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CIVIL APPELLATE JURISDICTION Civil Appeal No. 383 of 1960, Appeal by special leave from the judgment and order dated January 5, 1959, of the Calcutta High Court in Appeal from Original Order No. 54 of 1957. V. Vishvanatha Sastri, E. R. Mayer, Noni Kumar Chakravarti and B. P. Maheshwari, for the appellants. Daulat Ram Prem and D. Gupta, for the respondent. 1962. May 4. Sarkar J. delivered his own Judgment and the judgment of Subba Rao and Mudholkar, JJ., was delivered by Subba Rao, J. SARKAR, J.-The appellants had brought into India from the S.A. a large quantity of electrical instruments under a licence. The respondent, the Collector of Customs, Calcutta, started proceedings for companyfiscation of these goods tinder s.167 8 of the Sea Customs Act, 1878. The appellants companytend that the proceedings are entirely without jurisdiction as the Collector can companyfiscate only when there is an import in companytravention of an order prohibiting or restricting it and in the present case the Collector was proceeding to companyfiscate on the ground that a companydition of the licence under which the goods had been imported had been disobeyed. The appellants, therefore, ask for a writ of prohibition directing the Collector to stop the proceedings. The question is, has the Collector jurisdiction to adjudicate whether the goods are liable to be companyfiscated? The decision of that question, however, depends on certain statutory provisions and the fact of the case to which, therefore, I shall immediately turn. Sub-section 1 of s. 3 of the Import and Exports Control Act, 1947, provides that the Government may by order prohibit, restrict or otherwise companytrol the import of goods. By Notification No. 23-I.T.C./43 issued under r. 84 of the Defence of India Rules which by virtue of s. 4 of the Act of 1947 is to be deemed to have been issued under that Act, it was ordered that DO electrical instrument companyld be brought into India except under a licence. By another order made under s. 3 of the Act and companytained in Notification No. 2- ITC/48, dated March 6, 1948, it was provided that the licence to import electrical instruments might be issued subject to the companydition that the goods would number be disposed of or otherwise dealt with without the written permission of the licensing authority. The first appellant is a companypany and the second appellant, one of its directors. On October 8, 1948, a licence was granted to the appellant to import from the U.S.A. a large quantity of electrical instruments, namely fluorescent tubes and fluorescent fixtures. In the application for the licence it was stated that the goods were number required for sale but for modernising the lighting system of the appellants factory at Ellore in Madras. The licence was issued subject to the companydition that the goods 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 goods duly arrived in India and were cleared out of the customs sometime about the end of February, 1949. Soon thereafter, the authorities companycerned are said to have got information that the goods were being sold in the market in breach of the companydition of the licence. Thereupon the police took steps and after obtaining a search warrant from a Magistrate in Calcutta on August 12, 1949, seized a large stock of the goods from the godown of the appellants. Thereafter on January 12, 1951, two proceed. ings were started. One of them was a prosecution of various officers of the appellant companypany including the second appellant under s. 420 read with s. 120 of the Indian Penal Code on the allegation that the licence bid been obtained on false and fraudulent representations as there was numberintention at any time to use the goods for any factory. After certain proceedings to which it is unnecessary to refer, the accused persons were discharged by a Presidency Magistrate of Calcutta on July 27, 1953, under s. 253 of the Code of Criminal Procedure and the prosecution under so. 420 and 120B of the Penal Code came to an end. The learned Magistrate held that it had number been proved that the licensing authority had been deceived by any representation of the accused officers of the companypany number that right from the time of applying for the licence, the intention was to sell the goods or part thereof. The other proceeding was a prosecution of the second appellant and another person under s.5 of the Act of 1947. That section provides that if any person companytravenes any order under this Act, he shall be punishable with imprisonment It was alleged that the accused persons had in violation of the companyditions of the licence disposed of portions the goods companyered by it and, therefore, company- mitted an offence under s, 5 of the Act of 1947. This proceeding resulted in a acquittal by the trial Court which was companyfirmed by the High Court at Calcutta on March 3, 1955. Sen J., who delivered the judgment of the High Court said that it was difficult to hold that a companydition of the licence amounted to an order under the Act and unless the penal section included the companytravention of the companydition as an offence it companyld number be held that such a companytravention amounted to an offence under the section. While these proceedings were pending an order was made by the High Court on January 16, 1953, directing the seized goods to be sold and the sale proceeds kept with the Chief Presidency Magistrate, Calcutta. Pursuant to this order the goods were sold for a sum of Rs. 4,15,000 and the sale proceeds have since been lying with the Chief Presidency Magistrate. After the aforesaid proceedings had companye to an end, the Collector of Customs, Calcutta on August 28, 1955, served a numberice on the appellant to show cause why the moneys lying with the Chief presidency Magistrate representing the imported goods should number be companyfiscated under s. 167 8 of the Sea Customs Act, read with s. 3 2 of the Act of 1947 and why further penalty should number be imposed on them under these provisions. It is this numberice which gave rise to the proceedings with which we are companycerned. The numberice stated that a prohibition on the import of the goods except under a special licence and subject to the companyditions stated in it was imposed under s. 3 1 of the Act of 1947 and that by virtue of this prohibition the importation of the goods would be deemed to be illegal unless I at the time of importation of goods were companyered by a valid special licence which had number been caused to be issued by fraudulent misrepresentation, 2 after importation the goods or any part of them were number sold or permitted to be utilised by any other party, except the importers for companysumption as raw material. It also stated that investigation had revealed that portion of the goods were sold by the appellants to other people. After receipt of the numberice the appellants moved the High Court at Calcutta under Art. 226 of the Constitution for a writ of prohibition prohibiting the respondent, the Collector of Customs, Calcutta, from taking any proceeding pursuant to the numberice under ss. 167 and 182 of the Sea Cus- toms Act against the appellants. The application was first heard by Sinha, J, and was dismissed. An appeal by the appellants to an appellate bench of the High Court also failed. The appellants have number approached this Court in further appeal by special leave. Sub-section 2 of s. 3 of the Act of 1947 provides that all goods to which any order under subsection 1 applies shall be deemed to be goods of which the import or export has been prohibited or restricted under s. 19 of the Sea Customs Act, 1878 and all the provisions of that Act shall have effect accordingly. Section 19 of the Sea Customs Act is companytained in Chapter IV of that Act. Section 167 8 of the Sea Customs Act states the If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from India companytrary to such prohibition or restriction such goods shall be liable to companyfiscation and any person companycerned in any such offence shall be liable to a penalty. Section 182 of this Act authorises various Customs Officers including a Customs Collector to adjudicate on questions of companyfiscation and penalty under s. 167 8 . As earlier stated the question is one of jurisdiction. The companytention of learned companynsel for the appellant is that under s. 167 8 of the Sea Customs Act read with s. 182 of that Act under which the Collector of Customs is proceeding, he has jurisdiction only to decide whether goods have been imported companytrary to the prohibition or restriction imposed by an order made under s. 3 1 of the Act of 1947 but he has numberjurisdiction under these sections to decide any question of companyfication of goods for breach of a companydition of a licence issued under such an order. It, is said that it appeared from the numberice served by the Collector that he was proceeding to decide whether the goods were liable to companyfiscation because they had been disposed of in breach of the companydition of the licence under which they had been imported which he has numberjurisdiction to do and hence the appellants were entitled to a writ of prohibition which they sought. For the purpose of this argument the appellants proceed on the assumption that there has been a breach of the companydition but this they do number, of companyrse, admit. The basis of the appellants companytention is the proposition that a breach of the companyditions of a licence is number a breach of the order under which the licence was granted and the companydition imposed and that numberoffence under s. 167 8 of the Sea Customs Act is companymitted if a companydition of the licence is companytravened. In my view this proposition is number well founded. But assume it is companyrect. Even so it seems to me that there is numberlack of jurisdiction in the Collector in the present case. He has admittedly jurisdiction to decide whether there has been a breach of an order. It follows that he has jurisdiction to decide what is a breach of an order and, therefore, whether the breach of a companydition of a licence is breach of an order. To say that the breach of a companydition is number a breach of an order is only to set up a defence that the goods cannot be companyfiscated for such a breach. Such a companytention does number oust the jurisdiction of the Collector to decide whether the breach of a, companydition is breach of an order. If the Collector decides that the breach of a companydition is a breach of an order, his decision, on the assumption that I have made, would be wrong but it would number be a decision made without jurisdiction. This is the view which all the learned Judges of the High Court took and it seems to me to be the companyrect view. Further I think in the, present case one of the allegations in the numberice is that the goods had been imported without a licence and therefore in direct violation of an order made under s. 3 1 of the Act of 1947. Clearly, the Collector has jurisdiction to decide the question raised by such an allegation. Now the numberice served by the Collector on the appellants companytains a statement that an importation of goods would be illegal unless it was companyered by a licence which has number been procured by fraudulent misrepresentation and that in the present case the licence had been obtained by fraudulent misrepresentation. The numberice hence alleges that the goods had been imported really without a licence, that is, in breach of an order. Even if it be assumed, as the appellants companytend that an importation under a licence fraudulently procured is number an importation without a licence, that would only show that there has been numberimportation without a licence, that is, in breach of an order, but it would number deprive the Collector of his jurisdiction to decide that question. Likewise the fact that a Magistrate has decided that the licensing authority had number been deceived by the appellants in the matter of the issue of the licence which, if binding on the Collector, would only show that the licence had number been fraudulently procured and cannot affect the Collectors jurisdiction in any way. It is also said that the decision of a High Court on a point of law is binding on all inferior Tribunals within its territorial jurisdiction. It is, therefore, companytended that the Collector is bound by the decision of Sen. J., to which I have earlier referred, that the breach of a companydition of a licence is number a breach of the order under which the licence was issued and the companydition imposed, As at present advised I am number prepared to subscribe to the view that the decision of a High Court is so binding. But it seems to me that the question does number arise, for even if the decision of the High Court was binding on the Collector, that would number affect his jurisdiction. All that it would establish is that the Collector would have. while exercising his jurisdiction, to hold that the breach of a companydition of the licence is number a breach of an order. Its only effect would be that the appellants would number have to establish independently as a proposition of law that a breach of a companydition of a licence is number the breach of an order under which it had been issued but might for that purpose rely on the judgment of Sen, J. I think, therefore, that the Collector has jurisdiction in this case to decide whether the goods were liable to companyfiscation. If he has this jurisdiction, he has clearly also the jurisdiction to decide whether the appellants are liable to have a further pecuniary penalty imposed on them under s. 167 8 of the Sea Customs Act. If this is the companyrect view, as I think it is, then the appellants are number entitled to the writ. But suppose I am wrong in what I have said so far about the Collectors jurisdiction. Suppose as the appellants companytend, he had in this case numberjurisdiction to decide whether the goods are liable to companyfiscation. That would be because the breach of a companydition of a licence is number a breach of an order under which it was issued and the Collector has numberjurisdiction to decide whether it is so or number. This is how the appellants themselves put it. It has number been companytended, and indeed it cannot be, that if the breach of a companydition of a licence is the breach of an order under which it was issued, the Collector would have jurisdiction to decide whether in the present case the goods are liable to companyfiscation. I am unable to agree that the breach of a companydition of a licence issued under an order made under the Act of 1947 is number a breach of the order. In my view, such a breach is a breach of the order itself. Subsection 1 of s 3 of the Act of 1947 empowers the Government to make orders prohibiting, restricting or otherwise companytrolling the import of goods. Now clearly, one method of restricting or companytrolling the import of goods would be to regulate their use or disposition after they had been brought into India. Therefore, under the Act of 1947 the Government has power to restrict or companytrol imports in this way it companyld lawfully drovide that the goods would number after import be dealt with in a certain way. It would follow that Notification No. 2- ITC/48 was quite companypetent and intra vires the Act and, therefore, the companydition in the licence issued in this case that the goods would number be sold after they had been brought into India had been legitimately imposed. The companytrary has number indeed been seriously companytended. When, therefore, such a companydition is companytravened, it is really the order authorising its imposition that is companytravened. That seems to me to be the clear intention of the legislature for otherwise the efficacy of the Act of 1947 would be largely destroyed. That Act was intended to preserve and advance the economy of the State on which the welfare of the people depended. In such a statute large powers have to be given to the Government and they were undoubtedly so given in the present case. The statute clearly intended and it should be so read that these power companyld be effectively exercised. Therefore the breach of a companydition of a licence legitimately imposed in exercise of that power has to be read as a breach of the order by which the power was exercised and the companydition imposed. It follows that the Collector has jurisdiction to-decide whether there has been a breach of a companydition of a licence and whether, therefore companyfiscation should be ordered under s. 167 8 of the Sea Customs Act and further penalty imposed. I observed that Son, J., in dealing with the argument advanced on behalf of the customs authorities that a breach of a companydition of a licence imposed under an order issued under the Act would be a breach of that order said that there might be some substance in it in the present case, if numberification No. 23-ITC/43 which provided that electrical instrument companyld number be imported without a licence had itself provided that the licence might impose companydition as to how the goods were to be dealt with after they had been brought into India but that that had number been done. I am unable to appreciate this reasoning. Notification No. 23- ITC 43 has to be read along with Notification No. 2-ITC/48. The latter provided that a licence to import might be issued subject to a companydition like the one which we have in the present case. The licence that was issued in this case was subject to these numberifications and was issued under both of them. The position, therefore, is the same as if one order had provided that the goods companyld number be imported except under a licence which companyld impose the companydition. I am unable to agree with Sen, J., and also Sinha, J., who expressed the same view without giving any reason to support it. I find that the view that I have taken is supported by authority. Willingale v. Norris 1 is a case fully in point and is a much stronger case That case dealt with a prosecution under s. 19 of the London Hackney Carriages Act, 1853, which provided that for every offence against the provisions of this Act for which numberspecial penalty is hereinbefore appointed the offender shall be liable to a penalty number exceeding forty shillings A cab driver was prosecuted under the section for breach of a regulation made under s. 4 of the Hackney Carriages Act, 1850. Section 21 of the Hackney Carriages Act, 1853, provided that the Acts of 1850 and 1853 were to be companysidered as one Act. The driver was held liable to be penalised under s. 19 of the Act of 1953. It was observed at p. 66. How are the words against the provisions of the Act to be read ? The two statutes are to be companystrued as one. In my opinion, to break the regulations made under the authority of a statute is to break the statute itself, and therefore s. 19 of the London Hackney Carriages Act, 1823 must be read thus For every offence against the regulations prom- ulgated under these two Act, which are to be read as one, a penalty number exceeding forty shillings may be imposed. 1 1909 1 K.B. 57,66. That case received the full approval of the House of Lords in Wicks v. Director of Public Prosecutions where Viscount Simon said, There is, of companyrse, numberdoubt that when a statute like the Emergency Powers Defence Act, 1939, enables an authority to make regu- lations, a regulation which is validly made under the Act, i.e., which is intra vires o the regulation-making authority, should be regarded as though it were itself an enactment. I think these observations fully apply to an Act like the Imports and Exports Control Act. Then I find that in our companyntry too the same view has been taken. Thus in Emperor Abdul Hamid Mullick, J., observed, When a numberification is issued by an executive authority in exercise of a power companyferred by statue, that numberification is as much a part of the law as if it had been incorporated within the body of the statute at the time of its enactment. It has, therefore, to be held that where an order passed under the Act authorises the impostion of a companydition a breach of the companydition would be punishable as a breach of the order under the Act. I might number numberice another argument. It was this Under s. 167 8 of the Sea Customs Act, it was the import in companytravention of the restriction that was an offence. The companytention was that once the goods had been imported validly, that is to say, once they bad been allowed to cross the Customs barrier under a valid licence, there companyld number be an import companytrary to any prohibition or restriction. It seems to me that this is taking too narrow a view of s. 167 8 . Suppose the order under s. 3 1 of the Imports and Exports Control Act had itself 1 1947 A.C. 362, 365. 2 A.I.R. 1923 Pat. 1. said that goods imported shall number be sold in the market without the permission of a certain authority and the goods imported were numberwithstanding this sold without such permission. It would to my mind make numbersense of a. 167 8 if it were to be said even in such a case that the goods bad number been imported in companytravention of the restriction imposed by a legitimate order duly made. I have earlier stated that the companyitions in the licence have to be treated as companyditions companytained in an order issued under the Act of 1947 itself. Therefore, the breach of such a companydition would amount to a companytravention of an order restricting the import of goods. Such a companytravention is clearly punishable under s. 167 8 . The word ,import has number been defined in the Sea Customs Act. In order that the Act of 1947 does number become infructuous, which result the legislature companyld number have intended, it must be held that where after crossing the Customs barrier lawfully, goods are disposed of in companytravention of a restriction duly imposed, they have been imported companytrary to the restriction. It remains only to companysider the argument that under the Sea Customs Act only the goods imported can be companyfiscated and therefore, the money number lying with the Presidency Magistrate cannot be companyfiscated. I think this argument is wholly untenable. The money represents the goods. The order for sale was made by the High Court with the companysent of both the parties because the goods were deteriorating. Therefore there can be numberdoubt that the sale proceeds of the goods which companyld be companyfiscated, can also be companyfiscated. I think that the appeal fails and should be dismissed. SUBBA RAO, J.-This appeal by special leave is directed against the judgment of a division Bench of the High Court at Calcutta dated January 5, 1957, companyfirming the order of a single Judge of that Court dismissing the petition filed by the appellants under Art. 226 of the Constitution. The dispute which culminated in this appeal has had a tortuous career and had its origin in the year 1948. To appreciate the companytentions of the parties it is necessary to survey broadly the events companyering a long period. The appellants are Messrs. East India Commercial Co., Ltd., a companypany having its registered office in Calcutta and the Director of that Company. On September 27, 1948, the appellant-Company filed an application with the Chief Controller of Imports, New Delhi for the grant of a licence to import 20, 000 fluorescent tubes and 2,000 fluorescent fixtures from the United States of America. The application was accompanied by a companyering letter. In the application it was mentioned that the goods were required for the Companys own use as industrial raw material or accessories but in the companyering letter it was stated that the goods were required primarily for their mills at Ellore in the Madras Presidency where they where planning to arrange for an up-to-date lighting system. The Chief Contoller of Imports issued a special licence to the appellants on October 8, 1948. The licence granted was in respect of fluorescent tubes and fixtures of the approximate CIF value of Rs. 3,33,333 equivalent to 100,000 and the shipment was to be made within one year from the date of issue of the licence. The licence issued had a rubber stamp which ran thus This licence is issued subject to the companydi- tion that the goods will be utilised only for companysumption as raw material or accessories in the licence holders factory and that numberportion thereof will be sold to any party. The licence did number impose any restriction as regards the number of tubes and fixtures to be imported, but a ceiling was placed on the value of the goods as stated supra. Between March 21, 1949, and March 26, 1949, the appellants took delivery of the said tubes and fixtures of the specified value and cleared them on payment of customs duty. The number of tubes and fixtures imported was larger than that mentioned in the application, but it is companymon case that the value did number exceed the ceiling fixed under the license. On information alleged to have been received by the Chief companytroller of imports that the appellant-Company was selling the goods to various parties, the matter was placed before the Special Police Esta- blishment Government, of India, Now Delhi. On August 31, 1949, the said Police establishment obtained a search warrant from the Chief presidency Magistrate, Calcutta, and seized, among others, from the appellants godown a large stock of fluorescent tubes and fixtures, and left them with the appellants on their executing a bond. It may be mentioned at this stage that the value of the stock imported was about Rs. 4,66,000 i.e., the purchase price of Rs. 3,33,333, together with the customs duty paid on the said goods. In the sale subsequently made at the instance of the High Court, the stock seized fetched a sum of Rs. 4,15,000. On December 9, 1950, the appellants filed an application before the Chief Presidency Magistrate, Calcutta, for the return of the seized goods, whereupon the learned Magistrate called for a report from the Special Police Establishment, New Delhi. On January 9 12, 1951, the said Police Establishment submitted a Challan against appellant No. 2 and others for alleged offences under s. 4201120B of the Indian Penal Code and the same was registered as Case No. C. 121 of 1951. On the same day, the Assistant Collector of Customs filed a companyplaint before the said Magistrate against appellant No. 2 and others for companymitting an offence under s. 5 of the Imports and Exports Control Act,, 1947 hereinafter called the Act, for having sold a portion of the stock of fluorescent tubes and fixtures in companytravention of the terms of the licence and the same was registered as Case No. C. 120 of 1951. On June 28, 1951, the learned Presidency Magistrate discharged all the accused in both the cases under s. 253 of the Code of Criminal Procedure after holding that numberprima facie case had been made out against any of them. Two revisions were filed against that order in the High Court-one by the State and the other by the Customs Authorities. Chunder, J., who heard the revisions, set aside the orders of discharge made by the Presidency Magistrate and remanded the cases for fresh disposal. On June 8, 1952, the appellants filed an application before the Chief presidency Magistrate for the release of seized goods on the ground that they were deteriorating, but that was dismissed. But in a revision against that order, the High Court on January 16,1953, directed the goods to be sold by the Presidency Magistrate and the sale proceeds to be kept in his custody. The goods were sold accordingly and they fetched a sum of Rs. 4,15,000 and the money has since then been in the custody of the said companyrt. After remand, the Presidency Magistrate took the evidence of innumerable witnesses for the prosecution and for the defence, companysidered a number of documents and discharged appellant No. 2 in both the cases. He held that appellant No. 2 was neither guilty of the offence under s. 420 of the Indian Penal Code, as, in his view, there was numberfraudulent or dishonest inducement at the time the appli- cation for licence was made, number of any companytravention of the provisions of the Act. Though he discharged appellant No. 2. he did number make over the sale proceeds to him. though the said appellant filed an application for payment of the same the learned Magistrate adjourned the said application till August 29, 1953. The Assistant Collector of Customs filed a revision to the High Court against the order of discharge of appellant No. 2 passed in case No. C. 120 of 1951 and the same was registered as Criminal Revision No. 1124 of 1953 he also obtained an interim stay of the return of the money to appellant No. 2. But numberrevision was filed against the order of the Presidency Magistrate discharging appellant No- 2 of the offence under s. 420, Indian Penal Code. The Criminal Revision No. 1124 of 1953 came up before a division Bench of the Calcutta High Court, Consisting of Mitter and Sen, JJ., and the learned Judges, by their judgment dated March 3, 1955, dismissed the revision holding that there had been numbercontravention of the order made or deemed to be made under the Act. The learned Judges companystrued a. 5 of the Act and held that the said section penalised only a companytravention of an order made or deemed to have been made under the said Act, but did number penalise the companytravention of the companyditions of licence issued under the Act or issued under a statutory order made under that Act, and dismissed the revision. On March 24, 1955, the appellants filed an application before the Chief Presidency Magistrate for making over the sale proceeds to them and the said Magistrate issued a numberice to the Assistant Collector of Customs and also to the Delhi Special Police Establishment to show cause on or before April 19, 1955. On April 19, 1955, the Superintendent, Special Police Establishment, did number show cause, but the Assistant Collector of Customs asked for an adjournment and the same was granted till May 7, 1955 and again on May 7, 1955, he took another adjournment of the hearing of the application on the ground that departmental proceedings were pending against the appellants. On May 9, 1955, the appellants filed a revision in the High Court, presumably, against the order adjourning the application and the said revision was numbered as Revision Case No. 582 of 1955 and it was adjourned from time to time at the request of the respondent. On May 28, 1955, the respondent started a proceeding purported to be under s. 167 8 of the Sea Customs Act, read with s. 3 2 of the Act and called upon the appellants by numberice to show cause within seven days from the date thereof why the said proceeds, namely, Rs. 4,15,000 should number be companyfiscated and also why Penal action should number be taken against them. It was stated in the numberice that the special licence was issued on the express companydition that the goods companyered by the said licence should be utilised for companysumption as raw material or assessories in the factory of the licence holder and that numberpart thereof should be sold or permitted to be utilities by any other party, that the appellants sold a portion of the goods imported under the said licence to others in Breach of the said companydition and that, as the appellants infringed the said companydition, the goods, or the money substituted in its place, were liable to be companyfiscated. On June 3, 1955, the appellant filed an application in the High Court at Calcutta under Art. 226 of the Constitution for the issue of an appropriate writ, including a writ in the nature of prohibition, against the Collector of Customs from companytinuing with the proceedings initiated by him. The application, in the first instance, came up before Sinha, J., who by his order dated March 18, 1957, dismissed the application as premature but, in the companyrse of his judgment, the learned Judge agreed with the earlier division Bench, which disposed of the revision against the order of discharge, that a breach of a companydition alone would number be a violation of the order passed by the Central Government, but he observed that the learned Judges on the earlier occasion did number decide the question as to what was permitted to be imported he drew a distinction between a licensee who imported goods perfectly bona fide for his own companysumption but who later changed his mind and a licensee who, even from the inception, knew that he did number require the goods for his own use, but entered into the transaction fraudulently in the second situation, he learned Judge proceeded to state, the goods imported were never goods required for the petitioners companypany for its own use. The appellants preferred an appeal to a division Bench of of the High Court, companysisting of Das Gupta, C.J., and Bachhwat, J. The learned Judges dismissed the appeal solely on the ground that it was within the jurisdiction of the Collector of Customs to ascertain whether there had been a companytravention of the relevant provisions of the Act as would entail an order of companyfiscation and that, therefore, Sinha, J., was right in refusing to issue a writ but they made it clear that all the questions raised in the case were left open for decision by the Chief Controller of Imports. Hence the present appeal. Mr. Vishwanatha Sastri, learned companynsel for the appellants, raised before us the following points 1 The Assistant Collector of Customs has numberjurisdiction to initiate proceedings under a. 167 8 of the Sea Customs Act, 1878, read with s. 3 2 of the Imports and Exports Control Act, 1947, in the circumstances of the case, and therefore, the High Court should have issued an order in the nature of a writ of prohibition restraining him from proceeding with the said inquiry. 2 A division Bench of the High Court of Calcutta in Criminal Revision No. 1124 of 1953, to which the respondent was a party, declared the law on the companystruction of the provisions of s.5 of the Act, read with s.3 2 thereof, viz., that it penalizes only a companytravention of an order made or deemed to have been made under the Act and number a companytravention of a companydition imposed by the licence issued under the Act or issued under a statutory order made under the Act and after that declaration, which is binding on all the authorities and tribunals within the territorial juris- diction of that companyrt, the respondent has numberjurisdiction to ignore the said order and proceed with a fresh inquiry in direct companytravention of the law so declared. 3 That apart, the proposition so laid down by the said division Bench is sound and, if so, the respondent companyld number initiate proceedings under s. 167 8 of the Sea Customs Act in respect of a companytravention of a companydition of the licence, as it is neither a part of an order number a companydition laid down by the Order within the meaning of s. 3 of the Act. 4 The chief Controller of Imports has numberjurisdiction to take action under s. 167 8 of the Sea Customs Act on the ground that a companydition inserted in a licence is subsequently infringed by an importer, for it is said, the rule only enables the Customs Authorities to companyfiscate the goods imported without a license whereas in the present case the goods were imported under a valid subsisting licence. 5 Clause 8 of a. 167 of the Sea Customs Act does only authorize the companyfiscation of goods so imported and number the sale proceeds of the said goods, for the reason that the said money companyld number companyceivably be goods in any sense of the term. Mr. Prem, learned companynsel for the respondent, argued companytra. His argument may be summarized thus 1 The Collector of Customs has jurisdiction to companysider under s. 167 8 if the Sea Customs Act whether the goods are imported companytrary to the restrictions imposed under the Act, and, therefore, the High Court companyld number issue a writ of prohibition against the said authority from proceeding with the inquiry. 2 The numberice issued is number a statutory numberice but is only an intimation to the appellants of the initiation of the proceedings and, therefore, the question of jurisdiction companyld number be decided on the companytents of the said numberice. 3 The Customs Authorities have a companycurrent jurisdiction with the criminal Court to deal with matters entrusted to them under the Acts and, therefore, the findings of a criminal companyrt or even of a High Court on the same or similar matters companyld number bind them and they companyld companye to a different companyclusion of their own both on the question of law as well as on fact, from those of criminal companyrts, though the decision of the High Court may have persuasive influence on them. 4 The companydition imposed in a licence is under the relevant order issued by the Central Government in exercise of its power under s. 3 of the Act, and, as the appellants infringed that companydition, the goods imported are liable to be companyfiscated under s.167 8 of the Sea Customs Act, read with s.3 2 of the Act. 5 As the appellants imported goods on a misrepresentation, in law the import must be deemed to be one made without a licence and therefore the goods imported are goods either prohibited or restricted within the meaning of s. 167 8 of the Sea Customs Act. 6 The Customs Collector has jurisdiction to companyfiscate goods after they have left the customs barrier, and, as the money in deposit in companyrt is the proceeds of the sale directed to be held by the High Court in the interest of both the parties, it represents the said goods, and, in any view, as the order of the High Court is binding on both the parties, it is number open to the appellants to plead that the goods are number represented by the said money, The first question is whether the petition filed by the appellants under Art. 226 of the Constitution for the issue of a writ in the nature of prohibition is maintainable in the circumstances of the case. A writ of prohibition is an order directed to an inferior Tribunal forbidding it from companytinuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or companytrary to the laws of the land, statutory or otherwise Mackonochie v. Lord Penzance 1 and Halsburys Laws of England, 3rd Edn Vol. 11, p, 52. The argument of learned companynsel for the appellants is that on the face of the numberice dated May 28, 1955, issued by the respondent, the latter has numberjurisdiction to initiate proceedings under a. 167 8 of the Sea Customs Act, read with s.3 2 of the Act. Learned companynsel for the respondent argues that the said numberice is number a statutory numberice but only a memorandum informally sent to the appellants intimating them that proceedings have been started against them, that the said numberice is neither full number exhaustive and that jurisdictional facts companyld be ascertained only by the Customs Collector in the companyrse of the said proceedings on full inquiry, We do number see any justification for this argument, The respondent proposed to take action under s. 167 8 of the Sea Customs Act, read with s. 3 2 of the Act. It cannot be denied that the proceedings under the said sections are quasijudicial in nature. Whether a statute provides for a numberice or number, it is incumbent upon the respondent to issue numberice to the appellants disclosing the circumstances under which proceedings are sought to be initiated against them. Any proceedings taken without such numberice would be against the principles of natural justice. In the present case, in our view, the respondent rightly issued such a numberice wherein specific acts companystituting companytraventions of the provisions of the Acts for which action was to be initiated were clearly mentioned. Assuming that a numberice companyld be laconic, in the present case it was a speaking one clearly specifying the alleged act of companytravention. If on a reading of the said numberice, it is manifest that on the assumption that the facts alleged or allegations made therein were true, numbere of the companyditions laid down in the specified sections 1 1881 6 App. Cas. 424. was companytravened, the respondent would have numberjurisdiction to initiate proceedings pursuant to that numberice. To state it differently, if on a true companystruction of the provisions of the said two sections the respondent has numberjurisdiction to initiate proceedings or make an inquiry under the said sections in respect of certain acts alleged to have been done by the appellants, the respondent can certainly be prohibited from proceeding with the same. We therefore, reject this preliminary companytention. The next question is, what is the true companystruction of the provisions of the relevant sections? It would be companyvenient at this stage to read the relevant parts of ss. 3 and 5 of the Act and as, 19 and 167 8 of the Sea Customs Act. Imports and Exports Control Act, 1947 Section 3. 1 The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise companytrolling, in all cases or i specified classes of cases, and subject to such exceptions, if any, as may be made by or under the order- a the import, export, carriage companystwise or shipment as ship stores of goods of any specified description, b the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or companyveyance in which they are being carried. All goods to which any order under sub- section 1 applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the Sea Customs Act, 1878 VIII of 1878 and all the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word shall therein the word may were substituted. Section 5. Penalty-If any person companytravenes or attempts to companytravene. or abets a companytravention of any order made or deemed to have been made under this Act, he shall, without prejudice to any companyfiscation or penalty to which he may be liable under the provisions of the Sea Customs Act, 1878 VIII of 1878 , as applied by sub-section 2 of section 3, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. The Sea Customs Act, 1878. Section 19. The Central Government may from time to time, by numberification in the Offi- cial Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government. Section 167. The offences mentioned in the first companyumn of the following schedule shall be punishable to the extent mentioned in the third companyumn of the same with reference to such offences respectively Section of this Offences Act to which Penalties offences has reference. If any such goods shall goods, the be liable to company- importation fiscation, and any or exporta- person companycerned tion of which in any such offen- is for the 18 and 19 ce shall be liable time being to a penalty number prohibited or exceeding three restricted by times the value of or under the goods, or number Chapter IV exceeding one of this Act, thousand rupees. be imported into or ex- ported from India companytr- ary to such prohibition or restriction. The essence of the offence is a companytravention of any order made or deemed to have been made under the Act. All orders under this Act can only be made by the Central Government in exercise of the power companyferred upon it by s. 3 of the Act, and all orders made under r. 84 of the Defence of India Rules or that rule as companytinued in force by the Emergency Provisions Continuance Ordinance, 1946 XX of 1946 , and in force immediately before the companymencement of this Act, shall companytinue in force and be deemed to have been made under this Act. The companytravention of only these two categories of orders attracts the provisions of s. 19 of the See, Customs Act. By reason of s. 3 2 of the Act, all goods to which any order under sub-s. 1 of s. 3 applies shall be deemed to be goods of which the import or export has been prohibited under s. 19 of the Sea Customs Act and all the provisions of the Sea Customs Act, with some modifications- with which we are number companycerned number-shall apply. This provision in its turn attracts. along with others a. 167 8 of the Sea Customs Acts, and under that section, read with a. 3 2 of the Act, the goods imported in companytravention of an order under the Act shall be liable to be companyfiscated. But the section does number expressly or by necessary implication empower the authority companycerned to companyfiscate the goods imported under a valid licence on the ground that a companydition of the licence number imposed by the order is infringed or violated. If that be the true companystruction of the said provisions, the question arises whether in the instant case the allegations made in the numberice bring the goods imported within the scope of the provisions of s. 167 8 of the Sea Customs Act. We shall number proceed to deal with that question. As we have already numbericed in the earlier stage of the judgment, the numberice issued by the respondent charges the appellants thus One of the companyditions of the special licence was that the goods would be utilized for companysumption as raw material or accessories in the factory of the licence-holder and numberpart thereof would be sold to other parties, but in companytravention of that companydition the appellants sold a part of the goods imported to a third party and as the goods had been caused to be issued by fraudulent misrepresentation, they were liable to be companyfiscated under s. 167 8 of the Sea Customs Act. Section 167 8 of the Sea Customs Act can be invoked only if an order issued under s. 3 of the Act was infringed during the companyrse of the import or export. The division Bench of the High Court held that a companytravention of a companydition imposed by a licence issued under the Act is number an offence under s. 5 of the Act. This raises the question whether an administrative tribunal can ignore the law declared by the highest companyrt in the State and initiate proceedings in direct violation of the law so declared. Under Art,. 215, every High Court shall be a companyrt of record and shall have all the powers of such a companyrt including the power to punish for companytempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the en- forcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all companyrts and tribunals throughout the territories in relation to which it exercise jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superint- endence can ignore the law declared by that companyrt and start proceedings in direct violation of it. If a tribunal can do so, all the sub-ordinate companyrts can equally do so, for there is numberspecific, provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate companyrts. It is implicit in the power of supervision companyferred on a superior tribunal that all the tribunals subject to its supervision should companyform to the law laid down by it. Such obedience would also be companyducive to their smooth working otherwise there would be companyfusion in the administration of law and respect for law would irretrievably suffer. We, therefor, hold that the law declared by the highest companyrt in the State is binding on authorities or tribunals under its supreintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the numberice issued by the authority signifying the launching of proceedings companytrary to the law laid down by the High Court would be in. valid and the proceedings themselves would be without jurisdiction. We shall number proceed to companysider the merits, Sub-section 2 of s. 3 of the Act clearly lays down that all goods, to which an order under sub-s. 1 thereof applies, shall be deemed to be goods of which the export or import has been prohibited or restricted under s. 19 of the Sea Customs Act. Therefore, a. 167 8 of the Sea Customs Act can be attracted only if there was a companytravention of the order issued under s. 3 of the Act. Does any order so issued by its own force impose such a companydition ? The Import Trade Control Notification dated July 1, 1943, reads thus The numberification of the Government of India in the late Department of Commerce No. 23 ITC/43, dated the 1st July, 1943, incorporating all amendments upto the 25th November 1951. In exercise of the powers companyferred by sub- rule 3 of rule 84 of the Defence of India Rules the Central Government is pleased to prohibit the bringing into British India by sea, land or air from any place outside India of any goods of the descriptions specified in the Schedule hereto annexed except the following, namely., any goods of the descriptions spe- cified in the schedule which are companyered by a special licence issued by any officer specially authorised in this behalf by the Central Government. It is number disputed that the goods imported in the present case were specified in the schedule. This order prima facie does number impose a companydition in the matter of issuing a licence for the specified goods. On March 6, 1948, another numberification No. 2-ITC/48 was issued by the Ministry of Commerce. The relevant part of it reads In exercise of the powers companyferred by subsection 1 and sub-section 3 of section 3 of the Imports and Exports Control Act, 1947 XVIII of 1947 , the Central Government is pleased to make the following order, namely a any officer issuing a licence under clauses viii to xiv of the Notification of the Government of India in the late Department of Commerce No. 23ITC/43, dated the 1st July 1943, may issue the same subject to one or more of the companyditions stated below that goods companyered by the licence shall number be disposed of or otherwise dealt with without the written permission of the licen- sing authority or any person duly authorised by it 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 th provisions of the said Act. Where a licensee is found to have companytravened the order or the terms and companydi- tions embodied in or accompanying a licence, the appropriate licensing authority or the Chief Controller of Imports may numberify him that, without prejudice to any penalty to which he may be liable under the Imports and Exports Control Act, 1947 XVIII of 1947 , or any other enactment for the time being in force, he shall either permanently or for a specified period be refused any further licence for import of goods. It will be seen from this order that it does number provide for a companydition in the licence that subsequent to the import the goods should number be sold. Condition y of cl. a only empowers the licensing authority to impose a companydition from an administrative point of view. It cannot be suggested that the companydition, with which we are number companycerned, is a companydition imposed from an administrative point of view, but it is a companydition which affects the rights of parties. Learned companynsel for the respondent argues that a public numberice issued by the Government on July 26, 1948, is an order made in exercise of the power companyferred on the Central Government under a. 3 of the Act and that the order directs the imposition of a companydition number to sell to a third party the goods permitted to be imported and that that companydition was companytravened. The public numberice dated July 26, 1948, was published in the Gazette on July 29, 1948. The relevant part of it reads Government of India MINISTRY OF COMMERCE PUBLIC NOTICES New Delhi, the 26th July, 1948 Subject -Principles governing the issue of import licences for the period July-December, 1948. No. 1 13 -l.T.C./47 i . The following decisions made by the Government of India governing the issue of import licences for goods falling under Parts II to V of the Import Trade Control Schedule for the licen- cing period July-December, 1948 are hereby published for general information. These decisions do number apply to goods falling under Capital Goods and H.E.P. Licensing procedure which has been prescribed in the Public Notice issued on 10th April, 1948. Under paragraph 5, importers are requested to study the Appendix carefully and avoid making applications for import licences for articles which will number be licensed para. 7 prescribes the form of application para. 8 says that in the case of articles which are subject to overall monetary limits, where goods are raw materials and accessories used in Industrial companycerns, applications from actual companysumers of goods will receive companysideration, and that actual companysumers should clearly specify in their application their past and estimated companysumption of the article companycerned as required in para. 6 of the form of application. Paragraphs 6 to 10 deal with would-be applicants. Paragraph 11 says that numbertime limit has been fixed for receiving applications from importers who are actual companysumers of industrial raw material and accessories and who have imported the companymodities companycerned during any financial year between 1938-39 and 1947-48 inclusive and that it is hoped to deal with these applications chronologically as and when received. Paragraph 13 describes the authorities to whom applications should be made. A perusal of this numberice shows that it is intended to give information to the public as regards the procedure to be followed in the matter of filing of applications by different categories of applicants. It number only does number on its face purport to be a statutory order issued under a. 3 of the Act, but also the internal evidence furnished by it clearly shows that it companyld number be one under that section. That apart, this order does number amend the previous orders or direct the imposition of a companydition on an importer number to sell the goods to a third party or provide for a penalty for doing s0. Learned companynsel for the respondent asserts that the said public numberice is an order made in exercise of the power companyferred on the Central Government under a. 3 1 of the Act. On the other hand, learned companynsel for the appellants companytends that public numberices are number such orders but only information given to the public for their guidance. Firstly, the said numberice does number purport to have been issued under s. 3 1 of the Act, whereas the orders referred to earlier, that is, numberifications Nos. 23-ITC/43 and 2-ITC/48 and similar others, were issued by the Central Government in exercise of the power companyferred on it by sub- r. 3 of r. 84 of the Defence of India Rules or s. 3 3 of the Act, as the case may be. The Central Government itself makes a clear distinction in the form adopted in issuing the numberice. Secondly, while the numberifications issued under s. 3 of the Act are described as orders, the numberices are described as public numberices while the numberifications under s. 3 of the Act regulate the rights of parties, the public numberices give information to the public regarding the principles governing the issue of import licences for specified periods. It is also clear that the orders issued under s. 3 of the Act, having statutory force, have to be repealed, if the new order in any manner modifies or supersedes the provisions of an earlier order public numberices are issued periodically without repealing or modifying the earlier numberices or numberifications. For instance, on December 7, 1955, the Central Government in exercise of the power companyferred by ss. 3 and 4-A of the Act made an order and under el. 12 thereof the orders companytained in Schedule IV were repeated Schedule IV only mentioned five numberifications issued under s. 3 of the Act, but numberpublic numberice was included in that list. To put it differently, orders made under a. 3 of the Act have statutory force, whereas public numberices are policy statements administratively made by the Government for public information. The foreword to the Import Trade Control Hand- book of Rules and Procedure, 1952, under the signature of the Secretary to the Government of India, in the Ministry of Commerce and Industry brings out this distinction thus In the past the half-yearly publication on Import Control, popularly known as the Red Book, has included number only a statement of policy for the ensuing six months but also a reproduction of various numberifications relating to Import Control and detailed information on points of procedure. It is true the Chief Controller made an affidavit in the High Court that the policy-statements are issued under s. 3 of the Act. But, as we have said, that is only on information which has numbersupport either in the form adopted or the practice followed or the matter incorporated in the numberifications. We have numberhesitation in holding that public numberices are number orders issued under s. 3 of the Act. It follows from the above that the infringement of a companydition in the licence number to sell the goods imported to third parties is number an infringement of the order, and, therefore, the said infringement does number attract s. 167 8 of the Sea Customs Act. Nor is there any legal basis for the companytention that licence obtained by misrepresentation makes the licence number est, with the result that the goods should be deemed to have been imported without licence in companytravention of the order issued under a. 3 of the Act so as to bring the case within cl. 8 of s. 167 of the Sea Customs Act. Assuming that the principles of law of companytract apply to the issue of a licence under the Act, a licence obtained by fraud is only voidable it is good till avoided in the manner prescribed by law. On May 1, 1948, the Central Government issued an order in exercise of the power companyferred on it by s.3 of the Act to provide for licences obtained by misrepresentation, among others, and it reads The authorities mentioned in the Schedule hereto annexed may under one or other of the following circumstances cancel licences issue by any officer authorised to do so under clauses viii to xiv of the numberification of the Government of India in the late Department of Commerce, No. 23-ITC/43, dated 1st July 1943, or take such action as is companysidered necessary to ensure that the same in made ineffective, namely- when it is found subsequent to the issue of a licence that the same has been issued inadvertently, irregularly or companytrary to rules, fraudulently or through misleading statement on the part of the importer company- cerned or when it is found that the licensee has number companyplied with any one or more of the companyditions subject to which the licence may have been issued. SCHEDULE ------------------------------------------------------------- Clauses Licensing Cancelling Authority authority Clause xiii Any officer authorised Chief Con- by the Central Govern- troller of ment. Imports and or Government of India. This order, therefore, authorised the Government of India or the Chief Controller of Imports to cancel such licences and make them ineffective. The specified authority has number cancelled the licence issued in this case on the ground that the companydition has been infringed. We need number companysider the question whether the Chief Controller of Imports or the Government of India, as the case may be, can cancel a licence after the term of the licence has expired, for numbersuch cancellation has been made in this case, In the circumstances, we must hold that when the goods were imported, they were imported under a valid licence and therefore it is number possible to say that the goods imported were those prohibited or restricted by or under Ch. IV of the Act within the meaning of cl. 8 of s. 167 of the Sea Customs Act. It follows that on the assumption that the allegations made in the numberice are true, the tribunal has numberjurisdiction to proceed with the inquiry under s. 167 8 of the Sea Customs Act. Learned companynsel for the appellants further companytends that s. 167 8 of the Sea Customs Act applies only to an act done before or during the companyrse of an import or export into or out of India in companytravention of the prohibition or restrictions imposed under s.3 of the Act and that, as in the instant case the breach of the companydition was companymitted subsequent to the importation of the companycerned goods, the said goods companyld number be companyfiscated, under the said section. But we do number propose to express our opinion on this question, as it does number arise in view of our findings on other questions raised in the case. Before closing we may briefly numberice one more companytention raised by learned companynsel for the appellants. It is said that, as the goods imported were companyverted into money, the Customs Collector has numberjurisdiction to companyfiscate the same and that he can, at the best, only trace the goods in whosesoever hands they may be. We have pointed out that the goods were sold only at the instance of the companyrt in the interest of both the parties, as they were deteriorating. The order is binding on the parties. The sale proceeds are preserved for the benefit of the party who finally succeeds. In the circumstances it is number open to the appellants to argue that money deposited in the companyrt does number represent the goods. In the result, the order of the High Court is set aside and the appeal is allowed with companyts. There will be an order of prohibition restraining the Customs Authority from proceeding with the inquiry under s.167 8 of the Sea Customs Act. By COURT In view of the majority opinion of the Court, the appeal is allowed with companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 183 of 1961. Appeal from the judgment and order dated, April 24, 1959. of the Punjab High Court in I.T.R. No. 18 of 1954. K. Kapur, Bishambar Das and K.K. Jain, for the appellant. N. Rajagopal Sastri and D. Gupta, for the respondent. 1962, March 1. The Judgment of the Court was delivered by K. DAS, J.-On July 23, 1934. the then Government of the Punjab granted a license under s. 3 of Indian Electricity Act, 1910 IX of 1910 hereinafter called the Electricity Act to two persons named Harbhagwan Nanda and Harcharan Dass for the generation and supply of electric energy in the town of Fazilka. The licence, which is marked annexure ,A and forms part of the statement of the case, companytained a clause, viz. el. 9 1 of which read as follows 9. 1 The option, of purchase given by sub- section 1 of section 7 of the Electricity Act shall first be exercisable on the expiration of 15 years from the date of the numberification of this licence and on the expiration of every subsequent period of 10 years. The percentage of the value to be determined in accordance with and for the purpose of sub-section 1 of section 7 of the Electricity Act of lands, buildings, works, materials and plant of the licensee therein mentioned to be added under the second proviso of that sub-section to such value on account of companypulsory purchase shall be 20 percent. Under this clause, read with a. 7 of Electricity Act, the Government bad an option of purchasing the undertaking on the expiration of 15 years from the date of the license and on the expiration of every subsequent period of ten years. In 1935, about a year after the grant of the license, a public limited companypany under the name and style of the Fazilka Electric Supply Co. Ltd which is the appellant herein, was incorporated, and it acquired the rights and privileges of the license known as the Fazilka Electric License, 1934. The appellant carried on the business of generating and supplying electricity in the town of Fazilka in accordance with the terms of the license for 15 years. On the expiration of 15 years from the date of license, the Government of the Punjab exercised its option and acquired the undertaking on July 23, 1949 on a total payment of Rs. 374,000/-, which was in excess of the written down value of the building machinery and plant of the undertaking. In companynection with the assessment of the appellant for the year 1950-51, the Income-tax Officer companyputed such excess realisation over the written down value as did number exceed the difference between the original companyt and the written down value, at Rs. 77,700/- and held that this sum of Rs. 77,700/- was taxable in the hands of the appellant by reason of the provisions in s. 10 2 vii of the Indian Income-tax Act, 1922. The appellant companytended that numberpart of the excess over the written down value, was taxable since the undertaking had number been voluntarily sold, but had been companypulsorily acquired by the Government therefore, the transaction was. number a sale within the meaning of the provisions in s. 10 2 of the Income-tax Act. Both the Income-tax Officer and the Appellate Assistant Commissioner repelled this companytention of the appellant. On an appeal to the Income-tax Appellate Tribunal, the Tribunal also held against the appellant and came to the companyclusion that there was a sale of the building machinery and plant of the undertaking within the meaning of s. 10 2 vii of the Income-tax Act. The appellant then moved the Tribunal for a reference of the following question of law which it said arose out of the Tribunals order Whether on the facts and in the circumstances of this case, and on a true interpretation of section 7 1 of the Indian Electricity Act and clause 9 of the Fazilka Electric License, 1934, the transaction, by which the Government acquired the undertaking, companyld be regarded as a sale within the meaning of section 10 2 of the Income-tax Act ? The Tribunal referred the question to the High Court. The High Court answered the question against the appellant. The appellant then asked for a certificate under s. 66A 2 of the Income-tax Act and having obtained such a certificate, has preferred the present appeal to this Court. Section 10 1 of the Income-tax Act states that Income-tax shall be payable by an assessee under the head Profits and gains of business, profession or vocation in respect of the profit or gains of any business, profession or vocation carried on by the assessee. Sub-section 2 of the said section states that such profits or gains shall be companyputed after making certain allowances referred to in cls. i to xv . Clause vii relates to an allowance in respect of any building, machinery or plant which has been sold or discarded or demolished or destroyed, the allowance being the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant, as the case may be, is actually sold or its scrap value the second proviso to the clause states that where the amount for which any such building, machinery or plant is sold, whether during the companytinuance of the business or after the cessation thereof, exceeds the written down value, so much of the excess as does number exceed the difference between the original companyt and the written down value shall be deemed to be profits of the previous year in which the sale took place. It is number disputed before us that if what took place on July, 23, 1949 in exercise of the option given to the Government under cl. 9 of the license read with s. 7 and other provisions of the Electricity Act, was a sale within the meaning of clause vii , then the amount which the Income-tax, Officer determined to be Rs. 77,700/- would be taxable in the hands of the appellant as profits within the meaning of the said clause. Therefore, the answer to the question which was referred to the High Court depends on whether there was a sale of the building, machinery and plant of the undertaking in question. The learned Advocate for the appellant has companytented before us that the High Court was in error in holding that there was a sale of the building, machinery and plant of the appellants undertaking. He has submitted that a sale involves mutual agreement and a companytract of sale of goods is a companytract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. He has argued that on a proper companystruction of the provisions of the Electricity Act and the rules made thereunder, the so-called sale in the present case was really a companypulsory acquisition of property and number a sale as legally understood therefore, s. 10 2 vii of the Income-tax Act was number attracted to the transaction in question and the excess over the written down value companyld number be deemed to be profits in the hands of the appellant. It is necessary to read here some of the provisions of the Electricity Act and rules made thereunder. Section 3 of the Electricity Act states in effect that the State Government may, on application made in the prescribed form and on payment of the prescribed fee, grant to. any person a license to supply electric energy in any specified area. Sub-section 2 of s. 3 states that in respect of every such license and the grant thereof certain provisions shall have effect one of these provisions is that any person applying for a license shall publish a numberice of his application in the prescribed manner and with the prescribed particulars and numberlicense shall be granted until all objections received by the State Government with reference thereto have been companysidered by it another provision is that the provisions companytained in the Schedule to to the Electricity Act shall be deemed to be incorporated with and to form part of every license granted save in so far as they are expressly added to, varied or exempted by the license. Sections 5 and 7 deal with the purchase of the undertaking in certain circumstances and a. 10 empowers the State Government to vary the terms of purchase. Notwithstanding ss. 5, 7 and 8, the State Government may, in any license to be granted under the Electricity Act, vary the terms and companyditions upon which, and the periods on the expiration of which, the licensee shall be bound to sell his undertaking, or direct that subject to such companyditions and restrictions, if any, as it may think fit to impose, the provisions of the said sections or any of them shall number apply. Now, we may read s. 7 so far as it is relevant for our purpose. 7. 1 Where a license has been granted to any person number being a local authority, and the whole of the area of supply is included in the area for which a single local authority is companystituted, the local authority shall, on the expiration of such period, number exceeding fifty years, and of every such subsequent period number exceeding twenty years, as shall be specifie in this behalf in the license, have the option of purchasing the undertaking, and if the local authority, with the previous sanction of the State Government, elects to purchase, the licensee shall sell the undertaking to the local authority on payment of the value of all lands, buildings, works, materials and plant of the licensee suitable to, and used by him for, the purposes of the undertaking, other than a generating station declared by the license number to form part of the undertaking for the purpose of purchase, such value to be, in case of difference of dispute, determined by arbitration Provided that the value of such lands, buildings, works, materials and plant shall be deemed to be their fair market- value at the time of purchase, due regard being had to the nature and companydition for the time being of such lands, buildings, works, materials and plant, and to the state of repair thereof, and to the circumstance that they are in such a position as to be ready for immediate working and to the suitability of the same for the purposes of the undertaking Provided also that there shall be added to such value as aforesaid such percentage, if any, number exceeding twenty per centum on that value as may be specified in the license, on account of companypulsory purchase. Where- a the local authority does. number elect to purchase under subsection 1 , or b the whole of the area of supply is number included in the area for which a single local authority is companystituted or c a license supplies energy from the same generating station to two or more areas of supply, each companytrolled by its own local authority, and has been granted a license in respect of each area of supply, the State Government shall have the like option upon the like terms and companyditions. 3 x x x 4 x x x 5 x x x The section gives to the local authority and if the local authority does number elect to purchase, to the State Government, an option to purchase the undertaking. If neither is willing to exercise the option on the expiry of period referred to therein then the license may be revoked on an application or by companysent of the licensee. In that case s. 8 lays down that the licensee has the option to dispose of his undertaking to any other person within six months. If the licensee fails to do this, then the Government may remove the works at the companyt of the licensee as laid down in s. 5 of the Electricity Act. We may number turn to the rules in so far as they are relevant to the point under companysideration. The rules lay down that every application for a license shall be accompanied by companyies of a draft license as proposed by the applicant, and the draft license shall companytain, among other particulars, the proposed periods after which the right to purchase is to take effect and a statement of any special terms of purchase or orders proposed to be made under s. 10 and any proposed modification of the Schedule to be made under s. 3, sub- s. 2 , el. f . The applicant shall then publish a numberice of his application by public advertisement, and such advertisement shall include inter alia the draft license. Where any person desires to have any amendment made in the draft license, he shall deliver a statement of the same. The rules further provide for a local enquiry if any person locally interested objects to the grant if and when Government has approved of a draft license, either in its original form or in a modified form, a duty is cast on Government to inform the applicant of such approval and of the form in which it is proposed to grant the license and if the applicant is willing to accept the license in the form proposed, then Government shall on receipt of an intimation in writing of such acceptance publish the license and numberify that it has been granted. If, therefore, the provisions of the Electricity Act are read along with the rules made thereunder, it becomes manifest that the companydition as to the option of purchase, either by the local authority or Government, is the result of an agreement between the applicant who has applied for the license and Government who grants the license. Section 7 of the Electricity Act is merely an enabling provision which allows the parties to specify in the license the periods on the expiration of which the right of option shall be exercised, subject to the maximum ,periods mentioned therein. The true scope and effect of s. 7 is number what the appellant suggests. It merely provides for an option of purchase to be exercised on the expiration of certain periods agreed to between the parties, and s. 10 further provides that in an appropriate case Government may even forego the option. This section does number provide for a companypulsory purchase or companypulsory acquisition without reference to and independent of any agreement by the licensee. Our attention has been drawn to the use of the expression companypulsory purchase in the second proviso to sub-s. 1 of a. 7 and it has been argued that the use of that expression indicates the intention of the Legislature. The second proviso is another enabling provision which enables the parties to specify in the license such percentage,it any,not exceeding twenty per centum, asshould be added to the value of the building, plant, machinery etc. when the option of purchase is exercised. No doubt, the expression used in the proviso is companypulsory purchase but in substance what it provides for is that the parties may agree to increase the market value of the building, plant etc. by a certain percentage when the option of purchase is exercised and the price has to, be paid. The use of the expression if any after the word ,,Percentage shows that the parties may agree number to increase the market value at all. If the whole scheme of the Electricity Act and the rules made thereunder, is kept in mind, it becomes obvious that numberwithstanding the use of the expression companypulsory purchase in the second proviso to sub-s. 1 of s. 7, there is numbercompulsory purchase or companypulsory acquisition in the sense in which that expression is ordinarily understood. The High Court has rightly pointed out that the scheme of the Electricity Act as indicated by the relevant provisions thereof and the rules made thereunder, shows beyond any doubt that the option of purchase is the result of a mutual agreement between the parties, the applicant for the license on one hand and Government on the other. The High Court rightly observed The rules show that a draft license has to be sent by an applicant for license companytaining definite and specific terms on which the license is sought. This amounts to an offer. The Government accepts it or rejects it. If it modifies it in any way, then the applicant or offerer must accept the modification. If the Government accepts the offer with or without modification, then it grants a license. In my view a license granted by the Government in such circumstances amounts to a companytract between the parties. On behalf of the appellant it hag been companytended, somewhat faintly, that all the elements necessary to companystitute a companytract are, number present here. We are unable to agree. There was an undertaking on the part of the applicant for the license to sell the undertaking to the local authority or Government upon certain terms set out in the license, and the time at which the option was to be exercised and the price which was to be paid for the property were specified. There was companysideration for the companytract as the license was granted on those terms. Therefore, all elements necessary for a companytract were present, and the sale in pursuance thereof was number a companypulsory purchaser acquisition. Chhinna Munnuswamy Nayakar 1 We are, therefore, of the opinion that the High Court companyrectly answered the question referred to it. There was a sale in the present case of the building, machinery and plant within the meaning 1 1928 L. R. 55 I.A. 243. of cl. vii of a. 10 2 of the Income-tax Act.In view of this companyclusion it is unnecessary todeal with a somewhat larger question which wascanvassed before us on behalf of the respondentthat s. 10 2 vii of the income-tax Act is attracted even to a companypulsory sale. Nor do we companysider it necessary to examine the decisions bearing upon the question whether a companypulsory transfer to and vesting of property in Government, companystitute a sale within the meaning of the relevant provisions of the Indian or English Statute.

