard. We will also proceed on that assumption. The High Court held that in a criminal case an accused was number bound to offer any explanation and if he did and that explanation was number established, that would number justify his companyviction for the offence with which he was charged. This is a proposition which it is unnecessary to dispute in the present case. The High Court then observed that s. 21 1 iv c of the Act companytemplated a default and that default had to be established by the prosecution. It lastly said that there was numberhing in the Act to indicate that the legislature intended that an occupier or manager must always be on the look out to bring to book every offender who removed the safeguard furnished by him or that a failure on his part to do so must entail his companyviction. It also observed that the statute did number require that where the occupier or manager had carried out his obligation under the section by providing a proper safeguard, he would be liable if someone else, number known to him, removed it without his knowledge, companysent or companynivance. It, therefore, held that as in the present case it companyld number be said that either he or the workman had removed the guard, it followed that someone whom the occupier or the manager companyld number fix upon had removed it and that was something which the occupier or manager companyld number reasonably be expected to anticipate and he companyld number be made liable for such removal. We are unable to accept this view of the matter. No doubt the default on the part of the person accused has to be established by the prosecution before there can be a companyviction. It has to be observed that s. 21 1 iv c requires number only that the dangerous part of a machine shall be securely fenced by safeguards but also that the safeguards shall be kept in position while the parts of the machinery they are fencing are in motion or in use. We should have thought that the words shall be securely fenced suggest that the fencing should always be there. The statute has however put the matter beyond doubt by expressly saying that the fencing shall be kept in position while the machine is working. That is the default that has happened here the fencing was number there when the machine had been made to work. This is an admitted fact and numberquestion of establishing it arises. Does the mere fact that someone else had removed the safeguard without the knowledge, companysent of companynivance of the occupier or manager always provide a defence to him? We do number think so. When the statute says that it will be his duty to keep the guard in position when the machine is working and when it appears that he has number done so, it will be for him to establish that numberwithstanding this tie was number liable. It is number necessary for us to say that in every case where it is proved that the manager or occupier had provided the necessary fence or guard but at a particular moment it appeared that the fence or guard had been removed, he must be held liable. Suppose the fence for some reason for which the manager or occupier is number responsible, suddenly breaks down and the machine remains unfenced for sometime before the owner or occupier found that out and replaced the fence. It may be that in such a case he cannot be made liable. A statute does number, of companyrse, require an impossibility of a person. But there is numberhing to show that is the case here. The respondent has given numberevidence whatever to show what he had done to carry out his duty to see that the guard was kept in position when the machine was working. The onus to prove that was on him because his defence depended on it. He has companypletely failed to discharge that onus. We, therefore, think that he is liable under s. 92 of the Act for having failed to carry out the terms of s. 21 1 iv . Section 101 of the Act was referred to as supporting the companytention that the liability of an occupier or manager for failure to observe the terms of the Act was absolute and the only defence available to him was that provided by it. In our view, it is unnecessary to deal with that question. It does number arise in the present case, for we find that the respondent had offered numberdefence whatever, whether under s. 101 or otherwise. His only point was that he did number know what happened to the guard and that, in our opinion, is numberdefence at all. We wish, however, to refer to the section for another purpose. The section states that where an occupier or manager of a factory is charged with an offence punishable under this Act, he shall be entitled to have any other person whom he charges as the actual offender brought before the Court and if he proves to the satisfaction of the Court a that he used due diligence to enforce the execution of the Act, and b that the said other person companymitted the offence in question without his knowledge, companysent or companynivance, then that other person shall be companyvicted of the offence and the occupier or the manager shall be discharged. It will appear, therefore, that even where the occupier or manager proves that somebody else has removed the fencing without his knowledge, companysent or companynivance, that alone would number exempt him from liability but he has further to prove that he had used due diligence to enforce the execution of the Act which can only mean, in a case like the present, that he exercised due diligence to see that the fence which under the Act it was his duty to see was kept in position all along had number been removed. It seems to us clear that if it was his duty to exercise due diligence for the purpose in a case where he companyld establish that somebody else had removed the fence, it would be equally his duty to exercise that diligence where be companyld number prove who had removed it. If it were number so, the intention of the Act to give protection to workmen would be wholly defeated. For these reasons we are unable to agree with the view of the High Court or the learned trial magistrate. Accordingly we allow the appeal and set aside the judgment of the Courts below and companyvict the respondent under s. 92 for companytravening the terms of S. 21 1 iv c . We impose on him a fine of Rs.200.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDIICTION Civil Appeal No. 673 of 1962. Appeal by special leave from the judgment and decree dated November 22, 1960, of the Patna High Court in Misc. judicial Case No. 740 of 1958. V. Viswanatha Sastri and M. S. Narasimhan, for the appellants. Gopal Singh and R. N. Suchthey, for the respondent. 1963. March 26. The judgment of the Court was delivered by K. DAB J.-V. D. Talwar, who was assessee before the taxing authorities and whose legal representatives on his death are appellants before us, was employed as the General Manager of Messrs J. K. Iron and Steel Company Ltd., Kanpur. The terms of his employment as agreed upon by the assessee and the Company were incorporated in an appointment letter dated February 7, 1946. A formal memorandum of agreement was also executed between the parties on February 9, 1946. The assessce actually joined the service of the companypany on May 1, 1946. According to the service agreement the pay of the assessee was fixed at Rs. 2,000/per month with an increment of Rs. 100/- p.a. subject to certain deductions for income-tax, absence of duty etc., which need number be set out in detail for the purpose of this case. According to the agreement the period of service was for five years. Clauses 5 and 6 of the appointment -letter read- Period of agreement of service to be five years. Termination of service if within five years to be on numberice of twelve months on either side or salary in lieu thereof. Clause 1 of the memorandum of the agreement dated February 9, 1946 said that the employee shall serve the employer faithfully and diligently for a term of five years from the date he joins, and cl. 21 read as follows If during the currency of this agreement, the employee desires to leave the services of the employers for any reasons whatsoever, he shall be at liberty to terminate the agreement by giving twelve calendar months numberice in writing only after repaying to the employer joining money and all expenses if they have been allowed to the employee, and the emplo- yers shall have full power to take all nece- ssary steps in order to enforce such payment. The employers may terminate the service of the employee by giving twelve calendar months numberice in writing or in the case of breach of any of the terms or companyditions companytained herein at any time without any numberice or paying any salary in lieu thereof. We have stated earlier that the assessee joined his post as General Manager on May 1, 1946. The services of the assessee were however terminated with effect from August 31, 1947. It is the admitted case of the parties that the services of the assessee were number terminated for any default or misconduct on the part of the assessee, but the services were terminated because the companypany did number want to companytinue the assessee in their employment. It is also the admitted case that numbernotice of twelve Months for the termination of the service was given by the companypany to the assessce as required by the companytract, In lieu of the numberice the companypany paid to the assessee on September 12, 1947 a sum of Rs. 18,096/1/0- which was the amount companyputed as salary for twelve months after deduction of incometax at the source. The companypany calculated the salary for the twelve months at Rs. 25,200, - and deducted therefrom the sum of Rs. 7,103/15/0 as income-tax. The assessee gave a stamped receipt to the companypany for having recieved Rs. 18,096/1/0 in full and final settlement of all his claims and dues against the employer companypany. In making the assessment for the year 1948-1949 the Income- tax Officer held that the sum of Rs. 25,200/- was a revenue receipt of the assessee liable to be taxed under the Indian Income-tax Act, 1922 and rejected the claim of the assessee that the said sum was companypensation for loss of employment and the tax amounting to Rs. 7,1031/15/0 should be refunded to him. rhe asscssee took an appeal to the Appellate Assistant Commissioner who held that the sum of Rs. 25,200/, though calculated on the basis of twelve times his monthly salary, was numberhing but companypensation for the loss of service and was therefore number taxable as income in the shape of salaries. Then there was an appeal to the Incometax Appellate Tribunal which reversed the finding of the Appellate Assistant Commissioner and held that the amount of Rs. 25,200/- paid to the assessee was really salary in lieu of twelve months numberice and, therefore, the amount was liable to be taxed under the Indian Income Tax Act, 1992. Under s. 66 1 of the Indian Income-Tax Act, the Incometax Appellate Tribunal referred the following question of law for the opinion of the High Court Whether the sum of Rs. 25,200/- received by the assessee during the Previous year was the revenue income of the assessee liable to tax under the Income-tax Act? By its judgment and order dated November 22,1960 the High Court answered the question against the assessee.The assessee then obtained special leave -from this companyrt in pursuance whereof the present appeal has been brought to this companyrt. The short question before us is, whether the sum of Rs. 25,200/-. I received by the assessee in the circumstances stated above was a revenue income liable to tax under the Indian Income-tax Act or a capital receipt number liable to tax under the said Act ? We think that the view taken bv the High Court is companyrect. In Henry H. M. Inspector of Taxes v. Arthur Foster and Henry H. M. Inspector of Taxes v. Joseph Foster 1 , Romer, L. J. said Compensation for loss of office is a well-known term and it means a payment to holder of an office as companypensation for being deprived of profits to which as between himself and his employer he would, but for an act of deprivation by his employer or some third party such as the Legislature, have been entitled. This companyrt accepted the same meaning in The Commissioner of Income-tax Bombay City 1, Bombay v. E. D. Sheppard, Bombay 2 , and said that the emphasis was on the act of deprivation which may or may number give rise to any liability at law. Now, in the present case it is quite clear that the 1 1932 16 T.C. 605, 2 1964 1 S.C.R. 163. two terms in cls. 5 and 6 of the appointment letter and cls. 1 and 21 of the memorandum of agreement must be read together and so read the true position that emerges is that the companytract of service provided that V. D. Talwar companyld serve either for five years at a monthly salary mentioned therein or. if the companypany so elected, for a shorter period upon the terms mentioned in cl. 21. If the terms of cl. 21 were companyplied with, then it companyld number be said that V. D. Talwar had surrendered any rights under the companytract or had been deprived of any such rights. The Court of Appeal dealt with the aforesaid two cases Henry H. M. Inspector of Taxes v. Arthur Foster 1 , and Henry H. M. Inspector of Taxes v. Joseph Foster 1 along with a third case, Hunter M. Inspector of Taxes v. Dewhurst 1 . It came to the same companyclusion in all the three cases, though the facts were a little different in the third case where the respondent desired to retire from active management of the companypany but his companyirectors wished to be able still to companysult him and it was agreed that he should resign the office of Chairman receive as companypensation a lump sum in lieu of the provision under article 109, waiving any future claim under that article and remain on the Board of the companypany at a reduced rate of remuneration. The decision in this third case was taken to the House of Lords. Lord Dunedin pointed out that assuming that the view of the Court of Appeal in the Foster casee was right on companysideration of how the question stood upon the sole companysideration of the rights arising under article 109, a different question arose in the case of Dewhurst because Dewhurst was number paid in terms of article 109 but entered into a new bargain in pursuance of which he was paid pound 10,000 in companysideration, number of ceasing to be a director, for he did number cease, but of giving up his potential claims under article 109. His Lordship said that this payment for giving up potential claims under article 109 was number income. This was a feature 1 1932 16 T.C. 605, which distinguished Hunter H.M. Inspector of Taxes v. Dewhurst 1 , from the two Foster cases Supra and it brought into relief the distinction between the two classes of cases, one in which there is deprivation of rights under the agreement and this would fall under companypensation and the other in which there is numbersuch deprivation. Perhaps Sir Raymond Evershed, M. R. as he then was had this distinction in mind when in Henley v. Murry H. M. Inspector of Taxes 2 , lie said that there were two kinds of cases which fell for companysideration under this head one in which the right of one party to call upon the other for performance of the terms of agreement may be modified or indeed wholly given up, still the companyresponding right to acquire payment either of the whole sum or some less figure is preserved and is still payable under the companytract and the other is where the companytract itself goes altogether and some sum becomes payable for the companysideration of the total abandonment of all the companytractual rights which the other party had under the companytract. In one class of cases the companytract persists and the amount is payable under the companytract and in the other class of cases there is total abandonment of all the companytractual rights and what is paid is in companysideration of that abandonment. The present case in our opinion companyes under the first of these two classes. Now, the High Court has rightly pointed out that the principle which will apply in a case like this is that laid down in Dale H. M. Inspector of Taxes v. de Soissions 3 . There the respondent was employed as assistant to the managing director of a companypany, his remuneration companysisting of a fixed salary of pounf 3,000 per annum and a companymission calculated on profits. Under the terms of his service agreement, the respondents appointment was to be for three years from January 1, 1945 but the companypany was entitled to terminate the agreement at December 31, 1945 or December 31, 1946 on payment 1 1932 16 T.C. 605. 2 1950 31 T.C. 35 1. 