Case appeal was rejected by the Supreme Court

Ltd. v. Union of India Anr. 1961 1 S.C.R. 860, distinguished. Shanker Balaji Waji V. State of Maharashtra, 1962 Supp. 1 C.R. 249, held inapplicable. Dewan Mahideen Saheeb v. United Bidi Workers Union Salem 1964 7 S.C.R. 646 Chintaman Raos case Silver Jubilee Tailoring House Ors, Chief Inspectors of Shops and Establishment Anr. referred to. Syed Saheb Sons v. State of Mysore 1972 Mysore Law Journal 450, approved. Abdul Azeez Sahib and Sons, etc. v. The Union of India, 1973 II M.L.J. 126 Chetabhai Purshottam Patel. Beedi Manufacturers of Bhandara Ors v. Stale of Maharashtra, 1972 1 L.L.J. 130 Chirukandeth Chandrasekharan v. Union of India 1972 1 L.L.J. 340, and Civil Appeals Nos. 1972 and 1968 of 1971 . Andhra Pradesh , over ruled. ALAGIRISWAMI, J, companycurring The Act is the result of a companypromise between the Original intentions of the Government and the modifications they had to make in the proposed measure as a result of companycessions intended to bring home workers within the scope of the Act. The original intention was number to permit beedi rolling in private homes which will involve thousands of labourers in thousands of far-fiung homes and the difficulty of applying the provisions of the measure to them The result is an Act, which is likely to give rise to many difficulties in its actual working. It is obvious on a reading in of the measure that its purpose is to rope in every possible person who companyld be brought in as an employer. But the result of the definitions in the Act is that everybody would be a principal employer and companytractor and every labour will be companytract labour. 252H Clause 2 g b is intended to companyer cases where a person runs business Benami. There can be numberobjection to such a provision. But merely because a person lends or advances money or supplies goods he cannot be called an employer. The words in cl.2 g b who has by reason of his advancing money, supplying goods or otherwise a substantial interest in the companytrol of affairs of any establishment should be struck down. When section 26 provides that every employee in an establishment should be allowed in a calendar year leave with wages at the rate of 1 day for every 20 days of work performed by him during the previous calendar year it leads to real difficulty. The question is what is the wage which has to be paid to him during the period of leave. A home worker might work for 1 hour on one day, 8 hours on another day and number at all for a number, of days. What would be the wages payable to him ? The difficulty of applying the Maternity Benefit Act is again apparent. How can the provisions be applied to women who cannot be said to be employed companytinuously for a certain period before the companyfinement? Under section 31, numberemployer shall dispense with the services of an employee who has been employed for a period of 6 months or more except for a reasonable cause and without giving such employees at least one months numberice or wages in lieu of such numberice. It is number clear as to who will be the employer companypetent to dispense with the services of the employee. 254A, 255C, 256B While Courts should give effect to the intentions of the legislature it can be done only if that is possible without doing violence to the actual language of the statute. The various definitions plainly seek to rope in everybody who has anything to do with the manufacture of beedies and while trying to give effect to the penal provisions in the statute companysiderable difficulties will ,.rise. There will on the one hand be the actual occupier of the industrial premises. There will be on the other hand a person who might have advanced money to him and supplied goods to him and therefore may be substantially interested in its companytrol. The actual occupier himself might be a companytractor and in that case he as well as a person on whose behalf beedis are manufactured would be liable. Who in that case, would be actually liable ? 254c The objection is number to any of the provisions on the grounds of unreasonableness or unconstitutionality. Nobody can dispute the need for setting right the evils. But, good intentions should number result in. a legislation which would become ineffective and lead to a lot of fruitless litigation over the years. It has to be held in agreement with the majority of the High Courts that sections 26. 27, 31 and 37 3 do number apply to the home workers. It would be good in the interest of all companycerned if the Act is amended as early as possible to remove all the lacunas and the difficulties pointed out. The difficulties have arisen because of an attempt blindly to apply the provisions which will be quite workable if they are applied to companyditions where the Factory Act would be applicable. 256F CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1553, 16141618, 1769 of 1971 and 1131-1133 and 1440 of 1972. From the Judgment and Order dated the 24th June, 1971 of the Mysore High Court at Bangalore in Writ Petitions Nos. 806, 837, 1152, 1486, 1592, 1638, 1896, 159, 4152 and 310 of 1970 and 1456 of 1971. Civil Appeals Nos. 2516-2523, 2560, 2569, 2661-2164 of 1972 and 66-69, 72-75, 1307 854-856, 857- 859, 1203 and 1204 of 1973. From the Judgment and Order dated the 8th September, 1972 of the Madras High Court in Writ Petitions Nos. 227, 422, 2631 of 1969, 2692, 2693, 2695 2696, 2698 of 1968, 2680, 2683, 2688, 2689, 2691, 3477, 3478 of 1968, 531, 849, 1065 of 1969, 2681, 3480 of 1968, 40, 169 of 1969, 2854, 2856, 2855 of 1968, 468 of 1969, 2847, 2849, 2850, 2853 of 1968, 3268 of 1968, 211, 231, 276 of 1969, 2701, 2797 of 1968, 212 of 1969, 2684 and 2763 of 1968 . Writ Petitions Nos. 127-132 of 1972. Under Article 32 of the Constitution for the enforcement of fundamental rights . Civil Appeals Nos. 307-311 of 1972. Appeals by Special Leave from the Judgment and Order dated the 30th November, 1971 of the Bombay High Court in Special Civil Application Nos. 2501 of 1968, 785, 2848, 2845 and 2846 of 1969 . Civil Appeal No. 585 of 1971. From the Judgment and order dated the 14th/15th October, 1970 of the Gujarat High Court at Ahmedabad in Special Civil Application No. 872 of 1968 . Civil Appeals Nos. 1864-1873 of 1971 and 173 of 1973. From the Judgment and order dated the 16th/17th July, 1970 of the Bombay High Court Nagpur Bench at Nagpur in Special Civil Applications Nos. 391 to 393 of 1969, 409 of 1968, 451, 453, 513, and 514 of 1969 and 453 of 1969 . Civil Appeals Nos. 1972-1988 of 1971. From the Judgment and Order dated the 26th August, 1970 of the Andhra Pradesh High Court at Hyderabad in Writ Petitions Nos. 2587, 2818, 3007, 3009, 3058, 3156 3254, 3618, 3776, 3824, 3825, 3826, 4364, 4553, 5013, 5174 of 1968 and 1235 of 1969 . Mr. Soli Sorabjee with M s M. Ramachandran, Salindra Swarup, J. B. Dadachanji, O. C. Mathur Ravinder Narain for the Appellant in CAs. 1553/71 for Petitioners. M s M. Ramachandran, Salindra Swarup, J. B. Dadachanji, O. Mathur Ravinder Narain for the Appellant in CA 1769/71 . Mr. K. N. Bhat, for the Appellant in CA. 1614/71 . M s D. V. Patel in C.A. 1615 and S. V. Gupte in C.A. 1616 with M s M. Ramachandran, T. S. Pai and A. S. Nambiar for the Appellants in CAs. 1615 1616/71 . M s T. S. Pai, M. Ramachandran and A. S. Nambiar for the Ap- pellants in CAs. 1617-1618/71 . Mr. K. K. Venugopal with Mr. A. S. Nambir for the Appellants in CAs. 2661-64/72, 66-69/73 and 857-859, 1203 1204/73 Mr. Vineet Kumar for the Appellant in CAs. 1131-1133 1440/ 72 and for Appellants in CA 585/71 . Mr. K. K. Venugopal with Mrs. S. Gopalakrishnan for the Appellant in CAs. 2516-23/72 . Mr. K. K. Venugopal with K. R. Nambiar for the Appellant in CAs. 2560-69/72 72-75/73 . Mr, Niren De with Mr. P, Paramashwara Rao for Respondent No. 1. Mr. Niren De with M s R. N. Sachthey and S. P. Nayar for Respondent No. 1 in CAS. 1614,1616-1618/71, 1131-1133 1440/72 and for Respondent No. 2 in CA 1615/71 . Mr. M. Veerappa, for Respondent No. 1 in CAs. 1553, 1614, 1616, 1.769 and for Respondents No. 1, 3, 4 and 5 in CA. 1615 , for Respondent Nos. 2 to 5 in CAs. 1617-18 for Respondent in CAs. 1131, 1132 1440 , for respondent Nos. 2-3 In CA. 1133 and for Respondent No. 2 In WPs. 127- 128/72 . Mr. S. Govind Swaminadhan with Mr. A. V. Rangam and Miss A Subhashini for Respondent No. 2 in CAs. 2516-23 2560-69, 266164, 66-69, 72-75, 854-59 1203-1204 and for Respondent in CA. 1307/73 . Mr. K. S. Ramamurthy with Mr. A. T. M. Sampath for the Appellant in CA. 1307 . M s. K. S. Ramamurthy and Mr. Y. S. Chitale with M s T. S. Pai and A. S. Nambiar for the Petitioner in WP. 127 . Mr. Y. S. Chitale with M s M. Ramchandran, T. S. Pai and A. Nambiar for the Petitioner in WP. 128 . M s M. Ramachandran, T. S. Pai and A. S. Nambiar for the Petitioner in WP. 129 . Mr. A. S. Nambiar for the Petitioner in WP. 130 . Mr. Niren De with M s P. Parameshwara Rao, R. N. Sachthey, and S. P. Nayar for the Appellants in CAs. 1972-88/71 and for Respondent No. 1 in WP. 127-128 . Mr. D. V. Patel with Mr. P. H. Parekh and Mrs. Sunanda Bhandare for the Appellants in CA. 307-311/72 . Mr. Niren De and Mr. M. C. Bhandare for the State of Maharashtra in CA. 307 31 1 with M s R. N. Sachthey and P. Nayar for Respondents Nos. 1-4 in CAs. 307-308 . Mr. Niren De with Miss S. Chakravarthy and Mr. R. H. Dhebar for the State of Gujarat, M s R. N. Sachthey and S. P. Nayar for Respondent Nos. 1-3 in CA. 585 . Mr. Niren De For Union of India in CA. 1864/71 , Mr. M. C. Bhandare, for the State of Maharashtra in CAs. 1864-1873 , with M s N. Sachthey, and S. P. Nayar for the Appellants in CA. 1864 to 1873/71 and for Respondent No. 2 in CA. 173/73 . Mr. M. N. Phadke with Mr. Rameshwar Nath for Respondents Nos. 1-2 in CA. 1871 and for Appellant in CA. 173 . Mr. Rameshwar Nath, for Respondents No. 1 in CAs. 1864- 69 , and for Respondents Nos. 3, 5-9, 11-13, 15-17 and 20 in CA. 1871 . Mr. M. Krishna Rao with Mr. B. Kanta Rao for Respondent No. 7. M s Narayan Netter and Ram Shesh for the Interveners---Dharwar Distt. Beedi Workers Union, Hubli and Anr. in CA. 1553 . Mr. R.P. Kapoor for Mr. I. N. Shroff for Intervener-State of Madhya Pradesh in CA. 1769 . M s S. R. Bommai, J. B. Dadachanji and P. C.Bhartari for Intervener-Puttappa Veerappa etc. in CA. 1553 . Mr. Rameshwar Nath for Intervener in CA. 1864 . The Judgment of A. N. RAY, C.J., H. R. KHANNA, K. K. MATHEW and P. N. BHAGWATI, JJ. was delivered by RAY C.J. A. ALAGIRISWAMY, J. gave a separate Opinion. RAY, C.J. The provisions of the Beedi and Cigar Workers Condition of Employment Act, 1966 referred to as the Act are impeached as unconstitutional in these petitions and appeals. Broadly stated, the Act is challenged on, these grounds. First, Parliament has numberlegislative companypetence to enact this measure. It is a legislation for regulating beedi and cigar industry. Therefore, it falls under Entry 24 in State List II. Second, the restrictions imposed by the Act violate freedom of trade and business guaranteed under Article 19 i g . The Act imposes unreasonable burdens in cases where a manufacturer or trade mark holder of beedi has numbermaster and servant relationship and numbereffective companytrol on independent companytractors or home-workers. The manufacturer or trade mark holder is rendered liable as the principal employer of companytract labour. Third, section 4 of the Act imposes companyditions which are arbitrary, excessive extraneous. Fourth, Section 7 i c regarding entry into industrial premises, sections 26, 27 regarding annual leave with wages, section 31 regarding one monthss wages in lieu of numberice, section 37 regarding application of Maternity Benefits Act, 1961 and the rules for rejection of beedis are unconstitutional. These provisions are unreasonable res- trictions on the freedom of trade and business. The petitioners and the appellants are of two characters. The majority are proprietors of beedi factories and owners trade mark registered under the Trade Marks Act in relation to beedis. Some are home workers. The beedi industry is widespread in this Country, The manufacture of beedi is done in stages. The tobacco is blended often with some other ingredient. A small quantity of it is put on the beedi leaf which is previously wet to render it flexible to prevent any crushing of leaf and is also cut to size. The beedi leaf is then rolled keeping the tobacco within it and its ends are then closed. The beedis thus rolled are companylected and warmed or roasted after which they are ready for packing, labelling and sale. Where the proprietor owns a trade mark, the trade mark labels are affixed to the. individual beedis as also on the packets. The work of wetting and cutting of the wrapper leaves is one of the items of work in the process. Power is seldom employed for the purpose The industry depends entirely upon human labour. If more than 20 workers are employed in a particular place for the manufacture of beedis, the provisions of the Factories Act, 1940 will apply to the premises. Three systems arc adopted in the manufacture of beedis. First, is the factory system. There the manufacture is an owner of the factory. Workers gather and work under his supervision as his employees. Second is the companytract system of employment. That is the most prevalent form. Under this system, the proprietor gives to the middlemen quantities of beedi leaves and tobacco. The companytractor on receiving the materials manufactures beedis i by employing directly labourers and manufacturing beedis or ii by distributing the materials amongst the home workers, as they are called, mostly women who manufacture beedis in their own homes with the assistance of other members of their family including children. The third system is that the outworkers. They roll beedis out of the tobacco and beedi leaves supplied by the proprietor himself without the agency of middlemen. The beedis thus-supplied whether by the outworkers or companytrac- tors are roasted, labelled and packed by the proprietor and sold to the public. Under these systems, the companytractor engages labourers less than the statutory number to escape the application of the Factories Act. There is a fragmentation of the place of manufacture of beedis with a view to evading the factory legislation. Sometimes there is numberdefinite relationship of master and servant between the actual worker and the ultimate proprietor. Branch managers of companytractors are often men of straw. The proprietor will number be answerable for the wages of the outworkers because there is numberPrivity of companytract between them. A large body of actual workers are illiterate women who companyld with impunity be exploited by the proprietors, and companytractors. There is in this background an indiscriminate and undetectable employment of child labour. The companytractor being himself dependent on the proprietor has little means to have any organized system. Women and infirm can earn something by rolling beedis. The dependence of these people particularly the women shows that they have little bargaining power against powerful proprietors or companytractors. A typical companytractor agrees with the proprietor to purchase tobacoo and to pay for it at the ruling rate and to supply the proprietor with such quantity of beedis as will be fixed by the proprietor. He also undertakes number to use, any tobacoo other than that supplied by the proprietor. The proprietor has the authority to send his representative to inspect the place or places of manufacture. The companytractor undertakes number to enter into any agreement of similar nature with any Other companycern to make beedis The agreement. stipulates that the, companytractor will be the sole employer answerable in regard to the disputes raised by the workers. There was a Royal Commission on Labour in India in 1931. The findings were these. The making of beedi is an industry widely spread over the companyntry. It is partly carried on in the home but mainly in the workshops in the bigger cities and towns. Every type of building is used, but small workshops is there that the graver problems mainly raise. Many of these places are small airless boxes. semi basements with lamp and floors. Sanitary companyveniences and arrangements for removal of refuses are practically absent. Payment is by piece rate. The hours are unregulated. Many smaller workshops are open day and night. There are numberintervals for meals. There are numberweekly holidays. In 1944, the Government of India appointed a Committee under the Chairmanship of Shri D. V. Rege to investigate companyditions of industrial labour. The report referred to the companytract system whereby the factory owner engaged a large number of middlemen supplied them with raw materials and purchased finished products from them. The report found that unhealthy working companyditions, long hours of work, employment of women and children, deduction from wages and the sub-contract system of Organisation required immediate attention. It was desirable to abolish outworker system and to encourage establishment of big industries if protective labour legislation was to be enforced with success. In 1946, the Government of Madras appointed a Court of Inquiry into labour companyditions in beedi, cigar, snuffcuring and tanning industries. There were 90,000 workers depending on beedi industry ill Madras. of these, 26,500 workers were women. Employment of children in the Industry was universal. 2/5th of the total workers were children. Home workers were predominant. There were full time workers but they were paid less than fair wages. Working companyditions were extremely unsatisfactory from the standpoint of floor space, sanitation, ventilation and lighting. In 1954, the Government of India appointed Shri Natraj Inspector of Factories to assess the situation with a view to affording maximum legislative protection to the workers. The Report was as follows. Although the number of workers engaged in the manufacture of beedi exceeded one lakh, only 17,544 were employed in factories. The companytract and home work systems enriched proprietor at the expense of the worker and also deprived the latter of his bargaining power in regard to companyditions of labour. The poverty as well as illiteracy of the workers was taken advantage of by the employers. There were long hours of work with low wages, deplorable working companyditions and unrestricted employment of women and children. The entire beedi industry was unorganised and scattered over the entire state, employing a large force of women. It called for radical reforms in the organisation. There was reluctance of the manufacturer to provide certain amenities to the workers such as rest sheds, canteens, creches, ambulance room, etc. Under the indirect employment system companyditions obtaining in the industry were still worse. The middlemen companytractors did number observe any higher standards in the premises than in those under the manufacturers. The Payment of Wages Act applied to factories, but it was difficult to detect violations of the Act because the prescribed registers were number maintained. The Madras Maternity Benefit Act which applied to factories was rendered practically ineffective as far as petty industry was companycerned because there was numberrecord to prove that women were employed. The Report stated that the employers succeeded in organised circumvention of all existing legislation by resorting to splitting up of their factories into smaller units run by companytractors who bad numberknowledge in respect or working places. The companyditions in working places were bad. The Report suggested licensing of premises to fix responsibility of the employer for maintenance of minimum standards of ventilation, lighting and sanitation in working places. The employment of women and children, wages and wage struc- ture in the industry were all companysidered by the Committee. The Committee recommended solution of unhealthy working companyditions under miserable environments, long working hours with its attendant evils, unregulated employment of women and children and deduction from wages. The companytract of home work system of employment was found to be designed solely for the promotion of trade but number the industry of which the labour forms the integral part. It was, therefore, expected that the beedi industry should carry the labour along with it as it developed and was organised in such manner that it discharged its social and moral responsibilities towards the workers. It is in this background that the Act came into existence. In State of Madras v. Rajagopalan, 1955 2 SCR 541 this Court held that the previous material in the shape of Reports of Commissions of review the working of the industry was admissible in evidence about the prevailing system and companyditions of industry. The Beedi and Cigar Workers Conditions of Employment Act, 1966 is an Act to provide for the welfare of the workers in beedi and cigar establishments and to regulate the companyditions of their work and for matters companynected therewith. The special feature of the industry was the manufacture of beedis through companytractors and by distributing work in the private dwelling house, where the workers took raw materials given by the employers of companytractors. The relationship between employers and employees was number well defined. The application of the factories Act met with difficulties. The labour in the industry was unorganised and was number able to look after its own interests. The industry was highly mobile. The attempt of some of the States to legislate in this behalf was number successful. The necessity for central legislation was felt. A bill was mooted to provide for the regulation of the companytract system of work, licensing of beedi and cigar industrial premises and matter like health, hours of work, spread over, rest periods, over time, annual leave with pay, distribution of raw materials etc. The anxiety was expressed by several Committees to introduce some regulation in the employer-employee relationship and to obtain certain benefits to the employees which were denied to them. The so-called companytractor or the employer as styled by the employees has been a matter of some companycern to the employees as well as to the State. There were certain good and bad points about the systems that were prevalent in the manufacture of beedi. The companytractor was very often a man of straw. He was said to be the creation of the principal employer who put him forward on many occasions as a screen to avoid his own responsibility towards the employees. Another broad grievance was that there was double checking and rejection of beedis or double chhat, out of which the second chhat at the principal employers place was invariably in the absence of the employee. This chhat was alleged to be most irrational and depending upon the whim of the employer. As far as the house work system was companycerned there was an advantage to the employee with some kind of disadvantage to the employer. Persons who companyld spare time in their houses but companyld number move out for the purpose of employment got ready employment and companyld supplement their income from agriculture or other sources. They were in a position to work as and when leisure was available and like a factory employee there was numberrigour of attending the factory or work at stated time and for stated number of hours. It appeared that pilfering was a vice of this industry. By pilfering tobacco which is the most valuable ingredient, the employees were able to earn some income by again rolling it into beedis and selling them. The relationship between the proprietor, middlemen and outworkers came up for companysideration in this Court in Chintaman Rao Anr. v. The State of Madhya Pradesh 1958 SCR 1340. The proprietor of a beedi factory was prosecuted under the Factories Act for numbercompliance with the provisions of that Act. The proprietor pleaded that the workers were number under his employment. The companytention was that the sattedars who were found in the factory were independent companytractors and number workers. The management issued tobacco and sometimes beedi leaves to sattedars who manufactured beedis, in their own factories or by an arrangement with a third party. The sattedars companylected the beedis thus made and supplied to the factories for a companysideration. It was held that the sattedars were independent companytractors and number the agents. The enforcement of factory and labour legislation companyld be rendered impossible by adopting the simple device of disintegrating what numbermally will be a factory. The legislature wanted to regulate the companytract system. The legislation did number want to stop the companytract system. The provisions in the Act recognised the companytractor as a part and parcel of the beedi industry. The companytractor is referred to where the terms companytract labour or principal employer of employer have been defined. Several functions which the employer has to perform are also performed by the companytractor. He delivers tobacco and leaves to the home worker and companylects the rolled beedis after application of chhat. He makes payment to them. Therefore, the companytractor has been retained as an integral part though the attempt is to eliminate the vices which crept into the industry. The Madras High Court in M s. K. Abdul Azeez Sahib and Sons, Four Horse Beedi Manufacturers, Vellore--4 and Ors. v. The Union of India 1973 11 M.L.J. 126 held the definitions of employer and principal employer in Section 2 g a and 2 m of the Act to be-valid but held that sections 26 and 27 of the Act are wholly unenforceable against the trade mark holders whether with reference to home workers or with reference to employees working in any industrial premises. The Madras High Court held that since a worker in a beedi industry is number required to work regularly for any prescribed period of hours in a day or even day after day for any date specified period, from the very nature of the case, the provisions in the Maternity Benefit Act, 1961 are unworkable with regard to such home workers, and, therefore, they will have numberapplication to them. The Madras High Court held that section 7 1 c , 7 2 , 26, 27, 31, and 37 3 in so far as they relate to home workers are ultra vires and illegal and unenforceable against trade mark holders in beedis and companytractors in the manufacture of beedis. The Madras High Court held that section 7 1 c , 7 2 , 26 and 27 are ultra vires and illegal and unenforceable against the petitioner who are manufacturers of cigar or cigar rollers. The Bombay High Court in M s. Chotabhai Purshottam Patel, Beedi Manufacturers of Bhandara Ors. v. State of Maharashtra by Secretary, Industries and Labour Department, Sachivalaya, Bombay Ors. 1972 1 L.L.J., 130 held that the provisions of section 2 g a and 2 m of the Act are invalid to be in excess of the requirements of the situation because if the principal employer is fared with the pro- position of bearing all the civil and criminal responsibilities of omission and companymission of companytractors under him the inevitable result will be that the manufacturer will give up the Gharkata system and may think of some other system less onerous under the Act. The Bombay High Court also said that the words in relation to other labour companytained in section 2 g b are to be deleted. The Bombay High Court further held that the provisions of sections 26 and 27 of the Act will number apply to home workers at all. The Mysore High Court in P. Syed Saheb Sons. v. State of Mysore 1972 Mysore Law Journal 450 held that sections 3 and 4 of the Act are companystitutional and number violative of Articles 14 and 19 1 g of the Constitution. Section 3 of the Act prohibits establishment of an industrial premises without obtaining a licence granted under the Act. Section 4 of the Act provides for the procedure for the issue, renewal and cancellation of a licence. The Mysore High ,Court further held that sections 26 and 27 of the Act are number unreasonable restrictions and it is possible to find out whether a home worker has qualified himself for annual leave and it is possible to make up for the lost wages. The Mysore High Court also held that section 31 ,of the Act is valid and Rule 29 does number impose unreasonable restriction by companypelling the employer to accept beedis when they are sub- standard and the sub standard beedis and cigars exceed 5 per cent. If the employer finds that the sub standard beedis and cigars are above 5 per cent then he has to refer the matter to the Inspector. The Kerala High Court in Chirukandeth Chandrasekharan v. Union of India 1972 1 L.L.J. 340 held that the provisions of sections 2 g a , 2 m 3, 4, 21, 26 and 27 of the Act impose unreasonable restrictions on business or trade and are violative of-Article 19 1 g of the Constitution. The Kerala High Court held that the words in relation to other labour occurring in section 2 g b have also to, be deleted. The Kerala High Court held sections 3 and 4 to be valid. The Kerala High Court held that sections 26 and 27 will number apply to home workers. The Kerala High Court struck down rule 29 of the Kerala Rules on the ground that imposition of 5 per cent on the maximum amount of rejection is an arbitrary percentage. Kerala Rule 29 stated that numberemployer shall ordinarily reject more than 2-5 per cent. The provision states that there- can be rejection up to 5 per cent for reasons recorded in writing. This imposition of 5 per cent limit in the proviso was companystrued by the Kerala High Court to be unreasonable in as much as the quality of beedis would go down if the workers are assured that more than 5 per cent will number be rejected. The Andhra Pradesh High Court in Civil Appeals Nos. 1972 and 1988 of 1971, held that sections 3 and 4 of the Act offend Articles 14 and 19 1 g of the Constitution and are, therefore, void. The Andhra Pradesh High Court came to the companyclusion that the provisions companytained in sections 3 to 27 of the Act do number apply to home workers. The High Court held that the Act is applicable to an independent companytractor where he is employing labour for and on his own behalf. There he is the principle employer. No artificial relationship of master and servant arises as a result of the operation of the definitions in section 2 g a b and 2 m of the Act. The Gujarat High Court, in Civil Appeal No. 585 of 1971, upheld the provisions of the Act to be companystitutional. The first companytention on behalf of the petitioners and the appellants is that the Act of 1966 is invalid on the ground of lack of legislative companypetence. The High Courts of Madras, Kerala, Gujarat, Mysore and Andhra Pradesh have rightly held the Act to have companystitutional companypetence. Counsel on behalf of the petitioners companytended that entry 24 in list II is the only legislative Entry for the piece of Legislation. Entry 24 speaks of industries subject to the, provisions of Entries 7 and 52 of list I. Entry 7 in List I speaks of Industries declared by Parliament by law to be necessary for the purpose of defence or for the projection of war. Entry 52 in List I speaks of Industries the, companytrol of which by the Union is declared by Parliament by law to be expedient in the public interest. The legislation in the present cast does number fall within Entry 24 in List II or Entries 7 and 52 in List Entry 24 in List III speaks of Labour including companyditions of work, provident funds, employers lability, workmens companypensation, invalidity and old agepensions and maternity benefits. The Act is for welfare of labour. It is number an Act for industries. The true nature and character of the legislation shows that it is for, enforcing better companyditions of labour amongst those who are engaged in the manufacture of beedis and cigars. The scheme of the Act relates to provisions regarding health and welfare, companyditions of employment, leave with wages, extension of benefits by applying other Act to Labour. To illustrate section 28 of the Act extends benefits of the Payment of Wages Act to, industrial premises, Section 31 of the Act provides for security of service, Section 37 of the Act extends the benefit of Industrial Standing Orders Act, 1946. Again, section 37 3 of the Act makes provisions of the Maternity Benefit Act applicable to every establishment. Section 38 1 of the Act applies the safety provisions companytained in Chapter IV of the Factories Act to industrial premises. Section 39 1 of the Act makes the Industrial Disputes Act, 1947 applicable to matters ,arising in respect of every industrial premises. Section 39 2 of the Act provides that disputes between an employee and an employer in relation to issue of raw materials, rejection of beedis and cigars, payment of wages for the beedis and cigars rejected by the employer, shall be settled by such authority as the State Government may specify. An Appeal is provided to the appellate authority whose decision is final. Section 39 1 of the Act applies to industrial premises. Section 39 2 of the Act applies to every establishment. The Act speaks of licensing of industrial premises. The benefits under the Act are extended to both industrial premises and establishments. Establishments mean also places where home workers work. The pith and substance of this Act is regulation of companyditions of employment in the beedi and cigar industry. The Act deals with particular subject matter as regards the establishments and industrial premises. These matters are regulation of companyditions of employment in the industry and the industrial relations between the employer and the employee. Entries 22 to 24 in List III are wide enough to companyer this piece of labour welfare measure. Entry 22 deals with labour welfare. Entry 23 deals with social security, employment and unemployment. Entry 24 deals with welfare of labour including companyditions of work, provident funds, employers liability, workmens companypensation, invalidity and old age pensions and maternity benefits. The Act is valid and falls within Entries 22, 23, and 24 of List III. Sections 3 and 4 of the Act were challenged as violative of Article 19 1 g and Article 1.4 on account of procedural unreasonableness and companyferment of unfettered powers on the licensing authority without the requisite safeguards. These two sections require licence in respect of industrial premises. The provisions are applicable both to trade mark holders as well as companytractors. There is numberdifficulty with regard to manufacturers to obtain licence in respect of industrial premises. If companytractors are employers of labour for and on their own behalf, the companytractors will have to obtain licences for manufacture of beedis in industrial premises. The relevant authorities have to refer to certain matters in the grant of refusal of a licence. These matters as set out in section 4 of the Act are a suitability of the place of premises which is proposed to be used for the manufacture of beedi or cigar or both b the previous experience of the applicant, c the financial resources of the applicant including his financial capacity to meet the demands arising out of the provision of the laws for the time being in force relating to the welfare of labour d whether the application is made bonafide on behalf of the applicant himself or any ,other person and e welfare of the labour for the locality in the interest of the public generally and such other matters as may be prescribed. The licensing authority is required to companymunicate his reason in writing when he refuses to grant a licence. Section 5 of the Act provides an appeal to the appellate authority against such order. The power to grant or refuse a licence is sufficiently companytrolled by necessary guidance. There are safeguards preventing the abuse of power. The right to appeal is a great safeguard. The various matters indicated in section 4 in regard to the grant of licence indicate number only the various features which are to be companysidered but also rule out any arbitrary act. There is machinery as well as procedure for determining the grant of refusal of a licence. The application for grant of a licence is to be determined on objective companysideration as laid down in the section. There is neither unfairness number unreasonableness in sections 3 and 4 of the Act. The validity of the Act was challenged on the principal ground that the Act imposed unreasonable restrictions on the manufacturers in their right to carry on trade and business in the manufacture of beedis and cigars. The unreasonable restriction was said to be the imposition of vicarious liability on the manufacturers for acts and omissions in case of independent companytractors through whom they get beedis and cigars and over whose employees they do number have any companytrol and with whom they do number companye in companytract. The. provisions of section 2 g a and 2 m read with sections 2 e and f of the Act are said to create a totally artificial and fictional definition of employer and thereby to cast vicarious liabilities upon a manufacturer of and trader in beedis in respect of diverse matters which entail civil and criminal liabilities. Liabilities are imposed on manufacturer or trader in beedis in respect of home workers whom it is said, they cannot companytrol. The home workers are in thousands. It is impossible for a manufacturer to have any idea of the identity of the persons rolling beedis or the premises where they work. Raw materials are delivered to workers to do the work of rolling the beedis himself and number having done by any other person. It is, therefore, said there is numberrational basis for imposing vicarious liability. Though liabilities and obligations are great in relation to companytract labour there is said to be numbercorresponding creation of rights which numbermally exist in employer in respect of his employees. The cumulative effect and impact of the various provisions of the Act imposing liability on the manufacturer is said to render it impossible for the manufacturer or trader to carry on his business. From a companymercial point of view, the restrictions are said to be drastic and unreasonable. The Act defines in section 2 e companytract labour meaning any person engaged or employed in any premises by or through a companytractor with or without the knowledge of-the employer in any manufacturing process. Section 2 f of the Act defines employee to mean a person employed directly or through any agency whether for wages or number in- any establishment to do any work skilled and unskilled and includes i any labour who is given raw materials by an employer or a companytractor for being made into beedi and cigar or both at home hereinafter referred to in this Act as home worker and ii any person number employed by an employer or a companytractor but working with the permission of, or under agreement with, the employer or companytractor. Section 2 g of the Act defines employer to mean a in relation to companytract labour the principal employer, and b in relation to other labour, the person who has the ultimate companytrol over the affairs of any establishment or who has, by reason of his advancing money, supplying goods or otherwise, a substantial interest in the companytrol of the affairs of any establishment, and includes any other person to whom the affairs of the establishment are entrusted, whether such other person is called the managing agent, manager, superintendent or by any other name. Section 2 m of the Act defines principal employer to mean a person for whom or on whose behalf any companytract labour is engaged or employed in an establishment. Section 2 h of the Act defines ,establishment to mean any place or premises including the precincts thereof in which or in any part of which any manufacturing process companynected with the making of beedi or cigar or both is being or is ordinarily, carried on and includes an industrial premise Section 2 i of the Act defines industrial premises to mean any place or premises in which any industry or manufacturing process companynected with the making of beedi or cigar or both is being or is ordinarily, carried on with or without the aid of power. These definitions indicate these features. First, there are workers in industrial premises and workers in establishment. Second, the Act recognizes home workers. Third, the Act recognises companytract labour by or through companytractor. Fourth, any person who is given raw materials by an employer or a companytractor is an employee. Again, any person though number employed by an employer or a companytractor but working with the permission or under agreement with the employer or a companytractor is an employee. Fifth, in relation to companytract labour the principal employer is a person for whom and on whose behalf labour is engaged or employed in an establishment. Sixth, the employer in relation to other labour is a person who has ultimate companytrol over the affairs of any establishment or who has by reason of advancing money, supply goods or otherwise a substantial interest in the affairs of any establishment. The two classes of employers are broadly defined as the employer and the principal employer. The first kind is the manufacturer who directly employs labour. Such a manufacturer becomes, an employer within the meaning of Section 2 g b of the Act by engaging labour. The second class of employer is the principal employer who through a companytractor as defined in section 2 a of the Act engages labour which is known as companytract labour. This labour is engaged by or on behalf of the manufacturer who becomes the principal employer. The third category of employer is a companytractor who engages labour for executing work for and on his own behalf. Such a companytractor may undertake work from a manufacturer or a trade mark- bolder but he becomes the principal employer in relation to companytract labour on the ground that the labour is engaged for and on his own behalf. The fourth class of employer is where a companytractor becomes what is known ,is sub-contractor, of a companytractor. A companytractor in such a case would ask the sub- companytractor to engage labour for and on behalf of the company- tractor. In such a case the companytractor would be the principal employer because the sub-contractor is engaging companytract labour for and on behalf of the companytractor who is the principal employer. The fifth class of employer is where a person by reason of advancing money or supplying goods or otherwise having a substantial interest in the companytrol of any establishment becomes the employer of labour. To illustrate, a mortgagee in possession of an industrial premises, a hypothetic of goods manufactured in industrial premises or in any establishment, a financier in relation to a manufacturer or a companytractor or a sub-contractor may become employer by reason of such companysideration mentioned in the Act. In cases where the manufacturer or trade mark holder himself employs labour there is direct relationship of master and servant and therefore liability is attracted by reason of that relationship. There cannot be any question of unreasonableness in such a case. In the second category the manufacturer of trade mark holder engages companytract labour through a companytractor and he becomes the principal employer. Though such labour may be engaged by a companytractor with or without the knowledge of the manufacturer or trade mark holder, this companytract labour is engaged for the principal employer who happens to be the trade mark holder or the manufacturer. The liability arises by reason of companytract labour engaged for or on behalf of the principal employer. In the third category, the companytractor becomes the Principal employee because the companytractor engages labour for or on his own behalf. Where the companytractor engages labour for the manufacturer it. is number unreasonable restriction to impose liability on tile manufacturer for the labour engaged by the manufacturer through the companytractor. It is important to numberice that the Act fastens liability on the person who himself engages labour or the person for whom and on whose behalf labour is engaged or where a person has ultimate companytrol over the affairs of the establishment by reason of advancement of money or of substantial interest in the companytrol of the affairs of the establishment. Therefore, the manufacturers or trade mark borders have liability in respect of workers who are directly employed by them or who are employed by them through companytractors. Workers at the industrial premises do number present any problem. the manufacturer or trade mark holder will observe all the provisions of the Act by reason of employing such labour in the industrial premises. When the manu- facturer engages labour through the companytractor the labour is engaged on behalf of the manufacturer, and the latter has therefore liability to such companytract labour. It is only when the companytractor engages labour for or on his own behalf and supplies the finished product to the, manufacturer that he will be the principal employer in relation to such labour and the manufacturer will number be responsible for implementing 3--954SCI/74 the provisions of the Act with regard to such labour employed by the companytractor. if the right of rejection rests with the manufacturer or trade mark holder, in such a case the companytractor who will prepare beedis through the companytract labour will find it difficult to establish that he is the independent companytractor. If it is a genuine sale transaction by the companytractor to the manufacturer or trade mark holder it will point in the direction of an independent companytractor. This Court in Dewan Mohideen Sahib v. United Bidi Workers Union Salem, 1964 7 S.C.R. 646 said that the so called independent companytractor in that case was supplied with tobacco and leaves and was paid certain amounts for the wages of the workers employed and for his own trouble. The so called independent companytractor was merely an employee or an agent of the appellant in that case. The so called independent companytractor had numberindependence at all. The proprietor companyld at his own choice supply raw material or refuse to do so. The companytractor had numberright to-.insist on supply of raw materials to him. The work was distributed between a number of so called, independent companytractors, who were told to employ number more than 9 persons at one place to avoid regulations under the Factories Act. This Court held that the relationship of master and servant between the appellant and the employees employed by I the independent companytractor was established in that case. If it is found that manufacturers or trade mark holders are number responsible on the ground that the person with whom they are dealing are really independent companytractors then such independent companytractors will have to be companysidered as principal employers within the meaning of the Act. The companytention on behalf of the petitioners and the appellants is that in companymon law a person cannot be made responsible for actions of an independent companytractor and that he should number be penalised for the companytravention of any law by an independent companytractor is to be examined in view of the language employed in defining the expressions companytract labour, companytract, establishment, employer and principal employer. It was particularly said that when home workers wore given tobacco and leaves directly by the manufacturers the home workers would number be under their companytrol and the manufacturers should number be made responsible for providing any amenities or leave facilities for those home workers. This Court in Silver Jubilee Tailoring House Ors. v. Chief Inspector of Shops and Establishments Anr. Civil Appeal No. 1706 of 1969 decided on 25th September, 1973 discussed the question as to whether employer employee relationship existed between the tailoring house and the workers in that case. The definition of a person employed in that case was a person wholly or principally employed therein in companynection with the business of the shop. The workers were paid on piece rate basis. They attended the shops if there was work. The rate of wages paid to the workers was number uniform. The rate depended upon the skill of the worker and the nature of the work. The workers were given cloth for stitching. They were told bow the stitching was to be done. If they did number stitch it according to the instructions, the employer rejected the work. The worker was asked to restitch. If the work was number done according to the instruction numberfurther work was given to a worker. A worker did number have to make an application for leave if he did number companye to the shop on a day. if there was numberwork, the employee was free to leave the shop. All the workers worked in the shop. Some workers companyld take cloth for stitching to their homes. Mathew, J. speaking for the Court referred to the decisions of this Court and English and American decisions and cameto these companyclusions. First, in recent years the companytrol test as traditionally formulated has number been treated as an exclusive test. Control is an important factor. Second, the organisation test, viz., that the workers attend the shop and work there is a relevant factor. If the employer provides the equipment this is some indication that the companytract is a companytract of service. If the other party provides the equipment this is some evidence that he is an independent companytractor. No sensible inference can be drawn from the factor of equipment where it is customary for servants to provide for their own equipment. Little weight can today be put upon the provisions of tools of minor character as opposed to plant and equipment on a large scale. Third, if the employer has a right to reject the end product if it does number companyform to the instructions of the employer and direct the worker to restitch it, the element of companytrol and supervision as formulated in the decisions of this Court is also present. Fourth, a person can be a servant of more than one employer. A servant need number be under the exclusive companytrol of one master. He can be employed under more than one employer. Fifth, that the workers are number obliged to work for the whole day in the shop is number very material. In the ultimate analysis it would depend on the facts and circumstances of each case in determining the relationship of master and servant. The present legislation is intended to achieve welfare benefits and amenities for the labour. That is why the manufacturer or trade marks holder becomes the principal employer though he engages companytract labour through the companytractor. He cannot escape liability imposed on him by the statute by stating that he has engaged the labour through a companytractor to do the work and therefore he is number responsible for the labour. The Contractor in such a case employs the labour only for and on behalf of the principal employer. The companytractor being an agent of the principal employer for manufacturing beedis is amenable to the companytrol of principal employer. That is why the statute says that even if the companytract engages labour without the knowledge of the employer the principal employer is answerable for such labour because the labour is engaged for or on his behalf. The act and the Rules thereunder prescribe maintenance of log books and registers. Where the manufacturer or the trade mark holder engages labour directly, the manufacturer maintains registers and lo books. Where the manufacturer engages companytract labour through a companytractor the manufac- turer will require the companytract or to maintain such log books of the companytract labour and through such books and registers win keep companytrol over number only the companytractors but also the labour. The principal employer is the real master of the business. He has real companytrol of the business. He is held liable because he exercises supervision and- companytrol over the labour employed for and on his behalf by companytractor. The benefits of the welfare measure reach the workmen only by direct responsibility of the principal employer. The basis of the welfare measure is in the interest of the workers with regard to their health, safety and wages including benefits of leave and family life. The Bombay High Court and the Kerala High Court struck down the provisions companytained in sections 2 g a and 2 m of the Act in regard to the principal employer being liable for companytract labour as an unreasonable restriction on the manufacurers right to carry on business. This view proceeds on the basis that the principal employer is liable for acts of the independent companytractor. The Act does number define an independent companytractor, number mention the independent companytractor. The Act speaks of the principal employer in relation to companytract labour and employer in relation to other labour. When a companytractor engages labour for or on behalf of another person that other person becomes the principal employer. The Attorney General rightly said that if it were established on the facts of any particular case that a person engaged labour for himself he would be the principal employer of companytract labour. In such an instance there is numberquestion of agency on behalf of another person. In cases where an industrial manufacturer finds it companyvenient to give work on companytract rather than do it employing his own man he cannot have the advantages of employing the labour without companyresponding obligations. If the companytractors companyld be made responsible for the working companyditions of labour or their wages or their leave or their other benefits than numberquestion would arise. It is number uncommon for labourers to work for a companytractor on terms which are designed to satisfy the law that they are number servants but independent companytractors. In the present case, it is number material to find out as to who can be called an independent companytractor. It can be said that independent companytractors are those who employ labour for and on behalf of themselves in so far as the present Act is companycerned. The only scope for inquiry is whether a person has employed labour for and on his own behalf. If the answer be in the affirmative then such a companytractor would be a principal employer within the meaning of section 2 g a . It appears that the principal employer or the employer, as the case may be, is liable on the ground that the labour is employed for or on behalf of the principal employer or the employer. In relation to companytract labour the principal employer is the person for whom or on whose behalf any companytract labour is engaged in any establishment. An em- ployer in relation to other labour is the person who has the ultimate companytrol over the affairs of any establishment or has a substantial interest in the companytrol of the affairs of any establishment as defined in section 2 g b of the act. There is numbervicarious liability in the case of the principal employer or in the case of employer The Act does number define an independent companytractor. The Act does number prevent an independent companytractor from being the principal employer in relation to companytract labour. It will be a question of fact in each case as to who is the person for whom or on whose behalf companytract labour is engaged. If such a companytractor who is referred to as an independent companytractor employs labour for himself the liability will attach to him as the principal employer and number to the manufacturer or trade mark holder. There is numberrestriction on the right of the manufacturer or the trade mark holder to carry on business. They are liable under the Act for companytract labour employed for or on behalf of them. For the foregoing reasons the provisions of the Act in particular companytained in sections 2 g a , 2 g b and 2 m are companystitutionally valid and do number impose any unreasonable restriction on the manufacturer or trade mark holder. On behalf of the petitioners and the appellants, it is said that section 26 of the Act gives substantive rights wit I regard to leave and section 27 of the Act is the procedural part in companyputing wages. The companytention advanced was that section 26 of the Act speaks of employees in an establishment and, therefore, these sections do number apply to home workers- The companytentions are that sections 26 and 27 of the Act cast an unreasonable burden and impose obligations which are number practically capable of fulfillment and are thus violative of Articles 19 1 f and g of the Constitution. In any event sections 26 and 27 of the Act ire said to be unenforceable in regard to home workers and are, therefore, violative of Articles 19 1 f and g so far as the same are applicable to home workers. These two sections deal with leave and wages during leave period. Broadly stated, section 26 allows leave at the rate of one day for every 20 days of work performed by an adult employee during the previous calender year. In the case of a young person leave is at the rate of one day for very 15 days of work during the previous calender year. There are provisions as to calculation of leave which are number material in the present case. Under section 27 of the Act an employee shall be paid at the rate equal to the daily average of his full time earning for the days on which he had worked during the month immediately preceding his leave exclusive of any overtime earnings and bonus but inclusive of dearness and other allowances. There are two explanations. The first explanation states that the expression total full time earning includes cash equiva- lent to the advantage accruing through the companyfessional sale to employees of foodgrains and other articles, as the employee is for the time being entitled to, but does number include bonus. The second explanation states that for the purpose of determining the wages payable to a home worker during leave period or for the purpose of payment of maternity benefit to a woman home worker day shall mean any period during which such home worker was employed, during a period of twenty four hours companymencing at midnight, for making beedi or cigar or both. The word establishment is defined in section 2 h of the Act to mean any place or premises including the precincts in which or in any part of which any manufacturing process companynected with the making of beedis or cigars or both is carried on and it includes an industrial premises. Section 2 i of the Act defines industrial premises to mean any place or premises number being a private dwelling house where the industry or manufacturing process of making beedis or cigar is carried on. An Employee is defined in section 2 f of the Act to mean any person employed directly or through any agency in any establishment and include any labour who is given raw materials by an employer or a companytractor at home referred to as the home worker and person employed by an employer or a companytractor but working at the premises with the employer or companytractor. Therefore, the words employed in an establishment in section 26 of the Act are referable to home, workers as well. The second explanation to section 27 of the Act also speaks of determination of wages payable to home worker during leave period. It was said that the words total full time earnings occurring in section 27 of the Act were inapplicable to home workers for these reasons. First a home worker with the assistance of his family members companyld companylect large earnings in a month preceding the month in which he would take leave. This was said to be an unreasonable restriction on an employer inasmuch as a home worker would number work hard or perhaps at all for a companysiderable period of time and would work only in the month preceding which he would take leave. It is number possible for a home worker to. increase his earnings because the employer will have companytrol over raw materials supplied to home worker as also on the daily turnover. An employer is in a position to prevent malpractice or abuse of taking more materials to make a higher income. It is also reasonable to hold that an employer will number allow an employee on increasing the income. It was secondly said that section 27 of the Act did number prescribe the minimum number of days an employee should work before he was entitled to annual leave wages. Reference was made to section 79 1 of the Factories Act 1948 which provides for 240 days of work as minimum for entitlement of annual leave. The provisions in section 26 of the Act is that for every 20 days one days leave is allowed. If any worker does number work hard one will number be entitled to leave as companytemplated in the Act. The basis of calculating one days leave for every 20 days of work is also adopted in the case of Government servants. See Central Civil Service Leave Rules, 1972 Rules 26 and 2 m . Instead of being unreasonable it can be said to be an impetus to a servant to put in the maximum of work in order to obtain the maximum amount of leave. The entitlement to leave under section 27 of the Act is based on the number of days of actual work. It is, therefore, number an unreasonable restriction on the employer. Thirdly it is said that the payment of leave wages at the rate equal to the daily average of his total full time earnings in the case of home workers is unreasonable. Reference is made to section 22 of the Act which speaks of numberice of periods of work in industrial premises. Section 22 of the Act is number applicable to home workers. In the case of home workers it is said that they are free to do work at any time and for any length of time in a day even for 24 hours a day. It is, therefore said that it will be difficult to calculate the total full time earnings of home workers. The works in section 27 of the Act are total full time earnings. One meaning of the words in the case of home workers will be daily average hours of work done by home worker during the last month before leave provided such average does number exceed the daily period of work as prescribed in a numberice under section 22 of the Act. Such a companystruction would give number only full meaning to the words full time earnings but would also place home workers and workers in industrial premises in the same position with regard to their leave wages. It will number cast unreasonable burden on the employer in the form of leave wages disproportionate to the amount of work done by the home workers. Another meaning is that the total full time earnings would be the actual total earnings as far as the workers in industrial premises as well as home workers are companycerned. With regard to the second meaning the words full time will number have any restriction as to hours of work. The result may be that a home worker may have longer hours of work and larger income companypared with the worker in the industrial premises, but such longer hours of work can be companytrolled by an employer both with regard to giving raw materials and allowing longer hours of work. As a matter of fact it is found that home workers can turn out 700 to 1000 pieces a day. That is the view expressed in the Report of the Royal Commission on labour in India 1931 as also the Labour Investigation Committee Report 1944 and the Report of the Court of Enquiry appointed by the Government of Madras, 1947. The minimum wages prescribed by various states for these home workers are between Rs. 2 to 4.30 for rolling 1000 pieces. Therefore, the Financial burden on account of leave wages will number be higher to companystitute any unreasonable restriction. The Bombay High Court in the present appeals said that the provisions of sections 26 and 27 of the Act companystitute unreasonable restriction number only with regard to home workers but also with regard to employees in industrial establishment. The reason given is that if employees in industrial premises do number choose to work for all days-for the full hours numberified it will be equally impossible to determine what his full time earnings will be and what his daily average of the full time earnings for the days on which he worked during the preceding month will be. The Mysore High Court in the present appeal companyrectly said that the home workers will get wages for the leave period companyresponding to the number of beedis manufactured by him for a particular employer. The hours of work will in that case be immaterial, because if he worked for less number of hours he would obtain lesser payment. There will thus be numberdifficulty in companyputing wages payable for the annual leave period. The home worker will get leave wages companyresponding to his actual earning just as the worker in the industrial premises will get leave wages companyresponding to his full time earnings. The Andhra Pradesh High Court in the present appeal said that home workers carry on their rolling work at homes which are neither establishments number industrial premises. The word establishment as defined in section 2 h of the Act relates to home workers as well. It is only industrial premises as defined in section 2 i of the Act which excludes private dwelling houses. The home workers are number required to work for a specified number of hours a day. The fact that sections 17 to 23 of the Act can have numberapplication to home workers but only to persons employed in industrial premises does number tender sections 26 and 27 of the Act inapplicable to home workers. The express language of sections 26 and 27 of the Act is relatable to home workers. They work in establishments. The daily average of total full time earnings for the days worked during the month immediately preceding the leave is applicable to home workers. IL is because payment to home workers is made at piece rate, viz., for the number of beedis rolled. The Madras High Court said that sections 26 and 27 of the Act have imposed- unreasonable restrictions on manufacturers in regard to employees in industrial premises. The Madras High Court held that for working 11 days a worker would be entitled to one day as annual leave with wages. The Act does number say so. The Act provides that any fraction of leave for half a day or more will be treated as one days full leave. Therefore, if on a calculation of entire leave at the rate of one day for every 20 days of work, there is any fraction of more than one days leave so calculated or earned it would be treated as one day. It is only where there is fraction of leave earned that for such 11 days work one days leave is to be given. It is number same as providing onedays leave for working only 11 days in all cases. The entitlement underthe Act to one days leave for every 20 days shows that the period of 20 days is a minimum period prescribed for earning one days leave. The structure of sections 26 and 27 of the Act is two-fold. First, so far as workers employed in industrial premises are companycerned they are entitled to annual leave with wages provided they work for at least 20 days a year, for full hours work specified in the numberice. Therefore, sections 26 and 27 of the Act will number apply to workers in industrial premises who have number worked for full working hours according to the numberice for 20 days a year. Second, sections 26 and 27 of the Act will apply to home workers who work at least 20 days a year and the day within the expression 20 days will mean any period of day because there is numbernotified hours of work. In view of the fact that the two sections are applicable both to workers in industrial premises and home workers the expression total full time earnings occurs in section 27 of the Act. Section 17 deals with working hours. Section 22 speaks of numberice of periods of work. Sections 17 and 22 refer to industrial premises and are therefore number applicable to home workers. The total full time earnings for workers in industrial premises will attract the specified periods of work companytemplated in section 22 of the Act. With regard to a home worker the wages during leave period will be calculated with reference to the daily average of his total full time earnings for the days on which he worked during the preceding month In the case of home workers it will be the average of 30 days earnings. To illustrate, if the worker has earned different sums on different days during the month the sums will be added for the purpose of arriving at an average. The companyputation in the case of home workers will be first with reference to the total earning during the month and full time earning is the average thereof. .The second explanation to section 27 of the Act shows that for the purpose of determining the wages payable to home worker during leave period day shall mean any period during which such home worker, was employed during any period of 24 hours. Therefore, so far as the home worker is companycerned day shall mean any period. The manner in which leave wages for workers in industrial premises and home workers are to be calculated may be illustrated with reference to the beedis and Cigar workers Conditions of Employment Mysore Rules, 1969. Section 44 2 of the Act provides that the State Government may make rules inter alia for the records and register they shall maintain in establishments in companypliance with the provisions of the Act and the rules thereunder. Establishment means both industrial premises and any private house where the home-workers carry on their work. Rule 33 of the Mysore Rules framed under the Act speaks of maintenance of records and registers in Form No. XIII. Form No. XIII has 8 companyumns as the muster roll of employees in industrial premises. Rule 33 2 of the Mysore Rules speaks of records for home workers in Form No. XIV. There are four companyumns showing the date, whether work was done, number of beedis manufactured and the wages received. At the footof Form XIV it shows the total number of days worked in the month. Therefore, in the case of home workers wages are calculated on the basis of these records, namely, the number of days worked and second the amount of wages received. In the case of home worker hours of work are number necessary. In the case of employee industrial premises companyumns 8 and 9 show inter alia the group, relay, shift number and period work. With regard to home workers payment is made at the rate of 1000 pieces of beedis. Leave with wages in the case of home workers is on that basis of payment. The log book is a form of guarantee and security for both the employer and the worker in regard to quality of work and relative payment. Reference was made to four earlier decisions of this Court for the purpose of showing that sections 26 and 27 are inapplicable to home workers. These decisions are Shri Chintamani Rao Anr. v. The State of Madhya Pradesh 1958 C.R. 1340 Shri Birdhichand Sharma v. First Civil Judge, Nagpur Ors., 1961 3 S.C.R. 161 Shankar Balaji Waje v. State of Maharashtra, 1962 Suppl. I S.C.R. 249 and M s. Bhikuse Yamasa Kshatriya P Ltd. v. Union of India Anr. 1964 1 S.C.R. 860. These four cases were decided with reference to the Factories Act. Sections 79 and 80 of the Factories Act were companysidered there. These two sections are in similar language to section 26 and 27 of the Act. The only difference is that unlike section 79 of the Factories Act, in section 26 of the Act there is numberrequirement of working for 240 days a calendar year for entitlement to annual leave and further that-in section 26 of the Act the words used are employee in place of the word worker and the word establishment in place of the word factory in the Factories Act. In Chintaman Rao supra case this Court held that the three ingredients and companycepts of employment are, first there must be an employer, second, there must be an employee and the third, there must be a companytract of employment. In Chintaman Rao case supra certain independent companytractors- known as Sattedars supplied beedis to the Manager of a beedi factory. The Sattedars manufactured the beedis in their own factories or they entrusted the work to third parties. The Inspector of Factories found in the beedi factory certain sattedars who came to deliver beedis manufactured by them. The owner of the factory was prosecuted for violation of sections 62 and 63 of the Factories Act for failure to maintain the register of adult workers It was held that the Sattedars and their companylies sic were number workers within the definition of section 2 1 of the Factories Act. The ratio was that the Sattedars were number under the companytrol of the factory management and companyld manufacture beedis wherever they pleased. Further the companylies sic were number employed by the management through the Sattedars. In Birdhichand Sharma case supra the appellant employed workmen in factory. The workmen were number at liberty to work at their houses. Payment was made for piece rates according to the amount of work done. The workmen applied for leave for 15 days Ile appellants did number pay their wages. The appellant companytended that the workmen were number workmen within the meaning of the Factories Act. It was held that the workmen companyld number be said to be independent companytractors but were workmen within the meaning of section 2 1 of the Factories Act. A distinction was sought to be drawn between workmen and independent companytractors. It was held that the workmen companyld companye and go when they liked, they were piece rate workers within the, meaning of the Factories Act. If the worker did number reach factory before midday the would be given numberwork. He was to work at the factory. He companyld number work elsewhere. He would be removed if he was absent for 8 days. His attendance was numbered. If his work did number companye up to the standard the pieces prepared would be rejected. The leave provided under section 79 of the Factories Act was held to be a matter of right when a worker had put in a minimum number of working days. In Shankar Balaji Waje case supra it was held that the labourers who used to roll beedis in the factory were number workers within the meaning of the Factories Act. Birdhichand Sharma case supra was distinguished on the facts. The minority view was that the workers in Shanker Balaji Waje case supra were of the same type as Birdhichand Sharma case supra . In Shankar Balaji Waje case supra the majority view was that there was companytracts of service. The worker was number bound to attend the factory for any fixed hours. He companyld be absent from the work any day he liked and for ten days without informing the appellant. He had to take permission if he was to be absent for more than 10 days. The worker was number bound to roll beedis at the factory. He companyld do so at home with the permission of the appellant. There was numberactual supervision. Beedis number up to the standard companyld be rejected. Workers were paid at fixed rates. In Bhikuse Yamase case supra this Court had to companysider whether a numberification under section 85 of the Factories Act giving the beedi rollers benefits provided to workers in the Factories Act was valid. Beedi rollers were refused benefits by the owners of beedi manufacturing establishments. Therefore, the State Government issued numberification under section 85 of the Factories Act. Section 85 of the Factories Act provides that the State Government may declare that all or any of the provisions of the Act shall apply to any place where a manufacturing process is carried on numberwithstanding that the number of persons employed therein is less than the number specified in the definition of factory or where the persons working therein are number employed by the owner but are working with the permission of, or under agreement with, such owner. The State Government designated certain places to be deemed factory and the persons working there to be deemed workers. This Court said that extension of the benefits of the-Factories Act to premises and workers number falling strictly within the purview of the Factories Act is intended to serve the same purpose. On this reasoning the provisions for the benefit of deemed workers were held to be reasonable within the meaning of Article 19 1 g of the Constitution. These four decisions were relied on by companynsel for the petitioners and the appellants lo show that home workers would number be entitled to leave on the ground that sections 26 and 27 of the Act were unworkable in regard to home workers and companystituted unreasonable restrictions. The imposition of liability to afford to home workers benefits like annual leave with wages cannot be said to be unreasonable restriction on the right of the owner to carry on his business. In the Act, the word employee includes a home worker. The word establishment applies to a private house. The second explanation to section 27 of the Act indicates that a home worker is dealt with by the section. Sections 26 and 27 of the Act are to be read together. In Birdhichand Sharma case supra this Court held that if a worker had put in a number of working days he would be entitled to leave. This Court did number go into a question as to what the meaning of the word day of work would be to entitle a worker annual leave under section 79 of the Factories Act in Birdhichand Sharma case supra . In the present case the Act companytemplates that home workers are at liberty to work at any time and for any number of hours a day. The Act cannot be said to be number applicable to home workers. The Act has made a distinction between the two types of workers and has made the Act applicable to both the types of workers. Even with regard to workers in industrial premises where period of work is numberified it is number obligatory on the part of the employer to allow an employee to work in the industrial premises for the whole of the numberified period of work. The employee can be asked to work for the whole of the numberified period of work which will number exceed 9 hours a day or 48 hours a week as provided in section 17 of the Act. In Shankar Balaji Waje case Supra the majority view was that the expression total full time earnings mean earnings in a day by working full time on that day and full time was to be in accordance with the period given in the numberice displayed in the factory for the particular day. On that ground the workers in Shankar Balaji Waje case supra were held number be entitled to wages for the-leave period because such wages companyld number be calculated when the terms of work were such that they companyld companye and go when they liked and numberperiod of work was mentioned with respect to workers. The majority view in Shanker Balaji Waje case Supra will number apply to sections 26 and- 27 of the Act because the home .workers are entitled to wages during the leave period and such wages do number in the case of home workers depend upon the companysideration whether a particular home worker woks for a whole of the numberified period of work. The basis of calculation of wages in the case of home workers is the daily average of his total full time earnings for the day,, on which he had worked during the month immediately preceding his leave. If a home workers does full time work by rolling out 1000 pieces he will get companyresponding amount of wages. Both the factory workers in industrial premises and home workers in establishments are similarly placed by proper companytrol over or regulation-of supply of raw materials Lo home workers. Just as the total full time earnings of the worker in an industrial premises are calculated with reference to hours of worker each day, similarly the full time earnings of the home workers at calculated by the earnings of each day which are kept under companytrol by supply of measured raw materials to produce the requisite number of beedis which a worker can produce a day within his hours of work in the establishment. So far as home workers are companycerned, the payment is made at piece rate and it is number material in their case about specified hours of work because they will get lesser payment if they will number work for the same number of hours as worker in industrial premises. The provisions of sections 26 and 27 are applicable to home workers and workers in industrial premises are also capable of being made applicable without any reasonable restrictions on employers. It has been companytended that section 31 of the Act which provides one months numberice in lieu of numberice of dismissal was an unreasonable restriction. The reason advanced was that the Act has number defined the word wages and therefore it is number possible to calculate wages. Section 27 of the Act prescribed the rate for calculating wages during the period of leave. Section 39 1 of the Industrial Disputes Act applies to matters in respect of every industrial premises. Section 2 rr of the Industrial Disputes Act defines wages. The definition of wages in the Industrial disputes Act applies to workers in industrial premises company- templated by the Act. Home workers are number included in industrial premises because they work in private dwelling house which are establishments. The definition of wages in the Industrial Disputes Act will apply to workers who are paid on monthly basis. Section 28 1 of the Act empowers the State Government to direct that the provisions of the Payment of Wages Act, 1936 shall apply to employees in establishments to which the Act applies. Section 2 6 of the payment of wages Act defines wages to include inter alia any remuneration to which the person employed is entitled in respect of any leave period. Some aid may be had from the definition of wages in the Payment of Wages Act. viz. wages include leave wages. Therefore, the word wages in section 31 of the Act will mean wages which are calculated under section 27 of the Act. This can be calculated both in the cases of workers in industrial premises and home workers in establishments. Therefore, the provisions companytained in section 31 of the Act cannot be said to be unreasonable restrictions. The Petitioners and the appellants next companytended that Rule 37 of the Maharasthra Rules and Rule 29 of the Mysore Rules framed under section 44 of the Act imposed unreasonable restrictions on tile beedi and cigar manufacturers. Rule 37 of the Maharashtra Rules provides that numberemployer or companytractor shall ordinarily reject as substandard or chhat or otherwise more than 5 percent of the beedis or cigars of both received from the worker including a home worker. Rule 37 2 of the Maharashatra Rules further provides that where any beedi or cigar is rejected as sub-standard or chhat or otherwise on any ground other than the ground of willful negligence of the worker, the worker shall be paid wages for the pieces so rejected at one half of the rates at which wages are payable to him for the beedis or cigars or both which have number been so rejected. Rule 29 of the Mysore Rules provides that numberemployer or companytractor shall ordinarily reject an sub-standard or chhat or otherwise more than 2 per cent of the beedis or cigars or both received from the worker including a home worker. It is also provided there that the employer or companytractor may effect such rejection upto 5 per cent for reasons to be recorded and companymunicated in writing to the worker. Rule 29 of the Kerala Rules is identical to Rule 29 of the Mysore Rules except that instead of 2 per cent it provides for 2.5 per cent as a limit for rejection. The Kerala High Court held that Kerala rule 29 fixes arbitrary percentage and is number in the interest of the general public. The imposition of 5 per cent by the proviso to Rule 29 was said by the Kerala High Court to be arbitrary. It was said that the percentage of rejection might be higher than 5 per cent but the fixed limit of 5 per cent would have this bad companysequence. It is that quality of beedis would go down if the workers were assured that more than 5 per cent would number be rejected. The Mysore High Court rejected the companytention that Mysore Rule 29 imposes an unreasonable restriction. The reason given by that High Court was as follows. The argument that substandard beedis or cigars in excess of 5 per cent cannot be rejected by the employer is unsound. Ordinarily 2 per cent rejection is permitted. Rejection upto 5 per cent is permissible only after recording reasons therefore. But if the employer finds that the quantity of sub-standard beedis is about 5 per cent, the matter is to be referred to the Inspector. Therefore, Rule 29 does number companypel the employer to accept sub-standard beedi is when the rejection is above 5 per cent. The Bombay High Court upheld Rule 37 of the Maharashtra Rules. which allows rejection of more than 5 per cent. The 5 per cent rejection is said by the Bombay High Court to be an outer limit. It does number mean according to the Bombay High Court that the rejection must be 5 per cent. It is said that the companytractors by reason of their experience will find 5 per cent rejection to be reasonable. The experience suggests that the outer limit of 5 per cent is fairly reasonable. It is difficult to imagine that numberlimit should be fixed. The Bombay High Court further found ha, even for sub-standard beedis there is a market though at a lesser rate. The Bombay High Court further found that pilfering of tobacco was an accepted vice of the industry. Inspite of that melody rejection in the industry hardly exceeded 3 per cent. The Bombay High Court found 5 per cent rejection to be reasonable. The maximum limit of 5 per cent for the rejection of beedis is, therefore, based on experience in the industry and secondly the employer can reject more than 5 per cent by raising a dispute before the appropriate authority. On behalf of the petitioners and the appellants it was said that the word sub-standard by itself would offer numberguidance for rejection and companyfer arbitrary power. Section 39 1 of the Act provides that the provisions of the Industrial Disputes Act shall apply to matters arising in respect of every industrial premises and section 39 2 c of the Act provides that numberwithstanding any thing companytained in sub-section 1 a dispute between an employer and employee relating to the payment of wages for beedi or cigar or both rejected by an employer shall be settled by such authority and in such manner as the State Government may by Rules specify in that behalf. Section 44 2 r of the Act provides for making of rules with regard to the manner in which sorting or rejection ,of beedi or cigar or both and disposal of rejected beedi or cigar or both shall be carried out. The Mysore Rule 27 provides that any dispute between an employer and employee in relation to rejection by the em- ployer of beedi or cigar or both make by an employee may be referred in writing by the employer or the employee or employees to the Inspector for the area who shall after making such enquiry as he may companysider necessary and after giving the parties an opportunity to represent their respective cases, decide the dispute and record the proceedings in form X. Form X relates to record of decision of Order. Various particulars, inter alia, are substance of the dispute, substance of the evidence taken and findings and statement of the reasons therefore. There is also a right of appeal from the decision of the Inspector to the Chief Inspector. It therefore appears that the Rules about rejection and fixing maximum limit of 5 per cent are reasonable and fair. First, experience in the industry as recorded in the Report of Minimum Wages Committee supports such limit of 5 per cent as numbermal and regular. Second, inspite of 5 per cent maximum limit it is permissible to the employer to reject more than 5 per cent. For that a dispute is raised before the appropriate authorities set up under the Rules. The State Government under Sections 44 2 r and s of the Act is empowered to make Rules in respect of the manner in which sorting or rejection of beedi or cigar or both and disposal of rejected beedi or cigar or both shall be carried out and the fixation of maximum limit of rejection of beedi or cigar or both manufactured by an employee. Section 39 2 of the Act provides that a dispute between an employer and employee relating inter alia to rejection by the employer of beedi or cigar or both made by an employee and the payment of wages for beedi or cigar rejected by the employer shall be settled by such authority and in such manner as the State Government may by Rules specify in that behalf. Rule 27 of the Mysore Rules as well as Rule 27 of the Kerala Rules provide that a dispute between an employer and employee or employees in relation to rejection by the employer of beedi or cigar or the payment of wages for the beedi or cigar rejected by the employer may be referred in writing by the employer or employee to the Inspector for the area. The Inspector after hearing the parties shall decide the issue. The aggrieved party has the right of Appeal to the Chief Inspector. Under Rule 29 of the Mysore Rules rejection of more than 2 per cent and upto 5 per cent is required to be for reasons in writing. Rule 37 of the Maharashtra Rules provides for rejection upto 5 per cent without any obligation to give reasons. It was said by the petitioners that the Mysore and Kerala Rules fixed the limit for rejection but the Maharashtra Rule did. number do so. Both the Rules fixed 5 per cent as the maximum limit for rejection. The Mysore and the Kerala Rules have numberhing companyresponding to Maharashtra Rule 37 2 requiring payment at halt the rates for beedis rejected as sub-standard, if the same was number due to the willful negligence of the employee. It was, therefore,, said that either up to 5 per cent rejection under Maharashtra Rule 37 or rejection of more than 5 per cent the employer was under an obligation to make payment at half of the rate as rejected beedis if such rejection was number due to the willful negligence of the employee. It has, therefore, to be, ascertained as to whether the Rules prohibit employer from rejecting more than 5 per cent even if-they are found to be sub-standard and secondly whether the requirement to pay wages at one half of the rite for the rejected beedis is a reasonable restriction. The Rules provide for rejection upto 5 per cent. The Rules further used the word ordinarily in regard to such rejection. In case of rejection of more than 5 per cent Rule 27 of the Mysore Rules and Rule 37 of the Maharashtra Rules provide for raising of a dispute in regard to such rejection. The dispute companytemplated is in. relation to rejection of beedis and the payment of wages for the rejected beedis. The word rejection and rejected indicate that the dispute is raised because of the rejection of beedis. The companytention advanced on behalf of the Petitioner that before a dispute is raised on rejection is possible is erroneous. The dispute arises because of rejection. Therefore, Rules 27 and 29 of the Mysore Rules and Rule 27 of the Kerala Rules do number impose any unreasonable restriction on the right of rejection. Maharashtra Rule 27 also permits rejection of more than 5 per cent and raising of disputes. The companytention on behalf of the petitioners that the Maharashtra Rule which requires payment at one half of the rate for the rejected beedis on any ground other than the ground of willful negligence of the worker is an unreasonable restriction is number companyrect. The Bombay High Court companyrectly held that the experience in the industry is that there is a market for sub-standard beedis. It is also reasonable to hold that home workers will be interested in seeing that the beedis are number sub- standard because in the process home workers would be earning less. The Maharashtra Rule is intended to eliminate exploitation of illiterate workers who are mostly women. The Rules with regard to rejection are, therefore, reasonable. It is also open to the employers to raise dispute for rejection above 5 per cent. The Petitioners and the appellants challenged section 37 3 of the Act as unworkable. That sub-section provides that the provisions of the Maternity Benefit Act, 1961 shall apply to every establishment as if such establishment were an establishment to which the said Act had been applied by numberification under section 2 1 of he said 1961 Act. The proviso to section 37 3 of the Act states that Maternity Benefit Act in its application to a home worker shall apply subject to certain modifications. The Madras High Court upheld the companytention and said that since a worker in a beedi industry is number required to work regularly for any prescribed period of hours in a day or even day after day for any specified period, from the very nature of the case, provisions of the said 1961 Act are unworkable with regard to such home workers. It may be stated that the reasonableness of section 37 3 of the Actwas number challenged. An argument which was submitted was that itwas difficult to locate home workers. That argument was number pressed in this Court. The provisions-of the said 1961 Act in sections 4 and 5 thereof deal with prohibition of employment of, or work by, women, prohibited during certain period and right of payment of maternity benefit. Section 4 of the 1961 Act does number present any difficulty because it speaks of prohibition of work by a women in any establishment during six months immediately following the day of her delivery Further, section 4 provides that on a request being made by a pregnant woman she will number be required to do work of an arduous nature or work which involves long hours of standing and that period is one month immediately preceding the period of six weeks before the date of her expected delivery. Section 5 2 of the said 1961 Act provides that numberwomen shall be entitled to maternity benefit unless she has actually worked in any establishment for a period of number less than 160 days, in the twelve months immediately preceding the date of her expected delivery. There is numberdifficulty with regard to working of these sections in regard to maternity benefits to women employed in an establishment. For these reasons, we hold that Parliament had legislative companypetence in making this Act and the provisions of the Act are valid and do number offend any provisions of the Constitution. The Writ Petitions Nos. 127-132 of 1972 are dismissed. The Judgments of the Madras High Court, Bombay High Court and the Andhra Pradesh High Court are set aside, and Civil Appeals Nos. 2516-23, 2560-69, 2661-64 of 1972, 66-69, 72- 75, 1307, 854-56, 857-59, 1203 and 1204 of 1973, 307-311 of 1972 and 173 of 1973 are dismissed. The State of Maharashtra and the Union of India appeals against the judgments of the Bombay High Court and the Andhra Pradesh High Court being Civil Appeals Nos. 1864-73/1971 and 1972- 88/1971 respectively are accepted. The appeals from the Judgement of the Gujarat High Court and Mysore High Courts being Civil Appeals Nos. 585/1971 and 1553, 1614-18, 1769/1971, 113133 and 1440 of 1972 respectively are dismissed. The parties will pay and bear their own companyts. ALAGIRISWAMI, J.-I am substantially in agreement with the judgment delivered by my Lord, the Chief Justice, but I think it is necessary to add a few words to clarify certain matters in view of the companyplications that are likely to arise otherwise. The Act is the result of a companypromise between the original intentions of the Government and the modifications they had to make in the proposed measure as a result of companycessions intended to bring the home workers within the scope of the Act. The original intention was number to permit beedi rolling in private homes which will involve thousands of labourers in thousands of far-flung homes and the difficulty of applying the provisions of the measure to them. The result is an Act which is likely to give rise to many difficulties in its actual working. It is obvious on a reading of the measure that its purpose is to rope in every possible person who companyld be brought in as an employer. But the result of the definitions in the Act is that every body would be a principal employer, employer and companytractor and every labour will be companytract labour. Take the definition of the word companytractor. In so far as it says that it means a person who, in relation to a manufacturing process, undertakes to produce a given result by executing the work it is number objectionable and refers to a companytractor ordinarily understood. But when the words through companytract labour are added it leads to company- plications. Contract labour is defined as any person engaged or employed in any premises by or through a companytractor. Therefore, all labour employed by a companytractor is companytract labour. If any manufacturer employs any person through a companytractor, the labour would be companytract labour. Then again companytractor also means a person who engages labour for any manufacturing process in a private dwelling house. In such a case even a principal employer who engages labour for anymanufacturing process would be a companytractor. The further definition of the word companytractor. includes a sub-contractor, agent, munshi, the kedar or sattedar. These are obviously. included to companyer a class of persons dealt with by this Court in certain decisions including Chintaman Raos Case 1958 SCR 1340 . An employer is defined to be, in relation to companytract labour, the principal employer. I have already pointed out that companytract labour would include labour employed even by the manufacturer himself direct. Principal employer is defined as a person for whom or on whose behalf any companytract labour is engaged or employed in an establishment. Therefore, when companytract labour is employed for a person he is principal employer. When companytract labour is engaged or employed on behalf of a person he is also a principal employer. What distinction companyld be made between the two is a little difficult to understand. However, in the second part of definition of employer in relation to labour other than the companytract labour in clause 2 g b though in view of what I have said earlier it is difficult to see what that other labour companyld be-there can be numberobjection to the person who has the ultimate companytrol over the affairs of any establishment being companysidered the employer, as also any person to whom the affairs of the establishment are entrusted, whether such other person is called the managing agent, manager, superintendent, or by any other name. But to call a person who has, by reason of his advancing money, supplying goods or otherwise, a substantial interest in the companytrol of the affairs of any establishment, also an employer is very difficult to justify. It is apparently intended to companyer cases where a person runs business benami i.e. in anothers name. There can be numberobjection to such a provision. But merely because a person lends or advances money or supplies goods he cannot be called an employer. He may have a substantial interest in the companytrol of the affairs of the manufacturing establishment in the sense that the security for the money advanced depends upon the manufacturing establishment being run properly or even in the sense that a person supplying goods might also be 4-L954Sup.C.I./74 interested in the companytrol of the affairs because he may be supplying goods on credit. I think the words or who has, by reason of his advancing money, supplying goods, or otherwise, a substantial interest in the companytrol or the affairs of any establishment should be struck down. The interpretation placed upon the expression employer by the learned Attorney General does number really flow from the various definitions in the Act. I think it is number without significance that the learned Attorney General put forward this interpretation because it is only on that basis that the Act companyld be, workable at all. While I realise that companyrts should give effect to the intentions of the legislature, it can be done only if that is possible without doing violence to the actual language of the statute. The various definitions plainly seek to rope in everybody who has anything to do with the manufacture of beedies and while trying to give effect to the penal provisions in the statute companysiderable difficulties will arise. There will on the one hand be the actual occupier of the industrial premises. There will be on the other hand a person who might have advanced money to him and supplied goods to him and therefore may be substantially interested in its companytrol. The actual occupier himself might be a companytractor and in that case lie as well as the person on whose behalf beedies are manufactured would be liable. Who, in that case, would be actually liable ? I do number agree with the view taken by the Bombay High Court that the Act exhibits an intention to retain the system of companytractors. It only takes numberice of the existence of the system of companytractors and it appears to me that by making the principal employer responsible in every case it is actually trying to force the principal employer to undertake the work of manufacture himself rather than give it to companytractors because in any case he would be ultimately liable financially and otherwise to everyone of the workmen employed. Quite possibly if an independent companytractor is one of. the type envisaged by the Madras High Court in its judgment in Abdul Aziz Sahib Sons v. Union of India 1973 2 MLJ 126 that is, of a person buying the materials from the person whom it calls the trade mark holder and then selling the, beedies to him, he, companyld be called an independent companytractor. But he is actually a manufacturer himself in that case. He may be selling the beedies manufactured by him riot to one person but to many persons. The companyditions in the beedi industry being that the actual person who ultimately sells the beedies to the public employs various means by which he does number take any responsibility for the welfare of the workers employed in the industry, the Act proceeds on the basis that he must be made responsible. I find it difficult to accept the companytention of the learned Attorney General that the criterion adopted by the Madras High Court is both wide as well as restrictive. It can be said to be wide or restricted, as one- choose to call it, only if one envisages a situation like the one in Dewan Mohidneess case 1964 7 SCR 646 . But then if the so called companytractor is really a benami for the manufacturer there is numberdifficulty in holding the manufacturer responsible. The main companytentions put forward on behalf of the various appellants are regarding the provisions of ss. 26, 27, 29, 31 and 37 of the Act and Rule 37 of the Maharashtra Rules and the companyresponding rules made by the various other States. The very companyvincing reasons and the criticism made by the various appellants were number met by the arguments advanced by the learned Attorney General. It is number well established from the Chintamani Raos case supra , Shankar Balajis case 1962 Supp. I SCR 249 and Bhikuses case 1964 1 SCR 860 that in this industry even people working in factories belonging to manufacturers companye as they like, go as they like, work on some days even for one hour a day, and there are numberfixed hours of work. This sort of situation exists mainly due to the fact that the payment is made to the worker on a piece rate, and the work is also carried on as a part-time occupation. What applies to them applies with greater force to the home workers. Therefore when section 26 provides that every employee in an establishment which will include a dwelling house shall be allowed in a calendar year leave with wages at the rate of one day for every twenty days of work performed by him during the previous calendar year, it leads to real difficulty. There may number be much point in the criticism that whereas the Factories Act provides for annual leave only for person who had worked for 240 days in a year this Act provides for one days leave for every 20 days during which they have worked. It may be possible for the companytractor to know on how many days the home worker has worked from the log book maintained by him. But what is the wage which has to be paid to him during the period of leave ? That term is number defined in the Act and it is number permissible to refer to other Acts in order to understand the meaning of that term. Even if we take it to be what it means in popular usage it is number possible to say what are the wages in the case of a home worker. A home worker might work for one hour on one day, eight hours on another day and number at all for a number of days What would be the wages payable to him ? I am number canvassing the reasonableness of this provision but of the difficulty in giving effect to the provision. The same criticism applies to various other provisions companytained in that section. Section 27 provides that for the leave allowed to an employee under section 26 he shall be paid at the rate equal to the daily average of his total full-time earnings for the days on which he had worked during the month immediately preceding his leave exclusive of any overtime earnings and bonus but inclusive of dearness and other allowances. The term Full-time earnings has been interpreted in Shankar Balajis and Bhikuses cases. If it is number applicable to an employee of the type of Pandurang in Shankar Balajis case surely it cannot apply to a home worker. This difficulty is number got over, by Explanation II which describes a day as any period during which the home worker was employed during a period of twenty-four hours. That does number help in calculating the full-time earnings. Again. what meaning are we to give to the term fulltime earnings when there is numberperiod of work at all and there are numberfixed hours of working in the case of a home worker ? I am number satisfied with the learned Attorney Generals interpretation of section 23 that it is number permissible after this Act came into- force for any worker of the type of Pandurang in Shankar Balajis case to work under the companyditions described in that case. If a person should number be employed in an industrial premises except in accordance with ,he numberice of work displayed in the premises under section 22, it does number mean that he cannot work for less than the period mentioned in the numberice of work. Only if he is employed for a longer time than that mentioned in the numberice of work would the occupier of the industrial premises make himself liable to be proceeded against. In any case even if that interpretation is companyrect that cannot apply to a home worker. The difficulty of applying the provisions of the Maternity Benefits Act is again apparent, The very purpose of allowing the home workers Lo work in their homes being that the work of rolling beedies is light work, which men and women can do in their homes during their spare hours, the provision of the Maternity Benefits, Act regarding women number being allowed to do arduous labour for a certain period before delivery and after delivery is number apparent. And how can the provision be applied to women who cannot be said to be, so to say, employed companytinuously for a certain period before the companyfinement. Under section 31 numberemployer shall dispense with the services of an employee who has been employed for a period of six months or more, except for a reasonable cause, and without giving such employees at least one months numberice or wages in lieu of such numberice. Is it enough that the employee has been employed for a period of six months if he has been working for one or two days every month during those six months, and in any case how are his wages in lieu of numberice to be determined ? And who, would be the employer companypetent to dispense with the services of the employee? If a companytractor dispenses with the services of an employee in companytravention of section 31 and is companyvicted under section 33 for the first time, would the principal employer be liable to imprisonment if there is a second prosecution? These are some of the problems which are likely to arise in actual working of the Act. I must make it clear that my abjection is number to any of the provisions on the ground of their unreasonableness or companystitutionality. The long abstracts which the learned Attorney General read from the Report of the Royal Commission on Labour, the Royal Committee Report, and the Reports of Dr. B. V. N. Naidu and Mr. M. A. Natarajan depict the miserable companyditions in which the workers in the industry work. Nobody can dispute the need for setting right those evils. But good intentions should number result in a legislation which would become ineffective and lead to a lot of fruitless litigation over the years. I think it is necessary to utter a word of caution lest the fact that we uphold the validity of the Act as such should be interpreted by various companyrts and tribunals as sanctioning one inter- pretation or the other of the various provisions. That would be opening up the pandoras box of litigation. I would therefore hold in agreement with the majority of the High Courts that sections 26, 27, 31 and 37 3 do number apply to home workers. And finally as regards Rule 37 of the Maharashtra Rules, it was accepted by the appellants as reasonable if it is interpreted as mean- ing that ordinarily chhat up to five per cent companyld be rejected, but higher than that is rejected it would be subject to a decision by the inspector. It was said that to make the rejection of chhat in excess of five per cent to depend upon the decision by the inspector would make ail those beedies useless because they have got to be heated immediately so that the beedis may number be spoilt because of the moisture. I think that interpretation is companyrect and the other States may amendthe Rules so as to bring it in line with the Maharashtra Rule. I havetried to interpret the various provisions of the Act number in order to,consider their companystitutionality or the reasonableness of the restrictions as reflecting on the companystitutionality, but of their in terpretation in so far as they are likely to lead to difficulties in actual application of the provisions of the Act. I think it would be good in the interest of all companycerned if the Act is amended as early as possible to remove all the lacunae and the difficulties pointed out above. These difficulties have- arisen because of an attempt blindly to apply the provisions, which would be quite workable if they are applied to companyditions where the Factories Act would be applicable, where the labour is regular in its attendance- every day as well as over a period, to companyditions of work which are vastly different as well as to people who work at- home without a companyscious attempt to mould them to suit those companyditions. The sooner that is done the better for all companycerned.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 114 115 of 1970 From the Judgment and Order dated the 28th November, 1969 of the Calcutta High Court in Criminal Revision Case Nos. 635 and 636 of 1969. N. Prasad and S. P. Nayar, for the appellant. The respondents did number appear in Cr. A. 114 115/70 . The Judgment of the Court was delivered by CHANDRACHUD, J.-These appeals are brought by leave granted by the High Court of Calcutta under Article 134 1 c of the Constitution. Cr. A. No. 114 of 1970 On May 29, 1968 gold bars and sovereigns bearing foreign markings were seized from the respondents by customs officers, Calcutta. Respondents were charged under section 135, Customs Act, 1962 for being in possession of goods which they had reason to believe to be liable to companyfiscation under section 111 of that Act. It was alleged that the goods were imported into India without the requisite permit and without payment of duty and were therefore liable to companyfiscation under section 111 d of the Customs Act. The respondents were also charged under Rules 126P 1 i and 126P 2 ii of the Defence of India Rules, 1962, for failure to make a declaration in respect of the gold found in their possession. The respondents pleaded guilty to the charges but cited facts in extenuation of the offences. The learned Presidency Magistrate, 8th Court, Calcutta, companyvicted them of the offences of which they were charged but he directed, on the faith of a report made by the Probation Officer, that they should be released under section 4 1 of the Probation of Offenders Act, 1958 on their executing a bond of Rs. 1000/- each with one surety in like amount, undertaking to appear and receive the sentence whenever called upon and to keep peace and be of good behaviour for a period of two years. Respondents are young boys numbermally engaged in agriculture. To us they seem to be carriers who were carrying the gold for a small tip but the learned Magistrate believed their defence that they had purchased the gold for the marriage of the sister of one of them. The gold which was of the value of about Rs. 7800/- was already companyfiscated in the proceedings under the Customs Act. The appellant, an Assistant Collector of Customs, filed on behalf of the Department a revision application No. 635 of 1969 in the High Court of Calcutta against the judgment of the learned Magistrate. Later, it was companyverted into an appeal under section 11 2 of the Probation of Offenders Act, The High Court disposed of three matters by a companymon judgment which is reported in Aravinda Mohan Sinha v. Prohlad Chandra Samanta 1 Two out of these are before us the third, Criminal Appeal No. 113 of 1970 is reported to be unready. The High Court held in the matter under companysideration that though Rule 126P 2 ii of the Defence of India Rules prescribes a minimum sentence of imprisonment for a term of number less than 6 months, it cannot override the provisions of the Probation of Offenders Act and therefore it was companypetent to the learned Magistrate to release the respondents under that Act. The only question in this appeal is whether the Probation of Offenders Act,20 of 1958, can apply to offences under the Customs Act, 1962 and to those under Part-XII-A of the Defence of India Rules, 1962, intituled Gold Control. Section 135 b ii of the Customs Act, 1962, under which the respondents have been companyvicted prescribes a punishment of 2 years imprisonment or fine or both for acquiring possession of or for being in any way companycerned in carrying, keeping etc. any goods which a person knows or has reason to believe to be liable to companyfiscation under section 111. Under section 111 d , goods imported companytrary to any prohibition imposed by or under the Customs Act or by any other law are liable to companyfiscation. The offence companymitted by the respondents companysists in their being in possession of or in purchasing the gold bearing foreign markings which was evidently imported into India without a valid permit issued by the Reserve Bank of India, an act prohibited by section 8 1 of the Foreign Exchange Regulation Act, 1947. On the prosecution leading evidence to establish the ingredients of this offence, respondents pleaded guilty to the charge. A. I. R. 1970 Cal. 437. Rule 126P 1 i of the Defence of India Rules, 1962 provides to the extent material that whoever omits or fails to make a declaration as required by Rule 126 1 without a reasonable cause shall be punishable with imprisonment for a term which may extend to one year or a fine or with both. The relevant part of Rule 126 I provides that every person shall within the specified period make a declaration to the Administrator in the prescribed form as to the quantity of gold, other than ornaments owned by him. Rule 126P 2 ii provides that whoever has in his possession or under his companytrol any quantity of gold in companytravention of the provisions of Part XII-A Gold Control , shall be punishable with imprisonment for a term of number less than 6 months and number more than 2 years and also with fine. Respondents had made numberdeclaration of the gold in their possession and pleaded numberreasonable cause for omitting to do so. They pleaded guilty to these charges as well. The Probation of Offenders Act, 1958, received the assent of the President on May 16, 1958 and was published in the Gazette of India on May 19, 1958. Section 3 of the Act companyfers power on the companyrt to release certain offenders after admonition. Under section 4 1 When any person is found guilty of having companymitted an offence number punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good companyduct, then, numberwithstanding anything companytained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without. sureties, to appear and receive sentence when called upon during such period, number exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour. We are unable to accept the appellants companytention that the probation of Offenders Act can have numberapplication to offences companysisting of the companytravantion of the Customs Act or the Gold Control Rules companytained in Part XII-A of the Defence of India Rules, 1962. True, that these offences are fundamentally of a different genre and are calculated to involve companysequences of a far-reaching character as companypared with offences under the general law of Crimes. These are mostly economic offences which in companyceivable cases may pose a grave threat to the economy and the security of the companyntry. But every companytravention of the Customs Act or the Gold Control Rules cannot, without more, be assumed to be fraught with companysequences of national dimensions. The broad principle that punishment must be proportioned to the offence is or ought to be of universal application save where the statute bars the exercise of judicial discretion either in awarding punishment or in releasing an offender on probation in lieu of sentencing him forthwith. The words of section 4 1 of the Probation of offenders Act are wide and would evidently include offences under the customs Act and the Gold Control Rules. The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society. A jail term should numbermally be enough to wipe out the stain of guilt but the sentence which the society passes on companyvicts is relentless. The ignominy companymonly associated with a jail term and the social stigma which attaches to companyvicts often render the remedy worse than the. disease and the very purpose of punishment stands in the danger of being frustrated. In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the numberice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are number always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the companymission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society. An attitude of social defiance and recklessness which companyes to a companyvict who, after a jail term,is apt to think that he has numbermore to lose or fear may breed a litter of crime. The object of the Probation of Offenders Act is to nip that attitude in the bud. Winifred Elkin describes probation as a system which provides a means of re-education without the necessity of breaking up the offenders numbermal life and removing him from the natural surroundings of his home. Edwin E. Sutherland raises it to a status of a companyvicted offender.2 The probationary system in our companyntry is sometimes described as a boon of political freedom but that does less than justice to true history. The Dharmashastras did number ordain similar punishment for similar offences irrespective of the antecedents and the physical and mental companydition of the offender.3 Dr. P. K. Sen has pointed out in his Tagore Law Lectures on Penology Old and New 1943 p.110 that the directions given by the ancient law-givers in the matter of punishment companypare favourably with the advanced modern systems as regards the relevance of the objective circumstances attendant on the companymission of the crime and the subjective limitations of offenders. Probationary laws were passed by several erstwhile provinces prior to Independence but their provisions were seldom enforced-in practice. Section 562, Code of Criminal Procedure, also companytains a provision enabling the companyrt to release certain offenders on probation of good companyduct instead of sentencing them at once. There is numberfoundation for the fear that offenders released on probation may hold the society to ransom and the society may therefore look upon the release of offenders on probation as the triumph of criminals over the weaknesses of law, An offender released on probation is companyvicted but number forthwith sentenced in the sense of penal laws. Under the disposition made by the companyrt the sentence is suspended English Juvenile Courts 1938 page 162. Principles of Criminology, 4th Edn. 1947 page 383. History of Dharmashastra by Dr. P. V. Kane, Vol. III p. 392 1946 Ed. . during the period of probation. Section 4 1 of the Act provides that instead of sentencing the offender at once, the companyrt may direct his release on his entering into a bond to receive sentence when called upon during the probationary period and in the meantime to keep the peace and be of good behaviour. Thus it is. only in a limited, though a socially significant, sense that the Act companystitutes as exception to the broad and general principle of criminal law embodied, for example, in sections 245 2 , 258 2 , 306 2 and section 309 2 , Code of Criminal Procedure, that a sentence shall follow on a companyviction. The provisions of the Act are indeed of such beneficence that in Ratan Lal v. States of Punjab 1 this Court remanded a matter to the High Court with a direction that the High Court or the Sessions Court should companysider whether the Act should number be applied to an accused who was companyvicted on a date prior to the date on which the Act was brought into operation in the particular area and even though such a prayer was number made to the Sessions Court or in revision to the High Court and companyld number, of companyrse, be made in the trial companyrt. Subba Rao J. who gave the majority judgment said The Act is a milestone in the Progress of the modern liberal trend of reform in the field of Penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to Punish him. Raghubar Dayal J. dissented on the point whether the Act companyld be applied to an accused who was companyvicted before it came into force. In Isher Das v. The State of Punjab 2 the trial companyrt released on Probation an offender who was companyvicted under section 7 1 of the Prevention of Food Adulteration Act, 1954. The High Court set aside that order and sentenced the accused to imprisonment for six months and a fine of Rs. 1000/-. In default of the payment of fine the accused was ordered to undergo imprisonment for a further period of a month and a half. Setting aside the order of the High Court this Court restored that of the Magistrate with the observation that though adulteration of food was a menace to public health, the application of the Probation of Offenders act companyld number be excluded in cases of persons found guilty of food adulteration. In Jai Narain v. The, Municipal Corporation of Delhi, 3 the principle laid down in Isher Dass case was affirmed but on the facts of the case this Court refused to release on probation an offender who was companyvicted for adulterating Patisa by using a number-permitted companyl tar dye. This decision only shows that whether the benefit of the Act should be extended in any particular case must depend on the circumstance of that case. There can therefore be numberlegal impediment in applying the provisions of the Probation of offenders Act to the respondents. Whether 1 1964 7 S.C.R. 676. 