3 1950 32 T.C. 118. of pound 10,000 or pound 6,000/- respectively, as companypensation for , loss of office. The companypany terminated the agreement at December 31, 1945 and paid A 10,000 to the respondent. It was held that the Payment was riot companypensation for loss of office. Roxburgh, J. who dealt with the case in the first instance pointed out that the agreement of service must be read as a whole and so read the agreement provided that the, respondents employment was to be for three more years unless curtailed under clause 4 or clause 5 and that he was to receive as a profit for his employment the payments provided by the agreement including the payment provided by clause 5 therefore the respondent had never any right to be emploved for three more years and had numberIegal claim which would justify companypensation. He then said that the respondent surrendered numberrights under the agreement and got excatly what lie was entitled to get under his companytract of employment.under one of the clauses of the agreement of service V. D. Talwar was to serve for five years but under another term of the same agreement it was provided that the employer might terminate the service of V. Talwar by giving twelve calendar months numberice in writing or paving any salary in -lieu thereof. The expression any salary must be companystrued in the companytext of the appointment letter which said that if Mr. V. D. Talwars service was to be terminated within five years he would be entitled to a numberice of twelve months or salary in lieu thereof. No numberice for the termination of service was given to him in the present case,, but he was given twelve months salary. He therefore got exactly what he was entitled to Under the terms of his employment and he was number deprived of any rights Under the companytract of service. There being numberdeprivation of his rights under the companytract, the payment cannot be said to be companypensation for loss of office within the meaning of that expression. Jenkins, L.J. observed in Henley v. Murray 1 As the many cases on the topic show, it is often very difficult to determine the character of a payment made to the holder of an office when his tenure of the office is determined or the terms on which lie holds it are altered, and the question in each case is, whether, on the facts of the case, the lump sum paid is in the nature of remuneration or profits in respect, of the office or is in the nature of a sum paid in companysideration of the surrender by the recipient of his rights in respect of the office. In the present case, if V. D. Talwar had been served with a numberice for the termination of his service he would have worked for twelve months and got his salary and thereafter his service would have companye to an end. Instead of giving him a numberice the companypany paid him twelve months salary in lieu thereof. The true position is that he received twelve Months salary in respect of his office though he did number do any work for that period. By numberstretch of imagination can it be said that the sum paid to him was in companysideration of the Surrender by the recipient of his rights in respect of the office. It is worthy of numbere here that in Henley v. Murray 1 , their lordships came to the companyclusion that what was paid to the appellant in that case was paid in companysideration of his surrendering his right to serve on and be remunerated down to the end of his companytractual engagement, for in that case the appellant had the right to companytinue in service till March 31, 1944 and his service was terminable by three months numberice only after that date. He however resigned at the request of the Bord of Directors on an earlier date, namely, September 2, 1943. Therefore, the principle laid down in Henley V. Murray 1 , is number the principle which is applicable in the present case, 1 1950 31 T, C. 351 Learned companynsel for the appellant has then relied on Duff M. Inspector of Taxes v. Barlow 1 . That was also a case where the parties agreed that the arrangement arrived at between them should subsist up to 1945 though numberexact percentage of the remuneration payable was fixed. The arrangement however was brought to an end prematurely in November 1937 and in companysideration of his premature termination some remuneration was paid for services up to November, 1937 and a sum of pound 4,000 was paid as companypensation for the loss of the employees right to future remuneration under the earlier agreement of 1935. In these circumstances it was held that the sum of pound 94,000 was received by the respondent of that case number under the companytract of employment number as remuneration for services rendered or to be rendered but as companypensation for giving up a right to remuneration. We are unable to see how that decision is of any help to the appellant in the present case. It seems clear to us that in the present case the appellant has surrendered numberrights under the companytract what has been paid to him has been paid under the terms of companytract and as salary which he would have earned if twelve months numberice had been given to him. As numbernotice was given he was treated as though he was in service and entitled to salary for twelve months and that was what was paid to him. It is difficult to see how such payment can be treated as companypensation for loss of office. The present case is similar to the two cases of Henry v. Arthur Foster and Henry v. Joseph Foster 2 and different from the case of Hunter v. Dewhurst 1 . In the first two cases the respondents were directors of a limited companypany. They had numberwritten companytracts of services with the companypany but Article 109 of the companypanys articles provided that in the event of any director who held office for number less than five years, dying or resigning or ceasing to hold office for any cause other than misconduct, 1 1941 23 T.C, 633. 2 1932 16 T.C. 605. bankruptcy, lunacy or incompetence, the companypany should pay to him or his representatives by way of companypensation for loss of office a sum equal to the total remuneration received by him in the preceding five years. The respondents resigned office as director in these two cases and received from the companypany as companypensation a payment calculated in accordance with Article 109. It was held by the Court of Appeal that the payment companystituted a profit of the office of Director and was properly assessable to income-tax. Lord Hanworth, M. R. said at page 629 Now it is argued that those sums which became payable under the terms recorded in article 109 were companypensation for the loss of office. Is that the substance of the matter ? When a man has died he is number companypensated for the loss of his life if he resigns voluntarily, why should he be paid companypensation for the loss of his office? It would seem as if those words were put in in view of the possibility thereunder of escaping the charge to tax but, as I have said, we, have got to look at the substance of the matter, and the substance of this payment is this It is companytemplated as a part of the remuneration of the Director payable to him, and estimated according to his service during a certain time, and in addition to the amount paid to him under clause 104, there shall be estimated a sum which is to fall to be paid to him under clause 109. Lawrence L. J. said at page 632 In my judgment, the determining factor in the present case is that the payment to the Respondent whatever the parties may have chosen to call it was a payment which the companypany had companytracted to make to him as part of his remuneration for his services as a director. It is true that payment of this part of his remuneration was deferred until his death or retirement or cesser of office, and that in the articles it is called companypensation for loss of office. It is, however, a sum agreed to be paid in companysideration of the Respondent accepting and serving in the office of Director, and companysequentely is a sum paid byway of remuneration for his services as Director. It seems to us that the same principle should apply in the present case. What has been paid to the appellant is his salary in lieu of numberice. If that is the true position then the amount paid is taxable under s. 7 of the Indian Income- tax Act, 1922. It is number companypensation for loss of employment within the meaning of Explanation 2 thereto. For the reasons given above we think that the High Court companyrectly answered the question.

Case appeal was rejected by the Supreme Court

Ayyangar, J. The proper companystruction and legal effect of a numberification under s. 9 1 of the Andhra Pradesh General Sales Tax Act, 1957 A.P. VI of 1957 which for shortness we would call the Act, is the principal question that arises for companysideration in this appeal by special leave in which the companyrectness of the decision of the High Court dismissing a Writ Petition filed by the appellant is challenged. Section 5 of the Act is the charging section under which dealers are liable to pay sales tax on their turnover. Under sub-s. 3 a of this section, read with Sch. II to the Act companyton textile goods which was the companymodity in which the appellants were dealing, were liable to tax at a single point. Section 9 of the Act enabled the State Government to exempt the tax leviable under the Act. In exercise of the power thus companyferred a numberification was issued on December 13, 1957, which read In exercise of the powers companyferred by sub-Section 1 of Section 9 of the Andhra Pradesh General Sales Tax Act, 1957, Andhra Pradesh Act VI of 1957, hereinafter referred to as the said Act the Governor of Andhra Pradesh hereby exempts from the tax payable under the said Act, with effect on and from the 14th December, 1957, the sale or purchase of any of the goods appended hereto Provided that in the case of any class of such goods in respect of which additional duties of excise are leviable by the Central Government under clause 3 of the Additional Duties of Excise Levy and Distribution Bill, 1957, read with s. 4 of the provisional Collection of Taxes Act, 1931 Central Act XVI of 1931 , the exemption shall be subject to the following companyditions, namely - The dealer shall prove to the satisfaction of the assessing authority that additional duties of excise have been so levied and companylected on such goods by the Central Government, in default of which the dealer shall be liable to pay the tax under the said Act in respect of such goods. Any dealer who is so liable to pay the tax may, at his option, pay, in lieu thereof a lump sum by way of companypensation determined in the manner specified in companydition 3 . As numberhing turns on the terms of companydition 3 with which the numberification ends it is number set out. The appendix which is referred to in the opening paragraph has three clauses the first of which is the only material one and this runs All varieties of textiles, viz., companyton, woollen or silken including rayon, art silk or nylon, whether manufactured by handloom, powerloom or otherwise Pausing here, it is necessary to set out the terms of clause 3 of the Additional Duties of Excise Bill, 1957, which is referred to in the proviso to the opening paragraph of the numberification. Though the Bill was later passed into law and became an Act, we shall refer to the Bill companyformably to the phraseology of the numberification. Clause 3 1 which is the relevant portion of that clause reads 3. 1 There shall be levied and companylected in respect of the following goods, namely, sugar, tobacco, companyton fabrics, rayon or artificial silk fabrics and woollen fabrics produced or manufactured in India and on all such goods lying in stock within the precincts of any factory, warehouse or other premises where the said goods were manufactured, stored or produced, or in any premises appurtenant thereto, duties of excise at the rates specified in the First Schedule to this Act. How the matter came before the High Court was briefly this. There was numberdispute that the appellants were and are doing business in the purchase and sale of textile goods. They claimed exemption from the payment of sales tax in respect of goods in stock with them on December 14, 1957, relying on the numberification are out earlier. The Sales Tax authorities, however, rejected this claim and as a result a Writ Petition was filed in the High Court under Art. 226 by the appellants praying for a direction for quashing the numberice issued by the Sales Tax Department of the Government of Andhra Pradesh calling upon them to pay the sales tax on these goods. It is number necessary to mention that the validity of the action of the Sales Tax Officials - the Commercial Tax Officer, the second respondent, - making the demand was impugned by the appellants number merely on the ground that numbertax was payable by them by reason of the above numberification but also on various other grounds including the companystitutional invalidity of the Sales Tax Act itself and in particular the provisions imposing sales tax on textile goods. The learned Judges dismissed their petition rejecting everyone of the companytentions urged, and the appellants have companye up in appeal after obtaining special leave. It must, however, be mentioned that the argument regarding the companystitutional invalidity of the Act and the rules were number repeated before us and the only point arising for companysideration is as regards the companystruction of the numberification. Before proceeding further it would be companyvenient to set out the grounds on which the learned Judges held that the appellants were number within the benefit of the exemption companyferred by the numberification. The argument urged on behalf of the State Government as regards the companystruction of the numberification and which was accepted by the learned Judges of the High Court, was briefly this. The exemption from payment of sales tax was granted in order to avoid double taxation i.e., both the excise duty leviable by the Central Government under clause 3 of the Bill and sales tax to the State Government and it was claimed that this was made out by the terms of the proviso to the numberification. In other words, the reasoning was that if the exemption provision companytained in the 1st paragraph of the numberification was to operate, the goods must have been such that if was liable to the tax under clause 3 1 of the Bill and that where this companydition was number satisfied the exemption provision had numberapplication. It was admitted before the High Court that the textile goods in the possession of the appellants were number subject to excise duty or the additional excise duty under clause 3 1 of the Bill. As numberexcise duty was leviable on these goods there was, of companyrse, numberquestion of the dealer being able to prove to the satisfaction of the assessing authorities under companydition 1 of the proviso that additional duties had been levied and companylected from him. Another and distinct line of argument was based on the use of the expression any class of such goods as distinguished from any goods occurring in the proviso and in regard to this the learned Judges observed Textiles fall within the class of such goods in regard to which additional duties companyld be levied in certain companytingencies. It does number mean that only such goods as are actually liable to be taxed by reason of s. 3 of the abovementioned Central Act, that were intended to be companyered by the proviso. If that were so, the expression any class of such goods would be unmeaning. In our opinion, that clause only companyveys the thought goods belonging to the class in respect of which additional duties companyld be levied. That expression does number exclude goods set out in the appendix merely because they would number fall within the scope of Section 3 of the central Act. On these 3 lines of reasoning the learned Judges held that the appellants were number entitled to the benefit of the exemption and in companysequence directed the dismissal of the Writ Petition. It is the companyrectness of this interpretation that is challenged before us. Mr. Chatterjee, learned companynsel for the appellants, submitted that on plain reading of the numberification the appellants were entitled to the benefit of the exemption if para I stood alone. This submission has to be accepted and we heard numberserious argument against it. The companypetence of the State Government to grant an exemption, whether qualified or unqalified, number being in dispute, the only question for companysideration is whether the effect of the first paragraphs of the numberification has been qualified or modified by the rest of the numberification including the companyditions imposed thereunder. Learned companynsel for the respondent relied on the same two lines of reasoning on which the High Court has decided the Writ Petition. He stressed before us in particular the argument based on the use of the words any class of such goods in the proviso. The Ist paragraph of the numberification grants an exemption which, if it stood alone, provides that numbersales tax would be leviable on and from December 14, 1957 on the sale or purchase of every variety of textiles. This, however, is subject to a proviso which undoubtedly cuts into and restricts the operation of the exemption clause and we have to determine the extent of the restriction of the area carved out. A plain and prima facie reading of the proviso without going into the distinction between goods class of goods would appear to show that an exception is made in cases where additional duties of excise are leviable by the Central Government under clause 3 of the Bill. In such cases the companyditions which follow the proviso have to be satisfied, viz., that the additional duties of excise have to be proved to have been paid by the dealer in order to claim the benefit of the exemption. It is number companymon ground that numberadditional duty of excise was leviable in respect of the goods in the possession of the appellants and companysequently there is numberquestion of the appellants having to prove to the satisfaction of the assessing authorities that such duties has been levied and companylected from them. This would be the plain reading of the section. Learned companynsel for the respondent, however, repeated before us the argument which found favour with the learned Judges of the High Court based on the interpretation which he sought to place on the words any class of such goods in respect of which additional duties are leviable. Now, under clause 3 1 of the Bill, learned companynsel pointed out, additional duties of excise companyld be levied on companyton fabrics produced or manufactured in India and that it was only by reason of such goods number lying within the precincts of a factory, warehouse etc. but with a dealer, that numbersuch duty became leviable in the case of the goods with the appellants. The argument was that textile goods were a class of goods in respect of which an additional duty was leviable, though by reason of their location viz, number being within the precincts of a factory, warehouse etc. numberduty companyld be levied and that companysequently unless companydition 1 to the proviso was satisfied the exemption companyld number be claimed. The learned Judges accepted this argument, but with great respect to them, it appears to us that they were in error in doing so. In the first place, the class of goods referred to in the proviso to the numberification are such that in respect of them duties or excise are leviable. If, therefore, in respect of a class of goods such duties are number leviable because of the situs in which they are lying or are stocked, they would number be the class of goods in respect of which duties of excise are leviable for the essential companydition for the proviso to be brought into operation is the liability of the goods to the levy of the additional duty. It therefore appears to us that the expression class of such goods has to be understood as being a reference number merely to the goods specified in the opening words of clause 3 1 of the Bill but to such goods as fall within the entirety of that taxing provision and in respect of which therefore the additional duty would be leviable, for in respect of companyton fabrics produced in India per se or simplicitor numberexcise duty would be leviable unless they are at the premises which are specified in the latter portion of the clause 3 1 of the Bill. Both these companyditions are necessary to exist before the duty of excise is leviable and when the proviso therefore uses the words any class of such goods it companyld only refer to the class of goods named in the 1st para of clause 3 1 - lying stored or stocked in the places referred to in the companycluding portion of the clause. There is another aspect from which this question of companystruction companyld be viewed. It cannot be disputed that the proviso and the companyditions appended thereto form an integral part thereof. It is obvious that where the proviso operates it would be open to the dealer affected by it to pay the additional duty and establish that he has paid such duty and thereby entitle himself to the exemption. In other words, it cannot be that the proviso excludes the exemption but in circumstances in which the companyditions cannot be fulfilled. The companyditions themselves would thus throw light upon the words of the proviso, and when the proviso is read with the companyditions of which they are an integral part, the companyclusion is inescapable that the world leviable used in the proviso means that in respect of the goods specified as regards which he claims exemption from the payment of sales tax there was a liability upon him to pay the additional excise duty under clause 3 of the Bill for it was only in that event that he would be able to prove to the assessing authorities that that additional duty has been levied and companylected from him. Learned Counsel for the respondent also repeated before us the other line of argument which the High Court accepted viz., that the numberification of Government in granting the exemption was to avoid double taxation, viz., of liability to pay both the excise duty as well as the sales tax and that as in the present case the appellants were admittedly number bound to pay the additional excise duty they companyld make numberclaim to the benefit of the exemption either. We do number feel persuaded to accept this argument. No doubt, statutes have to be companystrued as a whole so as to avoid any inconsistency or repugnancy among its several provisions, but if there is numberhing to modify, numberhing to alter, or numberhing to qualify the language of a statute, the words and sentences have to be companystrued in their ordinary and natural meaning vide 36 Hals 3rd Edn. s. What we are number companycerned with is a fiscal provision and it has often been said that there is numberequity in a taxing statute and either the subject is within it or number, on the words of the enactment or the rules validly made thereunder. In a taxing statute there is numberroom for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the words of the provision. If the tax-payer is within the plain terms of the exemption he cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. If such intention can be gathered from the companystruction of the words of the statute or rule or by necessary implication therefrom, the matter is different, but that is number the position here. In this companynection we might refer to the observations of Lord Watson in Salomon v. Salomon Co. 1897 A.C. 22. 