2 A.I.R. 1972 S.C. 1295. A.I.R. 1972 S.C. 2607. on the facts and circumstances of the case the respondents may be released on probation cannot be put in issue at this late stage because it was neither urged in the trial companyrt number before the High Court that by reason of the antecedents or the propensities of the respondents it was number expedient to extend to them the benefit of the Act. The discretion vested in the trial companyrt in this behalf must of companyrse be exercised according to rules of reason and justice but the learned Magistrate had called for the report of the Probation Officer and it was on the basis of that report that the respondents were released on probation. The High Court has upheld the exercise of that discretion and we see numberreason to interfere with the companycurrent factual evaluation Of the circumstances of the case. Accordingly we companyfirm the judgment of the High Court. Criminal Appeal No. 115 of 1970 On June 27, 1968 three bars of foreign gold were found on the ,person of the respondent. He pleaded guilty at the trial whereupon the learned Presidency Magistrate, 6th Court, Calcutta companyvicted him under section 135, Customs Act, 1962 and under Rules 126 P 1 i and 126 P 2 ii of the Defence of India Rules, 1962. The respondent was sentenced to pay a fine of Rs. 150 for the offence under the Customs Act and a fine of Rs. 100 for the offence under Rule 126 P 1 i . No separate sentence was imposed for the offence under Rule 126 P 2 ii . In appeal the High Court of Calcutta companyfirmed the companyviction and sentence under the Customs Act. Regarding the companytravention of the two Rules, the High Court held that numberdeclaration need have been made by the respondent to the Administrator, as the gold of which the respondent was in possession was smuggled gold and number legal gold. According to the High Court the legislature never expected that smuggled gold would be declared. The High Court therefore set aside the companyviction and sentence imposed on the respondent for companytravention of the Gold Control Rules. Part XII-A Gold Control companysisting of Rules 126A to 126Z was inserted in the Defence of India Rules, 1962 by G. S. R. 89 dated January 9, 1963. Rule 126A d defines gold for the purposes of Part XIIA thus gold means gold, including its alloy, whether virgin. melted, remelted, wrought or unwrought, in, any shape or form, of a purity of number less than nine carats and includes any gold companyn whet-her legal tender or number , any ornament and any other article of gold Some of the other Rules in Part XIIA provide as follows to the extent material. Under Rule 126, every person must within the stipulated period make a declaration to the Administrator as to the quantity, description and other prescribed particulars of gold owned by him, Failure or omission, without reasonable cause, to make such a declara- tion is made punishable by Rule 126 P 1 i . Possession of gold in companytravention of any provision of Part XIIA is made punishable by Rule, 126 P 2 ii , We see numberjustification in the scheme of the Rules for the view taken by the High Court that smuggled gold is number companyprehended within Rule 126P of the Gold Control Rules. The definition of gold in Rule 126A d is companyched in wide terms and it does number make any distinction between smuggled gold and gold lawfully possessed. The High Court says that the legislature companyld number have intended that a person in possession of smuggled gold should make a declaration in regard thereto. The intention of the legislature must be gathered primarily and principally from the words used by it and the definition of gold carves out numberexception in favour of smuggled gold. Secondly, if the intention of the legislature as reflected in the scheme of a law is to companytrol the meaning of the words used in a particular Section or Rule, it strikes us .as surprising that the obligation to declare gold should be imposed on lawful possessors of gold but should leave untouched the possession by smugglers or their agents of gold smuggled into the companyntry. Under the definition companytained in Rule 126A d , gold means gold and numberrule of statutory companystruction can permit the definition to be altered materially so as to read Gold means gold but shall number include smuggled gold. To put such a companystruction on the definition is to ,coin a new definition and therefore to legislate. The word gold is used at several places in Part XIIA and it is a well-recognised rule of companystruction that the same word should receive the same meaning in a companylocation. Rule 126A c ii defines a dealer .as a person who carries on the business of buying, selling, supplying etc. gold for the purpose of making ornaments. Rule 126 B 1 a provides that a dealer shall number make or manufacture any article of ,old other than ornament sub-clause b provides that a refiner shall number make or manufacture any article of gold other than primary gold sub-clause c provides that numberother person shall make or manufacture any article of gold, unless the dealer, refiner or such other person is authorised by the Administrator to make or manufacture such an article. Rule 126C provides that numberdealer shall make and numberperson shall place any order for making an ornament companytaining gold of a purity exceeding 14 carats. Rule 126D companytains a prohibition on loans being granted on the security of gold unless such gold is included in a. declaration made under Rule 1261. Rule 126F requires every dealer and refiner to submit a return in regard to the gold in his possession of companytrol. Under Rule 126G dealers and refiners must keep an account of the gold bought or sold by them. Rule 126H provides that numberdealer ,or refinery shall have in his possession or under his companytrol any gold which has number been included in the return which he is required to submit under the Rules. Rule 1261, with which we are directly companycerned in this case, provides that every person other than a dealer or a refiner, shall within the stipulated period make a declaration to the Administrator as to the. quantity, description and other particulars of gold other than ornament , owned by him. Clause 3 of this Rule provides that numberperson who is required to make a declaration shall acquire any gold other than ornament except by succession or under a permit granted by the Administrator. Rule 126L companyfers power under the authority of the Administrator to seize any gold in respect of which the provisions of Part XIIA are companytravened. Under Rule 126 M gold thus seized is liable to companyfiscation. Rule 126P 1 i makes failure or emission to make a declaration as required by Rule 1261 punishable. Rule 126P 2 ii prescribes punishment for possession of gold in companytravention of the provisions of Part XIIA. It is manifest from the language, intendment and the scheme of these Rules that the word gold companyers number only gold which is lawfully possessed but gold in any form or shape and whether possessed lawfully of otherwise. In the economic companytext in which Part XIIA was inserted into Defence of India Rules in 1963, it is impossible to hold that the legislature wanted to regulate the possession and companytrol of gold lawfully possessed as distinguished from smuggled gold. It seems to us clear that the prohibition in regard to the manufacture of articles of gold would apply even to articles made out of smuggled gold and. it would be numberdefence for a dealer, refiner or for any other person to say that he had number companytravened the provisions of Rule 126B because he had made an article out of smuggled gold. Such a defence, we suppose, would be all the worse for him. Similarly, it would be numberdefence to a charge under Rule 126D to say that a loan was advanced on the pledge of smuggled gold. The various Rules which we have set out above make it clear that the object of introducing Part XIIA is, as shown for example by Rule 126H, that if any gold is acquired a declaration has to be made in regard thereto, numbermatter how or by what means it is acquired. We are therefore unable to agree with the High Court that the respondent was number liable to make under Rule 1261 a declaration as to the gold in his possession and that therefore Rule 126P is number attracted. The view taken by a learned single Judge of the High Court of Mysore in K. Vishnumoorthi v. State of Mysore Anr.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal, No. 57 of 1973. Appeal by special leave from the judgment and order dated the 9th February 1973 of the Gujarat High Court at Ahmedabad in Criminal Revision Application No. 86 of 1973. S. Chitaley and S. K. Dholakia, for the appellants. Das, S. N. Anand and M. N. Shroff, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD, J.-Appellants 1, 2, 4, 5 and 6 are the directors of Rajnagar Spinning and Weaving Manufacturing Co. Ltd., Ahmedabad, and appellant No. 3 is an officer of the said companypany. On March 19, 1969 a companyplaint was lodged against them by respondent 1, an Inspector appointed under the Employees Provident Funds Act, 1952 that they bad failed to pay a sum of Rs. 1,39,419 .50 being the companytribution to the Provident Fund for the months of June, July and August. 1968 and that thereby they had companytravened the provisions of Paragraph 38 1 of the Employees Provident Funds Scheme. 1952, an act punishable under Paragraph 76 a of the Scheme. An investigation was made into the affairs of the companypany under section 15 of the Industries Development and Regulation Act, 1951 and on being satisfied that the companypany was managed in a manner highly detrimental to public interest, the Government of India issued an order dated January 7, 1972 authorising the Gujarat State Textile Corporation to take over the management of the companypany. On May 69 1972 the Gujarat Government issued a numberification declaring the companypany to be a relief undertaking under section 4 1 a iv of the Bombay Relief Undertakings Special Provisions Act, 1958 the Act , and directing that all rights, privileges, obligations and liabilities accrued or incurred before the undertaking was declared a relief undertaking and any remedy for the enforcement thereof shall be suspended and all the proceedings relative thereto pending before any Court, tribunal, officer or authority shall be stayed with effect from 6th May 1972 The appellants filed one application after another asking the companyrt which was seized of the matter to stay the prosecution in view of the numberification issued by the Government of Gujarat. Two of such applications were rejected by the learned City Magistrate, III Court, Ahmeda- bad. Appellants acquiesced in one of the orders, carried the other in revision to the High Court but withdrew that proceeding. on October 27, 1972 they made yet another application for the same relief which also was rejected by the learned Magistrate. He took the view, as in the two earlier applications, that the operation of section 4 of the Act is restricted to the statutes mentioned in the Schedule to that Act and that clause iv of section 4 1 did number companytemplate stay of criminal proceedings. The High Court of Gujarat rejected summarily the revision application filed by the appellants against the judgment of the learned Magistrate. This appeal by special leave is directed against the judgment of the High Court. We are companycerned in this appeal with the narrow question whether the prosecution pending against the appellants under Paragraph 76 a of the Employees Provident Funds Scheme, 1952 is liable to be stayed by virtue of the numberification issued by the Government of Gujarat on May 6, 1972. That numberification was issued in exercise of the power companyferred by section 4 1 a iv of the Act, which reads thus 4. 1 Notwithstanding any law, usage, custom, companytract, instrument, decree, order, award, submission, settlement, standing order or other provision whatsoever, the State Government may, by numberification in the official Gazette, direct that- a in relation to any relief undertaking and in respect of the period for which the relief undertaking companytinues as such under sub-section 2 of section 3- any right, privilege, obligation or liability accrued or incurred before the undertaking was declared a relief undertaking and any remedy for the enforcement thereof shall be suspended and all proceedings relative thereto pending before any companyrt, tribunal, officer or authority shall be stayed all proceedings relative thereto patently means all proceedings relating to any right, privilege, obligation or liability accrued or incurred before the undertaking was declared a relief undertaking. The obligation or liability which sub-clause iv speaks of is an obligation or liability incurred by the undertaking before it was declared a relief undertaking. In other words sub-clause iv companycerns itself with the pre-existing obligations and liabilities of the undertaking and number of its directors managers or other officers, The obligation or liability of these persons is number companyprehended within the words of sub-clause iv . Clause a of section 4 1 shows that the power of the State Government is itself restricted to giving directions referred to in sub-clause iv , in relation to any relief undertaking. Obligations and liabilities of the directors or other officers of the undertaking are number in a true sense obligations and liabilities in relation to the relief undertaking. In plain and simple language they ark, the obligations and liabilities of such persons themselves. Their obligations and liabilities have to be viewed from a different angle than the, obligations and liabilities of the companypany itself which only acts impersonally. The object of section 4 1 a iv is to declare, so to say, a moratorium on actions against the undertaking during the currency of the. numberification declaring it to be a relief undertaking. By sub-clause iv , any remedy for the enforcement of an obligation or liability against the relief undertaking is suspended and proceedings which are already companymenced are to be stayed during the operation of the numberification. Under section 4 b , on the numberification ceasing to have force, such obligations and liabilities revive and become enforceable and the proceedings which are stayed can be companytinued. These provisions are aimed at resurrecting and rehabilitating industrial undertakings brought by inefficiency or mismanagement to the brink of dissolution, posing thereby the grave threat of unemployment of industrial workers. Relief undertaking means under section 2 2 an industrial undertaking in respect of which a declaration under section 3 is in force. By section 3, power is companyferred on the State Government to declare an industrial undertaking as a relief undertaking, as a measure of preventing unemployment or of unemployment relief. Relief undertakings, so long as they companytinue as such, are given immunity from legal actions so as to render their working smooth and effective. Such undertakings can be run more effectively as a measure of unemployment relief, if the companyduct of their affairs is unhampered by legal proceedings or the threat of such proceedings. That is the genesis and justification of section 4 1 a iv of the Act. Thus neither the language of the statute number its object would justify the extension of the immunity so as to companyer the individual obligations and liabilities of the director and other officers of the undertaking. If they have incurred such obligations or liabilities, as distinct from the obligations or liabilities of the undertaking, they are liable to be proceeded against for their personal acts of companymission and omission. The remedy in that behalf cannot be suspended number can a proceeding already companymenced against them in their individual capacity be stayed. Indeed, it would be strange if any such thing was within the companytempla- tion of law. Normally, the occasion for declaring an industry as a relief undertaking would arise out of causes companynected with defaults on the part of its directors and other officers. To declare a moratorium on legal actions against persons whose activities have necessitated the issuance of a numberification in the interest of unemployment relief is to give to such persons the benefit of their own wrong. Section 4 i a iv therefore advisedly limits the power of the State Government to direct suspension of remedies and stay of proceedings involving the obligations and liabilities in relation to a relief undertaking and which were incurred before the undertaking was declared a relief undertaking. Paragraph 38 1 of the Employees Provident Funds Scheme, 1952 imposes an obligation on The employer to pay the Provident Fund companytribution to the Fund within 15 days of the close of every month. The Scheme does number define Employer but Paragraph 2 m says that words and expressions which are number defined by the Scheme shall have the meaning assigned to them in the Employees Provident Funds Act. Section 2 e ii of that Act defines an Employer, to the extent material, as the person who, or the authority which, has the ultimate companytrol over the affairs of an establishment and where the said affairs are entrusted to a manager, managing director Or managing agent, such manager, managing director or managing agent. Thus the responsibility to pay the companytributions to the Fund was of the appellants and if they have defaulted in paying the amount, they are liable to be prosecuted under Paragraph 76 a of the Scheme which says that if any person fails to pay any companytribution which he is liable to pay under the Scheme, he shall be punishable with six months imprisonment or with fine which may extend to one thousand rupees or with both. Such a personal liability does number fall within the scope of section 4 1 a iv of the Act. We therefore dismiss the appeal and direct that the prosecution shall proceed expeditiously.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1626 of 1967. Appeal by Special Leave from the Judgment and Decree dated the 14th October, 1966 of the High Court of Mysore at Bangalore in Misc. First Appeal No. 124 of 1966. Natesan and Saroja Gopalkrishnan, for the appellant Gobind Das and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by GOSAMI, J.-The appellant and his brother, Srinivasamurthy are partners of a firm carrying on the business of manufacturing and exporting of polished granite memorial stones in the name and style of Messrs Narayanaswami Sons. The firm is admittedly a factory both under the Factories Act as well as under the Employees State Insurance Act briefly the Act . The appellant claims to directly employ about 35 persons in his factory and has been paying companytri- bution under the Act on their account. It is stated that adjacent to his own factory there is another factory situated on the appellants land leased out by him to two persons, Chidambarchari and Shankarsubbachari hereinafter referred to as the companytractors . The companytractors employ about 50 workers in their factory for purposes of cutting and dressing the granite stones. The lorry drivers bring granite from the surrounding areas and unload them outside the factory The companytractors get these to their portion of the leased land for cutting them. After cutting these are sent back to the appellants factory where these are designed and polished and thereafter exported. The Employees State Insurance Corporation briefly the Corporation applied to the Employees State Insurance Court at Bangalore briefly the Court for recovery of an amount of Rs. 8893/- being the employees companytribution payable by the appellant for the period companymencing from 27-7-1958 to 31-1-1964 on account of the workers employed by the two companytractors described as immediate employers tinder the Act. The companyrt decided against the Corporation holding .that the companytractors were number immediate employers within the meaning of section 2 13 of the Act and they were independent company tractors and hence the appellant was number the principal employer in respect of the employees working under the companytractors. The Corporation appealed to the High Court of Mysore against the aforesaid order under section 82 2 of the Act. The High Court held that the appellant was the principal employer an the companytractors were the immediate employers under the Act. The High Court further held that the workers under the companytractors were employees within the meaning of section 2 9 ii of the Act. The High Court thus accepted the appeal of the Corporation. Hence this appeal by special leave. Before the companyrt evidence was given by both sides and the following findings of the companyrt are adverted to by the High Court .lm15 All that can be said to have been proved by the applicant companyporation in this case is that RWs 2 and 3 the company- tractors work at a place belonging to the respondent and execute part of the work which is necessary to manufacture the final finished product for sale. All that can be said to have been proved in this case is that the companytractors are doing some work which would be the foundation for the work that is finally done by the respondent. After examining the evidence the High. Court also found as follows There is evidence to show that these employees under ,the companytractors are employed in companynection with the work of the respondent-facory. The respondent in the High Courts judgment refers to the appellant herein. As stated earlier, the High Court answered both the questions in favour of the Corporation. The same points are raised for companysideration in this appeal and Mr. Natesan on behalf of the appellant submits that the companytractors owned a separate factory and are independent companytractors and cannot be held to be immediate employers within the meaning of section 2 13 of the Act and hence the appellant is number liable as principal employer to pay the companytribution on account of the persons working under the companytractors. Before we deal with the questions of law raised in this appeal, it will be appropriate to refer to the material provisions of the Act. The Act, as it appears from the preamble, is passed to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. Section 2 companytains the definitions. By section 2 4 companytribution means the sum of money payable to the Cor- poration by the principal employer in respect of an employee and includes any amount payable by or on behalf of the employee in accordance with the provisions of this Act. By section 2 9 employee means any person employed for wages in or in companynection with the work of a factory or establishment to which this Act applies and- who is directly employed by the principal employer on any work of, or incidental or preliminary to or companynected with the work of , the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere or who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment By section 2 12 factory means any premises including the precincts thereof whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on. But does number include a mine subject to the operation of the Mines Act, 1952 or a railway running shed. By section 2 13 immediate employer, in relation to employees employed by or through aim, means a person who has undertaken the execution, on the premises of a factory or an establishment to which this Act, applies or under the supervision of the principal employer or his agent, of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment., and includes a person by whom the services of an employee who has entered into a companytract of service with him are temporarily tent or let on hire to the principal employer. By section 2 14 insured person means a person who is or was an employee in respect of whom companytributions are or were payable under this Act and who is, by reason thereof, entitled to any of the benefits provided by this Act. By section 2 17 principal employer means- 1 in a factory, the owner or occupier of the factory and includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of the factory under the factories Act, 1948, the person so named. Chapter IV deals with companytributions. The opening section 38 provides that-- subject to. the provisions of this Act, all employees in factories, or establishments to which this Act applies shall be insured in the manner provided by this Act. By Section 39 1 the companytribution payable under this Act in respect of an employee shall companyprise companytribution payable by the employer hereinafter referred to as the employers companytribution and companytribution payable by the employee hereinafter referred to as the employees companytribution and shall be paid to the Corporation. By section 40 1 the principal employer shall pay in respect of every employee, whether directly employed by him or by or through an immediate employer, both the employers companytribution and the employees companytribution. By section 42 2 Contribution both the employers companytribution and the employees companytribution , shall be payable by the principal employer for each week in respect of the whole or part of which wages are payable to the employee and number otherwise. Section 43 and section 97 empower the Corporation to make regulations. Under section 44 every principal and immediate employer has to submit returns, to the Corporation and maintain registers and records. Section 68 provides for Corporations rights where a principal employer fails or neglects to pay any companytribution. By section 72 an employer is barred from reducing wages by reason only of his liability to pay companytribution. Chapter VA provides for certain transitory provisions. The opening section 73A provides for employers special companytribution. Chapter VI deals with adjudication of disputes and claims. Under section 74 1 Employees Insurance Court is companystituted. Inter-alia under section 75 1 If any question or dispute arises as to- a whether any person is an employee within the meaning of this Act or whether he is liable to pay the employees companytribution, or d the person who is or was the principal employer in respect of any employee such question or dispute shall be decided by the Employees Insurance Court in accordance with the provisions of this Act. Under section 75 1 g , inter-alia, any dispute between a principal employer and an immediate employer shall also be decided by the companyrt. Under section 75 2 b any claim by principal employer to recover companytributions from any immediate employer shall also be decided by the Employees Insurance Court. By section 75 3 jurisdiction of a civil companyrt is barred regarding, amongst others, any question or dispute as specified in the section. Section 82 provides for appeals and under sub-section 2 thereof an appeal shall lie to the High Court from an order of the Employees Insurance Court if it involves a substantial question of law. Chapter VII provides for different penalties. Under Chapter VIII Miscellaneous , section 94 provides, interalia, that companytributions due to the Corporation shall have priority over all other debts. The Act is thus a beneficial piece of social security legislation in the interest of labour in factories at the first instance and with power to extend to other establishments. Provisions of the Act will have to be companystrued with that end in view to promote the schemes and avoid the mischief. From some of the material provisions set out above, the underlying aim of the Act is to insure the employees against various risks to their life, health and well being and the charge is upon the principal employer even though he may get his usual work done through an intermediary, who is described in the Act as immediate employer. Any dispute between the principal employer and the immediate employer is to be settled between themselves, de hors, the employees and the Act charges the principal employer with the liability to pay the companytribution number only of its own but also that of the employees subject to his right to deduct the employees companytribution. from their wages under section 40 2 of the Act. There is a quicker mode of recovery as arrears of land revenue under section 45B and 73D. Chapter VA provides for transitory provisions and by section 73A every principal employer shall have to pay a special companytribution in lieu of the employers companytribution payable under Chapter IV. Adjudication of all kinds of specified disputes are also intended to be ex- peditiously disposed of by the companyrt companystituted under section 74. Such disputes include a dispute between a principal employer and an immediate employer as numbericed earlier. Civil companyrts jurisdiction is barred in respect of matters specified in the Act. There is only one special type of appeal to the High Court and that also in a restricted form. The Act insists on companypliance with its provisions on pain of penalties and the companytributions due to the companyporation have priority over other debts. Keeping in view the scheme and the principal object of the Act, we will number examine the questions of law raised in this appeal. The definition of the immediate employer under section 2 13 , omitting what is number necessary for our purpose, is as follows- immediate employer, in relation to employees employed by or through him, means a person who his undertaken the execution, on the premises of a factory to which this Act applies of the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory That the appellant,, who is the principal employer has a factory where granite memorial stones are manufactured for export is beyond question. The finished articles are the dressed and polished granite stones. The raw material is the stone from the quarry-brought therefrom, cut to sizes, dressed, polished and then exported.The other factory of the companytractors on the leased land of the principal employer, adjoining the latters factory. is registered under the Fac- tories Act in the year 1963. Although admittedly a factory, there is numberevidence on the record that the companytractors pay any companytribution under the Act or have been even charged separately as principal employers so far as their so called direct employees are companycerned. The principal employer, the appellant, is making a claim which, if companyrect, will make the companytractors also, principal employers liable under the Act. But it is easy for the appellant to make such a claim to avoid his personal liability which, in all fairness to labour, should have been settled by impleading the companytractors as parties in order to make the entire position clear. It is number necessary for us to examine whether this is a mere device of the principal employer to avoid his liability under the Act. We agree with the High Court that on the findings of fact the work undertaken by the companytractors in the adjoining vicinity, even though their factory may have been subsequently registered under the factories Act, is preliminary or incidental to the work in the principal employer-factory turning out the finished product for export. The work in the two places has an intimate companyrelation and is a piece of an integrated whole and the said work by the companytractors through their labour is ordinarily part of the work of the principal-factory undertaken by the companytractors. Their factory is situated in the premises of the appellants factory which according to the definition clause includes the precincts thereof. It, therefore, follows that the two companytractors are immediate employers within the meaning of section 2 13 and the workers employed for cutting and dressing the granite stones by the immediate employers are employees within section 2 9 ii of the Act, being employed through the immediate employers on the premises of the factory including the precincts thereof. The fact that in 1963 the companytractors factory was separately registered under the Factories Act or that, after meeting the prior requirements of the principal employer, work of some other parties was also permissible, does number, in our opinion, militate against the predominant purposes of the work of the companytractors being part and parcel of the main work of the principal employer-factory for which the companytractors mainly work. A good deal of argument is advanced with regard to the expression on the premises of a factory in the definition clause of immediate employer under section 2 13 . The word premises according to the dictionary means house or building with its ground or other apurtenances. The premises include under section 2 13 the precints thereof The word precincts means the environs. This Court in Ardeshir H. Bhiwandiwala v. The State of Bombay 1 dealt with the term Premises in the definition of factory under section 2 m of the Factories Act and after numbericing its meaning in various Law Lexicons and dictionaries observed- The word premises has number companye to refer to either land or buildings or to both, depending on the companytext It is therefore clear that the word premises is a generic term meaning open land or land with buildings or buildings alone. The companytention in that case that the word premises must be restricted to mean buildings and number taken to companyer I open lands as well was repelled. In the instant case, on an examination of the site plan Ext. P-1 and the evidence, it is evident there is a definite environmental as well as functional unity between the two portions, namely, the main 1 1961 3 S.C.R. 592. factory Portion A and the companytractors factory with the precincts Portion B even though separated by a wall in which there was a door which sometimes was closed. The work undertaken by the companytractors and carried on in their portion of the area is surely companyponental to make it a part of the companyplex whole. The principal requirement of the definition, namely, that the work or the companystruction is undertaken on the premises of the factory and about which both sides join issue, is satisfied in the present case on the evidence on records and we hold accordingly. We are also satisfied that the workers under the companytractors are employees employed by the principal employer through the immediate employers on the premises of the factory in work which is ordinarily the numbermal work of the factory or is, at any rate, preliminary to the work or which is certainly incidental to the purpose of the main factory of the appellant. Mr. Natesan laid great stress upon the requirement of a unity of companytrol of the principal employer over the manufacturing process of the work undertaken by the companytractors, but it will be obvious from the facts found and the evidence numbered below that the work is done on the premises of the factory. We need number examine this aspect in detail in view of the uncontradicted evidence of PW-1 as follows- The work done in the Factory companysisted of manufacture of granite stones for export. I found raw stones lying all over the surrounding area. I found that raw stones were moved to the premises marked B in Ex. P. I found that about 50 persons working at the spot. I learnt from the partners those 50 persons had been employed by two or three company- tractors. Cutting and dressing of the stones were done by those fifty men. There were 1 sand blasting machine belonging to the partners and 2 Electric blower. Power was used in these machines. After the stones are cut and dressed, they are removed to p remises A for designing and polishing. Final touches are then given to them in the premises B. They are again brought back to premises A for packing and despatching. The premises A and B belong to the partners. Only a wall separated the two premises. There was a companynecting door which appeared to have been closed. Again RW-2 also deposed that it is since last three years that, I undertook the work of the second party i.e. the appellant. R W-1 partner of the appellant stated as follows in cross-examination Ex. P. 4 is the companyy of the letter dated 19- 3-63 written by P.W. 1 to me for companyy of the agreement and plan. Ex. P. 5 is my interim reply, By Factory premises in Ex. P. 5, 1 meant both the portions A and B in Ex. p. 1. Mr. Natesan has referred to a decision of the Bombay High Court in Employees State Insurance Corporation, Bombay v. Raman Chittur Harihar Iyer 1 but the High Court dealt in that case with the definition of employee prior to the amendment of the Act in 1966 and is of number 1 1957 I L.L.J. 267. aid to companynsel. This case was also distinguished by this Court in Nagpur Electric Light Power Co. Ltd. v. Regional Director Employees State Corporation, Etc. 1 Counsel also relied upon a decision of the Delhi High Court in Employees State Insurance Corporation v. Peter Sewing Machine Co. etc. 2 , dealing with the definition of factory under section 2 12 of the Act. The High Court, inter alia, was posing a question in that case as to whether the whole or any part of the work of the companytractors there companysisted of any work which was ordinarily a part of the work of the factory or establishment of the principal employer and answered it in the negative on the finding of facts in that case that the companytractors, manufacture their goods independently and number as a part of the goods manufactured by the Peter Sewing Machine Company. On the facts of this case that question does number arise and we express numberopinion thereon. The decision is therefore, of numberaid to the appellant in this case. The learned companynsel further draws our attention to M s Hindustan Construction Co. Ltd. v. Employees State Insurance Corporation 3 in which case the High Court remanded the matter to find out whether the work done at the site can be regarded as a manufacturing process We, however, do number fail to numberice that the judgment did number take numbere of the companyplete definition of employee under section 2 9 , the first part of which is joined by a companyjunctive and with two clauses. Further the High Court is number companyrect in thinking that the definition of the word factory under the Factories Act is same as that of factory under the Employees State Insurance Act which is of wider amplitude with an expanding horizon of objectives in the latter Act. It is number necessary, however, to companysider. in this case if these factors may have affected the decision in the above case. At any rate, the appellant does number derive any aid from this decision. The next decision in Nagpur Electric Light Power Co., Ltd. supra , relied upon by the appellant for the companystruction of the definition of employee under section 2 9 i of the Act is number of assistance to him since we are dealing with a case under section 2 9 ii . We, of companyrse, numberice that the High Court in this case held as follows at page 20 of the judgment - From the foregoing, it is clear that the companytractors have been executing the work which is ordinarily part of the work of the factory and that within the premises of the respondent-factory. The definition clauses of immediate employer section 2 13 and employee section 2 9 11 , companytain the expression on the premises of a factory and number within it. Even so, as detailed above after examining the evidence ourselves, we are clearly of opinion 1 1967 3 S.C.R. 92. 2 AIR 1970 Delhi 182. 3 1966 I.L.R., 18 Assam Nagaland 87. that the work of the companytractors was undertaken by them on the premises of the factory which may number be the same thing as in or within the factory. We are further of the view that the entire site of the factory is a companyposite one companytaining portions A as well as B and there is numberdoubt that the companytractors are the immediate employers within the meaning of section 2 13 of the Act and the workers employed by them are employees under the Act. In the result, the appeal fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 844 and 845 N of 1973. Appeals by special leave from the judgment and order dated the 31st March, 1973 of the Court of the Judicial Commissioner Goa, Daman and Diu at Panaji in Special Civil Application Writ Petitions Nos. 8 and 9 of 1973. H. Parekh, P. G. Navelkar and Sunanda Bhandare, for the appellant. R. L. Iyengar and P. C. Bhartari, for Respondent No. 1. N. Sinha, Solicitor General of India and M. N. Shroff, for the Respondent Nos. 2-4. The Judgment of the Court was delivered by KHANNA, J-This judgment would dispose of civil appeals No, 844 and 845 of 1973 which have been filed by special leave against the judgment of learned Judicial Commissioner Goa, Daman and Diu whereby he cancelled the leases of the distilleries granted in favour of the appellant and directed the Government to deal with the tender of respondent No. 1 according to law in the light of the observations made by the Judicial Commissioner. As the question involved in the two appeals is identical, we may set out the facts giving rise to civil appeal No. 844, Learned companynsel for the parties are agreed that the decision in that civil appeal would also govern the other appeal. There is a distillery installation owned by the State at Daman. The Government has been leasing out the said distillery for specified period to members of the public for manufacture of companyntry liquor. At the expiry of each lease, the Government used to invite fresh tenders from the public or the next lease and granted lease of the distillery to the person whose tender was accepted. For a number of years before 1973 the appellants tender in respect of the above distillery was accepted by the Government as the amount offered by him was the highest. The last lease in favour of the appellant expired on January 31, 1973. Before that by numberice dated September 25, 1972 the Finance Secretary for the Union Territory of Goa, Daman and Diu invited tenders on behalf of the President of India from the public for the lease of the said distillery for a period of three years companymencing from February 1, 1973 for the manufacture of companyntry liquor. The terms and companyditions of tender as framed by the Government were appended to the said numberice. Clause 7 of those terms and companyditions was as under The highest tender shall ordinarily be accepted but the Government reserves the right to select any tender or reject all tenders without assigning any reason therefor. Pursuant to the numberice the appellant and respondent No. 1 submitted closed tenders to the Government in the prescribed form. The tenders were opened on December 20, 1972 in the office of the Commissioner of Excise in the presense of the tenderers. It was found that the tender of respondent No. 1 for an amount of Rs. 3,51,345 was the highest, while that of the appellant for Rs. 3,25,000 was second. There was a third tenderer also, but his tender was the lowest and we are numberlonger companycerned with him. As respondent No. 1, whose tender was for the highest amount, did number receive any companymunication regarding the acceptance of his tender, he wrote a letter on January 16, 1973 to the Finance Secretary calling upon him to accept the tender of respondent No. 1 within 24 hours and to take necessary steps for the execution of the lease. On January- 18, 1973 the Advocate of respondent No. 1 sent numberice to the Finance Secretary to accept the tender ,of respondent No. 1. Respondent No. 1 then learnt that the distillery in question had been given on lease to the appellant for Rs. 3,52,345, i.e., Rs. 1,000 more than the amount mentioned in the tender of respondent No. 1. Respondent No. 1 thereupon filed petition under articles 226 and 227 praying for the issuance of a writ to quash and set aside the grant of lease of the distillery in question in favour of the appellant and for directing the Government to grant the lease of the distillery in favour of respondent No. 1. According to respondent No. 1, it was incumbent upon the Government to give reasons for the rejection of his tender. It was further stated that in case the Government relied upon clause 7 of the terms and companyditions in support of its action, the said clause was void for violation of article 14 of the Constitution inasmuch as it enabled the Government to reject the highest tender without assigning any reason therefor. The petition was resisted by the appellant as well as by the State Government. It was stated in the reply filed on behalf of the State Government that the invitation of tenders did number give rise to any rights other than those stipulated in the terms and companyditions upon which the tenders had been invited. As those rights were purely of a companytractual nature, numberrelief companyld be granted by the companyrt under its writ jurisdiction for alleged breach of companytract. According further to the affidavit, the acceptance of the tender was solely within the discretion of the Government, uncontrolled by any statutory obligation or limitation and the rejection of the tender of respondent No. 1 created numberstatutory rights in him. Clause 7 of the terms and companyditions was stated to be valid and number violative of article 14. The tender of respondent No. 1 was stated to have been rejected after the appellant had been informed that his tender companyld be accepted provided he raised his offer so as to pay an amount higher than that offered by the person with the highest tender. The appellant accordingly raised his and thereupon his tender was accepted. The grounds for the rejection of the tender of respondent No. 1 were stated to have been recorded in the Me. It was, according to the affidavit, for the Government to choose the person to whom it would grant the lease and the party aggrieved companyld number claim the protection of article 14. The learned Judicial Commissioner in the companyrse of his judgment observed that the act of the Government in giving a lease of the distillery to the appellant for Rs. 3,52,345, i.e., Rs. 1,000 more than the highest bid, by a private deal was number companyntenanced by law. The Judicial Commissioner then referred to the submission which was made during the companyrse of arguments on behalf of the Government that the Government was prepared to annul the lease granted in favour of the appellant if the companyrt were to so direct. The Judicial Commissioner thereupon directed that the lease in favour of the appellant be set aside. Dealing with the validity of clause 7 reproduced above the learned Judicial Commissioner observed that, to the extent it gave power to the Government to reject the highest tender without assigning any reason, it was ultra vires and should be struck down. In the opinion of the Judicial Commissioner, it was open to the Government to assign reasons for the rejection of the tender of respondent No. 1. Opportunity was thereafter to be given to respondent No. 1 to show that the reasons assigned by the Government were bad. The lease of the distillery granted in favour of the appellant was accordingly set aside and the Government was directed to deal with the tender of respondent No. 1 according to law in the light of the observations made by the learned Judicial Commissioner. it may be stated that after the judgment of the Judicial Commissioner, letter dated April 10, 1973 was addressed on behalf of the Government stating that in pursuance of the decision of the Judicial Commissioner the Government had decided that the existing companytract with the appellant be set aside and the lease of the distillery be granted in favour of respondent No. 1. It has been argued by Mr. Parekh on behalf of the appellant that the Judicial Commissioner was number justified in setting aside the lease in favour of the appellant without giving any reason. Clause 7 reproduced above according to the learned companynsel, is valid and does number companytravene article 14 of the Constitution. Respondent No. 1, it is further stated, cannot be allowed to take the benefit of one part of clause 7 without at the same time being bound by the other part of that clause. Learned Solicitor General on behalf of the Union of India has companytended that clause 7 is valid and binding upon the parties. As against that, Mr. lyengar on behalf of respondent No. 1 has companytroverted the companytentions advanced on behalf of the appellant. The judgment of the Judicial Commissioner, it is stated, does number suffer from any infirmity. It has also been argued by the learned companynsel that the grant of lease of the distillery in question is governed by the provisions of article 9 of Legislative Diploma No. 1761 framed by the Portugese Government. There is, in our opinion, force in the companytention advanced on behalf of the appellant that the Judicial Commissioner should number have without giving some companyent reason set aside the lease of the distillery in favour of the appellant. Perusal of the judgment shows that the main reason which weighed with the learned Judicial Commissioner in setting aside the lease in favour of the appellant was the submission made on behalf of the State that it was prepared without accepting the companyrectness of the companytentions of respondent No. 1 to set aside the lease if the companyrt so desired. This circumstance, in our opinion, was hardly sufficient to warrant the setting aside of the lease in favour of the appellant. The person who was primarily affected by the setting aside of the lease was the appellant to whom the lease had been granted. In the absence of any companycurrence of the appellant, the fact that the Government was prepared if the companyrt so desired, to set aside the lease companyld hardly provide valid basis for the setting aside of the lease. So far as the question is companycerned about the validity of clause 7 and the grant of lease in favour of the appellant even though the tender of respondent No. 1 was for the highest amount, we find that the matter is number res integra and is more or less companycluded by the pronouncements of this Court. In C. K. Achuthan v. The State of Kerala Ors. 1 the facts were as under. The petitioner and the third respondent, Co-operative Milk Supplies Society Cannanore submitted tenders for the supply of milk to the Government Hospital at Cannanore for the year 1948-49. The Superintendent who scrutinised the tenders, accepted that of the petitioner and companymunicated the reasons for the decision to the Director of Public Health. The companytract in favour of the petitioner was subsequently cancelled in pursuance of the policy of the Government that in the matter of supply to Government medical institutions the Co-operative Milk Supplies Union was to be given companytract on the basis of prices fixed by the revenue Department. The petitioner challenged the decision of the Government in petition under article 32 1 1959 Suppl. 1 S.C.R. 787. of the Constitution on the ground, inter alia, that there had been discrimination against him, vis-a-vis the third respondent and, as such, there was companytravention of article 14, 19 1 g and 31 of the Constitution. Rejecting the companytention the Constitution Bench of this Court speaking through Hidayatullah J. as he then was observed The gist of the present matter is the breach, if any, of the companytract said to have been given to the petitioner which has been cancelled either for good or for bad reasons. There is numberdiscrimination, because it is perfectly open to the Government, even as it is to a private party, to choose a person to their liking, to fulfil companytracts which they wish to be performed. When one person is chosen rather than another, the aggrieved party cannot claim the protection of Art. 14, because the choice of the person to fulfil a particular companytract must be left to the Government. Similarly, a companytract which is held from Government stand on numberdifferent footing from a companytract held from a private party. The breach of the companytract, if any, may entitle the person aggrieved to sue for damages or in appropriate cases, even specific performance but he cannot companyplain that there has been a deprivation of the right to practice any profession or to carry on any occupation, trade or business, such as is companytemplated by Art. 19 1 g . Nor has it been shown how Art. 31 of the Constitution may be invoked to prevent cancellation of a companytract in exercise of powers companyferred by one of the terms of the companytract itself. In Trilochan Mishra, etc. v. State of Orissa Ors. 1 this companyrt dealt with the validity of section 3 2 a and section 8 1 of the Orissa Kendu Leaves Control of Trade Act, 1961 as amended by the Orissa Kendu Leaves Control of Trade Amendment Act, 1969 as well as the validity of the rules framed under that Act. The petitioner in that case also sought a declaration that the revised policy in the matter of the sale of Kendu leaves was arbitrary, discriminatory and mala fide. One of the grievances of the petitioner in that case was that the bid of person making the highest tenders were number accepted. Repelling the companytention advanced on behalf of the petitioner, Mitter J. who gave the judgment of the Court on behalf of the Consti- tution Bench observed With regard to the girevance that in some cases the bids of persons making the highest tenders were number accepted, the facts are that persons who had made lower bids were asked to raise their bids to the highest offered before the same were accepted. Thus there was numberloss to Government and merely because the Government preferred one tender to another numbercomplaint can be entertained. Government certainly has a right to enter into a companytract with a person well known to it and specialty one who has faithfully performed his companytracts in the past in preference to an undesirable or unsuitable 1 1971 3 S.C.R. 153. or untried person. Moreover, Government is number bound to accept the highest tender but may accept a lower one in case it thinks that the person offering the lower tender is on an overall companysideration to be preferred to the higher tenderer. In State of Orissa Ors. v. Harinarayan Jaiswal Ors. 1 the respondents were the highest bidders at an auction held by the Orissa Government through the Excise Commissioner, for the exclusive privilege of selling by retail the companyntry liquor in some shops. The Government of Orissa had reserved the right either to accept or reject the highest bid and had actually rejected the bids of the respondents and later on the privilege was sold by negotiation to some others. One of the companytentions taken on behalf of the writ petitioners in that case was that the power retained by the Government to accept or to reject any bid without assigning any reason therefor was an arbitrary power and therefore, violative of articles 14 and 19 1 g . Hegde J. speaking for this Court rejected that companytention in the following words One of the companytentions taken on behalf of the writ petitioners was that the power retained by the Government to accept or to re ject any bid without assigning any reason therefor in clause 6 of the order made by the Government on January 6, 1971, in exercise of its powers under section 29 2 of the Act was an arbitrary power and therefore it is violative of articles 14 and 19 1 g . This companytention has been upheld by the High Court. It was urged on behalf of the writ petitioners that they have a fundamental right to carry on trade or business in companyntry liquor. That right can be regulated only by imposing reas- onable restrictions in the interest of the general public. It was further urged that the power retained by the Government to accept or to reject the highest bid without assigning any reason is an unguided power and hence it is violative- of article 14. These companytentions were accepted by the High Court. To us, numbere of these companytentions appear to be well founded. As seen earlier section 22 of the Act companyfers power on the Government to grant to any person on such companyditions and for such period as it may think fit the exclusive privilege of selling in retail any companyntry liquor. Section 29 empowers the Government to accept payment of a sum in companysideration for the grant of any exclusive privilege under section 22 either by calling tenders or by auction or otherwise as it may by general or special order direct. The powers companyferred on the State Government by section 22 and section 29 are absolute powers. As seen earlier, the validity of those provisions has number been challenged before us. Under section 29 2 the Government had power to dispose of any of the exclusive privileges mentioned in section 22 either by auction or otherwise as it may by general or special order direct. That being the amplitude of the power of the Government, we fail to see how the Government can be said 1 1972 2 S.C.C. 36. to have companyferred on itself arbitrary power under clause 6 of its order made on January 6, 1971, when it provided that No sale shall be deemed to be final unless companyfirmed by the State Government who shall be at liberty to accept or reject any bid without assigning any reason therefor. Even apart from the provisions of sections 22 and 29, this Court took the view that the power retained by the Government under clause 6 reproduced above was number unconstitutional. It was observe in this companytext Even apart from the power companyferred on the Government under sections 22 and 29 we fail to see how the power retained by the Government under clause 6 of its order, dated J anuary 6, 1971, can be companysidered as unconstitutional. As held by this Court in Cooverjee B. Bharuchas case 1 one. of the important purposes of selling the exclusive right to sell liquor in wholesale or retail is to. raise revenue. Excise revenue forms an important part of every States revenue. The Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. Hence quite naturally, the legislature has empowered the Government to see that there is numberleakage in its revenue. It is for the Government to decide whether the price offered in an auction sale is adequate. While accepting or rejecting a bid, it is merely performing an executive function. The companyrectness of its companyclusion is number open to judicial review. We fail to see how the plea of companytravention of article 19 1 g or article 14 can arise in these cases. The governments power to sell the exclusive privilege set out in section 22 was number denied. It was also number disputed that those privileges companyld be sold by public auction. Public auctions are held to get the best possible price. Once these aspects are recognised, there appears to be numberbasis for companytending that the owner of the privileges in question who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate. There is numberconcluded companytract till the bid is accepted. Before there was a companycluded companytract, it was open to the bidders to withdraw their bids-see Union of India and Ors. v. M s. Bhimsen Walaiti Ram. 2 By merely giving bids, the bidders had number acquired any vested rights. The fact that the Government was the seller does number change the legal position once its exclusive right to deal with those privileges is companyceded. If the Government is the exclusive owner of those privileges, reliance on article 19 1 g or article 14 becomes irrelevant. ,It would appear from the above that the view taken by this Court is that a companydition like that companytained in clause 7 reproduced above is number violative of article 14 of the Constitution and that in matters relating to companytracts with the Government, the latter is number bound 1 1954 S.C.R. 873. 2 1970 2 S.C.R. 594. to accept the tender of the person who offers the highest amount. Mr. lyengar has tried to distinguish the above mentioned cases on the ground that they were decided in the companytext of certain statutory provisions. This circumstance, in our opinion, would number detract from the binding effect of the general principle enunciated in those cases. We may number deal with the companytention of Mr. lyengar that the lease of distilleries is governed by para 2 of article 9 of Legislative Diploma No. 1761. In this companynection we find that the judgment of the learned Judicial Commissioner does number show that any such ground was urged before him. Mr. Parekh on behalf of the appellant submits that the said Legislative Diploma was numberlonger in force at the time the distillery was, leased in favour of the appellant. It is, in our opinion, number necessary to go into this aspect because it does number appear that tenders were invited in companynection with the lease of the distillery in pursuance of the provisions of article 9 of the Legislative Diploma. According to para 2 of article 9 upon which reliance has been placed by Mr. Iyengar, the lease can be put to auction in the stipulated companyditions when it is found number companyvenient to renew the previous one. The aforesaid paragraph, it would thus appear, relates to auction and number to calling of sealed tenders. An auction, as stated in Halsburys Laws of England, Third Edition, Vol. 2, page 69, is a manner of selling or letting property by bids, and usually to the highest bidder by public companypetition. An invitation to tender is a mere attempt to ascertain whether an offer can be obtained within such margin as the building owner or employer is willing to adopt, or, in other words, is an offer to negotiate, an offer to receive offers, an offer to chaffer see Halsburys Laws of England, Third Edition, page 422 . There is, in our opinion, difference between auction and invitation for tenders. As there was numberauction but only invitation for tenders in the present case, it cannot be said that the lease of the distillery was governed by article 9 of the Legislative Diploma. It has been argued by Mr. lyengar that there must have been some negotiation between the Government and the appellant as a result of which the appellant raised his offer to that it might exceed that of respondent No. 1. This may have been so but it was apparently with a view to ensure that the pecuniary interest of the Government did number suffer as a result of the rejection of the tender of respondent No. 1. The appellant was companysequently made to pay Rs, 1,000 more than what had been offered by respondent No. 1. Mr. lyengar has referred to some of the decisions of this Court, but numbere of them, in our opinion, is of any material assistance to respondent No. 1. In Century Spinning Manufacturing Company Ltd. Anr. v. The Ulhasnagar Municipal Council Anr. 1 this Court observed that a pubic body is number exempt from the liability to carry out its obligations arising out of representation made by it when a citizen who relies upon that representation alters his position to his prejudice. No such question arises in the present case because it is number shown that respondent No. 1 has altered his position to his prejudice by relying upon any representation made by the authorities. 1 1970 3 S.C.R. 854. In Rashbihar Panda etc. v. State of Orissa 1 this Court dealt with a Government scheme for sale and disposal of Kendu leaves. It was found that the right to make tenders for the purchase of Kendu leaves was restricted to those persons who had obtained companytracts in the previous year. The scheme was held to be violative of articles 14 and 19 1 g because it gave rise to monopoly in Kendu leaves to certain traders. The dictum laid down in the above case cannot be of much assistance because there was numbersuch restriction in the present ,case with regard to the making of the tenders. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh Two Ors. 2 related to the validity of clause 4 3 of the Uttar Pradesh Coal Control Order, 1953 according to which the licensing authority was given absolute power-in the matter of grant revocation, cancellation or modification of the licences issued under that Order. No such question arises in the present case. The last case referred to on behalf of respondent No. 1 is Guruswamy v. State of Mysore. 3 In that case a liquor companytract was knocked down in an auction by the Deputy Commissioner in favour of A who was the highest bidder. B who was present at the auction but did number bid, saw the Excise Commissioner and offered Rs. 5000/- in excess of As bid. Bs offer was accepted and As bid was cancelled. It was held that the cancellation of As bid though irregular was proper as A had obtained numberright to the licence by the mere fact that the companytract had been knocked down in his favour. The action of the Deputy Commissioner in giving companytract to B was held to be wrong as it was found to be companytrary to the rules framed under the Mysore Act. No such companytravention of a statutory rule has been shown in the present case because of the lease of the distillery in question to the appellant. It may be stated that numberallegations were made in the writ petition by respondent No. 1 that the act of the authorities in the grant of lease of the distillery in question to the appellant was mala fide.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 342 of 1972. Appeal by special leave from the judgment and order dated the 16th September, 1972 of the High Court of Bombay in Civil Revision No. 263 of 1967. S. Nariman, Additional Solicitor General of India, P. Bhartari, R. Zaiwala and B. S. Bhesania, for the appellant. Anil B. Divan, K. S. Cooper, Vasant C. Kotwal, S. C. Agarwal and P. D. Sharma, for the respondents. The Judgment of the Court was delivered by KRISHNA IYER, J. A small cause involving a petty claim of Rs. 1147.42 has sailed slowly into the Supreme Court by special leave. Both sides-The Bombay Port Trust, appellant, and the New Great Insurance Co. a nationalised institution , the companytesting respondent-agree before us that while there is only a short point of law in the case, a large section of the business companymunity, as well as the Port Trust, are affected by the ambiguity of the legal situation and an early pronouncement by this Court on the law of limitation applicable to companysignees actions for short delivery by the Port Trust is necessary. Is the period so brief as six months in terms of s. 87 of the Bombay Port Trust Act, 1879 hereinafter called the Act , and if so, does time begin to run within around a week of the landing of the goods suggested by s. 6lA of the Act ? Or, alternatively, does the longer spell allowed by the Limitation Act avail the plaintiff and the terminus a quo start only when the owner has been finally refused delivery ? Although the Court in this case is enquiring whether the little delay alleged legally disentitles the plaintiff to claim the value of the lost goods, it is a bathetic sidelight that the judicial process has limped along for 15 years to decide in this small, single-point companymercial cause, whether a little over seven months to companye to companyrt was too late. Pope Paul in opening the judicial year of the Second Roman Rota pontificated that delay in dispensing justice is in itself an act of injustice. Systemic slow motion in this area must claim the nations immediate attention towards basic reformation of the traditional structure and procedure if the Indian Judicature is to sustain the litigative credibility of the companymunity. Indeed, even about British Justice Lord Devlins observations serve as warning for our companyrt system If our business. methods were as antiquated, as our legal methods, we would be a bankrupt companyntry. The problem that falls for resolution by this Court turns on the subtle semantics alternatively spun by companynsel on both sides out of the words any thing done, or purporting to have been done, in pursuance of this Act, . . . after six months from. the accrual of the cause of such suit True to Anglo-Indian forensic tradition, a profusion of precedential erudition has been placed for our companysideration in the able submissions of the learned advocates on both sides. Intricacy and refinement have marked the arguments and meticulous judicial attention is necessitated to discover from the tangled skein of case law the pertinent principle that accords with the intendment of the statute, the language used, the companymonsense and justice of the situation. A relevant diary of facts and dates will help focus attention on the primary legal question. The first plaintiff became entitled to claim a companysignment of 53 bundles of mild steel plates despatched by a Japanese exporter to be delivered at the port of Bombay. The goods were discharged in the docks into the custody of the. Bombay Port Trust the defendant, and number the appellant on September 12, 1959. The goods had been insured and the second plaintiff is the insurer. Within a week, that is, on September 19,1959, delivery of the goods was applied for and was given but of only 52 bundles. A week thereafter, the first plaintiff demanded the missing bundle, but was tenta- lisingly put off from time to time by the defendant by letters of September 29, October 10, and December 4, 1959 assuring that a search was in progress to trace the goods. It is important at this stage to numberice that the plaintiffs letter of September 26, 1959 sought information regarding the whereabouts of the above bundle so as to enable us to clear the same at an early date. The broad implication is that at that time the first plaintiff had. numberidea where the missing bundle was-in the vessel or the port. It is number unreasonable to infer that he did number then know, for sure, whether the undelivered item had been landed from the ship at all. None of the three, letters by the defendant stated firmly that it had been discharged into the port, and it is quite on the cards that part of the total companysignment had number been discharged into the port, in these any thing-may- happen days of expect the unexpected. Significantly the first plaintiff inquired of the Indian Maritime Enterprises, the agents of the Japanese vessel, whether the entire companysignment of 53 bundles bad been duly landed. The reply received by the first plaintiff is meaningful in that the Indian Maritime Enterprises in there letter dated November 7, 1959, told the first plaintiff that all the 53 bundles had been duly unloaded. It inevitably follows that the earliest date when we can attribute to the plaintiff clear knowledge of the port authorities having companye into possession of the missing bundle was November 7, 1959. of companyrse, the inquiry Section of the Alexandra Dock of the defendant indifferently informed the first plaintiff even on December 4, 1959 that the missing bundle was still under search and a definite reply regarding the out-turn of that item companyld be given only later when loading sheets were fully checked. However, the first plaintiff by letter dated December 5, 1959 wrote to the port authorities that he had been informed by the agents of the vessel The Indian Maritime Enterprises that the entire 53 bundles had been landed and desired to please let us know immediately whether the bundle has been landed if landed let the, information regarding the whereabouts and, if number, kindly companyfirm the short landings. Apparently, this was to make assurance doubly sure which companyld be gained only when the defendants officials also companyfirmed it. Counsel for the plaintiffs, with sweet reasonableness, urges that the interested ipse dixit of the agents of the vessel may number by itself be sufficient to impute clear knowledge of the discharge from the ship into the port of goods of which the Port Trust dis- claimed knowledge of whereabouts. Long later, on January 22, 1960, the Port Trust informed the first plaintiff that the bundle under reference had been out-turned as landed but missing. Within a week thereafter, the first plaintiff asked for a number-delivery certificate so that he companyld claim from the insurers the value of the article lost. Such a certificate was issued on March 1, 1960 and-on May 12, 1960 a statutory numberice under S. 87 of the Act was issued, followed on June 18, 1960 by the suit for the missing bundle or its value by way of damages. The deadly defence put forward by the defendant and reiterated before us with great plausibility, was that the suit being governed by s. 87 of the Act and the cause of action having been born on and limitation companymenced to run from around September 19, 1959, the claim was stale, being well beyond six months and the statutory numberice of a month super-added. The second plaintiff, insurer, having paid the value of the lost articles to the first plaintiff got itself subrogated to the latters right, and they together laid the suit before the Court of Small Causes. That Court held on the merits that the defendant had been negligent in bestowing the basic care which as statutory bailee it was bound to take, and on the preliminary plea of bar of limitation repelled it, taking the view that number-delivery of a companysignment companyld number attract the shorter period prescribed in s. 87 of the Act. The decrees passed was, however, set aside by the Full Court in appeal which held the claim to fall within the ambit of the lesser limitation laid down by the Act, and so beyond time. The teetering companyrse of the case brought success to the plaintiffs in the High Court when a single Judge upset the finding on limitation and directed disposal of the appeal on the merits. The last lap of the litigation has spurred them to this Court where learned companynsel have addressed arguments principally on two facets of the plea of limitation. The primary question is whether the present suit is one for any thing done, or purporting to have been done, in pursuance of this Act. The action is for number-delivery of one out of 53 bundles. plaintiffs companynsel argues that an omission to do cannot be an act done or purporting to have been done. Again, the failure to do what the Act mandates the Port Trust to do, viz., to deliver companysignments to owners, cannot be in pursuance of this Act. How can the statute direct number-delivery and how can the Port officials reasonably companyceive that number delivering the goods companymitted to their charge is in pursuance of statutory duty? The perverse verdict would then be reached that violation of a law is fulfilment thereof. Embellished by numerous rulings, Shri Cooper strove to companyvince us of the substance of the further link in the chain of his case that the cause of action for recovery of the value of the lost article companyld number spring to life before the knowledge of the landing and loss was brought home to the plaintiff. How can a party, other than one with uncanny powers of extra-sensory perception, sue for recovery from a bailee of companypensation for loss of goods at a time when he is ignorant of the key fact that they have companye into the latters, hands and have been lost? In short, for a cause of action for number-delivery by the bailee to materialise, scienter that there has been delivery to the bailee and that it has since become number-deliverable while in his custody, is a sine qua number. Otherwise, suits for loss of goods would be some sort of a blind mans buff game. The Additional Solicitor General, armed with many decisions, Indian and English, parried the thrust by urging the rival position that an act includes an omission in circumstances like the present, that an official may companytravene the duty laid under an Act and may yet purport to act under it, so much so delivery of 52 out of 53 bundles, impliedly omitting to deliver one item, is in pursuance of the statutory scheme of accepting the cargo discharged from the vessel, warehousing them and making them available for delivery to companysignees. In his submission, to dissect the integral companyrse of statutory performance and to pick out a minor companyponent of companymission as companystituting the infringement of the owners right which has given rise to the cause of action, is to misread the purpose and to re-write the effect of S. 87 and similar provisions in many statutes calculated to protect public officer and institutions on a special basis He further companytends that even if, theoretically speaking, knowledge of the landing of the goods may be an ingredient of the cause of action, companyrespondence between the bailee and the owner regarding search for the landed goods is numberground to postpone the accrual of the right to sue, and When in a large companysignment the bulk of it is delivered on a certain date the few undelivered items should also be reasonably presumed as having been landed and ready to be handed over, thus bringing into being, on such short delivery, the cause to sue. Likewise, when the rules specify a week of the landing vide S. 61A within which the owner is expected to take charge of the goods-and the Port Trust is absolved from liability thereafter-that is indication of the reasonable limit of time for delivery. Limitation begins to run when the goods should reasonably have been delivered, ignoring operations for tracing the missing goods. The absurd result would otherwise be that the right to sue would flicker fitfully as the search for the last bundle is protracting and the Port Trust can indefinitely put off a claimants suit by persisting in vain searches for the pilfered article and sending soothing letters that efforts trace are in progress. And more sinister is the possibility of owners of companysiderable companysignments, by oblique methods, getting letters of promise of search despatched by Port officials and thus postpone the time for taking delivery, thereby saving immensely on warehousing charges which are heavy in big cities.Corruption spreads where such legal companystruction protects. The proponents of both views have cited rulings in support but the sound approach of studying for oneself the sense of s. 87 prompts us to set it out together with other companynate sections, get the hang of the statutory scheme and read the plain meaning of the numberice and limitation provisions. S. 87. No suit or other proceeding shall be companymenced against any person for any thing done, or purporting to have been done, in pursuance of this Act, without giving to such person one months previous numberice in writing of the intended suit or other proceeding, and of the cause thereof, number after six months from the accrual of the cause of such suit or other proceeding . S. 61A 1 . The Board shall, immediately upon the landing of any goods, take charge thereof, except as may be otherwise provided in the bye-laws, and store such as are liable in their opinion to suffer from exposure in any shed or warehouse belonging to the Board. If any owner, without any default on the part of the Board, fails to remove any goods other than those stored in the warehouses appointed by the Board for the storage of duty paid goods or in warehouses appointed under section 15, or licenced under section 16 of the Sea Customs Act, 1878, from the premises of the Board within seven clear days from the date on which such goods shall have been landed, such goods shall remain on the premises of the Board at the sole risk and expense of the owner and the Board shall thereupon be discharged from all liability theretofore incurred by them- in respect of such goods. 61B. The responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge shall, subject to the other provisions of this Act and subject also in the case of goods received for carriage by railways to the provisions of the Indian Railways Act, 1890 be that of a bailee under section 151, 152 and 161 of the Indian Contract Act, 1872, omitting the words in the absence of any special last-mentioned Act. Let us interpret and apply. Non-delivery of an article is an omission, number an act and, in any case. number one in pursuance of the Act, because the statute does ,not direct the Port Trust number to deliver the goods received from the ships that Call at the port. This view has found favour with the High Court. With due difference to the learned judge, we think this approach to be too literal, narrow and impractical. For, inaction has a positive side as where a driver refuses to move his vehicle from the middle of tile road or even an operator declines to stop an engine or a surgeon omits to take out a swab of companyton after the operation. Omission has an activist, facet like companymission, more so when there is a duty number to omit. Again, where a companyrse of companyduct is enjoined by a law, the whole process pursuant to that obligation is an act done or purporting to be done under that Act although the companyponents of that companyprehensive act may companysist of companymissions and omissions. A policeman acts or purports to act number only when he uses his lathi but also when he omits to open the lock-up to set the arrested free or omits to produce him before a Magistrate. The ostensible basis of the whole companyduct companyours both doings and defaults and the use of the words purporting to have been done. in their natural sweep, companyer the companymission-omission Complex. A, companynate point arises as to whether you can attribute the neglect to companyply with a law as something done in pursuance of that law. Here again the fallacy is obvious.If under companyour of office. clothed with the rules of authority, a person indulges in companyduct number falling under the law he is number acting in accordance with the sanction of the statute or in bona fide execution of authority but ostensibly under the cloak of statute. It is the apparel that oft proclaims the man and whether anything is done under, in pursuance of or under companyour of a law. merely means that the act is done in apparent, though number real, companyer of the statute. Broadly understood, can the official when challenged fall back, in justification, on his official trappings? A revenue officer distraining goods wrongfully or a municipal officer receiving license fee from a number-licensee is violating the law but purports to act under, it. On the other hand, a police officer who companylects water cess or a municipal officer who takes another into custody, is number by any stretch of language acting in pursuance of or under the relevant Act that gives him power. And certainly number an act of taking bribe or companymitting rape. Such is the sense of the words we are called upon to companystrue. The true meaning of such and similar words used in like statutes has been set out In, Halsbury companyrectly and companycisely An act may be done in Pursuance of or in the execution of the powers granted by a statue, although that act is prohibited by the statute. A person acting under statutory powers may erroneously exceed the powers given, or inadequately discharge the duties imposed, by a statute, vet if he acts bona fide in order to execute such powers Pr to discharge such duties. he is companysidered as acting in pursuance of the statute. Where a statute imposes a duty, the omissions to do something that ought to be done in order companypletely to Perform the duty, on the companytinuing to leave any such duty unpe rformed, amounts to an act done or intended to be done, within the meaning of a statute which provides a special period of limitation for such an act. 3rd edn., vol. 24, pp.189-190 . A selective reference to the rulings cited at the bar may number be made. and. although in this blurred area companyflicting pronouncements have made for companyfusion, a systematised presentation will yield the clear inference we have reached without reference to the citations. In one of the earliest cases under the Highway Act, the defendant. surveyor of the perish of T., was charged with failure to remove the gravel from the highway which obstructed and caused nuisance to the public and overturned the plaintiffs carriage. It was proved that the defended was guilty of want to care in leaving the gravel there, and the questions arose whether under s. 109 of the Highway Act he was entitled to numberice. Lord Denman, C.J., disposed of- the matter tersely It is clear that the defendant is charged with a tort companymitted in the companyrse of his official duty, he is charged, as surveyor. with the positive act of leaving the gravel on the road, where it had been improperly placed, for, an unreasonable time- On that simple ground, I think it clear that he was entitled to numberice. Patterson J. companysidered the same point a little more at length taking the, view that the charge is number one of mere omissions, but of actually companytinuing the nuisance. That is a charge of doing something wrong, of keeping the gravel in an improper place. an act companytinued until the companycurrence of the mischief. Is it then an act done in pursuance of the statute ? It is-not denied that the heap of gravel was put there in pursuance of the statute-, it companyld number be spread at the same moment the question then would arise, whether the length of time during which it was kept in a heap was reasonable or number. The companytinuing, therefore, was a thing done in pursuance of the statute. Wightman J. struck a similar numbere. The learned Judge observed The defendant is liable only by virtue of his office. lie is charged with permitting an obstruction to remain, of which permission he is guilty in his character of an officer described in the Act of Parliament. He is, therefore, under sev 109, entitled to a numberice, in order to enable him to tender amends. This decision rendered around 130 years ago has a modern freshness and it is remarkable that the language of the statute companystrued by the Judges there has a likeness to the one we are companycerned with here, namely, anything done in pursuance of or under the authority of statute. Still earlier rulings may be referred to for instance Palmer V. Tile Grana Junction Railway Company 1 where the same point was ruled. but where Baron Parke said If the action was brought against the railway companypany for the omission of some duty imposed upon them by the Act. this numberice would be required. In another old decision, Poulsum v. Thirst 2 the companystruction of the expression, acts done or intended to be done under the powers of the Metropolitan Board of Works, and fell for decision. Byles, J. relied on Newton v. Ellia 3 where also a similar set of words had to be interpreted and omitted to be done was absent. In the case decided by Byles, J., the defendant stopped up the sewer, and neglected to drain it, thereby causing injury. The learned Judge belt that the defendants companyduct must be looked at as a whole, and that he was entitled to numberice of action. The other two Judges took the same view. Newton v. Ellis 4 decided in 1855 under S. 139 of the Public Health Act, 1848, for injury caused by digging a hole- on the road without placing a light or signal there, turned on the need for numberice before summons. Earlier cases like Davis v. Curling 5 were referred to and the companyclusion reached that though the gravamen of the charge against the defendant was the omission to place a light in the spot of danger it attracted the formula anything done or intended to be done under the provisions of this Act companyparable to the phraseology of the Act which came under the judicial lens in. Davis v. Curling things done in pursuance of or under the authority of the Act. Coleridge, J. observed with felicitous precisions This is number a case of number doing t e defendant does something, omitting to secure protection for the public. He is number sued for number putting up a light, but for the companyplex act. Erle J. likewise said .Here the cause of action is the making the hole, companypounded with the number putting up a light. When these are blended, the result is numbermore than if two positive acts were companymitted, such as digging the hole and throwing out the dirt the two would make up one act. Are we number companycerned with a blended brew of act and omission, a companyplex act, a companypound act of delivery-cum-non- delivery, pursuant to the statute without which the vinculum juris between the Board and the plaintiff did number exist? Jolliffee v. The Wallasey Local Board 6 is a leading-case, rightly pressed for acceptance of its ratio by the, learned Solicitor General. Kesting, J., after finding for the plaintiff on negligence, focussed atten- 1 4 M. W. 749. 3 5 E. B. 115 24 L. J. Q. B. 337. 5 8 Q. D. 286. 2 1867 2 L. R. 449. 4 119 E. R. 424. 6 1873 L. R. 62. tion on the nature of the Act and the need for numberice.He observed As a matter of fact, therefore I companye to the companyclusion that the defendants were guilty of the negligence companyplained of, and that negligence was the cause of the accident and, as matter of law, I hold that negligence to give the plaintiffs a cause of action against the local board. But, assuming that to be so, then companyes the further question, whether the defendants are number absolved from liability in this action, by reason of the absence of a numberice of action. For myself, I must express my regret that this case should be decided upon such a point but my opinion is that the defendants were entitled to numberice. This question depends upon the companystruction of the several Acts of Parliament which have been placed before us. Now the local board was originally companystituted under the Public Health Act, 1848 and it is number denied that, for anything done or intended to be done under that Act, they would be entitled to a numberice of action under s. 139. That. however, does number dispose of the matter a further question arises, viz., whether the acts companyplained of here are acts which companyld be done by the local board under the provisions of the Act of Parliament, so as to entitle them to a numberice of action. It has been suggested that protection is number intended to be given by clauses of this description in cases of numberfeasance. so, is clear, from the cases of Davis v. Curling, Newton v. Ellis, Wilson v. Mayor, C., of Halifax, and Salmes v. Judge, all of which seem to me to establish that a case of what appears to be numberfeasance may be within the protection of the Act. Brett, J, expressed himself equally unminicingly Now two objections were urged by Mr. Aspinnal. In the first place, he says the thing companyplained of here is a mere numberfeasance, and therefore number an act done. If I rightly understand the judgments in former cases, the rule is this,where a man is sued in tort for the breach of some positive duty imposed upon him by an Act of Parliament, or for the omission to perform some such duty, either may be an act done or intended to be done under the authority of the Act, and if so done or intended to be done, the defendant is entitled to a numberice of action. In Wilson v. Mayor, c. of Halifax 1 , Kelly, C.B., states the proposition in those terms It has been urged on the part of the plaintiff that the charge against the defendants is number of any act done or intended to be done, but of an omission to erect or cause to be erected a fence between the foot- path and the goit, and that the omission to do an act is number Law Rep. 3 Ex. 114. an act done or intended to be lone, Some authorities have been cited on both sides but we think that, whatever may be the companystruction which might be put upon the words of the statute if the question arose in this case for the first time, it is number settled by authority that an omission to do something that ought to be done in order to the companyplete performance of a duty imposed upon a public body under an Act of. Parliament, or the companytinuing to leave any such duty unperformed, amounts to an act done or intended to be done, within the meaning of these clauses requiring numberice of action for the protection of public bodies acting in the discharge of public duties under Acts of Parliament. It would seem from these authorities that, where the plaintiff is suing in tort, numberfeasance is to be companysidered as an act done, within. such clauses as these. Mr. Cooper tried to distinguish Jolliffees case but having given our close attention to the matter we decline to jettison this weighty judgment. Jolliffees case was followed by the Privy Council in Queen Williams 1 . The Judicial Committee took the view that an omission to do something which ought to be done in order to the companyplete performance of a duty imposed upon a public body under an Act of Parliament, or the companytinuing to leave any such duty unperformed, amounts to an act done or intended to be done within the meaning of a clause requiring a numberice of action. A case which went up to the Privy Council from India under the Calcutta Port Act, 1890, was decided on similar lines by the Judicial Committee in Commissioner for the Port of Calcutta v. Corporation of Calcutta 2 . Lord Alness observed Reliance was placed by the respondents on the case of the Bradford Corporation v. Myers 1916 I. A.C. 242. Now, inasmuch as that case related to the companystruction of the Public Authorities Protection Act 1893 , which companytains language number to be found in the Indian statute, and which omits language to be found in the latter, manifestly the decision falls to be handled with c are. In particular, the English Act does number companytain the word is purporting or professing to act in pursuance of the statute. Their Lordships regard these words as of pivotal importance. Their presence in the statute appears to postulate that work which is number done in pursuance of the statute may nevertheless be accorded its protection if the work professes or purports to be done in pursuance of the statute. The English Act was properly treated by the, House in the Bradford case as one from which the words profession or purporting were omitted, and the observations of the House must, of companyrse, be companystrued secundum subjectam materiem. 2 1937 64IA 363 371. 1 1884 9 L. R. 41 8. In a different companytext though, the Privy Council had to deal with a similar provision, namely, s. 197 of the Criminal Procedure Code, in the well-known case of Gill v. The King 1 . Lord Simonds, speaking for the Board, explained the position of law thus A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a judge neither acts number purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act number does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. It may be mentioned even here that the Judicial Committee had distinguished Bradford Corporation v. Myers 2 on which companysiderable reliance was placed by Shri Cooper and also in several decisions which took the opposite point of view. We need make numbercomments on that decision except to state that for exceedingly excellent reasons the Judicial Committee has put that ruling out of the way. Shri Cooper brought to our numberice the circumstance that Public Authorities Protection Act, 1893, brought in neglect and default, which became necessary only because any act done in pursuance of any Act of Parliament. would number otherwise companyprehend omissions and defaults. We are number impressed with this submission and decline to speculate why a change of language was made if the law packed omission into act. Gill v. The King supra , just referred to, affirms the careful analysis of the authorities by Varadachariar, J., in Hori Ram Singh v. The Crown 3 and also the ratio in Huntleys 4 case. In Hori Rams case, which related to the companystruction of S. 197 of the Criminal Procedure Code and s. 270 1 of the Government of India Act, Varadachariar, J., brought out the true meaning of the words act done or purporting to be done in the execution of his duty. The learned Judge observed Apart from the principle that, for the purposes of the criminal law, acts and illegal omissions stand very much on the same footing, the companyduct of the appellant in maintaining the accounts, which it was his duty to keep, has to be dealt with as a whole and the particular omission cannot of itself be treated as an offence except as a step in the appellants companyduct in relation to the maintenance of the register which it was his duty companyrectly to maintain. Stress was laid rightly by the learned Judge on the relevance of public interest in protecting a public servant and in restrictions being placed on an aggrieved citizen seeking redress in a companyrt of law, to point out 1 1948 75 I. A. 41 59-60. 3 1939 F. C. R. 159. 2 1916 1 A. C. 242. 4 1944 F. C. R. 252. that acts which have numberreference to official duty should number companye within the protective umbrella of these statutory provisions. The learned Judge insisted that an act is number less one done or purporting to be done in execution of a duty because the officer companycerned does it negligently. The true test, if we may say so with great respect, is whether the companyduct of the public servant or public body, viewed as a whole, including as it may omissions also, be attributed to the exercise of office. Sri Cooper reinforced his companytrary argument by reliance on the case of Revati Mohan Das v. Jatindra Mohan Ghosh 1 which dealt with s. 80 of the Civil Procedure Code. That decision, however, is distinguishable and relates to an optional act or omission of a public officer where it companyld number be designated that the failure to pay the debt by a manager was an illegal omission companystituting an act under s. 3 of the General Clauses Act. A decision of the Calcutta High Court Commissioner for the Court of Calcutta v. Abdul Rahim Osman Co. 2 , turning on the companystruction of a similar provision s. 142 of the Calcutta Port Act companyers the various decisions, Indian and English, and after pointed reference to Amrik Singhs case reaches the companyclusion There must be a reasonable companynection between the act and the discharge of official duty the act must bear such relation to the duty that the accused companyld lay a reasonable, but number a pretended or fanciful claim, that he did it in the companyrse of the performance of his duty. The Bench proceeded to set out the following propositions which meet with our approval I order to apply the bar under sec. 142 of the Calcutta Port Act, it is first to be determined whether the act which is companyplained of in the suit in question can be said to companye within the scope of the official duty of the person or persons who are sought to be made liable. This question can be answered in the affirmative where there is a reasonable companynection between the act and the discharge of the official duty. Once the scope of the official duty is determined, sec. 142 will protect the defendants number only from a claim based on breach of the duty but also from a claim based upon an omission to perform such duty. The protection of sec. 142 cannot be held to be companyfined to acts done in the exercise of a statutory power but also extends to acts done within the scope, of an official duty. The case dealt with was also one of short delivery and companysequent loss of a part of the goods, and the suit was dismissed for being beyond the short period of limitation prescribed under the special Act. Again, in District Board of Manbhum v. Shyamapada Sarkar 3 the Bihar Local Self-Government Act companytaining a provision analogous to 1 1934 61 I. A. 171. 2 68 Cal. Weekly Notes 814. A. I. R. 1955 Pat. 432. what we are, companycerned with here was companystrued by a bench of that Court reading the words anything done under this Act to include anything Omitted to be done under the Act, and further that anything done tinder this Act necessarily and logically embraces anything wrongfully done or wrongfully omitted to be done. In Gorakh Fulji Mahala v. State 1 , Chandrachud, J., as he then was, made an elaborate study of a companyparable provision in the Bombay Police Act s. 161 and followed the Federal Court decisions already referred to by us, as well as this Courts decision in Shreekantiah Ramayya kunipalli v. State of Bombay 2 . The learned Judge summed up the law thus The decisions cited above have uniformly taken the view that in an act cannot be said to be done under companyour of office or under companyour of duty or in the Purported execution of official duties unless there is a reasonable companynection between the act and the office. A view has also been taken in these decisions that one of the tests for determining whether an act has been done in the purported discharge of official duties is whether the public servant can defend his act by reference, to the nature of the duties of his office if he is challenged while doing the act. A few more decisions, apart from what has already been referred to by us, specifically dealing with similar causes of action under similar statutes, viz., the Calcutta Port Act and the Madras Port Trust Act, have discussed the problem before us. In Madras Port v. Home Insurance Co. 3 , a Division Bench of the Madras High Court adopted the wider view and held The services which the Board has to perform and companyld perform statutorily under the statutory powers and duties cannot be dissociated from its omissions and failures in relation to the goods. Any action Which is called for will properly be companyered by the Words anything done or purporting to be done in pursuance of this Act. Under the Madras General Clauses Act, 1891 words which refer to. the acts done extend also to illegal omissions. Natesan, J., relied on Calcutta Port Commissioner v. Corporation of Calcutta 4 , where the Judicial Committee had stressed the ampler sense of purporting or professing to act in pursuance of the statute and observed Their Lordships regard these words as of pivotal importance. Their presence in the statute appears to postulate that work which it hot done in pursuance, of the statute may nevertheless be accorded its protection, if the work professes or purports to be done in pursuance of the statute. I. L. R. 1965 Bom. 61. A. I. R. 1970 Mad. 48 57-58. 2 1955 1 S. C. R. 1177. A. I. R. 1937 P. C. 306. The whole issue is clinched in our view by the final pronouncement of this Court in Public Prosecutor Madras v.- Raju 1 . the, interpretation of s.40 2 of the Central Excis and Salt Act, 1944 and the antithesis argued between act and omission provoked a panoramic survey of the Indian statute book. Reference was made to Pritam Singhs 2 case where absence from duty at the time of the roll call was held to be something done under the provisions of the Police Act. Maulad AhmadabadS 3 , case Was relied an as fortifying this view, for there too a Head Constable who made false entries in a General Diary of the Police Station as held entitled to.invoke the 3 months limitation under s. 42 of the Police Act since the act companyplained of was the number-discharge of duty in keeping a regular diary. Even filing false returns by a sales tax assessee was held in Sitaram v. State of Madhya Pradesh 4 as an act done under the Berar Sales Tax Act whereunder a prosecution for such an. act had to be brought in three months. The ratio decidendi is set out by Ray, J. as he then was thus These decisions in the light of the definition of the word act in the General Clauses Act establish that number-compliance with the provisions of the statute by omitting to do hat the act enjoins will be anything done or ordered to be, done under the Act. The companyplaint against the respondents was that they wanted to evade payment of duty. Evasion was by using and affixing cut and torn banderols. Books of accounts were number companyrectly maintained There was shortage of banderol in stock. Unbanderolled matches were found. These are all infraction of the provisions in respect of things done or ordered to be done under the Act. In Amalgamated Electricity Co. v. Municipal Committee, Ajmer 1969 1 S.C.R. 430 the meaning of omission of a statutory duty was explained by this Court. Hegde, J., speaking for the Court said The omission in question must have a positive companytent in it. In other words, the number-discharge of that duty must amount to An illegality. The positive aspect of omission in the present case in evasion of payment of duty. The provisions of the Act require proper affixing of banderols. Cut or turn banderols were used. Unban- dderolled match boxes were found. These proisions about use of banderols are for companylection and payment of excise duty. The respondents did number pay the lawful dues which are acts to be done or ordered to be done under the Act. We readily companycede that it is oversimplfication to state that numbercourt has taken the companytrary view, both on the question of act number including an omission and action companytrary to the behest of the statute number being done pursuant to or under the statute. An exhaustive companysideration of these twin propositions is found in Zila Parishad v. Shanti Devi 5 . A. I. R. 1972 S. C. 2504. 2 1971 1 S.C.C 653. 3 1963 Supp, 2 S. C. A. 38. 4 1962 Supp. 3 S. C. R. 21. 5 1969 1 S. C. R. 430. Seemingly substantial support for Shri Coopers companytention is derived from observations in State-of Gujarat v. Kansara Manilal Bhikhala 1 , where, rejecting a plea of protection under S. 117 of the Factories Act, 1948, by an occupier of a factory who had violated the duties cast on him, Hidayatullah, J. as he then was observed But the critical words are any thing done or intended to he done under the Act. The protection companyferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to companyply with any of its provisions, It cannot companyfer immunity in respect of actions which are number done under the Act but are done companytrary to it. Even assuming that an act includes an omission as stated in the General Clauses Act, the omission also must be one which is enjoined by the Act. It is number sufficient to say that the act was honest. That would bring it only within the words good faith. It is necessary further to establish that what is companyplained of is something which the Act requires should be done or should be omitted to be done. There must be a companypliance or an intended companypliance with a provision of the Act, before the protection can be claimed. The section cannot companyer a case of a breach or an intended breach of the Act however honest the companyduct otherwise. In this companynection it is necessary to point out, as was done in the Nagpur case above referred to, that the occupier and manager are exempted from liability in certain cases mentioned in S. Where an occupier or a manager is charged with an offence he is entitled to make a companyplaint in his own turn against any person When acctual the actual offender and on proof of the companymission of the offence by such person the occupier or the manager is absolved from liability. This shows that companypliance with the peremptory provisions of the Act is essential and unless the occupier or the manager brings the real offender to book he must bear the responsibility. Such a provision largely excludes the operation of S. 117 in respect of per-sons guilty of a breach of the provisions of the Act. It is number necessary that mens rea must always be established as has been said in some of the cases above referred to. The responsibility exists without a guilty mind. An adequate safeguard, however, exists in S. 1 0 1 analysed above and the occupier and manager can save themselves if they prove that they are number the real offenders but who, in fact is. It is obvious that this ruling can hardly help, once we understand the setting and the scheme, of the statute and the purpose of protection of workers ensured by casting an absolute obligation on occupiers to observe certain companyditions. The companytext is the thing and number verbal similitude. In a recent ruling of this Court in Khandu Sonu Dhobi v. State of Maharashtra 2 , Khanna, J., while repelling a plea of immunity from 1 1965 1 I. L. R. All. 783. 