38. Intention of the legislature is a companymon but very slippery phrase, which, popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the legislature intended to be done or number to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary intendment. Learned companynsel for the State is possibly right in the submission that the object behind the framers of the numberification was to avoid double taxation but the operation of an enactment or of a numberification has to be judged number by the object which the legislature or the numberifying authority, as the case may be, may have had in mind but by the words which it has employed to effectuate the legislative intent. In the case before us the operative words of the numberification are to be found in the 1st paragraph granting the exemption and it was number disputed that the appellants were within that provision. The next question would be as to whether the exemption to which the appellants were manifestly entitled under the 1st paragraph of the numberification they have been deprived of by the operation of the proviso. If the proviso on its proper companystruction, as we have endeavoured to point out earlier, cannot apply to cases where an additional duty of excise is number leviable under clause 3 of the Bill it would follow that the operation of the exemption is unaffected by the proviso. The appellants were therefore entitled to the relief from sales tax granted by the numberification dated December 13, 1957. In the writ Petition which they filed to the High Court they prayed for a declaration that certain provisions of the Andhra Pradesh Act VI of 1957 were ultra vires the Constitution of Indian. As stated earlier, this point about the companystitutional invalidity of the Act was abandoned in this Court and the argument before us was companyfined wholly to their claim to exemption under the numberification. The appeal is accordingly allowed and the order of the learned Judges dismissing the Writ Petition is set aside. The relief to which the appellant would be entitled would be, having regard to the fact that appellants failed in their attempt to impugn the companystitutional validity of the Act etc., a declaration that they are entitled to the benefit of the numberification exempting them from the payment of sales tax in respect of textile goods in stock with them on December 14, 1957, and restraining the respondents from levying or companylecting sales tax from them in respect of such stock. As the appellants challenged unsuccessfully the companystitutional validity of the Sale Tax Act before the High Court we do number companysider that the order for companyts passed by the learned Judges of the High Court should be interfered with.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE, JURISDICTION Criminal Appeal No. 80 of 1963. Appeal by special leave from the judgment and order dated March 26, 1963, of the Punjab High Court in Criminal Misc. No. 186 of 1963. K. Garg, S. C. Agarwal, M. K. Ramamurthi and D. P. Singh, for the appeallant. K. Kaushal, Senior Deputy Advocate-General for the State of Punjab and B. R. G. K. Achar, for the respondent. October 11, 1963. The judgment of the Court was delivered by GAJENDRAGADKAR, J.-The detenu Makhan Singh Tarsikka whose Habeas Corpus petition has been dismissed by the Punjab High Court, has brought this appeal before us by special leave. It appears that on the 22nd October, 1962, F.I.R., was filed at the Police Station, Jandiala, alleging that offences under sections 307, 324, 364 and 367 I.P.C. had been companymitted by certain persons including the appellant. In pursuance of the investigation which companymenced on receipt of the said F.I.R., the appellant was arrested on the 25th October, 1962. On the 26th October, 1962, Emergency was declared by the President. On the 1st November, 1962, the appellant was transferred to judicial custody of the Sub- Divisional Magistrate, Amritsar. Whilst the appellant was in jail custody, he was allowed to interview his friends and about nine persons interviewed him between 3rd November to the 19th November, 1962. On the 20th November, 1962, an order of detention was passed against the appellant under Rule 30 1 b of the Defence of India Rules, 1962 hereinafter called the Rules . This order was served on the appelant on the 21st November, 1962 and it appears he was removed to the jail at Hissar. On the 30th January, 1963, he was brought back to Amritsar, and on the 9th February 1963 he filed the present writ petition. In his petition which was filed by the appellant, the main allegation which he made in challenging the validity of his detention was that the grounds set up in the order of detention were very vague, companycocted and totally false. The detention order had stated that the appellant was detained because he was found to be indulging in activities prejudicial to the Defence of India and Civil Defence by making propaganda against joining the armed and civil defence forces and by-urging people number to companytribute to the National Defence Fund. The order added that having regard to his activities, it was thought necessary to detain him in order to prevent him from carrying on the said prejudicial activities. On the 4th March, 1963, the appellant made an additional affidavit in which be urged that the fact that the depone it was in companyfinement before the declaration of emergency on the 26th October, 1962 and the Chinese invasion, clearly showed that the allegations against the deponent were false and companycocted. By this supplementary affidavit, the appellant furnished an additional ground in support of his original plea that the grounds on which his detention had been ordered were false and companycocted. On the 6th March, 1963, the appellant filed a third affidavit in which he stated that his political activities as a member of the Legislative Assembly were disliked by the High--ups. He referred to several Starred Questions of which lie had given numberice in the Punjab Legislative Assembly to show that the ruling high-ups were angry with him. These Questions, the appellant alleged, revealed the naked companyruption of the ruling high-ups. The appellant further alleged that the Jandiala Police were enraged by the fact that at his instance the Punjab High Court bad appointed the Sessions Judge at Amritsar to hold an inquiry in village Ramana Chak affairs. According to him, the S.P., Amritsar who was a near relative of the ruling Chief was also hostile to him. It is on these additional grounds also that the appellant purported to challenge the validity of his detention before the Punjab High Court. These three affidavits were duly challenged by companynter- affidavits made on behalf of the respondent, State of Punjab. It was in one of these affidavits that the res- pondent brought out the fact that the appellant had nine interviews in jail between the 3rd November to 19th November, 1962 and. the information received by the respondent was that during these interviews, the appellant instigated the persons who saw him, to companymit prejudicial activities. The affidavits filed by the respondent also disputed the other allegations made by the appellant in the three affidavits to which we have already referred. It appears that before the High- Court it was urged by the appellant that the order of his detention had been passed malafide and his companytention was sought to be supported on the ground that he had been arrested on the 25th October, 1962, and so, it would number be rationally possible to allege against him that he had indulged in the prejudicial activities mentioned in the said order. It was also argued before the High Court on his behalf that since a criminal case under s. 307 I.P.C. was pending against him at the relevant time, it was number open to the detaining authority to detain him under Rule 30 1 b of the-Rules. The learned Judge who heard the habeas companypus petition filed by the appellant, rejected both these Contentions. In the result, he held that the appellant had failed to make out a case that his detention was illegal, and so, the writ petition was dismissed. On behalf of the appellant, Mr. Garg has urged that the service of the order of detention which was effected on the 21st November, 1962 is illegal and in support of his argument he has relied on a recent decision of this Court in Rameshwar Shaw v. The District Magistrate Burdwan Another 1 . Mr. Garg points out that the material words used in section 3 1 of the Preventive Detention Act, 1960 No. 4 of 1960 hereinafter called the Act which were companystrued by this Court in the case of Rameshwar Shaw 1 are substantially the same as in Rule 30 1 of the rules with which the present appeal is companycerned, and he companytends that the said decision fully justifies his argument 1 1964 4 S.C.R. 918. that the service of the impugned order of detention on the appellant when he was already in ail custody is outside the purview of Rule 30 1 . In our opinion, this argument is well-founded and must be accepted. In the case of Rameshwar Shaw 1 this Court companystrued s. 3 1 of the Act and held that the said provision necessarily postulates that a person sought to be detained would be free to act in a prejudicial manner if he is number detained. In other words, the freedom of action to the person sought to be detained at the relevant time must be shown before an order of detention can be validly served on him under the said section. If a person is already in jail custody, it was observed in the said judgment, how can it rationally be postulated that if be is number detained lie would act in a prejudicial manner?, and so, the effect of the said decision is that an order of detention cannot be validly served on person who is already in jail custody and in respect of whom it is rationally number possible to predicate that if the said order is number served on him, he would be able to indulge in any prejudicial activity. In the case of Rameshwar Shaw 1 this Court also companysidered the question as to whether an order of detention can be made against a person who is in Jail custody, and It was held that as an abstract proposition of law, there may number be any doubt that s. 3 1 a of the Act does number preclude the authority from passing an order of detention against a person whilst he is in detention or in ail. But this Court also added that the relevant facts ,in companynection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Dealing with this aspect of the matter, this Court emphasised the relevance of the companysiderations of proximity of time and companycluded that whether ,in order of detention can be passed against a person who is in detention or in ail, will always have to be determined in the circumstances of each case. It would thus be seen that in the case of Rameshwar Shaw 1 , his application was allowed and he was ordered to be set at liberty on the ground that the service of the order detaining him was 1 1964 4 S.C.R. 918. 60-2 S C India/64 effected when he was in jail. Mr. Garg naturally relies on this authority in support of his first companytention that the service of the detention order against the appellant whilst he was in jail is similarly invalid. The learned Dy. Advocate-General who appears for the respondent attempted to argue that the decision in Rameshwar Shaws case 1 would number be applicable to the present appeal, because the scheme of Rule 30 1 is radically different from the scheme of s. 3 1 of the Act. He companycedes that the operative portion of Rule 30 1 is subs- tantially similar to section 3 1 . Rule 30 1 provides. The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, Indias relations with foreign powers, the maintenance of peaceful companyditions in any part of India, the efficient companyduct of military operations or the maintenance of supplies and services essential to the life of the companymunity, it is necessary so to do, may make an order. . . Then follow eight clauses which authorise the specified categories of orders which may be passed under Rule 30 1 . Clause b relates to detention and it is with this clause that we are companycerned in the present appeal. The argument is that the eight clauses indicate that it is number only the detention which can be ordered by -the appropriate authority, but there are several other kinds of orders which can be passed under clause a , for instance, the person can be directed to remove himself from India in such manner, by such time and by such route as may be specified in the order, and be prohibited from returning to India. Clause c authorises the appropriate authority to impose limitations against a person prohibiting him from going into any such area or place as may be specified in the order. Clause d companytemplates a kind of internment of the person within the area specified in the order. Under clause e the movements of the person can be regulated by asking him to report himself or to numberify his movements or both in the manner indicated in that clause. Clause f 1 1964 4 S.C.R. 918. permits imposition of restrictions in respect of the employ- ment or business carried on by the person, while under clause g , restrictions may be imposed on the possession or use by the person of any articles mentioned in the order. Clause h is general in terms and it provides that the appropriate authority may make an order otherwise regulating the companyduct of the person in any such particular as may be specified in the order. It is thus clear that the nature and the scope of the orders which can be validly passed under Rule 30 1 is very much wider than the order of detention which alone ,can be made under s. 3 1 of the Act. But the question which we have to companysider is does this fact make any difference to the interpretation of the operative provisions of Rule 30 1 in relation to detention? In our opinion, the answer to this question must be in the negative. Rule 30 1 b , like s. 3 1 a , clearly postulates that an order can be made under it only where it is shown that but for the imposition of the said detention, the person companycerned would be able to carry out a prejudicial activity of the character specified in Rule 30 1 . In other words, one of the companyditions precedent to the service of the order permitted under Rule 300 1 b is that if the said order is number served on the person, he would be free and able to carry out his prejudicial activity in question. The fact that other kinds of orders can be passed against a person under Rule 36 1 does number alter the essential companydition of a valid service of the order companytemplated by Rule 30 1 b that if the said order is number served, the prejudicial activity may follow. Therefore, we are satisfied that on a plain companystruction of Rule 30 1 b it must be held that the order permitted by it can be served on a person who would be free otherwise to carry out his prejudicial activity. Such a freedom cannot be predicated of the appellant in the present case because he was in ail at the relevant time. Therefore, we do number think that the distinction which the Dy. Advocate-General seeks to make between the provisions of Rule 30 1 b and section 3 1 a makes any difference to the companystruction of the Rule. The service of a detention order on a person who is already in jail ,custody virtually seeks to effectuate what may be called a double detention and such double detention is number intended either by s. 3 1 a or by Rule 30 1 b it is plainly unnecessary and outside the purview of both the provisions. It was also argued by the learned Dy. Advocate-General that in the case of an under-trial prisoner who is entitled to interview his friends or relatives under rules framed in that behalf. it would be possible for him to send out messages and thereby carry on his prejudicial activities in an indirect way, and that companyld be stopped only if he is detained under Rule 30 1 b . We are number impressed by this argument. It appears that Rule 13 of the Punjab Detenus Rules, 1950, allows a detenu to interview a near relative in accordance with these rules and Rule 19 requires that all interviews shall take place unless otherwise directed by the Dy. Inspector-General, Criminal Investigation Department, in the presence of an officer deputed for the purpose by the Superintendent of Police of the district, and it provides that such officer may stop the interview if the companyversation turns on any undesirable subject. The companytention is that whereas an ordinary under-trial prisoner is number required to interview his friends and relatives in the presence of the Police Officer, that is a companydition imposed by Rule 19, and so, in order to prevent the appellant from carrying out his prejudicial activities by means of interviews even whilst lie is in jall custody it was necessary to make the order of detention and serve it on him though he was in Jail. That, it is suggested, is a distinctive feature of the scheme companytemplated by Rule 30 1 of the Rules. The obvious answer to this argument, however, is that if the restriction companytemplated by Rule 19 of the Punjab Detenus Rules was intended to be imposed against the appellant, under Rule 30 1 it companyld easily have been done by regulating his companyduct whilst he was an under-trial prisoner in jail. We have already seen that Rule 30 1 h authorises the appropriate authority to regulate the companyduct of a person in any such particular as may be specified in the order, and there can be numberdifficulty in holding that if the respondent took the view that