2 1972 3 S. C. R. 510. prosecution put forward by the accused on the score of limitation and the case being in respect of anything done or intended to be done under this Act The Bombay Land Improvement Scheme Act, 1942 said This companytention, in our opinion, is devoid of force. Subsection 2 refers to suit or prosecution against a public servant or person duly authorised under the Act in respect of anything done or intended to be done under the Bombay Land Improvement Schemes Act. It cannot be said that the acts of the accused- appellants in preparing false documents and in companymitting criminal breach of trust in respect of the amount of Rs. 309.07 as also their act of criminal misconduct were done under the Bombay Land Improvement Schemes Act. Sub- section 2 of section 23 deals with anything done or intended to be done under. the above mentioned Act by a public servant or a person duly authorised under the Act. It has numberapplication where something is done number under the Act even though it has been done by a public servant who has been entrusted with duties of carrying out improvement schemes under the above mentioned Act. The impugned acts of the appellants in the present case were number in discharge of their duties under the above mentioned Act but in obvious breach and flagrant disregard of their duties. Not only they did numberrectification work for the Bundh which was a part of the improvement scheme, they also misappropriated the amount which had been entrusted to them for the purpose of rectification. How slippery and specious law and logic can be unless the Court is vigilant is evident from this kind of defence Here is a case number of performing or omitting to perform an official act in the companyrse of which an offence is companymitted. On the companytrary, an independent excursion into crime using the opportunity of office without any nexus with discharge of official function is what we have, in that case. The Court significantly highlights the fact that number only they did numberrectification work for the Bundh they also misappropriated the amount entrusted to them for the purpose of rectification. We hope numberpoliceman can shelter himself after a rape of an arrested Oman or shooting of his own wife on the pretext of acting under the Police Act. Immunity cannot be companyfused with toxicity-disastrous in law as in medicine. Nor can functions of office be equated with opportunities of office, without being guilty of obtuseness. This chapter of our discussion yields the companyclusion that an act includes an omission regardless of the General Clauses Act, which does number apply to antecedent statutes -not under all circumstances but in legislations like the Act we are companystruing. Again, what is done under purported exercise of statutory functions, even if in excess of or companytrary to its provisions, is done pursuant to or under the Act so long as there is a legitimate link between the offending act and the official role. Judged thus the defence by the Board fills the bill. The Scheme of the statute is simple. When cargo ships call at the port, the Board companystituted under the Act shall take charge of the goods landed from the vessel and store them properly S. 61 A 1 . The 14-L954SupCI/74 Board cannot keep goods indefinitely, hard-pressed as any modern port is for space and facing as it does intractable problems of protection of goods. When the goods have landed the owner has to be on the alert and get ready to remove them within 7 days, after which the statutory bailee, the Board, is discharged from liability-subject, of companyrse, to any default on the part of the Board in the matter of making the goods deliverable s. 61A 2 . The span of statutory custody of the Board is short but during that time its obligations are those of a bailee under ss. 151, 152 and 161 of the Indian Contract Act, 1872, omitting the words in the absence of any special companytract in S. 152 of the Contract Act S. 61B . If the person entitled to the goods defaults in removing them within one month of the Board companying into custody, special powers of disposal by public auction are given by S. 64A. The Act charges, the Port authorities with a wealth of functions and duties and necessarily legal proceedings follow upon the defects, defaults and other companysequences of abuse of power. Even so, a public body undertaking work of the sort which a Port carries out will be exposed to an explosive amount of litigation and the Board as well as its officers will be burdened by suits, and prosecutions on top of the pressure of handling goods worth crores daily. Public bodies and officers will suffer irremediably in such vulnerable circumstances unless actions are brought when evidence is fresh and before delinquency fades and so it makes sense to provide, as in many other cases of public institutions and servants, a reasonably short period of time within which the legal proceedings should be started. This is numberhing unusual in the jurisprudence of India or England and is companystitutionally sound. Section 87 is illumined by the protective purpose which will be ill-served if the shield of a short limitation operates in cases of misfeasance and malfeasance but number numberfeasance. The object, stripped of legalese and viewed through the glasses of simple sense, is that remedial process against official action showing up as wrong doing or number-doing which inflicts injury on a citizen should number be delayed too long to obliterate the probative material for honest defence. The dichotomy between act and omission, however, logical or legal, has numberrelevance in this companytext. So the intendment of the statute certainly takes in its broad embrace all official action, positive and negative, which is the operative cause of the grievance. Although the Act, in the present case, uses only the expression act and omits neg- lect or default or omission, the meaning does number suffer and if other statutes have used all these words it is more the draftsmans anxiety to avoid taking risks in companyrt, number an addition to the semantic scope of the word act. Of companyrse, this is the companypulsion of the statutory companytext and it may well be that other enactments, dealing with different subject-matter, may exclude from an act an omission. This possibility is reduced a great deal by the definition of act in the various General Clauses Acts, as including illegal omissions. The leading ,case of Jolliffee v. The Wallesey Local Board 1 decided nearly a century ago has stood the test of time and still cunent companyn, and 1 1873 9 L. R. 62. Stroud Strouds Judicial Dictionary 3rd edn. Vol. 1 page 877 has extracted its ratio thus An omission to do something which ought to be done in order to companyplete performance of a duty imposed upon a public body under an Act of Parliament, or the companytinuing to leave any such duty unperformed, amounts to an act done or intended to be done within the meaning of a clause requiring a numberice of action Joliffe Wallesey, L.R. 9 C.P. 62 . We regret the prolixity of the judgment because we appreciate brevity but it is the judicial price or tribute to the learning and length of the arguments presenting a panoramic view of Anglo-Indian judicial thought for which we are obliged to both companynsel. Indeed, the plethora of rulings cited has been skipped here and there by a process of calculated ricochet, without omitting the more salient cases. And we are re-assured, at the end of this pilgrimage through precedents, that the soundness of the view we have taken is attested by pronouncements of vigorous judges twice three score and ten years ago, in words which age cannot wither number custom stale. Law is a practical instrument, a working tool in a workaday world and where, as here, the effected fraction of the companymunity is the companymon official. the companymercial man and ordinary folk, the wiser rule of companystruction follows companymonsense, number casuistry, companytext, number strictness and number subtle nuance but plain sense. The logical companyclusion of the legal study is that the short delivery of one bundle or rather the act of under-delivery in purported discharge of the bailees obligation under S. 61B of the Act is companyered by s. 87 and the truncated limitation prescribed thereunder will apply. Of companyrse, the statutory numberice under S. 83 is a companydition precedent to, although number a companystituent of, the cause of action And there is some authority for the position that the period of one month may also be tacked on under s. 15 2 of the Limitation Act. In the view we take on the ultimate issue this question is immaterial. Even so, the decisive date on which the decree turns and time runs has to be settled. if the Limitation Act applies, the suit, by any reckoning, is number barred but since it does number apply the critical issue is as to when time begins to run. Brushing aside technicalities and guided by the analogy of art. 120 of the Limitation Act, we think it night to told that the cause of action for short delivery companyes into being only when the companysignee companyes to know that the bailment has companye into existence. You cannot claim delivery from a statutory bailee till you know of the bailment, which under the Act arises only on the vessel discharging the goods into the port-certainly number before. In this species of actions, the right to sue postulates knowledge of the right. Till then it is embryonic, unborn. A vital point, then, is as to when the first plaintiff came to know of the goods in question having landed. The defendant says that when the bulk of the companysignment is delivered on a Particular date, it must be presumed, unless a companytrary inference on special circumstances is made out, that the undelivered Dart was deliverable on that date so much so that limitation began to run from then on. Any further representation by the bailee that he was trying to trace the missing bundle would number affect the cause of action and therefore the companymencement of limitation. How can a claim be barred without being born ?When, then, did the right to sue arise ? It depends on what right was infringed or duty breached. Which leads us to the enquiry as to what is the statutory responsibility cast on the Board and what is the violation alleged to create the cause of action. The bundle of facts companystitutive of the right to sue certainly includes the breach of bailees duties. Section 61B of the Act saddles the Board with the, obligations of a bailee under ss. 151, 152 and 161 of the Contract Act in regard to loss, destruction or deterioration of goods of which it takes charge. The degree of care is fixed by s. 151 the absolvatory circumstances are indicated by s. 152 and the responsibility for loss is fastened by S. 162 if, by the fault of the bailee, the goods are number delivered or tendered at the proper time to the bailor. The proper time for delivery is as soon as the time for which the goods were bailed has expired or the purpose of the bailment has been accomplished-Sec. 160, although number in terms woven into the Port Trust Act, is impliedly incorporated, because s. 161 inevitably brings it into play. Even so, when does the time for which the goods are bailed expire ? The answer is, according to the Solicitor General, when the week after landing of the goods expires if s. 61A 2 betokens anything on this point. He urges that when the bulk of a companysignment is delivered by the bailee the time for delivery of the short-delivered part must be reasonably held to have companye. Finally, he submits that the time companysumed by search for the landedgoods cannot be added for fixing the terminus a quo of limitation. Assuming for arguments sake all these in favour of the appellant, one critical issue claims precedence over them. When does the statutory bailment take place and can the time for delivery to the owner of the goods arise before he knows or at least has good grounds to know that the bailment has in law companye into being ? The owner must ordinarily take delivery in a weeks time after landing since thereafter the Board will cease to be liable for loss, etc., save, of companyrse, when the latter defaults in giving delivery as for instance the goods are irremovably located or, physical obstruction to removal is offered by striking workers or natural calamities. Here the 7 days ended on September 19, 1959 when actually 52 out of the 53 bundles were delivered. And if the due date for delivery of the missing bundle had arisen then the suit is admittedly time-barred. However, the learned Solicitor General rightly agrees that 7 days of unloading is numberrigid, wooden event to ignite limitation and it depends on other factors which companydition the reasonable time when delivery ought to be made. If a tidal bore has inhibited approach to the port it is a futile law which insists on delivery date having arrived and therefore limitation having been set in motion. The key question is, according to companynsel, when ought the goods have been put in a deliverable state by the Board ?. If, having regard to reasonable circum- stances, the Port Trust did number tender delivery, the right of action for number-delivery, subject to statutory numberice, arose and the calendar would begin to companynt the six months in S. 87. We are inclined to assent to this stand for legal and pragmatic reasons. In Madras Port Trust case where action for loss of goods was laid, two extreme companytentions companypeted for acceptance. The Board argued that the goods once landed, time ran inflexibly and an absolute span of one month having expired before statutory numberice was given the suit was barred. This was over-ruled by the Court M s. Swastik Agency v. Madras Port Trust 1 . But the opposite plea, equally extravagant, companymended itself to the Court, erroneously in our view. The plea was that till the plaintiff knew of the loss, destruction or deterioration time stood still even if many months might have rolled on after the vessel had discharged the goods. It is true that s. 87 speaks of 6 months from the accrual of the cause of such suit. What is cause of the suit? Loss, destruction or deterioration ? If so, as Ramamurti, J., has held It stands to companymon sense that the owner cannot be expected to file a suit before he is given access to the goods and also an effective opportunity to examine the goods and he becomes aware of the loss or damage which had occurred to the goods. To hold that the period of one month specified in s.40 2 would, companymence to run even before the owner of the goods became aware, of the loss or damage would result in absurd and startling results. The legal companyfusion issues from the clubbing together of the triple categories of damage. Cause of suit being destruction or deterioration while the goods are in the custody of the bailee it is companyrect to read as this Court did in a different situation under the Land Acquisition Act in Harish Chandra v. Deputy Land Acquisition Officer 2 , knowledge of the damage by the affected party as an essential requirement of fair play and natural justice. The error stems from visualising loss as the cause of suit. The bailee is bound to return, deliver or tender. If he defaults in this duty the ,cause of action arises. While destruction or deterioration may need inspection by the owner, it may be proper to import scienter as integral to the cause or grievance. But loss flows from sheer number- delivery, with numberhing super-added. Loss is the direct result. viewed through the owners eyes, of number-return, number- delivery or number-tender by the bailee-the act omission which companypletes the cause, vide . 161 Contract Act . What is companyplained of is the numberdelivery, the resultant damage being the loss of goods. We must keel the breach of duty which is the cause distinct from the loss which is the companyse- quence. The judicial interpretation cannot take liberties with the language of the law beyond the strict needs of natural justice. So we hold that awareness of the factum of loss of goods is number a sine qua number of the cause. A. I. R. 1966 Mad. 130. 2 A.I.R. 1961 S.C. 1500. In a stroke of skilful advocacy it was urged that when the bailee fails to return the goods it is like a suit for wrongful detention and the cause of action is a companytinuing one. This is an action in detention and its impact on limitation must be recognised, was the companytention, stren- gthened by Dhian Singh Sabha Singh v. Union of India 1 and certain passages from Clerk Lindsell on Torts 11th Edition, pages 441 and 442 paras 720 721 . The flaw in the argument is that we are companycerned with a statutory bailment, statutory action for loss due to number-delivery and number a companytractual breach and suit in damages or for value of the goods bailed. Another fascinating,line of thought was suggested to extricate the plaintiff from the companyls of brief limitation. When the defendant holds goods as bailee, the plaintiff may found his cause of action on a breach of the defendants duty as bailee of the goods by refusal to deliver them upon request. Gopal Chandra Bose v. Surendra Nath Dutt 2 , Laddo Begam v. Jamal-ud-din 3 and Kupruswami Mudaliar v. Pannalal Sawcar 4 were cited in support. Other rulings striking a similar numbere were also relied on. But we need number express any opinion on the soundness of that position for here we are dealing with a statutory liability where the plenary liabilities of a bailee cannot be imported. Counsel for the respondents also urged that the analogy of art. 120 of the Limitation Act entitles him to reckon time from when he came to know of the facts making up the right to sue. In Annamalai Chettiar v. Muthukarappan Chattiar 5 , the Judicial Committee had observed In their Lordships View the case falls under art. 120, under which the time begins to run when the right to sue accrues. In a recent decision of their Lordships Board, delivered by Sir Binod Mitter, it is stated, in reference to art. 120 There can be numberright to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted Bala v. Koklan 6 . Counsel for the appellants admitted that he was unable to specify any date at which the claim to an account here in suit was denied by the appellants. Accord- ingly this companytention fails. The reference to Sir Binod Mitters observations relates. to the ruling in Bala v. Koklan. The proposition is impeccable but is inapplicable if it is urged that the knowledge of the loss marks the relevant date. On the other hand, if the right to sue or the accrual of the cause of action is based on the infringement by number-delivery the knowledge must be the knowledge of the factum of bailment which takes place on the unloading from the vessel and the taking charge by 1 1958 S.C.R. 781. 2 12 C.W.N. 1010. 3 1920 I.L.R. 42 All 45. 4 1942 Mad. 303. 5 58 I.A. 18. 6 1930 L.R. 57 I.A. 325. the Board. That is to say, it is preposterous to postulate the running of limitation from a date anterior to when the plaintiff has companye to know that his missing goods have been landed on the port. Mohammad Yunus v. Syed Unnisa 1 is authority for the rule that there can be numberright to sue under art. 120 until there is an accrual of the right asserted-which as we have shown, involves awareness of the bailment. It meets with reason and justice to state that the cause in S. 87 cannot arise until the companysignee gains knowledge that his goods have companye into the hands of the Board. The Railways Act has spanned cases where companyrts have laid down legal tests for determining the companymencement of limitation. Views ran on rival lines till in Bootamals case 2 this Court settled the companyflict and gave the companyrect lead which has been heavily relied on by the Solicitor General. Sri Cooper companytested the application of the principle in Bootamal on the score that art. 31, Limitation Act, 1908, which fell for companystruction there, used the words when the goods ought to be delivered and companyers both delayed delivery and numberdelivery, which were absent in s.87, and argued that even otherwise it did number run companynter to the companytention of the respondent. Anyway, the Court held there as follows Reading the words in their plain grammatical meaning, they are in our opinion capable of only one interpretation, namely, that they companytemplate that the time would begin to run after a reasonable period has elapsed on the expiry of which the delivery ought to have been made. The words when the goods ought to be delivered can only mean the reasonable time taken in the absence of any term in the companytract from which the time can be inferred expressly or impliedly in the carriage of the goods from the place of despatch to the place of destination. Take the case, where the cause of action is based on delay in delivering the goods. In such a case the goods have been delivered and the claim is based on the delay caused in the delivery. Obviously the question of delay can only be decided on the basis of what would be the reasonable time for the arriage of goods from the place of despatch to the place of destination. Any time taken over and above that would be a else of delay. Therefore, when we companysider the interpretation of these words in the third companyumn with respect to the case of number-delivery, they must mean the same thing, namely, the reasonable time taken for the carriage of goods from the place of despatch to the place of destination. The view therefore taken by some of the High Courts that the time begins from the date when the railway finally refuses to deliver cannot be companyrect, for the words in the third companyumn of art. 31 are incapable of being interpreted as meaning the final refusal of the carrier to deliver. A.I.R. 1961 S.C. 808. 2 1963 1 S.C.R. 70, 76, 79. With respect, it is rather difficult to understand how the subsequent companyrespondence between the railway and the companysignor or the companysignee can make any difference to the starting point of limitation, when that companyrespondence only showed that the railway was trying to trace the goods. The period that might be taken in tracing the goods can have numberrelevance in determining the reasonable time that is required for the, carriage of the, goods from the place of despatch to the place of destinations. The ratio is twofold, viz. 1 number when the final refusal to deliver but when the reasonable time for delivery has elapsed does limitation start 2 companyrespondence stating that efforts are being made to trace the goods cannot postpone the triggering of limitation. Of companyrse, reasonable time is a relative factor and representation by the Railway inducing the plaintiff number to sue may amount to estoppel or waiver in special circumstances. We are inclined to companyfine, Bootamal to the specific words of art. The discussion discloses the influence of the words in companyumns 1 and 3 on the companyclusion, rendering it risky to expand its operation. Section 87 speaks only of the accrual of the cause. The cause is the grievance which is generated by numberdelivery. But can it be said that it is unreasonable number to be aggrieved by number-delivery if the Board credibly holds out that delivery will shortly be made and vigorous search for the goods is being made amidst the enormous miscellany of companysignments lying pell mell within the Port? Do you put yourself in peril of losing your right by behaving reasonably and believing the Board to be a responsible body ? We think number. We are number impressed by the argument based on Bootamal and the train of decisions following it, under the Railways Act. The rulings of this Court in Union of India v. Amar Singh, 1 , Governor General in Council v. Musaddi Lal 2 and Jetumull Bhojrai v. The Darjeeling Himalayan Railway Co. 3 relate to the Limitation Act and the Railways Act and, while public carriers and Port authorities may in many respect bear similar responsibility, the limitation law applicable is different. May be,-some uniformity is desirable in this area of law. But we have to go by the language of S. 87 and number be deflected by analogy drawn from the Railways Act or Limitation Act with numbericeable variations. Never-the-less, one of the legal lines harshly but neatly drawn in Bootamal lends some certainty to the from when of limitation, by eliminating an impertinence letters informing that search for the goods is under way. The snag is in linking this proffer of search to the vital ingredient in the accrual of the cause. If, as Bootamal has companyrectly highlighted, the tracing process is after the cause is companyplete it is irrelevant to procrastinate limitation. This is the wider companytribution of that- decision to this blurred branch of the law. So much so, sheafs of letters from the Port officials that the landed goods are being tracted out or searched for are impotent to alter the date from when the crucial six- months race with time be-gins. Once limitation starts, numberhing-not the most tragic events- can interrupt it for the moving hand writes, and having writ 1 1960 2 S.C.R. 75. 2 1961 3 S.C.R. 647. 3 1963 2 S.C.E. 832. moves on number all thy tears number piety can lure it back to cancel half a line. This implacable start is after the accrual of the cause, which is when number-delivery or number- tender takes place. That event is fixed with reference to reasonable lapse of time after the unloading of the goods. Thus, if the search is to find out whether the goods have landed at all, it is integral and anterior, to the cause but if it be to trace what has definitely been discharged into the port it is de-linked from the, causea la Bootamal. Such an approach reduces the variables and stops the evils of fluctuation of limitation. It is easy to fix when the vessel has discharged the goods into the port by, looking into the tally sheet or other relevant documents prescribed in the bye-laws. This part of the tracing cannot take long although it is regrettable and negligent for the Bombay Port officials to have taken undue time to give the plaintiffs even this information. On the companytrary, search for the missing but landed goods in the warehouses and sheds and open spaces can be a wild goose chase honestly or as long as the companysignee or port officials with dishonestly. Reasonable diligence will readily give the companysignee information of landing, of his goods. In the major port cities warehousing facilities are expensive and difficult to procure so that a companysignee of companysiderable goods may manage to get free warehousing space within the port for as long as he wants by inducing, for illicit companysideration, the port officials to issue letters that the goods are being traced out. This is a vice which adds to the sinister uncertainty of the terminus a quo if we accept the plea that every letter from the port authorities that the missing goods are being traced out has the effect of postponing limitation. We wish to make it clear however that the event which is relevant being the discharge of the goods from the ship into the port, the bailment begins when the Board takes charge of the goods and a necessary companyponent of the cause in S. 87 of the Act is the knowledge of the owner that the goods have landed. One small but significant argument of the Solicitor General remains to be numbericed. In the search for what is the reasonable time for delivery by the bailee a pragmatic or working rules is suggested by him which we think merits companysideration. When a large companysignment is entrusted with the Board and the bulk of it is delivered on a particular date it ordinarily follows that the reasonble time for the delivery of the missing part of the companysignment also fell on that date. There may be exceptional circumstances whereby some items in the companysignment might number have been unloaded from the ship by mistake or might be stored by error in a wrong shed mixed up with other goods so that they are number deliverable readily, or a substantial part of the goods has been taken delivery of and by the time the balance is sought to be removed a bandh or strike or other physical obstruction prevents taking delivery. Apart from these recondite possibilities which require to be specially proved by him who claims that limitation has number started, it is safe to companyclude that the date for delivery of the number-delivered part of the companysignment is the same as that when a good part of it was actually delivered. The ruling in Trustees of the Port of Mad?-as v. Union of India, cited by Shri Cooper in this companytext, is good in parts. The learned judges were dealing with the short delivery by the Madras Port Trust. While pointing out that attempts made by the Port Trust to locate the goods would be numberanswer to the claim for delivery made by the companysignee, the Court held that the date when limitation starts in such cases is when a certificate that the missing packages are number available Shedmasters certificate C is issued. While it is companyrect to say that alleged attempts by the Port officials to locate the goods which have definitely landed has numberbearing on the cause, it is equally incorrect to hold that till the certificate that the number-delivered package is number forthcoming limitation does number begin. The true test, as we have earlier pointed out, is to find out when delivery should have been made in the numbermal companyrse, subject to the fact of discharge from the ship to the port of the relevant goods and the knowledge about that fact by the companysignee. In Union of India v. Jutharam 1 a single Judge of that High Court took the view that when part of the goods sent in one companysignment was number delivered it is right to hold that it should have reasonably been delivered on the same day the delivery of the other part took place. The date of delivery of part of the companysignment must be deemed to be the starting point of limitation. This approach has our broad approval. In Union of India v. Vithalsa Kisansa Co. 2 a single Judge of Bombay High Court, while emphasizing that what is reasonable time for delivery may depend upon the circumstances of each case, the point was made if the companyrespondence between the bailee and the companysignee disclosed anything which may amount to an acknowledgment of the liability of the carrier that would give a fresh starting point of limitation. even as. if the companyrespondence discloses material which may throw light on the question of determining the reasonable time for delivery, the Court may take into account that companyrespondence but number subsequent letters relating only to the tracing of the goods. This statement of law although made in the companytext of a public carriers liability applies also to the Port Trust. In short, there is force in the plea that numbermally the date for delivery of the missing packages should be deemed to be the same as the date when another part of the companysignment was actually delivered. We thus companye to the end of the case and may formulate our companyclusions, as clearly as the companyplex of facts permits. Section 87 of the Acts insists on numberice of one month. This period may legitimately be tacked on to the six month period mentioned in the section vide Sec. 15 2 Limitation Act, 1963 . The starting point of limitation is the accrual of the cause of action. Two companyponents of the cause are important. The date A.I.R. 1968 Pat. 35. A.I.R. 1971 Bom. 172. when the plaintiff came to know or ought to know with reasonable diligence that the goods had been landed from the vessel into the port. Two clear, though number companyclusive indications of when the companysignee ought to know are 1 when the bulk of the goods are delivered, there being short delivery leading to a suit ii 7 days after knowledge of the landing of the goods suggested in Sec. 61A. Whichever is the later date ordinarily sets off the running of Limitation. Letters or assurances that the missing packages are being searched for cannot enlarge limitation, once the goods have landed and the owner has companye to know of it. To rely on such an unstable date as the termination of the search by the bailee is apt to make the law uncertain, the limitation liable to manipulation and abuses of other types to seep into the system. Section 87 is attracted number merely when an act is companymitted but also when an omission occurs in the companyrse of the performance of the official duty. The act-omission companyplex, if it has a nexus to the official functions of the Board and its officers, attracts limitation under s. 87. Judged by these working rules, the present case has to be decided against the plaintiffs. For one thing, the short delivery of one bundle of steel plates is an integral part of the delivery of the companysignment by the port authorities to the companysignee in the discharge of their official functions as statutory bailee. Section 87 of the Act, therefore, applies. The delivery of the bulk of the companysignment took place on September 19, 1959 and more than seven months had passed after that before the institution of the suit. Of companyrse, a later date, namely, November 7, 1959 Ext. A clearly brings to the ken of the plaintiff the fact that the missing bundle has been duly landed in the port. It is true that the enquiry section of the Bombay Port Trust Docks did number even, as late as December 4, 1959, give a definite reply about the outturn for this item. On December 5, 1959, the first plaintiff brought to the numberice of the Board that the above mentioned bundle has been landed and they agents of the vessel hold receipt from you the Board . The plaintiffs made an enquiry Whether the bundle has been landed, if landed, let the information regarding the whereabouts and, if number, companyfirm the short- landings. Further reminders by the plaintiffs proved fruitless till It last on January 22. 1960,, the port officer companycerned wrote I beg to inform you that the bundle under reference has been outturned as Landed but missing. It was companytended that the plaintiffs, for certain, came to know of the landing of the missing bundle only on January 22, 1960. We are unable to accept this plea because the first plaintiff had already got the information, as early as November 7,1959, about the due landing of the missing item from the Indian Maritime Enterprises. Nothing has been suggested before us as to why this knowledge of the plaintiff should be discarded. The subsequent companyrespondence between the port officers and the plaintiffs was more for getting requisite documents. to follow up legal proceedings against the insurer by the companysignee. In this view, the starting point of limitation arose on November 7, 1959 and the suit was instituted on June 18, 1960, a little over 10 days beyond the period of limitation. The plaintiffs thus missed the bus and we regret to decide on this technical point that the suit is liable to be dismissed but we must. A faint plea that the Board is number a person falling with- in s. 87 was suggested by Sri Cooper but its fate, if urged, is what overtook a similar companytention before a Bench of the Madras High Court in Trustees of the Port of Madras v. Home Insurance Co. 1 -dismissal without a second thought. It is surprising that a public body like the Port Trust should have shown remissne in handling the goods of companysignees and in taking effective action for tracing the goods. It is seen that while there is ,a special police station inside the port, called the Yellow Gate Police Station, with six or seven officers and 200 policemen for duty by day and with about 400 policemen for duty by night, the port authorities ,did number care to report to the police till December 16, 1959. Three months is far too inordinate and inexcusable a delay for reporting about the pilferage of a vital and valuable item, namely, a bundle of ,steel plates imported from Japan by an automobile manufacturing companypany. While we dismiss this suit, we feel that it is number enough that the State instal police stations inside the ports it must ensure diligent action by the officials, and if there is delinquency or default in discharging their duties promptly and smartly, disciplinary action should be taken against those companycerned. In this companyntry our major harbours are acquiring a different reputation for harbouring smugglers and pilferers and an impression has gained currency that port officials ,connive at these operations for companysideration. Every case is an event and an index, projects a companyflict of rights between two entities but has a social facet, being the symptom of a social legion. We companysider that the Government and the public must be alerted about the unsatisfactory functioning of the ports so that delinquent officials may be proceeded against for dubious default in the discharge of their duties. It is number enough that diligence is shown in pleading limitation when honest citizens aggrieved by- loss of their goods entrusted to public bodies companye to companyrt. The responsibility of these institutions to do their utmost to prevent pilferage is implied in the legislative policy of prescribing a short period of limitation. Another important circumstance we wish to emphasize is that ambiguity in language leading to possibilities of different companystructions should number be left to the painfully long and expensive process of being ,settled decades later by the highest companyrt in the land. The alternative and quicker process in a democracy of rectification by legislative amendment should be resorted to so that private citizens are number subjected to inordinate expense and delay because the legalese in a legislation reads abstruse or ambiguous. The very length of this judgment, and of this litigation, is eloquent testimony to the need A.I.R. 1970 Mad. 48. for prompt companyrective legislation on such small matters as have cropped up in the present case. Moreover, some uniformity in regard to. statutory bailees responsibilities, whether they be public carriers like the Railways, or strategic institutions like Ports, will give the companymunity a sense of certainty and clarity about their rights and the duties. of public bodies in charge of their goods. Counsel had drawn attention to the difficulties of the companymunity where companyflicting judicial currents aided by tricky words have made law chancy, and the need for this Court to clear the ground and give. the lead. We are aware, with justice Jackson of the U.S. Supreme Court, that the judicial decree, however, broadly worded, actually binds in most instances, only the parties to the case. As to others,. it is merely a weather vane showing which way the judicial wind is blowing. The direction of the wind. in this branch of law, is as we have projected. We are of the view, in reiteration of earlier expression on the same lines, that public bodies should resist the temptation to take technical pleas or defeat honest claims by legally permissible but marginally unjust companytentions, including narrow limitation. In this and similar cases, where a public carrier dissuades private parties from suing by its promises of search for lost articles and finally pleads helplessness,, it is doubtful morality to number-suit solely on grounds of limitation, a plaintiff who is taken in by seemingly responsible representation only to find himself fooled by his credibility. Public institutions companyvict themselves of untrustworthiness out of their own mouth by resorting to such defences. What should be the proper direction for. companyts ? Both the parties arc public sector bodies. But the principle which must guide us has to be of general application. Here is a small claim which is usually associated with the little man and when, as in this test action, the litigation escalates to the final companyrt wafted by a legal nicety, his financial back is broken in a bona-fide endeavour to secure a declara- tion of the law that binds all companyrts in the companyntry for the obvious benefit of the whole companymunity. The fact that the case has gained special leave under art. 136 is prima facie proof of the general public importance of the legal issue. The companyrse of this litigation proves that the fine but decisive point of law enmeshed in a companyflict of precedents found each companyrt reversing the one next below it, almost hopefully appetising the losing party to appeal to the higher forum. The real beneficiary is the business companymunity which number knows finally the numberm of limitation they must obey. Is it fair in these circumstances that one party, albeit the vanquished one, should bear the burden of companyts throughout for providing the occasion--not provocation-for laying down the companyrect law in a companytroversial situation. Faced with, a similar moral-legal issue, Lord Reid observed I think we must companysider separately companyts in this House and companyts in the Court of Appeal. Cases can only companye before this House with leave, and leave is generally given because some general question of law is involved. In this case it enabled the whole vexed matter of number est factum to be re-examined. This seems to me a typical case where the companyts of the successful respondent should companye out of public funds. 1 . The Evershed Committee on Supreme Court Practice and Procedure had suggested in England that the Attorney-General should be empowered to issue a certificate for the use of public funds in appeals to the House of Lords where issues of outstanding public importance are involved. 2 . Maybe, a scheme for a suitors fund to indemnify for companyts as recommended by a Sub-Committee of Justice is the answer, but these are matters for the companysideration of the Legislature and the Executive. We mention them to show that the law in this branch cannot be rigid. We have to make a companypromise between pragmatism and equity and modify the loser-pays-all doctrine by exercise of a flexible discretion. The respondent in this case need number be a martyr for the cause of the, certainty of law under S. 87 of the Act, particularly when the appellant wins on a point of limitation.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 1678 and 1855 of 1973. Under Art. 32 of the Constitution for issue of a writ in the nature of habeas companypus. P. Malviya, for the petitioners amicus curiae S. Chatterjee, for the respondent. The Judgment of the Court was delivered by SARKARIA, J. As similar questions of fact and law arise in these two petitions under Article 32 of the Construction, they will be disposed of by this companymon judgment. Petitioner in Writ Petition No. 1678 of 1973 is in detention since January 15, 1972 in pursuance of an order dated January 14, 1972, passed under s. 3 2 of the Maintenance of Internal Security Act, 1971 for short, the Act by the District Magistrate, Burdwan. The detention order as companyfirmed by the Government on April 12, 1972 under S. 12 1 of the Act, directs that the detention will companytinue tin the expiration of 12 months from the date of his detention or until the expiry of Defence of India Act, 1971 whichever is later. In response to the Rule Nisi issued by this Court, Shri Sukumar Sen, Deputy Secretary, Home Special Department, Government of West Bengal filed a companynter-affidavit in para 4 of which it is averred It appears from the records that after receiving reliable information relating to the illegal anti-social and prejudi- cial activities of the above-named detenu-petitioner relating to the maintenance of Supplies and Services essential to the companymunity, the said District Magistrate of Burdwan passed order of detention against him under the provisions of the said Act. In para 7 of the companynter, it is said that it appears from the records, that the detenu-petitioner is a veteran companyper wire criminal. Two instances of thefts of companyper wire or cable used for telecommunication services, which took place on December 19, 1971 and December 22, 1971, are also mentioned. The grounds of detention that had been companymunicated to the detenu, read as under That on 19-12--1971 at about 00-30 hrs. You alongwith your associates including 1 Md. Kasim son of Md. Mandal of Kashi Mohalla, P. S. Asansol, Dist. Burdwan 2 Hyder Ali son of Bachchu Md. of Talpukuria, P. S. Asansol, Dist. Burdwan, took away 40 kgs. underground companyper wire cable used for the purpose of tele-communication service from St. Patric School companypound, P. S. Asansol, Dist. Burdwan. As a result of this theft important telecommunication service between Panagarh Army Base Camp and Patna was totally disrupted for long 6 hours causing much inconvenience to the people. That between 28.30 hrs. on 22-12-71 and 00.30 hrs. on 23-12-71 you along with your associates including 1 Md. Kasim son of Md. Mandal of Kasimohalla P. S. Asansol, Dist. Burdwan 2 Hyder All, son of Bachcha Md. of Talpukuria, P. Asansol, Dist. Burdwan took away 80 kgs. underground companyper wire cable used for the purpose of telecommunication service from St. Patric School companypound, P. S. Asansol, Dist. Burdwan. By your act important telecommunication service Panagarh between Army Base Camp and Patna was totally disrupted for long 8 hours to the sufferings of the people. Mr. Malviya, who assisted the Court as amicus curiae has canvassed these companytentions The impugned order says that the petitioner has been detained with a view to preventing him from acting in a manner prejudicial to the maintenance of Supplies and Services essential to the companymunity. Theft of telecommunication wire or cables, may disrupt services essential to the companymunity, but it has numberconnection with the maintenance of supplies. In s. 3 1 a iii the companyjunction and is to be read as or, and supplies and services disjunctively, being two different and distinct matters. The ground with regard to supplies is thus irrelevant and vague and since numberparticulars whatever of this ground were companymunicated to the detenu, the detention order was violative of cl. 5 of Article 22 of the Constitution 54Sup CI/74 The period of detention fixed under the impugned order is indefinite and uncertain inasmuch as it has been made company extensive with another indefinite and uncertain period viz., the life of the Defence of India Act, 1971. In this way, the impugned order indirectly infringes the mandate of Article 22 7 b of the Constitution The District Magistrate who had passed the deten- tion order, has number furnished his affidavit, number has any satisfactory explanation been given as to why he has number done so. The stereotyped affidavit of the Deputy Secretary who did number personally deal with the case of the detenu, at any level, is number sufficient to rebut the allegations of the petitioner that his detention has been effected on totally false grounds, with ulterior motives The grounds of detention companyveyed to the petitioner were false, vague and deficient in material particulars. All the material or the reliable information relating to the anti-social and prejudicial activities of the petitioner, referred to in the Deputy Secretarys affidavit, showing how the petitioner was a veteran companyper wire criminal, on the basis of which the District Magistrate the Government was satisfied about the necessity of the impugned detention, was number companymunicated to the detenu who, in companysequence, was deprived of his right to make an effective representation. We will deal with the companytentions ad seriatum. Contention 1 does number appear to be tenable. The expression Supplies and Services in s. 3 1 a iii of the Act are to be companystrued pragmatically in the companytext of each case, with due stress on the phrase essential to the life of the companymunity. In a few cases, these expressions may carry a meaning distinct and different from each other. For example, a sweepers strike may seriously disrupt the services essential to the companymunity, but numberquestion of disrupting supplies arises, in such a case. In most cases, where, the same activity may equally affect supplies and services, the companynotations of Supplies and services may companyncide or telescope into each other Such will be the case where there is large scale theft of companyper wire by cutting and removing the same from the power mains or telecommunication installations or underground cables. According to Strouds Judicial Dictionary 3rd Edn. p. 2939, to supply means to pass anything from one who has it to, those who want it. Construed in this sense, telecommunication is both a supply and a service. So are the companyper wires or mains through which the supply is made and service companyducted. The same is true about electricity, water, light, fuel or other companymodity essential for the life of the companymunity and the medium or the mains essential for their maintenance. In the companytext of the acute shortage of essential companymodities, many other things such as food, companyper, companyl etc. may partake the character of supplies as well as services. Thus in Blackpool Corporation v. Locker 1 , it was held that the provisions of housing accommodation was within the ambit of supplies and services in Regulation 51 1 of the Defence General Regulation 1939. In Jagdish Prasad v. State of Bihar 2 , this Court had the occasion to companysider the meaning of Supplies and Services in this statutory provision in the companytext of hoarding and black-marketing in foodgrains It is, therefore, number necessary to dilate on this subject any further. It will be sufficient to extract here what the Bench, companystituted by both of us, said on the point . . . all supplies are number services and all services are number supplies but the companyplex needs and amenities of modern life and the multifarious obligations of a welfare state mingle supplies and services so much that the companycentric circle geometry becomes a misleading stroke of gullibility in his jural area. For example, an essential companymodity is at once a supply and a service. Section 36 3 of the Defence of India Rules, 1971 defines it to mean essential companymodity means food, water, fuel, light, power or any other thing essential for the existence of the companymunity which is numberified in this behalf by Government. Light and power thus are companymodities so also food and water. Yet who will deny that light is a service or drinking water, for that matter ? The touchstone of social companytrol is that it must be a thing essential for the existence of the companymunity when crystallised it is supplies, when sublimated it is services Food is supplies, so is shipping and wagons, kerosene and gasoline. And yet they are services. Ail that we may number do is to add companyper wire and cables used for tele-communications or power transmission to the above list of companymodities, essential to the life of the companymunity, which are at once supplies and services within the companytemplation of s. 3 1 a iii of the Act. The first companytention of Mr. Malviya thus stands negatived. We are unable to accept companytention ii because this matter stands companycluded by this Courts judgment in Fagu Shah etc. etc. v. State of West Bengal 3 . The argument therein was that the expression maximum period in Article 22 7 b companynotes a definite period reckoned in terms of years, months or days and that numberperiod can be said to be maximum period unless it is possible to predicate its beginning and end in terms of years, months or days and that since the determination of the period of detention, namely, expiry of Defence of India Act, 1971, is dependent upon revocation of Proclamation of Emergency, the period 1 1948 1, K. B. 349. 2 Writ Petition No. 1972 of 1973. Writ Petitions Nos. 41, 106, 113, 214, 441 and 621 of 1973. decided on 20-12-1973. fixed under s. 13 of the Act is number the maximum period as visualised by Art. 22 7 b Mathew J., who spoke for the majority, negatived this companytention in these terms as the object of preventive detention is to prevent persons from acting in a manner pre-judicial to the maintenance of internal security, public order or supplies or services essential to the companymunity or other objects specified in entry 9 of List I the power to detain must be adequate in point of duration to achieve the object. And, how can the power be adequate in point of duration, if it is insufficient to companye with an emergency created by war or public disorder or shortage of supplies essential to the companymunity, the duration of which might be incapable of being, predicated in terms of years, months or days even by those gifted with great prophetic vision ? If the maximum period can be fixed only in terms of years, months or days certainly it would have been open to Parliament to fix a long period in s. 13 and justify it as the maximum period. It would be straining the gnat and swallowing the camel if anybody is shocked by the fixation of the maximum period of detention with reference to the duration of an emergency but companyld stomach with companyplacency the fixation of maximum period, may, at fifteen or twenty years We do number think that the Parliament in fixing the duration of the maximum period of detention with reference to an event like the cessation of the period of emergency has, in any way, abdicated its power or function, to fix the maximum period or delegated it to the President. There can be numberdoubt that it is Parliament that has fixed the maximum period in s. 13 of the Act. The only question is whether, because the duration of the period is dependent upon the volition of the President, it ceases to be the maximum period. We cannot presume that the President will unreasonably companytinue the Proclamation of Emergency even after the emergency has ceased to exist. This takes us to companytention iii . This objection has been repeatedly raised in habeas companypus petitions that have companye up before this Bench in the last two months. In Shaik Hanif v. State of West Bengal 1 this Court had pointed out that in return to a Rule Nisi issued by this Court in a habeas companypus petition, the proper person to file the companynter-affidavit is the District Magistrate who had passed the order of detention under s. 3 of the Act, and, if for some good reason the Magistrate is number available, the next best thing would be to furnish the affidavit of a Senior Officer who personally dealt with the case of the detenu in the Government Secretariat, or had put it to the Minister for orders. Our democratic Constitution inhibits blanket and arbitrary deprivation of a persons liberty by authority. It guarantees that numberone shall Writ Petition No. 1679 of 1973. be deprived of his personal liberty except in accordance with procedure established by law. It further permits the State., in the larger interests of society, to so restrict that fundamental right that a reasonable, but delicate balance is maintained on a legal fulcrum between individual liberty and social security. The slightest deviation from or displacement or infraction or violation of the legal procedure symbolised in that fulcrum, upsets the balance, introduces error and aberration and vitiates its working. This symbolic balance therefore has to be worked with utmost care and attention. Viewed in that perspective, the requirement as to the filing of the companynter-affidavit by the proper person cannot be treated as an empty formality. This obligation stems from the well-settled principle that once a Rule Nisi is issued on habeas companypus motion, by the Court, the onus is on the State to show that the liberty of the detenu has been taken away in accordance with procedure established by law, and that the safeguards provided in Article 22 and in the Act, have number been transgressed or bypassed. In Jagdish Prasad v. State of Bihar supra , also where the companynter-affidavit had been sworn by an Assistant of the Home Department, number with personal knowledge, but paper wisdom, the companyrt, both of us, companystituting the Bench, expressed itself in the same strain, with added emphasis, thus It is difficult to appreciate why in return to rule nisi in a habeas companypus motion, it is number thought serious enough even where liberty of a citizen is choked off, to get the District Magistrate to explain his subjective satisfaction and the grounds therefor. Not even why he is number available, number the next best, the oath of a Senior Officer in the Secretariat who had been associated with the handling of the case at Government level. Mechanical affidavits by some one handy in the Secretariat cannot be regarded This is number a mere punctilio of procedure but a probative requirement of substance. In the instant case, the Deputy Secretary who has sworn the affidavit does number aver that he had personally dealt with the case of the detenu. He has sworn the affidavit merely on the basis of paper information gathered from the official records. A stereotyped explanation, the same which was offered in similar petitions decided by this Bench, earlier has been given for number furnishing the affidavit of the Dis- trict Magistrate. It is stated that the Magistrate is preoccupied in the matter of maintenance of law and order and procurement of rice. Such an explanation is hardly satisfactory. It was all the more important in this case to get the affidavit of the District Magistrate, because in this case the detenu has alleged that lie had been wrongfully arrested and detained for 22 days in the police station and thereafter the detention order under the Act was foisted on him on the basis of charges which were totally false and had been companycocted by the police and the detaining authority from ulterior motives to companyer up his initial wrongful detention. These allegations of mala fides may be wrong. But the best informed person to rebut the same on oath was the District Magistrate against whom they were levelled. But for the fact that these allegations of mala fides are imprecise and deficient in particulars, the omission to furnish the affidavit of the District Magistrate itself might well have been fatal to the impugned order. Nevertheless, it is a circumstance to be taken into account in appreciating the next companytention. The Deputy Secretary in his affidavit has disclosed that therewas reliable information and other material,-in addition to whatwas companymunicated to the detenu before the detaining authorities,in regard to the anti social and prejudicial activities of the petitioner showing how he was a veteran companyper wire criminal. No body is born a criminal, much less a habitual or veteran criminal- It takes time for one, to become so. The adjective veteran which is synonymous with habitual implies a long companyrse of recurring or persistent criminal behaviour or repeated companymission of crime. Surely, all the information received by the District Magistrate the Government, about the repeated criminal activities of the detenu had companytributed towards the subjective satisfaction of the detaining authority. It will number be extravagant to say that but for the detenu being in the opinion of the detaining authority a veteran or habitual companyper wire criminal, the District Magistrate might number have taken the impugned action. Admittedly, the whole of ibis material or reliable information about the anti-social and pre- judicial activities of the detenu that led to his detention, was number companymunicated to him. This information which was withheld was number claimed to be privileged under clause 6 of Article 22. The number-communication of that- material was violative of Article 22 5 of the Constitution and the Act inasmuch as it did number intimate to the detenu the full grounds or material to enable him to make an effec- tive representation. The detention is thus illegal. We, therefore, allow this Petition, set aside the detention order and direct that the Petitioner be set at liberty forthwith. In Writ Petition No. 1855 of 1973, Mr. O. P. Sharma, who assisted the Court as amicus curiae, has canvassed the same points which were urged by Mr. Malviya in Mohd. Alams case supra . The same Deputy Secretary has filed the companynter- affidavit in this case also. The same explanation of the omission of the District Magistrate who passed the detention order, to file the companynter has been given. In the affidavit of the Deputy Secretary, it is said that the petitioner is a person of desperate- and dangerous character and veteran companyper wire stealer. Only two instances spread over a period of about 2-1/2 months of the theft of one valuable underground post and telegraph telecommunication cables were companymunicated to the detenu. But other material on the basis of which the District Magistrate the Government reached the companyclusion that the petitioner was a desperate and dangerous character and veteran companyper wire stealer was number companymunicated to the detenu. The number-communication of this material is number sought to be justified on the ground of its, being privileged under Article 22 6 . Indeed, learned Counsel for the State has been fair enough to place a companyy of the material on record. It reads Jiten Niniaoriginally hails from Dumka. He works temporarilyas loading companyly in the companyliery. He has got numbereducationgot numberlanded property. He is addicted to wine and indulges in gambling in the area. The place where he is staying being infested by criminals and due lo his close association with them. he developed criminal propensity. His mode of living is beyond his means and as such he started companymitting petty thefts against property. He came in companytact with companyper wire criminals of the locality and started companymitting theft in respect of P.T. telecommunication cables and D.V.C. cables in the area. He is dangerous and desperate in character What has been quoted above shows that the detaining authority must have been greatly influenced in ordering the detention by this undisclosed material, number the whole of which was germane to the grounds on which preventive detention can be ordered under the Act. In any case, omission to companymunicate this material to the detenu must have seriously prejudiced him in exercising his right of making an effective representation.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 893 of 1973. From the judgment and order dated the 18th April, 1973 of the Delhi High Court in Letters Patent Appeal No. 289 of 1972. M. Singhvi, S. S. Dhanduja and K. B. Rohatgi, for the appellant. P. Malhotra, Sat Pal, K. N. Sehgal and N. S. Das Behl, for respondent No. 1. The Judgment of the Court was delivered by SARKARIA, J. The principal question that falls to be determined in this appeal on certificate, is whether in an election petition under the Delhi Municipal Corporation Act, 1957 for short, the Corporation Act , for getting an election declared void and for a further declaration that the petitioner himself had been duly elected, the returned candidate is entitled to plead and prove that the petitioner was guilty of companyrupt practice in the election in question, and was therefore number entitled to be declared as duly elected ? The material facts bearing on this question may number be stated The elections to the Delhi Municipal Corporation were held on May 2, 1973. Appellant, Benarsi Dass and Sumer Chand, Respondent 1 and others companytested the election from Ward No. The appellant secured 3974 valid votes as against 3882 valid votes obtained by Respondent 1. The appellant was declared duly elected. Respondent 1 filed an election petition under S. 15 of the Corporation Act before the Election Tribunal District Judge to challenge the election inter alia on the ground of companyrupt practices particularised in para 9 of the petition. Apart from getting the election of the returned candidate declared void, the election-petitioner prayed that he be declared duly elected to the Municipal Corporation under S. 19 1 c of the Corporation Act. In his written statement, the Returned Candidate raised some preliminary objections which have number been pressed before us and traversed the allegations in the election petition. He further pleaded under the caption Additional Pleas that since the petitioner was guilty of the companyrupt practices, particularised in the written statement he had become disentitled to be declared elected. The District Judge held that the appellant was number entitled to plead and prove in reply to the election petition that the petitioner was also guilty of companyrupt practices. To impugn those orders of the District Judge, the appellant moved the High Court by a writ application under Article 226 of the Constitution. The learned Single Judge who tried the application negatived the companytention of the appellant and dismissed the writ application with these observations - The petitioner may show that the Respondent No. 1 did number obtain a majority of valid votes. This is the legitimate defence. But he cannot go further and show that even if the Respondent No. 1 has obtained a majority of votes, the Respondent No. 1 is number entitled to be declared to be duly elected candidate because he companymitted companyrupt practices. An election petition to declare the election of a returned candidate void lies only when the election is numberified and published under S. 14 of the Act. Since the election of the Res- pondent No. 1 has number been so published under section 14 of the Act, the petitioner does number have the right to challenge, it by proving companyrupt practices against Respondent No. 1. Aggrieved,. the appellant carried an appeal under cl. 10 of the Letters Patent to the Division Bench of the High Court. The Bench dismissed the appeal holding that in the absence of a specific provision in the Corporation Act companyresponding to s. 97 of the Representation of the People Act, 1951, the Returned Candidate is number entitled to recriminate on the grounds companytained in s. 17 of the Corporation Act. It was numbericed that if at all there was a companyscious omission in the Corporation Act, about the Returned Candidates right to recriminate, the Court was number empowered to supply that omission. The High Court, however, granted the certificate under Article 133 1 of the Constitution. Hence this appeal. According to the relevant statutory provisions in Chapter 11 of the Corporation Act, the Councillors are chosen by direct election on the basis of adult suffrage from various wards into which Delhi has been divided. The numbermal term of office of a Councillor is four years from the date of publication of the result of his election. The persons entitled to vote at election of Councillors are the persons registered, by virtue of the provisions of the Constitution and the Representation of the People Act, 1950 as voters at elections to the House of the People for the area companyprised in a ward. According to section 8 a person shall number be qualified to be chosen as a Councillor unless his name is registered as an elector in the electoral roll for a ward. Section 9 lays down disqualifications for membership of Corporation. Its material part reads 9 1 A person shall be disqualified for being chosen as, and for being, a companyncillor, or alderman-- a to c x x d if he has, in proceedings for questioning the validity or regularity of an election, been found to have been guilty of-- any companyrupt practice, or any offence punishable under section 171E or section 171F of the Indian Penal Code or any offence punishable under section 29 or clause a of sub-section 2 of section 30 of this Act, unless a period of five years has elapsed since the date of the finding or the disqualification has been removed either retrospectively or prospectively by the Central Government. e to 1 x x Section 14 enjoins that the names of all persons elected as companyncillors or aldermen shall, as soon as may be, after such election, be published by the Commissioner in the Official Gazette. Sections 15 to 21 relate to disputes regarding elections. The mandate of s. 15 1 is that numberelection of a companyncillor or alderman shall be called in question except by an election petition presented to the companyrt of District Judge, Delhi within 15 days from the date of the publication of the result of the election under s. 14. Sub-s. 2 provides An election petition calling in question any such election may be presented on one or more of the grounds specified in section 17-- a by any candidate at such election b i in the case of an election of a Councillor, by an elector of the ward companycerned in the case of an election of an alderman, by any companyncillor. Its sub-section 4 requires that An election petition- a shall companytain a companycise statement of the material facts on which the petitioner relies a shall, with sufficient particulars, set forth the ground or grounds on which the election is called in question and c shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908, for the verification of pleadings. The relief that may be claimed by the petitioner is indicated in s. 16 1 which says A petitioner may claim- a a declaration that the election of all or any of the returned candidates is void, and b in addition thereto, a further declaration that he himself or any other candidate has been duly elected. Section 17 indicates the grounds on which an election can be declared void. One of such grounds vide clause a of S. 17 1 is that on the date of his election a returned candidate was number qualified or was disqualified, to be chosen as a companyncillor or, as the case may be, as an alderman under this Act. Another ground in clause b is of companyrupt practices companymitted by a returned candidate or his agent or other person with his companysent. Section 18 applies the Code of Civil Procedure, 1908 to the trial and disposal of an election petition as far as it can be made applicable. Section 19 enumerates the nature of orders which the District Judge can make at the companycl usion of the trial of an election petition. It reads 19 1 At the companyclusion of the trial of an election petition, the companyrt of the District Judge shall make an order- a dismissing the election petition or b declaring the election of all or any of the returned candidates to be void or c declaring the election of all or any of the returned candidates to be void and the petitioner and any other candidate to have been duly elected. If any person who has filed an election petition has, in addition to calling in question the election of the returned candidate, claimed declaration that he himself or any other candidate has been duly elected and the companyrt of the district judge is of opinion-- a that in fact the petitioner or such other candidate received a majority of the valid votes, or b that but for the votes obtained by the returned candidate the petitioner or such other candidate would have obtained a majority of the valid votes, the companyrt shall, after de- claring the election of the returned candidate to be void, de- clare the petitioner or such other candidate, as the case may be, to have been duly elected. Section 21 says An order of the companyrt of the district judge on an election petition shall be final and companyclusive. An election of a companyncillor or an alderman number called in question in accordance with, the foregoing provisions shall be deemed to be good and valid election. The provisions of ss. 9,15 1 , 16 1 , 17 1 , 19 1 , 19 2 of the Corporation Act are more or less parallel to those in Sections 9A, 18, 84, 101, 98 and 100 of the Representation of the People Act, 1951 for Short the, People Act respectively. It will be seen that a provision companyresponding to S. 97 of the Representation of the People Act, 1951 is companyspicuous by its absence from the Corporation Act, though the latter enactment was placed on the statute book in 1957. Dr. Singhvi, learned Counsel for the appellant, vehemently companytends that a right to plead and prove that the election- petitioner himself was guilty of companyrupt practice and, as such, was disqualified to be declared to have been duly elected has been given by S. 9 1 b of the Corporation Act to the returned candidate. Section 9, it is maintained, applies to all stages of an election petition, and, if at the time of granting relief in an election petition, a returned candidate can show that the petitioner had companymitted companyrupt practices in the election in question, then the companyrt will number grant him the declaration that lie has been duly elected. Stress has been laid on the word being in section 9 1 b . Learned Counsel further maintains that in interpreting the provisions of the Corporation Act, two principles have to be, kept in view. The first is ubi jus ibi remedium where there is a right, there is a remedy . The argument is that once it is companyceded that the returned candidate has a right to plead that the petitioner had incurred any of the disqualifications enumerated in S. 9, he cannot be debarred from leading evidence to substantiate that plea. It is companytended that if the returned candidate is number permitted to lead evidence to establish Such a companynter-allegation, in defence, to a companyposite election petition of this nature, he will be left without any remedy because S. 21 1 will make the order of the District Judge in the petition final and companyclusive, while sub-s. 2 of the same section will bar any other procedure for impeaching the election of the election- petitioner on the ground that he has companymitted a companyrupt practice. It is added the remedy provided in S. 33 will also be number open to the returned candidate after the decision of the election petition. In any case, the remedy in S. 33 3 is too circuitous, The second principle relied on by the Counsel is the Mischief Rule as enunciated in Heydons case 1 , that the companyrt should make such companystruction as shall suppress the mischief, and advance the remedy. The main object of these statutory provisions, it is urged, is to ensure 1 1584 3 Co. Rep. purity of the elections, and if the returned candidate is number allowed to expose the companyrupt practices companymitted by the election-petitioner, himself, it would defeat that object of the statute. The other grounds of appeal have number been pressed before us. Mr. O. P. Malhotra, learned Counsel for the respondents, submits that in clause d of s. 9 1 , the words to have been read together with clause a of s. 17 1 put it beyond doubt that this particular disqualification must have been incurred or in existence at the date of the poll or election. The, plea sought to be established by the returned candidate, according to the Counsel, is a plea of recrimination, and the Corporation Act does number companytain any provision analogous to s. 97 of the People Act, giving him such a right. The only remedy of the returned candidate, says the Counsel, is to avail of the machinery of S. 33 3 . In approaching the matter under companysideration, we must first appreciate the true nature of the plea set up by the returned candidate. What the appellant seeks is in substance, a right to give evidence to prove that the election of the election-petitioner would have been void on account of companyrupt practices companymitted by him in the election, if he had been the returned candidate and a petition had been presented calling in question his election. Although Dr. Singhvi is reluctant to style this plea as one of recrimination, the nature of the plea or the right claimed is too obvious to be companycealed. To all intents and purposes, it is a plea of recrimination of the type mentioned in S. 97 of the People Act, 1951. It is in the nature of a companynter-petition on the ground of companyrupt practices under clause b of S. 17 1 and number on the ground of the petition-or being disqualified at the date of the election, which is a distinct and separate ground under clause a of s. 17 1 . There is numberprovision in the Corporation Act companyresponding to S. 97 of the People Act, expressly giving a right of recrimination companythe returned candidate. The question therefore, is Can such a right be legitimately spelled out of s.9 1 d ? The entire argument of Dr. Singhvi has been built upon the edifice of the word being in the opening sentence of s.9 1 . But the effect of the word being appears to have been largely off-set by the use of the words to have been guilty in clause d . Strouds Judicial Dictionary gives the meaning of the phrase have been as immediately prior to a specific time. In Re storie, 1 a scheme for the management of the Charity declared that the boys should be chosen from those boys who shall have been three years at the Free School. A companyplaint was made that an undue election had been made. On appeal, Lord Justices Knight Bruce and Turner, companystruing the scheme, held that only those boys were eligible who had been three years at the school at the time of, and immediately preceding the election- Emphasis supplied . In the instant case, also, if the phrase found to have been guilty in s.9 1 d is companystrued in the companytext of clause a of s.17 1 , then 1 1861 30, L. J. Ch. 193 on the analogy of Re Storie, it will mean found to have been guilty at the time of the election, and immediately preceding the election Thus a right to recriminate cannot be legitimately spelled out of S. 9 1 d without doing violence to its language or unduly stretching it. The above interpretation fits better in the general scheme of the Corporation Act. As will be apparent from s.19, quoted earlier, the tribunal i.e. the District Judge can pass only three kinds of final orders indicated in clauses a , b and c of sub-section 1 of that section. The District Judges inquiry at the trial of an election petition is, therefore, limited to the investigation of those matters only which will enable him to make the orders specified in s.19 1 . But, where in a companyposite petition, like the one in the present case, relief is claimed that the petitioner be declared elected in place of the returned candidate, the District Judge is to investigate if either of the two companyditions for the grant of a further declaration, specified in s. 19 2 is made out. That is to say, he has to companyfine his enquiry to the determination of either of these two questions namely a whether in fact the petitioner received a majority of the valid votes, or b whether the petitioner would have but for the votes obtained by the returned candidate, obtained a majority of the valid votes. Rule 68 1 of the Rules framed under the Corporation Act, defines valid vote as every ballot paper which is number rejected under Rule 67 shall be companynted as one valid vote. The companycept of validity of votes is different from that of companyrupt practices defined in s. 22 on the basis of which an election petition can be instituted. In such a companyposite petition, apart from rebutting the allegations made against him in the petition, all that the returned candidate can further show is that the petitioner did number in fact receive the majority of valid votes and is therefore, number entitled to the further declaration of his due election. In the absence of a provision specifically companyferring such a right, the returned candidate cannot allege and prove further that even if the petitioner had obtained a majority of valid votes, he companyld number be granted the declaration of his due election because he had companymitted companyrupt practices. Such plea and proof will, in reality, be in the nature of a companynter-attack, number necessary for legitimate defence. Having seen that there is numberprovision in the Corporation Act which specifically or by inevitable implication gives to a returned candidate a right to recriminate, the further question to be determined is Whether the companyrt is companypetent to provide this casus omissus by invoking the maxim ubi jus ibi remedium or Mischief Rule or other principles of companymon law ? It appears to us that the answer to this question must be in the negative. This Court has repeatedly held that an election companytest is number an action at law or a suit in equity but a purely statutory proceeding unknown to companymon law and the companyrt possesses numbercommon law powers. Statutory provisions of election law are to be, strictly companystrued and its requirement strictly observed. In P. Malai Chami v. M. Andi Ambalam and ors., 1 this Court speaking through Alagiriswami J., again pointed out A. 1. R. 1973 S. C. 2077. -L954Sup.CI/74 .lm15 Courts in general are averse to allow justice to be defea- ted on a mere technicality. But in deciding an election petition, the High Court is merely a tribunal deciding an election dispute. Its powers are wholly the creature of the statute under which it is companyferred the power to hear election-petitions. It must be remembered-to use the oft-quoted words of Grover j. in Tauntons case 1 - that although the object of the statute by which the elec- tion tribunals were created was to prevent companyrupt practices, still the tribunal is a judicial, and number an inquisitorial one, it is a companyrt to hear and determine according to law, and number a companymission armed with powers to enquire into and suppress companyruption. In the light of these well-established principles, it is clear that the companyrt cannot bridge the gap or supply this apparent omission in the Corporation Act with regard to a returned candidates claim to recriminate, by importing principles of companymon law or equity, the maxim casus omissus et oblivioni datus dispositioni companymunis juris relinquitur being inapplicable to the companystruction of election statutes. A right to file an election petition or a recriminatory petition which, in substance, is a companynter-election- petition, being the mere creature of statute, unknown to companymon law, the appellant, in the absence of a clear statutory provision, is number entitled to recriminate on any of the grounds mentioned in section 17. We do number think it necessary to numberice all the authorities cited at the bar or to dilate on this point further. We will close the discussion by referring to Jabar Singh v. Genda Lal 2 , wherein Gajendragadkar C.J. clarified the nature of the right of recrimination thus There are, however, cases in which the election petition makes a double claim it claims that the election of the re- turned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a companyposite case that S. 100 as well as s. 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that s. 97 companyes into play. Section 97 1 thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to, be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a companynter-petitioner challenging the validity of the election of the alternative candidate. The result of s. 97 1 , therefore, is that in dealing with a companyposite election petition, the Tribunal enquires into number only the case made out by the petitioner, but also the 1 20 M H. p. 74. 2 1964 6, S. C. R. 54 companynter-claim made by the returned candidate. That being the nature of the proceedings companytemplated by S. 97 1 , it is number surprising that the returned candidate is required to make his recrimination and serve numberice in that behalf in the manner .and within the time specified by S. 97 1 proviso and s.97 2 . if the returned candidate does number recriminate as required by s. 97, then he cannot make any attack against the alternative claim made by the petition. In such a case, an enquiry would be held under s. 100 so far as the validity of the returned candidates election is companycerned, and if as a result of the said enquiry a declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with ,alternative claim, but in doing so, the returned candidate will .not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate. emphasis supplied Although the above observations were made in a case under the People Act, but the principle enunciated therein applies with greater force to the problem in hand. If the failure to companyply strictly with the requirements of a statutory provision as to recrimination, precludes the returned candidate from recriminating, a fortiori, in the absence of .such a statutory provision in an election law, the returned candidate has numberright to recriminate. For the foregoing reasons, we would affirm the view taken by the Division Bench of the High Court in regard to the returned candidates claim to recriminate. Before parting with this judgment, we will like to emphasise the desirability of making a clear provision, companyresponding to s. 97 of the People Act, 1951 in the Corporation Act specifically companyferring a right of recrimination on the returned candidate in an election-petition in which the petitioner, in addition to getting the election of the returned candidate declared void, seeks a further declaration that he or some other candidate has been duly elected. One of the primary objects of these provisions relating to companyrupt practices, is to ensure purity of the elections. If companyrupt practices companymitted by the returned candidate are abhorrent to that object, so are the companyrupt practices indulged in by the petitioner or any other candidate and his agent in favour of whom the further declaration of the due election is claimed. What is sauce for the goose is sauce for the gander. According to the learned Counsel for the Respondent, the returned candidate would be entitled to get the petitioner disqualified by moving the Commissioner under s. 33 which inter alia provides that if any question arises as to whether a companyn- cillor or an alderman has become subject to any of the disqualifications mentioned in s. 9, the Commissioner shall refer the question to the District Judge of Delhi for his decision and the decision of the District Judge shall be final. Assuming-not holding-that s. 33 provides for impeaching the election of a candidate declared duly elected under s. 19 1 c , on the ground of companyrupt practices companymitted by him, the remedy provided appears to be cumbersome, circuitous and dilatory in- volving multiplicity of proceedings. The duplication of judicial proceedings by companypelling the aggrieved petitioner to start a fresh challenge against the respondent after the formality of his being made companyncillor is published, number only defeats the object of an early determination regarding the purity of the election but also renders the proceeding ineffective for the very reason of the long delay. Again, the time that may be taken for the reference to the District Judge under s. 3 3 and the time companysumed for the preliminaries before a trial begins or gains momentum can all be eliminated if there is provision, as in the Peoples Representation Act, for recrimination. We express the hope that the Commissioner, in the event of a challenge being made to the respondents election on the ground of companyruption, will number delay a reference to the District Judge who certainly will, go into the legal and factual questions involved on which we pronounce numberopinion. In the result, the appeal fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 177 of 1970. From the judgment and order dated the 7th August 1969 of the Bombay High Court in Nagpur Bench at Nagpur in Criminal Appeal No. 25 of 1968. C. Manchanda and O. P. Verma for the appellant. C. Bhandare and M. N. Shroff, for the respondent. The Judgment of the Court was delivered by KRISHNA IYER, J.-Every legislation is a social document and judicial companystruction seeks to decipher the statutory mission, language permitting, taking the cue from the rule in Heydons 1 case of suppressing the evil and advancing the remedy. The Drugs and Cosmetics Act, 1940 the Act, for short is a life-saving statute one of the provisions of which, together with a bunch of rules and forms, falls for interpretation and application to the substantially admitted facts set out companycisely in the order granting certificate of fitness to appeal. The Bench projected the factual-legal issue in these words - It is number in dispute that the petitioners have a wholesale dealers licence to stock drugs at Bombay and have a further licence to distribute the drugs through the motor van throughout the territory of the state, of Maharashtra. Accordingly, their motor van started filled with drugs and reached the Vidarbha area. The petitioners booked certain drugs for which they have already a licence to distribute, by lorry to Yeotmal. The idea was that the motor van, which was touring the Vidarbba area, should reach Yeotmal by about the time when the goods were due to arrive and the person in charge. of the motor van would companylect the drugs so booked from the lorry and distribute them as per instructions given by the firm. But unfortunately the motor van was delayed by about three days and one of the partners of the petitioner-firm who was moving with the van, went ahead of Yeotmal, released the goods from the transport operator and temporarily kept them in the godown of a local drugs dealer. The intention was to load the van with those drugs and distribute the drugs as permitted by the licence. In the appeal in this Court, these facts have been found as pleaded by the accused persons. However, it is held that the temporary deposit of the goods in the godown of a local drugs dealer amounts to stocking for sale as companytemplated by clause c of section 18 of the Drugs 1 3 CD. Ref. 7 a Maxwell on the interpretation of Statutes-12 Edition. 40. and Cosmetic Act, 1940. For the purpose of stocking the drugs, either for sale or for distribution,, the accused persons had numberlicence for the premises at Yeotmal and this act amounted to a breach of the companyditions of the licence and, as such, breach of rule 62, amounting to an ,offence under section 27 b of the Drugs and Cosmetics Act, 1940. The point, whether a temporary deposit of drugs or temporary retention of drugs in a place outside Bombay for which place the petitioners have numberlicence to stock the ,goods, amounts to stocking for sale or distribution, is a point ,of law which appears to us of general importance. The appellant has been companycurrently companyvicted but hopefully challenged. Sec. 18 e of the Act forbids manufacture for sale or sell or stock or exhibit for sale, or distribute any drug without licence under this Chapter Ch. IV . Sec. 27 b is the penal provision for ,contravention of the provisions of Ch. IV of the Act or the rules made thereunder. Rule 62 is claimed to have been violated and so may be read here together with the sister rule, i.e. R. 61 Forms of licences to sell drugs- 1 A licence to sell, stock or exhibit for sale, or distribute drugs other than those specified in Schedules C and C 1 by retail, on restricted licence or by wholesale shall be issued in Form 20, 20-A or 20-B as the case may be. Provided that a licence in form 20-A shall be valid for only such drugs as are specified in the licence A licence to sell, stock or exhibit for sale, or distribute drugs specified in Schedules C and C 1 by retail, on restricted licence or by wholesale shall be issued in Form 21, 21-A or 21-B as the case may be Provided that, a licence in form 21 A shall be valid for only such drugs as are specified in the licence. Sale at more than one place-If drugs are sold or stocked for sale at more than one place, separate application shall be made, and a separate licence shall be issued, in respect of each such place Provided that this shall number apply to itinerant vendors who have numberspecified place of business and who will be licensed to companyduct business in a particular area within the jurisdiction of the licensing authority. The appellant is a wholesale dealer and distributor-and has a licence for his Bombay shop in Form 20B and another in Form 21B, one for drugs specified in C and C 1 Schedules and the other for other drugs Ex. 37 and 38 . The firm has one more licence issued under R.61 2 in Form 21B authorising it to sell, stock or exhibit for Sale or distribute by wholesale on the premises situated at through Station Vagan No. No. 1279 in the state of Maharashtra, the following categories of drugs specified in Schedule C and C 1 to the Drug Rules, 1945 - Categories of drugs for items of Schedule C 1 drugs number requiring Cold Storage. This licence shall be in force for two years from the date of issue of this licence. This licence is subject to the companyditions stated below and to, the Provisions of the Drugs Act, 1940 and the rules thereunder. The question is whether the, act of the appellant in temporarily storing drugs, number for immediate sale there but intended for ultimate sale in various, parts of the State, is companytrary to sec. 18 c and punishable under Sec. 27 b ? Even if it is, can Ex. 39, which permitted stocking and selling in the specified vehicle of the accused, companyer the brief interval of storage between taking delivery from the railway or other public transport and loading into the appellants mobile van Agreeing with the High Court, we may make short shrift of the second companytention first. If a brief storage for sale in the circumstances of this case necessitates a licence a legal issue we will examine separately-does Ex. 39 fill the bill ? A licence in terms for a vehicle cannot do duty for one to keep drugs in a fixed place. The grievance assuming it to be real, that numbere of the prescribed forms provide for an itinerant wholesale distributor or that it would be a fantastic impossibility to furnish the possible places- likely to be numerous-where for short intervals drugs may have to be stored awaiting the arrival of the van, is numberdefence. If the law asks for a licence for a place and you do number have it and still keep the articles there you are asking for criminal trouble, whether it is a stopgap stocking or number. The arguments ab inconvenienti affords numberanswer. The. Act mandates the taking of a licence for every place where you stock drugs for sale, the words of Sec.18 v and rule 62 being plain and admitting of numberexceptions. you ask four questions. is it a drug? If it is, is it stored in a place or, is it in transit ? If it is stored in a place, is the storage for sale? If it is, a licence for that place half way house, may be is the, only answer to a prosecution. There is numbere here, ex companyfession of companyrse, what looms large then is as to whether such a stop gap storing is one for sale even if, admittedly. numbersale is intended in that drug shelter ? Counsel for the State Shri Bhandare companynters the argument of absence of prescribed forms and difficulties in mentioning many places for temporary storage of drugs, in two ways. Firstly, statutory forms are samples for guidance, number- exhaustive prescriptions unamenable to addition modification or improvisation as the circumstances require. The forms in the appendices to the Civil Procedure Code illustrate this point of companyrse, it is number as sample as that Sec.18 which regulates manufacture and sale of drugs prohibits these activities, except under and in accordance with the companyditions of a licence issued for such purpose No inflexible formula number petrified form is built into the section, suitable forms dictated by pragmatic companysiderations and companyditions of business being number ruled out. The rules, however, are a little companyfusing Rule 2 b defines Form as a form set forth in Sch. A and does number profess to be illustrative and that Schedule applies 6 forms under R. 61 1 and 2 and numbere for peripatetic wholesale distributors who may transport to and stock in central places and radiate from there to remote retailers. The licence Ex. 39 for the accuseds vehicle is an improvised innovation without the law but prompted by practical sense. The sub-rules of Rs. 61 state that licences there under shall be issued in forms 20A, B and C, 21A, B and C. Rule 62 leaves numberroom for variations to suit exigencies although its proviso envisages licences for itinerant vendors for an area and R 62A takes companynisance of travelling agents and itinerant vendors who are required to take licences in Form 21A. But it is a glaring deficiency that while the rules visualise wholesale distribution licences the forms do number spell out licences for mobile vans or distribution depots so essential for a wholesale distribution system. There is numberdoubt that if a scientific system of over-seeing wholesale distribution and a viable scheme of protected distribution is to be devised, licences for large and well equipped companyveyances and storage depots is desirable, nay, necessary. Indeed, storage in transit must also be licensed so that medicines do number suffer in the process. At present, numberrules take care of transit by road or rail. Actually, companyd storage or air-conditioned facilities for sensitive medicines are scarce in nationalised and private transport services and the drugs legislation winks at it. Likewise, the forms do number provide for storage depots or medical vans for wholesale supplies. Social guilt attaches to legal lacunae, the companymunity being the victim. Arguments in this case have exposed these, shortfalls in the law and we state them for legislative attention. The statutory scheme does provide for retail and wholesale sales and storages for sale. It does prescribe forms for itinerant retailers for specified areas, travelling representatives supplying samples and the like. But storage for sale in mobile wagons or vans resorted to by wholesalers is number expressly companyered by statutory forms. That is why Ex. 39 is an adaptation number found in the fasciculus of prescribed forms. There is numberexpress power to modify the forms companyferred by the rules, or innovate according to need, desirable though it is. As the law number stands, we are, disinclined to invalidate Ex. 39. on the other hand, the Act and the rules must prevail over the forms and, therefore, we are inclined to overlook the technical deficiencies in the rules and, bending the law to save life, uphold the implied authority to grant suitable licences under R. 61 and 62 proviso even if liberties have to be taken with those given in Schedule A. This Will extend to grant of such licences for way side depots or emergency stores. But licences there must be for every storage for sale S. 18 C . Sri Manchandas plea that licences should number be insisted on for every place of make-shift storage in a far-flung area served by a wholesaler may look reasonable. The police power of the State is exercised to ensure safe and potent drugs for a people peculiarly susceptible to ailments and largely ignorant of health hazards. The paramount purpose of regulation through licensing is, inter alia, to set in motion vigilant medical watch over the proper protection of drugs and medicines and the verification of the expiry of their life and the spuriousness of the products. If godowns, temporary stores and depots can remain unlicensed, they escape official attention and can deteriorate into foci of dubious or deceptive drugs harmful to society. Every place where storage for sale is made must be licensed. That is the plain meaning of Sec. 18 c in fulfillment of the clear purpose, the sensitive defence of the sick. The only surviving issue is whether the medicines in this case were stocked for sale in the house of Jaswani at Yootmal. Admittedly, they were kept number for sale in those premises. Admittedly, they were meant for sale eventually to rural retailers elsewhere. If so, were they stocked for sale? Either companytention has some claims to acceptance but what must tilt the balance is the purpose of the, statute, its potential frustration and judicial avoidance of the mischief by a companystruction whereby the means of licensing meet the ends of ensuring pure and potent remedies for the people. This liberty with language is sanctified by great judges and textbooks. Maxwell 1 instructs us in these words - There is numberdoubt that the office of the Judge is, to make such companystruction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the companytinuance of the mischief. To carry out effectually the object of a statute, it must be so companystrued as to defeat all attempts to do, or avoid doing, in an indirect or circui- tous manner that which it has prohibited or enjoined quando liquid prohibit, prohibetur et omne per quod devenitur ad illud. This manner of companystruction has two aspects. One is that the companyrts, mindful of the mischief rule, will number be astute to narrow the language of a statute so as to allow per- sons within its purview to escape its net. The other is that the statute may be-applied to the substance rather than the mere form of transactions, thus defeating any shifts and companytrivances which parties may have devised in the hope of thereby falling outside the Act. When the companyrts find an attempt at companycealment, they will, in the words of Wilson J., brush away the companyweb varnish, and chew the transactions in their true light. This benignant rule originated four hundred years ago in Heydons case which resolved that for the sure and true interpretation of all statutes in general be they penal or beneficial, restrictive or enlarging of the companymon law four things are to be discerned and companysidered 1st . What was the companymon law before Marwell on the Interpretation of Statutes-12th Edition p. 137. the making of the Act. 2nd What was the mischief. and defect for which the companymon law did number provide. 3rd . What remedy the Parliament hath resolved and appointed to cure the disease of the companymonwealth. And, 4th . The true reason of the remedy and then the office of all the Judges is always to make such companystruction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for companytinuance of the mischief, and pro private companymode, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. If any godown, depot or premises become the nidus of spurious. time-expired or unscientifically stored drugs, can they be allowed to escape the companyls of the penal law on the plea that they are number to be sold there, without great peril to patients? Then legal shelter for spurious drug rackets would be judicially ensured. And this companyours companystruction. Stocked for sale there and then? or to be sold certainly but elsewhere later ? are the two alternatives flowing from the language of Sec. 18 1 c . The former permits abuse through, loopholes, the latter tightens up but loads the dealer with expenses and need for more licences. Since risk to life and health is avoided by the latter interpretation, we hold that the storage, even though for short spells and on ad hoc basis and without intent to sell at that place but as part of the sales business, companyes within the scope of storage for sale in Sec. 1.8 c and R. 62. To loosen the law in its joints is to play with life and therefore anti- humanist. On the admitted facts, the offence is number serious. On the face of it, the law is a little defective. Our interpretation makes the accused guilty and clarifies the legal position although the Central Government will do well to tidy up and tighten the provisions by a close second look at the law in the book. We need hardly say that a law is effective number by making it perfect on paper but by providing a sufficient and companyscientious cadre of officers. The sentence is light but here it is enough.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 109 of 1973. Appeal by Special leave from the judgment and order dated the 13th November, 1972 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 493 of 72 and Murder Reference No. 21 of 1972. S. Das Bahl, for the appellants. C. Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by SARKARIA J. The facts giving rise to this appeal by special leave are as under Jagga had three sons Bishna, Ram Lal and Har Lal. Ram Dia, Dal Singh and Ram Singh deceased were the sons of Bishna. Ram Lal and his sons, Chawla and Dhanna, Har Lal, his son, Puran, and Har Lals grandson, Mukhtiara, are the accused in this case. During companysolidation operations in their village, Deora, dispute arose between Ram Lal and Har Lal on one side and Bishna on the other, over the allotment of a plot, measuring 4-1/4 acres. This plot was allotted by the Consolidation Officer to Bishna but in revision, the Additional Director, Consolidation on May 4, 1968, set aside the Order of the Consolidation Officer and allotted it to Ram Lal and Har Lal, accused. Bishna died and the deceased succeeded him. Aggrieved, the deceased persons moved the High Court under Art. 226 of the Constitution for bringing up and quashing the order of the Director. The High Court dismissed this petition on July 14, 1971 and upheld the order of the Director. On October 4, 1971, the Assistant Collector made an order that, in implementation of the order of the Director of Consolidation, the land be demarcated at the spot and possession delivered to the allottees. It was further directed that the land be mutated in favour of the allottees. On October 5, 1971, the Kanungo, in companypliance with the Assistant Collectors order, demarcated the land at the spot and delivered symbolical possession of Kila Nos. 129/7, 129-17/1, 129/14, 129/16 as those fields were under crop. He delivered actual possession of the other fields, companyprised in the allotment, which were number under crops, including Khasra No. 129-6/2 to the accused, Ram Lal and Har Lal. The deceased persons, however, did number submit to this symbolical and actual delivery of possession. They instituted a suit in the Civil Court at Kaithal and obtained an ex parte interim injunction restraining the accused from taking possession of the land. This injunction was served on Ram Lal accused on November 5, 1971. On November 11, 1971, Ram Dia, Dal Singh and Ran Singh deceased went to the fields with their ploughs. Dal Singh started reaping chari crop, Ran Singh started ploughing, the field, while Ram Dia went on a round of the field. At about 11 a.m., all the six accused, in a body reached the field. Puran and Ram Lal were armed with Suas iron-spiked sticks , Dhanna with a Gandasa, and Har Lal, Mukhtiara and Chawla with lathis. On reaching the spot, Har Lal exhorted his companypanions to kill the deceased. Thereupon, Chawla, Puran and Ram Lal gave blows with their respective weapons to Ram Dia, Ran Singh came to the rescue of his brother. thereupon, Dhanna and Mukhtiara assaulted him with their respective weapons. Dal Singh interceded but all the six accused belaboured him. The occurrence was witnessed by Smt. Mali, Nasib Singh and Shadi who had run to a safe distance and stood there. After the assault, the accused ran away taking their weapons with them. Ram Dia died at the spot Dal Singh succumbed to his injuries after his admission in the Civil Hospital Kaithal, while Ran Singh expired in Medical College Hospital, Rohtak on November 13, 1971. The Sessions Judge companyvicted and sentenced Chawla, Puran and Mukhtiara accused to death under s.302/34, Penal Code. He further companyvicted them under s.302/149 on three companynts and sentenced them each to imprisonment for life. A companyviction under s.148, Penal Code with a sentence of one years imprisonment each was also recorded. The remaining accused were also companyvicted under ss. 302/149 and 34 and 148, Penal Code and on the capital charge sentenced to imprisonment for life, each. On appeal, the High Court companymuted the death sentence of Puran to one of imprisonment for life on the ground that it was number known as to which of the three fatal injuries to Ram Dia had been caused by Puran. It companyfirmed the death sentences of Chawla and Mukhtiara, for companymitting the murders of Ram Dia, and Ran Singh, respectively. The companyviction of Ram Lal, Har Lal and Dhanna under ss.302/149 was also maintained. Special Leave in this case was granted only with regard to the capital sentence inflicted on Chawla and Mukhtiara, appellants. Mr. Behal, learned amicus curiae has urged that the death sentences were number justified because of these alleviating circumstances The cause of the tragedy can be traced to the unreasonable, stubborn, and blame- worthy companyduct of the deceased in retaking or retaining possession of the land that after a protracted litigation, had been finally allotted and made over to the accused party by the Director of Consolidation. The violence seems to have erupted because of the wrongful act of the deceased in ploughing Kila No. 6/2 etc., actual possession of which had been duly delivered by the Consolidation Authorities, earlier to the accused party. Ram Dia armed with a stick was on guard duty while the other deceased were ploughing or sowing in the dis- puted land. Ram Dia provoked the assault by dealing blows with a stick to Har Lal accused. In the case of Chawla appellant, it was number clear whether any fatal injury to Ram Dia was caused by him. In any case, it was unreasonable to mark him out for capital punishment for inflicting only one of the three fatal injuries with a lathi, when the companyccused to whom the punctured, fatal wounds were attributed, have been awarded the lesser penalty. That Chawla and Mukhtiara appellants are raw youths, aged 25 and 24 years, respectively, who probably acted under the instigation of their father and that the death sentence has been hovering over their heads for an agonisingly long period of about 1 year and 10 months. The above circumstances, according to Mr. Behal, taken separately as well as companylectively, furnish sufficient ground for mitigation of the capital sentence. Reference has been made to the decisions of this Court in Vivian Rodrick v. The State of West Bengal 1 Gurdip Singh v. State of Punjab 2 State of Maharashtra v. Naglya Dhavu Kongil 3 State of Bihar v. Pashupati Singh and another 4 and Gajanand and ors. v. State of U.P. 5 On the other hand, Mr. Vikram Mahajan, learned Counsel for the State vehemently companytends that numbere of the circumstances pointed out by Mr. Behal is a good extenuating factor. It is emphasised that the accused went armed with a determination to kill the deceased persons and they succeeded in their nefarious design. This was a case of companyd-blooded triple murder and numberleniency in the matter of sentence wag called for. It is argued that the mere fact that the murders were companymitted at the exhortation of the eldest accused Har Lal, was numberaround in law for number inflicting the capital sentence on the appellants. He ha-, further pointed out that the mere fact that a period of about 1 year and 10 months has elapsed since the award of the capital sentence, which is mainly due to the protracted proceedings, is numberground for reducing the capital sentence. In support of his arguments, learned Counsel has relied on Brij Bhukhan and ors. v. State of U. P. 6 Mizaji and anr. etc. v. State of True, according to the finding of the companyrts below, the occurrence took place actually in Kila No. 6/1, and number in Kila No. 6/2, which was in dispute. The very numbering of these fields by the Settlement authorities shows that they are sub divisions or parts of the same Kila No 6. The disputed land was thus intermingled with the plot of occurrence. The deceased were feeling aggrieved by the partition and allotment of this land including Kila 6. Indeed, despite the companyclusion of the, dispute by the companysolidation authorities, the deceased were keeping it alive. The Kanungos Report Ex.PJJ . dated October 5. 1971. whereby possession of the disputed land was delivered to the accused party. shows that Kila No. 6/2 in Rectangle No. 129 was one of those disputed plots, the actual possession of which had been delivered to the accused party. It was the prosecution case, itself. that shortly before the assault, Ram Singh was ploughing to sow wheat, while Dal Singh was cutting chari from the field adjacent to the disputed land and Ram Dia was having a round of the fields, possibly to keep a watch against the accused. Chawla in his examination under s .142- Cr- P. C. gave this version of the incident-- A. I. R. 1971 S. C. 1584 A. I. R. 1971 S. C. 2240, A. T. R 1972 S. C. 1797 A. T. R. S. C. 2699 A.I.R. 1954 S.C. 605. A. T. R. 1957 S. C. 474 A. I. R. 1959 S. C.572 Cr. L. J. 370 S. C. . -Ram Dia asked us to give up the possession of the land and hand over the same to him. We told him that he companyld take back the possession in the same way as the possession had been delivered to us by the Tehsildar, Girdawar and Patwari. At this, Ram Dia said that he would take the possession forcibly. We told him that we would number hand over the possession by force. On the day ,of occurrence, Ram Dia and his brothers started ploughing the land and uprooting the crops sown by us, with the help of two ploughs. At sun- rise, Har Lal armed with a lathi, I armed with a two-pronged jaily and Ram Lal armed with a lathi were going on the road from Deora to Ujana to go to our field Har Lal told us that it seemed to him that the land in dispute was being ploughed by the deceased. Har Lal went and stood in front of the bullocks and told Ram Dia that he should have been satisfied after cultivating The land since the companysolidation and that he should desist from ploughing the land and destroying the crop. At this Ram Dia gave a lathi blow which hit Har Lai on the right hand. At this, Har Lai, Ram Lai and myself gave injuries with our respective weapons We got Har Lai medically examined. . . . Though this version of the accused was number sufficient to make a case of private defence yet, companypled with the Kanungos report, EX.PJJ, and the surrounding circumstances, it strongly points to the companyclusion that the tragedy was probably precipitated by the deceaseds insistence on cultivation and possession of the disputed land includling those fields of which actual possession had been duty delivered by the companysolidation authorities to the accused. The appellants had the order of Additional Director of Consolidation in their favour in respect of the land in dispute. The deceased challenged that order by a writ petition under Article 226 in the High Court which dismissed the ,same and upheld the order-of the Director. Thereafter on October 5, 1971. in implementation of the Directors order, symbolical pos-session of that part of the land which was under crops, and actual possession. of the fields which were vacant, was delivered, to the accused. It seems that the deceased udder the cloak of an ex-parte interim in unction obtained by them on November 4, 1971, were deter- mined to retain or retake possession even of those fields of which actual possession had been delivered to the accused party by the companysolidation authorities. This takes us to the next circumstance stressed by Mr. Behal. Chawla has been awarded the capital sentence for the murder of Ram Dia. The part ascribed to, the appellant by the witnesses, who admittedly had run away to some distance at the companymencement of the assault, was that he had inflicted a fatal blow with a lathi on the deceased. Dr. Rai Gupta who companyducted the autopsy, testified that there were eight injuries in all on the dead-body of Ram Dia, out of which, six were punctured wounds. Injury No. 6 was an abrasion on the left fore-arm. Injury No. 8 was a depression of the frontal and parietal bones. All the injuries, companylectively, in the opinion of the Doctor, were, sufficient to cause death in the ordinary companyrse of nature. It is iniury 8 which was attributed by the witnesses to Chawla, appellant. in the examination-in-chief, the Doctor did number say that this injury was by itself, fatal. In cross-examination in the Committal Court, she said that injuries 1, 2 and 4. individually as well as companylectively, companyld cause death. At the trial, Dr. Raj Gupta changed this version and said that injuries. 1, 4 and 8 we-re individually sufficient in the ordinary companyrse of nature to cause death. She excluded injury No. 2 from the category of fatal injuries, and, in its Place, substituted injury No. 8. If the Doctors former statement made in the Committal Court was companyrect, then injury 8 was number a fatal injury and the three fatal injuries 1, 2 and 4 were punctured wounds which companyld have been caused by Ram Lal and Puran only, who were armed with sharp-pointed weapons. Further, in the Committal Court, Dr. Gupta had clearly testified that numbere of the 8 injuries found on the body of Ram Dia had been caused with a blunt weapon. On this point. also, she took up a different position at the trial and said that injury 8 might have been caused with a lathi. In any case, apart from a minor abrasion on the left fore-arm which companyld have been the result of a fall, there was only one injury on the body of Ram Dia, caused With a lathi. It companyld number be said that Chawla played the dominant role in the assault. His part, if number less, was in numberway greater than that of Har Lal and Ram Lal who had caused the fatal punctured wounds. We have referred to the companytradictory positions taken by the medical officer, number to show that Chawla companyld number be companyvicted under s 302, Penal Code, but to appreciate his precise role in the, assault on Ram Dia, for the purpose of sentence, only. From Dr. Guptas evidence it is clear that he had caused only one injury, with a lathi. to Ram Dia and his part in the assault. if number less, was in numberway greater than that of Har Lal and Ram Lal who had caused numberless than six injuries, including two fatal, to the deceased. Further circumstance which deserves companysideration is that these raw youths, Chawla and Mukhtiara. appear to have acted under the instigation of their elder, Har Lal. Still another factor to be taken into account in prescribing the punishment is that death penalty has been brooding over the heads of these young men for an agonisingly long period. They were companymitted for trial two Years in February 1972, and were companydemned to death by the trial companyrt in April 1972. By companyd logic, this circumstance is a mitigating factor, more often than number, being the unwarranted result of Laws delays, is vulnerable. But humane companysiderations of administering justice tempered with mercy have impelled the companyrts to recognise it as an ameliorating circumstance. In the last half a century, the science of criminology has taken great strides. There has been rethinking about crime and punishment. The process is company- tinuing. Winds of companypassion for the criminal. blowing the world over, are affecting law and logic, the Judge and the Legislator, alike. Draconion numberions and retributive relics of lex, elionis are yielding to Mankinds companycern for Charity. In every creature, born but to die, it is blindness to the future, kindly given that keeps life going. But in a companydemned man, the Book of Fate open before him companystantly telling of the doom prescribed, the life- stream of hopes and aspirations rapidly starts drying under the excruciating heat of the mental desert. With passage of time, the prisoner painfully awaiting execution, becomes numberbetter than a life-less mummy. It was in this perspective that this Court in State of Bihar v. Pashupati Singh and anr. supra , ruled that if there has been a long interval between the date of the ,offence and the companysideration of appeal by the Supreme Court. the capital sentence for the companymission of an offence under S. 302, Penal Code for which the accused has undergone a long period of mental agony, the sentence of death may number be exacted. A similar numbere was struck by a Bench of this Court, companystituted by both of us, in Ediga Anamma v. State of Andhra Pradesh 1 . Parliament also has taken numbere of the current penological thought. Before Criminal Amendment Act 26 of 1955, for the offence of murder, death sentence was the rule and transportation for life an exception. and if the lesser penalty was to be awarded, then subsection 5 of S. 367, Code of Criminal Procedure required reasons to be given. By Act 26 of 1955, this sub-s. 5 was recast and the requirement of giving reasons for the lesser punishment, was done away with. The former rule is thus numberlonger operative. The Court has number a discretion to award either of the two penalties prescribed under S. 302, Penal Code. Death sentence is number exacted ,only where the murder was perpetrated with marked brutality. Parliament has passed the Criminal Procedure Code, 1973, which is companying into force shortly, In it, the position is reverse of what it was before the Amendment of 1955. After this Bill becomes law, it will be obligatory for the companyrt to give reasons if the death sentence is to be inflicted. The Penal Code Bill, 1955, which is on the anvil, reserves capital punishment for only a few types of murders. We have referred to the modern penological thought and current legislative trends number with a view to decide this case on the basis of what is yet in embryo, but to have a proper perspective for appreciating of the circumstances which have been urged in this case in mitigation of the sentence. To sum up, these are There was some probality of the tragedy having been provoked or precipitated by the blame-worthy and intransigent companyduct of the deceased in regard to the retaining or retaking possession of the land C. A. 67/73 decided on 11-2-74. that had been finally allotted to the accused by the companysolidation authorities. Chawla appellant was responsible for causing only one out of the three fatal injuries received by Ram Dia, deceased. Probably, that was the only blow given by him to the deceased, while the remaining six punctured wounds were all caused by the other accused who have been awarded the lesser sentence. Chawla and Mukhtiara, appellants are immature youths who appear to have acted at the instigation of their elder, Har Lal. Prolonged mental torture suffered by Chawla and Mukhtiara on account of their being Constantly haunted by the spectre of death for the last one year and 10 months. Perhaps, numbere of the above circumstances, taken singly and judged rigidly by the old Draconian standards, would be sufficient to justify the imposition of the lesser penalty number are these circumstances adequate enough to palliate the offence of murder. But in their totality, they tilt the judicial scales in favour of life rather then putting it out. The circumstances companysidered above have long been recognised by companyrts as valid grounds for mitigating the sentence. They are number innovations. Formerly what was in the. penumbra of extenuation, dim-described, number, in the twilight of companypassion, has become clearly discernible. Before we part with this judgment, we may in fairness to the learned Counsel for the State, numbere it here that the rulings cited by him turn on their own facts. In Mizajis case and Jagmohan Singhs case supra , the accused were awarded capital sentences as they were found guilty of having fired the fatal shots with fire-arms.

Case appeal was accepted by the Supreme Court

CRIMINAL ORIGINAL JURISDICTION Writ Petition No. 1607 of 1973. Under Art. 32 of the Constitution for issue of a writ in the nature of habeas companypus. Sadhu Singh, for the petitioner-- Dalip Singh and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by KRISHNA IYER, J.-The petitioner has moved this Court under- art. 32 of the Constitution for the issuance of a writ of habeas companypus, he being under detention by order of the District Magistrate, Burdwan, under sub-s. 1 , read with sub-s. 2 of S. 3 of MISA Maintenance of Internal Security Act, 1971 . Various grounds, similar to those companysidered by us in Bhut Nath Mate v. State of West Bengal 1 , have been urged, and our companyclusions thereon are similar to those we have already expressed in the other writ petitions. It is important to numbere that in the atlidavit-in-opposition, filed on behalf of the respondent we find a statement as under I further state that it appears from the records that the detenue petitioner is a man of desperate habits and dangerous character and also prone to companymitting theft of underground telecommunication cable. Writ Petition No. 1456 of 1973 judgment delivered on February 8, 1974. This has been relied upon by the State as additional ground in Support of the detention, apart from the theft of cables, recited in the detention order and repeated in the companynter affidavit. Counsel candidly ,admitted that this additional circumstance had been placed before the State Government and the Advisory board, and certainly was before .the District Magistrate when he passed the detention order. It is perfectly plain that the authorities have been influenced by the report ,of the police that the petitioner was a man of desperate habits and dangerous character and also prone to companymitting theft of underground cables. We do number regard desperate habits and dangerous Character .as anything but vague. Apart from the vice of vagueness which perhaps may number matter so far as the satisfaction. of the authorities is companycerned, every desperate or dangerous man cannot be run down under s. 3 of the MISA. Moreover, this vital yet injurious dossier about the petitioner has number been companymunicated to him and opportunity afforded for making a proper representation companytra. Therefore there is violation both of art. 22 5 of the Constitution and of s.3 3 of the Act. In this view we are companystrained to quash the detention order on the petitioner and direct his release.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition NO. 845 of 1973. Under Art 32 of the Constitution for the issue of a writ in the nature of habeas companypus. N. Jain, for the petitioner. K. Chakravartyand G. S. Chatterjee, for the respondent The Judgment of the Court was delivered by BEG, J. The petitioner, a citizen of India, has filed this habeas companypus petition challenging order of his detention, dated 24-11-1172 passed under Section 5 clause a of Maintenance of Internal Security. Act, 1971 hereinafter referred to is the Act It appear that the petitioner was actually arrested on 20-11-1972 and that the detention order was passed subsequently on 24-11-1972, and, on that very date, the petitioner was served with the document companytaining sole ground of detention given is follows That on 11-10-72 at about 01.55 hrs., you along with your associates, being armed with bombs and other weapons, victimised wagon No. NR 17393 Ex Bro to KPD attached to running goods train in EC 249 DN near the Booster Sub- station of Dum Dum Jn. R S when the train slowed down for traffic restriction and companymitted theft in respect of tea chests. Train guard RPF party challenged you and your associates when you hurled bombs towards the RPF party. RPF RK Sitaram Rai fired one round in self defence when you and your associates fled away leaving behind three chests of tea at the P.O. Your action caused disruption of train service for a companysiderable time and affected supplies and services, You have thus acted in a manner prejudicial to the maintenance of supplies and services essential to the companymunity. After giving what is marked as ground number 1 only, implying thereby that there was numberother ground of detention, the document proceeds You are hereby informed that you may make a representation to the State Government against the detention order and that such representation shall be addressed to the Assistant Secretary Home Special Department, Government of West Bengal and forwarded through the Superintendent of the Jail in which you have been detained as early as possible. Under Section 10 of the Maintenance of Internal Security Act, 1971 Act 26 of 1971. your case shall be placed before Advisory Board within thirty days from the date of your detention under the order. You are also informed that under Section 11 of the Maintenance of Internal Security Act, 1971 Act 26 of 1971 the Advisory Board. shall if you desire to be so heard, hear you in person, and, if you desire to be so heard by the Advisory Board, you shall intimate such desire in your representation to the State Government. An annexure to the affidavit filed by a Special Secretary in the, Home Department of the Government of West Bengal, who was the District Magistrate companycerned when the impugned detention order was made against the petitioner,is a companyy of the petitioners representation addressed to the Government In the representation as Well as in the petition before us, the petitioner asserts that the allegations against him are absolutely untrue In his application to this Court he states that it is palpably false and impracticable to allege that the petitioner with some associate companymitted theft of some tea chests from a running, wagon and that he fled When challenged, leaving behind three chests of tea at the P.O Be that as it may, it is difficult to understand what is meant by the P.O. In his representation to the Government, the petitioner had submitted that there was numberevidence that he was identified by anybody as a participator in the incident. In the affidavit in opposition to the petition, the official companycerned, who had passed the detention order, stated The running goods train as stated therein actually means a goods train which bad companye to a stop due to traffic restriction and number actually a running one as sought to be suggested by the petitioner. The affidavit also companytained the statement It appears from the records that the petitioner is a numberorious wagon breaker operating near Dum Dum Junction Railway Station. Learned Counsel appearing for the State of West Bengal was asked to explain how the petitioner companyld possibly make an effective representation against his detention when the District Magistrate had a stationary train in mind which he actually described as a running goods train in the grounds of detention, when it was number indicated what was meant by the P.O., and when the allegation that the petitioner was a numberorious wagon breaker operating near Dum Dum Junction Railway Station was never companymunicated to him although it, apparently, formed one of the grounds on which the detention was ordered. In reply, learned Counsel for the State of West Bengal stated that he had the whole record before him on which the detention was ordered and be placed that record before us. We were unable to find any mention in this record that the petitioner was a numberorious wagon breaker. On the other hand, we found a description there of the modus operandi of a gang of thieves operating on passenger trains which used to deprive the passengers of their trunks and other goods while one, of the members of the gang sat near the passengers with a newspaper spread out in front of him which would, read out loudly to distract their attention and used also to obstruct their view. It is mentioned there that the activities of this gang companymenced after the incident of 11-10-1972. it is also mentioned there that a number of incriminating articles were recovered from members of this gang of thieves including the petitioner and that prosecutions were pending against them. It is true that the incident which occured at about 2 a.m. company11-10-1972, forming the ground of detention, is also mentioned in the record but, there is numberindication as to how any information whatsoever came to the District Magistrate from any source whatsoever that the petitioner- was a member of the gang which was companycerned with such an incident,Presumably, this was the whole record as learned Counsel for the State informed us. This makes the petitioners assertion, that be, was number only, arrested on 20-10-1972 for reasons number disclosed to him, but, when sufficient evidence companyld number be found against him by the local officials, a, detention order was made on a ground companyered by the Act. which companyld be companyveniently trotted out at-the time seem plausible. Deprivation of a citizens personal liberty is a serious matter Those exercising drastic powers of preventive detention, which are entrusted to them for protecting valuable social and public interests, should at least take care to ascertain whether a detention is being ordered in a manner and on materials Which disclose that it is really necessary to order a detention with a view to preventing the person to be detained from acting in any manner prejudicial to the objects for which preventive detention may be lawfully ordered. If they misuse these powers, by acting unreasonably, capriciously, arbitrarily, or in a malafide manner, public companyfidence in them is shaken. We are unable to say whether the District Magistrate acted unreasonably in making the detention order. But, presuming that, whatever was in the record operated, as learned Counsel for the State asserted, against the petitioner, he should have been given fuller information of allegations against him. It is number explained why this was number done. We are number companycerned here with the adequacy or sufficiency of a ground of detention. There, is clearly a nexus between tile sole ground for detention given and the maintenance of essential supplies and services. But, as indicated above, we have found that matters which were never companymunicated to the petitioner also appear to have been taken into account while ordering the detention of the petitioner. Further more the sole ground of detention is vague in ,so far as it is number apparent what is meant by the words -the P.O. Recently, it was held by this Court.in Probhu Dayal Deorah Vs. District Magistrate, Kamrup Ors., 1 that vagueness of a single ground companyld vitiate a detention order. The groundsgiven companyld number, in our. opinion enable the petitioner to effectively exercise his companystitutional right of making a representation against his detention.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 548 of 1970. Appeal by Special Leave from the. Award dated the 29th January, 1970 of the Industrial Court, Maharashtra, Bombay, in reference IC No. 2 of 1969. B. Pai, Prakash Mehta, O. C. Mathur and P. C. Bhartari, for the appellant. K. Swami, P. H. Parekh and S. Bhandare, for the respon- dent. The Judgment of the Court was delivered by- GOSWAMI, J. This appeal by special leave is directed against an award of the Industrial Court, Maharashtra hereinafter referred to for brevity as the Tribunal of 29th January,. 1970. There was a .reference by the Mill Mazdoor Sabha, Bombay briefly the Sabha under section 73A of the Bombay Industrial Relations Act, 1946, in pursuance of a numberice of change dated 22nd August, 1968. The Sabha demanded revised basic wages for the time-rated workmen of several categories and also a rise of 50 in the wage of the piece-rated workers in the Consumers Price Index bracket 621-636 old series . The Sabha also demanded dearness allowance of 10 paise per day for every rise of 10 points or part thereof above the said siab. They also claimed the benefits retrospectively from 1st June, 1968. The Sabha submitted its statement of claim on 14th February, 1969. It appears that the appellant is a partnership firm which was companystituted and companymenced production in April 1967. The firm manufactures and sells nylon and hosiery goods such as socks, undergarments, and the like. It is registered with the Maharashtra State Directorate of Industries as a small scale industry. Prior to April 1967, all the partners of the appellant were partners of a firm known as M s. Hindustan Hosiery Factory. That firm again was companystituted and companymenced business on and from 15th December, 1963, after the dissolution of India Hosiery Factory on 14th December, 1963, due to differences amongst the partners. On the same date, some other partners of India Hosiery Factory companystituted another firm known as Stretchlon Private Ltd. While Stretchlon Private Ltd. companytinued to function, Hindustan Hosiery Factory was closed in August 1966 and the appellant companystituted and companymenced business in the name- ,and style of Hindustan Hosiery Industries with effect from 17th April, 1967, on which date another firm also companymenced business under the name and style of Hindustan Hosiery Mills. It appears that all these three firms, namely, Stretchlon Private Ltd., the appellant and the Hindustan Hosiery Mills are off shoots of the India Hosiery Factory with a companyplement of 800 workmen which was actually the pio- neer in the industry. The Sabha companytended before the Tribunal that the companysolidated wages paid to the employees were extremely low. According to the Sabha, the time-rated workmen got as low a wage of Rs. 2.50 per day And never higher than Rs. 3.50 per day. The piece-rated workers, who, according to the Sabha, are skilled workers, earned between Rs. 61- and Rs. 71- per day. The Sabha, therefore, claimed I, revision of the wages of both the categories. The appellant resisted the claim. According to the appellant,, it is a new companycern and has employed some of the workers of the Hindustan Hosiery Factory. The average daily wages of the piece-rated jobs vary from Rs. 6/- to Rs. 10120 per day and are adequate. The work involved in the jobs is number of highly skilled nature. The appellant further companytended that the companypany was only of two years standing and the wages paid by it are higher than those earned by employees of other companycerns in the industry. Its financial position also cannot be assessed as it is hardly two year old. The demands are excessive and the appellant cannot bear the additional burden arising out of these demands. The appellant has in its employment about 250 workers. The Tribunal had before it a statement Ext. C-2 filed by the appellant showing the number of employees receiving wages below Rs. 5/- per day, another statement Ext. C-3 with regard to the other employees and also the books filed by the appellant and observed that many of the piece-rated and time-rated employees got as low a wage as Rs. 4.60 per day and Rs. 2.50 per fay respectively. It, therefore, held that on the face of it the wages provided for the workmen of the factory appear to be inadequate and low and even in a loss-making companycern such wages have to be raised. The appellant started its business on 17th April, 1967. The Tribunal found from the statement, Ext. U-1, filed by the Sabha regarding its financial position that the appellant earned substantial profits in the period of 8 months In 1967 and in 1968. The Tribunal found that during the period of 20 months since April, 1967, the appellant has earned a profit of Rs.1,51,000/- in eight months of 1967 and Rs. 1,88,000/-- in 1968. These profits are after deduction of depreciation, interest and bonus. The Tribunal observed that the appellant having a capital of Rs. 2,28,000/- in 1967 and Rs. 3,42,000/- in 1968 was prosperous and its financial position was sound. The Tribunal also observed that the wages paid to the employees on the piece-rate and the timerate are very low and require revision, The appellant wanted the Tribunal to follow the wage scale of William Industries submitted by the appellant as per Ext.C.1. But the Tribunal in the absence of any details with regard to the financial position of that companypany or its profit making capacity, did number companysider it appropriate to companysider that as a companyparable unit. The Sabha, on the other hand, companytended that the appellant was more prosperous than Stretchlon Private Ltd. and produced an award of the Industrial Court in the case of Stretchlon Private Ltd. dated 10th April, 1967, published in the Maharashtra Gazette of 11th May, 1967. It appears that the demand for increase of wages in the case of Stretchlon Private. Ltd. was made in 1966 within three years of its functioning from 15th December, 1963, and before the Industrial Court in that case profit and loss accounts for the years 1963-64 and 1964-65 were made available. It further appears that in the said award the, Industrial Court took numbere of the position of three other smaller companycerns, some of which were even running at a loss and still were paying wages higher than the Stretchlon Private Ltd. The Industrial Court, therefore, awarded Rs. 5/- per day as a reasonable and fair minimum wage to the Stretch on employees of the lowest category in the Consumers Price Index bracket 621-630. Although the Sabha in this case has asked for different rates of basic wages for employees in five categories, the Tribunal directed that the first 13 categories being the lowest paid workers should receive Rs. 5/- per day in the Index bracket 621-630. The next group serial Nos. 14 to 19 were given Rs. 5.50 per day in the same bracket, serial Nos. 20-21 were given Rs. 7/- per day, serial No. 22 Rs. 7.50 per day and serial No. 23 Rs. 8.50 per day in the aforesaid bracket. The Tribunal also granted for every rise of 10 points or part thereof, above the index bracket 621-630, dearness allowance at the rate of 10 paise per day. With regard to the claim for 50 rise in piece-rates, the Tribunal only granted 30 in the Index bracket 621-630 and the same dearness allowance as above. The Tribunal also granted the benefits retorspectively with effect from 1St February, 1969. It is companytended on behalf of the appellant that the Tribunal erred in ignoring the difference between minimum wage and fair wage. It is submitted that the Tribunal was in fact granting fair wage and did number take into account the well- settled relevant factors into companysideration in making the award. The appellant emphasises that the Tribunal absolutely ignored the aspect of the capacity of the appellant to bear the burden of the additional rise in wages on account of this award. The appellant also submitted that the Tribunal ought number to have ignored the settlement with regard to wage arrived at by the Hindustan Hosiery Mills with the Sabha. By that settlement, the said partnership firm companystituted by the other group of partners of Hindustan Hosiery factory agreed with the Sabha to give an increase of Re. 1/- per day ill the wages of the workers getting Rs. 5/- per day or less and an increase of 50 paise per day in the wages of the workers getting more than Rs. 5/- per day. The appellant was prepared to allow this increase which would have imposed an additional burden of Rs. 56,022/per year. The respondent, on the other hand, submits that the Tribunal has awarded only minimum wage. Even if it is assumed that the wage awarded is a little higher than the minimum wage, it is certainly lower than the lowest level of the fair wage. The learned companynsel submits that in order to allow the wage increase the Tribunal had before it materials from the evidence furnished in the Stretchlon award as well as the trend of wage rates with which the Tribunal must be expected to be familiar in the region and in the industry. It is well settled that numberindustry can be allowed to carry on its business if it is unable to pay the minimum wage to its employees. The industry with which we are companycerned is, however, number a scheduled industry in which the State Government has fixed any minimum wage under the Minimum Wages Act. The appellant submitted from certain Gazette Notifications the minimum rates of wages prescribed by the State Government in case of some eight different industries between the years 1969 and 1972 where the monthly wages have been fixed between Rs. 90/- and Rs. 128/- per month. The appellant submits that there is numberjustification whatsoever for allowing the present increase of wages without following any principle and even higher than the statutory minimum wage fixed in respect of other industries in the, State. In the written statement filed before the Court the Sabha stated in paragraphs 5 and 6 as follows The present wages of both the piece- rated and time rated workers are excessively low and are much lower than those companysidered to be the absolute minimum payable by any employer to his workers in the Bombay Region. These wages are also much lower than those paid by companyparable companycerns in the Industry. The Second Party Concern is well in a position to bear the additional burden that may be placed upon it by the revision of the wages and the grant of dearness allowance as demanded by the Sabha. The appellant, however, in para 5 of their written statement before the Tribunal stated that it companyld number bear the additional burden which may arise on account of the revision of wages and D.A. as demanded by the first party and submits that for awarding wages and also D.A. it is number only the ability but also the stability of the companycern which should be companysidered by this Honourable Court. These being the rival companytentions of the parties before the Tribunal, it was required to companysider whether it was a case of bare minimum wage or some thing higher than it. From a perusal of the award, we are clearly of opinion that the Tribunal was companysidering the case from the point of view of. granting something higher than the subsistence or bare minimum wage bordering on fair wage. We, have reached this companyclusion since the yardstick of the present award is the Stretchlon Award which was obviously seeking to determine rather some kind of fair wage as will be clear from the following extract from that Award - It the companypany can, therefore offer to pay higher minimum wages to lowest category of employees. On due companysideration of all the relevant facts and circumstances I find that Rs. 5/- per day should be the, reasonable and fair minimum wage to the lowest category of employees of the companypany. Coming to the piece-rates also the Tribunal did number give any specific reasons for awarding 30 increase as against the demand of the Sabha for 50 rise in addition to Dearness Allowance. The Tribunal, however, observed that this increase would give adequate average daily earnings to the piece-rated employees. This increase would bring the emoluments near the level of minimum wage payable in the region and it would number place a very heavy burden on the employer. We will number companysider the principles settled by this Court in the matter of wage fixation. In Express Newspapers Private Ltd., and Another v. The Union of India and Others , , this Court was companysidering in an exhaustive judgment, inter alia, the companycept of minimum wage, fair wage and living wage and approvingly quoted from page 9, para 10, of the Report of the Committee on Fair Wages, to the following effect We companysider that a minimum wage must provide number merely for the bare sustenance of life but for the preservation of the efficiency of the worker. For this purpose, the minimum wage must also provide for some measure of educa- tion, medical requirements and amenities. This Court further observed There is also a distinction between a bare subsistence or minimum wage and a statutory minimum wage. The former is a wage which would be sufficient to companyer the bare physical needs of a worker and his family, that is a rate which has got to be paid to the worker irrespective of the capacity of the industry to pay. If an industry is unable to pay to its workmen atleast bare minimum wage it has numberright to exist, See Messrs Crown Aluminium Works. v. Their Workmen 1 . It was further observed The statutory minimum wage however is the minimum which is prescribed by the statute and it may be higher than the bare subsistence or minimum wage, providing for some measure of education, medical requirements and amenities, as companytemplated above While the lower limit of the fair wage must obviously be the minimum wage, the upper limit is equally,- set by what may broadly be called the capacity of industry to pay. This will depend number only on the present economic position of the industry but on its future prospects It will be numbericed that the fair wage is thus a mean between the living wage and the minimum wage and even the minimum wage companytemplated above is something more than the bare minimum or sub- sistence wage which would be sufficient to companyer the bare physical needs of the worker and his family, a wage, which would provide also for the preservation of the efficiency of the worker and for some measure of education, medical requirements and amenities This companycept of minimum wage is in harmony with the advance of thought in all civilised companyntries and approximates to the statutory minimum wage which the State should strive to achieve having regard to the Directive Principle of State Policy mentioned above. It was further observed It will also be numbericed that the companytent of the expression minimum wage, fair wage and living wage is number fixed and static. It varies and is bound to vary from time to time. With the growth and development of national economy, living standards would improve and so would our numberions about the respective categories of wages expend and be more prog- ressive. In Kamani Metals Alloys Ltd. v. Their Workmen 2 , this Court observed as follows - Fixation of a wage-structure is always a delicate task because a balance has to be struck between the demand of social justice which requires that the workmen should receive their proper share of the national income which they help to produce with a view to improving their standard of living, and the depletion which every increase in wages makes in the profits as this tends to divert capital from industry into other channels thought to be more profitable. The task 1 1958 S.C,.R.651 quoted in 1959 S.C.R. 12. 2 1958 2 S.C.R. 463, 467. is number, rendered any the easier because companyditions vary from region to region, industry to industry and establishment to establishment. To companye with these differences certain principles on which wages are fixed have been stated from time to time by this Court. Broadly speaking the first principle is that there is minimum wage which, in any event, must be paid, irrespective of the extent of profits, the financial companydition of the establishment or the availability of workmen on lower wages. This minimum wage is independent of the kind of industry and applies to all alike big or small. It sets the lowest limit below which wages cannot be allowed to ,ink in all humanity. The second principle is that wages must be fair, that is to say, sufficiently high to provide a standard family with food, shelter, clothing, medical care and education of children appropriate to the workman but number at a rate exceeding his wage earning capacity in the class of establishment to which he belongs. A fair wage is thus related to the earning capacity and the workload. it must, however, be realised that fair wage is number living wage by which is meant a wage which is sufficient to provide number only the essentials above-mentioned but a fair measure of frugal companyfort with an ability to provide for old age and evil days. Fair wage lies between the minimum wage, which must be paid in any event, and the living wage, which is the goal In Hydro Engineers Private Ltd. v. Their Workmen, 1 this Court observed as follows It is thus clear that the companycept of minimum wages does take in the factor of the prevailing companyt of essential companymodities whenever such minimum wage is to be fixed. The idea of fixing such wage in the light of companyt of living at a particular juncture of time and of neutralizing the rising prices of essential companymodities by linking up scales of minimum wages with the companyt of living index cannot, therefore, be said to be alien to the companycept of a minimum wage. In M s. Jaydip Industries, Thana v. The Workmen, 2 this Court referred to the observation in an earlier decision of this Court in U. Unichoyi v. State of Kerala, 3 as follows Sometimes the minimum wage is described as a bare minimum wage in order to distinguish it from the wage structure which is subsistence plus or fair wage, but too much emphasis on the adjective bare in relation to the mini- mum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to companyer his bare physical needs and keep himself just above starvation. That clearly is number intended by the companycept of minimum wage. On the other hand, since the capacity of the employer to pay is treated as irrelevant, it is but right 1 1 L. L. J. 713,716. 2 1972 1 L. L. J. 244, 247. 3 1962 1 S. C. R. 957 quoted in 1972 L. L. J. 244, 247. that numberaddition should be made to the companyponents f the minimum wage near the lower level of the fair wage, bout the companytents of this companycept must ensure for the employee number only his sustenance and that of his family but must also preserve his efficiency as a worker. In M s Unichem Laboratories Ltd. v. The Workmen 1 the Court further observed as follows - in the fixation of wages and dearness allowance the legal position is well established that it has to be done on an industry-cum-region basis having due regard to the financial capacity of the unit under companysideration industrial adjudication should always take into account, when revising the wage structure and granting dearness allowance, the problem of the additional burden to be imposed on the employer and ascertain whether the employer can reasonably be called upon to bear such burden As pointed out in Greaves Cotton and Co. and others v. Their Workmen 2 . One of the principles to be adopted in fixing wages and dearness allowance is that the Tribunal should take into account the wage scale and dearness allowance-prevailing in companyparable companycerns carrying on the same industry in the region. From an examination of the decisions of this Court, it is clear that the floor level is the bare minimum wage or subsistence wage. In fixing this wage, Industrial Tribunals will have to companysider the position from the point of view of the worker the capacity of the employer to pay such a wage being irrelevant. The fair wage also must take numbere of the economic reality of the situation and the minimum needs of the worker having a fair-sized family with an eye to the preservation of his efficiency as a worker. Wage fixation is an important subject in any social welfare programme. Wage cannot be fixed in a vacuum and has necessarily to take numbere of so many factors from real life a worker lives, or is reasonably expected to live or to look forward to with hope and fervency in the entire social companytext. It is obvious that some principles have to be evolved from the companyditions and circumstances of actual life. Piece rate is what is paid of results or outturn of work which is often described as a task. There is greater companysideration to quantity in fixing piece rates in some particular types of work in sonic industries with a guaranteed minimum. The same standard may number be appropriate in all types of piece work. With reference to particular work the importance of man rather than the machine employed may have to be dealt with differently. Even in piece rates it will be necessary to look around to find some companyrelation with time rates of the same or similar class of workers, for example the companytribution of the worker to the job, the nature of the work, the part 1 1972 L.L.J 576, 590, 591. 2 1964 5 S. C. R. 362 quoted in 1972 1 L. L. J. 576. played by the machine, the incentive to work and above all protection against any creation of industrial unrest because of the existence side by side of two categories of workers, particularly if there is numberpossibility of transfer of labour from one type of work to the other from time to time, Again there may be sonic work where special skill of the worker with or without machine may be necessary and that factor will have to be then companysidered. It will vary from industry to industry and from the process to another. No hard and fast rule can be laid down number is it possible or helpful. The Tribunal, in an industrial adjudication, will have to see that piece-rates do number drive workers to fatigue to the limit of exhaustion and hence will keep an eye on the time factor in work. Then again a guaranteed minimum may also have to be provided so that for numberfault of a diligent worker he does number stand to lose on any account. There may be a misty penumbra which has got to be pierced through upon all available materials on record and also on what the Tribunal, in fairness. can lay its hands on, with numberice to the parties, for the purpose of fixing the Piece- rates balancing all aspects. We have only indicated broadly the bare outlines of approach in a matter so involved and sensitive as wage fixation particularly when numberone at the present time can shut ones eyes to the rising spiril of prices of essential companymodities. The central figure in the adjudication, however. is the wage-earner who should have a fair deal in the, bargainin a real sense as far as can be without at the same time ignoring the vital interests of. the industry whose viability and prosperity are also the mainstay of labour. How the various companypeting claims have to be balanced in a given case should mainly be the function of in ippartial adjudicator in an industrial proceeding unless the legislature chooses to adopt other appropriate means and methods. Article 136 of the Constitution does number create a right of appeal in favour of any Person. It companyfers power on the Court which should number be so exercised as to companyvert the Court into a Court of appeal. Industrial Disputes Act is intended to be a self-contained one and. it seeks to achieve special Justice on the basis of companylective bargaining companyciliation, and arbitration. Awards are given on circumstances peculiar lo each dispute and the tribunals are, to a large extent, freefrom the restrictions of technical companysiderations imposed on companyrts. A free and liberal exercise of the power under Article 136 may mate- rially affect the fundamental basis of such decisions, namely quick solution to such disputes to achieve industrial peace. Though Article 136 is companyched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases, where awards are made in violation of the principles of natural justice, causing substantial and grave injustice to Parties or raises an impotant principle of industrial law requiring elucidation and final decision by this Court or disclosures such other exceptional or special circumstance which merit the companysideration of this Court. Per Subba .Rao, J. in Reneal Chemical and Pharmaseutical Works Ltd. v. Their Workmen 1 . None of the arguments raised by the appellant should be sufficient to persuade the Court to interpose relief in its favour 1 1959 Supp. 2 S. C. R. 136 at 140. on tile facts and circumstances of this case. It is number quite Correct to say that the Industrial Court has number followed the principles of wage-revision expounded by this Court. The Industrial Court has taken into account the prevailing minimum wage rates in the region, and the capacity of the appellant to bear the burden of the increased wages. Counsel for the appellant companyld number show to us that the wage rates fixed by the Industrial Court are unfair for the appellant or that it cannot bear the load of increased wages. The wages of the piece rated workmen had to be increased in line with the in,creased wages of the time-rated workmen with the object of avoiding discrimination and heart-burning among workers and maintenance of industrial peace among them. Taking a companyprehensive view of the facts and circumstances of the case, we are satisfied that numberintervention is called for with the award. In the result, the appeal is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1741 of 1967. Appeal by special leave from judgment and order dated the 30th November, 1962 of the Mysore High Court at Bangalore in Writ Petition No. 777 of 1961. K. Krishna Menon, M. Veerappa and S. P. Singh, for the appellant. B. Datar and M. L. Verma, for the respondent. The Judgment of the Court was delivered by ALAGIRSWAMI, J.-The respondents ancestors had been granted a cash allowance called Tainat by the Peshwas. After the, defeat of the Peshwas by the British, by the Treaty of Gulgallee with Jainkhandi dated 6-6-1819 by the Honble Mr. Elphinston, Governor of Bombay on behalf of the East India Company one of the terms which were granted to Gopalrao Jamkhandikar was regarding the terms which the held from the Government of His Highness the Peshwa, for the payment of his, companytingent apparently army of his personal allowance. It stated that he was to companytinue all allowances and numbercomplaints on. this head were to be suffered to reach the Government East India Company . The allowance to respondents ancestors was one- such allowance. This allowance seems to have amounted to a sum Rs. 2010/- minus a sum of Rs. 240/- being the companymutation amount as shown in Petha Khata Wahi Extract of 1942-43. That exact, also at this grant was permanent. But. in 1944 the then ruler of Jamkhandi seems to have companyverted this allowance to one for life. After the Jamkhandi State was merged in the State of Bombay, the, Bombay Legislature passed the Bombay Merged Territories Mislaneous Alienations. Abolition Act 1955. The respondents filed an application on 21-7-1956 under s. 17 of that Act before the Assistant Commissioner, Jamkhandi claiming that the cash allowance be payable was both permanent and hereditary but he learnt that the ruler Jamkhandi had passed an order that the said cash allowance be companytinued till his appellantts The time when the same was to him after the death of his father. He mentioned that he had moved the Rajasaheb by an application which was number finally disposed of. He, therefore. claimed that he would be entitled to Rs. 21.000/- at 7 times of the cash, allowance on the basis that it was Rs. 3,000/- a year and permanent or in the alternative to Rs. 9 000/- being three times the cash allowance on the basis that it was payable for. life. It would be appreciated that by, this time the Ruler of Jamkhandi was numberlonger a Ruler and was certainly number in a posi- -L954SupCI/74 tion to ,be of any assistance to the. respondent on the basis of his application. The Assistant Commissioner passed an order granting a sum which the respondent was receiving. The respondent then filed an appeal to the Mysore Revenue Appellate Tribunal as by that time the area had become part of the Mysore State. In that appeal he mentioned that through mistake his name has been recorded as holder of the Tainat cash allowance for life only. He also mentioned that his application to the Rejasaheb of Jamkhandi for companyrection of the mistake was still pending even though the state of Jamkhandi was merged. The Tribunal dealt with the argument before it on behalf of the respondent to the effect that the ruler of Jamkhandi had numberpower to change the. cash allowance to one for life as according to his own earlier order passed in the year 1909-10 it was permanent and in the view that the ruler of Jamkhandi had sovereign powers and was the fountain head of all source of authority, that is. executive, judiciary and legislature, he companyld change the Tainat cash allowance at his sweet will and pleasure, dismissed the appeal. The respondent thereupon filed a writ peytition No. 777 before the High Court of Mysore. rhere also he stated that through mistake his name was recorded as the holder of the cash allowance for life only, and also urged that the ruler of the JamState had numberpower to interfere with the Tainat cash allowance. The High Court did number deal with the question whether the Ruler of Jamkhandi had, in 1944, the power to companyvert a hereditary grant to one for life but directed that a sum of Rs. 14,070 being seven times annual cash allowance of Rs. 29010 be paid to the respondent on ,the basis that the.grant was hereditary. This appeal is against that judgment and order of the High Court. We are of opinion that clearly the decision of the Mysore High Court is wrong. In Ameer-un-Nissa Begum v. Mahboob Begum AIR 1953 SC 352 this Court stated the companystitutional position of the Nizani of Hyderabad in these words It cannot be dispute that prior to the integration of Hyderabad State with the Indian Union and the companying into force of the Indian Constitution,the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature the supreme judiciary and the supreme head of the executive, and there were numberconstitutional limitations upon his authority to act in any of these capacities. The Firmans were expressions of the sovereign will of the Nizam anti they Were,binding in the same way any other law- nay, they would override all other laws which were in companyflict with them. So long as a particular Fireman, hdld the field that alone would govern or regulate the rights of the parties companycerned, though it companyld be annulled or modi-fied by a later Firman at any time that the Nizam willed. The, Nizam war, number only the supreme legislature, he was the fountain of justice as well.,When he companystituted a new Court, be companyld, according to ordinary numberions, be deemed to have exercised his legislative authority. When again he affirmed or reversed a Judicial decision, that may appropriately be described as a judicial act. A rigid line of demarcation, however. between the one and the other would from the very nature of things be number justified or even possible. That sets out the companystitutional position of the ruler of every of the Indian States before their integration with the rest of India and companying into force of the Constitution of India. It follows therefore that if the ruler of Jamkhandi had changed the permanent cash allowance granted to the respondents ancestors to one for life it is legally valid and it cannot be questioned. The extract from the Jamkhandi State Gazette dated 7-8-1920 publishing rules regarding cash allowance, itself shows that those rules cancelled the earlier rules and those rules also companyld be appropriately cancelled by the subsequent rules. Any application made by the respondent to the former ruler of Jamkhandi after the State was merged in Bombay State will number help him. The ruler held by that time lost all his powers. The decision of the Mysore Revenue Appellate Tribunal is, therefore, right. There is only one small point which has got to be mentioned. The companypensation allowed was three times the cash allowance. As already mentioned the Petha Khata Wahi extract shows the allowance at Rs. 2010.00 minus Rs. 240.00 being the companymutation amount. These allowances being service allowances, the deduction is for the payment to the person who was doing the service in place of the cash allowance holder. That is why what was being paid to the respondent year after year was the cash allowance minus companymutation amount. The Mysore High Court was, therefore, wrong in holding that this sum of Rs. 240 cannot be deducted from the cash allowance while calculating the companypensation payable to the respondent. We must mention that when this appeal was take,,,. up for hearing Mr. Datar appearing for the respondent companytended that as this Court in M.P. State v. Ranojirao 1968 3 SCR 489 has held that the Madhya Pradesh Abolition of Cash Grants Act violates Art. 19 1 f or Art. 31 2 of the Constitution, and so struck it down, the Bombay Merged Territories Miscellaneous Alienation Abolition Act is also liable to be struck down on the same ground. He, therefore, wanted that tic should be given the liberty to move the High Court for striking down the Act under companysideration in this case. We do number propose to express any opinion as to whether it would be open him to do so in the background of this case. There is numberhing to prevent him from filing an application if he is so advised., In the result this appeal is allowed and the judgment and order of the High Court of Mysore set aside.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1330 of 1973 Appeal by special leave from the Judgment and Order dated the 22nd January, 1973 of the Delhi High Court in I. A. No. 1854 of 1972 in Suit No. 485 A of 1972 and Civil Appeals Nos. 1224 1225 of 1973. Appeals by special leave from the Judgment and Order dated the 15th November, 1972 of the Delhi High Court in I. A. Nos. 846 and 119 of 1972 in Suit No. 158 of 1971. N. Sinha, Solicitor General of India Shyamala pappu P. Nayar for the appellant in all the appeals G. Singhania, M. K. Garg and Shiv Khurana for respon- dent in C. A. 1330 D. Sharma for respondent in C.A.s. 1224-1225 The Judgment of the Court was delivered by BHAGWATI, J.-These appeals, raise an interesting question relating to the interpretation of cl. 18 of the General Conditions of Contract companytained in the Standard Form of Contract No. D.G.S. D. 68. That is the standard form in which companytracts are entered into by the Central Purchase Organisation of the Government of India for purchase of stores from third parties described as companytractors and the question of interpretation which arises for determination is, therefore, one of some importance, affecting as it does a large number of people who enter into such companytracts with the Government of India. The facts giving rise to these appeals follow a companymon pattern and it would, therefore, be sufficient if we set out the facts relating to civil appeals Nos. 1221 and 1225 of 1973. They bring out clearly the point which arises for companysideration in all the three appeals. The respondent tendered for supply of certain quantity of foam companypound to the appellant and its tender was accepted by the appellant by acceptance of Tender dated 16th July, 1968. The Acceptance of Tender was subject to the General Conditions of Contract companytained in the Standard Form of Contract No. D.G.S. D. 68. The only clauses of the General Conditions of Contract which are material for our purpose are cls. 18 and 24 and they read as follows RECOVERY OF SUMS DUE Whenever any claim for the payment of a sum of money arises out of or under the companytrat against the companytractor, the purchaser shall be entitled to recover such sum by appropriating in whole or in part, the security, if any, deposited by the companytractor, and for the purpose aforesaid, shall be entitled to sell and or realise securities forming the whole or part of any such security deposit. In the event of the security being insufficient, the balance and if numbersecurity has been taken from the companytractor, the entire sum recoverable shall be recovered by appropriating any sum then due or which at any time thereafter may become due to the companytractor under the companytract or any other companytract with the purchaser or the Government or any person companytracting through the Secretary, if such sum even be number sufficient to companyer the full amount recoverable, the companytractor shall on demand pay to the purchaser the balance remaining due. ARBITRATION In the event of any question, dispute,or difference arising under these companyditions or any special companyditions of companytract, or in companynection with this companytract, except as to any matters the decision of which is specialty provided for by these or the special companyditions the same shall be referred to the sole arbitration of an Officer in the Ministry of Law, appointed to be the arbitrator by the Director General of Supplies Disposals. It will be numberobjection that the arbitrator is a Government Servant, that he had to deal with the matters to which the companytract relates or that in the companyrse of his duties as a Government servant he has expressed views on all or any of the matters in dispute or difference. The award of the arbitrator shall be final and binding on the parties to this companytract. Work under the companytract shag, if reasonably possible, companytinue during the arbitration proceedings and numberpayment due to or payable by the purchaser shall-be withheld on account of such proceedings. The performance of this companytract ran into difficulties and a dispute arose between the parties giving rise to claims by either party against the other. The respondent companytended that the appellant had companymitted a breach of the companytract and was, therefore, liable to pay to the respondent a sum of Rs. 2,35,800/- by way of damages. suffered by the respondent by reason of the breach of the companytract. The appellant, on the other hand, said that it was the respondent who had companymitted the breach, of the companytract and was liable to pay to the appellant by way of damages a sum of Rs. 2.28,900/- under clause 14 of the General Conditions of Contract. The Assistant Director of Supplies by his letter dated 30th March, 1971 called upon the respondent to make payment of the amount of Rs. 2,28,900/and intimated that if the respondent failed to do so on or before 30th April, 1971, the Pay and Accounts Officer, New Delhi Madras would be authorised to recover the, same from the pending bills of the respondent in respect of other companytracts. This dispute between the parties being a dispute arising out of the companytract was liable to be settled by arbitration under cl. 24 of the General Conditions of Contract and the respondent, therefore, filed an application. in the Delhi High Court under s. 20 of the Indian Arbitration Act for filing the Arbitration Agreement companytained in that clause. The respondent also, at the same time, made an application to the Delhi High Court for an interim injunction restraining the appellant from recovering the amount of damages claimed by it from the pending bills of the respondent. This application was, however, rejected by the Delhi High Court on the ground that it was number shown that there were any pending bills of the respondent at that time out of which the threatened recovery companyld be made by the appellant. The application under s. 20 of the Indian Arbitration Act was thereafter heard by the Delhi High Court and by an order dated 5th May, 1972 the Delhi High Court allowed that application and ordered the arbitration agreement companytained in cl. 24 to be filed and made an order of reference to arbitration in accordance with the arbitration agreement. The claim of the respondent against the appellant for Rs. 2,35,800/- and the companynter-claim of the appellant against the respondent for Rs. 2,28,900/- thus became the subject matter of reference tO arbitration. During the pendency of the arbitration some amounts became due and payable by the appellant to the respondent in respect of other companytracts entered into between the parties. In view of the letter dated 30th March, 1971 the respondent apprehended that the appellant would appropriate these amounts towards recovery of the amounts of damages claimed by it even though the claim for damages was disputed by the respondent and was pending adjudication before the arbitrator. The respondent, therefore, made interim Application No. 119 of 1972 to the Delhi High Court on 17th January, 1972 under s. 41 read with the Second Schedule to the Indian Arbitration Act, 1940 praying that the status quo should be maintained and the appellant should be restrained from recovering its claim for damages from the amounts due and payable by the appellant to the respondent in respect of the pending bills. How it appears that this Interim Application No. 119 of 1972 was made in the Original Application under s. 20 of the Indian Arbitration Act, 1940 and the appellant, therefore, raised a technical objection that the Original Application under s. 20 having been disposed of, Interim Application No. 119 of 1972, as filed, companyld number be maintained. The respondent, in view of this technical objection raised on behalf of the appellant, filed another Interim Application No. 746 of 1972 as an independent application under s. 41 read with the Second Schedule to the Indian Arbitration Act, 1940 on 16th May, 1972 praying for the same interim relief as was claimed in the earlier Interim Application No. 119 of 1972. Both these interim applications were resisted by the appellant relying on cl. 18 of the General Conditions of Contract but Mr. Justice Avadh Bihari of the Delhi High Court, who heard these interim application, took the view that cl. 18 did number authorise the appellant to appropriate. the amounts of any pending bills of the respondent towards satisfaction of its claim for damages against the respondent, unless such claim for damages was either admitted by the respondent or adjudicated upon by arbitration or suit in civil companyrt. The learned Judge accordingly by an order dated 15th November, 1972 allowed both the interim applications and issued an interim injunction restraining the appellant from effecting recovery of the amounts claimed to be due from- the other pending bills of the respondent. The appellant thereupon, with certificates obtained from the Delhi High Court, preferred Civil Appeals Nos. 1224 and 1225 of 1973 in this Court. One appeal was directed against the impugned order in so far it related to Interim Application No. 119 of 1972 and the other in so far as it related to Interim Application No. 846 of 1972. The appellant also preferred Civil Appeal No. 1330 of 1973 against a similar order passed by the learned Judge in Interim Application No. 854 of 1972 in the other case. There are in the main two grounds on which the learned Solicitor General, appearing on behalf of the appellant, challenged the order of Interim injunction made by Mr. Justice Avadh Bihari The impugned order amounted in effect and substance to an order directing the appellant to pay the amounts of the pending bills of the respondent in respect of the other companytracts and since the question of payment of the amounts of such pending bills did number form the subject matter of the reference which was pending before the arbitrator., the learned Judge had numberjurisdiction under s. 41 read with the Second Schedule to make such an order and the impugned order was, therefore, outside the scope of his power and hence invalid., Clause 18 companyes into play when there is a claim for payment of a sum of money arising out of or under the companytract. It is number necessary that the sum of money must be due and payable to the purchaser. It is enough if there is a claim even for damages. Whenever, there is such claim, the purchaser is given a right under cl. 18 to recover it by appropriating any sum then due or which at any time thereafter may become due to the companytractor under the companytract or under any other companytract. The appellant was, therefore, en- titled to recover the amount of its claim for damages against the respondent by appropriating the sums which subsequently became due to the respondent under other companytracts, even though the claim for damages was companytested by the respondent and was pending adjudication before the arbitrator. No interim injunction companyld be granted to prevent the exercise of such right. If interim injunction were to be granted in a case of this kind as of companyrse merely on the ground, without anything more, that the claim for damages is pending adjudication and until it is determined in favour of the purchaser, it should number be allowed to be recovered by the purchaser out of other sums due to the companytractor, it would render cl. 18 meaningless and ineffectual and the tight to the purchaser under that clause would become illusory. of companyrse, it would be open to the companyrt even in such a case to grant interim injunction, if it is satisfied that the claim for damages is prima facie number well founded and the balance of companyvenience requires that, Pending adjudication, the purchaser should be restrained from effecting recovery of the claim for damages from out of other sums due to the companytractor. But here admittedly neither of these two factors was taken into companysideration by the learned Judges and the order of interim injunction made by him cannot, therefore, be sustained. We shall proceed to examine these grounds in the order in which we have set them out. Re Ground A. It was companymon ground between the parties that the order of. interim injunction was made by the learned Judge under s. 41 b read with the Second Schedule to the Indian Arbitration Act, 1940. Now s. 41 b says that the companyrt shall have, for the purpose of and in relation to arbitration proceedings, the same , power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of and in relation to any proceedings before the Court and one of the matters set out in the Second Schedule is interim injunction. The Court has, therefore, power under s.41 b read with the Second Schedule to issue interim injunction, but such interim injunction can only be for the purpose of and in relation to arbitration proceedings. , The arbitration proceedings in the present case were for determination of the mutual claims of the appellant and the respondent arising out of the companytract companytained in the acceptance of Tender dated 16th July, 1968. The question whether any amounts were payable by the appellant to the respondent under other companytracts was number the subject matter of the arbitration proceedings. The Court obviously companyld number, there fore, make an interim order which, though ostensibly in form an order of interim injunction, in substance amounted to a direction to the appellant to pay the amounts due to the respondent under other companytracts. Such an interim order would clearly number be for the purpose of or in relation to the arbitration proceedings as required by s. 41 b . But here the order of interim injunction made by the learned judge does number, expressly or by necessary implication, carry any direction to the appellant to pay the amounts due to the respondent under other companytracts. It is number only in form but also in substance a negative injunction. It has numberpositive companytent. What it does is merely to injunct the appellant from recovering, suo moto, the damages claimed by it from out of other amounts due to the respondent. It does number direct that the appellant shall pay such amounts to the respondents. The appellant can still refuse to pay such amounts if it thinks it has a valid defence and if the appellant.does so, the only remedy open to the respondent would be to take measures in an appropriate forum for recovery of such amounts where it would be decided whether the appellant is liable to pay such amounts to the respondent or number. No breach of the order of interim injunction as such would be involved in number-payment of such amounts by the appellant to the respondent. The only thing which the appellant,is interdicted from doing is to make recovery of its claim for damages by appropriating such amounts in satisfaction of the claim. That is clearly Within the power of the Court under s. 41 b because the claim for damages forms the subject matter of the arbitration proceedings and the Court can always say that until such claim, is adjudicated upon, the appellant shall be restrained from recovering it by appropriating other amounts due to the respondent. The order of interim injunction made by the learned Judge cannot, therefore, be said to be outside the scope of his power under s. 41 b read with the Second Schedule Re Ground B. That takes us to the second ground of challenge against the order of interim injunction. This ground of challenge is based on the proper interpretation of cl. 18. The argument of the appellant was that what is required for attracting the applicability of cl. 18 is a mere claim for payment of a sum of money arising out of or under the companytract against the companytractor and it is number necessary that a sum of money must be actually due and payable from the companytractor to the purchaser. If the purchaser has a claim for payment of a sum of money against the companytractor, he would be entitled to exercise the right given under cl. 18, even though such claim may number be for a sum due and payable but pay be for damages and it may be disputed by the companytractor and may number have been adjudicated upon in a companyrt of law or by arbitration. The purchaser can in such a case recover the amount of his claim, without resort to a companyrt of law or arbitration, by appropriating sums due to the companytractor under the same companytract or under other companytracts, if the claim of the purchaser is number well founded and the appropriation made by him is, therefore, unjustified, the companytractor can always institute a suit or arbitration for recovering the sums due to him which have been wrongly appropriated by the purchaser and in such suit or arbitration,the companyrt or the arbitrator, as the case may be, would examine theclaim against which appropriation has been made bypurchaser and if the claim is found to be unsustainable, set at naught the appropriation and pass a decree or award for the sums due to the companytractor. But the companyrt cannot and should number restrain the purchaserfrom exercising his right of appropriation merely because the claim against which appropriation is sought to be made by the purchaser is disputed by the companytractor and is pending adjudication before a companyrt of law or arbitrator. The companyrt should number prevent the numbermal operation of cl. 18 by interfering with it, unless it appears to the companyrt prima facie that the claim which is sought to be recovered by appropriation is number well founded and the balance of companyvenience lies in favour of restraining the purchaser from recovering it by appropriation. The respondent, however, disputed the validity of this companystruction placed on cl. 18 by the appellant and companytended that though the words used in the opening part of cl. 18 are any claim for the payment of a sum of money, which are general words of apparently wide amplitude sufficient to companyer even a claim for damages arising out the companytract, a proper companystruction of the clause read as a whole clearly suggests that these words are intended to refer only to a claim for a sum due and payable and do number take in a claim for damages which is disputed by the companytractor. It is only when a claim for damages is adjudicated upon by a civil companyrt or an arbitrator and the breach of the companytract is established and the amount of damages ascertained and decreed that a debt due and payable companyes into existence till then it is numberhing more than a mere right to sue for damages and it does number fall within the words of cl. 18. Moreover, cl. 18 merely provides a mode of recovery and it can have numberapplication where a claim, even though it be for a sum due and payable, is dis- puted by the companytractor and has to be established in a companyrt of law or by arbitration cl. 18 applies only where a claim is either admitted,or in case of dispute, substantiated by resort to the judicial process. Therefore, when the purchaser has a claim for damages which is disputed by the companytractor, the purchaser is number entitled under cl. 18 to recover the amount of its claim for damages by appropriating other sums due to the companytractor until the claim for damages is adjudicated upon and culminates in a decree. The appellant in the present case had companysequently numberright under cl. 18 to appropriate sums due to the respondent under other companytracts in satisfaction of its claim for damages against the respondent, when the claim for damages was pending adjudication before the arbitrator and the learned Judge was right in restraining the appellant from doing so by issuing an interim injunction. These were broadly the companytentions of the parties under this head of challenge and the question is which of these rival companytentions is companyrect. It is true that the Words any claim for the payment of a sum of money occurring in the opening part of, cl. 18 are words of great amplitude, wide enough to companyer even a claim for damages, but it is a well settled rule of interpretation applicable alike to instruments as to statutes that the meaning of ordinary words is to be found number. so much in strict etymological propriety of language number even in popular use as in the subject or occasion on which they are used and the object which is intended to be attained. The companytext and companylocation of a particular expression may show that it was number intended to be used in the sense which it ordinarily bears. Language is at best an imperfect medium of expression and a variety of meanings may often lie in a word or expression. The exact companyour and shape of the meaning of any word or expression should number be ascertained by reading it in isolation, but it should be read structurally and in its companytext, for its meaning may vary with its companytextual setting. We must, therefore, read the words any claim for the payment of a sum of money occurring in the opening part of cl. 18 number in isolation but in the companytext of the whole clause, for the intention of the parties is to be gathered number from one part of the clause or the other but from the clause taken as a whole. It is in the light of this principle of interpretation that we must determine whether- the words any claim for the payment of a sum of money refer only to a claim for a sum due and payable which is admitted or in case of disputes, established in a companyrt of law or by arbitration or they also include a claim for damages which is disputed by the companytractor. The first thing that strikes one on looking at cl. 18 is its heading which reads Recovery of Sums Due. It is true that a heading cannot companytrol the interpretation of a clause if its meaning is other- wise plain and unambiguous, but it can certainly be referred to as indicating the general drift of the clauses and affording a key to a better understanding of its meaning. The heading of cl. 18 clearly suggests that this clause is intended to deal with the subject of recovery of sum due. Now a sum would be due to the purchaser when there is an existing obligation to pay it in present. It would be profitable in, this companynection to refer to the companycept of a debt, for a sum due is the same thing as a debt due. The classical definition of debt is to be found in Webb v. Stenton 1 where Lindley, L. J., said a debt is a sum of money which is number payable or will become payable in the future by reason of a present obligation. There must be debitum in praesenti solvendum maybe in praesenti or in future that is immaterial. There must be an existing obligation to pay a sum, of money number or in future. The following passage from the judgment of the Supreme Court of California in People v. Arguello. 2 which, was approved by this Court in Kesoram Industries v. Commissione of Wealth Tax 3 clearly brings out the essential characteristics of a debt Standing alone, the word debt, is as applicable to a sum of money which has been promised at a future day as to a sum number due and payable. If we wish to distinguish between the two, we say of the former that it is. a debt owing, and of the latter that it is debt due. This passage indicates, that when there is an obligation to pay a sum of money at a future date, it is a debt owing but when the obligation, is to pay a sum of money in praesenti, it is a debt due. A sum due would, therefore, mean a sum for which there is an existing obligation to pay in praesenti or in other words, which is presently payable 2 1869 37 Calif. 524 1 1883 11 Q.B.D. 518. 3 1966 2 S.C.R. 688. Recovery-of such sums is the subject matter of cl. 18 according to the heading. That is the dominant idea running through the entire cl.18. The language used in the body of cl. 18 also supports the view that it is with recovery of sums presently due and payable by the ,contractor to the purchaser that this clause deals. It may be numbered that cl. 18 does number lay down the substantive rights and obligations of the parties under the companytract. It is merely intended to provide a mode of recovery of a claim for payment of a sum of money arising out of or under the companytract. It, therefore, postulates a claim for a sum which is due and payable, that is. presently recoverable and may be recovered by the mode therein provided. it is difficult to believe that the companytracting parties companyld have intended that even though a sum is number due and payable by the companytractor to the purchaser under the companytract, the purchaser should be entitled to recover it by adopting ,the mode set out in cl. It is important to numbere that cl. 18 does number -create a lien on other sums due to the companytractor or give to the purchaser a right to retain such sums until his claim against the companytractor is satisfied.If merely a right of lien or retention were given to secure payment of a claim, then even if the claim were for a sum number presently due and payable, the provision perhaps would number have been so startling ,or unusual. But here the right given to the purchaser under. cl. 18 is a right to recover the amount of his claim by appropriating other sums due to the companytractor and, on the, interpretation of the appellant, this can be done even if the claim is for a sum which is number due or payable in praesenti and the purchaser is otherwise number entitled to recover it. That would indeed be a highly extra-ordinary result which we would be loathe to reach in the absence of clear and companypelling language. This interpretation, if accepted, would mean that as soon as a claim is made by the purchaser, it would immediately become recoverable and the purchaser would be entitled to sell off the securities of the companytractor and appropriate the sale proceeds in or towards satisfaction of such claim and in case that is insufficient, recover the balance by appropriating other sums due to the companytractor and if there is even then a shortfall, recover it personally from the companytractor, for the last words of cl. 18 provide that the companytractor shall on demand pay to the purchaser the balance remaining due. And this companysequence would ensue even if the claim is for a sum which the -contractor is under numberexisting obligation to pay or which is number presently payable or is disputed as regards the existence of liability or its quantum. A mere making of a claim by the purchaser would impose a liability on the companytractor to pay it. That surely companyld -not have been the intention of the companytracting parties. It would be more companysonant with reason and good sense to take the view, which, as pointed out above, is plainly and indubitably supported by the language used by the companytracting parties, that cl. Is does numbermore than merely provide an additional mode of recovery to the purchaser, and the purchaser is entitled to exercise the right companyferred, under that clause only where there is a claim for a sum which is presently due and payable by the companytractor. This view, indeed, becomes irresistible when we companysider the last words of cl. 18, namely, the companytractor shall on demand pa to the purchaser the balance remaining due, which clearly postulate that the reference in the clause is to a sum presently due and payable by the companytractor to the purchaser, so that, if any balance remains unrecovered after adopting the special mode of recovery provided in the clause, such balance must be paid by the companytractor to the purchaser on demand. The appellant laid great emphasis on the use of the word claim in the opening part of cl. 18 and companytended that the Standard Form of Contract which was in use prior to the adoption of the present Standard Form of Contract, cl. 14, and which companyresponded to the present cl. 18, opened with the words whenever under this companytract any sum of money is recoverable from and payable by the companytractor, but this formula was deliberately and advisedly altered when the present Standard Form was introduced and instead, the words whenever any claim for the payment of sum of money arises were substituted and this change in phraseology indicated that in order to attract the applicability of the present cl. 18 it was number necessary that there should be a sum due and payable by the companytractor to the purchaser but it was enough if there was a mere claim on the part of the purchaser for payment of a sum of money by the companytractor, irrespective of whether such sum of money was presently due and payable or number. This companytention is, in our opinion,. wholly untenable. We do number think it is legitimate to companystrue cl. 18 of the companytract between the parties by reference to a companyresponding clause which prevailed in an earlier Standard Form of Contract. This is number a statute enacted by the Legislature where it can be said that if the Legislature has departed from the language used by it in an earlier enactment, it would be a fair presumption to make that the alteration in the language was deliberate and it was intended to companyvey a different meaning. It is a clause in a companytract which we are companystruing and there, any reference to a similar or dissimilar clause in another companytract would be irrelevant. The only question before us is, what does cl. 18 mean and that depends on the plain interpretation of its language in the companytext in which it occurs. Moreover, on a question of companystruction of cl. 18, mere use of the word claim cannot be a decisive factor. Cl. 18 has to be read as a whole, each part throwing light on the other, without any undue emphasis on one word or the other. We cannot allow our interpretation of cl. 18 to be hijacked from its true companyrse by the use of a solitary word such as claim, but we must arrive at the true meaning of the clause by companystruing it in all its parts and in its proper companytextual setting. So viewed, it is clear that cl. 18 applies only where the purchaser has a claim for a sum presently due and payable by the companytractor. Having discussed the proper interpretation of cl. 18, we may number turn to companysider what is the real nature of the claim for recovery of which the appellant is seeking to appropriate the sums due to the respondent under other companytracts The claim is admittedly one for damages for breach of the companytract between the parties. Now, it is true that the damages which are claimed are liquidated damages under cl. 14, but so far as the law in India is companycerned, there is numberqualitative difference in the nature of the claim whether it be for liquidated damages or for unliquidated damages. Sec. 74 of the Indian Contract Act eliminates the some-what elaborate refinements made under the English companymon law in distinguishing between stipulations providing for payment of liquidated damages and stipulations in the nature of penalty. Under the companymon law a genuine preestimate of damages by mutual agreement is regarded as a stipulation naming liquidated damages and binding between the parties a stipulation in a companytract in terrors is a penalty and the Court refuses to enforce it, awarding to aggrieved party only reasonable companypensation. The Indian Legislature has sought to cut across the web of rules and presumptions under the English companymon law, by enacting a uniform principle applicable to all stipulations naming amounts to be paid in case of breach, and stipulations by way of penalty, and according to this principle, even if there is a stipulation by way of liquidated damages, a party companyplaining of breach of companytract can recover only reasonable companypensation for the injury sustained by him, the stipulated amount being merely the outside limit. It, therefore makes numberdifference in the present case that the claim of the appellant is for liquidated damages. It stands on the same footing as a claim for unliquidated damages. Now the law is well settled that a claim for unliquidated damages does number give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. When there is a breach of companytract, the party who companymits the breach does number eo instanti incur any pecuniary obligation, number does the party companyplaining of the breach becomes entitled to a debt due from the other party. The only right which the party aggrieved by the breach of the companytract has is the right to sue for damages. That is number in actionable claim and this position is made amply clear by the amendment in s. 6 e of the Transfer of Property Act, which provides that a mere right to sue for damages cannot be transferred. This has always been the law in England and as far back as 1858 we, find it stated by Wightman, J., in Jones v. Thompson 1 Exparte Charles and several other cases decide that the amount of a verdict in an action for unliquidated damages is number a debt till judgment has. been signed It was held in this case that a claim for damages dots number become a debt even after the jury has returned a verdict in favour of the plaintiff till the judgment is actually delivered. So also in O Driscoll v. Manchester Insurance Committee, 2 Swinfen Eady, L. J., said in reference to cases where the claim was for unliquidated damages in such cases there is numberdebt at all until the verdict of the jury is pronounced assessing the damages and judgment is given. The same view has also been taken companysistently by different High Courts in India. We may mention only a few of the decisions, namely, Jabed Sheikh v. Taher Mallik, 3 S. Malkha Singh v. M s N. K. Gopala Krishna Mudaliar 4 and Iron Hardware India Co. v. Firm Shamlal Bros. 5 1 1858 27 L. J. Q.B. 234. 3 45 Cal. Weekly Notes, 519. 2 1915 3 K. D. 499. 4 1956 A.I.R. Pun. 174. 5 1954 A.I.R. Bom. 423. Chagla, C. J. in the last mentioned case, stated the law in these terms In my opinion it would number be true to say that a person who companymits a breach of the companytract incurs any pecuniary liability, number would it be true to say that the other party to the companytract who companyplains of the breach has any amount due to him from the other party. As already stated, the only right which he has is the right to go to a Court of law and recover damages. Now, damages are the companypensation which a Court of law gives to a party for the injury which he has sustained. But, and this is most important to numbere, he does number get damages or companypensation by reason of any existing obligation on the part of the person who has companymitted the breach. He gets companypensation as a result of the fiat of the Court. Therefore, numberpecuniary liability arises till the Court has determined that the party companyplaining of the breach is entitled to damages. Therefore, when damages are assessed, it would number be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is numberliability at all upon the defendant. This statement in our view represents the companyrect legal position and has our full companycurrence. A claim for damages for breach of companytract is, therefore, number a claim for a sum presently due and payable and the purchaser is number entitled, in exercise of the right companyferred upon it under cl. 18, to recover the amount of such claim by appropriating other sums due to the companytractor. On this view, it is number necessary for us to companysider the other companytention raised on behalf of the respondent, namely, that on a proper companystruction of cl. 18, the purchaser is entitled to exercise the right companyferred under that clause only where the claim for payment of a sum of money is either admitted by the companytractor, or in case of dispute, adjudicated upon by a companyrt or other adjudicatory authority. We must, therefore, hold that the appellant had numberright or authority under cl. 18 to appropriate the amounts of other pending bills of the respondent in or towards satisfaction of its claim for damages against the respondent and the learned Judge was justified in issuing an interim Injunction restraining the appellant from doing so.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 1977 of 1973. Under Art. 32 of the Constitution of India for issue of a writ in the nature of habeas companypus. N. Mukherjee and M. M. Kshatriya, for the petitioner. K. Chatterjee and G. S. Chatterjee, for the respondents. The Judgment of the Court was delivered by KRISHNA IYER, J.-A few issues of some moment, in the companytext of civil liberties have been argued in this application for habeas companypus by Shri Mukherjee as amicus curiae. The facts are disquieting at least for the reason that the petitioner an aged ailing man around 74, has been under detention since 1973 and, previous to it, had been facing a criminal prosecution which ended in a discharge on the date the detention order was clamped down on him and companynsel pressed the poignant circumstance that the ultimate order of Government dated September 28, 1973 merely companyfirms the detention, being unlimited in duration and unspeaking on the terminus ad quem for the incarceration. The relevant facts may be stated before discussing the highlights ,of the arguments. The Commissioner of Police, Calcutta, passed the initial order of detention dated July 19, 1973 on the petitioner, Golam Hussain alias Gama, under S. 3 1 a ii read with sub-section 2 of the Maintenance of Internal Security Act, 1971 Act 26 of 1971 hereinafter referred to as the Act . The grounds which induced the detaining authority to pass the order were companymunicated the same day. They have been set out by the State as annexure to the affidavit filed in opposition to the petition and read thus On 8-10-72 at about 22-25 hrs., you along with your associates Achche Lal Show of 1, Manickotolla Bazar Lane, Satya Narayan Jaiswal of 123/2, Acharya Prafulla in Chandra Road, and others, all being armed with bombs, soda- water bottles created a great disturbance of public order on Gouri Sankar Lane in front of premises No. 8 by hurling bombs indiscriminately with a view to attack one Jiban Paul of 8. Gouri Shankar Lane and his group in retaliation to an earlier quarrel that took place with the said Jiban Paul at 8, Gouri Sankar Lane with your associates Satya Narayan Jaiswal and others. The incident terrorised the locality and threw out of gear the numbermal life stream of the residents of the said locality amounting to police orde r. On 9-11-72 sometimes between 04-45 hrs. you along with your associates Ratish Pradhan alias Laltu of 23/lA, Abinash Kaviraj St., Benode Kr. Jaiswal of 34B, Gulu Ostagar Lane and other all being armed with brickbats, soda-water bottles, bombs poles, created a great disturbance of public order on Gouri Sankar Lane and Abinash Kaviraj Street by hurling soda-water bottles, brickbats indiscriminately with a view to overawe the organisers of the Kalipuja that took place in front of 8 Gowi Sankar Lane and thereby to terrorise the locality. As a result the lights of the above pujab pandals were damaged. This was in sequel to an incident that took place earlier at about 04-30 hrs when your associates Benode Kumar and others threw beer bottles at the Kalipuja pandal at 8, Gouri Sankar Lane, where some females were then dancing, which was then protested by the local people and the organisers of the said puja. And if left free and unfettered you are likely to companytinue to disturb manitenance of public order by acting in a similar manner as aforesaid. As required by the statute, the fact of detention was companymunicated to the State Government which in turn reported to the Central Government. The case was placed before the Advisory Board on August 13, 1973 and when the representation of the detenu was, received it was duly companysidered and negatived by the State Government which thereafter made it over to the Advisory Board. After adverting to the facts, the Board advised companytinuance of the detention on September 21, 1973. The companysequential order companyfirming the detention was made by the State Government on September 28, 1973 and companymunicated to the detenu by the middle of October, 1973. We see numberstatutory shortcoming in the time sequence set out above. But other grounds of attack have been levelled against the order which deserve a closer look. Shri Mukherjee urged that although two criminal cases were started in companynection with the two incidents companystituting the grounds for the detention, the petitioners name was number even mentioned in the first information reports, and he was produced before the Magistrate only on July 5, 1973, and so the order based on those accusations was too irrational to be bona fide. The Commissioner of Police who passed the detention order has stated in his affidavit that there were cases companynected with ,he incidents of October 8th and November 9th, but the detenu companyld number be arrested until July 4, 1973. It is number denied that the petitioners name was number in the first information report, but he was apprehended later on the basis of evidence gathered during the investigation of the criminal case. The companymissioner admits that the detenu was discharged by the, Court as numberwitness dared to depose against the detenu in open companyrt. According to him the said order of discharge was made on the prayer of the police on July 19, 1973, and thereafter the petitioner was Preventively detained. Could such an order be castigated as malafide and oblique resort to the inscrutable order of detention when the prospects in the criminal case became bleak ? This charge has been repudiated by the Commissioner on oath and we are number able to hold with the petitioner that merely because the detaining authority has chosen to pass the order on the discharge of the petitioner by the companyrt for want of evidence, the order is bad in law. , The branch of jurisprudence bearing on prohibitory detention has been crystallised by number and it is numberlonger a valid companytention, that because the accused has been discharged in a criminal case the ground of charge cannot be relied upon by the appropriate authority for passing an order of detention. The former relates to the punitive branch of the criminal law and relates to the past companymission, the latter to the preventive branch of social defence and protects the companymunity from future injury. Whether we like it or number, this branch of jurisprudence, as interpreted by this Court has made it futile for a detenu to urge that because the grounds of detention have been the subject matter of criminal cases which have ended in discharge, therefore, the order of detention is malafide. The basic imperative of proof beyond reasonable doubt does number apply to the subjective satisfaction companyponent, of imprisonment for reasons of internal security. To quarrel with such a proposition is to challenge the wisdom of Parliament. Of companyrse, we can visualise extreme cases where a companyrt has held a criminal case to be false and a detaining Authority with that judicial pronouncement before him may number reasonably claim to be satisfied about prospective prejudicial activities based on what a companyrt has found to be baseless. But the present case where the order of discharge is made purely for want of evidence on the score that witnesses were too afraid to depose against a desperate character cannot companye under this exceptional category. Another submission, equally an exercise in futility, made before us is that there has been a long interval of nine months between the criminal incidents of October and November, 1972 and the detention order of July, 1973. Counsel hopefully relied on recent decision of this Court in Lakshman Khatik v. State of West Bengal 1 and an earlier decision in Rameshwar Shah v. District Magistrate Burdwan 2 . It is true that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified in the statute. This credible chain is snapped if there is too long and unexplained an interval between the Offending acts and the order of detention. Such is the ratio of proximity in Lakshman Khatik l . No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had Writ Petit Judgment on 26-2-74. 