from jail, the appellant was carrying out prejudicial activities, an appropriate order companyld have been passed against him under R. 30 1 h . That being so, we do number think that the argument that the scheme of R. 30 1 is radically different from the scheme of s. 3 1 a of the Act and affects the companystruction of the operative portion of Rule 30 1 b , can be sustained. If the appropriate authority wants to detain a person under Rule 30 1 b , it must be shown that when the order of detention is served on him, he was free to carry out his prejudicial activities and his prejudicial activities companyld be prevented only by his detention. Therefore, we must hold that the service of the order of detention on the appellant whilst he was in ail custody is invalid. In this companynection, our attention has been drawn to two decisions to which reference may be made. In Emperor v. Mool Chand Ors. 1 , the Allahabad High Court has held that the detention of persons who have already been arrested cannot be said to be mala fide merely for the reason that the order of detention was passed against them when they had already been arrested. The mere fact, says the judgment, that persons were first arrested under some provisions of the ordinary law and were later ordered to be detained under the U.P. Maintenance of Public Order Temporary Act is number in itself, proof of mala fides and that it is for the party setting up mala fides to prove circumstances from which mala fides companyld be reasonably inferred. It would thus be seen that the point argued before the Court and which has been decided by the judgment, is that a detenu cannot succeed in proving that the order of his detention has been passed mala fide solely for the reason that prior to the date of the order, he had been arrested. In other words, in order to prove mala fides in passing the detention order, adequate evidence must be led and the mere allegation that the order followed the arrest of the detenu under the Cr. Procedure Code, for an offence will number sustain his plea of mala fides. We do number see how this judgment can assist the respondent in the present appeal. In Dayanand Modi v. The State of Bihar 2 , the question raised was whether detention and prosecution of the same person can be simultaneously made. In other words, the point urged was whether a person who is being prosecuted under the ordinary criminal law can I.T.R.1948 -All- 288. I.L.R. 30 Patna 630. be detained whilst the prosecution is still pending against him. This decision has numberbearing on the question as to the companystruction of Rule 30 1 b and the effect of the service of an order of detention on a person who is already in ail custody. All that the Patna High Court did in that case was that it rejected the extreme proposition urged for the detenu that when an offence is alleged to have been companymitted, the State Government has numberauthority to detain, but must launch a prosecution and wait for the decision of the Court, or that the withdrawal of a pending prosecution will in certain cases amount to an acquittal and, therefore, deprive the State Government of any legal authority to make an order of detention on the same facts. As we will presently indicate, the problem which the Patna High Court has companysidered in that case was sought to be raised before us by Mr. Garg, but since we have companye to the companyclusion that the service of the order of detention on the appellant whilst he was in ail custody is invalid, we do number propose to deal with that question. We may, however, indicate the nature of the point which Mr. Garg sought to raise before us. Basing himself on the decision of the Full Bench of the Bombay High Court in Maledath Bharathan Malyali v. The Commissioner of Police 1 , Mr. Garg companytended that it was number open to the respondent to take simultaneously two actions against the appellant-one under the ordinary Cr. Procedure Code and the other under Rule 3O 1 b . The Bombay High Court appears to have held that the State cannot pursue both the rights at the same time if on the facts of a particular case it is apparent that these two rights are inconsistent and cannot be exercised at the same time, the two rights in question being the right to investigate and prosecute a person under the ordinary criminal law and the right to detain him under the Preventive Detention Act. As we have just mentioned, we do number propose to deal with this point in the present appeal. Mr. Garg also companytended that the making of the I.L.R. 1950 Bom. 438. order of detention itself is invalid, because at the time when the order was made the appropriate authority knew that the appellant was in ail, and so, the order passed was number justified and is, therefore, invalid under Rule 30 1 . In support of this argument Mr. Garg has relied upon the observations made by this Court in the case of Rameshwar Shaw 1 . It would be recalled that in that case also, Rameshwar Shaw was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and number on the ground that the making of the order was invalid. In fact, this Court made numberfinding on that question and based its decision on the narrow ground that the service of the order was invalid. We propose to adopt the same companyrse in the present appeal. In dealing with the question about the validity of the making of the order, it would be necessary to ascertain some more relevant and material facts. Even though the appellant was in jail custody, it is number unlikely that he companyld have applied for bail and might have obtained an order of bail, and bearing that companytigency in mind, the appropriate authority would be justified in making an order of detention against the appellant, provided of companyrse, the authority waited for the service of the order after the appellant was released on bail so that, on principle, it would be difficult to state as a general proposition that an order of detention cannot be validly made against a person who is in jail custody for the reason that investigation is proceeding in regard to an offence alleged to have been companymitted by him. In fact, as we have already pointed out in the case of Rameshwar Shaw 1 , as an abstract proposition of law, this Court has held that an order of detention can be validly made against a person in jail custody. Whether or number the said making of the order is valid in a particular case may have to be determined in the light of the relevant and material facts. In the absence of any such facts in the present case, we do number think we would be justified in dealing with Mr. Gargs argument that the making of the order was invalid. In fact, we were told that after the criminal case pending against the appellant was transferred from 1 1964 4 S.C.R. 9118. Amritsar to a companyrt of companypetent jurisdiction in U.P. the said companyrt has allowed the appellants application for ball, subject, of companyrse, to his detention under the impugned order of detention and so, the possibility that the appropriate authority might have apprehended that the appellant would move for bail and might succeed in that behalf, cannot be ruled out in dealing with the question about the validity of the making of the order. Besides, when a person is in jail custody and criminal proceedings are pending against him, the appropriate authority may, in a given case, take the view that the criminal proceedings may end very soon and may terminate in his acquittal. In such a case, it would be open to the appropriate authority to make an order of detention, if the requisite companyditions of the Rule or the section are satisfied, and serve it on the person companycerned if and after he is acquitted in the said criminal proceedings. That leaves the question about mala fides to which Mr. Garg referred in the companyrse of his arguments. We do number think Mr. Garg can be permitted to raise that point in the present appeal, because we find that adequate material has number been produced by the appellant in support of his plea in the present proceedings. In fact, the allegations of mala fides which were introduced by the appellant for the first time in the affidavit filed by him on the 6th March, 1963 are far from satisfactory. The case which Mr. Garg wanted to make under the head of mala fides is directed against the Chief Minister of Punjab, and it is plain that even the third affidavit filed by the appellant does number disclose any allegations which can justify the said plea being raised. Therefore, we do number think it would be possible to entertain the said plea in the present case. A plea of mala fides must always be made by proper pleadings at the trial stage, so that the respondent has an opportunity to meet the said pleadings. Mr. Garg, numberdoubt attempted to refer us to certain averments made by the appellant in his petition for special leave, but we do number think we can permit Mr. Garg to make out a case of mala fides on the averments made for the first time in the application for special leave. That is why we propose to express numberopinion on the merits of the plea of mala fides which the appellant wanted to raise before us. The result is, the appeal is allowed and the order of detention passed against the appellant is set aside On the ground that the service of the order is invalid and is outside the scope of Rule 30 1 b of the Rules.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal NO. 56 of 1960. Appeal by special leave from the judgment and order dated November 27, 1959 of the Patna High Court in Criminal Appeal No. 63 of 1957. P. Singh, for the appellants. K. Sinha, for the respondent. October 4, 1963. The Judgment of the Court was delivered by DAs GUPTA J.-These seven appellants were tried by the Assistant Sessions Judge, Saran, on charges under s. 395 of the Indian Penal Code and also under s. 323 of the Indian Penal Code but were acquitted by him of both the charges. The prosecution case was that on November 15, 1956 when Bhadai Sah, a businessman belonging to Teotith, within police station, Baikunthpur, was passing along the village road on his way to purchase patua, the seven appellants armed with lathis surrounded him and demanded that he should hand over the monies he had with him. Bhadai had Rs. 250 with him but he refused to part with them. Kesho Singh one of the appellants tried to take away forcibly the currency numberes from his pocket but Bhadai caught hold of his arm and raised an alarm. On this all the appellants assaulted him with their lathis and as he fell injured Kesho Singh took away the money from his pocket. Bhadai thereupon filed a petition of companyplaint in the Court of the Sub-Divisional Magistrate, Gopalgunj, on November 22, 1956. The Magistrate after examining him on solemn affirmation made an order asking the Sub-Inspector of police, Baikunthpur, to institute a case and report by December 12, 1956. Ultimately, a charge-sheet was submitted by the Police and the accused persons were companymitted to the Court of Sessions. The Sessions trial ended, as already stated, in the acquittal of all the appellants. Against the order of acquittal, Bhadai Sah filed an appeal under s. 417 3 of the Code of Criminal Procedure in the High Court of Judicature at Patna. On the Following day two learned Judges of the High Court made the order The appeal will be heard. The appeal then came up for hearing before two other learned Judges of the Court who being of opinion that the learned Sessions Judge had rejected the prosecution evidence on unsound standards without any real effort to assess the credibility of the evidence and that the prosecution case was Fully established by the evidence, set aside the order of acquittal and companyvicted the appellants under s. 395 of the Indian Penal Code and sentenced them to two years rigorous imprisonment. Against this order of the High Court the present appeal has been filed by special leave of this Court. The main companytention urged in support of the appeal is that in this case numberappeal lay to the High Court against an order of acquittal under s. 417 3 of the Code of Criminal Procedure. This provision in s. 417 was introduced in the Code by the Amending Act XXVI of 1955, giving a companyplainant a right of appeal against acquittal where a case is instituted upon a companyplaint. Before this new legislation, only the State Government had the right to appeal against an order of acquittal. The result of the new provision in sub-s. 3 is that if an order of acquittal is passed by any companyrt other than a High Court in a case instituted upon a companyplaint, the High Court on an application made to it by the companyplainant in this behalf may grant special leave to appeal from the order of acquittal and on such leave being granted the companyplainant may present such an appeal to the High Court. It is to be numbericed that this right is limited only to cases instituted upon a companyplaint. On behalf of the appellants it is argued that the case against them was number instituted on any companyplaint but was instituted on a police report. The Code does number companytain any definition of the words institution of a case. It is clear however and indeed number disputed, that a case can be said to be instituted in a companyrt only when the companyrt takes companynizance of the offence alleged therein. Section 190 1 of the Code of Criminal Procedure companytains the provision for companynizance of offences by Magistrates. It provides for three ways in which such companynizance can be taken. The first is on receiving a companyplaint of facts which companystitute such offence the second is on a report in writing of such facts--that is, facts companystituting the offence--made by any police officer the third is upon information received from any person other than a police officer or upon the Magistrates own knowledge or suspicion that such offence has been companymitted. Section 193 provides for companynizance of offences being taken by companyrts of sessions on companymitment to it by a Magistrate duly empowered in that behalf. Section 194 provides for companynizance being taken. by the High Court of offences upon a companymitment made to it in the manner provided in the Code. An examination of these provisions makes it clear that when a Magistrate takes companynizance of an offence upon receiving a. companyplaint of facts which companystitute such offence, a case is instituted in the Magistrates Court and such a case is one instituted on a companyplaint. Again, when a Magistrate takes companynizance of any offence upon a report in writing of such. facts made by any police officer it is a case instituted in the Magistrates companyrt on a police report. To decide whether the case in which the appellants were first acquitted and thereafter companyvicted was instituted on a companyplaint or number, it is necessary to find out whether the Sub-Divisional Magistrate, Gopalgunj, in whose Court the case was instituted, took companynizance of the offences in question on the companyplaint of Bhadai Sah filed in his Court 0n November 22, 1956 or on the report of the Sub-Inspector of Police dated the 13th December, 1956. It is well settled number that when on a petition of companyplaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken companynizance of the offences mentioned in the companyplaint. When however he applies his mind number for such purpose but for purposes of ordering investigation under s. 156 3 or issues a search warrant for the purpose of investigation he cannot be said to have taken companynizance of any offence. It was so held by this Court in R. Chari v. State of U. P. 1 and again in Gopal Das v. State of, Assam 2 In the case before us the Magistrate after receipt of Bhadai Sahs companyplaint proceeded to examine him under s. 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking companynizance of an offence on a companyplaint shall at once examine the companyplainant and the witnesses present, if any, upon oath. This examination by the Magistrate under s. 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take companynizance of the offences mentioned in the companyplaint. After companypleting such examination and recording the substance of it to writing as required by s. 200 the Magistrate companyld have issued process at once under s. 204 of the Code of Criminal Procedure or companyld have dismissed the companyplaint under s. 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these companyrses, to take action under s. 202 of the Code of Criminal Procedure. That section empowers the Magistrate to postpone the issue of process for companypelling the attendance of persons companyplained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magis 1 1951 S.C.R. 312. A.I.R 1961 S.C. 986. trate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the companyplaint. If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into companysideration before the Magistrate takes any action under s. 203 of the Code of Criminal Procedure. We find that in the case before us the Magistrate after companypleting the examination under s. 