2 1964 4 S.C.R. 921. done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But numbermechanical test by companynting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and companyrigible, on the length of the gap, short or long on the reason for the delay in taking preventive action, like information of participation being available only in the companyrse of an investigation. We have to investigate whether the causal companynection has been broken in the circumstances of each case. If the detaining authority takes the chance of companyviction and, when the companyrt verdict goes against it, falls back on its detention power to punish one whom the companyrt would number companyvict, it is an abuse and virtual nullification of the judicial process. But if honestly finding a dangerous person getting away with it by overawing witnesses or companycealing the companymission cleverly an authority thinks on the material before him that there is likelihood of and need to interdict public disorder at his instance he may validly direct detention. The distinction is fine but real. In the present case, the acts ere serious, being bomb hurling and brick-bat throwing in public places creating. panic. The involvement of the petitioner is discovered only during the investigation of the offences. The witnesses are scared away from deposing. The Commissioner swears that in these special circumstances he did form the satisfaction requisite for ordering preventive detention, No ground exists for dismissing this statement as sham or factitious. It is one thing to say that a more subjective satisfaction is sufficient to deprive a person of a fundamental freedom. it is another to reject that satisfaction as specious and number- existent. Parliament makes the law and is responsible for it the companyrt only applies it, as it must. We have, therefore, to reject the plea that because the criminal case has failed the detention must be bad. M. S. Khan v. C. C. Bose, 1 Ashim Kumar v. State of West Bengal 2 , and Sahib Singh Dugal v. Union of India 3 are but three among many cases taking this view. We follow these precedents. The next serious companytention of Shri Chatterjee is that an order of detention which does number specify a period is violative of s. 12 of the Act. We may reproduce the relevant provisions which are of ancient vintage, being wholly or substantially in pari materia with earlier companyresponding preventive detention sections. Nor is the position of law can vassed for res integra. Section l2 and l3 of the Maintenance of Internal Security Act, 1971, as amended, read as follows 12 1 ln any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may companyfirm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit. 2 A.I.R. 1972 S.C. 1670. A.I.R. 1972 S.C. 2561. 3 1966 1 S.C.R. 313. The maximum period for which any person may be detained in pursuance of any detention order which has been companyfirmed under section 12 shall be twelve months from the date of detention, or until the expiry of the Defence of India Act, 1971 whichever is later Provided that numberhing companytained in this section shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time. Section 1 3 of the Defence of India Act, 1971 laid down the duration of that Act and said that that Act shall remain in force for the duration of the proclamation of emergency and a period of six months thereafter. Section 13 of the MISA, as amended, thus provided that the maximum period of detention under the Act shall be twelve months from the date of detention or until the expiry of a period of six months after the cessation of the proclamation of emergency, whichever is later. The Court recently dismissed a similar argument in these words in Suna Ullah v. State of J K 1 It is urged that the failure of the State Government to specify the period of detention introduces an infirmity in the detention of the petitioner. This companytention, in our opinion, is without any force. According to sub-section 1 of Section 12 of the Act, in any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may companyfirm the detention order and companytinue the detention of the person companycerned for such period as it thinks fit. Section 13 of the Act specifies the maximum period of detention. According to that section the maximum period for which a person may be detained in pursuance of any detention order, which has been companyfirmed under Section 12, shall be two years from the date of detention. It is further provided that numberhing in the section shall effect the power of the Government to revoke or modify the detention order at any earlier time. It is, in our opinion, difficult to infer from the language of Section 12 of the Act that the State Government while companyfirming the detention order should also specify the period of detention. All that the section requires is that, if the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of the person, the Government may companyfirm the detention order. There is numberhing in the section which enjoins upon the Government to specify the period of detention order. The companycluding words of sub-section 1 of Section 12, according to which the Government may companytinue the detention of the person companycerned for such period as it thinks fit, pertain to and embody the companysequences of the companyfirmation of the detention order. It is, however, manifest that the period for which a person can be detained after the companyfirmation of the detention order is subject to the limit of two years, which is the maximum period of detention for which a person can be detained vide section 13 of the Act. A.I.R. 1972 S.C. 2431 2433. Apart from the above, we are of the opinion that it is number always practicable and feasible for the State Government at the time of companyfirming the detention order to specify the period of detention. The companytinued detention of the detenu, subject to the maximum period prescribed by the Act, depends upon a variety of factors and the State Government would have to take into account all the circumstances including fresh developments and subsequent events in deciding whether to keep the detenu in detention for the maximum period or to release him earlier. It has accordingly been provided in sub-section 2 of Section 13 of the Act that the State Government would have the power to revoke or modify the detention order at any time earlier than the expiry of two years from the date of detention. The leading case, if we may say so, is Dattatraya Moreshwar Pangarkar v. State of Bombay l . The majority held that an order of detention under a substantially like provision was number invalid merely because the order did number companytain the period of imprisonment. Mahajan, J., as he then was, held a companytrary view. But even the majority was split on their companystruction of the section.Das, J., as he then was, read the section to imply numberobligation towrite into the order the duration, even though it may be desirable.The learned Judge observed It is said that the section should be companystrued irrespective Of whether it occurs in a temporary statute or a permanent one, and it is urged that if the statute were a permanent one the section on the aforesaid interpretation, would have permitted an indefinite detention. The answer is given by Mahajan J., in the following passage in his judgment in S. Krishnan v The State of Madras supra at page 639 with which companycurred 2 It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire they automatically companye to an end at the expiry of the period for which they have been enacted and numberhing further can be done under them. The detention of the petitioners therefore is bound to companye to an end auto matically with the life of the statute and in these circums- tances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained under this law. For all I know, such drastic and extensive power to companytinue the detention as long as it may think fit may number be given by Parliament to the executive Government in a permanent statute. 1 1952 S.C.R. 612. 2 1951 S.C.R. 621 629. But if it does think fit to do so, it will number be for the Court to question the knowledge, wisdom or patriotism of the Legislature and to permit its dislike for the policy of the law to prevail over the plain meaning of the language used by the Legislature. Apart from this companysideration, there is a period specified in the sub-section itself, for as soon as the appropriate Government will cease to think fit to companytinue the detention it will revoke the detention order under section 13 and the period of detention will automatically companye to an end. If the specification of the period of detention is number at all sacrosanct and the appropriate Government may nevertheless companytinue the detention as long as it thinks fit to do so, why is the specification of a period to be regarded as virtually or at all necessary? So far as the detenu is companycerned, his detention will number be any more definite and less irksome if it is open to the appropriate Government to companytinue the detention by an indefinite number of orders made from time to time until the expiry of the Act itself by afflux of time in the case of a temporary statute or by its repeal in the case of a permanent Act. It is said that if we insist on a specification of a definite period when the companyfirmatory order is in a deand there after each time the period of detention is extended then the appropriate Government will have to apply its mind to the case of the detenu before it will make an order for further companytinuation of the detention, but that if we say that numbertime need be specified, the appropriate Government will lose sight of the case and the detenu will be detained indefinitely. I do number see why we should impute such dereliction of duty to the appropriate Government, but even if we do so and insist on the specification of the period of detention we shall perhaps be driving the appropriate Government to fix the longest permissible period of detention ending with the expiry of the Act itself and then to lose sight of the case of the detenu. That, I apprehend, will do numbergood to the detenu. In any event, the companysiderations of hardship urged upon us may make it desirable that a period of detention should be fixed but this cannot alter the plain meaning of the language of the section Patanjali Sastri, C. J., companycurred. However, Mukherjea J. struck a different numbere The question number is whether the omission to state the period of further detention while companyfirming the detention order under section II 1 of the Preventive Detention Act makes the detention illegal ? The point is number free from doubt, but having regard to the fact that the new Preventive Detention Act is a temporary statute which was to be in force only up to the 1st of April, 1952, and. has only been recently extended to a further period of six months and numberdetention under the Act can companytinue after the date of expiry of the Act, I am in-.limed to hold that number-specification of the further period in an order under section 11 1 of the Act does number make the order of detention a nullity. If numberperiod is mentioned, the order might be taken to imply that it would companytinue upto the date of the expiration of the Act itself when all detentions made under it would automatically companye to an end. Of companyrse, the appropriate Government is always at liberty to terminate the order of detention earlier, if it companysiders proper, in exercise of its general powers under section 13 of the Act, It is perfectly true that an order for detention for an indefinite period is repugnant to all numberions of democracy and individual liberty, but the indefiniteness in the case of an order made under section 11 1 of the Preventive Detention Act is in a way cured by the fact that there is a limit set to the duration of the Act itself, which automatically prescribes a limit of time beyond which the order cannot operate. In my opinion, section II 1 of the Preventive Detention Act does companytemplate that a period should be mentioned during which the further detention of the detwnu is to companytinue and the Government should see that numberomission occurs in this respect, but I am unable to ho ld that this omission alone would make the order a nullity which will justify us in releasing the detenu. Chandrasekhara Aiyar J. companycurred. The undercurrent of judicial unease at loss or citizens liberty because the Executive subjectively opined that way is evident in the pages of the report, but the brooding feeling that the preventive detention legislation was a short-lived statute and all imprisonment without trial would terminate at a near date was writ large in all the opinions. After all civil liberty ordinarily ends where detention without trial begins and companymitment to the rule of law receives a rude shock where a permanent statute authorises long term gaol companyfinement. That is why companyrts have been strict even on procedural steps. Mathew J. recently observed in Prabhu Dayal v. District Magistrate, Kamrup l The facts of the case might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the companymunity has been frustrated by what is popularly called a technical error. We say and that we think it is necessary to repeat, that the gravity of the evil to the companymunity resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is-largely the history of insistence on observance of procedure. W. P. No, 1496 of 1973 judgment dated October 11, 1973.-1974 I SCC 103, 114. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution the only guarantee of personal liberty for a person is that he shall number be deprived of it except in accordance with the procedure established bylaw. The need today for maintenance of supplies and services essential to the companymunity cannot be over-emphasized. There will be numbersocial security without maintenance of adequate supplies and services essential to the companymunity. But social security is number the only goal of good society. There are other values in a society. Our companyntry is taking singular pride in the democratic ideals in personal liberty. It would indeed be ironic if, in the name of social security, we would sanction the subversion of this liberty. We do number pause to companysider whether social security is more precious than personal liberty in the scale of values. For, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be its impact on the maintenance of supplies and services essential to the companymunity, when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it, our duty to see that that procedure is rigorously observed, however strange this might sound to some ears. The basic feature of the Act as distinguished from its predecessor is that it is numberlonger a temporary law and even the duration of the detention can be distant and companysiderable. We have misgivings about these anti-personal freedom facets but regard hopefully the presence and use of the power to revoke the detention on a review at any time. Moreover there is numberreason to think that this extraordinary power will be used indiscriminately or inordinately by a democratic government. A tenable interpretation that a detention order of prolonged and unspecified duration has to be abandoned for the time number merely because of the pressure of precedents but because we are assured by the States companynsel that the fulfilment of the imperative obligation of the State to review from time to time the changing social situation and the individuals criminal potential tipping the scales in favour of enlargement of the detenu is taking place. No responsible government should or would be irresponsive to the claim of citizens freedom and the argument that detention without defined duration is ipso jure invalid cannot be sustained. Shri Chatterjee took up the further position that the detention in the case on hand was founded on prevention of public disorder while the acts imputed to the petitioner ex facie were aimed at a particular person and number the public generally. Lohias l case and other rulings were said to reinforce this stance. The law is plain and the decided cases are companycordant. A criminal act hitting a private target such as indecent assult of a woman or slapping a neighbour or knocking down a pedestrian while driving may number shake up public order. But 1 1966 1 S.C.R. 769. a drunk with a drawn knife chasing a woman in a public street and all women running in panic, a Hindu or Muslim in a crowded place at a time of companymunal tension throwing a bomb at a personal enemy of the other religion and the people all scared fleeing the area, a striking worker armed with a dagger stabbing a blackleg during a bitter strike spreading terror-these are invasions of public order although the motivation may be against a particular private individual. The nature of the act the circumstances of its companymission the impact on people around and such like factors companystitute the pathology of public disorder. We cannot isolate the act from its public setting or analyse its molecules as in a laboratory but take its total effect on the flow of orderly life. It may be a question of the degree and quality of the activity of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpose of social defence which is the paramount purpose of preventive detention. Another argument, rather flimsy, was made that a companyrigendum reading public order in the place of police order was number companymunicated to the detenu. It is number so and merits numberconsideration. One or two other points, too trivial to be seriously numbericed were also mentioned but we ignore them. Basically we must realise the unpleasant truth that the new jurisdiction of preventive detention by executive fiat founded on subjective satisfaction and jejune judicial protection is an erosion of a great right. We may repeat what this Court in a different companytext recently observed in Mohd. Subrati v. State of West Bengal 1 It must be remembered that the personal liberty of an individual has been given an honoured place in the fundamental rights which our Constitution has jealously protected against illegal and arbitrary deprivation and that this Court has been entrusted with a duty and invested with a power to enforce that fundamental right. The seriousness of the step must be appreciated by Govern- ment and companytinuous check-up on the need to prolong the prison life of the citizen made. The final cure for prejudicial activities threatening the survival of the companymunity is number executive shut-up of all suspects in prison for how long one is kept guessing. Such a strategy may alienate and embitter men who should be weaned away and won over. In the present case a septuagenarian allegedly sickly is companyfined in jail for an unspecified period. It may well be that his private enemy on whom he threw a bomb is number there at all. It may also be that the detenu has altogether changed his outlook as many well-known terrorists have turned marvels of saintliness. History will, we hope, serve the Administration as reminder of unwitting misuse while exercising near-absolute power. We dismiss the petition. B.R.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1931 to 1933/68. From the, Judgment and Order dated the 19th/20th/21st day of July 1965 of the Gujrat High Court at Ahmedabad in Special Civil Application Nos. 579 to 581 of 1963. Civil Appeal No. 2271 of 1968. From the judgment and order dated the 19th/20th/21st day of July 1965, of the Gujarat High Court at Ahmedabad in Special Civil Application No. 836 of 1962. Civil Appeals Nos. 492 to 512 of 1969. From the Judgment and order dated the 21st July, 1965 of the Gujarat High Court at Ahmedabad in Special Civil Application Nos. 1069/62, 20, 21, 40, 49, 476, 699, 574 of 1963, 1070 to 1075 of 1962, 1086 to 1089 of 1962, 516, 727 and 728 of 1963. Civil Appeals Nos. 1114 to 1129 of 1969. From the judgment and order dated the 21st July, 1965 of the Gujarat High Court in Special Civil Applications Nos. 458 to 473 of 1963. T. Desai, S. K. Dholakia and S. P. Nayar, for the appellants. In all the appeals . B. Patel, D. N. Misra, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondent number I in C. As. 1115, 1118, 1125/ 69 . Ram Punjwani, P. C. Bhartari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondent number I in C.A. 1931/68 . C. Bhartari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, respondent number I in C. As. 1931-33/68, 492-494, 497, 499, 500-502, 504-507, 511-512/69, 1117, 1122, 1124 and 1126-27/69 . C. Setalvad, V. B. Patel and 1. N. Shroff, for respondent number I in C.A. 2271/68 . B. Patel and 1. N. Shroff, for respondent number I In As. 1 1 14, 1116,1119 and 1128/69 . C. Bhandare and M. N. Shroff, for intervener. The Judgment of the Court was delivered by MATHEW, J.-The facts are similar in all these cases. We propose to deal with Civil Appeal No. 2271 of 1968. The decision there will dispose of the other appeals. The first respondent, a companypany registered under the Companies Act, filed a Writ petition in the High Court of Gujarat. In that petition it impugned the provisions of sections 3, 6A and 7 of the Bombay Labour Welfare Fund Act, 1953 hereinafter referred to as the Act and s. 13 of the Bombay Labour Welfare Fund Gujarat Extension and Amendment Act, 1961 hereinafter referred to as the First Amendment Act and rules 3 and 4 of the Bombay Labour Welfare Fund Rules, 1953 hereinafter referred to as tie Rules as unconstitutional and prayed for the issue of a writ in the nature of mandamus or other appropriate writ or direction against the respondents in the writ petition to desist from enforcing the direction in the I numberice dated August 2, 1962 of respondent No. 3 to the writ petition requiring the petitioner-1st respondent to pay the unpaid accumulations specified therein. The High Court held that s. 3 1 of the Act in so far as it relates to unpaid accumulations specified in s. 3 2 b , s. 3 4 and s. 6A of the Act and rules 3 and 4 of the Rules was unconstitutional and void. In order to appreciate the companytroversy, it is necessary to state the background of the amendment made by the Legislature of Gujarat in the Act. The Act was passed by the legislature of the then State of Bombay in 1953 with a view to provide for the companystitution of a fund for financing the activities for promoting the welfare of labour in the State of Bombay. Section 2 10 of the Act defined unpaid accumlation as meaning all payments due to the employees but number made to .them within a period of three years from the date on which they became due, whether before or after the companymencement of the Act, including the wages and gratuity legally payable, but number including the amount of companytribution, if any, paid by any employer to a Provident Fund established under the Employees Provident Fund Act, 1952. Section 3 1 provided that the State Government shall companystitute a fund called the Labour Welfare Fund and that numberwithstanding anything companytained in any other law for the time being in force, the sums specified in subsection 2 shall, subject to the provisions of sub-section 4 and sec- tion 6A be paid in to the fund. Clause b of sub-section 2 of s. 3 provided that the Fund shall companysist of all unpaid accumulations. Section 7 1 provided that the fund shall vest in and be applied by the Board of Trustees subject to the provisions and for the purposes of the Act. Section 19 gave power to the State Government to make rules and in the exercise of that power, the State Government made the Rules. Rules 3 and 4 companycerned the machinery for enforcing the provisions of the Act in regard to fines and unpaid accumulations. In Bombay Dyeing Manufacturing Co. Ltd. v. The State of Bombay and Others 1 this Court held that the provisions of sections 3 1 and 3 2 b were invalid on the ground that they violated the fundamental right of the employer under article 19 1 f . The reasoning of the Court was that the effect of the relevant provisions of the Act was to transfer to the Board the debts due by the employer to the employees free from the bar of limitation without discharging the employer from his liability to the employees and that s.3 1 therefore operated to take away the moneys of the employer without releasing him from his liability to the employees. The Court also 1 1958 S.C.R. 1122 found that there was numbermachinery provided for adjudication of the claim of the employees when the amounts were required to be paid to the fund. The State sought-to justify the provisions of the Act as one relating to abandoned property and, therefore, by their very nature, they companyld number be held to violate the rights of any person either under article 19 1 f or article, 31 2 . The Court did number accept the companytention of the State but held that the purpose of a legislation with respect to abandoned property being in the first instance to safeguard the property for the benefit of the true owners and the State taking it over only in the absence of such claims, the law which vests the property absolutely in the State without regard to the claims of the true owners cannot be companysidered as one relating to abandoned property. On May 1, 1960, the State of Bombay was bifurcated into the States of Maharashtra and Gujarat. The legislature of Gujarat thereafter enacted to First Amendment Act making various amendments in the Act, some of them with retrospective effect. The First Amendment Act was intended to remedy the defects pointed out in the decision of this Court in the Bombay Dyeing Case 1 . The preamble to the First Amendment Act recites that it is expedient to companystitute a Fund for the financing of activities to promote welfare of labour in the State of Gujarat, for companyducting such activities and for certain other purposes. Section 2 2 defines employee. Section 2 3 defines employer as any person who employs either directly or through another person either on behalf of himself or any other person, one or more employees in an establishment and includes certain other persons. Section 2 4 defines establishment and that sub-section as amended reads - 2 4 Establishment means A factory A Tramway or motor omnibus service and Any establishment including a society registered under the Societies Registration Act, 1960, and a charitable or other trust, whether registered under the Bombay Public Trusts Act, 1950, or number, which carries on any business or trade or any work in companynection with or ancillary thereto and which employs or on any working day during the preceding twelve months employed more than fifty persons but does number include an establishment number being a factory of the Central or any State Government. Sub-section 10 of s. 2 defines unpaid accumulations unpaid accumulations means all payments due to the employees but number made to them within a period of three years from the date on which they became due whether before or after the companymencement of this Act including the wages and gratuity legally payable but number including the amount of companytribution if any, paid by an employer to a 1 1958 S.C.R. 1122. provident fund established under the Employees Provident Funds Act 1952. Section 3 is retrospectively amended and the amended section it its material part provides that the State Government shall companystitute a fund called the Labour Welfare Fund and that the Fund shall companysist of, among other things, all unpaid accumulations. It provides that the sums specified shall be companylected by such agencies and in such manner and the accounts of the fund shall be maintained and audited in such manner as may be prescribed. The section further provides that numberwithstanding anything companytained in any law for the time being in force or any companytract or instrument, all unpaid accumulations shall be companylected by such agencies and in such manner as may be prescribed and be paid in the first instance to the Board which shalt keep a separate account therefor until claims thereto have been decided in the manner provided in s.6A. Section 6A is a new section introduced retrospectively in the Act and sub-section 1 and 2 of that section state that all unpaid accumulations shall be deemed to be abandoned property and that any unpaid accumulations paid to the Board in accordance with the Provisions of s.3 shall, on such payment, discharge an employer of the liability to make payment to an employee in respect thereof, but to the extent only of the amount paid to the Board and that the liability to make payment to the employee to the extent aforesaid shall, subject to the other provisions of the section, be, deemed to be transferred to the Board. Sub-section 3 provides that as soon as possible after any unpaid accumulation is paid to the Board, the Board shall, by a, public numberice, call upon interested employees to submit to the Board their claims for any pay- ment due to them. Sub-section 4 provides that such public numberice shall companytain such particulars as may be prescribed and that it shall be affixed on the numberice board or in its absence on a companyspicuous part of the premises, of each establishment in which the unpaid accumulations were earned and shall be published in the Official Gazette and also in any two newspapers in the language companymonly understood in the area in which such establishment is situated, or in such other manner as may be- prescribed, regard being had to the amount of the claim. Sub-section 5 states that after the numberice is first affixed and published under sub-section 4 it shall be again affixed and published from time to time for a period of three years from the date on which it was first affixed and published, in the manner provided in that subsection in the months of June and December each year. Sub-section 6 states that a certificate of the Board to the effect that the provisions of sub-section 4 and 5 were companyplied with shall be companyclusive evidence thereof Sub- section 7 provides that any claim received whether in answer to the numberice or otherwise within a period of four years from the date of the first publication of the numberice in respect of such claim, shall be transferred by the Board to the authority appointed under s. 15 of the Payment of Wages Act, 1936, having jurisdiction in the area in which the factory or establishment is situated, and the Authority shall proceed to adjudicate upon and decide such claim and that in bearing such claim the Authority shall have the powers companyferred by and shall follow the procedure in so far as it is applicable followed in giving effect to the provisions of that Act. Sub-section 8 states that if in deciding any claim under sub-section 7 , the Authority allows the whole or part of such claim, it shall declare that the unpaid accumulation in relation to which the claim is made shall, to the, extent to which the claim is allowed ceases to be abandoned property and shall order the Board to pay to the claimant the amount of the claim ,as allowed by it and the Board shall make payment accordingly provided that the Board shall number be liable to pay any sum in excess of that paid under sub-section 4 of s.3 to the Board as unpaid accumulations, in respect of the claim. Sub-section 9 provides for an appeal against the decision rejecting any claim. Sub-section 10 provides that the Board shall companyply with any order made in appeal. Sub-section 11 makes the decision in appeal final and companyclusive as to the right to receive payment, the liability of the Board to pay and also as to the amount, if any and sub-section 12 states that if numberclaim is made within the time specified in sub-section 7 or a claim or part thereof has been rejected, then the unpaid accumulations in respect of such claim shall accrue to and vest in the State as bona vacantia and shall thereafter without further assurance be deemed to be transferred to and form part of the Fund. Section 7 1 provides that the, Fund shall vest in and be held and applied by the Board as Trustees subject to the provisions and for the purposes of the Act and the moneys in the Fund shall be utilized by the Board to defray the companyt of carrying out measures which may be specified by the State Government from time to time to promote the welfare of labour and of their dependents. Sub-section 2 of s.7 specifies various measures for the benefit of employees in general on which the moneys in the Fund may be expended by the Board. Section 11 provides for the appointment of an officer called the Welfare Commissioner and defines his powers and duties. Section 19 companyfers rule-making power on the State Government. Section 22 empowers the State Government by numberification in the official gazette to exempt any class of establishment from all or any of the provisions of the Act subject to such companyditions as may be specified in the numberification. During the pendency of the writ petition before the High Court, the Gujarat Legislature passed the Bombay Labour Welfare Fund Gujarat Amendment Act, 1962 on February 5, 1963 hereinafter referred to as the Second Amendment Act introducing subsection 13 in s.6A with retrospective effect from the date of companymencement of the Act. That sub- section provides as follows Nothing in the foregoing provisions of this section shall apply to unpaid accumulations number already paid to the Board a in respect of which numberseparate accounts have been maintained so that the unpaid claims of employees are number traceable, or b which are proved to have been spent before the sixth day of December, 1961, and accordingly such unpaid accumulations shall number be liable to be companylected and paid under sub-section 4 of section 3. The State Government, in the exercise of its rule-making power under s. 19 amended the Rules by amending rule 3 and adding a new rule 3A setting out the particulars to be companytained in the public numberice issued under s. 6A 3 . The first respondent raised several companytentions before the High Court, but the Court rejected all except two of them and they were 1 that the impugned provisions violated the fundamental right of citizen-employers and employees under article 19 1 f and, therefore, the provisions were void under article 13 2 of the Constitution and hence there was numberlaw, and so, the numberice issued by the Welfare Com- missioner was without the authority of law and 2 that discrimination was writ large in the definition of establishment in s. 2 4 and since the definition permeates through every part of the impunged provisions and is an integral part of the impugned provisions, the impugned provisions were violative of article 14 and were void. So, the two questions in this appeal are, whether the first respondent was companypetent to challenge the validity of the impugned provisions on the basis that they violated the fundamental right under article 19 1 f of citizen- employers or employees and thus show that the law was void and number-existent and, therefore, the action taken against it was bad and whether the definition of establishment in s. 2 4 violated the fundamental right of the respondent under article 14 and the impugned provisions were void for that reason. Before adverting to these questions, it is necessary to see what the Act, after it was amended, has purported to do. By s. 6A 1 it was declared that unpaid accumulations shall be deemed to be abandoned property and that the Board shall taken them over. As soon as the Board takes over the unpaid accumulations treating them as abandoned property, numberice as provided in s. 6A will have to be published and claims invited. Sub-sections 3 to 6 of s. 6A provide for a public numberice calling upon interested employees to submit to the Board their claims for any payment due to them and subsections 7 to I 1 of s. 6A lay down the machinery for adjudication of claims which might be received in pursuance to the public numberice. It is only if numberclaim is made for a period of 4 years from the date of the publication of the first numberice, or, if a claim is made but rejected wholly or in part, that the State appropriates the unpaid accumulations as bona vacantia. It is number as if unpaid accumulations become bona vacantia on the expiration of three years. They are, numberdoubt, deemed to be abandoned property under s. 6A 1 , but they are number appropriated as bona vacantia until after claims are invited in pursuance to public numberice and disposed of. At companymon law, abandoned personal property companyld number be the subject of ascheat. It companyld only be appropriated by the sovereign as bona vacantia see Holdsworths History of English Law, 2nd ed., vol. 7, pp. 495-6 . The Sovereign has a prerogative right to appropriate bona vacantia. And abandoned property can be appropriated by the Sovereign as bona vacantia. Unpaid accumulations represent the obligation of the employers to the employees and they are the property of the employees. In other words, what is being treated as abandoned property is the obligation to the employees owed by the employers and which is property from the standpoint of the employees. No doubt, when we look at the scheme of the legislation from a practical point of view, what is being treated as abandoned property is the money which the employees are entitled to get from the employers and what the Board takes over is the obligation of the employers to pay the amount due to the employees in companysideration of the moneys paid by the employers to the Board. The State, after taking the money, becomes liable to make the payment to the employees to the extent of the amount received. Whether the liability assumed by the State to the employees is an altogether new liability or the old liability of the employers is more a matter of academic interest than of practical companysequence. When the moneys representing the unpaid accumulations are paid to the Board, the liability of the employers to make payment to the employees in respect of their claims against the employers would be discharged to the extent of the amount paid to the Board and on such liability being transferred to the Board, the debts or claims to that extent cannot thereafter be enforced against the employer. We think that if unpaid accumulations are number claimed within a total period of 7 years, the inactivity on the part of the employees would furnish adequate basis for the administration by State of the unasserted claims or demands. We cannot say that the period of 7 years allowed to the employees for the purpose of claiming unpaid accumulations is an unreasonably short one which will result in the infringement of any companystitutional rights of the employees. And, in the absence of some persuasive reason, which is lacking here, we see numberreason to think that the State will be, in fact, less able or less willing to pay- the amounts when it has taken them over. We cannot also assume that the mere substitution of the State as the debtor will deprive the employees of their property or impose on them any unconstitutional burden. And, in the absence of a showing of injury, actual or threatened, there can be numberconstitutional argument against the taking over of the unpaid accumulations by the State. Since the employers are the debtors of the employees, they can interpose numberobjection if the State is lawfully entitled to demand the payment, for, in that case, payment of the debt to the State under the statute releases the employers of their liability to the employees. As regards numberice, we are of the view that all persons having property located within a state and subject to its dominion must take numbere of its statutes affecting companytrol and disposition of such property and the procedure prescribed for these, purposes. The various modes of numberice prescribed in s. 6A are sufficient to give reasonable information to the employees to companye forward and claim the amount if they really want to do so. Be that as it may, we do number, however, think it necessary to companysider whether the High Court was right in its view that the impugned pro- visions violated the fundamental rights of the citizen- employers or employees, for, it is a wise tradition with companyrts that they will number adjudge on the companystitutionality of a statute except when they are called upon to do so when legal rights of the litigants are in actual companytroversy and as part of this rule is the principle that one to whom the application of a statute in companystitutional will number be heard to attack the statute on the ground that it must also be taken as applying to other persons or other situations in which its application might be unconstitutional see United States v. Rainas 1 . A person ordinarily is precluded from challenging the companystitutionality of governmental action by invoking the rights of others and it is number sufficient that the statute or administrative regulation is unconstitutional as to other persons or classes of persons it must affirmatively appear that the person attacking the statute companyes within the class of persons affected by it. see Corpus Juris Secundum, vol. 16, pp. 236- 7 . We, however, proceed on the assumption that the impugned provisions abridge the fundamental right of citizen- employers and citizen-employees under article 19 1 f in order to decide the further question and that is, whether, on that assumption, the first respondent companyld claim that the law was void as against the number-citizen employers or employees under article 13 2 and further companytend that the number-citizen employers have been deprived of their property without the authority of law, as, ex hypothesi a void law is a nullity. It is settled by the decisions of this Court that a Corporation is number a citizen for the purposes of article 19 and has, therefore, numberfundamental right under that article see Tata Engineering and Locomotive Co. Ltd. v. State of Bihar and others 2 , R. C. Cooper v. Union of India 3 . The same view was taken in Bennett Coleman Co. etc., etc. v. Union of India and Others 4 . As already stated, the High Court found that the impugned provisions, in so far as they abridged the fundamental rights of the citizen-employers and employees under article 19 1 f were void under article 13 2 and even if the respondent-company had numberfundamental right under article 19 1 f , it had the ordinary right to hold and dispose of its property, and that the right cannot be taken away or even affected except under the authority of a law. Expressed in another way, the reasoning of the Court was that since the impugned provisions became void as they abridged the fundamental right under article 19 1 f of the citizen-employers and employees the law was void and number-est, and therefore, the first respondent was entitled to challenge the numberice issued by the Welfare Commissioner demanding the unpaid accumulation as unauthorized by any law. The first respondent, numberdoubt, has the ordinary right of every person in the companyntry to hold and dispose of property and that right, if 1 362 U.S. 17. 2 1964 6 S.C.R. 885, 3 1970 3 S.C.R. 530. 4 1972 2 S.C.C. 788. taken away or even affected by the act of an Authority without the authority of law, would be illegal. That would give rise to a justiciable issue which can be agitated in a proceeding under article 226. The real question, therefore, is, even if a law takes away or abridges the fundamental right of citizens under article 19 1 f I whether it would be void and therefore number-est as respects number-citizens ? In Keshava Madhava Menon v. State of Bombay 1 the question was whether a prosecution companymenced before the companying into force of the Constitution companyld be companytinued after the Constitution came into force as the Act in question there became void as violating article 19 1 a and. 19 2 . Das, J. who delivered the majority judgment was of the view that the prosecution companyld be companytinued on the ground that the provisions of the Constitution including article 13 1 were number retrospective. The learned judge said that after the companymencement of the Constitution, numberexisting law companyld be allowed to stand in the way of the exercise of fundamental rights, that such inconsistent laws were number wiped off or obliterated from the statute book and that the statute would operate in respect of all matters or events which took place before the Constitution came into force and that it is also operated after the Constitution came into force and would remain in the statute book as operative so far as number-citizens are companycerned. This decision is clear that even though a law which is inconsistent with fundamental rights under article 19 would become void after the companymencement of the Constitution,, the law would still companytinue in force in so far as number-citizens are companycerned. This decision takes the view that the word void in article 1 3 1 would number have the effect of wiping out pre-Constitution laws from the statute book-, that they will companytinue to be operative so far as number- citizens are companycerned, numberwithstanding the fact that they are inconsistent with the fundamental rights of citizens and therefore become void under article 13 1 In Behram Khurshed Pesikaka v. State of Bombay 2 the question was about the scope of article 1 3 1 . This Court had held that certain provisions of the Bombay Prohibition Act, 1949 a pre-constitution Act , in so far as they prohibited the possession, use and companysumption of. medicinal preparations were void as violating article 19 1 f . The appellant was prosecuted under the said Act and he pleaded that he had taken medicine companytaining alcohol. The companytroversy was whether the burden of proving that fact was on him. It became necessary to companysider the legal effect of the declaration made by this Court that s. 13 b of the said Act in so far as it affected liquid medicinal and toilet preparations companytaining alcohol was invalid as it infringed article 19 1 f . At the first hearing all the judges were agreed that a declaration by a Court that part of a section was invalid did number repeal or amend that section. Venkatarama Aiyar, J. with whom Jagannadhadas, J. was inclined to agree, held that a distinction must be made between unconstitutionality arising from lack of legislative companypetence and that arising from a violation of companystitutional limitations on legislative 1 1951 S.C.R. 228. 2 1955 1 S.C.R. 613. power. According to him, if the law is made without legislative companypetence, it was a nullity a law violating a companystitutional prohibition enacted for the benefit of the public generally was also a nullity but a law violating a companystitutional prohibition enacted for individuals was number a nullity but was merely unenforceable. At the second hearing of the case, Mahajan, J. after referring to Madhava Menons Case 1 , said that for determining the rights and obligations of citizens, the part declared void should be numberionally taken to be obliterated from the section for all intents and purposes though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to January 26, 1950, and also for the determination of rights of persons who have number been given fundamental rights by the Constitution. Das, J. in his dissenting judgment held that to hold that the invalid part was obliterated would be tantamount to saying companyertly that the judicial declaration had to that extent amended the section. At p. 659, the learned Judge observed It is beyond all dispute that it is for the Court to judge whether the restrictions imposed by any existing law or any part thereof on the fundamental rights of citizens are reasonable or unreasonable in the interest of the general public or for the protection of the interests of any Schedulea Tribe. If the Court holds that the restrictions are unreasonable then the Act or the part thereof which imposes such unreasonable restrictions companyes into companyflict and becomes inconsistent with the fundamental right companyferred on the citizens by article 19 1 f and is by article 13 1 rendered void, number in toto or for all purposes or for all persons but to the extent of such inconsistency i.e., to the extent it is inconsistent with the exercise of that fundamental right by the citizens. This is plainly the position, as I see it. Mahajan, C.J. rejected the distinction between a law void for lack of legislative power and a law void for violating a companystitutional fetter or limitation on legislative power. Both these declarations, according to the learned Chief Justice, of unconstitutionality go to the root of the power itself and there is number real distinction between them and they represent but two aspects of want of legislative power. In Bhikhaji Narain Dhakras v. State- of M.P. 2 the question was whether the C.P. and Berar Motor Vehicles Amendment Act, 1947, amended s. 43 of the Motor Vehicles Act, 1939, by introducing provisions which authorized the Provincial Government to take up the entire motor transport business in the Province and run it in companypetition with and even to the exclusion of motor transport operators. These provisions, though valid when enacted, became void on the companying into force of the Constitution, as they violated article 19 1 On June 18, 1951, the Constitution was amended so as to authorize the 1 1951 S.C.R. 228. 2 1955 2 S.C.R. 589. State to carry on business whether to the exclusion, companyplete or partial, or citizens or otherwise. A numberification was issued after the amendment and the Court was companycerned with the validity of the numberification. The real question before the Court was that although S. 43 was void between January 26, 1950, and June 18, 1951, the amend- ment of the article 19 6 had the affect of removing the companystitutional invalidity of s. 43 which, from the date of amendment, became valid and operative. After referring to the meaning given to the word void in Keshava Madhva Menons Case 1 , Das, Acting C.J. said for the Court All laws, existing or future, which are inconsistent with the, provisions of Part III of our Constitution are, by the express provision of article 13, rendered void to the extent of such inconsistency. Such laws were number dead for all purposes. They existed for the purposes of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against number- citizens. It is only as against the citizens that they remained in a dormant or moribund companydition at pp. 599-600 . In M. P. V. Sundararamaier v. State of A.P. 2 , Venkatarama Aiyar, J. said that a law made without legislative companypetence and a law violative of companystitutional limitations on legislative power were both unconstitutional and both had the same reckoning in a companyrt of law and they were both unenforceable but it did number follow from this that both laws were of the same quality and character and stood on the same footing for all purposes. The proposition laid down by the learned Judge was that if a law is enacted by a legislature on a topic number within its companypetence, the law was a nullity but if the law was on a topic within its companypetence but if it violated some companystitutional prohibition. the law was only unenforceable and number a nullity. In other words, a law if it lacks legislative companypetence was absolutely null and void and a subsequent cession of the legislative topic would number revive the law which was stillborn and the law would have to be re-enacted but a law within the legislative companypetence but violative of companystitutional limitation was unenforceable but once the limitation was removed, the law became effective. The learned judge said that the observa- tions of Mahajan, J, in Pesikakas case 3 that qua citizens that part of s.13 b of the Bombay Prohibition Act, 1949, which had been declared invalid by this Court had to be regarded as null and void companyld numberin the companytext be companystrued as implying that the impugned law mustbe regarded as number-est so as to be incapable of taking effect when thebar was removed. He summed up the result of the authorities as follows Where an enactment is unconstitutional in part but valid as to the rest, assuming of companyrse that the two portions are sever able, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and 1 1951 S.C.R 228. 2 1958 S.C.R. 1422. 3 1955 1 S.C.R. 613. being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed, and there is numberneed for a fresh legislation. In Deep Chand v. State of U. P. and Others t it was held that a post-Constitution law is void from its inception but that a pre-Constitution law having been validly enacted would companytinue in force so far as number-citizens are companycerned after the Constitution came into force. The Court further said that there is numberdistinction in the meaning, of the word void in article 13 1 and in 13 2 and that it companynoted the same companycept but, since from its inception the post-Constitution lay is void, the law cannot be resuscitated without reenactment. Subba Rao, J. who wrote the majority judgment said after citing the observations of Das, Actg. C.J. in Keshava Madhava Menons Case supra The second part of the observation directly applies only to a case companyered by article 13 1 , for the learned Judges say that the laws exist for the purposes of pre- companystitution rights and liabilities and they remain operative even after the Constitution as against number-citizens. The said observation companyld number obviously apply to post Constitu- tution laws. Even so, it is said that by a parity of reasoning the post-Constitution laws are also void to the, extent of their repugnancy and therefore the law in respect of numbercitizens will be on the statute-book and by the application of the doctrine of eclipse, the same result should flow in its case also. There is some plausibility in this argument, but it ignores one vital principle, viz., the existence or the number-existence of legislative power or companypetency at the time the law is made governs the situation p. 38 . Das, C.J. dissented. He was of the view that a post- Constitution law may infringe either a fundamental right companyferred on citizens only or a fundamental right companyferred on any person, citizen or numbercitizen and that in the first case the law will number stand in the way of the exercise by the citizens of that fundamental right and therefore, will number have any operation on the rights of the citizens, but it will be quite effective as regards number-citizens. In Mahendra Lal Jaini v. The State of U.P. and Others 2 , the Court was of the view that the meaning of the word void is the same both in article 13 1 and article 13 2 and that the application of the doctrine of eclipse in the case of pre-Constitution laws and number in the case of post- Constitution laws does number depend upon the two parts of article 13 that it arises from the inherent difference between article 13 1 and article 13 2 arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with post-Constitution laws, with the result that in one case the laws being number still-born the doctrine of eclipse will apply while in the other 1 1959 Supp.2 S.C.R.8. 2 1963 Supp. 1 S. C. R. 912. case the law being still-born there will be numberscope for the application of the doctrine of eclipse. If the meaning of the word void in article 13 1 is the same as its meaning in article 13 2 , it is difficult to understand why a pre-Constitution law which takes away or abridges the rights under article. 19 should remain operative even after the Constitution came into. force as regards number-citizens and a post-Constitution law which takes away or abridges them should number be operative as respects numbercitizens. The fact that pre-Constitution law was valid when enacted can afford numberreason why it should remain operative as respects numbercitizens after the Constitution came into force as it became void on account of its inconsistency with the provisions of Part 111. Therefore, the real reason why it remains operative as against number- citizens is that it is void only to the extent of its inconsistency with the rights companyferred under Article 19 and that its voidness is, therefore, companyfined to citizens, as, ex hypothesis the law became inconsistent with their fundamental rights alone. If that be so, we see numberreason why a post-Constitution law which takes away or abridges the rights companyferred by article 19 should number be operative in regard to number-citizens as it is void only to the extent of the companytravention of the rights companyferred on citizens, namely, those under article 19. Article 13 2 is an injunction to the state number to pass any law which takes away or abridges the fundamental rights companyferred by Part III and the companysequence of the companytravention of the injunction is that the law would be void to the extent of the companytravention. The expression to the extent of the companytravention in the sub-article can only mean, to the extent of the companytravention of the rights companyferred under that part. Rights do number exist in vacuum. They must always inhere in some person whether natural or juridical and, under Part It, they inhere even in fluctuating bodies like a linguistic or religious minorities or denominations. And, when the sub-article says that the law would be void to the extent of the companytravention, it can only mean to the extent of the companytravention of the rights companyferred on persons, minorities or denominations, as the case may be. Just as a pre-Constitution law taking away or abridging the fundamental rights under article 19 remains operative after the Constitution came into force as respects number-citizens as it is number inconsistent with their fundamental rights, so also a post-Constitution law offending article 19, remains operative as against number- citizens as it is number in companytravention of any of their fundamental rights. The same scheme permeates both,, the sub-articles, namely, to make the law void in article 13 1 to the extent of the inconsistency with the fundamental rights, and in article 13 2 to the extent of the companytravention of those rights. In other words, the voidness is number in rem but to the extent only of inconsistency or companytravention, as the case may be of the rights companyferred under Part 111. Therefore, when article 13 2 uses the ex- pression void, it can only mean, void as against persons whose fundamental rights are taken away or abridged by a law. The law might be still-born so far as the persons, entities or denominations whose fundamental rights are taken away or abridged, but there is numberreason why the law should be void or still-born as against those who have numberfundamental rights. It is said that the expression to the extent of the companytravention in the article means that the part of the law which companytravenes the fundamental right would alone be void and number the other parts which do number so companytravene. In other words, the argument was that the expression is intended to denote only the part of the law that would become void and number to show that the law will be void only as regards the persons or entities whose fundamental rights have been taken away or abridged. The first part of the sub-article speaks of any law and the second part refers to the same law by using the same expression, namely, ,any law. We think that the expression any law occurring in the latter part of the sub-article must necessarily refer to the same expression in the former part and therefore, the Constitution-makers, have already made it clear that the law that would be void is only the law that companytravenes the fundamental rights companyferred by Part 111, and so, the phrase to the extent of the companytravention can mean only to the extent of the companytravention of the rights companyferred. For instance, if a section in a statute takes away or abridges any of the rights companyferred by Part III it will be void because it is the law embodied in the section which takes away or abridges the fundamental right. And this is precisely what the sub- article has said in express terms by employing the expression any law both in the former and the latter part of it. It is difficult to see the reason why the Constitution makers wanted to state that the other sections, which did number violate the fundamental right, would number be void, and any such categorical statement would have been wrong, as the other sections might be void if they are inseparably knitted to the void one. When we see that the latter part of the sub-article is companycerned with the effect of the voilation of the injunction companytained in the former part, the words to the extent of the companytravention can only refer to the rights companyferred under Part III and denote only the companypass of voidness with respect to persons or entities resulting from the companytravention of the rights companyferred upon them. Why is it that a law is void under article 13 2 ? It is only because the law takes away or abridges a fundamental right. There are many fundamental rights and they inhere in diverse types of persons, minorities or denominations. There is number,conceivable reason why a law which takes away the fundamental right of one class of persons, or minorities or denominations should be void as against others who have numbersuch fundamental rights as, ex hypothesi the law cannot companytravene their rights. It was submitted that this Court has rejected the distinction drawn by Venkatarama Aiyar, J. in Sundararamaiers case 1 between legislative incapacity arising from lack of power under the relevant legislative entry and that arising from a check upon legislative power on account of companystitutional provisions like fundamental rights and that if the law enacted by a legislature having numbercapacity in the former sense would be void in rem, there is numberreason why a law passed by a legislature having numberlegislative capacity in the latter 1 1958 S.C.R. 1422. sense is void only cua persons whose fundamental rights are taken away or abridged. It was also urged that the expression the State shall number make any law in article 13 2 is a clear mandate of the fundamental law of the, land and, therefore, it is a case of total incapacity and total want of power. But the question is what is the mandate ? The mandate is that the State shall number make any law which takes away or abridges the rights companyferred by Part 111. If numberrights are companyferred under Part III upon a person, or, if rights are companyferred, but they are number taken away or abridged by the law, where is the incapacity of the legislature ? It may be numbered that both in Deep Chands Case supra and Mahendra Lal Jains case supra , the decision in Sundaramaiers case supra was number adverted to. If on a textual reading of article 13, the companyclusion which we have reached is the only, reasonable one, we need number pause to companysider whether that companyclusion companyld be arrived at except on the basis of the distinction drawn by Venkatarama Aiyar, J, in Sundararamaies case supra . However, we venture to think that there is numberhing strange in the numberion of a legislature having numberinherent legislative capacity or power to take away or abridge by a law the fundamental rights companyferred on citizens and yet having legislative power to pass the same law in respect of numbercitizens who have numbersuch fundamental rights to be taken away or abridged. In other words, the legislative incapacity subjectwise with reference to Articles 245 and 246 in this companytext would be the taking. away or abridging by law the fundamental rights under Article 19 of citizens. Mr. H. W. R. Wade has urged with companysiderable force that the terms void and voidable are inappropriate in the sphere of administrative law 1 . According to him, there is numbersuch thing as voidness, in an absolute sense, for, the whole question is void as against whom? And he cites the decision of the Privy Council in Durayappah v. Fernando 2 in his support. In Jagannath v. Authorised Officer, Land Reforms 3 this Court has said that a post-Constitution Act-which has been struck down for violating the fundamental rights companyferred under Part III and was, therefore still-born, has still an existence without re-enactment, for being put in the Ninth Schedule. That only illustrates that any statement that a law which takes away or abridges fundamental rights companyferred under Part III is still-born or null and void requires qualifications in certain situations. Although the general rule is that a statute declared unconstitutional is void at all times and that its invalidity must be recognized and acknowledged for all purposes and is numberlaw and a nullity, this is neither universally number absolutely true, and there are many exceptions to it. A realistic approach has been eroding the doctrine of absolute nullity in all cases and for all purposes 4 and it has been held that such broad statements must be See Unlawful Administrative Action, 83 Law Quarterly Rev. 499, at 518. 2 1967 3 W.L.R. 289. 3 1971 2 S.C.C. 893. See Warring v. Colpoys, 122 F. 2d 642. taken with some qualifications 1 , that even an unconstitution statute is an Operative fact 2 at least prior to a determination of companystitutionality 1 , and may have companysequences which cannot ignored 1 . See Corpus Justice Secundum, Vol. 16, p. 469 . This is illustrated by the analysis given by kelsen 3 The decision made by the companypetent authority that something that presents itself as a numberm is null ab initio because it fulfils the companyditions of nullity determined by the legal order is a companystitutive act it has a definite legal effect without and prior to this act the phenomenon in question cannot, be companysidered as null. Hence the decision is number declaratory, that is to say, it is number, as it presents itself, a declaration of nullity it is a true annulment, an annulment ,with retroactive force. There must be something legally existing to which this decision refers. Hence, the phenomenon in question cannot be something null ab initio, that is to say, legally numberhing. It has to be companysidered as a numberm annulled with retroactive force by the decision declaring it null ab initio. Just as everything King Midas touched turned into gold, everything to which the law refers becomes law, i.e., something legally existing. We do number think it necessary to pursue this aspect further in this case. For our purpose it is enough to say that if a law is otherwise good and does number companytravene any of their fundamental rights, numbercitizens cannot take advantage of the voidness of the law for the reason that it companytravenes the fundamental right of citizens and claim that there is numberlaw at all. Nor would this proposition violate any principle of equality before the law because citizens and number-citizens are number similarly situated as the citizens have certain fundamental rights which number-citizens have number. Therefore, even assuming that under article 226 of the Constitution, the first respondent was entitled to move the High Court and seek, a remedy for infringement of its ordinary right to property, the impugned provisions were number number-est but were valid laws enacted by a companypetent legislature as respects number-citizens and the first respondent cannot take the plea that its rights to property are being taken away or abridged without the authority of law. Now, let us see whether the definition,of establishment in s. 2 4 violates the right under article 14 and make the impugned provisions void. The High Court held that there was numberintelligible differentia to distinguish establishments grouped together under the definition of establishment in S. 2 4 and establishments left out of the group and that in any event, the differentia had numberrational relation or nexus with the object sought to be achieved by the Act and that the im- See Chicot Country Drainage District v. Baxter State Bank, Ark., 308 U.S. 371. See warring v. companypoys, 122 F. 2d 642. See General Theory of Law and State, p. 161. pugned provisions as they affected the rights and liabilities of employers and employees in respect of the establishments defined in s. 2 4 were, therefore, violative of article 14. The reasoning of the High Court was that all factories falling within the meaning of s. 2 m of the Factories Act, 1 948, were brought within the purview of the definition of establishment while establishments carrying business or trade and employing less than fifty persons were left out and that out of this latter class of establishments an exception was made and all establishments carrying on the business of tramways or motor omnibus services were included without any fair reason and that, though Government establishments which were factories were included within the definition of establishment, other Government establishments were excluded and, therefore, the classification was unreasonable. The definition of establishment includes factories, tramway or motor omnibus services and any establishment carrying on business or trade and employing more than 50 persons, but excludes all Government establishments carrying on business or trade. In the High Court, an affidavit was filed by Mr. Brahmbhatt, Deputy Secretary to Education and Labour Department, wherein it was stated that the differentiation between factories and companymercial establishments employing less than 50 persons was made for the reason that the turnover of labour is more in factories than in companymercial establishments other than factories on account of the fact that industrial. labour frequently changes employment for a variety of reasons. The High Court was number prepared to accept this explanation. The High Court said It may that in case, of companymercial establishment employing number more than 50 persons the, turnover of labour in companymercial establishments being less the unpaid accumula- tions may be small. But whether unpaid accumulation are small or large, is an immaterial companysideration for of enactment of the impugned provisions. T the impugned provisions being to get at the unpaid accumu- lations and to utilize them for the benefit of labour, the extent of the unpaid accumulations with any particular establishment can never be a relevant companysideration. According to the High Court, as an establishment carrying on tramway or motor omnibus service would be within the definition of establishment even if it employs less than 50 persons, or for that matter, even less than 10 persons, the reason given in the affidavit of Mr. Brahmbhatta for excluding all companymercial establishments employing less than 50 persons from the definition was number. tenable. The Courts was also of the view that when Government factories were included in the definition of establishment there was numberreason for excluding government establishments other than factories from the definition. The affidavit of Mr. Brahmbhatt made it clear that there were hardly any establishments of the Central or State Governments which carried on business or trade or any work in companynection with or ancillary thereto and, therefore, the legislature did number think it fit to extend the provisions of the Act to such establishments. No affidavit in rejoinder was filed on behalf of respondents to companytradict this statement. It would be an idle parade of familiar learning to review the multitudinous cases in which the companystitutional assurance of equality before the law has been applied. The equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. 1 And the very idea of1 classification is that of inequality. In tackling this paradox the Court ha,, neither abandoned the demand for equality number denied the legislative right to classify. It has taken a middle companyrse. It has resolved the companytradictory demands of legislative specialization and companystitutional generality by a doctrine of reasonable classification. 1 A reasonable classification is one which includes all who are similarly situated and numbere who are number. The question then is what does the phrase similarly situated mean ? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good. A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does number include. In other words, a classification is bad as under,-inclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does number companyfer the same benefit or place the same burden on others who are similarly situated. A classification is over- inclusive, when it includes number only those who are similarly situated with respect to the purpose but others who are number so situated as well. In other words, this type of classification imposes a burden upon a wider range of individuals than are included in the class of those attended with mischief at which the law aims. Herod ordering the death of all male children born on a particular day because one of them would sonic day bring about his downfall employed such a classification. The first question, therefore, is whether the exclusion of establishments carrying on business or trade and employing less than 50 persons makes the classification under- inclusive, when it is seen that all factories employing 10 or 20 persons, as the case may be, have been included and that the, purpose of the law is to get in unpaid accumula- tions for the welfare of the labour. Since the classification does number include all who are similarly situated with respect to the purpose of the law, the classification might appear, at first blush, to be unreas- onable. But the Court has recognised the very real difficulties under which legislatures operate-difficulties arising out of both the nature See Joseph Tussman and Jacobus ten Brcek, The Equal Protaction of the Laws, 37 California Rev. 341. of the legislative process and of the society which legislation attempts perennially to re-shape--and it has refused to strike down indiscriminately all legislation embodying classificatory inequality here under companysideration. Mr. Justice Holmes, in urging tolerance of under-inclusive classifications, stated that such legislation should number be disturbed by the Court unless it can clearly see that there is numberfair reason for the law which would number require with equal force its extension to those whom it leaves untouched 1 . What, then, are the fair reasons for number-extension ? What should a companyrt do when it is faced with a law making an under-inclusive classification in areas relating to economic and tax matters ? Should it, by its judgment, force the legislature to choose between inaction or perfection ? The legislature cannot be required to impose upon administrative agencies tasks which cannot be carried out or which must be carried out on a large scale at a single stroke. if the law presumably hits the evil where it is most felt. it is number to be overthrown because there are other instances to which it might have been applied. There is numberdoctrinaire requirement that the legislation should be companyched in all embracing terms. see West Coast Hotel Company v. Parrish2 . The piecemeal approach to a general problem permitted by under inclusive classifications, appears justified when it is companysidered that legislative dealing with such problems is usually an experimental matter. It is impossible to tell how successful a particular approach may be, what dislocations might occur, what evasions might develop. what new evils might be generated in the attempt. Administrative expedients must be forged and tested. Legislators, recognizing these factors, may wish to proceed cautiously, and companyrts must allow them to lo so supra . Administrative companyvenience in the companylection of unpaid accumulations is a factor to be taken into account in adjudging whether the classification is reasonable. A legislation may take one step at a time addressing itself to the phase of the problem which seems most acute to the legislative mind. Therefore, a legislature might select only one phase of one filed for application or a remedy 3 . It may be remembered that article 14 does number require that every regulatory statute apply to all in the same business where size is an index to the evil at which the law is directed, discriminations between the large and small are permissible, and it is also permissible for reform to take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. See Missouri, R T Rly., v. May 1904 194 US 267, 269. 2 300 U.S. 379, 400. See Two Guys from Harrison-Allentown v. McGinley , 366 S. 582, 592. A legislative authority acting within its field is number bound to extend its regulation to all cases which it might possibly reach. The legislature is free to recognize degrees of harm and it may companyfine the restrictions to those classes of cases where the need seemed to be clearest see Mutual Loan, Co. v. Martell 1 . In short, the problem of legislative classification is a perennial one, admitting of numberdoctrinaire definition. Evils in the same filed may be of different dimensions and proportions requiring different remedies. Or so the legislature may think see Tigner v. Texas 2 . ,Once an objective is decided to be within legislative companypetence, however, the working out of classifications has been only infrequently impeded by judicial negatives. The Courts attitude cannot be that the state either has to regulate all businesses, or even all related businesses, and in the same way, or, number at all. An effort to strike at a particular economic evil companyld number be hindered by the necessity of carrying in its wake a train of vexatious, troublesome and expensive regulations companyering the whole range of companynected or similar enterprises. Laws regulating economic activity would be viewed differently from laws which touch and companycern freedom of speech and religion, voting, procreation, rights with respect to criminal procedure, etc. The prominence given to the equal protection clause in many modern opinions and decisions in America all show that the Court feels less companystrained to give judicial deference to legislative judgment in the field of human and civil rights than in that of economic regulation and that it is making a vigorous use of the equal protection clause to strike down legislative action in the area of fundamental human rights 3 . Equal Protection clause rests upon two largely subjective judgments one as to the relative invidiousness of particular differentiation and the other as to the relative importance of the subject with respect to which equality is sought 4 . The question whether, under article 14, a classification is reasonable or unreasonable must, in the ultimate analysis depend upon the judicial approach to the problem. The great divide in this area lies in the difference between emphasizing the actualities or the abstractions of legisla- tion. The more companyplicated society becomes, the greater the diversity of its problems and the more does legislation direct itself to the diversities. Statutes are directed to less than universal situations. Law reflects distinction that exist in fact or at least appear to exist in the judgment of legislators-those, who have the responsibility for making law fit fact. Legislation is essentially empiric. It addresses itself to the more or less crude outside world and number to the neat, logical models of the mind. Classification is inherent in legislation. To recognize 1 56 L. Ed., 175,180 2 310 U.S. 141. See Developments-Equal Protection. 82 Harv. Law Rev., 1065, at 1127 See Cox, The Supreme Court Foreward, 1966 Term, 80 Harv. Law Rev. 91-95. marked differences that exist in fact is living law to disregard practical differences and companycentrate on some abstract identities is lifeless logic 1 . That the legislation is directed to practical problems, that the economic mechanism is highly sensitive and companyplex, that many problems are singular and companytingent, that laws are number abstract propositions and do number relate to abstract units and are number to be measured by abstract symmetry, that exact wisdom and nice adaption of remedies cannot be required, that judgment is largely a prophecy based on meagre and uninterpreted experience, should stand as reminder that in this area the Court does number lake the equal protection requirement in a pedagogic manner supra . In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if number judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The Courts have only the power to destroy, number to reconstruct. When these are added to the companyplexity of economic regulation, the uncertainty, the liability to error, the bewildering companyflict of the experts, and the number of times the judges have been overruled by events--self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability supra . We must be fastidiously careful to observe the admonition of Mr. Justice Brandeis, Mr. Justice Stone and Mr. Justice Cardozo that we do number sit as a super-legislature see their dissenting opinion in Colgate v. Harvey 2 . Let us look at the problem here in the light of the above discussion. The purpose of the Act is to get unpaid accumulations for utilizing them for the welfare of labour in general. The aim of any legislature would then be, to get the unpaid accumulation from all companycerns. So an ideal classification should include all companycerns which have unpaid accumulations. But then there are practical problems. Administrative companyvenience as well as the apprehension whether the experiment., if undertaken as an all-embracing one will be successful, are legitimate companysiderations in companyfining the realization of the objective in the first instance to large companycerns such as factories employing large amount of labour and, with statutory duty to keep register of wages, paid and unpaid, and the legislature has, in fact,, brought all factories, whether owned by Government of otherwise, within the purview of the definition of establishment. In other words, it is from the factories that the greatest amount of unpaid accumulations companyld be companylected and since, the factories are bound to maintain records from which. the amount of unpaid accumulations companyld be easily ascertained, the legislature brought all the factories within the definition of establishment. It then addressed itself to other establishments but thought that establishments employing, less than 50 persons need number be brought within the See the observations of Justice- Frankfurter in Morey v. Doud, 354 U.S. 457, 472. 2 296 U.S. 404, 441. purview of the definition as unpaid accumulations in those establishments would be less and might number be sufficient to meet the administrative expenses of companylection and as many of them might number be maintaining records from which the amount of unpaid accumulations companyld be ascertained. The affidavit of Mr. Brahmbhatt made it clear that unpaid accumulations in these establishments would be companyparatively small. The reason why government establishments other than factories were number included in the definition is also stated in the affidavit of Mr. Brahmbhatt, namely, that there were hardly any establishments run by the Central or State Government. This statement was number companytradicted by any affidavit in rejoinder. There remains then the further question whether there was any justification for including tramways and motor omnibuses within the purview of the definition. So far as tramways and motor omnibuses are companycerned, the legislature of Bombay, when it enacted the Act in 1953, must have had reason to think that unpaid accumulations in these companycerns would be large as they usually employed large amount of labour force and that they were bound to keep records of the wages earned and paid. Section 2 ii a of the Payment of Wages Act, 1936, before that section was amended in 1965 so far as it is material provided In this Act, unless there is anything repugnant in the subject or companytext,- industrial establishment means any-- a tramway or motor omnibus service. Rule 5 of the Bombay Payment of Wages Rules, 1937 provided Register of Wages A Register of Wages shall be maintained in every factory and industrial establishment and may be kept in such form as the paymaster finds companyvenient but shall include the following particulars a the gross wages earned by each person employed for each wage period b all deductions made from those wages, with an indication in each case of the clause of sub-section 2 of section 7 under which the deduction is made c the wages actually paid to each person employed for each wage period. The Court must be aware of its own remoteness and lack of familiarity with local problems. Classification is dependent on the peculiar needs and specific difficulties of the companymunity. The needs and difficulties of the companymunity are companystituted out of facts and opinions beyond the easy ken of the companyrt supra . It depends to a great extent upon an assessment of the local companydition of these companycerns which the legislature alone was companypetent to make. Judicial deference to legislature in instances of economic regulation is sometimes explained by the argument that rationality of a classification may depend upon local companyditions about which local legislative or administrative body would be better informed than a companyrt. Consequently, lacking the capacity to inform it-,elf fully about the peculiarities of a particular local situation, a companyrt should hesitate to dub the legislative classification irrational see, Carmichnel v. Southern Coal and Coke Co. 1 . Tax laws, for example, may respond closely to local needs and companyrts familiarity with these needs is likely to be limited. Mr. S. T. Desai for the appellants argued that, if it is held that the inclusion of tramways and motor omnibuses in the category of establishment is bad, the legislative intention to include factories and establishments employing more than 50 persons should number be thwarted by striking down the whole definition. He said that. the doctrine of severability can be applied and that establishments running tramways and motor omnibuses can be excluded from the definition without in the least sacrificing the legislative intention. In Skinner v. Iklahoma ex rel Williamson 2 a statute providing for sterilization of habitual criminals excluded embezzlers and certain other criminals from its companyerage. The Supreme Court found that the statutory classification denied equal protection and remanded the case to the State Court to determine whether the sterilization provisions should be either invalidated or made to companyer all habitual, criminals. Without elaboration, the State Court held the entire statute unconstitutional, declining to use the severability clause to remove the exception that created the discrimination. In Skinners case the exception may have suggested a particular legislative intent that one class should number be companyered even if the result was that numbere would be. But there is numbernecessary reason for choosing the intent to exclude one group over the intent to include another. Courts may reason that without legislation numbere would be companyered, and that invalidating the exemption therefore amounts to illegitimate judicial legislation over the remaining class number previously companyered. The companyclusion, then, is to invalidate the whole statute, numbermatter how narrow the exemption had been. The reluctance to extend legislation may be particularly great if a statute defining a crime is before a companyrt, since extension would make behaviour criminal that had number been so before. But the companysequences of invalidation will be unacceptable if the legislation is necessary to all important public purpose. For example, a statute requiring licensing of all doctors except those from a certain school companyld be found to deny equal protection, but a companyrt should be hesitant to choose invalidation of licensing as an appropriate remedy. Though the test is imprecise-, a companyrt must weigh the general interest in retaining the statute against the companyrts own reluctance to extend legislation to those numberpreviously companyered. Such an inquiry may lead a companyrt into examination of legislative purpose, the overall statutory scheme, statutory arrangements in companynected fields and the needs of the public , . 1 301 U.S. 495. 2 316 U.S. 535. See Developments-Equal Protection, 82 Harv. Law Rev., 1065, ,it pp. 1136-7. This Court has, without articulating any reason, applied the doctrine of severability by deleting the offending clause which made classification unreasonable see Jalan Trading Co. v. Mazdoor Union 1 and Anandji Co. v. S.T.O. 2 .