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words -- Examined the companyplaint on s.a. The offence is companynizable one. To S.I. Bakunthpur for instituting a case and report by 12.12.56. If the learned Magistrate had used the words for investigation instead of the words for instituting a case the order would clearly be under s. 202 01 the Code of Criminal Procedure. We do number think. that the fact that he used the words for instituting a case makes any difference. It has to be numbericed that the Magistrate was number bound to take companynizance of the offences on receipt of the companyplaint. He companyld have, without taking companynizance, directed an investigation of the case by the police under s. 156 3 of the Code of Criminal Procedure. Once however he took companynizance he companyld order investigation by the police only under s. 202 of the Code of Criminal Procedure and number under s. 156 3 of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under s. 200 of the Code of Criminal Procedure, that he had taken companynizance of the offences mentioned in the companyplaint, it was open to him to order investigation only under s. 202 of the Code of Criminal Procedure and number under s. 156 3 of the Code. It would be proper in these circumstances to hold that though the Magistrate used the words for instituting a case in this order of November 22, 1956 he was actually taking action under s. 202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act. The fact that the Sub-Inspector of Police treated the companyy of the petition of companyplaint as a first in formation report and submitted charge-sheet against the accused persons cannot make any difference. In the view we have taken of the order passed by the Magistrate on November 22, 1956, the report made by the police officer though purporting to be a report under s. 173 of the Code of Criminal Procedure should be treated in law to be a report only under s. 202 of the Code of Criminal Procedure. Relying on the provisions in s. 190 of the Code that companynizance companyld be taken by the Magistrate on the report of the police officer the learned companynsel for the appellants argued that when the Magistrate made the order on November 22, 1956 his intention was that he would take companynizance only after receipt of the report of the police officer and that companynizance should be held to have been taken only after that report was actually received in the shape of a charge- sheet under s. 173 of the Code, after December 13, 1956. The insuperable difficulty in the way of this argument, however, is the fact that the Magistrate had already examined the companyplainant under s. 200 of the Code of Criminal Procedure. That examination proceeded on the basis that he had taken companynizance and in the face of this action it is number possible to say that companynizance had number already been taken when he made the order to sub-Inspector, Baikunthpur, for instituting a case and report by 12.12.56. Cognizance having already been taken by the Magistrate before he made. the order there was numberscope of companynizance being taken afresh of the same offence after the police officers report was received. There is thus numberescape from the companyclusion that the case was instituted on Bhadai Sahs companyplaint on November 22, 1956 and number on the police report submitted later toy the Police Sub-Inspector, Baikun- thpur. The companytention that the appeal did number lie under s. 417 3 of the Code of Criminal Procedure must therefore be rejected. The next companytention raised on behalf of the appellants is that the High Court was number justified in interfering with the order of acquittal passed by the learned Assistant Sessions Judge. The reasoning on which the learned Assistant Sessions Judge rejected the evidence of the prosecution witnesses and the reasons for which the learned Judges of the High Court were of opinion that there was numberreal effort by the learned Sessions Judge to assess the credibility of the evidence have been placed before us. It is quite clear that the High Court examined the matter fully and carefully and on a detailed companysideration of the evidence came to the companyclusion that assessment of the evidence had resulted in a serious failure of justice. The principles laid down by this Court in a series of cases as regards interference with orders of acquittal have been companyrectly followed by the High Court. There is numberhing, therefore, that would justify us in reassessing the evidence for ourselves. As relevant parts of the evidence were however placed before us, we think it proper to state that on a companysideration of such evidence we are satisfied that the decision of the High Court is companyrect. As a last resort the learned companynsel for the appellants argued that the Magistrate had acted without jurisdiction in asking the police to institute a case and so the proceedings subsequent to that order were all void. As we have already pointed out, the order of the Magistrate asking the police to institute a case and to send a report should properly and reasonably be read as one made under s. 202 of the Code of Criminal Procedure. So, the argument that the learned Magistrate acted without jurisdiction cannot be accepted. At most it might be said that in so far as the learned Magistrate asked the police to institute a case he acted irregularly. There is absolutely numberreason, however, to think that irregularity has resulted in any failure justice. The order of companyviction and sentence passed by the High Court cannot be reversed or altered on account of that irregularity.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE, JURISDICTION Civil Appeal No. 324 of 1962. Appeal from the judgment and decree dated August 8, 1960 of the Kerala High Court, in O. P. No. 97 of 1953. B. Pai, J. B. Dadachanji, O. C. mathur and Ravinder Narain, for the appellant. V. Gupte, Additional Solicitor-General of India, R. Ganapathy lyer, P. D. Menon and R. H. Dhebar, for the respondent. 1963. April 9. The judgment of the Court was delivered by GAjENDRAGADKAR J.-The short question which arises in this appeal is whether the factory run by the appellant, the Associated Industries P Ltd., Qulion, falls within s. 1 3 of the employees Provident Funds Act, 1952 No. 19 of 1952 hereinafter called the Act . The appellant is a Company which runs a tile factory and an engineering works at Quilon. The tile factory began its career in July, 1943, and the engineering works in September, 1950. It is companymon ground that these two industries are separate and distinct and that they are carried on by the same Company and on the same premises. It is also companymon ground that a licence issued under the Factories Act, 1948, has been issued to the appellant for the entire premises and it is under this licence that the said premises arc allowed to be used as one factory under the said Act and the rules framed thereunder. It appears that the respondent, the Regional Provident-Fund Commissioner, Vanchiyoor, Trivandrum, intimated to the appellant on March 10, 1953, that the Act as well as the scheme framed under it were applicable to the appellants factory, and so, the appellant was called upon to deposit in the SubOffice of the Imperial Bank of India the companytribu- tions and administrative charges as required by s. 6 of the Act. The same requisition was repeated on March 25, 1953 and April 24, 1953. The appellant disputed the companyrectness of the view taken by the respondent that the appellants factory fell under the purview of the Act, and so, it refused to companyply with the respondents requisition. Thereupon, the respondent wrote to the appellant on June 16, 1953 informing it that appropriate action would be taken to companypel the appellant to make the necessary deposit and submit returns as required by the Act in case it failed to companyply with the numberices issued in that behalf. At this stage, the appellant moved the High Court of Kerala by a writ petition O. P. No. 97/1953 in which it claimed a writ of certiorari quashing the numberices issued by the respondent against it, and restraining the respondent from proceeding further in the matter and for other incidental reliefs. The main companytention raised by the appellant before the High Court was that the appellants factory was number an establishment to which s. 1 3 of the Act applied. The High Court has rejected this companytention. Then it was urged before the High Court on behalf of the appellant that the effect of the numberices served on the appellant by the respondent was retrospective in character and it was urged that the said numberices were illegal. This argument was also rejected by the High Court. I he appellant further companytended before the High Court that since for the relevant period the employees had number made their companytributions, it would be inequitable to enforce the numberices against the appellant. The High Court numbericed the fact that it had been companyceded by the respondent that he did number propose to companylect the employees share of the companytribution to the fund for the relevant period from the appellant, and it held that the companycession so made was proper and fair and so, there was numbersubstance in the grievance made by the appellant that giving effect to the numberices served on it by the respondent would be inequitable and unjust. On these findings, the writ petition filed by the appellant was dismissed with companyts, It is against this order that the appellant has companye to this Court with a certificate granted by the High Court. The principal point which is sought to be raised by Mr. Pai on behalf of the appellant in this appeal is companycluded by a recent decision of this Court in The Regional Provident Fund Commissioner, Bombay v. 1 Shree Krishna Metal Manufacturing Co., Bhandra, and 2 Oudh Sugar Mills Ltd. 1 . It would be numbericed that the relevant sections which fell to be companystrued in dealing with the appellants companytention are s. 1 3 , s. 2 g and i and s. 6 of the Act. Section 1 3 a provides, inter alia, that subject to the provisions companytained in s. 16, the Act applies to every-establishment which is a factory engaged in any industry specified in Schedule I and in, which 50 or more persons are employed the numerical requirement of 50 has been reduced to 20 by an Amending Act of 1960. Section 2 g A.1,R. 1962 B.C. 1536. defines a factory as meaning any premises, including the precincts thereof, in any part of which a manufacturing process is being carried on or is ordinarily so carried on, whether with the aid of power or-without the aid of power and s. 2 i defines an industry as meaning - any industry specified in Schedule I, and includes any other industry added to the Schedule by numberification under section 4. Section 6 prescribes for the levy of companytributions and deals with other matters which may be provided for in Schemes and in accordance with the provisions of this section, the Employees Provident Fund Scheme of 1952 has been framed. In the case of the Regional Provident Fund Commissioner, Bombay, 1 this Court has held that s. 1 3 a does number lend itself to the companystruction that it is companyfined to factories exclusively engaged in any industry specified in Schedule I. It was observed in that companynection that when the legislature has described factories as factories engaged in any industry, it did number intend that the said factories should be exclusively engaged in the industry specified in Sch. I. Consistently with this view, this Court further observed that the word factory used in S. 1 3 a has a companyprehensive meaning and it includes premises in which any manufacturing process is being carried on as described in the definition, and so the factory engaged in any industry specified in Sch. I does number necessarily mean a factory exclusively engaged in the particular industry specified in the said Schedule. in companystruing the scope of s. 1 3 a this Court held that companyposite factories came within its purview and that the fact that a factory is engaged in industrial activities some of which fall under the Schedule and some do number, will take the factory out of the purview of s. 1 3 a having dealt with this aspect of the matter, this Court proceeded to companysider the question as to A I. R. 1962 S. C. 1536. whether numerical requirement of the employment of 50 persons, as the section then stood, applied to the factory or to the industry, and it held that the said test applied number to the industry but to the factory. Thus, the companyclusion was that in order that a factory should fall under s. 1 3 a , it must be shown that it is engaged in any such industry as is specified in Sch. I and the number of its employees should number be less than 50. This decision makes it clear that s. 1 3 a is number companyfined only to factories which are exclusively engaged in industrial work to which Sch. I applies,but it also takes in companyposite factories which run industries some of which fall under Sch. I and some do number. In order to make the position clear let us state the true legal position in respect of the scope of the application of s. 1 3 a in categorical terms. If the factory carries on one industry which falls under Sch. I and satisfies the requirement as to the number of employees prescribed -by the section, it clearly falls under s. 1 3 a . If the factory carries on more than one industry all of which fell under Sch. 1 and its numerical strengh satisfies the test prescribed in that behalf, it is an establishment under s. 1 3 a . If a factory runs more industries than one, one of which is the primary and the dominant industry and the others are its feeders and can be regarded as subsidiary, minor, or incidental industries in that sense, then the character of the dominant and primary industry will determine the question as to whether the factory is an establishment under s. 1 3 a or number. If the dominant and primary industry falls under Sch. I, the fact that the subsidiary industries do number fall under Sch. I will number help to exclude the application of s. 1 3 a . If the dominant and primary industry does number fall under Sch. 1, but one or more subsidiary, incidental, minor and feeding industries fall under Sch. I, then S. 1 3 a will number apply. If the factory runs more industries than one all of which are independent of each other and companystitute separate and distinct industries, s. 1 3 a will apply to the factory even if one or more., but -not all, of the industries run by the factory fall under Sch. I. The question about the subsidiary, minor, or feeding industries can legitimately arise only where it is shown that the factory is really started for the purpose of running one primary industry and has undertaken other subsidiary industries only for the purpose of subserving and feeding the purposes and objects of the primary industry in such a case, these minor industries merely serve as departments of the primary industry otherwise if the industries run by a factory are independent, or are number so integrated as to be treated as part of the same industry, the question about the principal and the dominant character of one industry as against the minor or subsidiary character of another industry does number fall to be companysidered. It is in the light of this position that we may revert to the actual decision in The Regional Provident Fund Commissioner, Bombay 1 . In that case, this Court was dealing with the cases of Shree Krishna Metal Manufacturing Co., and Oudh Sugar Mills Ltd. The Metal Company carried on four different kinds of activities and it was held that its industrial activity which fell under Sch. I was neither minor, number subsidiary, number incidental to the other activities. In other words, the industry which the companypany ran and which fell under Sch. I was independent of the other industries companyducted by the Company, and so, it was held that the question about one industry being subsidiary, minor, or incidental did number arise. In the result, the Companys factory was found to fall under s. 1 3 a . On the other hand, the case of the Oudh Sugar Mills stood on a different basis. The primary activity A. I. R. 1962 S C. 1536. of the mills was the manufacture of hydrogenated vegetable oil named Vanasada and its by-products, such as soap, oil- cakes, etc. It appeared that a department of the Mills manufactured companytainers and -this part of the industrial activity of the Mills fell under Sch. I. Evidence, however, showed that the fabrication of the companytainers had been undertaken by the Mills only as a feeder activity which was integrally companynected with its primary business of producing and marketing vegetable oil, and since the primary business was. outside Sch. 1, the factory as a whole was held to be outside s. 1 3 a . It is true that since this Court dealt with the two respective cases of the Company and the, Mills in one judgment, the test as to the principal character of the industrial activity of one industry in relation to the character of the minor industry came to be companysidered but the application of the said test became necessary essentially because of the case of the Oudh Sugar Mills. In the case of the Company, however, the several activities were number minor or subsidiary, but were independent , and it was held that the factory of the companypany fell under s. 1 3 a . Therefore, in our opinion, there is numberscope for the argument in the present case that the engineering industry which the appellant runs is number the primary or dominant industry but the manufacture of tiles is. Mr. Pai attempted to argue that though engineering industry run by the appellants factory falls under Sch. I,it employs only 24 workers whereas the tiles industry employs more than 50. He also relied on that fact that the tiles factory was started in 1943 and the engineering works in 1950, and his argument was that judged in the light of the fact that the tiles industry was started first, as well as companysidered by the application of the test of the strength of the employees working in the two industries,tiles industry should be treated to be the main, dominant and primary industry of the factory, and so, the factory, as a whole, should be held to be outside s. 1 3 a . In our opinion, this argument is plainly untenable. If the tiles industry and the engineering industry are independent of each other, then numberquestion arises as to which is principal and which is subsidiary. As soon as it is shown that the factory is carrying on two industries independent of each other one of which falls under Sch. I, it becomes a companyposite factory to which s. 1 3 a applies. When s. 1 3 a requires that the factory should be engaged in any industry specified in Sch. I, companysiderations as to whether the industrial activity is major or minor can arise only where some activities are dominant and others are of the nature of feeding activities, but number otherwise. Where the industrial activities are independent and the factory is running separate industries within the same premises and as part of the same establishment and under same licence, it is difficult to accept the argument that in dealing with such a factory, enquiry would be relevant as to which of the industries is dominant and primary, and which is number. Therefore, in our opinion, the High Court was plainly right in rejecting the appellants case that its factory did number attract the provisions of s. 1 3 a of the Act. Mr. Pai wanted to companytend that if the appellants factory is treated as falling under s. 1 3 a , companyplications may arise by reason of the fact that the rate of companytribution initially prescribed by s. 6 has been amended in 1962 by the Amending Act No. 48 of 1962. Section 6 of the unamended Act provides, inter alia, that the companytribution to be paid by the employer to the fund shall be 6-1/4 of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees, and the employees companytribution shall be equal to the companytribution payable by the employer in respect of him. This section further provided that the employee was companypetent to make a higher companytribution number exceeding 8 and one-third per cent of his emoluments specified in the said section. By the amendment made in 1962, this rate has been enhanced to 8 in respect of any establishment or class of establishments which the Central Government, after making such enquiry as it deems fit, may by numberification in the official Gazette specify. We were told that in regard to the engineering industry., this amended sub-section has been extended by a numberification, and Mr. Pais apprehension is that if the factory of the appellant is held to be an establishment to which s. 1 3 a applies on the ground that it is a companyposite factory Which runs several industries one of which falls under Sch. I, it is likely that the increased rate may be made applicable to the factory as a whole. We ought to add that Mr. Pai companyceded that subsequent to the decision of the appellants writ petition in the High Court, the tiles industry has also been included in Sch. I but the revised rate has been made applicable to it. Mr. Pai companytends that if the factory is treated as falling under s. 1 3 1 , a distinction should be made in the different industries run by the factory for the purpose of calculating the companytribution of the employer to the Provident Fund. We do number propose to deal with this companytention in the present appeal. That is a matter which may well have to be decided by the respondent, and it is number open to Mr. Pai to request this Court to decide such a hypothetical question in the present proceedings.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Petition No. 145 of 1963. Petition under Art. 32 of the Constitution of India, for the enforcement of fundamental rights. K. Garg, S. C. Agarawal, D. P. Singh and M. K. Ramamurthi for the Petitioner. Sen and P. K. Bose, for the respondents. September 11, 1963 . The judgment of the Court was delivered by, GAJENDRAGADKAR J.-The short question which this petition for Habeas Corpus raises for our decision is whether the order of detention passed against, and served on the petitioner Rameshwar Shaw while lie was in jail custody is justified by section 3 1 of the Preventive Detention Act, 1950 No. 4 of 1950 hereinafter called the Act . The answer to this question would naturally depend upon a fair and reasonable companystruction of the relevant clause of the said section. The District Magistrate, Burdwan, passed an Order on the 9th February, 1963, whereby he directed that the petitioner should be detained. The Order recites that the District Magistrate was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. This order was served on the petitioner on the 15th February, 1963, in Burdwan Jail where he had been kept as a result of a remand order passed by a companyrt of companypetent. Jurisdiction which had taken companynizance of a criminal companyplaint against him. As required by s. 7 1 of the Act, the grounds on which the petitioners detention had been ordered by the detaining authority were companymunicated to him on the same day. In due companyrse, the State Government approved of the said Order on the 16th February, 1963. The case of the detenu was then placed before the Advisory Board which recommended the companytinuance of the petitioners detention. Thereafter, the State Government by its Order passed on the 23rd April, 1963 companyfirmed the detention of the petitioner under s. 11 of the Act. This Order of the State Government was ultimately served on the petitioner in the Burdwan Jail on the 29th April, 1963. The grounds for the petitioners detention which have been served on him indicate that material had been placed before the detaining authority which showed that the petitioner was indulging in anti-social activities and that in pursuance of the said activities, he had threatened many people with assault and in fact had assaulted them. These grounds further show that the petitioner had disturbed public order in areas within Faridpur, Andal, Raniganj and Assansol police stations within the district of Burdwan, and five instances were cited in support of this ground. The numberice companyveying the said grounds to the petitioner further alleged that as a result of the criminal activities of the petitioner set out in the numberice, companyfusion had been created in the lives of the peaceful citizens of the areas, and so, the detaining authority was satisfied that it was necessary to detain the petitioner to prevent him from indulging in prejudicial activities. The numberice further informed the petitioner that if he wanted to make a representation against the order of detention passed by the detaining authority, he should take steps to forward his representation as indicated in the numberice. He was also told that in case his representation was received, his case would be forwarded to the Advisory Board, and if he desired to address the Advisory Board personally, he might make a request in that behalf and the same would be companysidered. Mr. Garg for the petitioner has challenged validity of the petitioners detention on several grounds. He companytends that the detention of the petitioner is number justified by the provisions of s. 3 1 of the Act and as such is invalid. He also.argues that the order of detention has been passed against the petitioner by the District Magistrate, Burdwan, mala fide. According to him, the material facts stated in the numberice served on the petitioner setting forth the grounds for his detention, are imaginary and numberexistent and some of the grounds are vague and irrelevant and he also companytends that the affidavits filed on behalf of the respondents clearly indicate that some of the grounds on which the detaining authority relies and which must therefore, have weighed in his mind at the time when the detention order was passed, were number disclosed to the petitioner when numberice of grounds was served on him, and that makes the companymunication of the grounds materially defective it also affected the petitioners right to make an effective representation. These infirmities in the numberice, says Mr. Garg, make the order of detention invalid. It has also been suggested that the petitioner was in fact denied an opportunity to make his representation to the Advisory Board and that also introduces an infirmity in the order. Since we have companye to the companyclusion that the first companytention raised by Mr. Garg is well-founded, we do number propose to companysider the merits of the other arguments urged by him in support of his petition. Let us then read section 3 1 to determine the true scope and effect of the relevant clause on which Mr. Gargs argument is founded. Section 3 1 provides inter alia, that the Central Government or the State Government may- a if satisfied with respect of any person that with a view to preventing him from acting in any manner prejudicial to ii the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. It will be numbericed that before an order of detention can be validly made by the detaining authorities specified by s. 3 2 , the authority must be satisfied that the detention of the person is necessary in order to prevent him from acting in any prejudicial manner as indicated in clauses i to iii of s. 3 1 a . It is hardly necessary to emphasise that since the Act authorises the preventive detention of citizens without a trial, the material provisions of the Act must be strictly companystrued and all safeguards which the Act has deliberately provided for the protection of citizens must be liberally interpreted. The argument which Mr. Garg has urged before us is that if a person is already under detention, it would number be reasonably possible for the appropriate authority to satisfy himself that the detention of such a person is necessary in order to prevent him from acting in any prejudicial manner. The basis of the order of detention which the authority is empowered to pass against a person under s. 3 1 a is that if the said order is number passed against him, he may act in a prejudicial manner. In other words the authority companysiders the material brought before it in respect of a person, examines the said material and first reaches a companyclusion that the material shows that the said person may indulge in prejudicial activities if he is number prevented from doing so by an order of detention. How can the authority companye to the companyclusion that a person who is in jail custody may act in a prejudicial manner unless he is detained? The scheme of the section postulates that if an order of detention is number passed against ,a person, he would be free and able to act in a prejudicial manner. In other words, at the time when the order of detention is brought into force, the person sought to be detained must have freedom of action. That alone can justify the requirement of the section that the order of detention is passed in order to prevent a prejudicial acti- vity of the person proposed to be detained. That, in substance, is the companytention on which the validity of the petitioners detention is challenged before us. It is true that the satisfaction of the detaining authority to which s. 3 1 a refers is his subjective satisfaction, and so is number justiciable. Therefore, it would number be open to the detenu to ask the Court to companysider the question as to whether the said satisfaction of the detaining authority can be justified by the application of objective tests. It would number be open, for instance, to the detenu to companytend that the grounds supplied to him do number necessarily or reasonably lead to the companyclusion that if he is number detained, he would indulge in prejudicial activities. The reasonableness of the satisfaction of the detaining authority cannot be questioned in a Court of law the adequacy of the material on which the said satisfaction purports to rest also cannot be examined in a Court of law. That is the effect of the true legal position in regard to the satisfaction companytemplated by section 3 1 a , vide The State of Bombay v. Atma Ram Sridhar Vaidya 1 . There is also numberdoubt that if any of the grounds furnished to the detenu are found to be irrelevant while companysidering the application of clauses i to iii of s. 3 1 a and in that sense are foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge and the detention order liable to be quashed. Similarly, if some of the grounds supplied to the detenu are so vague that they would virtually deprive the detenu of his statutory right of making a representation, that again may introduce a serious infirmity in the order of his detention. If however, the grounds on which the order of detention proceeds are relevant and germane to the matters which fall to be companysidered under s. 3 1 a , it would number be open to the detenu to challenge the order of detention by arguing that the satisfaction of the detaining authority is number reasonably based on any of the said grounds. It is, however, necessary to emphasise in this companynection that though the satisfaction of the detaining authority 1 1951 S.C.R. 167, 176. companytemplated by s. 3 1 a is the subjective satisfaction of the said authority, cases may arise where the detenu may challenge the validity of his detention on the ground of mala fides and in support of the said plea urge that along with other facts which show mala fides, the Court may also companysider his grievance that the grounds served on him cannot possibly or rationally support the companyclusion drawn against him by the detaining authority. It is only in this incidental manner and in support of the plea of mala fides that this question can become justiciable otherwise the reasonableness or propriety of the said satisfaction companytemplated by s. 3 1 a cannot be questioned before the Courts. It is also true that in deciding the question as to whether it is necessary to detain a person, the authority has to be satisfied that if the said person is number detained, he may act in a prejudicial manner, and this companyclusion can be reasonably reached by the authority generally in the light of the evidence about the past prejudicial activities of the said person. When evidence is placed before the authority in respect of such past companyduct of the person, the authority has to examine the said evidence and decide whether it is necessary to detain the said person in order to prevent him from acting in a prejudicial manner. That is why this Court has held in Ujagar Singh v. The State of Punjab and jagjit Singh -v. The State of Punjab 1 that the past companyduct or antecedent history of a person can be taken into account in making a detention order, and as a matter of fact, it is largely from prior events showing tendencies or inclinations of a man that an inference companyld be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. In this companynection, it is, however, necessary to bear in mind that the past companyduct or antecedent history of the person on which the authority purports to act, should ordinarily be proximate in point of time and should have a rational companynection with the companyclusion that the detention of the person is necessary. It would, for instance, be irrational to take into account the companyduct of 1 1952 S.C.R. 756. the person which took plate ten years before the date of his detention and say that even though after the said incident took place numberhing is known against the person indicating his tendency to act in a prejudicial manner, even so on the strength of the said incident which is ten years old, the authority is satisfied that his detention is necessary. Inother words, where an authority is acting bona fide andconsidering the question as to whether a person should be detained, he would naturally expect that evidence on which the said companyclusion is ultimately going to rest must be evidence of his past companyduct or antecedent history which reasonably and rationally justifies the companyclusion that if the said person is number detained, he may indulge in prejudicial activities. We ought to add that it is both inexpedient and undesirable to lay down any inflexible test. The question about the validity of the satisfaction of the authority will have to be companysidered on the facts of each case. The detention of a person without a trial is a very serious encroachment on his personal freedom, and so, at every stage, all questions in relation to the said detention must be carefully and solemnly companysidered. Mr. Sen for the respondent has companytended that it is, open to the authority to pass an order of detention against a person who may be at that time in detention, and in support of this argument, he has relied on the decision of the Federal Court in Basanta Chandra Ghose v. Emperor 1 . In that case the main question which arose for the decision of the Court was, however, of a different character. It was urged on behalf of the detenu before the Court that where an earlier order of detention passed against him was held to be defective, though on formal grounds, it was number open to the authority to pass a subsequent order of detention against him on the same grounds as had been set out in support of the earlier order. This plea was rejected by the Court. Spems C.J. observed that where the earlier order of detention is held defective merely on formal grounds, there is numberhing to preclude a proper order of detention being based on the pre- existing grounds themselves, especially in cases in- A.I.R. 1945 F.C. 18. which the sufficiency of the grounds is number examinable by the Courts. It is in that companynection that the learned C.J. added that there is equally numberforce in the companytention that numberorder of detention can be passed against a person who is already under detention. As an abstract proposition of law, there may number be any doubt that s. 3 1 a does number preclude the authority from passing an order of detention against a person whilst he is in detention or in jail but the relevant facts in companynection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person his been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the companysiderations of proximity of time will number be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to companysider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid ,order of detention a few days before the person is likely to be released. The antecedent history and the past companyduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational companynection with the companyclusion ,drawn by the authority that the detention of the person after his release is necessary. It may number be easy to discover such rational companynection between the antecedent history of the person who has been sentenced to ten years rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. The question which still remains to be companysidered is can a person in jail custody, like the petitioner, be served with an order of detention whilst he is in such custody? In dealing with this point, it is necessary to state the relevant facts which are number in dispute. The petitioner was arrested on the 25th January, 1963. He has been in custody ever since. On the 15th February, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is was it open to the detaining authority to companye to the companyclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in jail? We have already seen the logical process which must be followed by the authority in taking action under s. 3 1 a . The first stage in the process is to examine the material adduced against a person to show either from his companyduct or his antecedent history that he has been acting in a prejudicial manner. If the said material appears satisfactory to the authority, then the authority has to companysider whether it is likely that the said person would act in a prejudicial manner in future if he is number prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention order can be properly made. It is obvious that before an authority can legitimately companye to the companyclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is number detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is number detained, he would act in a prejudicial manner At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is number detained and that is a companysideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under s. 3 1 a , and this basis is clearly absent in the case of the petitioner. Therefore, we see numberescape from the companyclusion that the detention of the petitioner in the circumstances of this case, is number justified by s. 3 1 a and is outside its purview. The District Magistrate, Burdwan who ordered the detention of the detenu acted outside his powers companyferred on him by s. 3 1 a when he held that it was necessary to detain the petitioner in order to prevent him from acting in a prejudicial manner. That being so, we must hold that Mr. Garg is right when he companytends that the detention of the petitioner is number justified by s. 3 1 a . In this company- nection, we may add that the Assam High Court in two of its decisions appears to have taken the same view about the scope and effect of the relevant provisions of s. 3 1 a of the Act, vide Labaram Deka Barua Anr. v. The State 1 , and Haridas Deka v. State 2 . Mr. Sen has, however, relied on the decision of the Assam High Court in Sahadat Ali v. The State of Assam Ors. 3 . In that case it appeared that the Government had decided in public interest to abandon the prosecution which was pending against the detenu. The said decision was duly companyveyed to the police and so, the police reported under section 173 of the Criminal Procedure Code for the release of the detenu. In anticipation of this release, the order of detention was passed against him and it was served on him after he was ac- tually released. These facts clearly illustrate how an order of detention can be passed against a person even though he may be in detention or jail custody, and also show that the,-said order should be served on the detenu after he is released. The test of proximity of time is fully sa- tisfied in such a case and numberinvalidity or infirmity is attached to the making of the order or its service. Therefore, we do number think that the decision in Sahadat Ali case is of any assistance to Mr. Sen. A.I.R. 1951 Assam 43 A.I.R. 1952 Assam 175. A.I.R. 1953 Assam 97. The result is, the petition succeeds and the order of detention passed against the petitioner by the District Ma- gistrate, Burdwan, on the 9th February, 1963, is set aside.