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 1177 of 1973 Under Article 32 of the Constitution for enforcement of the fundamental rights . Sen with K. P. Munshi, U. K. Khaitan and S. R. Agarwala, for the petitioner. S. Dharmadhi Kari with Ram Punjwani and. I.N. Sharff. for the respondent 1-3 In W. P. 1177 N. Ganpule and Urmila Sirur for the respondent 4-6 in W. P. 1177 The Judgment of the Court was delivered by BHAGWATI, J.-The petitioner carries on business of printing, publishing and selling text books for use in Primary, Middle schools and Higher Secondary classes in schools in the State of Madhya Pradesh. On 1st November, 1956, as a result of the reorganisation of States under the States Reorganization Act, 1956, a new State of Madhya Pradesh was formed companyprising of territories of the existing States of Madhya Pradesh known as Mahakoshal area, the territories of the existing State of Madhya Bharat, excluding Sunel Tappa, Sironj SubDivision of Kotah District in the existing State of Rajasthan and the territories of the existing States of Bhopal and Vindhya Pradesh. We are companycerned in this petition mainly with Mahakoshal and Madhya Bharat regions of the State of Madhya Pradesh and we shall, therefore, so far as any references to the position obtaining prior to the reorganization of the States is companycerned, companyfine our attention only to those two regions. The school education in the State of Madhya Pradesh, and-prior to the reorganization of the States, in the Mahakoshal and Madhya Bharat regions, has always been divided structurally in three stages, namely Primay, Middle school and Higher Secondary. Primay education companysists of classes I to V, Middle School, of classes VI to VIll and Higher Secondary of classes IX to XI. Primary and Middle school education may be companysidered together, for barring a short period upto the enactment of the Madhya Pradesh Secondary Education Act, 1959 hereinafter referred to as the Act of 1959 , when Middle school education was clubbed together with Higher Secondary education and was treated differently from Primary education, Middle school education has always been treated on the same basis as Primary education in companytrast to Higher Secondary Education. it is number necessary for the purpose of the present petition to trace the history of the regulation of Primary and Middle school education from the inception, It would be sufficient to state that Primary education at all times and Middle school education, so far as Mahakoshal region is companycerned, after the enactment of the Act of 1959, and in other regions even before that time, were regulated by the State Government. The State Government prescribed the companyrses of instruction and syllabi for all classes of Primary and Middle school education and they were followed number only by Government schools but also by private schools, number because of any statutory authority, but because most of the private schools depended on grant-in-aid from the State Government and unless the companyrses of instruction and syllabi prescribed by the State Government were followed by them, they would number be recognized by the Board of Secondary Education so as to be able to present their students for the examination to be held by the Board a sine qua number for admission to a university-unless their Primary and Middle schools sections were recognized by the State Government. So far as the text books for use in Primary and Middle school classes were company- cerned, the State Government prescribed 29 text books printed and published by it on different subjects for use in different classes. There was of-course, numberstatutory provision under which these 29 text books companyld be prescribed by the State Government and the prescription of these 29 text books had, therefore, numberstatutory authority but private schools, numberless than Government schools, accepted these 29 text books because number-acceptance would have involved estoppage of grant-in-aid from the State Government. In the meantime a Society called the Madhya Pradesh Pathya Pustak Rachna Avam Shaikshinik Anusandhan Nigam hereinafter referred to as the Text Books Corporation was formed by the State Government for the purpose of carrying on the work of printing, publishing and distributing text books for use in the Primary and Middle school classes in the State of Madhya Pradesh. The Minister incharge of the portfolio of education was an ex-officio, Chairman of the text Books Corporation, while some officers of the Government companynected with the Education Department were ex-officio members along with certain other number- official members numberinated by the State Government. The Text Books Corporation was registered under the Madhya Pradesh Societies Act, 1959 and according to the provisions of that Act, it was to function on a numberprofit-no loss basis. The initial resources of the Text Books Corporation were provided by the State Government by giving a loan of Rs. 15 lacs for the purpose Of enabling it to companymence its operations. The Text Books Corporation was by its very companystitution companytrolled by the State Government and it was intended to function as an agency of the State Government. The work of printing and publishing of text books was, however number companymenced immediately by the Text Books Corporation and until the end of the academic year 1970-71, the aforesaid 29 text books printed and published by the State Government companytinued to be prescribed and used in the Primary and Middle school classes. There was, however, a change in the companyrse of instruction and syllabi in some of the subjects from the academic year 1971-72. The State ,Government by a numberification dated 18th May, 1971 prescribed improved companyrses of instruction and syallabi in certain subjects to be followed from the academic year 1971-72 and directed that so far as companyrses ,of instruction and syallabi in the other subjects were companycerned, they should companytinue to be the same as in the previous academic year 1970-71. The aforesaid 29 text books printed and published by the State Government, number being in accordance with the new companyrses of instruction and syallabi so prescribed, were rendered useless and in their place,. new text books had to be brought out which would be in companyformity with such new companyrses of instruction and syallabi. The Text Books Corporation accordingly printed and published 28 text books in accordance with the new companyrses of instruction and syallabi and these 28 text books were prescribed by the State Government by a numberification dated 21st May, 1971 for use in the Primary and Middle school classes for the academic year 1971-72. The number of text books printed and published by the Text Books Corporation was reduced from 29 to 28 because one text book, namely, Bal Bharati Praveshika, which was printed and published by the State Government as a separate book, was amalgamated by the Text Books Corporation with Bal Bharati Part 1. These 28 text books brought out by the Text Books Corporation were referred to by the State Government as nationalized text books as the Text Books Corporation was merely an agency set up by the State Government for carrying out the work of printing, publishing and distribution of text books. The State Government made it clear in the numberification dated 21st May, 1971 that so far as the other subjects were companycerned for which such nationalised text books were number available, the schools were free to use according to their companyvenience such books of private publishers as they liked, provided they were written in accordance with the companyrses of instruction and syllabi for the academic year 1970-71. The result was that in the Primary and Middle school classes for the academic year 1971-72, the above mentioned 28. text books, printed and published by the Text Books Corporation. were used exclusively as text books for the subjects dealt with by them. while for the other subjects text books printed and published by private publishers were used according to the companyvenience of the schools. The companyrses of instruction and syallabi for the next academic year 1972-73 were prescribed by the State Government by a numberification dated 10th May 1972 and by this numberification the State Government in- troduced new companyrses of instruction and syallabi in certain subjects and with regard to the rest, directed that the same companyrses of instruction and syallabi as also the same text books shall companytinue to be in use as in the academic year 1971-72. The same 28 text books, printed and published by the Text Books Corporation, revised in accordance with the new companyrses of instruction and syallabi where necessary companytinued to be prescribed as text books for the academic year 1972-73. The Text Books Corporation thereafter brought out eight further text books making in the aggregate 36 text books printed and published by then and as appears from the circular dated 30th August 1973 issued by the Director of Public Instruction, an order dated 23rd Match 1973 was issued by the State Government prescribing these 36 text books for use in the Primary and Middle school classes. This order had number been challenged in the present petition or in the voluminous affidavits filed on behalf of the parties and it need number therefore engage our attention. The learned companynsel appearing on behalf of the petitioner did make an attempt in the companyrse of the argument to challenge the validity of this order but when we pointed out to him that there was numberchallenge against it in the petition and it was, therefore, number open to him to assail its validity on the petition as it stood he rightly withdrew his attack. This, of-course, does number mean that the petitioner cannot challenge the validity of this order in any other appropriate proceeding which he may take for that purpose, provided he has valid grounds for doing so. So far as Higher Secondary education is companycerned, it was regulated by the Madhya Pradesh Education Act, 1951 in the Mahakoshal region and by the Madhya Bharat Secondary Education Act, Samvat 2007 in the Madhya Bharat region. It is number necessary to refer to the provisions of these two statutes, for both of them were repealed by the Act of 1959 which was enacted by the Legislature of the new State of Madhya Pradesh after the reorganization of that State. Section 3 of that Act provided for the incorporation of the Board of Secondary Education and s. 4 laid down its companyposition. The powers of the Board were set out in s. 8, which provided inter alia that the Board shall have the power to prescribe companyrses of instruction in such branches of Secondary Education as it may think fit. Sections 18 and 19 companystituted a salient and distinguishing feature of this Act. They were based on the recommendations made by the Secondary Education Commission, 1952-53 set up by the Government of India. The Secondary Education Commission suggested in its report that it was necessary that all political and other extraneous influence must be eschewed in the selection of taxt books for use in Higher Secondary classes and this was possible only if a high power companymittee was entrusted with this task. What should be the companystitution of this high power companymittee and what functions must be assigned to it also formed the subject matter ,of recommendations made by the Secondary Education Commission. These recommendations formed the basis for the enactment of ss. 18 and 19. Section 18 provided for the companystitution of a companymittee called the Text Books Committee which was to companysist of distinguished independent persons who would be free from political and other extraneous influences and they included inter alia a sitting or retired Judge of the High Court or a District Judge, a member of the State Public Service Commission, a Vice-Chancellor of a university in the State and two leading educationists. The functions of the Text Books Committee were difined by s. 19 to be as follows 1 to select text books for prescribed companyrses of instructions and syllabi for Secondary Education 2 to prepare a panel of expert reviewers for each of the subjects included in the secondary school education curriculum 3 to appoint expert companymittees companysisting of number more than three members from amongst the panel of experts to examine and submit a detailed report on the suitability of the books referred to them 4 to invite experts to write text books and other books of study, if necessary,-- Though one of the functions entrusted to the Text Books Committee was to select text books for prescribed companyrses of instruction and syllabi, numberpower was given to the Board to prescribe the text books selected by the Text Books Committee. The Board, however, claimed to have the power to prescribe text books in languages on the ground that the power to prescribe companyrses of instruction and syllabi in languages carried with it by necessary implication the power to prescribe text books and on that view, the Board, on the basis of the selections made by the Text Books Committee, prescribed text books in English, Hindi, Marathi and Sanskrit. The Madhya Pradesh Madhyamik Shiksha Adhiniyam 1965 here- inafter referred to as the Act of 1965 was enacted by the Madhya Pradesh Legislature on 29th September 1965 and by s. 30, it repealed the Act of 1959. Section 3 of that Act provided for the incorporation of the Board of Secondary Education and its companystitution was laid down in s. 4. Section 8 defined the powers of the Board which included inter alia the power a to prescribe companyses of instruction in such branches of Secondary Education as it may think fit in to advise the State Government as to the companyrses of instruction and syllabi of Middle School Education with a view to secure company ordination between Middle School and Secondary Education The last quoted cl. m of s. 8 clearly postulated that the State Government has the power to prescribe companyrses of instruction and syllabi for Middle School classes. Section 24 empowered the Board to companystitute various companymittees which included inter alia Committees of Courses and their companystitution, powers and duties were to be provided by re- gulations made by the Board under s. 28. The Board in exercise of the power companyferredunder s. 28 made the Board of Secondary Education, MahdyaPradesh Regulations, 1965 hereinafter referred to as the Regulations .Regulation 30 provided that the Board shall appoint Committees of Courses in the subject enumerated in that regulation and each Committee of Courses was enjoined by regulation 32 to lay down a syllabus in the subject or subjects with which it is companycerned,, and recommend suitable text books when called upon to do so. It was number stated in the Regulations as to who companyld call upon the appropriate Committee of Courses to recommend suitable text books but obviously what was companytemplated was that the Board would require the appropriate Committee of Courses to make recommendations in regard to text books. Now, the Board was number given the power to prescribe text books, and therefore, the recommendation of suitable text books invited from the appropriate Committee of Courses companyld only be for the purpose of enabling the Board in its turn to recommend such text books for use by schools in the Higher Secondary classes. In fact, the Board did number claim to exercise the power to prescribe text books on any subjects other than languages. The Board prescribed text books only on languages and so far as the other subjects were companycerned, the Board merely recommended text books on some of those subjects. The procedure followed by the Board for prescribing or recommending text books under the Act of 1965 and the Regulations was as follows The Board invited publishers desiring to get their text books selected to register themselves with the Board and several publishers accordingly got themselves registered and the petitioner was one of them. The detailed instructions and specifications in regard to the text books on matters such as quality of paper, number of pages, price etc. were laid down by the Board and the registered- publishers were invited to submit text books prepared in accordance with such instructions and specifications for selection by the Board. The registered publishers than got the text books written by authors of their choice in company- formity with the prescribed companyrses of instruction and syllabi and printed in accordance with the instructions and specifications given by the Board and submitted such text books to the Board for selection. The text books which were received from the registered publishers were then sent to three reviewers appointed by the Board for the relevant subject for evaluation after removing the title page, the names of the author and the publisher and every other matter that might indicate the identity of the author or the publisher. On receipt of the report of the reviewers such of the text books as were rated high by the reviewers were sent to the appropriate Committee of Courses to-ether with the report of the reviewers for the purpose of making its recommendations. The appropriate Committee of Courses after scrutinising the text books and companysidering the evaluation made by the reviewers made its recommendation to the Board as regards the merits of the text books submitted for its companysideration. The Chair man of the Board then, by virtue of the authority companyferred upon him by the Resolution of the Board dated 12th October, 1971, selected the text books after companysidering the report of the reviewers and the recommendation of the appropriate Committee of Courses and the text books so selected were prescribed or recommended, as the case may be, by the Board. This procedure gave opportunity to all the registered publishers to submit their text books for selection by the Board and provided a machinery for selection of the best text books to be recommended or prescribed by the Board. The record before us does number show precisely what were the language on which text books were prescribed by the Board, but it does appear from the affidavits and the numberification dated 28th March, 1973 issued by the Board, that text books were prescribed by the Board for most of the languages taught in the primary and middle schools, barring General English and Tamil for classes IX and X. So far as the text books recommended by the Board were companycerned, there were four numberifications issued by the Board from time to time recommending text books on different subjects for classes IX and X for the period companymencing from the academic year 1972- 73 for the Higher Secondary School Leaving Certificate Examination, 1975. The first was a numberification dated 5th April, 1972 by which the Board recommended six textbooks on Civics, the second was a numberification dated 25th April, 1972 by which the Board recommended five text books on Economics, the third was a numberification dated 26th April, 1972 by which the Board recommended eight text books on Physics and the fourth was a numberification dated 17th May, 1972 by which the Board recommended eight text books on Chemistry. There were thus four subjects on which text books were recommended by the Board. It was number seriously disputed on behalf of the petitioner that the procedure set out above for selection of text books was substantially followed by the Board in prescribing text books on languages and recommending text books on these four subjects. None of the text books prescribed or recommended by the Board was a text book printed and published, by the petitioner. The petitioner had submitted text books on Civics, Physics and Chemistry. for selection by the Board but they were rejected by the reviewers as they were found to be below standard and were printed on poor quality paper and were also companytlier than the text books submitted by other registered publishers. This was the position which obtained when the Madhya Pradesh Prathamik, Middle School Tatha Madhyamik Shiksha Pathya Pustakon Sambandhi Vyavastha Adhiniyam, 1973 hereinafter referred to as the Act of 1973 was enacted by the Madhya Pradesh Legislature. This Act came into force on 23rd March, 1973 being the date appointed under sub-s. 3 of s. The provisions of this Act are material and we may refer to them. Section 2, cl. e defines text book in the widest Possible terms and according to this definition, it means any book approved by the State Government in accordance with the syllabi prescribed under the Act for use for any examination companyducted under the authority of the State Government or by the Board or held in an approved school or a school recognized by the Board and includes other books of study or instructional material such as maps, designs and other material of like nature approved by the State Government for any standard of primary education, middle school education or secondary education in accordance with the syllabi laid down under the Act. Section 3, sub-s. 1 provides that the State Government may from time to time in relation to primary education and middle school education and the Board may from time to time in relation to Secondary education, lay down syllabi and publish the same in such manner as may be prescribed and sub-s. 2 of s. 3 says that the syllabi laid down under the authority of the State Government in the case of primary education and middle school education and by the Board in the case of secondary education and in force immediately before the appointed day, i.e., 23rd March, 1973 shall be the syllabi laid down and published for the purpose of sub-s. 1 of s. 3. Then companyes section 4 which deals with the prescription of text books according to syllabi laid down under s. 3. Since that is the section which is impugned in the present petition, we may reproduce it 4 1 The State Government may, by order, prescribe the text books according to syllabi laid down under section 3 Provided that text books for secondary education shall number be prescribed without prior companysultation with the Board. The text books prescribed by the State Government or the Board according to the syllabi referred to in sub-section 2 of section 3 and in force immediately before the appointed day shall till they are changed in accordance with the provisions Of this Act, be the text books prescribed for the purpose of subsection, 1 . As from the appointed day, numberbooks other than the text books prescribed under sub- section 1 or referred to in subsection 2 shall be used in any approved school or recognized school for imparting instructions in accordance with syllabi in primary education, middle school education or secondary education. The State Government is also given power under s. 5 to undertake the preparation, printing or distribution of text books itself or to cause the text books to be prepared, printed or distributed through such agency as it thinks fit on such terms and companyditions as may be prescribed. Section 6, provides that the text books prescribed by the State Government for any standard of secondary education shall be text books prescribed for such standard of secondary education in accordance with the syllabi and the Board shall be bound to accept the same when so prescribed by the State Government. Then follows section 7 which deals with delegation of power and the last is section 8 which companyfers power on the State Government to make rules for carrying out all or any of the purposes of the Act. It was companymon ground between the parties that numberrules have so far been made by the State Government under this section. Soon after the companying into force of the Act of 1973, the Board issued a numberification dated 28th March, 1973 which companytained inter alia the following directions The syllabus and scheme of examination for the Higher Secondary School Certificate Examination 1976 shall companytinue as per the Higher Secondary School Certificate Examination, 1975, Leaving aside General English and Tamil for classes IX and X, so far as the rest of the subjects are companycerned, the text books recommended or prescribed by the Board for the Higher Secondary School Certificate Examination 1975 shall be the recommended or prescribed text books for the Higher Secondary School Certificate Examination, 1976. The State Government thereafter in exercise of the power companyferred under s. 4, sub-s. 1 of the Act of 1973 issued a numberification dated 24th May, 1973 according its approval to certain text books on Botany, Zoology, History, Element of Commerce and English for the Higher Secondary School Certificate Examination, 1976. It was recited in the numberification that the approval to these text books was given by the State Government in companysultation with the Board. The petitioner thereupon filed the present petition claiming various reliefs under Art. 32 of the Constitution. Several companytentions were raised in the petition which has the great demerit of being a highly prolix and companyfused document, number easily yielding to analysis, but it is number necessary to delve into the petition to find out all the companytentions taken there, since at the hearing the learned companynsel for the petitioner companyfined his arguments only to the following companytentions Prior to the enactment of the Act of 1973 the State Government had numberstatutory authority to prescribe any text books for the primary and middle school classes and the numberifications dated 21st May, 1971 and 10th May, 1972 issued by the State Government prescribing 28 text books printed and published by the Text books Corporation for use in some of the primary and middle school classes were, therefore, without the authority of law and these 28 text books companyld number be said to be validly prescribed by the State Government number companyld they be said to be in force immediately before the appointed day, and if that be so, they companyld number be regarded as text books prescribed under sub-s. 2 of s. 4. Though text books on languages were prescribed by the Board, there was numberstatutory provision empowering the Board to do so and the prescription of these text books by the Board was, therefore, without the authority of law and these text books companyld number be said to be validly prescribed by the Board or to be in force immediately before the appointed day so as to qualify for being regarded as text books prescribed under s. 4, sub-s. 2 The Notification dated 28th March, 1973 undoubtedly provided that these textbooks shall be prescribed text books for the period companymencing from the academic year 1973-74, but that Notification was ineffective to prescribe any text books under s. 4, sub-s. 1 because it was issued by the Board and number by the State Government which alone companyld prescribe text books under s. 4, sub-s. 1 . The Board by issuing the numberifications dated 5th April, 1972, 25th April, 1972, 26th April, 1972 and 17th May, 1972 merely recommended certain text books on Civics, Economics, Physics and Chemistry. These text books were number prescribed by the Board and they were number in force immediately before the appointed day. They companyld number, therefore, be regarded as text books prescribed under s. 4, sub-s. 2 . Though the numberification dated 28th March, 1973 was issued after the appointed day. it did number have the effect of prescribing any of these text books under s. 4, sub-s. 1 , firstly, because it wa s issued by the Board and number by the State Government, and secondly, because it did number more than merely direct that these text books shall be recommended text books for the period companymencing from the Academic year 1973-74. Though the numberification dated 24th May, 1973 recited that the approval to the text books mentioned in the- numberification was accorded by the State Government in companysultation with the Board, there was in fact numberprior companysultation with the Board as required by the proviso to S. 4, sub-s. 1 and the numberification prescribing these text books, was therefore, null and void. Section 4 imposed unreasonable restrictions on the right of the petitioner to carry on his business of printing publishing and distributing text books for use in Primary, Middle School and Higher Secondary Classes, inasmuch as it did number provide a proper and adequate machinery for selection of the best available text books and left it to the unguided and unfettered discretion of the State Government to prescribe at its own sweet will such text books at it liked without providing any standard or. guidance which would regulate the exercise of such discretion arid it was, therefore, void as being violative of Art. 19 1 g of the Constitution. This section was also violative of the equality clause companytained in Art. 14 of the Constitution inasmuch as it enabled the State Government to discriminate between one publisher and another by leaving it to the unrestrained will of the State Government to prescribe such text books as it liked without laying down any machinery which would ensure selection of the best available text books by giving equal opportunity to all publishers. These were the only companytentions urged on behalf of the petitioner which need to be companysidered. and we shall number proceed to examine them. ReA. This companytention relates to 28 text books printed and published by the Text Books Corporation. The State Government prescribed these 28 text books for use in the primary and middle school classes at the time when the Act of 1973 had number been enacted and the question is whether the State Government was entitled to do so. There was, of companyrse, then numberstatutory provision, like s. 4, sub-s. 1 of the Act of 1973, which empowered the State Government to prescribe any text books and the prescription of these 28 text books had, therefore, numberlegal force. But that does number mean that the State Government was number entitled to prescribe these 28 text books in exercise of its executive power under Art. 162 of the Constitution. The executive power of the State Government under Art. 162 extends to all matters with respect to which the State Legislature has power to make laws and since education is a subject which falls within entry I 1 of List II of the Seventh Schedule to the Constitution, the State Government companyld apparently in exercise of its executive power prescribe these 23 text books, provided that in doing so it did number trench on the rights of any person. It is number well settled by the decision of this Court in Rai Sahib Ram Jawaya Kapur v. State of Punjab 1 that the State Government can act in exercise of executive power in relation to any matter with respect to- which the State Legislature has power to make laws, even if there is numberlegislation to support such executive action, but such executive action must number infringe the rights of any person. If the executive action taken by the State Government encroaches on any private rights, it would have to be supported by legislative authority, for under the rule of law which prevails in our companyntry every executive action which operates to the prejudice of any person must have the authority of law to support it. Vide paragraph 27 of the judgment of this Court in Bennett Coleman Co. V. Union of India. 2 The executive action of the State Government in entering upon the business 1 1955 2 S.C.R. 225. 2 1972 2 S.C.C. 788. of printing, publishing and selling text books in Rai Sahib Ram Jawayas case 1 , though number supported by legislation, was upheld because it did number operate to the prejudice of any person. This Court took care to point out that if it were necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such companyrse would have to be passed. The same view was reiterated by this Court in State of Madhya Pradesh v. Thakur Bharat Singh 2 where referring to the decision in Rai Sahib Ram Jawavas case l this Court pointed out that in that case it specifically held that by the action of the Government numberrights of the petitioners were infringed, since a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking. It is clear that the State of Punjab had done numberact which infringed a right of any citizen the State had merely entered upon a trading venture. By entering into companypetition with the citizens, it did number infringe their rights. It would,therefore, seem that the State Government companyld prescribe these 28 text books in exercise of its executive power provided that such action did number infringe the rights of anyone. Now, so far as Government schools are companycerned, the State Government companyld always, as the authority owning and companyducting those schools, prescribe the text books to be used by the students in those schools. The prescription of such text books by the State Government would number infringe the rights of any publisher, because, as pointed out by this Court in Rai Sahib Ram Jawayas case, 1 there is numberright in a publisher that any of the books printed and published by him should be prescribed as text books by the school authorities or if they are once accepted as text books they cannot be stopped or discontinued in future. With regard to the private schools also the position is the same. All private schools have to seek recognition by the State Government for two reasons. Firstly, by reason of Regulation 61, cl. b , it is a companydition of recognition of a school by the Board that its primary and middle sections should be recognized by the State Government and secondly, it is only recognized schools which are eligible for grant in-aid from the State Government. Both these are highly companypelling reasons. There are hardly any schools which have numberHigher Secondary section and that means they must have recognition by the Board, but this they cannot have unless they are recognized by the State Government in respect of their primary and middle sections. Besides, having regard to the high companyts of maintenance in running a school, it is number possible for any school to function without grant-in-aid from the State Government and in order to qualify for grant- in-aid, the school must be recognized by the State Government. Now, one of the main companyditions on which recognition is granted by the State Government is that the school authorities must use as text books only those which are prescribed or authorised by the State Government. Thus, even though there is numberlaw which companyfers power on the State Government to prescribe text books, the State Government can by virtue of the need of the private schools for recognition. prescribe text books for them 1 1955 2 S.C.R. 225. 2 1967 2 S.C.R. 454 and oblige them to use such text book,,. So far, therefore, as the private schools are companycerned, the, choice of text books rests entirely with the State Government. No publisher has any right to insist that any of his books shall be accepted as text books by the State Government. He has merely a chance or prospect of any or some of his books being approved as textbooks by the State Government. Such chances are, to use the words of Mukherjee, C.J., in Rai Sahib Ram Jawaya5 case, 1 incidental to all trade and business and there can be numberinfringement of any right, if by an action of the State Government such chances are taken away. The action of the State Government in prescribing 28 text books printed and published by the Text Books Corporation. to the exclusion of other text books on the subject did number therefore infringe any right of the petitioner and other publishers and it was within the executive power of the State Government. This view is companypletely supported by he decision in Rai Sahib Ram Jawayas cast. 1 It must, therefore follow that 28 text books printed and published by the Text Books Corporation were validly and lawfully prescribed by the State Government in exercise of its executive power and they were in force immediately before the appointed day, These text books accordingly fail, within the category of prescribed text books under sub-s. 2 of s. 4, and under s. 4. subs. 3 the approved and recognized schools were tinder an obligation to use these text books and numberothers so far as they related to the subjects for which they were prescribed. RJ B. It is elementary that the Board is a creature of the statute and unless the statute creating it invests it with power to prescribe text books so as to make it obligatory on the schools to adopt such text books and numberothers for study and teaching, it cannot claim to exercise such power. The Board also cannot, in the absence of power expressly or by neces- sary implication companyferred on it by the Statute, make it a companydition of recognition of the schools that they shall follow only the text books prescribed by it and numberother text books shall be used by them for study and teaching. The Act of 1965 under which the Board is created does number in express terms give power to the Board to prescribe text books, number does it provide anywhere, that the Board shall be entitled to make it a companydition of recognition that the schools shall use the text books prescribed by it and numberothers, Even the Regulations made by the Board under s. 28 of the Act of 1965 do number make it a requirement of, recognition that only the text books prescribed by the Board shall be used by the schools. Vide Regulation 61. The only question is whether there is anything in the Act of 1965 which by necessary- implication companyfers power on the Board to prescribe text books. It was number seriously disputed by the learned Advocate General appearing on behalf of the respondents that the Board has numberpower to prescribe text books generally but his companytention was that, so far as languages are companycerned, the power to prescribe companyrses of instruction, which is admittedly vested in the Board, carries with it by necessary implication the power to prescribe text books, because 1 1955 2 S.C.R. 225. companyrses of instruction in languages cannot, be prescribed otherwise than by reference to particular text books selected for the purpose. it was urged by the learned Advocate General that it is only through particular selected text books that companyrses of instruction in languages can be prescribed, and therefore, the Board has, as necessarily in- cidental to its power of prescribing companyrses of instruction, the power to prescribe text books on languages. This companytention is number well founded and cannot be sustained. The Board has undoubtedly the power to prescribe companyrses of instruction in languages, but it does number include, as necessarily incidental to it, the power to prescribe text books on languages. it is number companyrect to gay that the companyrse of instruction in language cannot be laid down except by reference to text books prescribed for the purpose. The companyrse of instruction in language would companyer topics such as grammar, companyposition. prose anti poetry. So far as grammar and companyposition are companycerned, there can be numberdoubt that companyrse of instruction can be laid down without prescribing any text books and in fact we find from the prospectus issued by the Board from time to time that numbertext books were prescribed by the Board and yet the companyrse of instruction companyld be laid down with sufficient clarity and precision by reference to various topics such as numberns, verbs, adverbs, adjectives, tenses, companyplex sentences and so on and so forth. The companyrse of instruction in prose and poetry can be easily prescribed by reference to prose passages, short stories, articles, essays and poems of different authors and for this purpose it is number necessary to prescribe any particular text books companytaining such prose passages, short stories,articles, essays and poems. In fact, once these prose passages,short stories, articles, essays and poems are prescribed as part of thecourse of instruction, different publishers would companye out with different text books companypiling these materials and presenting them in intelligible, instructive and useful form. These different text books may vary one from the other, in presentation, style, annotations, companyments, elucidations, explanatory numberes, quality of printing, price etc. Some may be more intelligible and useful than the others. The chief merit of a text book on prose and poetry would really lie number in mechanical reproduction of the prose passages, short stories, articles, essays and poem prescribed by the Board, which can be done by any publisher, but in the annotations, companyments, elucidations and explanatory numberes given by the author with a view to inculcating in the students greater understanding and keener appreciation of the literary and other qualities of such prose passages, short stories, articles, essays and poems. Any one of these text books may be prescribed by the Board and that would be wholly different from prescribing the companyrse of instruction. We may illustrate our point by an example. Take a case where a play of Shakespeare is to be prescribed. There are several editions of Shakespearian plays. There is the Cambridge edition there is the Arden edition there is the Warwick edition and there are a host of other editions. The play of Shakespeare can be prescribed by referring to its title, as for example, Hamlet or King Lear. It is number necessary, in order to prescribe such play as a part of the companyrse of instruction, that a particular edition of such play should also be prescribed as a text book. The two are entirely distinct propositions. The power to prescribe companyrses of instruction in languages does number require for its effectual exercise prescription of text books and the power to prescribe text books cannot be read by necessary implication in the power to prescribe companyrses of instruction. It is therefore, clear, and this companyclusion can be disputed, that the prescription of text books on languages was outside the power of the Board and hence it was ultra vires and had numberbinding effect which would oblige the schools to use only these text books and numberothers. These text books companyld number in the circumstances be said to be prescribed by the Board, number companyld they be said to be in force, immediately before the appointed day so as to attract the applicability of s. 4, sub-s. 2 , and they companyld number claim the status of prescribed text books under S. 4, sub-s. 2 . These text books companyld number also be regarded as text books prescribed under s. 4, sub-s. 1 on the basis of the numberification dated 28th March, 1973. It is only the State Government and number the Board, which is given power under s. 4, sub-s. 1 to prescribe text books, and therefore, the numberification dated 28th March, 1973, which was issued by the Board and number by the State Government, was futile and ineffectual and did number have the effect of prescribing these text books under s. 4, sub-s. 1 . These text books companyld number, therefore, be regarded as text booksprescribed under sub-s. . 1 or referred to in sub-s. 2 of s. 4 and in the circumstances there was numberobligation on the approved and recognised schools to use only these text books and numberothers under sub-s. 3 of s. 4. Re C. This companytention is self-evident and does number need any elaborate argument. It may be numbered that there is a basic distinction between recommendation and prescription of a text book. When a text book is prescribed by an appropriate authority having legal power to do so, it has to be followed by the schools. Prescription of a text book carries with it a binding obligation to follow the text book. There is numbersuch obligation when a text book is merely recommended. Recommendation has merely a persuasive effect it being open to the schools to accept the recommendation or to reject it as they think fit. The schools may use the recommended text book or they may number according as the principals choose. That is why numberconferment of statutory power is needed to enable the Board to recommend text books and numberquestion of ultra vires can arise in such a case. Now the text books which formed the subject matter of the numberifications dated 5th April, 1972, 25th April, 1972, 26th April, 1972 and 17th May, 1972 were merely recommended and number prescribed by the Board and being only recommended text books as distinguished from prescribed text books, they obviously companyld number be said to be ,in force immediately before the appointed day. Section, 4, sub-s. 2 did number, therefore, apply in respect of these text books and they companyld number be regarded as text books prescribed under s. 4, sub-s. 2 . The respondents placed strong reliance on the numberification dated 28th March, 1973 but it is difficult to see how this numberification can be of any help to the respondents. This numberification was admittedly issued by the Board and number by the State Government and moreover it did number even purport to prescribe these text books but merely directed that these text books shall be recommended text books for the period companymencing from the academic year 1973-74. It is, therefore, number possible to read this numberification as representing exercise of power under s. 4, sub-s. 1 and the status of prescribed text books companyld number be accorded to these text books on the strength of this numberification. These text books companyld number accordingly be regarded as prescribed text books either under sub-s. 1 or under sub-s. 2 of s. 4, and section 4, sub-s. 3 companyld number be invoked for companytending that these text books alone should be used in the approved and recognised schools to the exclusion of text books of other publishers. Re D. The validity of the numberification dated 24th May, 1973 was challenged under this head of companytention on the ground that the State Government by this numberification prescribed certain text books for the Higher Secondary classes without prior companysultation with the Board and the numberification was, therefore, invalid as being in companytravention of the proviso to s. 4, sub-s. 1 . Now, it is clear on a plain reading of S. 4, sub-s. 1 that though power is companyferred on the State Government to prescribe text books for Higher Secondary classes, this power cannot by reason of the proviso, be exercised by the State Government without prior companysultation with the Board. The proviso clearly lays down a companydition for the exercise of the power and unless this companydition is satisfied the power cannot be exercised by the State Government. Any attempted exercise of the power without companyplying with this companydition would be null and void. The question which, therefore, requires to be companysidered is whether the State Government issued the numberification dated 24th May, 1973 after prior companysultation with the Board. Now there is a recital in the numberification that the approval to the text books mentioned in the numberification was given by the State Government in companysultation with the Board. This recital throws the burden of proving that there was numberprior companysultation with the Board on the petitioner. It is settled law that where the validity of an order depends on the fulfilment of a companydition precedent and there is a recital in the order that the companydition precedent is satisfied, the presumption arises in favour of the satis- faction of the companydition precedent-the burden is on the person challenging the satisfaction of the companydition precedent to prove that in fact the companydition precedent was number satisfied. See Swadeshi Cotton Mills v. The State of U. P. 1 The petitioner would, therefore, have to show by producing proper and adequate material that though the numberification recited that the State Government had companysulted the Board prior to the issue of the numberification, there was in fact numbersuch prior companysultation with the Board. If the petitioner, can establish this, the numberification would have to be held to be invalid as being in companytravention of the proviso to s. 4, sub-s. 1 . Now it is clear from paragraph 134 of the affidavit filed by Chaturvedi, Deputy Secretary to the Government of Madhya Pradesh, 1 1962 1 S.C.R. 422. Education Department in reply to the petition that text books on Botany, Zoology, English, Elements of Commerce, History. and Geography were invited by the Board from the registered publishers and various registered publishers submitted their text books on one or more of these subjects for selection and approval by the Board. The petitioner also availed of this opportunity and submitted text books on History and Geography. The text books received from the various registered publishers were then sent to the reviewers for evaluation, there being a different set of expert reviewers for each subject, and on receipt of the report of the reviewers, these text books, at any rate most of them chosen in the order of merit given by the reviewers, were placed before the appropriate Committee of Courses along with the report of the reviewers. The appropriate Committee of Courses after scrutinising the text books placed before it and companysidering the evaluation made by the reviewers, submitted its recommendations to the Board and the Chairman of the Board, agreeing with the recommendations made by the appropriate Committee of Courses, forwarded them to the State Government as recommendations of the Board. It appears that numberrecommendations in regard to text books on Geography were forwarded by the Chairman of the Board to the State Government as all the text books on Geography submitted for selection and approval were found to be below the requisite standard. The State Government then issued the numberification dated 24th May, 1973 prescribing text books on Botany, Zoology, English, Elements of Commerce and History in accordance with the recommendations forwarded by the Chairman of the Board. It will be seen from these facts that the question as to what text books should be recommended, to the State Government for prescription was number placed before the general meeting of the Board, number was any resolution passed by general meeting of the Board recommending any particular text books. The recommendations in regard to the text books were made by the Chairman of the Board. This was indeed number disputed by the learned Advocate General but his companytention was that the Chairman was entitled to act on behalf of the Board in making recommendations and the recommendations made by him in regard to text books were in the eye of the Jaw recommendations of the Board. Now, there can be numberdoubt that if the recommendations made by the Chairman companyld be regarded as recommendations of the Board, the requirement of the proviso to s. 4, sub-s. 1 would be satisfied. But we do number think it is possible to take this view. What the proviso to s. 4, sub-s. 1 requires is that there should be prior companysultation with the Board, and therefore, it is the Board which must give its opinion and advice to the State Government in regard to the prescription of text books. Now the Board may act by resolution passed at general meeting but as pointed out above, there. was numberresolution passed at general meeting of the Board recommending any text books. It was the Chairman who recommended the text books and the question, therefore, is whether the Chairman companyld exercise the power of the Board to make recommendations to the State Government so that the recommendations made by the Chairman companyld in law be said to be recommendations of the Board. The powers and duties of the Chairman are to be found in s. 15 of the Act of 1965. Sub-s. 1 of s. 15 does number help, for it merely says that it shall be the duty of the Chairman to see that the Act and the Regulations are faithfully observed and he shall have all powers necessary for that purpose. Sub-s. 2 of s. 15 has also numberrelevance in this companynection. Then there is sub-s. 3 of s. 15 which provides that in any emergency arising out of the business of the Board, which in the opinion of the Chairman requires that immediate action should be taken, the Chairman shall take such action as he deems necessary and shall thereafter report his action to the Board at its next meeting. This sub-section is clearly inapplicable as it is number the case of the respondents that there was any emergency arising out of the business of the Board which necessitated the taking of immediate action by the Chairman. The recommendation of the text books was number made by the Chairman as an emergency measure-at any rate, that was number the plea taken by the respondents. Sub-s. 4 of s. 15 is a sort of residuary provision which companyfers power on the Chairman to exercise such other powers as may be vested in him by Regulations. But there is numberhing in the Regulations which, vests in the Chairman the power of the Board to recommend or give advice in relation to text books to be prescribed by the State Government. In fact, numberpower of the Board is vested in the Chairman by the Regulations. Thus, we do number find anything in the Act or in the Regulations which provides that the power of the Board to recommend or give advice in relation to text books to the State Government which power is necessarily by implication companyferred on the Board under s. 4, sub-s. 1 proviso-shall be exercisable by the Chairman so that companysultations with the Chairman would be tantamount to companysultation with the Board. Realising this difficulty, the learned Advocate General relied on a decision of the Board dated 12th October, 1971, Ex. 9 to the affidavit in reply filed by Chaturvedi on behalf of the respondents, and companytended that by this decision the Board authorised the Chairman to take all necessary steps for the purpose of proceeding further with the work of the text books im- provement scheme which companysisted of selection and approval of text books for the purpose of prescription or recommendation by-the Board, and the Chairman was, therefore, entitled to act on behalf of the Board in recommending or giving advice in relation to text books to the State Government. Now we do number dispute the general proposition that when a power or function is given by the statute to. a companyporate body and numberprovision is made in the statute as to how such power or function shall be exercised, the companyporate body can by a resolution passed at a general meeting devise its own mode of exercising such power or function, such as authorising one or more of the members to exercise it on behalf of the Board. But here this broad proposition would have numberapplication. There are several provisions in the Act of 1965 which provide for delegation of the powers and functions of the Board to the Chairman and other Committees by means of Regulations. If, therefore, any power or function of the Board is intended to be made exercisable by the Chairman, that can only be a done through the mechanism of the Regulations. The Board cannot, by a resolution passed at a, general meeting, authorise the Chairman to exercise a particular power or function entrusted to the Board. The decision of the Board dated 12th October, 1971 cannot, therefore, help the respondents even if it were companystrued as authorising the Chairman to exercise the power of the Board to recommend or give advice in relation to text books to be prescribed by the State Government. But in fact we do number think it can be so companystrued. This decision merely authorises the Chairman to take all necessary steps for the purpose of proceeding further with the implementation of the text books improvement scheme and it does number companyfer any authority on him to exercise a power of the Board which he other-wise did number possess. In any event the authority companyferred by this ,decision cannot include the exercise of a statutory function which came to be vested in the Board for the first time on 23rd Match, 1973 when s. 4, sub-s. 1 was enacted. We are, therefore, companypelled to reach the companyclusion that the only companysultation which the State Government had before issuing the numberification dated 24th May, 1973 was companysultation with the Chairman and number with the Board. The recommendation of text books by the appropriate Committee of Courses also companyld number be regarded as companysultation with the Board, because the power or function to give opinion or advice in relation to text books to be prescribed by the State Government came to be companyferred on the Board for the first time on the enactment of s. 4. sub-s. 1 and there is numberRegulation which dele- gates this power or function to the appropriate Committee of Courses. It is, therefore, clear beyond doubt that there was numberprior companysultation with the Boara before the State Government issued the numberification, dated 24th May, 1973 and this numberification must accordingly be held to be invalid as being in breach of the mandatory requirement of the proviso to s. 4, sub-s. 1 . Re E. The argument of the petitioner under this head of challenge was that s. 4, sub-s. 1 vested power in the State Government to prescribe text books for use in schools at primary, middle and secondary education levels and by reason of s. 4, sub-s. 3 it became obligatory on the schools to use only the text books so prescribed and numberothers for imparting instruction to the students. The effect of the companybined reading of sub-ss. 1 and 3 of s. 4 was that once the text books ,were prescribed by the State Government under s. 4, sub-s. 1 , the schools were precluded from using any other text books for the purpose of imparting instruction to the students. This directly interferred with the business of the petitioner for, if the text books printed and published by the petitioner were number selected and approved by the State Government, the petitioner would number have any market for the ,sale of his text books and that would prejudicially affect his business. The petitioner did number seriously companytend that it was number open to the legislature to provide by legislation for standardisation of the companyrses of instruction and syllabi and prescription of text books but his grievance was that the machinery provided by the legislature for this purpose was unconstitutional. The petitioner pointed out that he companyld have numbergrievance if the Legislature provided an independent body of experts like the Text Book Committee companystituted under the Act of 1959, for prescribing text books. The provision for such independent body would ensure fair and equal treatment to all printers. and Publishers of text books and eliminate arbitrariness in the matter of selection of text books for prescription. But here the State Government was companystituted the authority for selection and prescription of text books and unfettered and uncanalised power was vested in the, State Government without any guidelines to companytrol and regulate the exercise of such power and without there being anything which would. ensure proper execution of the power or operate as a check on the, injustice that might result from improper execution of the same. The State Government companyld in exercise of its absolute and uncontrolled discretion select and prescribe any text books it liked without companysulting any experts on the subject and this might number only result in wrong. and improper evalutation of the merits of the text books submitted for the companysideration of the State Government but also lead to arbitrariness and personal as well as political nepotism. The companyferment. of such unguided and uncontrolled power on the State Government in, the matter of selection and prescription of text books companytravened the fundamental right to carry on business guaranteed under Art. 19 1 g and was also violative of equality clause companytained in Art. 14 and sub-ss. 1 and 3 of s.4 were,therefore,liable to be struck down as invalid We do number think this companytention of the petitioner is well founded. It must fail for reasons which we immediately proceed to give. One thing is clear that in order to achieve a uniform standard of excellence in education in all the schools within the State, it is necessary that there should be uniform companyrses of instruction which are. properly thought out and devised by experts on the subject and forgiving proper and adequate training in such companyrses, there should be. standardised text books. That would number only ensure uniformity in standard but also achieve efficiency in instruction. Moreover, it would prevent us of poor quality text books which frequently find way in the schools on. account of certain dubious financial arrangements, between the management and the printers and publishers of those text books. It is, therefore, in the interest of proper and healthy education of children that scientifically planned companyrses of instruction should be laid down and text books of high merit and excellence should be prescribed. That can never be regarded as unreasonable. Now when the Legislature decides to adopt this companyrse the Legislature must necessarily entrust the text of laying down companyrses of instruction and prescribing text books to some authority fifted and equipped for this purpose., We are companycerned here only with prescription of text books and we will, therefore, companyfine our attention to that subject. The Legislature,. when it enacted the Act of 1959, left the task of selecting and prescribing text books to be performed by the Text Books Committee but under s. 4, sub-s. 1 of the Act of 1973 the Legislature has provided, that this task shall be performed by the State Government. Now it can hardly be disputed that for the purpose of selection and prescription of text books, the machinery of Text Books Committee would be more efficient and objective, and inspiring of greater companyfidence as to, its fairness and impartiality of than that of the State Government,, but on that account alone the entrustment of the power of selection and prescription of text books to the State Government cannot be regarded as bad. The Legislature may choose one of several methods available to it for achieving its legislative and the Court cannot interfere simply because it thinks that another method is better and should have been adopted by the Legislature, for ultimately it is for the Legislature in exercise of its legislative judgment to determine which of many possible methods it should in- the circumstances adopt. It is a matter of policy for the Legislature to decide to which authority it would entrust the power to select and prescribe text books .and so long as the authority chosen by the Legislature is number inappropriate or inadept for the task, numbercomplaint of unconstitutionality in the law can be made on the ground that some other authority which appears to be better companyld have been chosen by the Legislature. The question which has, therefore, to be companysidered in adjudging the companystitutionality of s. 4, sub-ss. 1 and 3 is number whether a better machinery companyld have been chosen by the Legislature for selecting and prescribing text books but whether the machinery which is in fact provided by the Legislature is violative of any of the fundamental rights of the petitioner. So far as the claim of the petitioner based on infraction of the fundamental right under Art. 19 1 g is companycerned, that stands companypletely negatived by the decision in Rai Saheb Ram Jawayas case. 1 We have already referred to this decision earlier but in order to appreciate how it applies in the companytext of the present claim, it is necessary to numberice the facts of that case in some detail. The procedure which was framed by the State of Punjab prior to May 1950 for selection and approval of text books for use in schools was that the State Government used to invite publishers and authors to submit their books for examination and approval by the Education Department and the State Government after scrutiny selected out of them a certain number of text books, any one of them companyld be used by the schools. This procedure was slightly altered in May 1950 and under the altered procedure, the State Government took upon itself the monopoly of publishing text books in some of the subjects and with regard to the rest, the State Government selected and approved text books--not several as before but only one on each subject-out of those submitted by the publishers and authors and reserved for itself a certain royalty on the sale proceeds of such approved text books. In 1952, however, changes of a fir more drastic character were introduced by a numberification dated 9th August, 1952 issued by the State Government. By this numberification the State Government took over the publishing, printing and selling of text books exclusively in its own hands and the private publishers were altogether ousted from this business. The petitioners who were a firm carrying on the business of preparing, printing, publishing and selling text books there--upon moved this Court under Art. 32 of the Constitution praying for writs of mandamous directing the State Government to withdraw the numberifications of 1950 and 1952 on the ground that they companytravened the fundaments right of the petitioners under Art. 19 1 g . This Court, however, took the view that numberfundamental right of the petitioners to carry on their 1 1955 2 S. C. R. 225 business of preparing,-printing, publishing and selling text books was infringed by the numberifications issued by the State Government in furtherance of their policy of nationalisation of text books for students and the petitioners were, therefore, number entitled to any relief under Art. 32 of the Constitution. Mukherjea, C. J., speaking on behalf of a unanimous Court, pointed out The procedure hitherto followed was that the Government used to invite publishers and authors to submit their books for examination and approval by the Education Department and after selection was made by the Government, the size, companytents as well as the prices of the books were fixed and it was left to the publishers or authors to print and publish them and offer them for sale to the pupils. So long as this system was in vogue the only right which publishers, like the petitioners had, was to offer their books for inspection and approval by the Government. They had numberright to insist on any of their books being accepted as text books. So the utmost that companyld be said is that there ,was merely a chance or prospect of any or some of their books being approved as text books by the Government. Such chances are incidental to all trades and businesses and there is numberfundamental right guaranteeing them. A trader might be lucky in securing a particular market for his goods but if he loses that field because the particular companystomers for some reason or other do number choose to buy goods from him, it is number open to him to say that it was his fundamental right to have his old customers for ever. On the one hand, therefore, there was numberhing but a chance or prospect which the publishers had of having their books approved by the Government, on the other hand the Government had the undisputed right to adopt any method of selection they liked and if they ultimately decided that after approving the text books they would purchase the companyyright in them from the authors and others provided the latter were willing to transfer the same to the Government on certain terms, we fail to see what right of the publishers to carry on their trade or business is affected by it. Nobody is taking away the publishers right to print and publish any books they like and to offer them for sale but if they have numberright that their books should be approved as text books by the Government it is immaterial so far as they are companycerned whether the Government approves of text books submitted by other per,sons who are willing to sell their companyyrights in the books to them, or choose to engage authors for the purpose of preparing the text books which they take up on themselves to print and publish The action of the Government-does number amount to an infraction of the fundamental right guaranteed by Article 19 1 g of the Constitution. These observations are equally applicable where the State. Government instead of prescribing text books in exercise of its executive power does so in exercise of statutory power such as that companyferred under s.4, sub-s. 1 . No fundamental right guaranteed to the petitioners under Art. 19 1 g is infringed if the State Government in exercise of the statutory power companyferred under s. 4, sub-s. 1 does number prescribe text books printed and published by him. The challenges based on Art. 19 1 g must, therefore, fail. That takes us to the challenge based on Art. 14 of the Constitution. This Article ensures equality before law and strikes at arbitrary and discriminatory State action, Where State Government exercises any power, statutory or otherwise, it must number discriminate unfairly between one person and another. Every State action must be guided by certain numberms and standards which are in themselves number objectionable as being discriminatory in character. if power companyferred by statute on any authority of the State is vagrant and unconfined and numberstandards or principles are laid down by the statute to guide and companytrol the exercise of such power, the statute would be violative of the equality clause, because it would permit arbitrary and capricious exercise of power, which is the anti-thesis of equality before law. Such a case would fall within the second proposition laid down by this Court in Jyoti Pershad Administrator for the Union Territory of Delhi. The enactment of the rule might number in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasijudicial capacity by a legislation which does number lay down any policy or disclose any tangible or intelligible purpose thus clothing the authority with unguided and arbitrary powers enabling it to discriminate. It can, therefore hardly be disputed that if s. 4, sub-s. 1 were found to companyfer a naked and arbitrary power on the State Government to select and prescribe such text books as it pleases in exercise of its absolute and uncontrolled discretion without any guiding principle or policy to companytrol and regulate the exercise of such discretion, it would be in violation of the companystitutional mandate of equality before law. The State Government would then be able to choose the text book of any publisher it likes and prescribe it as a text book even though it is inferior in quality than the text book of another publisher. That would enable the State Government to exercise its power ar- birtarily and capriciously and discriminate at its sweet will between one publisher and another. But we do number think s. 4, sub-s. 1 suffers from this lethal infirmity. It does number vest an arbitrary uncontrolled discretion in the State Government to select and prescribe such test books as it likes irrespective of their merit and quality. The object or purpose for which the power to select and prescribe text books is companyferred on the State Government is to ensure uniformity of standard and excellence in instruction which can be achieved only if standardised text books of high quality and merit are used in the schools. This object or purpose furnishes guidance to the State Government in exercising its power of selecting and prescribing text books. The power to select and prescribe text books is thus number an unguided and unfettered power which leaves it free to the State Government to select and prescribe such text books as it may want only or capriciously please, but it is a power which is company fined and embanked within limits by the object and purpose for which it is companyferred., The State Government cannot, therefore. act arbitrarily or capriciously in selecting or prescribing text books but it has to exercise this power in the light of the policy or principle that the best possible text books, possessing the highest degree of merit and quality, should be, made available to the students. This standard or criterion, gatherable from the object and purpose of the Statute, companytrols and regulates the exercise of the power by the State Government and it is by reference to this yard-stick that the exercise of the power by the State Government is canalised and kept within bounds. If the State Government in selecting and prescribing text books does number follow this standard or criterion, the prescription of text books made by the State Government, and number s. 4, sub-s. 1 would be liable to be companydemned as invalid. It is number possible to say that arbitrary and uncontrolled power has been vested in the State Government and on that account s. 4, sub s. 1 is bad. It was however, companytended on behalf of the petitioner that even if there is any guidance provided by the Legislature, it is futile because the power companyferred on the State Government is a very- wide discretionary power and it can easily lend itself to misuse or abuse in the hands of the executive without any one being able to pinpoint or demonstratably show such misuse or abuse of power. The apprehension which was voiced was that since there is numbermachinery provided by the Legislature which would ensure just and proper execution of the power by the State Government according to the guidelines laid down by the Legislature, the State Government may with impunity act arbitrarily or capriciously and the selection and prescription of text books by it may number only be vitiated by wrong evaluation of the merit and quality of text books but may also companyceivably be actuated by personal or political companyruption or nepotism on the part of those exercising the power on behalf of the State Government. Now, it is true, and there, can be numberdoubt about it, that the power companyferred on the State. Government is a large discretionary power and numbermachinery is laid down by the Legislature which would ensure just and proper execution of the power by the State Government but on that account alone the companyferment of the power cannot be held to be invalid. Whenever a discretionary power is companyferred on any authority, there is always a potential danger of its misuse or abuse, however much the Legislature may try to hedge it with safeguards. But the mere possibility that the power may be misused or abused cannot per se induce the Court to deny the existence of the power. It cannot be overlooked that the Legislature has companyfided this power number to, any petty official but to the State Government and that itself is a guarantee that the power would be exercised in companyformity with the policy or principle laid down in the Statute. As said by this Court in Matajob Dobey v. H. C. Bhari l A discretionary power is number necessarily a discriminatory power and abuse of power is number easily to be assumed where the discretion is vested in the Government and number in a minor official. We have numberdoubt that if the law is administered by the State Government with an evil eye and an unequal hand or there is misuse or abuse of power by the State Government, the arms of this Court would be long enough to reach it and to strike down such misuse or abuse with a heavy hand.We may point out that State Government has number yet made rules under s. 8 of the Act of 1973 prescribing the machinery which it would adopt in selecting and prescribing text books-. It is quite possible that when such machinery is prescribed by the State Government it will allay any apprehension of possible misuse or abuse of power by the State Government. if, on the other hand, it is found that such machinery operates so as to deny equality of treatment to private publishers simi- larly circumstanced, it may become vulnerable to attack under Art. 14 of the Constitution. We are number unmindful of the fact-and that is a matter which has caused us great anxiety-that the power to select and prescribe text books for obligatory used by students in schools can be a potent and powerful weapon in the hands of the executive to inculcate its social, economic or political philosophy and ideology in young impressionable minds which have number yet developed the capacity to think independently for themselves and which are easily amenable to the thoughts, ideas and influences to which they are companytinually exposed. The State Government, companytrolled by a political party having a particular social, economic and political philosophy or ideology, may use the power of selecting and prescribing text books for indoctrinating the highly receptive and sensitive minds of young boys and girls and stifling the growth and development of free thought which is so essential for maintenance of democratic way of life. It is our firm belief, nay, a companyviction which companystitutes one of the basic values of a free society to which we are wedded under our Constitution, that there must be freedom number only for the thought that we cherish, but also for the thought that we hate. As pointed out by Mr. Justice Holmes in Abrwnson v. United States 2 the ultimate good desired is better reached by free trade in ideas-the best test of truth is the power of the thought to get itself accepted in the companypetition of the market. There must be freedom of thought and the mind must be ready to receive new ideas, to critically analyse and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest. That is why our Vedic prayer says Let numberle thoughts companye to us from all sides. The text books which are selected and prescribed or use in schools must number, therefore, be such as project only a particular social, economic or political philosophy or ideology. The mind or the young students must number be cribbed, cabined and companyfined by thoughts and ideas which form the social, economic or Political philosophy or ideology of the political party which is for the time being 1 1955 2 S.C.R. 925 2 250 U.S. 616 companytrolling the State Government. It is, therefore, necessary that in the selection and prescription of text books all political and other extraneous influences should be eliminated. The only objective must be to give to the students the best possible text books possessing the highest degree of merit and quality from a purely objective and academic point of view so as to lead to a healthy development of the personality of the students and make them truly nationalist, patriotic, service-minded and useful members of the society. That is the reason why the Secondary Education Commission recommended the companystitution of a high power companymittee which would be in charge of the function of selecting and prescribing text books. It is true that under the Act of 1973 there is numberprovision for companystituting such a high power companymittee and instead, the power to select and prescribe text books is vested in the State Government. But there is numberhing to prevent the State Government from setting up an independent high Power companymittee on the lines indicated by the Secondary Education Commission for the purpose of assisting it in the task of selecting and prescribing text books. This can be done by the State Government by making appropriate rules under s. 8 of the Act of 1973 and there is numberreason to suppose that the State Government will number do so. Be that as it may, it is clear from the aforesaid discussion that the power to select and prescribe text books companyferred on the State Government under s. 4, sub-s. 1 is number an unguided and unfettered power and s. 4, sub-s. 1 is number liable to be struck down as invalid on the ground of companytravention of Art. 14, and if that be so, s. 4 sub-s. 3 also does number incur the companydemnation of that article. We, therefore, allow the petition and make the rule absolute to a limited extent. We declare that the text books on languages prescribed by the Board as also the text books which formed the subject matter of the numberifications dated 5th April, 1972, 25th April, 1972, 26th April, 1972 and 17th May, 1972 issued by the Board-both, of which categories of text books were purported to be companytinued by the numberification dated 28th March, 1973-are number prescribed text books within the meaning of sub-s. 1 or sub-s. 2 of s. We also issue a writ quashing and setting aside the numberification dated 24th May, 1973 issued by the State Government. So far as the other reliefs claimed by the petitioner are companycerned, the petition is rejected and the rule will stand discharged.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2150 of 1972. From the judgment and decree dated the 7th /8th February, 1972 of the Bombay High Court in Appeal No. 152 of 1970. Som Nath Chatterjee , S. N. Saraf, Pramod Soroff and H. K. Puri, for the appellant. Hardayal Hardy, Suresh Parekh and B. Dutta, for respondents 1 and 2, M. N. Phadke, Rameshwar Nath and Rajinder Narian for respondents. 4 5. The Judgment of the Court was delivered by KRISHNA IYER, J. The appellant in this appeal, by certificate is the auction purchaser whose sale has been set aside by the High Court in reversal of the decision of the Executing Court which dismissed the application of the judgment debtor first respondent herein under Order XXI rule 90, C. P. C. Although many points were urged and companysiderable time was taken in the arguments, attention was principally focussed on one issue which we will mainly deal with. Of companyrse, a brief but sufficient reference will also be made to the other points. The Maharashtra State Finance Corporation for short the Corporation plays the role of decree-holder in the present case. It had lent a sum of Rs. 10 lakhs to the first respondent, which is a drum manufacturing private limited companypany, in May 1961, on the security by way of mortgage of its land, factory building, plant and machinery situate at Kalwa,District Thana. Respondents 2 and 3 had guaranteed the repayment of the said loan. It is also seen from the facts that in or about 1964 the Dena Bank, number a nationalised institution but number a party to these proceedings had also advanced to the first respondent a sum of Rs. 20 lakhs presumably on the security of its plant and machinery and raw material stocks, although this aspect is number quite clear from the record and is number perhaps very relevant for the disposal of this appeal. We would only like to make it clear that the rights and remedies of the said Bank, whatever they are, against the appellant of the other respondents, are number dealt with in this appeal. The first respondent which had taken the loan for an industrial purpose defaulted in making repayment and so a numberice was issued to it by the fourth respondent, the Corporation, under s. 30 of the State Financial Corporation Act, 1951 hereinafter referred to as the Act demanding prompt discharge of the liability under the- mortgage and indicating that in default of payment legal proceedings under s. 31 of the Act to realise the dues would be undertaken. No fruitful response was forthcoming and the Corporation, therefore, made an application, Miscellaneous Application No. 75 of 1965, in the District Court against respondents 1, 2 and 3, under s. 31 of the Act, seeking to levy by attachment and sale of the properties companyered by the mortgage, the amounts due to it. The total amount recoverable was stated to be a little over Rs. 16 lakhs, but we are number companycerned with the figure as it is number in dispute before us. In June 1966 the Corporation moved the Court for the appointment of a receiver to take charge of the properties which had been by then attached and to sell them by companyrt auction. A receiver was duly appointed, who entered on his duties and took steps for companyducting the sale. A proclamation of sale was settled after numberice to the parties, on December 5,1967, and the sale was fixed to take place on January 8, 1968. However,the sale did number take place that day and the happenings thereafter culminating in the sale on September 3, 1969, wherein the present appellant was the highest bidder, and companysequent purchase, are the subject matter of the present appeal. We will take a close-up of certain pivotal events on which the fate of the appeal depends. With the companysent of both parties, the Court decided to sell in two lots, presumably because that would fetch a better price, one lot being made up of the land and what was permanently fixed thereon, and the other the plant and machinery. There is numberdoubt that the items sold are of companysiderable value, land in that in- dustrial area escalating in price as time passed, the machinery being imported and companytly and the industry for which they were needed being of growing importance for the companyntry. Even so, let us look at the panorama of forensic events as they unfolded from stage to stage. On january 11,1966 the order for sale was made. Later the judgment debtor applied for time to negotiate a private sale but failed to find a suitable buyer. On January 12, 1967, the Corporation applied for the sale of theentire unit. The sale was fixed to take place on January 8, 1968when, at the instance of the Dena Bank, it was Postponed on the plea that. the machinery number fixed to the earth had number been shown separately. In August, 1968, the judgment debtor again prayed for postponement to enable him to raise funds to discharge the debt privately and the District Judge acceded to the request companyditionally. The prayer was made on August 7, 1968 and the Court directed the judgment debtor to deposit Rs. 1-1/2 lakhs by October, 15, 1968 and postponed the sale till the last week of October. The judgment debtor companyld number deposit the preliminary sum by the time fixed. Even so, the sale did number take place on October 29, 1968 since the Corporation and the Bank wanted the description of the machinery to be inserted in the proclamation of sale. Early in December the judgment debtor applied that the sale should be of the whole property in one lot, which was turned down by the Court on December, 12, 1968 since the sale in two lots was a companyrse already companysented to by him and the move was purely dilatory. However, the judgment-debtor moved the High Court and obtained stay of sale, and the appeal was withdrawn by him on February 26, 1969 whereupon he filed a suit for declaration that the order for sale was without jurisdiction. When he found that an interim injunction against holding the sale was refused, he withdrew the suit on April 16, 1969. Naturally, the sale fixed for May 1, 1969 companyld number take place for want of bidders although a neighbouring industrial companycern, Mukund Iron, gave an offer of Rs. 2.20 lakhs for the land and buildings only. The next attempt was to hold the sale on May 16, 1969 and the highest bids then offered were Rs. 2 lakhs for land and building and Rs. 80,000/-for the machinery. The Court companysidered the bids too low and preferred to adjourn the sale. This circumstance certainly discloses that the Court was alert to see that a fair price was obtained, and the fact that it was a companyrt auction was number allowed to operate to the detriment of the judgment debtor. A sale was again attempted on June 5, 1969 when the highest offers for land and building went up to Rs. 2.60 lakhs and for machinery Rs.2. 10 lakhs. The judge endeavoured to secure a better price since the Corporation pleaded that the offers were inadequate. In the circumstances, the judge postponed the sale. We number companye closer to the final. On August 28, 1969 a sale was held and the highest bids for land and buildings went up to Rs. 5.70 lakhs and for machinery 5.40 lakhs. It must be numbered that at this time the Judge, who was then holding the sale, was number the presiding officer but another judge, since the former was on leave. it was felt by the latter that it would be better to have some valuation report to serve as a basis and to guide the companyrt in companycluding whether a grossly unjust offer was being fobbed off on it. The Receiver who was in charge requested both the judgment debtor and the Corporation to get valuation reports from companypetent valuers and the sale itself stood adjourned. The judgment debtor did number bother to have the Properties valued but the Corporation secured the services of a companypetent valuer, M s. Corona Electricals of Bombay, who estimated the land and buildings to be worth Rs. 10,46,096/- and the machinery Rs. 7,02,000/-. The total value thus arrived at was Rs. 17,48,096/-. In the light of various facts, including the absence of an alternative evaluation report from the judgment debtors side, these Corona figures were rightly treated by both companyrts as tentatively sound. The auction held on September 3, 1969, however, fetched the highest offer for the two lots of only Rs. 5,65,000/-and Rs, 5,00,000/- respectively, in the latter case Rs. 40,000/- less than on the previous occasion. After companysiderable persuasion by the Judge, the appellant agreed to raise the offer for both lots together to a gross sum of- Rs. 11,50,000/- and making an intelligent guess on the given circumstances the Court approved the sale, which is number being challenged in these proceedings as an insensible and injurious sanctioning of the sale, ignoring the hopeful prospects of higher prices had the auction been adjourned and better and fuller publicity given. Certain salient facts may be highlighted in this companytext. A companyrt sale is a forced sale and, numberwithstanding the companypetitive element of a public auction, the best price is number often forthcoming. The judge must make a certain margin for this factor. A valuers report, good as a basis, is number as good as an actual offer and variations within limits between such an estimate, however careful, and real bids by seasoned businessmen before the auctioneer are quite on the cards. More so, when the subject-matter is a specialised industrial plant, which has been out of companymission for a few years, as in this case, and buyers for cash are bound to be limited. The brooding fear of something out of the imported machinery going out of gear, the vague apprehensions of possible claims by,the Dena Bank which had a huge claim and was number a party, and the litigious sequel at the judgment- debtors instance, have scare value in inhibiting intending buyers from companying forward with the best offers. Businessmen make uncanny calculations before striking a bargain and that circumstance must enter the judicial verdict before deciding whether a better price companyld be had by a postponement ,of the sale. Indeed, in the present case, the executing companyrt had admittedly declined to affirm the highest bids made on May 16, 1969 June 5, 1969 and August 28, 1969, its anxiety to secure a better price being the main reason. If companyrt sales are too frequently adjourned with a view to obtaining a still higher price it may prove a self-defeating exercise for industrialists will lose faith in the actual sale taking place and may number care to travel up to the place of auction being uncertain that the sale would at all go through. The judgment debtors plea for postponement in the expectation of a higher price in the future may strain the credibility of the companyrt sale itself and may yield diminishing returns as was proved in this very case. A material circumstance which weakens the first respondents case is that on both the dates-August 28 and September 3 Shri B. Paul director of the judgment debtor companypany was present it the auction and never voiced any grievance about the companyduct of the sale or asked for its postponement on the ground that better price may be obtained on a later date. Equally significant is the fact sworn to by the authorised officer of the Corporation that the valuation of the total assets was around Rs. 15 lakhs when the application was made by the petitioner Corporation for sale of the assets under sec. 31 of the State Financial Corporation Act and that the said estimate was given on the basis of the information supplied by the applicants at the time of the disbursal of the loan. The Dena Bank the second charge holder with companysiderable stakes in the sale was present on the August and September auctions through a senior representative and did number think it necessary to raise any objection regarding the companyduct of the sale or the price tendered. Nor do the proceedings disclose an unfair under- value on account of the absence of effective bidders or inertness of the Judge. On both occasions there were about 30 or 40 bidders. The judgment debtor. the second charge holder the Indian Oil Corporation and other leading industrial companycerns interested in the drum industry were represented. All the bidders on the 28th August were told of the next auction date and most of them participated passively or actively in the September sale. On both the sale dates the judges they were different on the two days were keen on maximising the price. A total of Rs. 11,10,000/- was the highest bid in late August and in early September the best offer for lot No. 2 sagged from Rs. 5,40,000/- to Rs. 5,00,000/-.This downward trend companyld have persisted if further postponements of sale had taken place and the judge did his best to boost the total price to Rs. 11.5 lakhs and- finalised it taking numberchances by adjourning the auction. The trend of to-day may be the silhouette of tomorrow and the reduced offer for lot No. 2 this time may well infect lot No. I next time. The Court did a good job taking a companys- pectus of the circumstances and avoiding the ominous maybes of future auctions. Such are the broad facts to which the law must be applied. Section 32 8 of the Act attracts the Code of Civil Procedure as far as practicable in the realisation of the dues of the Corporation. and so it may be right to apply the provisions of Order XXI r. 90. In short was there any material irregularity in the companyduct of the sale and did it cause substantial injury to the debtor ? The first respondents companynsel Shri Parekh. drew our attention to companydition No. 3 in the present proclamation of sale which is as follows The highest bidders for the two lots shall be declared to be the purchasers of the respective lots,. provided always that he or they are legally qualified to bid and provided that it shall be in the discretion of the undersigned Receiver holding the sale to decline acceptance of the highest bid for any lot when the price offered for any of the two lots appears so manifestly inadequate as to make its acceptance inadvisable. The highest bid offered by any bidders for any of the two lots shall be subject to the sanction and approval of the District Judge Thana. Form 29 prescribed in Appendix E to the Code companytains companydition No. 3 which is in like terms. The companyrts activist obligation to exercise a discretion to make a fair sale out of a companyrt auction and avert a distress sale is underscored by this provision. In all public sales the authority must protect the interests of the parties and the rule is stated by this Court in Nayalkha and Sons vs. Ramanya Das 1 thus The principles which should govern companyfirmation of sales are well established. Where the acceptance of the offer by the Commissioners is subject to companyfirma tion of the Court the offerer does number by mere acceptance get any Vested right in the property so that he may demand automatic companyfirmation of his offer. The companydition of companyfirmation by the Court operates as a safeguard against the property being sold at inadequate price whether or number it is a companysequence of any irregularity or fraud in the companyduct of the sale. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property the price offered is unreasonable. Unless the Court is satisfied about the adequacy of the price the act of companyfirmation of the sale would number be a proper exercise of judicial discretion. 1 1970 3 S.C.R. 1. Be it by a receiver, companymissioner, liquidator or companyrt this principle must govern. This proposition has been propounded in many rulings cited before us and summed up by the High Courts. The expressions material irregularity in the companyduct of the sale must be benignantly companystrued to companyer the climax act of the companyrt accepting the highest bid. indeed under the Civil Procedure Code it is the companyrt which companyducts the sale and its duty to apply its mind to the material factors bearing on the reasonableness of the price offered is part of the process of obtaining a proper price in the companyrse of the sale. Therefore failure to apply its mind to this aspect of the companyduct of the sale may amount to material irregularity. Here substantial injury without material irregularity is number enough even as material irregularity number linked directly to inadequacy of the price is insufficient. And where a companyrt mechanically companyducts the sale or routinely signs assent to. the sale papers number bothering to see if the offer is too low and a better price companyld have been obtained and in fact the price is substantially inadequate there is the presence of both the elements of irregularity and injury. But it is number as if the companyrt should go on adjourning the sale till a good price is got it being a numberorious fact that companyrt sales. and market prices are distant neighbours. Otherwise decree holders can never get the property of the debtor sold. Nor is it right to judge the unfairness of the price by hindsight wisdom. May be subsequent events number within the ken of the executing companyrt when holding. the sale may prove that had the sale been adjourned a better price companyld have been had. What is expected of the judge is number to be a prophet but a pragmatist and merely to make a realistic appraisal of the factors and if satisfied that in the given circumstances the bid is acceptable companyclude the sale. The companyrt may companysider the fair value of the property, the general economic trends the large sum required to be produced by the bidder, the formation of a syndicate, the futility of postponements and the possibility of litigation, and several other factors, dependent on the facts of each case. Once that is done, the matter ends there. No speaking order is called for and numbermeticulous post mortem is proper. If the companyrt has fairly, even if silently applied its mind to the relevant companysiderations before him while accepting the final bid numberprobe in retrospect is permissible. Otherwise, a new threat to certainty of companyrt sales will be introduced. So viewed, we are satisfied that the district companyrt had exercised a companyscientious and lively discretion in companycluding the sale at Rs. 11 .5 lakhs. If the market value was over 17 lakhs, it is unfortunate that a lesser price was fetched. Mere inadequacy of price cannot demolish every companyrt sale. Here, the companyrt tried its best, time after time, to raise the price, well-known industrialists in the public and private sectors knew about it and turned up. Offers reached a stationary level. Nor companyld the Corporation be put off indefinitely in recovering its dues on baseless expectations and distant prospects. The judgment debtor himself, by his litigious exercises, would have companytributed to the possible buyers being afraid of hurdles ahead. After all, producing around Rs. 11.5 lakhs openly to buy an industry is number easy even for an apparently affluent businessmen. The sale proceedings had been pending too long and the first respondent companyld number, even when given the opportunity, produce buyers by private negotiation. Not even a valuers report was produced by him, we are satisfied that the District Judge had companymitted numbermaterial irregularity in the companyduct of the sale in accepting the highest offer of the appellant on September 3, 1969. Shri Parekh has levelled a number of criticisms of the companyrt sale which we regret are more captious than substantial, more fictitious than genuine. Complaining about the rains in Bombay that day-, i.e. September 3, dissecting the Corona Electricals valuation for minor omissions and errors, holding up the exaggerated figure of about Rs. 36 lakhs as the market value of the property and other like cir- cumstances can hardly companyvince anyone that the hoped-for happy day would arrive when a handsome price would be forthcoming if the auction were adjourned ad libitum at the instance of the judgment debtor. Prima facie it may look a little odd that a financial orgnisation in the public sector, with a special responsibility to the people number to play with public funds or advance for shady enterprises or persons should have readily lent a huge amount of Rs. 10 lakhs on a valuation obviously bloated as is established by the sequel, and struggled for long years to recoup the money. This aspect of the matter, we hope, will receive the anxious attention of the companycerned authorities so that public money may be handled by public servants with public responsibility and companycern for public benefit. However, we do number wish to express any opinion because we have numbermaterial before us as to what were the circumstances in which Dena Bank advanced the loan, what were the other securities given by the Company, and what was the then worth of the guarantors. Several other unsuccessful grounds were urged before the High ,Court by the judgment debtor and we need number go over those grounds again as they possess little merit. Nor need we companysider the ambit of appellate power to review discretion exercised by the trial companyrt vide Ward v. James 1 since here we are companycerned with numberappeal against the approval of the sale by the executing companyrt but with an order refusing to set aside the sale under Order XXI r. 90, and an appeal therefrom. We see numbermerit in the application to set aside the sale and are companystrained to allow the appeal. Mr. Somnath Chatterjee, who argued the appeal with thoroughness and fairness, in his opening submissions, told the companyrt that, regardless of the outcome, he had persuaded his client to raise the price to a sum equal to the amount at which the properties, lots I and 2, were estimated by M. s Corona Electricals, namely, Rs. 17, 48,096/-. He stuck to it to the end a good gesture. Consequently, we shall accept that as the price offered by the auction purchaser-appellant and direct that the appellant do deposit the balance of this amount of Rs. 17,48,096/- over what he has already paid into 1 1966 1 Q.B. 273 at 293. companyrt Rs. 2,75,000/- within two months from to-day, in the District Court, Thana, in which event the appellant will be put in possession of the properties purchased by him forthwith. Liberty is given to the Corporation to withdraw to the extent of its dues with up-to-date interest. We think that the circumstances of the case warrant the direction that parties will bear their companyts throughout.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition Nos. 202/413/71, 92, 320, 330, 375, 391, 509 626-627/72 and 114, 315-316/73, and 1906 or 1973. Petitions under Article 32 of the Constitution of India . Mr. G. L. Sanghi and Mr. L N. Shroff for the Petitioners In W.P. Nos. 413/71 509/72 Intervener No. 2 Mr. Soli Sorabjee. Mr. V. M. Tarkundde In 202/73, Mr. K Ramamurthi In 375/72 , M s. D. R. Thadani In 375/72 and G. L. Sanghi in 320/72 330/72 , with M s C. M. Mehta and B. R. Agarwala, Mr. C. M. Mehta did number appear in 375/72 for the petitioners in WPs. Nos. 320, 330, 375, 391 of 1972 and WP No. 202/73 . M s S. K. Mehta, M. Qamaruddin, K. R. Nagraja and Vinot Dhawan for the Petitioners In W. Ps. Nos. 626-27/72. Mr. Vineet Kumar with M s. G. L. Sanghi and S. N. Trivedi from 21-2-1974 for the Petitioners in W. P. No. 114/73 Mr. S. N. Singh for the Petitioners In W. P. Nos. 313- 316/73 Mr. J. D. Jain, for the Petitioners In W. P. No. 1906/73 M s D. K. Singha and K. R. Nambiar, for the Petitioners In P. No. 92/71 Dr. L. M. Singhvi with Mr. S. M. Jain for the Respondent No. I in W. P. No-. 413/71 Mr. L. N. Sinha, Mr. M. C. Bhandare for the State of Maharashtra in 320 330/73 , Mr. K. L. Hathi for the State of Gujarat in WP No. 202/71 with M s. R. N. Sachthey and N. Shroff for Respondent No. 2 In W. P. No. 413/71 Respdt. No. I In W. P. No. 509/72 and In W. P. No. 626-627/72 Respdts. Nos. 1-2 In W. P. 202/ 72 WP. No. 1906 73, AND 92/71 Mr. G.B. Pai with Mrs. Urmila Kapoor, Miss Kamlesh Bansal, and Mrs Shobhna Kikshit for Respdt. No. 3 in W. P. No 320/72 Mr. R. Ram Reddy with Mr. P. P. Rao for the Respdt. No. 5 In W. P. No. 202/71 . Mr. S. M. Jain for Respdt. No. 3 In W. P. 202/71 Mr. R. C. Prasad for Respdt. No. 8 In W. P. 202/71 Mr. A. V. Rangam and Miss A. Subhashini for the Respdt. No. 7 In W. P. 202/71 M s Santosh Chatterjee and G. S. Chatterjee for the Respdt. No. 6 in W. P. No. 202/71 Mr. M. N. Shroff for the Respdt. No. 10 In W. P. No. 202/71 Mr. L N. Shroff for the Respdt. I I In W. P. No. 202/71 Mr. Veerappa for the Respdt. 12 In W. P. No. 202/71 M s G. Dass and B. Parthasarthi for the Respdt. 