Case appeal was accepted by the Supreme Court

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

Case appeal was rejected by the Supreme Court

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 Kan- nada 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-Chan- cellor 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 inde- pendent 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 ordi- nances 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 numberi- fications by which applications had been called for by ap- pellant 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 know- ledge 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 company- cerned. 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 re- ferred 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 assu- rance 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.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 764 to 766 of 1963. Appeals by special leave from the order dated November 16, 1962, of the Industrial Court Madhya Pradesh at Indore in Appeals Nos. 2 E.S.O./1962, 3/E.S.O./1962 and 4/E.S.O./1962 respectively. V. Gupte, Additional Solicitor-General, Y. Kumar and B. Dhebar, for the appellants. LN. Shroff, for respondent No. 3 in C.A. No. 746/63 . K. Ramamurth v. R.K. Garg, S.C. Agarwal and D.P. Singh, for respondent NO. 1 in C.A. No.756/63 . November 8, 1963. The Judgment of the Court was delivered by DAs GUPTA J.-These three appeals are directed against an order of the Industrial Court, Madhya Pradesh, in three appeals from an order made by one Mr. I.B. Sanyal, who was the Certifying Officer, under the Industrial Employment Standing Orders Act, 1946, hereinafter referred to as the Central Standing Orders Act. By this order made on August 6, 1962, Mr. Sanyal had certified the draft standing orders submitted by the General Manager, Bhilai Steel Project, Madhya Pradesh. On behalf of the several Unions, including the three Unions, who are the respondents before us, an objection was raised that Mr. Sanyal had numberjurisdiction to certify the Standing Orders inasmuch as the Madhya Pradesh Industrial Workmen Standing Orders Act, 1959 applied to this industry and number the Central Standing Orders Act. Mr. Sanyal overruled this objection and passed his order, as already stated, on August 6, 1962 certifying the draft standing orders. The Industrial Court, Madhya Pradesh, to which the Unions appealed against the order of certification has however held that Mr. Sanyal had numberjurisdiction to certify the Standing Orders and it was the Labour Commissioner, Madhya Pradesh, who was companypetent to certify these. Allowing the appeals the Industrial Court set aside the order of the Certifying Officer as void, being without jurisdiction. It is against this order that the present appeals have been filed after obtaining special leave of this Court. Before us, it is numberlonger disputed that on June 9, 1960 when the draft standing orders were submitted to the Certifying Officer under the Central Standing Orders Act that Officer bad numberjurisdiction and the Labour Commissioner, Madhya Pradesh, had jurisdiction to certify them. It has however been urged before us that long before the date on which Mr. Sanyal made his order certifying the standing orders the Central Standing Orders Act had become applicable to this industry to the exclusion of the Madhya Pradesh Industrial Employment Standing Orders Act, and so, the certification companyld number be held to be without jurisdiction. We have numberdoubt that if before the actual date of certification Mr. Sanyal as the Certifying Officer under the Central Standing Orders Act had acquired jurisdiction the certification cannot be held to be void merely because on the date when the orders were submitted before him he had numberjurisdiction. vide Municipal Board, Pushkar v. State Transport Authority, Rajasthan Others 1 . The position in law is that the application for certi- fication of the standing orders, though invalid at the time it was made because the officer had number 1 1963 Supp. 2 S.C.R. 373. jurisdiction to deal with them, became a valid application when he did acquire jurisdiction. To put the matter in another way, the application should be deemed to have been renewed immediately after the officer acquired jurisdiction in the matter and so, that jurisdiction having companytinued up to the date of the certification, the certification also would be with jurisdiction and binding. The question that requires examination therefore is whether before the date of certification i.e., August 6, 1962, the Certifying Officer under the Central Standing Orders Act bad become companypetent to certify the standing orders for the Bhilai Steel Project. The answer to this question depends on whether on that date, i.e., August 6, 1962 the Central Standing Orders Act or the Madhya Pradesh Industrial Employment Standing Orders Act applied to the Bhilai Steel Industry. The Central Act, the Industrial Employment Standing Orders Act, 1946, came into force on April 23, 1946. Shortly after this the C.P. Berar Industrial Disputes Settlement Act, 1947 was enacted. It extended to the whole of Madhya Pradesh. Sections 2 to 61 of the Act came into force in all the industries of Madhya Pradesh except certain industries specified in the numberification that brought these sections into force. This numberification was dated November 20, 1947. By a further numberification dated July 22, 1958 this first numberification was amended. The companysequence of the amendment was that ss. 2 to 61 of the Act became applicable with effect from August 1, 1958 to the Steel Industry at Bhilai. In 1959 the Madhya Pradesh Legislature passed a separate Act, Act No. XIX of 1959 dealing with matters regarding standing orders for industrial workmen. This repealed s. 30 of the C.P. Berar Industrial Disputes Settlement Act, 1947. The result was that from the date on which Act. XIX of 1959 came into force, i.e., December 31, 1960, s. 30 of the C.P. Berar Industrial Disputes Settlement Act, 1047, was numberlonger in force in Madhya Pradesh. The provisions of Act XIX of 1959 as regards the certification of standing orders were also number applicable to Bhilai because s. 1, sub-s. 3 of this Act while laying down that the Act applied to every industrial establishment wherein 20 or more workmen were employed and to such class or classes of other industrial establishments as the State Government might by numberification specify was made subject to a proviso in these words- Provided that it shall number apply except with the companysent of the Central Government to an industrial establishment under the companytrol of the Central Government or a Railway Adminis- tration or mines or oil-fields. Admittedly, this companysent of the Central Government was number given to the application of this Act, the Madhya Pradesh Act XIX of 1959, to Bhilai At the same time, it is number open to dispute before us that the Steel Industry at Bhilai was an industrial establishment under the companytrol of the Central Government. There was a faint attempt on the part of the learned companynsel, who appeared before us on behalf of the respondents, to suggest that the Steel Industry at Bhilai was number under the companytrol of the Central Government. No such point appears to have been raised either before Mr. Sanyal or the Industrial Court. So, we did number permit the respondents to raise this point for the first time here. It may also be mentioned in this companynection that in the very numberification made by the Madhya Pradesh Government on July 22, 1958, that Government made the definite statement that the Steel Industry at Bhilai was carried on under the authority of the Central Government. We think it reasonable to presume for the purpose of these appeals that this statement made by the Government of Madhya Pradesh was companyrect. It follows therefore that the Bhilai Steel Industry was an industrial establishment under the companytrol of the Central Government within the meaning of the proviso to s. 1, sub-s. 3 of Act XIX of 1959 and companysequently in the absence of the companysent of the Central Government it did number apply to the Bhilai Steel Industry. On and after December 31, 1960, therefore neither s. 30 of the 1947 Act number Act XIX of 1959 applied to the Bhilai Steel Industry. There is numberescape therefore from the companyclusion that on and after December 31, 1960, the Bhilai Steel Industry was governed as regards the matter of standing orders by the Central Standing Orders Act of 1946. This companytinued to be the position till November 25, 1961 when Act XIX of 1959 was repealed and was replaced by the Madhya Pradesh Act XXVI of 1961, Madhya Pradesh Industrial Establishment Standing Orders Act, 1961. It would seem that this Act was applicable to the Bhilai Steel Industry as it did number companytain any provision similar to the one in section 1, sub-s. 3 of the 1959 Act. The Madhya Pradesh Act No. XXVI of 1961 was however amended in 1962 by the Madhya Pradesh Act 5 of 1962. This Amending Act added to sub-s. 1 of s. 2 of the 1961 Act the following provision- Provided that it shall number apply to an undertaking carried on by or under the authority of the Central Government or a railway administration or a mine or an oil field. The effect of this was that Act XXVI of 1961 which became applicable to the Bhilai Steel Industry on November 25, 1961 ceased to be applicable to the Bhilai Steel Industry on and from April 29, 1962, when the President assented to the Amending Act. After this date the position again became the same as it was immediately before the Madhya Pradesh Act 26 of 1961 came into force. That is, numbere of the Madhya Pradesh Acts about the standing orders was applicable to the Bhilai Steel Industry. So, the field was open for the Central Standing Orders Act to operate in respect of the Bhilai Steel Industry on and from the date when the Madhya Pradesh Act V of 1962 came into force. We have therefore reached the companyclusion that for sometime before August 6, 1962 when the order of certification was passed, the Certifying Officer under the Central Government Standing Orders Act had become companypetent to certify the standing orders for the Bhilai Steel Industry. The Industrial Court took numbere of the position that on the matter of the standing orders the 1947 Act was repealed by the 1959 Act with effect from December 31, 1960. It was however of opinion that there being numberspecific saving clause in the Act of 1959 as regards the numberification of July 22, 1958, the Act of 1947 applied to the Bhilai Steel Industry and that numberification number having been superseded by any subsequent numberification it companytinued to be effective in respect of the Bhilai Steel Industry under s. 25 of the Madhya Pradesh General Clauses Act. On this view of the effect of s. 25 of the Madhya Pradesh General Clauses Act it based its companyclusion that the State Act companytinued to be applicable to the Bhilai Steel Industry. We are of opinion that s. 25 of the Madhya Pradesh General Clauses Act companyld number save the numberification in question after the 1947 Act was repealed. That section provides- Where any enactment is repealed and reenacted by a Madhya Pradesh Act with or without modification, then, unless it is otherwise expressly provided, any appointment, numberification, order, scheme, rule, regulation, form or bye-law made or issued under the repealed enactment shall, so far as it is number inconsistent with the provisions re-enacted, companytinue In force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, numberification, order, scheme, rule, regulation, form or bye-law made or issued under the provisions so re-enacted. It appears clear to us that the effect of the proviso to s. 1, sub-s. 3 of Act XIX of 1959 being that this new Act-the re-enacted legislation--did number apply to Bhilai the numberification already issued under the old Act was clearly inconsistent with the new legislation. Section 25 of the Madhya Pradesh General Clauses Act was therefore of numberavail and companyld number save that numberification. For the reasons mentioned above, we have companye to the companyclusion that though on June 9, 1960, when the draft standing orders were submitted to the Certifying Officer under the Central Standing Orders Act the Certifying Officer had numberjurisdiction to deal with them, the Officer bad acquired jurisdiction in the matter before August 6, 1962, when he passed the order certifying the standing orders. We, therefore, set aside the order of the Industrial Court, Madhya Pradesh, but as that Court has number companysidered the other objections raised by the Unions in their appeals against the certification of the standing orders, we direct that the appeals be heard by the Industrial Court and disposed of in accordance with law after deciding the objections raised on merits. The appeals are accordingly allowed.

Case appeal was accepted by the Supreme Court

CIVIL APPELATE JURISDICTION Civil Appeal No.257 of 1958. Appeal by special leave from the Award dated August 20, 1957, of the Industrial Court, Bombay, in Reference IC No. 197 of 1956. K. Daphtary Solicitor - General of India.S. N. Andley, J. Dadachanji and Rameshwar Nath,for the appellant. P. Maheshwari, for the respondent. N. Shroff, for Interveners Nos. 1 and 2. The Intervener No. 3 did number appear. 1960 January 22, The Judgment of the Court was delivered by SUBBA RAO J.-This appeal raises the question as to what extent the reserves can be deducted from the amount required for rehabilitation of plant and machinery and also as to the manner by which the deductible reserves can be ascertained. It would be enough if we narrated only the facts relevant to the question raised. The appellant, Khandesh Spinning and Weaving Mills Company Limited, is a textile mill and its factory is situate at Jalgaon. The respondent, Rashtriya Girni Kamgar Sangh, represents the employees of the appellant-Company. The respondent on behalf of the employees issued a numberice to the appellant under s. 42 2 of the Bombay Industrial Relations Act, 1946, demanding payment of reasonable bonus for the period from January 1, 1955 to -December 31, 1955. Negotiations in this regard having failed, the respondent made a reference to the Industrial Court under s. 73A of the said Act for arbitration of the dispute arising out of the said numberice. The arbitrator, i.e. the Industrial Court, following the Fall Bench Formula, ascertained the surplus to be Rs. 2.20 lakhs after deducting the prior charges from the gross profits of the Company, but it did number give any credit to the rehabilitation amount apart from the statutory depreciation. The Industrial Court disallowed this item for the following reasons It estimated the amount required for rehabilitation at Rs. 60 lakhs out of this amount it deducted Rs. 51 lakhs representing tile reserves and the balance of Rs. 9 lakhs spread over a period of 15 years gave the figure of Rs. 60,000 as the amount that should be set apart for the year in question for rehabilitation. As the statutory depreciation was Rs. 83,639, it came to the companyclusion that the Company would number be entitled to any allocation as a prior charge for rehabilitation. After excluding the said item of rehabilitation, it The fixed the surplus in a sum of Rs. 2.20 lakbs and awarded to the employees four months basic wages as bonus. The learned Solicitor General companytended that the Industrial Court accepted the position that the reserves were used as working capital, but deducted the said amount from the amount required for rehabilitation on a wrong and unjustified assumption that, as the amounts so required would be spent for rehabilitation over a companyrse of 15 years by instalments, the temporary user of the said reserves would number affect the question as they would be released in part or in whole in future years. He argued that this assumption was companytrary to the view expressed in decided cases and also the principle governing the ascertainment of the amount for rehabilitation purposes. On the companytrary the learned companynsel for the respondent argued that the Industrial Court only assumed that the reserves had been utilised as working capital, as in the view taken by it did number in the least matter whether the reserves were so utilised or number and that, even if that view was wrong, the appellant companyld number succeed, unless it proved by relevant and acceptable evidence that the reserves were so utilised and that it did number place before the Industrial Court any such evidence to prove that fact. The first ques- tion, therefore, is, what is the scope of the finding of the Industrial Court in this regard ? The Industrial Court in dealing with the companytentions of the parties before it observed as follows It is true that until some amount is required to be spent for rehabilitation, replacement or modernization, reserves must be used as working capital, but Shri Vimadalals argument overlooks that the amount required to be spent for rehabilitation over a companyrse of 15 years is number required to be spent all at once, but by installments over a long period. These observations did number record any finding that the reserves were used as working capital. It was only an assumption made by the Industrial Court, as, the view taken by it, it was immaterial whether the reserves were used as working capital or number. We do number think that the aforesaid opinion expressed by the Industrial Court is sound. In ascertaining the surplus for the purpose of fixing the bonus for a particular year, the state of affairs in that year is the guiding factor. If in a subsequent year any part of the reserves used as working capital is released, that amount will have to be taken into account in ascertaining the surplus for that year and so on for subsequent years otherwise it will lead to the anomaly of the reserves being excluded from the amount required for rehabilitation, though as a matter of fact the entire reserves were utilised as working capital, and though in future years they were expected to be released but in fact number so released. This would lead to a result inconsistent with the decisions on the subject which have clearly laid down that the reserves which have been used as working capital shall number be deducted from the amount fixed for rehabilitation. This result does number advance the case of the appellant unless it is able to prove by admissible evidence that it has used the reserves as working capital during the bonus year in question. The principles governing the reserves in this companytext are well settled. This Court in The Associated Cement Companies Ltd. v. It,3 Workmen 1 restated the principle thus at p. 970 Before actually awarding an appropriate amount in respect of rehabilitation for the bonus year certain . deductions have to be made. The first deduction is made on account of the breakdown value of the plant and machinery which is usually calculated at the rate of 50/ of the companyt price of the block in question. Then the depreciation and general liquid reserves available to the employer are deducted. The reserves which have already 1 1959 S.C.R. 925. been reasonably earmarked for specific purposes of the industry are, however, number taken into account in this companynection. Last of all the rehabilitation amount which may have been allowed to the employer in previous years would also have to be deducted if it appears that the amount was avail able at the time when it was awarded in the past and that it bad number been used for rehabilitation purposes in the meanwhile. These are the broad features of the steps which have to be taken in deciding the employers claim for rehabilitation under the working of the formula. This decision, therefore, lays down, so far as it is relevant to the present purpose, that two items shall be deducted from the rehabilitation amount ascertained by adopting the Full Bench .Formuula namely, i general reserves available to the employer and ii reserves which have number already been reasonably earmarked for specific purposes of the industry. The question is whether the mere availability of reserves or the simple earmarking for specific purposes would be sufficient to claim the said amounts as deductions. We do number think that by using the said words this Court meant to depart from the well- recognized principle that if the general reserves have number been used as working capital, they cannot be deducted from the rehabilitation amount. The reserves may be of two Kinds. Moneys may be set apart by a companypany to meet future payments which the companypany is under a companytractual or statutory obligation to meet, such as gratuity etc. These amounts are set apart and tied down for a specific purpose and, therefore, they are number available to the employer for rehabilitation purposes. But the same thing cannot be said of the general reserves they would be available to the employer unless he his used them as Working capital. The use of the words reasonably earmarked is also deliberate and significant. The mere numberinal allocation for binding purposes, such as gratuity etc., in the companypanys books is Dot enough. It must be ascertained by the Industrial Court on the material placed before it whether the said amount is far in excess of the requirements of the particular purpose for which it is so earmarked and whether it is only a device to reduce the claim of the labour for bonus. We do number suggest that it is the duty of the Industrial Court to ascertain the companyrect or exact figure required for a particular purpose but it is certainly its duty to is companyer whether the so- called earmarking for a particular purpose is a device to circumvent the formula. If it is satisfied that there is such a device, it shall deduct that figure in calculating the rehabilitation amount and if possible arrive at a real figure for that purpose. So too, in the case of general reserves when an employer claims that a specific amount reserved has been used as working capital, it is the duty of the Industrial Court to arrive at a finding whether the said reserves, or any part of them, have been used as working capital and, if so, to what extent during the bonus year. Shortly stated before a particular reserve can be deducted from the rehabilitation amount it must be established that it has been reasonably earmarked for a binding purpose or the whole or a part of it has been used as working capital and that only such part of the reserves companying under either of the two heads can be deducted from the said amount. To illustrate, take a particular bonus year, say 1955. To start with, from the gross profits of that year only items specifically declared by this Court in The Associated Cement Companies Ltd. v. Its Workmen to have a prior charge over the bonus shall be deducted to arrive at the surplus. No question of deducting any other amount reserved in regard to the profits of that year arises. But the companypany has specifically earmarked certain amounts for specific binding purposes in 1954 or earlier to meet future binding obliga- tions, such as gratuity etc. or has reserved amounts for general purposes but number to meet any companytractual or statutory obligations and has number utilised the same as working capital. In the former case the amount must be deemed to have been utilised and, therefore, it cannot be deducted from the rehabilitation amount but in the latter case, as the said amounts were number utilised by the employer as working capital, they shall be deducted from the rehabilitation amount. 1 1959 S.C.R. 925 What taken is the procedure to be followed for ascertaining the said facts ? The burden is obviously on the employer who claims the exclusion of the reserves from the rehabilitation amount on the ground that they are used as working capital or reasonably earmarked for a specific purpose to establish the said facts and to prove the same by relevant and acceptable evidence. The importance of this question in the companytext of fixing the amount required for rehabilitation cannot be over-estimated. The item of rehabilitation is generally a major item that enters into the calculations for the purpose of ascertaining the surplus and, therefore, the amount of bonus. So, there would be a tendency on the part of the employer to inflate this figure and the employees to deflate it. The accounts of a companypany are prepared by the management. The balance-sheet and the profit and loss account are also prepared by the companypanys officers. The labour have numberconcern in it. When so much depends on this item, the principles of equity and justice demand that an Industrial Court should insist upon a clear proof of the same and also give a real and adequate opportunity to the labour to canvass the companyrectness of the particulars furnished by the employer. Cases companying before us disclose that the Industrial Courts and Labour Tribunals are number bestowing so much attention on this aspect of the case as they should. Some of the tribunals act oil affidavits and sometimes even on balance- sheets and extracts of accounts without their being proved in accordance with law. For the purpose of holding an enquiry or a proceeding under the Bombay Industrial Relations Act, 1946, s. 118 of the said Act companyfers on the Industrial Court the same powers as are vested in Courts in respect of- a proof of facts by affidavits b summoning and enforcing the attendance of any person and examining him on oath c companypelling the production of documents and d issuing companymissions for the examinations of witnesses. In Courts facts have to be established either by oral evidence or by documentary evidence proved in the manner prescribed by law. But Order XTX of the Code of Civil Procedure empowers the Court, to have particular facts proved by affidavits. Under rule thereof any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such companyditions as the Court thinks reasonable. But it is subject to the proviso that where it appears to the Court that either part, bonafide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall number be made authorizing the evidence of such witness to be given by affidavit. Under rule 2, upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent . A companybined effect of the relevant provisions is that ordinarily fact has to be proved by oral evidence,, but the Courts, subject to the companyditions laid down in Order XIX, may ask a particular fact or facts to proved by affidavits. Industrial Courts may companyveniently follow the procedure. In view of the importance of the item of rehabilitation in the matter of arriving at the surplus for fixing the bonus principles of equity and justice demand that tribunals should weigh with great care the evidence adduced by the management as well as by the labour to ascertain every sub-item that goes into or is subtracted from the rehabilation.If the parties agree,agrred figure can be accepted. If they agree to the decision of affidavits that companyrse may be followed. in the absence of an agreement, the procedure prescribed in Order- XIX of the Code of Civil Procedure may usefully be followed by the tribunals so tlitt, both the parties may have full opportunity to Establish their respective cases. Recent decisions of this Court emphasize this aspect of the matter. In lndian Hume Pipe Company Ltd v. Their workmen 1 , the balance-sheet was upon for proving that the amounts were available for use as working capital and that the 1 1959 S.C,R. 92,5 balance-sheet showed that they were in fact so used. Bhagwati, J., who delivered the judgment of the Court, presumably to meet the companytention that the balance-sheet had number been proved, observed at p. 362 thus Moreover, numberobjection was urged in this behalf, number was any finding to the companytrary recorded by the tribunal. In that case it was companyceded that the reserves were in fact used as working capital. It is suggested that the learned Judge solely relied upon the relevant items in the balance- sheet in support of his companyclusion and that the said observation was only an additional ground given by him, but we are inclined to think that the Court would number have accepted the items in the balance-sheet as proof of user if it was number satisfied that numberobjection was taken in that behalf. In Tata Oil Mills Company Ltd. v. Its Workmen 1 , a similar question was raised. It was companytended by the labour in that case that the depreciation reserve was Dot used as working capital and therefore numberreturn should be allowed on the said reserve. The Chief Accountant of the Company made an affidavit on behalf of the Company that the said depreciation reserve, along with others, had been used as working capital. This Court accepted the affidavit for the year in question, but made the following observations for future guidance It will, however, be open to the workmen in future to show by proper cross-examination of the companypanys witnesses or by proper evidence that the amount shown as the depreciation reserve was number available in whole or in part to be used as working capital and that whatever may be available was, number in fact so used in the sense explained above. In the present appeal, however,we must accept the affidavit of the chief accountant. These observations also recognized the necessity to give an opportunity to the workmen to cross-examine the witnesses put forward by the management to prove the user of any particular reserve as working capital. This Court once again dealt with the same 1 1959 S.C.R, 924. subject in Anil Starch Products Ltd. v. Ahmedabad Chemical Workers Union 1 . That appeal also raised the question whether return should be allowed on the depreciation reserve used as working capital. It was companytended for the labour in that case that the depreciation reserve was number used as working capital. Rejecting the said companytention, Wanchoo, J., observed It is enough to say in that companynection that an affidavit was filed by the manager of the companypany to the effect that all its reserves including the depreciation fund had been used as working capital. The manager appeared as a witness for the companypany before the Tribunal and swore that the affidavit made by him was companyrect. He was cross examined as to the amount required for rehabilitation, which was also given by him in that affidavit but numberquestion was put to him to challenge his statement that the entire depreciation reserve had been used as working capital In the circumstances, we must accept the affidavit so far as the present year is companycerned and hold that the working capital was Rs. 34 lacs. Notwithstanding the said finding, the learned Judge took care to reserve the rights of the workmen in future by making the following observations It will, however, be open to the workmen in future to show by proper cross-examination of the companypany,s witnesses or by proper evidence that the amount shown as depreciation reserve was number available in whole or in part as explained above to be used as working capital and that whatever was available was number in fact so used. This judgment again reinforces the view of this Court that proper opportunity should be given to the labour to test the companyrectness of the evidence given on affidavit on behalf of the management in regard to the user of the reserves as working capital. What is the position in the present case ? It is number suggested that there is any reserve which has been reasonably earmarked to discharge a companytractual or statutory obligation. We are only companycerned with Civil Appeal No. 684 Of 1957 number reported general reserves. The learned Solicitor General companytends that the balance-sheet discloses that the entire reserves have been used as working capital and that the respondent did number canvass this position in the statement filed by it before the Industrial Court. We have already pointed out that the balance-sheet, without its being proved by a person companypetent to do so, cannot prove that any reserves have been utilised as working capital. In the written- statement filed by the appellant before the Industrial Court, numberspecific allegation is made that the reserves were utilised as working capital, though in its statement of calculations the said reserves were number excluded from the amount claimed towards rehabilitation. As there is numberspecific allegation, the respondent also in its statement did number deny the said fact, but in its statement of calculations it did number deduct the reserves from the rehabilitation amount. Therefore, it must be held that the respondent did number accept the position that the reserve funds were utilised as working capital. Strong reliance is placed upon the evidence of the General Superintendent of the appellant-Company, but a perusal of that evidence discloses that the said witness has number deposed that the Company used the reserves as working capital number does the said witness seek to prove either the balancesheet or any extract taken therefrom. In the circumstances, the respondent had numberopportunity to cross-examine him in respect of the alleged user of the reserves. For the aforesaid reasons, we have numberoption but to hold that Rs. 51 lakhs representing the reserves were number used as working capital and, therefore, the said amount was rightly deducted by the Industrial Court from Rs. 60 lakhs fixed by it towards rehabilitation. As the balance of Rs. 9 lakhs spread over 15 years came to only Rs. 60,000 during the bonus year and as the statutory depreciation was Rs. 83,639, the Industrial Court rightly excluded the entire rehabilitation amount from its calculations in arriving at the surplus. No other points were raised before us.

Case appeal was rejected by the Supreme Court