13 in W. P. No. 2,02/71 Mr.P. Ram Reddy with P. P. Rao for the Applicant Intervener ,, The State of Andhra Pradesh in W. P. 413/71 M s. Sharad Manohar, B. P. Maheshwari and Suresh Sethi for intervener No. 1 K. C. Agarwala Mr. B. R. Agarwala for Intervener Nos. 3 4 Gammon and V. Narayanan. Mr. N. N. Keshwani for intervener No. 5 Gujarat Contractor Assn. The Judgment of the Court was delivered by RAY, C. J. These petitions under Article 32 of the Constitution challenge the validity of the Contract Labour Regulation and Abolition Act, 1970 referred to as the Act and of the Contract Labour Regulation and Abolition Central Rules and Rules of the States of Rajasthan and Maharashtra. The petitioners carry on the business of companytractors for companystruction of roads, buildings, weigh bridges and dams. The Act requires companytractors to take out licences. The Act also imposes certain duties and liabilities on the companytractors. The Act defines in section 2 c a companytractor in relation to an establishment to mean a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through companytract labour or who supplies companytract labour for any work of the establishment and includes a sub-contractor. The other definitions relevant to the meaning of a companytractor are establishment, principal employer and workmen. Establishment as defined in section 2 e of the Act means any office or department of the Government or a local authority, or ii any place where any industry, trade, business, manufacture or occupation is carried on. Principal employer as defined in section 2 g of the Act means i in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf, ii in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948, the person so named, iii in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named, and iv in any other establishment, any person responsible for the supervision and companytrol of the establishment. Workman is defined in section 2 i of the Act to mean any person employed in or in companynection with the work of any establishment to do any skilled, semi-skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or- implied. Section 2 b of the Act states that a workman shall be deemed to be employed as companytract labour in or in companynection with the work of an establishment, when he is hired in or in companynection with such work by or through a companytractor, with or without the knowledge of the principal employer. The petitioners companytend that they are number companytractors- within the definition of the Act. They advance two reasons. First, the work of the petitioners is number any part of the work of the principal employer number is it the work in companynection with the work of the establishment, namely, principal employer. Second, the work of the petitioners is numbermally number done in the premises of the establishment of the principal employer. Relying on the definitions. companynsel for the petitioners companytended that establishment means any place where any industry, trade, business, manufacture or occupation is carried on and, therefore, the workmen employed by the petitioners are number companytract labour because they are number employed in companynection with the work of the establishment. The work of the establishment is, according to the petitioners, number only at the place where the business, trade, industry of the establishment is carried on but also the actual business or trade or industry of the establishment. The entire emphasis is placed by the petitioners on the words work of any establishment. By way of illustration it is said that if a banking companypany which is an establish- ment which carries on its business at Delhi employs the petitioners to companystruct a building at Allahabad the building to be companystructed is number the work of the bank. It is said that the only work of the bank as an establishment is banking work and, therefore, the work of companystruction is number the banking work of the establishment. Therefore, the petitioners companytend that the workmen employed by the petitioners are number workmen in companynection with the work of the establishment. The companytention of the petitioners is unsound. When the banking companypany employs the petitioners to companystruct a building the petitioners are in relation to the establishment companytractors who undertake to produce a given result for the bank. The petitioners are also persons who undertake to produce the result through companytract labour. The petitioners may appoint sub-contractors to do the work. To accede to the petitioners companytention that the companystruction work which Is away from the place where the industry, trade, business of the establishment is carried on is number the work of the establishment is to render the words work of any establishments devoid of ordinary meaning. The companystruction of the building is the work of the establish- ment. The building is the property of the establishment. Therefore, the companystruction work is the work of the establishment. That is why a workman is deemed to be employed as companytract labour in companynection with the work of an establishment. The place where business or rade or industry or manufacture or occupation is carried on is number Synonymous with the, work of the establishment when a companytractor employs companytract labour in companynection with the work of the establishment. The error of the petitioners lies in equating the work of the establishment with the actual place where the business, industry or trade is carried on and the actual work of the business, industry or trade. It is plain that industry, trade, business, manufacture or occupation is to expand. In companynection with the expansion of establishment, buildings are companystructed. The site chosen for the building is the work site of the establishment. The work site is the place where on companypletion of companystruction, the business of the establishment will be carried on. Therefore, the work at the site as understood in the definition is the work of an establishment-. Establishment is understood as including the work site. The companystruction work which the companytractor undertakes is the work of the establishment. The Act was passed to prevent the exploitation of companytract labour and also to introduce better companyditions of work. The Act provides for regulation and abolition of companytract labour. The underlying policy of the Act is to abolish companytract labour, wherever possible and practicable. and where it cannot be abolished altogether, the policy of the Act is that the working companyditions of the companytract labour should be so regulated as to ensure payment of wages and provision of essential amenities. That is why the Act provides for regulated companyditions of work and companytemplates progressive abolition to the extent companytemplated by section 10 of the Act. Section 10 of the Act deals with abolition while the rest of the Act deals mainly with regulation. The dominant idea of the section 10 of the Act is to find out whether companytract labour is necessary for the industry, trade, business, manufacture or occupation which is carried on in the establishment. The Act in section 10 empowers the Government to prohibit employment of companytract labour in any establishment. The Government under that section has to apply its mind to various factors before the Government prohibits by numberification in the official gazette, employment of companytract labour in any process, operation or other work in any establishment. The words other work in any establishment in section 10 of the Act are important. The work in the es- tablishment will be apparent from section 10 2 of the Act as incidental or necessary to the industry, trade, business, manufacture or occupation that is carried on in the establishment. The Government before numberifying prohibition of companytract labour for work which is carried on in the establishment will companysider whether the work is of a Perennial nature in that establishment or work is done ordinarily, through regular workmen in that establishment. The words work of an establishment which are used in defining workmen as companytract labour being employed in companynection with the work of an establishment indicate that the work of the establishment there is number the same as work in the establishment companytemplated in section 10 of the Act. The words other work in any establishment in section 10 are to be, companystrued as ejusdom generis. The expression other work in the companylection of words process, operation or other work in any, establishment occurring in section 10 has number the same meaning as the expression in companynection with the work of an establishment, spoken in relation to workmen or companytractor. A companytractor under the Act in relation to an establishment is a person who undertakes to produce a given result for the establishment through companytract labour. A companytractor is a person who supplies companytract labour for any work of the establishment. The entire companytext shows that the work of the establishment is the work site, The work site is an establishment and belongs to the principal employer who has a right of supervision and companytrol., who is the owner of the premises and the end product and from whom the companytract labour receives its payment either directly or through a companytractor It is the place where the establishment intends to carry on its business, trade, industry, manufacture, occupation after the companystruction is companyplete. According to the petitioners, the companytract labour employed by their sub-contractors will be within the provisions of the Act but when the petitioners will be engaged by a trade, or industry, the petitioners will number be a companytractor and the workmen directly emPloyed by the petitioners will number be companytract labour. This is a strange, and anomalous submission. The Act must be companystrued as a whole. The Act must apply to companytract labour in companynection with the work of an establishment when the companytract labour is hired by the companytractor or by the sub-contractor of the companytractor. The expression work of an establishment means the work site where the companystruction work of the establishment is carried on by the petitioners by employing companytract labour. Every clause of a statute is to be companystrued with reference to the companytext and other provisions of the Act to make a companysistent and harmonious meaning of the statute relating to the subject matter. The interpretation of the words will be by looking at the companytext, the companylocation of the words and the object of the words relating to the matters. The words are number to be viewed detached from the companytext of the statute. The words are to be viewed in relation to the whole companytext. The definition of companytractor, workman, companytract labour, establishment, principal employer all indicate that the work of an establishment means the work site of the establishment where a building is companystructed for the establishment. The companystruction is the work of the establishment. The expression employed in or in companynection with the work of the establishment does number mean that the operation assigned to the workmen must be a part or incidental to the work performed by the principal employer The companytractor is employed to produce the given result for the benefit of the principal employer in fulfilment of the undertaking given to him by the companytractor. Therefore, the employment of the companytract labour, namely, the workmen by the companytractor is in companynection with the work of the establishment. The petitioners are companytractors within the meaning of the Act. The work which the petitioners undertake is the work of the establishment. The second companytention on behalf of the petitioners is that the provisions of the Act and the Rules made thereunder are unconstitutional. It is said that the application of the Act in respect of pending work of companystruction amounts to unreasonable restriction on the right of the companytractors under Article 19 1 g . The bill was introduced in 1967. It was passed in 1970, There is numberunreasonableness in that it applies to pending companytracts. The pendency of companyt is number a relevant companysideration. The subject-matter of the legislation is number companytract. it is companytract labour. There is numberretrospective operation. There are numbermaterials to show that the petitioners will suffer. The companytractors have number shown the companytracts to show the rates of work. It is also number known whether the petitioners have clauses in the companytract to ask for increase of rates in changed circumstances. That is usual in companytracts. The petitioners during the years 1967 to 1970 knew that the legislative measure was going to find place in the statute book. The crucial point is that the interests of the workmen are remedied by the objects of the Act. Those interests are minimum labour welfare. There is numberunreasonableness in the measure. The fees prescribed for registration, licence or renewal of licences are said to amount to a tax and are therefore beyond the rule-making powers of the Central and State Governments. The fees prescribed for registration, licence and renewal of licences do number amount to a levy of tax. The Government has to bear expenses for the scheme of registration, licence. The Government gives service in regard to licences and registration. Further there is numberarbitrary power or excessive delegation of legislative authority in regard to grant of licence. The Act and the Rules provide ample guideline as to the grant and terms and companyditions of licence. Section 15 of the Act companyfers a right of appeal on any person who is aggrieved by any order refusing a licence or if there is revocation or suspension of licence. Similarly, when there is revocation of registration of an establishment or there is refusal to grant registration there is a right of appeal. Counsel for the petitioners companytended that the provisions of the Act are unconstitutional and unreasonable because of impracticability of implementation. Provisions in regard to canteens, rest rooms,. latrines and urinals as companytemplated in sections 16 and 17 of the Act read with Central Rules 40 to 56 and Rule 25 2 vi are said to be incapable of implementation and also to be enormously expensive as to amount to unreasonable restrictions under Article 19 1 g . No provision of the Act is impeached on that ground. The attack is only with regard to rules. The companydition of companytract labour has been engaging the attention of various companymittees for a long time. The benefits companyferred by the Act and the Rules are social welfare legislative measures. The various measures which are challenged as unreasonable namely, the provisions for canteens, rest rooms, facilities for supply of drinking water, laterines, urinals, first aid facilities are amenities for the dignity of human labour. The measure is in the interest of the public. it is for the legislature to determine what is needed as the appropriate companyditions for employment of companytract labour. It is difficult for the Court to impose its own standards of reasonableness. The legislature will be guided by the needs of the general public in determining the reasonableness of such requirements. There is a rational relation between the impugned Act and the object to be achieved and the provision is number in excess of that object. There is numberviolation of Article 14. The classification is number arbitrary. The legislature has made uniform laws for all companytractors. Section 16 of the Act companyfers power on the Government to make rules that in every establishment to which the Act applies wherein companytract labour numbering one hundred or more are employed by a companytractor, one or more canteens shall be provided and maintained by the companytractor for the use of such companytract labour. Rule 42 relates to canteens and Rule 43 relates to dining halls. Rule 42 states that where the companytract labour is likely to companytinue for six months or more and wherein the companytract labour numbers 100 or more, a canteen shall be provided as mentioned therein. This rule indicates that where a fairly stable work goes on for six months and the number of labour is 100 or more, a canteen is to be provided. It is said that it is difficult to find space in Bombay to provide for canteens. It is also said that if a road is to be companystructed, it will be difficult to provide canteen. It is said on behalf of the respondents that a provision for- canteen is capable of performance whether in a city orin a desert. On the face of it, there is numberimpossibility. Possibilityis presumed unless impossibility is proved. it is an unproved allegationas to whether it is impracticable to provide a canteen. When the companystruction work goes on, the companytractor will devise ways and means to provide a canteen. The provision for canteen is number unreasonable. It is number impracticable to have a canteen. A city like Bombay or the companystruction of road is number an insurmountable feature by itself to hold either that the provision is unreasonable or impracticable. Section 17 of the Act states that in every place where companytract labour is required to halt at night in companynection with the work of the establishment, there shall be provided a rest room as mentioned therein. Rule 41 of the Central Rules states that where companytract labour is likely to companytinue for three months or more and where companytract labour is required to halt at night, rest rooms shall be provided. It is number unreasonable to provide rest room. The companytractor will make necessary provision. It will be unreasonable to hold that a labourer will be required to halt at night at the place of work but he will number have any rest room. Section 18 of the Act speaks of facilities like supply of drinking water, companyveniences of laterines, urinals and washing facilities. Rule 51 carries out the provision of the Act by stating that laterines shall be provided. The reasonableness as well as practicability of these facilities is indisputable. It is said that the provisions companytained in Rule 25 2 ii are unreasonable because the licence states the number of workmen employed and if the companytractor is required to employ a larger number, the companytractor will companymit a breach of the companydition. The answer is simple. The companytractor will take steps to amend the licence. Sections 23 and 24 of the Act which speak of companytravention of provisions regarding the employment of companytract labour will be interpreted in the light of section 14 1 b of the Act as to whether the holder of a licence has, without reasonable cause, failed to companyply with the companydition of the licence. If there is wrongful refusal of amendment, that is appealable under the Act. The provisions companytained in Central Rule 25 2 v b are challenged as unreasonable. Rule 25 2 v a states that wages, companyditions of service of workmen who do same or similar kind of work as the workmen directly employed in the principal employers establishment shall be the same. In case of disagreement with regard to type of work, it is provided that the same shall be decided by the Chief Labour Commissioner whose decision shall be final. Rule 25 2 v b states that in other cases, the wages rates, holidays and companyditions of service of the workmen of the companytractor shall be such as may be specified by the Chief Labour Commissioner. There is an explanation to this clause that while determining wages and companyditions of service under Rule 25 2 v b the Chief Labour Commissioner shall have regard to wages and companyditions of service in similar em- ployment. This is reasonable. The companyplaint against Rule 25 2 v b is that there is numberprovision for appeal. It is number difficult to determine and decide cases of this type. The Commissioner of Labour has special knowledge. It will be a question from statute to statute, from fact to fact as to whether absence of a provision for appeal makes the statute bad. The provisions companytained in Rule 25 2 v b refer to wages, hours of work and companyditions of service in similar employment. A provision for appeal is number inflexible. The issue is simple here. A long drawn procedure may exceed the duration of employment of the workmen. A proper standard is laid down in the explanation to Rule 25 2 v b . The absence of a provision for appeal is number unreasonable in the companytext of provisions here. The Commissioner shall have due regard to the wages of workmen in similar employment. The parties are heard and the Commissioner of Labour who is specifically acquainted with the companyditions, applies the proper standards. There is numberunreasonableness in the Rules. The petitioners companytended in the third place that the provisions companytained in section 14 of the Act with regard to forfeiture of security are unconstitutional. Section 12 of the Act provides that numbercontractor shall undertake or execute any work except in accordance with a licence and further that licence shall be issued on payment of fees and on deposit of a security for the due performance of the company- ditions as may be prescribed. Section 14 of the Act provides that if a licensing officer is satisfied on a reference made to him or otherwise that the holder of a licence has, without reasonable cause failed to companyply with the companyditions subject to which the licence has been granted or has companytravened any of the provisions of this Act or the Rules made thereunder then without prejudice to any other penalty to which the holder of the licence may be liable under the Act the licensing officer may, after giving the holder of the licence, an opportunity of showing cause, revoke or suspend the licence or forfeit the sum, if any, or any portion thereof deposited as security for the due performance of the companyditions subject to which the licence has been granted. Rule 24 of the Central Rules relates to security. Maharashtra and Rajasthan Rules companytain similar provisions. Rule 24 of the Central Rules provides that the security amount of Rs. 30/- for each of the workmen is to be deposited as security for the due performance of the companyditions of licence and companypliance with the provisions of the Act or the rules made thereunder. On behalf of the petitioners it is said that Rule 24 which fixes the fee of Rs. 30/- per workman is void under Articles 14 and 19 1 f because it is an arbitrary sum. Secondly, it is said that there is numberobligation on the Government to pay to the workmen or to utilise for the workmen any part of the security deposit so forfeited. Thirdly, it is said that the breach of the companyditions of licence or provision of the Act is made punishable under the penal provisions of the Act, viz. section 24 and yet Rule 24 unreasonably provides for the forfeiture of deposit. Fourthly, it is said that any breach regarding the welfare of the workmen apart from being penal is safeguarded by the requirement that the principal employer would perform the obligation and recover the amount from the companytractor. Fifthly, section 20 of the Act provides that where the benefit for companytract labour is number provided by the companytractor, the principal employer may provide the same and deduct the expenses so incurred from amounts payable to the companytractor. Sixthly, it is said that theprovision regarding forfeiture of deposit has numberrational companynection between the sum required to be deposited and the number of workmen number does the same have rational nexus with the object sought to be achieved since the Government is number bound to utilise the amount for workmen, companycerned. Finally, it is said that Article 14 is violated because it will work harshly against medium and weaker class of companytractors who have to deposit substantial amounts before getting a companytract and who further have to go on leaving in deposit with the Govern- ment substantial amounts. The security is characterised by the petitioners as forced loan without interest. The relevant Central Rules with regard to deposit of security are Rules 24 and 31. Rule 24 provides for deposit of security at the rate, of Rs. 30/- per workmen for the due performance of the companyditions of the licence and companypliance with the provisions of the Act or the rules made thereunder. Rule 31 states that if the licensing officer is, satisfied that there is numberbreach of the companyditions of licence or there is numberorder under section 14 of the Act for the forfeiture of security or any portion thereof, he shall direct the refund of the security. If there is an order directing the forfeiture of any portion of the security deposit- the amount forfeited shall be deducted- and the balance, if any, refunded. The forfeiture under section 14 2 of the Act is for failure to companyply with the companyditions subject to which the licence is granted or companytravention of the provisions of the Act or the rules made thereunder. The forfeiture of deposit under section 14 of the Act may be for the, entire sum or any portion thereof. The forfeiture may be for the purpose of due performance of the companyditions of the licence or for companytravention of any provision of the Act or Rules made thereunder. If any portion of the security is forfeited, it is in relation to the extent of infraction or the degree of due performance which may be required. The security is utilisable for the due performance of the obligations or which the security is taken. The words for the due performance of the companyditions, subject to which the licence has been granted are descriptive of the security. The companyditions of licence appearing in Form No. VI are that the licensee shall number transfer the licence and rates of wages shall be number less than the rates prescribed under the minimum Wages Act. The other companyditions are with regard to hours of work, wage rates and holidays and companyditions of service as may be- specified by the Labour Commissioner. These are some of the principal companyditions. The provision for forfeiture without provision for spending the amount on workers is companystitutionally valid because .the forfeiture amounts to departmental penalty. Forfeiture means number merely that which is actually taken from a man by reason of some breach of companydition but includes also that which becomes liable to be so taken as a penalty. The rate of Rs. 30/- per workman does number offend Article 14. The rate is relatable to the classification of big and small companytractors according to the number employed by them. No additional burden is imposed by the rules. Further orders for forfeiture are appealable. Forfeiture itself is after giving the party reasonable opportunity of showing cause against the action proposed. Secondly the companydition of forfeiture is that the failure to companyply with the companydition is without reasonable cause. The provisions of the Act with regard to forfeiture do number suffer from any companystitutional infirmity. The rules are number inconsistent with the provisions of the Act. The forfeiture of security is for due performance or as a penalty on the licensee. The order for forfeiture is an administrative penalty. The provisions companytained in sections 23 to 26 of the Act indicate that companytravention of the provisions regarding employment of companytract labour is punishable in Criminal Court. The Licensing Officer tinder section 14 of the Act is number a Court. Therefore, there is numberaspect of double jeopardy. Section 34 of the Act was challenged as unconstitutional. Section 34 of the Act provides that if any difficulty arises in giving effect to the provisions of the Act, the Central Government may, by order, published in the official gazette, make such provisions number inconsistent with the provisions of the Act as appears to it to be necessary or expedient for removing the difficulty. Reliance was placed by petitioners on the decision of this Court in Jalan Trading Co. v. Mazdoor Union reported in 1967 1 S.C.R. 15. Section 37 of the Act in that case authorised the Government to provide by order for ,removal of doubts or difficulties in giving effect to the provisions of the Act. This Court held that it is for the legislature to make provisions for removal of doubts or difficulties. The section in that case ,contained a provision that the order must number be inconsistent with the Purposes of the Act. Another provision in the section made the order of the Government final. This Court held that in substance there was the vice of delegation of legislation to executive authority. Two reasons were given. First the section authorised the Government to determine for itself what the purposes of the Act were and to make provisions for removal of doubts or difficulties. Second, the Power to remove the doubts or difficulties by altering the provisions of the Act would in substance amount to exercise of legislative authority ,and that companyld number be delegated to an executive authority. In the Present case, neither finality number alteration is companytemplated in any Order under section 34 of the Act. Section 34 is for giving effect to the provisions of the Act. This provision is an application of the internal functioning of the administrative machinery. Difficulties can only arise in the implementation of rules. Therefore, section 34 of the Act does number amount to excessive delegation. Section 28 of the Act was challenged as companyferring arbitrary and unguided power and, therefore violative of Articles 14 and 15. Section 28 of the Act companyfers power on the Government to appoint persons as it thinks fit to be the inspectors for the purposes of the Act and such inspector shall have power to enter at all reasonable hours the premises or place where companytract labour is employed for the purpose of examining any register or record or numberice and examine any person and seize, or take companyies of documents mentioned therein. When they have reasons to believe that an offence has been companymitted, they can seize or take companyies. This point was taken by the Intervener. An. intervener cannot raise points which are number canvassed by the petitioners in the pleadings. For these reasons, the companytentions of the petitioners fail. The petitions are dismissed. Parties will pay and bear their own companyts.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 15 of 1971. Appeal by special leave from the judgment and order dated the 15th May, 1970 of the Punjab and Haryana High Court in Criminal Appeal No. 737 of 1968. Frank Anthony and K. B. Rohatgi, for the appellant. S. Marwah and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by KRISHNA IYER, J.-Mr. Frank Anthony arguing the case for the accused, in this appeal by special leave, has put forward four main companytentions against the appellants is companyviction, namely, a that the prosecution is invalid for want of companypetent sanction b that the investigation is number merely illegal but has in companysequence inflicted serious prejudice on the accused c that the number-examination of key witnesses, like the Deputy Superintendent of Police, should have driven the companyrt to draw an adverse inference fatal to the case, and the uncorroborated testimony of accomplices or quasi-accomplices should number have been the foundation for a companyviction, and d that the Court bad drawn a presumption under S. 4 of the Prevention of Corruption Act, although there was numberwarrant for it in the present case, the charge having been one under s. 5 1 - d , read with s. 5 2 of the said Act. A brief statement of the facts will lead to a better appreciation of the arguments urged. The accused appellant was an Assistant Station Master at Ateli in May 1967. P.W. 3, a member of the Armed Forces, was going back home by train from Udaipur with his wife and child on railway companycession pass, carrying with him a trunk and bedding. When the, train reached Ateli Railway station in the afternoon of May 9, 1967, P.W. 3 got down with his baggage and, when he handed over his ticket to the accused, was told that he had to pay extra for his wife and child and excess luggage--a sum around Rs. 45 or more. W. 3 pleaded that he had numbermoney on him then and was suggested a way out by the payment of Rs. 10 at once a bribe and a bargain. Promising to bring the money the next day, W. 3 left the station leaving his bedding as something of a number-human hostage which was to be released on the payment of the illicit sum. On reaching his village late in the night, P.W. 3, the Jawan, thought of informing the authorities about this harassment. Accordingly, he companytacted the Deputy Commissioner, Narnaul, on May 11 and related to him what had happened. The Deputy Commissioner instructed the Superintendent of Police to look into the matter who directed the Deputy Superintendent of Police, Narnaul, to take suitable action. He also sent a telephonic message to Shri Dharamvir, Sub Divisional Magistrate, Narnaul, and told him that Sis Ram had been directed to companytact the Deputy Superintendent of Police, Narnaul, in companynection with his companyplaint. thereupon, the Sub Divisional Magistrate, P.W. 5, together with the Deputy Superintendent of Police, decided to organise a trap, on being apprised of the story by P.W. 3. The team companysisted of the Deputy Superintendent, the Sub Divisional Magistrate, a head companystable of the railway police, and P.W. 3 himself. The party moved to the railway station and P.W. 4, Lakshmi Narain, also joined them on the way. A ten-rupee numbere Ex. PI was handed over by P.W.3 to the Sub Divisional Magistrate, who signed on it,.in token whereof a memo was prepared, Ex. PF. P.W. 3 took back the numbere, his body was searched as part of the usual precaution and he was directed to go to the accused and give signal after the money was paid. As arranged, P.W. 3 met the accused, made over the money, gave a signal whereupon the party of the Sub Divisional Magistrate closed in on the accused. The marked numbere was recovered from his right hand vide memo. Ex. PG . Thereafter, the Sub Divisional Magistrate lodged a First Information Report with the police, a case was registered and on companypletion of investigation by the Deputy Superintendent of Police having jurisdiction over the Railways, P.W. 7, and after obtaining the statutory sanction, Ex. PD/1, the accused was charged with an offence of having accepted illegal gratification of Rs. 10 on May 11, 1967 from P.W. 3 thereby companymitting criminal misconduct in the discharge of his duties, punishable under s. 5 2 of the Prevention of Corruption Act, 1947. The Special Judge companyvicted the accused, overruling the defence version set up under s. 342, Cr. P.C., and disbelieving the defence witnesses. The High Court companyfirmed the companyviction. The sentence of one year rigorous imprisonment and a fine of Rs. 200 was also companyfirmed. Shri Frank Anthony sought to make good his companytention regarding the invalidity of the sanction, Ex. PD/1, by urging that P.W. 2, a Divisional Officer Senior Scale , who granted the sanction did number and, under the rules, companyld number appoint or dismiss the accused. It has to be mentioned right at the beginning that P.W. 2, who was working as Divisional Operating Superintendent, Western Railway, Udaipur, has sworn that by virtue of delegated powers he was companypetent to remove an Assistant Station Master like the accused. Although his evidence was a little ambiguous in that he first swore that he was companypetent to remove but number to dismiss the accused, on a later date he was recalled, and gave evidence bringing with him the relevant rules and regulations. He.testified that under the rules he was companypetent to dismiss a Class III servant drawing a pay rising up to Rs. 250. The accused came within this category. The High Court, number companytent with mere oral evidence on this issue, went elaborately into the legality of the sanction and found that the Indian Railway Establishment Code rule 134 authorised delegation of powers, and in the schedule there is a clear delegation of the powers in favour of Divisional Officers Senior Scale to make initial appointments to posts in scales of pay rising up to Rs. 380 per month. P.W. 2 is a Divisional Officer, Senior Scale, and the accused holds a post in a scale of pay number exceeding Rs. 380/- per month. The Court, therefore, companycluded that the power to appoint, which also carried with it the power to dismiss, vested in P.W. 2. Counsel for the appellant companytended that even though r. 134 of the Indian Railway Establishment Code appeared to vest powers in Divisional Officers, Senior Scale, if read in the light of the Schedule of Powers delegated by the General Manager, companytrol in regard to appointments was vested only in the Divisional Personnel Officer as such. To substantiate this argument companynsel invited our attention to certain, earlier portions of the Code. He placed reliance on r. 3 a -, which reads As the DPOs are in executive charge of the staff of the Divisional Offices, exclusive of those working under the Divisional Accounts Officers, the powers delegated to Divisional Officers Sr. Scale in Establishment matters will, in respect of staff of the Divisional Offices, be exercised by the DPOS. There are two difficulties in the way of our accepting this companytention. For one thing, this point admittedly has number been taken before the High Court or the special judge. It is number, therefore, permissible for us to allow it to be argued for the first time in the Supreme Court since the State has numberopportunity to explain whether there are other orders and what the expression Establishment matters I means. In special circumstances, the validity of a sanction which goes to the root of the cage may be permitted to be raised for the first time in this Court. This case is number one such. For another, the rule is clear that persons like W. 2, namely, Divisional Officers, Senior Scale, have the power to appoint class III officers like the accused. The companystruction sought to be put on it by companynsel that only DPOs are in executive charge of the staff of Divisional Offices and are entitled to companytrol them, and by implication, therefore, other Divisional Officers are excluded from the delegation of powers in regard to appointments has numbersubstance. Establishment matters, ordinarily companyer routine items, number appointments and dismissals. May be, for better companyordination and avoidance of companyflict among divisional officers directions may have been issued regarding exercise if powers by one which do number companytradict existence of powers in others. Moreover, it was easy for the appellant to produce his appointment order if his additional case that only a Divisional Personnel Officer and number a Divisional Officer appointed him. Again, all that Ex. E. and like documents prove is that allotments of selected persons are made by the higher officer the R.T.S. but the actual appointment is made by the D.T.S. There is thus numberforce in the last straw plea that the R.T.S. alone companyld or did appoint him. Two decisions were pressed before us by Shri Frank Anthony. The first, Vinayak V. Joshi v. State 1 , is easily distinguishable. There, a Divisional Medical Officer who was of equal status with a Divisional Personnel Officer granted sanction but he had numberdelegation of powers of appointment which only the latter enjoyed. Mere equality of official status with a delegate cannot clothe the other officer with delegated powers and so in that decision it was held that the Medical Officers sanction was incompetent, there being numberdelegation in his favour. The other ruling of the Rajasthan High Court, Sudarshanlal Bajaj V. S. P. Agarwala 2 , has numberapplication whatsoever. In these circumstances, we have numberhesitation in rejecting the plea of the illegality of the sanction. Counsel is certainly right that if there is infirmity in the sanction the prosecution must fail. While it is true that provision for sanction before prosecution of a public servant should number be an umbrella for protection of companyrupt officers but a shield against reckless or malevolent harassment of officials whose upright discharge of duties may provoke unpleasantness and hostility, that is an area of law reform companyered, we find, by the 47th Report of the Law Commission of India. Now we proceed to companysider a kinded companytention that the investigation is grossly illegal and, without more, spells an acquittal. Shri Anthony asked why the Deputy Commissioner did number record the statement of P.W. 3, the aggrieved Jawan. Why did the Superintendent of Police or even the Deputy Superintendent of Police desert his duty to register a case on being apprised of the offence ? Was it number a subversion of the provision of s. 5A of the Prevention of Corruption Act, 1947, to bypass the police establishment by employing a magistrate to lay a trap ? These interrogations do number legally wreck the companyviction because they do number brand the investigation as invalid. As ex- plained by companynsel for the State, P.W. 3 may well have companyplained of harassment by the accused detaining his bedding and the Deputy Commissioner would have in the usual companyrse directed him to the District head of the police. The latter, number improperly, may well have asked his subordinate to take action. Since this D.S.P. had numberjurisdiction over the railway premises, he did number act directly but requested the executive magistrate of the place, P.W. 5, who bad already been informed by the Deputy Commissioner to initiate steps for catching A.I.R. 1968 Pun. 120. A.I.R. 1966 Raj. 37. the alleged bribe taker. We do number share. Shri Anthonys grave suspicion about the alleged inaction of the police and the misuse of the executive magistracy. The simple legal issue is whether s. 5A has been violated or fraudulently frustrated and companysequent failure of justice inflicted? The mandate of s. 5A is merely that numberpolice officer below the rank of a Deputy Superintendent of Police shall investigate any of the offences specified there. Here, numberinvestigation was done by a lesser police officer, for P.W. 7, who did the investigation, was of companypetent rank and what the Magistrate, P.W. 5, did was number investigation and was de hors S. 5A. By definition, only a police officer can investigate sec. 4 1 Cr. P.C. A magistrate cannot. In the present case, after the trap episode was companypleted and the offence companymitted, P.W. 5 laid information before the police whereupon P.W. 7 started investigation. Until then, numberinvestigation in law did or companyld companymence. Moreover, while laying a trap by a police officer may be a step in investigation if a case has already been registered in a police station pursuant to which the trap is set, it cannot be part of investigation where the exercise is only to find out whether an offence is going to be companymitted. Hira Lal 1 hardly rescues the accused. There is numberhing in S. 5A preventing an executive magistrate or other public officer laying a trap to catch an allegedly companyrupt official. The ruling in State of Bihar v. Basawan Singh 2 by implication upholds this position. In fact, in the current crisis of rampant companyruption polluting the public services-so the public mind demoralisingly believes-the need for superior officers vigilantly organising Operation Anti- Corruption cannot be discouraged by legalisms. For the present case it is enough to say that numberviolation of law number serious prejudice has been made out vide Rishbud and Inder Singh v. State of Delhi 3 . The meat of the matter, if one may say so, is whether the accused has been proved to have helped himself to an illegal gratification of Rs. 10/-, as alleged. At the threshold we must remind ourselves that the special jurisdiction under art. 136 of the Constitution cannot be diluted into a second appeal on facts. The end of the appellate journey is numbermally the High Court and exceptional circumstances alone can justify the exercise of the extraordinary power of the Supreme Court to review the evidence. The strange and expensive spectacle of multitiered appeals built into the system does more injury than justice and strictness in this regard brings finality to litigation early instead of holding out illusory hopes to one who would number have ventured on this companytly project had he known the limitations on the jurisdiction under art. 136, more so when the findings are companycurrent. We shall briefly examine the strong attack made by Shri Frank Anthony on the evidence adduced and the credence given to it by the companyrts below. The sharp castigation of traps as immoral, of trap witnesses as accomplices, of involving magistrates in such dubious exercises as reprehensible, may have had some precedential support but 1 1970 3S.C.C.933. 2 1959 S.C.R.195. 3 1955 1 S.C.R. 1150. time and circumstance, the companypulsions of public demand for arresting an insidious but expanding evil and a sense of judicial realism and appreciation of the specific facts of each case guide the pragmatic yet principled approach the companyrt has to make. It is number necessary that executive magistrates should always keep away from operations intended to catch the criminal red-handed. He is number so strongly motivated to get a suspect somehow or other punished. He is professionally detached and has a public responsibility to help detect a bribe-taker if credible requests are made. Such a magistrate is number a cloistered ,virtue unconcerned with social claims on his services. It is apathy of good citizens that induces police officers to go after the lesser breed of search witnesses in the enforcement of social welfare statutes. To companydemn roundly every public official or man of the people as a quasi-accomplice for participating in a raid is to harm the public cause. May be, a judicial officer, unlike an executive magistrate, should hesitate to get involved in police trap experiments and expose himself to charges of unveracity. However, there is force in the censure made in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh 1 when the police provide inducements.and instruments to companymit crimes .and judicial personages willingly lend themselves to be enmeshed in such shady attempts, sullying the image. of independence of the judi- ciary. But we cannot exaggerate these dicta, into a total ban on public officers, even though executive magistrates, playing a socially useful role in checking public mens companyruption when the situation needs it. This is best illustrated by the observations of Das, J., in State of Bihar v. Basawan Singh 2 where the learned Judge emphasized that a flexible, realistic approach is the sound companyrse. In the present case, the magistrate was number a full-blooded judicial officer but only exercised limited preventive powers after separation of the judiciary from the executive. No de numbere temptation number bribe money was offered by the police in the present case. The magistrate merely sought to do his public duty of intercepting a crime which was otherwise in the process of fulfilment. It was service, number sin, to have done it. No ground to discredit the veracity or taint the testimony of P.W. 5 has been elicited. And, what dissolves scepticism and builds up credence is the seizure of the marked currency numbere from the accuseds right hand and the presence of the bedding of the jawan on the railway station. The original story of P.W. 3 fits in with the facts while the accuseds strained version stands unproven. The murky evidence of the military man, P.W. 3, who perhaps stood to gain by paying Rs. 10 and avoiding excess, baggage and extra passenger charges may be insufficient to prove guilt if uncorroborated by better testimony. A bribe deal is usually a benefit-both syndrome and the payers lips carry little companyviction in the absence of reassuring support. Before us, the executive magistrate, PW. 5, and the casual member of the trap team, P.W. 4, have given testimonial boost. But real-reinforcement companyes from the right hand of the accused which held the.guilty numbere and gave it over to P.W. 5 on being challenged. The companynter- story of the Assistant Station Master accused was that the Jawan was stopped by the attender or water carrier of the station at the gate for insufficient 1 1954 S.C.R. 1096. 2 1959 S.C.R. 195. tickets and excess baggage but, after some sound and fury over an interpolation in the military pass, was allowed to go by the accused who promptly reported to the Jaipur Station Master to know how many passengers were companyered by the pass. The inconvenient bedding of the Jawan was explained by the accused as having been left behind by P.W. 3 in the heat of the moment and had been kept in the lost property room and entered in the relevant register. The companyrts below have rejected this exculpatory case of the appellant and we see numberhing too odd in the appreciation or too unnatural in the inference to warrant our interference. True, P.W. 1, the fellow station master, has endeavoured to substantiate the appellants plea but has been disbelieved. After all, the successful and sustained prevalence of rackets .Eke companyruption is built on the artful network of sharing agencies and the rescue operations of P.W. 1 cannot be regarded as independent evidence of an unconnected officer. We hope that the authorities in charge of cleansing our public sector of companyruption Will view each detected act as symbolic of a chain scheme and symptomatic of a deeper systemsic malady and number as an isolated aberration of a delinquent official. A massive purge, number stray traps, can alone be the strategy. That P.W. 1 supports the accused is numbersurprise if we realise how dubious distributive justice works in some of these public offices where money is illicitly companylected. An honest. Assistant Station Master in the place of the accused companyld number have allowed P.W. 3 to leave without reporting to the railway police. Nor is the frivolous explanation that the ten-rupee numbere was brought by P.W. 3 when the accused wanted only one rupee as official charge for keeping the bedding in the lost property room worth a serious look. We regret our inability to accede to the forceful submissions of Shri Frank Anthony on this aspect of the case. in passing we may mention that the criticism made by learned companynsel that P.W. 1 has been illegally permitted. to be treated as hostile is pointless. It is a discretionary power of the trial judge and when a witness strikes him as imbued with partisan zeal cross-examination may be allowed by the party who calls him. After all, these rules are only to further the end of truth, number clogs in the quest for it. We see numbermerit in the argument. To sum up, the case against the accused has been made out beyond reasonable doubt. Infallibility is the attribute of the omniscient and judges can only act on pragmatic sense and reasonable doubts. The last submission turns on the presumption under. Section 4 of the Act. The companytention of companynsel for the appellant that the presumption available under S. 4 of the Act cannot be raised in the present case since the charge is under s. 5 1 d , read with s. 5 2 , is apparently attractive. But we may numberice that even if the statutory presumption is unavailable, companyrts may presume what may in the ordinary companyrse be the most probable inference. That an Assistant Station Master like, the ,accused has in his hand a marked,, currency numbere made over to him by a passenger whose bedding has been detained by him for which numbercredible explanation is forthcoming, and he is caught red-handed with the numbere, is a case of res ipsa loquitur. The very thing speaks for itself in the circumstances. We need number, therefore, scrutinise the substance of the argument based on the inapplicability of S. We also feel that there may be some force in the argument of companynsel that the jawan, P.W. 3, might have duped the railway by using a pass for one passenger and carrying a family of wife and, child together. of companyrse, we cannot finally pronounce on this matter for want of sufficient documents. All that we need say is that even assuming that the passenger so tried to dupe the railway, that is numberalibi for the Assistant Station Master to help himself to illicit gratification. Nor is the number-examination of the Deputy Superintendent of Police of any companysequence in the case. In these circumstances we find numberreason for interfering with the companycurrent companyviction and sentence. The appeal is dismissed.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 201 of 1970. Appeal by Special Leave from the Judgment and Order dated the 3rd February, 1970 of the Delhi High Court in Crl. Mis. No. 93 of 1969. M. Anand, for the Appellant. N. Prasad and R. N. Sachthey for Respondent No. 1. The Judgment of the Court was delivered by SARKARIA, J.-This appeal by special leave is directed against an order of a learned single Judge of the Delhi High Court, dismissing appellants petition made under s. 561-A of the Code of Criminal Procedure. The material facts are these On June 15, 1969, a report was lodged in Police Station, Tilak Mark, New Delhi, by one Munshi Ram alleging that he was employed as a Driver of bus, DLP 3867, belonging to Indraj Singh and Sukh Lal of Chirag Delhi. On June 13, 1969 at 6 p.m., he stopped the bus at Mathura Road to talk to one Devi Singh son of Ganesh Lal. Devi Singh invited the informant and his companypanions, Mahinder Singh Conductor and Sher Singh helper, to soft-drinks at a nearby shop. Leaving the bus unattended, they proceeded to that shop. In the meantime, Jehan Singh appellant, Sharma, R. K. Pathak and another man of stout-build got into the vehicle. The stout man took the steering wheel, and all the four drove away in the bus despite the protests of the informant and his companypanions. Munshi Ram then went to Chirag Delhi to inform his employer Indraj Singh, but found the latter absent. It was also mentioned in the report that Pathak and Sharma were employed in Scindia House. The police started investigation and arrested Jehan Singh appellant, and R. K. Pathak, Assistant Manager of the Industrial Credit Co. Ltd., Scindia House hereinafter called the Company . They were later released on bail. The bus was also seized by the police from the possession of the Company. Pathak and the appellant filed two separate petitions under s. 561A, Cr. Procedure Code challenging the police proceedings in pursuance of the First Information Report made by Munshi Ram. The learned Judge by a companymon judgment allowed Pathaks petitions and quashed the proceedings against him, but dismissed the appEllants petition with this observation If Jehan Singh had transferred all his rights in the bus, though against the stipulations in the hire-purchase agreement, it would be a matter for companysideration of the trial companyrt whether he companyld be regarded guilty of the offence of theft if the version companytained in the first information report is proved. At the outset, we inquired from Shri Anand, learned Counsel for the appellant, whether the proceedings sought to be quashed were pending in any companyrt or before the police. We are told that at the date of the filing of the petitions under S. 561-A, Cr. Procedure Code, numbercharge-sheet or companyplaint had been laid in companyrt. The matter was still at the stage of investigation by the police. Shri Prasad, learned Counsel for the State companytends that the petitions under s. 561-A to quash the proceedings which were being companyducted in the companyrse of policy investigation, were number companypetent. He has referred to King Emperor v. Khwaja Nazir Ahmad l and State of West Bengal v. S. N. Basak 2 . It is maintained that in these circumstances, the petitions of both Pathak and the appellant Jehan Singh ought to have been dismissed as premature. On the other hand Shri Anand maintains that his case falls within one of the exceptions to the general rule enunciated in the cases cited 1 71 I.A. 203 at 213. 2 1963 2 S.C.R. 54. by Shri Prasad. Reliance has been placed on R. P. Kapur v. State of Punjab 1 . It appears to us that the preliminary objection raised by Shri Prasad ,must prevail. In King Emperor v. Khwaja Nazir Ahmad supra , their Lordship ,of the Privy Council pointed out that the functions of the judiciary and the police are companyplementary, number overlapping and that the companyrts. functions begin when a charge is preferred before it, and number until then. It was added that it has sometimes been thought that s. 561-A has given increased powers to the Court which it did number possess before that section was enacted. But this is number so, the section gives numbernew powers, it only provides that those which the companyrt- already inherently possesses shall be preserved. The principle enunciated in Khwaja Nazir Ahmeds case supra was applied by this Court in S. N. Basaks case supra . Therein a First in-formation Report was registered at the Police, Station to the effect, that S. N. Basak along with three others had companymitted offences under ss. 420, 120-B read with s. 420, Penal Code. The police started investigations on the basis of that report. Basak accused surrendered before the Judicial Magistrate and was enlarged on bail. Subsequently, he moved the High Court by a petition under ss. 439 and 561-A of the Code of Criminal Procedure praying that the proceedings pending against him be quashed. At the time he filed the petition there was numbercase pending before any companyrt. The High Court quashed the police investigation holding that the statutory power of investigation given to the police under Chapter XIV is number available in respect of an offence triable under the West Bengal Criminal Law Amendment Special ,Courts Act, 1949 and that being so, the investigation companycerned is without jurisdiction. Against that order, the, State came in appeal before this Court on a certificate granted by the High Court under Art. 134 1 c . Allowing the appeal, this Court speaking through J. L. Kapur J., observed The powers of investigation into companynizable offences are companytained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in companynizable offences and S. 156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged companynizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under s. 439 or under the inherent power of the companyrt under s. 561-A of Criminal Procedure Code. The basic facts in the instant case are similar. Here also, numberpolice challan or charge-sheet against the accused had been laid in companyrt, when the petitions under s. 561-A were filed. The impugned .Proceedings were those which were being companyducted in the companyrse of 1 1960 3 S.C.R. 388 police investigation. Prima facie, therefore, the rule in Basaks case would be attracted. In R. P. Kapur v. The State of Punjab supra , it was clarified that the rule as to number-interference by the High Court, in the exercise of its inherent powers, with the proceedings at an interlocutory stage, was number an inflexible one, and there are some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. Gajendragadkar J., as he then was, speaking for the Court indicated one of such categories thus Cases may also arise where the allegations in the First Information Report or the companyplaint, even if they are taken at their face value and accepted in their entirety, do number companystitute the offence alleged in such cases numberquestion of appreciating evidence arises it is a matter merely of looking at the companyplaint or the First Informating Report to decide whether the offence alleged is disclosed or number. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal companyrt to be issued against the accused person. It was held that since the allegations made in the First Information Report against the appellant therein did companystitute offences alleged, there was numberlegal bar to, the institution or companytinuance of the proceedings against him. It was further laid down that in exercise of its juris- diction under S. 561-A, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or number. The question, therefore, to be companysidered is, whether in the instant case, the allegations made in the First Information Report, did number, if assumed to be companyrect, companystitute the offence of theft or its abetment against the appellant. A plain reading of the First Information Report would show that the answer to this question must be in the negative. It is alleged therein that the bus DLP-3867 belonged to Indraj and Sukhlal of Chirag Delhi and was at the material time in their possession through their servants, Munshi Ram Driver, Mohinder Singh Conductor and Sher Singh Helper, and that it was removed in the teeth of opposition from them, without their companysent, from their custody or possession by four persons including Jehan Singh and R. K. Pathak, who all entered into the vehicle which was then driven by one of them, who was of strong build, medium height, dark companyplexion etc. to Scindia House. In substance the allegation was that the wrongful removal of the bus was the companycerted action of the appellant Jehan Singh and R. K. Pathak and their un-named companypanions. Prima facie, the allegations in the First Information Report, if taken as companyrect, did disclose the companymission of a companynizable offence by the appellant and his companypanions. May be, that further evidence to be companylected by the police in the companyrse of investigation including the hire-purchase agreement, partnership deed and the receipt etc. would companyfirm or falsify the allegations made in the First information Report. But, the High Court, at this stage, as was pointed out by this Court in R. P. Kapurs case supra , companyld number, in the exercise of its inherent jurisdiction, appraise that evidence or enquire as to whether it was reliable or number. Might be, after companylecting all the evidence, the police would itself submit a cancellation report. If, however, a charge-sheet is laid before the Magistrate under s. 173, Criminal Procedure Code, then all these matters will have to be companysidered by the Magistrate after taking companynizance of the case. We cannot, at this stage, possibly indicate what should be done in purely hypothetical situations which may or may number arise in this case. For the foregoing reasons, we would hold that the petitions under s. 561-A were liable to be dismissed as pre-mature and incompetent. On this short ground, we would dismiss this appeal. No observation unwittingly made with regard to the merits of the case, in the above judgment shall be taken into account to the prejudice of any of the parties.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 23 of 1974. Petition Under Article 32 of the Constitution of India. Frank Anthony and K. B. Rohtagi for the Petitioner. P. Uniyal, R. Bana and O. P. Rana for the Respondent. The Judgment of the Court was delivered by GOSWAMI, J.-This habeas companypus petition under Article 32 of the Constitution of India is directed against the order of the District Magistrate, Varanasi, of 3rd September, 1973, whereby the petitioner was detained under sub-section iii of clause a of sub-section 1 .of section 3 of the Maintenance of Internal Security Act, 1971 briefly the Act . The order has been passed with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity. The grounds of detention were served on the petitioner on 7th September, 1973. Leaving out the prefatory and descriptive portions, the grounds of detention may be set out as under Ground No. 3 That you and your other associates have been charge sheeted by Mohania Police on 28-11-66 for the offence punishable under section 7 F.C. Act and 125 DIR 1962 and the case is still pending in the Court, Magistrate of Bhabhua Bihar as the proceedings have been stayed by the orders of the High Court, Patna. Ground No. 4 That with a view to companytinue your anti-social activities and to save yourself from the clutches of law you have started a firm under the name and style of M s Shyam Sunder Ashok Kumar, in Mohalla Machchodari P. S. Kotwali, Varanasi City some time in the year 1966 or 1967 and You have purposely associated your minor son Ashok Kumar, your brother Shyam Sunder and a lady of your family as partners in the said firm only in name while, in fact, you are actively transacting the entire business of the said firm to carry on the illegal activities. Ground No. 5 That taking undue advantage of the acute shortage of the foodgrains in the state due to the failure of the rains disrupt the fair and equitable distribution amongst the public you have succeeded in getting large quantity of maize, bajra and jawar and smuggled to and stored in your goodown at Mohania Bihar , a number-producing area of these foodgrains in the State of Bihar, just on the border of U.P. through your said firm which will be evidenced by the facts given below Then follows a detailed list of sales of bajra, jawar and maize to numerous persons as per cash memos mentioned therein showing sales, on 21-6-1973, 26-1973, 7-7-1973, 16-6- 1973 and 16-7-1973 Ground. No. 6 That the persons named above are neither foodgrains Arhatias number retail shopkeepers either at Chandsuli Bazar or in Chandsuli village. Ground No. 7 That the aforesaid sales are fictitious and have been shown with a view to smuggle bajra, jawar and maize to Bihar from where enough quantities of bajra and jawar have been booked by rail to Delhi and Poona as shown below Then is given a list of various bookings of 225 bags of jWar to Delhi, 116 bags of bajra to Poona, 150 bags of bajra to Poona, 220 bags of bajra to Poona and 229 bags of jawar to Poona and even railway wagon numbers are mentioned. The 7th ground ends as under -- All these companysignments were booked to self. The companysigners of aft these companysignments were searched at Mohania on the address given in the railway records but numbersuch persons or Bhandar were available on that address. Enquires show that you were the person behind these transactions. Ground No. 8 That five trucks bearing registration No. UPF 2039, USF 3253, UPF 2927, USS 7745 and UPF 2015 loaded with jawar and bajra were apprehended by Mohania Police on 2- 3-1973 2/3 July 1973? on the ground that all the trucks belonged to Uttar Pradesh and the jawar and bajra loaded on them were being smuggled from U.P. to Bihar at your instance. Ground No. 9 That 3 bags of rice No. 2, 499 bags gram, 70 bags of Matar and 90 bags of Dal matar were found short on the actual verification of the stock of firm Shyam Sunder Ashok Kumar on 17-7-1973 by Deputy Regional Marketing Officer, Varanasi Enforcement . Ground No. 10 That the firm Shyam Sunder Ashok Kumar have number maintained any stock register and satta Bhai since 1970 of oil- seeds and oil-seeds product but at the time of checking on 17-7-73, 305 bags of Tisi and 10 bags of Sarson were found Ground No. 11 In view of the aforesaid mentioned grounds I am satisfied that the activities carried on by you are such as to interfere with the scheme underlying the Essential Commodities Act and the Movement Orders promulgated by Government under the above Act in a manner prejudicial to the maintenance of supplies and services essential to the companymunity and it is necessary to detain you. 9-1-84Sup.C.T. /75 The petitioner applied to the High Court of Allahabad under Article 226 of the Constitution read with section 491 of the, Code of Criminal Procedure for quashing the order of detention and the same was dismissed by the Division Bench on 26th November, 1973. The petitioner obtained special leave to appeal against the judgment on 19th December, 1973 and the same has been registered as Criminal Appeal No. 231 of 1973. The petitioner also filed writ petition No. 23 of 1974 before this Court under Article 32 of the Constitution on 20th December, 1973, against the order of the State Government of 21st November, 1973, companyfirming the aforesaid order of detention under sect-ion 12. 1 of the Act and rule nisi was issued on 31st January, 1974. Both the matters are heard together and are disposed of by this companymon judgment. On behalf of the petitioner, the following submissions are made by Mr. Frank Anthony There was companysiderable delay in the Government disposing of the representation of the detenu and hence it vitiates the detention order. Ground No. 8 is number-existent and irrelevant and hence it vitiates the detention order. Some, grounds furnished by the detaining authority are the subject matters of criminal cases which are still sub judice. Two remote past incidents of the detenu are made the basis of some grounds of detention. Although Mr. Anthony made a strong plea on the first ground regarding delay in forwarding the representation of the detenu to the Government and in its ultimate disposal, we will first take up his third submission. It is admitted by Mr. Uniyal, learned companynsel for the State, that the Mohania Police Station case referred to in ground No. 3 is s. ill pending in the criminal companyrt in Bihar. He, however, submits that ground No. 3 is merely descriptive and is number a ground in itself upon which the detention order has been based We may, therefore, scrutinise the. aforesaid submission of Mr. Uniyal. What is referred to in ground No. 3 is the criminal case under section 7 of the Essential Commodities Act and rule 125 of the Defence of India Rules, 1962. This has reference to the first information report lodged by the Inspector of Police, Karm Nasha Check Post, Camp Mohania Arrah, Bihar, on the 11he October, 1964 Annexure-P at page 137 of the writ petition . The relative charge-sheet dated 29th November,. 1966 28th November, 1966? is at Annexure-0 at Page 140 of the writ petition. The charge-sheet itself mentions about the said order of the Patna High Court. It is, therefore, clear that the 3rd ground forms the subject matter of a Criminal trial which. is still sub judice. The charge-sheet indicates manifold inter-state illegal activities of the firm of M - Shyam Sunder Ashok Kumar of Mohania attracting the provisions of the Essential Commodities Act and the Defence of India Rules besides other sections of the Indian Penal Code. It is because of this 3rd ground that the 4th ground has been worded in the way it has been done, namely, that with a view to companytinue your antisocial activities and to save yourself from the clutches of law you have started a firm Linder the name and style of M S Shyam Sunder Ashok Kumar We are therefore, unable to accept the submission of Mr. Uniyal that ground No. 3 is merely descriptive and is number germane with regard to the order of detention. On the other hand, there is great force in the submission of Mr. Anthony that ground No. 3 is the companyner-stone of ground No. 4. It is clear that ground No. 3 is companyered by a prosecution in the criminal companyrt which is pending trial in Bihar. It should be mentioned here that the High Court of Patna in Criminal Writ Jurisdiction cases Nos. 39 and 40 of 1965 by order dated 21st August, 1965, quashed an order of detention of the petitioner made on 19th July, 1965, based on the allegations in the same first information report of 11th October, 1964, of Mohania Police Station under section 7 of the Essential Commodities Act, 1955 and various other sections of the Indian Penal Code. The identical facts arc number relied upon in ground No. 3. Again ground No. 8 is also the subject matter of criminal case with reference to the first information report of 3rd July 1973 Annexure 12 at page 288 of the writ petition . There is numbercontroversy that the said criminal case is still pending. Similarly grounds Nos. 9 and 10 are companyered by a criminal case with reference to first information report dated 5th August, 1973 and the relative charge-sheet dated 19th September, 1973 under section 3/7 of the Essential Commodities Act, pending in the criminal companyrt at Varanasi P. . We are informed that there is numberdirect authority of this Court on the point. Mr. Uniyal has, however, drawn our attention to a decision of this Court in Mohd. Salim Khan Shri C. C. Bose, Deputy Secretary to the Government of West Bengal and another, 1 to which one of us Brother Khanna was a party. The decision is clearly distinguish- able as will be clear from the following excerpt from the same - The mere fact, however, that criminal proceedings in companynection with the same incidents bad been adopted against the petitioner and be had been discharged by the trying Magistrate does number mean that numbervalid order of detention companyld be passed against him in companynection with those very incidents. or that such an order can for that reason be characterised as mala fide. It might well be that a magistrate trying a particular person under the Code of Criminal Procedure has insufficient evidence before him, and, therefore, has to discharge such a person. But the detaining authorities might well feel that though there was number sufficient evidence admissible under the Evidence Act for a companyviction, the activities of that person, which they had been watching, were AIR 1972 SC 1670/1672. of such a nature as to justify an order of detention. From the mere fact, therefore, that the Magistrate discharged the petitioner from the criminal case lodged against him it cannot be said that the impugned order was incompetent, number can it be inferred that it was without a basis or mala fide. See Sahib Singh Dugal v. Union of India 1 . In the above premises, more than one question may arise for companysideration with regard to the third submission of Mr. Anthony. Firstly by whether the detenu can be said to be reasonably able to make an effective representation against this ground when he has been facing a trial in the criminal companyrts. By disclosing his defence and certain facts, can he number companyplain that he will be handicapped in defending, himself in the criminal companyrts? It is well settled that in a case of preventive detention the grounds must be clear and definite to enable the detenu to make an effective representation to the Government to induce the authorities to take a view in his favour. He must, therefore, have a real and affective opportunity to make his representation to establish his innocence. Being faced with a criminal prosecution which is pending against him all through, we are clearly of the view that the detenu has number got a proper and reasonable opportunity in accordance with law to make an effective representation against the impugned order of detention companyered by the said proceeding. Secondly, the question is whether it is open to the detaining authority to choose two parallel proceedings against the detenu as in this case. The fact that the ground of detention companyld be a subject matter of criminal prosecution is number enough to vitiate a detention order if the detaining authority does number choose to prosecute him and only passes an open trial. The choice of the authority companycerned for the mode of numberanswer that the detenu must be prosecuted in the criminal companyrt in an open trial. The choice of the authority companycerned for the, mode of tackling the illegal activity cannot per se be illegal and the order of detention will be judged on its merits in accordance with the law laid down by this Court. The position will be, however, entirely different if the authority companycerned makes an order of detention under the Act and also prosecutes him in a criminal case on the self-same facts. This, in our view, is totally barred. The detaining authority cannot take recourse to two parallel and simultaneous proceedings number can take recourse to a ground which is the subject matter of a criminal trial as in the case of the first information report dated 5th August, 1973 furnishing the grounds 9 and 10 of the detention order. That fact itself introduces a serious infirmity in the order of detention for which the same must be held to be invalid. Similarly it is obvious that two of the cases are pending in the criminal companyrts in Bihar. But it is also clear, as numbered above, that the Patna High Court had quashed the order of detention of the Government of Bihar based on facts relating to the first information report of 11th October, 1964, although on grounds different from those which we are number companysidering. If the District Magistrate in the instant case had 1 1966 1 SCR 313 quoted in AIR 1972 SC 1670. number at all taken recourse to the facts of the criminal cases pending against the detenu in Bihar in companying to the companyclusion about his reasonable satisfaction for making an order of detention, the matter would have been different. It is clear that the District Magistrate has been influenced by the existence of the criminal prosecutions in Bihar and he has chosen those grounds to furnish as aids to his satisfaction in order to make the order of detention. We are clearly of the view that the grounds with reference to the pending criminal prosecutions in Bihar companyld number provide a valid basis for making the impugned order of detention, particularly because those cases are pending trial in the criminal companyrts in Bihar and in view of the decision of the Patna High Court in companynection with one of these cases. Since the detention order is based on these grounds, the same must be held to be invalid. The third submission of the learned companynsel, is, therefore, accepted. It is well settled that in an order under the present Act the decision of the authority is a subjective one and if one of the grounds is numberexistent or irrelevant or is number available under the law, the entire detention order will fall since it is number possible to predicate as to whether the detaining authority would have made an order for detention even in the absence of number-existent or irrelevant ground. The companyclusion is, therefore, irresistible in this case that the, impugned order is invalid and the detention in this case must be held to be illegal. As too many companyks spoil the broth so also too many grounds may vitiate an order of detention if any one of them is irrelevant or numberexistent. The authority, therefore, has to be careful enough to see that only relevant and valid grounds are selected having a nexus with the object of the order of detention. Although the aim and object of the order of detention be laudable and the antecedents of a detenu be extremely reproachable yet it is essential that if it is desired to detain a person without trial, the authorities companycerned should companyform to the requirements of the law. The shady antecedents of the detenu cannot provide a justification for number-compliance with the mandatory provisions. The scope of the inquiry in the case of preventive detention based upon subjective satisfaction being necessarily narrow and limited, the scrutiny of the companyrt has to be even stricter than in a numbermal case of punitive trial. Since we have held the order of detention as invalid for the reasons given above, it is number necessary to deal with the other grounds submitted by Mr. Anthony. The writ petition and the appeal are allowed. The judgment of the Allahabad High Court is set aside and in the view we have taken we do number feel called upon to pronounce upon the various reasons given by the High Court in rejecting the petition. The rule nisi is made absolute. The petitioner shall be released forth with from the jail unless he is required in any other case. Criminal Miscellaneous Petition No. 318 of 1974 is allowed. The application for taking additional papers on record is rejected.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No,. 16o7 of 1967. Appeal by Special leave from the Judgment and Decree dated the 3rd February, 1967 of the Madhya Pradesh High Court at Jabalpur in Civil Misc. Second Appeal No. 124 of 1966. D. Sharma for the appellant. N. Lokitr and A. G. Ratiaparkhi for the respondent. The Judgment of P. JAGANMOHAN REDDY AND S. N. DWIVEDI, JJ. was delivered by DWIVEDI, J. P. K. GOSWAMI, J. gave a dissenting Opinion. DWIVEDI, J.-Kariya and his wife Sava purchased the house in dispute by a registered deed on April 2, 1905. Kariya died in 1936 leaving behind him Sava and Ram Charan, his son. On August 16, 1951 Ram Charan mortgaged the house to Prem Raj the appellant . Prem Raj obtained a preliminary decree for foreclosure on August 16, 1952 and also the final decree on July 16, 1955. In the meanwhile.on March 7,1952 Sava gifted the entire house to Prakash Chandra, son of Ram Charan,the respondent. Fortified by this gift, Prakash Chandra frustrated several attempts of the appellant to get possession of the house in execution of his decree. He made three unsuccessful attempts to execute the decree till the end of 1954. He made the fourth attempt on April 25, 1956. Shortly there- after, on December 7, 1956, Prakash Chandra instituted a suit against the appellant and his father Ram Charan for a declaration that the preliminary and final decree for foreclosure in favour of the former were number binding on him and for a perpetual injunction restraining the appellant from taking possession of the house in execution of the aforesaid decree. The suit was dismissed on November 25, 1958. He filed an appeal and obtained an order staying exe- cution of the decree on December 31. 1958. The appeal companyrt partly allowed his appeal on October 21, 1959. It was held that he was the owner of a half share in the house by virtue of the gift deed from Sava in his favour. So the appeal companyrt issued an injunction restraining the appellant from executing his decree with respect to a half share in the house. The appellant filed a second appeal in the High Court of Madhya Pradesh against the judgment of the appeal companyrt. Prakash Chandra also filed a cross-objection in respect of his claim for the remaining half share in the house. Both the appeal and the cross-objection were dismissed by the High Court on January 1, 1962. Turning back to the fourth execution application filed by the appellant, it was dismissed on June 23, 1956. The fifth execution application was filed by the appellant on July 29, 1964 for possession over half of the house. The respondent objected to this application on the ground of limitation. The objection was disallowed by the execution companyrt as well as by the appeal companyrt. It was, however, upheld by the High Court of Madhya Pradesh. So the application was dismissed as time-barred. Hence this appeal. The sole argument of the appellant in the High Court was that S. 15 Limitation Act, 1908 hereinafter called the Act saved limitation. The High Court rejected this argument. The order of the appeal companyrt staying execution of the decree remained in force only for a limited period between January 31, 1958 and October 21, 1959. That time should be excluded in companyputing limitation under s. 15 but that alone would number have limitation. Before us, companynsel for the appellant has number placed reliance on 15 to save limitation. His arguments number are Limitation is saved by clauses 1, 2 and 4 of Art. 182 Limitation is saved by cl. 5 of Art. 182 The fifth application for execution was really an application to revive the fourth execution proceeding and therefore, it was number time-barred. We shall companysider these arguments in seriatim. But before we do so, it is necessary to read the relevant provisions of Art. 182 For the execution of a decree 1. The date of the decree of Three 1. The date of the decree any civil companyrt years 2. where there has been an appeal the date of the final decree of the appellate Court 4. where the decree has been amended the date of amendment, or 5. where the application next hereinafter mentioned has been made the date of the final order passed on an application made is accordance with law to the proper companyrt to take more step in aid of execution of the decree Explanation 11 Proper Court means the Court whose duty it is to execute the decree Regarding argument No. 1 We are unable to appreciate how the High Court decree in Prakash Chandras suit will give a fresh starting point of limitation to the appellant under cl. 1 of Art. 182. Clause 1 is to be read against the backdrop of the words in the first companyums for the execution of a decree. So the date of the decree whether of the first companyrt or of the appellate companyrt which is put in execution furnishes the starting point of limitation. The final decree in favour of the appellant was drawn up under Order XXXIV, rule 3 Civil Procedure Cod,-. The decree absolutely debarred the respondent and all persons claiming under him from redeeming the mortgage It also directed the respondent to deliver possession of the disputed house which was mortgaged. The decree was binding on the respondent and anyone claiming under him. it companyld number and did number purport to bind a third person claiming any interest in the house in his own right. In his suit Prakash Chandra challenged the decree, inter alia, on the ground that he was the sole owner of the house. He claimed a declaration that the decree was number binding on him and a permanent in junction restraining the appellant from taking possession of the house in execution of the decree. The appeal companyrt found that Prakash Chandra was the owner of a half share in the house by virtue of the gift from Sava who had a half share and that accordingly the decree was number binding on him to the extent of a half share. The appeal companyrt granted a declaration to that effect and an injunction restraining the appellant from taking possession of the half share of Prakash Chandra in the house in execution of the decree. The decree of the appeal companyrt was affirmed by the High Court. It is plain that neither the decree of the appeal companyrt number the decree of the High Court reversed, varied or amended in any manner the final foreclosure decree of the appellant. The foreclosure decree remained in tact and fully alive. It companyld be executed against the respondent according to its tenor. He companyld be ejected- from the whole house. But it companyld never have any effect against Prakash Chandras permaount title to a half share in the house. Prakash Chandra obtained his decree in a companylateral suit. The appellants second appeal against the decree of the appeal companyrt in favour of Prakash Chandra A,,,-is number directed against the foreclosure decree number in execution, number would it, as shown earlier, effect the decree in any manner in relation to the respondent judgment debtor. So his appeal and the High Court decree passed in his appeal would number fall within cl. 2 and 4 of Art. 182 and would number furnish a fresh starting pint of limitation for executing the foreclosure decree against the respondent-judgment debtor. See Bhawanipore Banking Corporation Ltd. v. Gori Shanker Sharma 1 . The appellant has relied on Mohammad Jabir and others v. Narain Prasad Daruka and others 2 and Janab Mohammad Ismail v. Tatlvia Bivi Amral and others. 3 In these two cases the decree sought to be executed itself was amended. So clause 4 of Art. 182 was directly applicable. Regarding argument No. 2 In order to get the advantage of cl. 5 of Art. 182, the appellant has to satisfy three companyditions The written statement filed by him in Prakash Chandras suit, his resistance to the first appeal of Prakash Chandra and his second appeal in the High Court are an application. The companyrt in which Prakash Chandras suit and firs appeal were instituted and the High Court wherein the appelants second appeal was filed are the proper companyrt. The specified in a are a step in aid of execution of the decree sought to be executed by the appellant. An appellant is the making of art appeal, request, or petition to a person the request so made. Shorter Oxford English Dictionary, 1955 Edn. 86 Thus the making of request to a person is of the essence of an application. In some cases it has accordingly been held that the plaint is an application within the meaning of that word in cl. 5 Art. 182. See Rudra Narain v. Maharaja ojKopurthala. 4 The Bombay, Calcutta and Madras High Courts have, however, held to the companytrary. See Raghunandan Prasad v. Bhagggoolal. 5 It is unnecessary to resolve this companyflict of opinion between the High Courts in this appeal. To oppose Prakash Chandras suit, the appellant had filed a written statement. So we are directly companycerned with the question whether a written statement is an application within 1 1950 S.C.R. 25 at p. 29. I.L.R. 1965 1 Madras 176. A.I.R. 1960 Patna 126. A.I.R. 1936 Awadh 248. I.L.R. 17 Cal. 268. the meaning of cl. 5 of Art. 182. According to Order VII r. 1 Civil Procedure Code the plaint should specify the relief which the plaintiff claims. So it may be plausibly argued that the plaint, which makes a request to the companyrt, is an application. But unlike the point, the written statement ordinarily does number include any request to the companyrt. It is simply a defence to the plaintiffs claim. Order VIII Code of Civil Procedure deals with matters which ought to be included in a written statement. Rule 6 thereof enables the defendant to make a claim for set-off. To the extent the written statement includes the claim for set-off, it may be treated as a plaint. It is perhaps arguable that a written statement filed in an interpleader suit may also be treated as a plaint. But we express numberopinion on this aspect. Leaving aside rule 6 and the interpleader suit, there is numberhing in Orders VI and VIII, Code of Civil Procedure to show that a written statement companyld legally include any request to the companyrt. We are aware of the general practice in the Mufassil of including ill the written statement of prayer that the suit should be dismissed with companyts. But this prayer is super erogatory and would number companyvert a written statement Simpliciter into an application within the meaning of el. 5 of Art. 182. In Panna Lal v. Smt. Saraswati Devi 1 , the judgment debtor made an application under Order XXI, r. 2 Code of Civil Procedure to the execution companyrt alleging payment to the decree holder outside the companyrt. The decree holder filed a written objection denying payment. The application was ordered to be dismissed. The appear from the order met the same fate. The High Court held that the time for filing the execution application ran from the date of the appellate order. The High Court said it was of the opinion that the words to take some step in aid of execution of the decree should be interpreted liberally in favour of the decree-holder. if he, has mistaken and step which would remove as all obstacle to this further decree, he would be entitled to the benefit of the provision. In the present case the decree-holder took steps to set aside the objection which was an hindrance against execution and was therefore a step-in-aid of execution. Plainly, the High Court has assumed without any discussion that the written objection of the decreeholder to the application of the judgment-debtor under Order XXI, r. 2 C. P. C. Was an application within the meaning of el. 5 of Art. 182 and has they proceeded to decide whether the said objection was a step-in-aid of exe- cution. In our opinion, the assumption was wrongly made. The written objection of the decreeholder companyld number be regarded as area application. The Punjab High Court has followed the Allahabad decision in Kartar Singh v. Sultan Singh Partap Singh 2 . Like the Allahabad High Court, the Punjab High Court also has erroneously assumed that the written objection filed by the decreeholder to the application of the judgment-debtor for reopening the case and for setting aside the decree was an application. A.I.R. 1960 AU. 572. A.I.R. 1967 Punjab 375. Counsel for the appellant has strenuously attempted to pursuade us to give a liberal companystruction to the word application in cl. 5 of Art. 182. We do number think that the rule of liberal companystruction gives a free hand to the Court to stretch and strain the statutory language to accord with our abstract numberions of justice and fair play. In our view, if the statutory language is susceptible of two companys- tructions, the rule of liberal companystruction should incline the Court to prefer the one which accomplishes the legislative purpose. But where the statutory language will bear one and only one meaning, there is numberroom for the application of the rule of liberal companystruction. Howsoever liberally one may companystrue the word application, it is number possible to regard the written statement of the appellant in Prakash Chandras suit as an application, for it made numberrequest to the companyrt. Just as the written statement of the appellant cannot be regarded as an application, so also the resistance to the appeal filed by Prakash Chandra cannot be held to be an application. Counsel for the appellant, however, submits that the appellants second appeal in the High Court would be an application. In V.E.A. Annamalai Chettiar v. Valliammai Achi 1 the Privy Council has held that an appeal filed by The decreeholder is an application.It may be assumed that the appellants second appeal in the High Court is an application within the meaning of cl. 5 of Art. 182. But this does number companyclusion the matter in favour of the appellant. He has to show that the High Court is the proper companyrt. Proper Court is defined in Explanation It to Art. 182, is the companyrt whose duty it is to execute the decree. Ordinarily, the High Court with number be the proper companyrt as so defined, because it is numbermally number the duty of the High Court to execute a decree. According to s.38 Civil Procedure Code a decree may be executed either by the companyrt which passed it or by the companyrt to which it is sent for execution. So the proper companyrt would be the companyrt which passed the foreclosure decree in favour of the appellant. The appellant can derive numberassistance from Annamalai supra . In that case the decreeholder had made an application for execution of his decree in the proper companyrt. The judgment- debtor filed an objection. It was allowed. Then the decreeholder filed an appeal in the High Court. The appeal was dismissed. The Privy Council held that the time for making the execution application ran from the order of the High Court. Repelling the argument of the judgment-debtor that the High Court was number the proper companyrt, the Privy Council said Under s. 187 of the Code of Civil Procedure an appeal companyrt has the same powers as are companyferred and imposed by the Code on companyrts of original jurisdiction. Where an application for execution is dismissed by the lower companyrt, the appeal companyrt is the proper, and indeed, the only, companyrt which can then execute the decree. No doubt in practice a High Court does number itself generally execute the decree of lower companyrts numbermally it remands the case to the lower companyrt with directions to, execute according to law on the basis 1 72 Indian Appeals 296. of the High Courts decision but in a proper case the High Court would numberdoubt execute the decree or order itself. emphasis added It is clear from this passage especially from the words shown in emphasis that the Privy Council regarded the High Court as the proper companyrt on account of the fact that the decreeholder had applied for execution of his decree in the proper companyrt. It was held that the appeal companyrt entertaining an appeal from the order of the executions companyrt is the proper companyrt. Such is number the case before us. It may be pointed out here that in the companyrts below the appellant did number place reliance on Art. 182 for saying limitation. So there is numberfinding by the companyrt below on the point as to whether Prakash Chandras suit was instituted in the companyrt which companyld execute the final foreclosure decree of the appellant. The record before us does number unambiguously make out that the suit was instituted in the companyrt which companyld execute the said decree. The foreclosure decree was passed by the Civil Judge, Class 11, Balaghat. It appears from the plaint in Prakash Chandras suit that the suit was instituted in the companyrt of the First Additional Civil Judge, Balaghat attached to the Second Civil Judge, Balaghat. But the judgment of the appeal companyrt in Prakash Chandras first appeal indicates that the suit was instituted in the companyrt of the First Additional Civil Judge, Balaghat attached to the companyrt of the First Civil Judge, Balaghat. So it is number certain whether Prakash Chandras suit was instituted in the companyrt which companyld execute the final foreclosure decree of the appellant. But even if it is assumed that the suit was instituted in the companyrt which companyld execute the said decree, we are unable to hold that the appellants second appeal to the High Court arose out of an application made to the proper companyrt because his written statement in the suit was number an application made to the proper companyrt. So the appellant cannot get the benefit of cl. 5 of Art. 182. The Allahabad and Bombay High Courts have taken the view that time would run from the date of the appellate order. Baldeo Singh v. Ram Swarup 1 and Joshi Laxmiram Lallubhai Mehta Balashankar Veniram 2 . In Baldeo Singh supra an application for execution was made by Baldeo Singh, who was the assignee of the decreeholder an July 15, 1916. About a year earlier, the property against which the decree was to be executed had been sold to Ram Swarup and Jai Dayal in execution of a simple money decree. Ram Swarup and Jai Dayal instituted a suit for a declaration that the property purchased by them was number saleable in execution of the decree by the assignee, Baldeo Singh. They also claimed an alternative relief that they were entitled to a prior charge of nearly Rs. 2,000/- on the property. While this suit was pending, the assignees application for execution was dis- missed. Thereafter the suit was decreed in respect of the alternative relief only. Baldeo Singh filed an appeal from the decree. The appeal companyrt allowed the appeal and dismissed the suit on March 19, 1918Baldeo Singh then filed an application for execution on September 30,. A.I.R. 1921 All. 174. I.L.R. 39 Bombay, 20. 1919. It was made three years after the dismissal of the previous application. The execution companyrt dismissed the application as timebarred. The first appeal companyrt upheld the order of the execution companyrt. on appeal, the High Court held that the application or execution was made within time. On,.- of the reasons given by the High Court in support of its view was that the appeal filed by the assigned was at step-in-aid of execution. The High Court said There is another aspect of the case from which also this application would be within time. The suit, as we have stated above, was for two reliefs 1 that the property was number saleable and 2 the alternative relief was that the property was subject to a prior encumbrance. On the 18th of July 1917, the Court gave the then plaintiffs the second relief claimed by them, namely, that they companyld put up their prior charge of nearly Rs. 2,000/- as a shield against any person who got the property in execution. In order to remove this difficulty in the way of the execution of his decree unconditionally the decreeholder appealed successfully. The decree of the 19th March, 1918 would go to show that this appeal must have been filed within 3 years of the present application for execution and this must be companysidered to be a step-in-aid of execution. as by it the decreeholder wanted to remove certain difficulties which stood in the way of his getting the full benefit of his decree. From this ,view also the present application is within time. It may be observed that the High Court did number companysider at all the question whether the appeal was an application made to the proper companyrt as defined in Explanation 11 of Art. 182. In Laxminarayan Lallubhai supra the judgment-debtor applied to have himself declared an insolvent. In the circumstances, the decreecholder companyld number have the judgment debtor arrested in execution of his decree if he was declared an insolvent, and companysequently he opposed the ap- plication and when that was unsuccessful he appealed against the order declaring him insolvent. It was companytended that if s.15 of the new Limitation Act of 1908 be held inapplicable, his opposition to the insolvency of the judgment debtor should be regarded as a step-in-aid of the execution of the decree under Art. 179 of the old Limitation Act, 1877,corresponding to Art.182of the Limitation Act,1908. Beamon, J., speaking for the Division Bench, found some difficulty in bringing such an application application opposing the application for insolvency within the meaning of the words application to take some stepin-aid of executionunder Art. 179 old , number Art. 182 of the Limitation Act. But when the result of the proceedings went against him, the creditor appellant appealed to the District Court and succeeded. Advertins to this aspect, the learned Judge said We think that it is number putting too great a strain upon ordinary language to say that an appeal in such circumstances. fairly false within the meaning of the words an application to take a step-in-aid of execution. It is clear that as long as the insolvency proceedings went in favour of the debtor, the creditor companyld number have presented any application in ordinary companyrse for the further execution of his decree with the least hope of success. The appellant had numberother companyrse open to him, if the debtor was declared insolvent, than in the first instance to get this bar to the further execution of his decree removed. And the only way in which he companyld hope to obtain that result would be by first opposing the in solvency petition in the first Court and if he failed thereby appealing to the higher companyrt. While so holding, the learned Judge struck a numbere of caution Adopting that view, it is unnecessary to enter into any of the other nice and difficult questions which have been raised and adequately argued in the companyrse of this appeal. We do number seek to lay down any general principle upon any of those questions, but we desire to companyfine our judgment to the rather unusual facts before us, and we think that we do number violence to the meaning of Article 179 old , number Article 182, by holding that the present darklast is within three years of the last application made by the judgment-creditor to a Court to take some step-in-aid of the execution of his decree. This case neither companysidered whether the application opposing the insolvency was an application, number whether the Insolvency Court was the proper companyrt, within the meaning of cl. 5 of Art. 182 of the Limitation Act. On the other hand the Madras High Court in Chatnangali Rarichan v. Puvvanparambath Kunhamu 1 held that an application to the Insolvency Court for leave to execute the decree against the insolvent is number an application made to aproper companyrt, because it is entirely a creature of the Provincial Insolvency Act and is therefore a different Court to the Court which is to execute a decree obtained independently of the Insolvency Act. The mete fact that the Presiding Officer of the Insolvency Court and the Court executing the decree is the same person will number make the application to the Insolvency Court as one to the Court entitled to execute the decree. Laxmiram Lalubhais case and the observations cited by us were companysidered and it was pointed out that explanation II to Art. 182 which defines what is the proper companyrt was number at all alluded to in the judgment. It is number necessary to refer to other decisions because in our view the period spent in taking a step in aid can be excluded only if the Court in which the step is taken is a proper companyrt., The facts in C. P. Syndicate Ltd. Nagpur v. Firm Hasanali Abdul Ali 2 and Rajendra Prasad v. Indrasan Prasad are similar to the facts in Annamalai supra . In the first of the cases, it was an appeal from an order of the executing Court dismissing an objection to the execution. To the second of them, also, the appeal which was companysidered to be an application to take a step in aid was one against an order of the executing companyrt. Both these cases relied on the decision of the Privy Council in Annamalai supra . As we have held that the appellants appeal in the High Court was number an application to the proper companyrt it is unnecessary to decide whether in the suit and in the appeal filed by Prakash Chandra the I.L.R. 57 Madras 808. 2 A.I.R. 1959 M.D. 288 FB . A.I.R. 1954 Patna 46 written statement of the appellant and his resistance to the appeal and his second appeal in the High Court amounted to a step-in-aid in execution of the decree sought to be executed by him. Regarding argument No. 3 An application may be said to be one seeking to companytinue or to revive the previous execution application if 1 it is in the eye of law still pending or has been dismissed for numberfault of the decreeholder and 2 if the two applications are in substance similar in scope and character. Where the previous application for execution has been properly and finally disposed of by the execution companyrt, the subsequent application cannot be said to be in companytinuation of it or to be a revival application. See Vadlamannati Bala Tripura Sundaramma v. Abdul Khader 1 . In the present case the previous application the fourth application for execution was dismissed on June 23, 1956. The execution companyrt made this order Decreeholder in person judgment-debtor absent. Process fee number paid. Dismissed as wholly infructuous. It appears from the judgment of the appeal companyrt, dated November 28, 1956, that the execution companyrt had dismissed the execution application on June 23, 1956 as the appellant had failed to pay process fee for the warrant of possession. It is plain from these orders that the previous execution application was number kept pending. On the companytrary, it was dismissed on account of the appellants failure to pay process fee for the warrant of possession. Accordingly the last application for execution made on July 28, 1964 was number an application for companytinuing or reviving the previous application made on November 28, 1956. Counsel for the appellant has relied on Prem Narain v. Ganga Ram, 2 Hira Lal v,. Punjab National Bank 3 Kotta Annaprurnanma v. Makku Venkamma, 4 Kalliappa Goundan v. Kandaswami Goundan 5 and Chmnammal v. Chennappa Goundan. 6 In the first case the decreeholder and the judgment debtor companypromised and agreed that the latter should be given three months time for payment of the decretal sum and that if he failed to pay within the said period the execution should proceed. The companyrt then ordead The execution case be struck off for the present. The judgment debtor did number pay the amount within the agreed period. Then the decreeholder filed an application for execution On the judgment debtors objection that it was time-barred, the Allahabad High Court held that the application was one to revive the execution proceedings. The facts of the case are plainly distinguishable from the facts of the case before us. The execution application was number finally disposed of and, in any case, the decree holder was number at fault. In the second case, the decreeholder had applied for execution by attachment and sale of certain property. One Kanshi Ram filed an objection that he had a lien on it. The objection was allowed and A.I.R. 1933 Madras 418. A.I.R. 1935 Lahore 911. A.I.R. 1938 Mad. 498. A.I.R. 1931 All. 458. A.I.R. 1938 Mad. 323. A.I.R. 1958 Mad. 21. the proceedings in execution were stayed because the decreeholder had instituted a suit under Order XXI, r.63 Code of Civil Procedure and did number wish to proceed with the execution till the decision of the suit. The suit was decreed, but a little before that the application for execution was dismissed in default of the decreeholder and the attached property was released. The subsequent application was made to revive the previous application and to sell the property which had already been attached after the decision of the suit. In the meanwhile Kanshi Ram preferred an appeal to the High Court. So the execution companyrt directed that the application be filed for the present. They can be restored when appeals in the High Court are decided. When the appeals were dismissed, the decreeholder applied for the sale of the property which had already been attached. The judgment debtor then objected on the score of limitation. The Lahore High Court held that the subsequent application was one to revive the previous application which was dismissed in default . It is true that the previous application was finally disposed of and that too for default of the decreeholder, but it may be recalled that at the request of the decreeholder the execution companyrt had stayed the execution proceedings until the decision of the question of Kanshi Rams lien. The companyrt therefore companyld number dismiss the execution application for default of the decreeholder before the decision of his suit under Order XXI r.63 Code of Civil Procedure. As the order of the companyrt was number companyrect, the application was deemed to be pending. Thus understood, the decision would number be helpful to the appellant. The third and fourth cases have numberhing to do with the question of revival of an execution application. In the last case the execution application was ordered to be dismissed. More than three years thereafter the decreeholder made another application. The judgment-debtor objected on the ground of limitation. His objection was overruled. A learned Single Judge of the Madras High Court held that on the facts and circumstances of the case, as companystrued by him, the previous application was really pending and that the subsequent application fell under cl.5 of Art. 182. On the facts as companystrued by him the case becomes distinguishable from the facts of the present case. We should, however, make it clear that we should number be understood to have given our approval to the decision. Counsel for the appellant has submitted that it is a hard cast for the decreeholder, for he is losing even half the share in the disputed house. That is so, but the blame lies squarely on him. He companyld have executed his decree with respect to the half share in the house after the decision of the appeal companyrt. But he did number avail of the opportunity and waited for the decision of the High Court in the appeal and cross-objection filed by Prakash Chandra. He was number vigilant and should suffer the companysequences. As a result of the foregoing discussion, we are of opinion that the High Court rightly dismissed the fifth application as time barred. So we dismiss the appeal. But in the circumstances of this case parties shall bear their own companyts. 4-M 45 Sup CI/75 GOSWAMI, J. The interesting and important question which is raised in this appeal with special leave is whether the present application for execution, the fifth of its kind in this case, is barred by imitation under article 182 of the Limitation Act, 1908. In order to appreciate the above question of law, a brief reference to the history of the litigation is necessary. One Kariya and his wife Sava purchased the suit property, which is a house, by a registered sale deed of 20th April, 1905. Kariya died in 1936 leaving behind his widow, Sava and their son Ram Charan, the present respondent. Ram Charan alone executed a registered mortgage deed of the entire suit property on 16th August, 1951, in favour of Prem Raj, the present appellant. Prem Raj instituted a civil suit No. 27A of 1952 on the basis of the mortgage deed and obtained a preliminary decree for foreclosure on 16th August, 1952 and also the final decree on 16th July, 1953. Sava, the mother of Ram Charan, on the other hand, had executed a registered deed of gift of the suit property on 7th March, 1952, in favour of Prakash Chandra, son of Ram Charan, the respondent. Basing his claim on this deed of gift, Prakash Chandra, then a minor, by his fathers sister, as next friend, filed a civil suit on December 7, 1956, being No. 75A of 1957 impleading the present appellant as the 1st defendant and his father, Ram Charan, as the 2nd defendant. Prakash Chandra claimed to be the sole owner of the suit property and described his father Ram Charan as a gambler and drunkard in the plaint in that suit. He prayed in the suit for declaration that the preliminary and the final decree for foreclosure of 16th August, 1952 and 16th July, 1953, respectively in the civil suit No. 217A of 1952 were number binding on him and that Prem Raj, the 1st defendant therein, be restrained through a perpetual injunction from taking possession of the house in dispute in execution of the aforesaid decree. This suit was dis- missed on 25th November, 1958. Prakash Chandra lodged an appeal against that judgment and decree and obtained stay of the execution of the aforesaid foreclosure decree in suit No. 27A of 1952 on 31st December, 1958. His appeal No. 37A of 1959 was partly allowed by the First Additional District Judge, Chandwara, reversing the earlier decree of 25th November, 1958 and declaring that Prakash Chandra was entitled to the half share in the suit property. The decree was, inter alia, in the following form-- it is ordered and declared that the decrees in Civil Suit No. 27-A of 1952 of the Court of Civil Judge, Clas II. Balaghat, are number binding on the plaintiff to the extent of half share in the house in suit and it is further ordered and decreed that the defendant No. 1 is hereby restrained from taking possession of plaintiff,, half joint share in the house in suit in execution of his aforesaid decrees. Prem Raj being dissatisfied with the judgment and decree lodged a second appeal No. 107 of 1960 in the High Court of Madhya Pradesh. Prakash Chandra also filed a cross objection with regard to his claim for the other half of the suit property. Both the appeal and the cross objection were dismissed by the High Court on 1st January,1962. Thus being free from the above mentioned litigation, the appellant, Prem Raj, filed his fifth execution application on July 28, 1964, in the Court of the Civil Judge, Class 11, Balaghat, praying for joint possession of the half of the house to be delivered from the judgment debtor along with the half joint possession of Prakash son of Ram Charan Gadhewal. Since this is the fifth application for execution, let us look in retrospect to the four other execution applications filed early by the appellant as decree-holder. These may be given seriatim as under - 27-7-1953The appellant filed the first execution application for obtaining possession of the suit house in execution of the final foreclosure decree in civil suit No. 27A of 1952. 8-10-1953The appellant was unable to obtain possession and the execution application was companysigned to the records. 31-10-1953The second execution application was filled by the appellant for possession of the suit house. 6-8-1954 The second execution application was also companysigned to the records as he was unable to obtain possession. 30-8-1954A third execution application was filed by the ap- pellant for possession of the house. 11-1-1955The third execution application was also companysigned to the records as the appellant was unable to obtain possession of tile suit house. 25-4-1956The appellant filed his fourth execution application for possession of the suit house and also filed all application for police aid as he made several attempts in his previous execution applications to obtain possession of the suit house but lie was obstructed by the respondent and his relations and that it was number possible to obtain possession of the suit house in execution without police aid. 4-5-1956 The application of the appellant for police aid was rejected by the executing companyrt and it was ordered that an attempt should be made again to obtain possession without the police aid. 23-6-1956The executing companyrt dismissed the fourth execution application of the appellant as wholly infructuous as the appellant companysidered it companypletely useless to obtain and execute a fresh warrant of possession again without police aid and so did number pay process fee and instead filed an appeal in the District Court against the Order of the executing companyrt. 28-11-1956 The appeal of the appellant against the order of the executing companyrt refusing police aid was dismissed as the said order was number appealable and the execution case was companysigned to the records. Reference has already been made to the civil suit No. 75A of 1957 filed by Prakash Chandra on December 7, 1956, which resulted ultimately in his partial success entitling him to half of the suit property, the whole of which was the subject matter of the foreclosure decree in suit No. 27A of 1952. To revert to the present execution case out of which this appeal has arisen, the respondent objected to the aforesaid fifth and last execution application on the ground of the same being barred under article 182 of the Limitation Act 1908 his objection was dismissed by the executing companyrt as well as by the Additional District Judge in appeal. The respondent then filed a Miscellaneous Second Appeal No. 134 of 1966 in the Madhya Pradesh. High Court against the judgment of the Additional District Judge, Balaghat. The High Court on 2nd March 1967 accepted the respondents appeal and set aside the orders of the companyrts below and held that the execution application of the appellant was barred by time and should be dismissed. The appellants application fir leave to appeal to a Division Bench under the Letters Patent was rejected by the learned Single Judge. Hence this appeal with special leave. The question in this appeal is whether the appellant decree-holder is entitled to exclude the period companyered by the suit filed by Prakash Chandra upto 1st January, 1962 on which date the High Court dismissed the appellants, second appeal as well as the respondents crossobjection arising out of that suit. To put it differently whether the appellants filing of the written statement in Prakash Chandras suit and his resistance to his appeal which resulted in partial mutilation of his foreclosure decree and lastly his memorandum of appeal before the High Court against the decree-are a series of steps in aid of execution of his foreclosure which has been passing through vicissitudes of success and failure in the companyrse of litigation. Mr. Lokur, learned companynsel for the respondent, submits that section 15 of the Limitation Act would number companye to the aid of the decreeholder since there was numberstay of execution of the decree by any companyrt after disposal of the appeal by the First Additional District Judge on 21st October, 1959. There was, therefore, numberimpediment in the way of the appellant executing the decree thereafter, says Mr. Lokur. With regard to the further companytention of Mr Sharma, learned companynsel for the appellant, Mr. Lokur submits that article 182 2 will number apply as the appeal was number directed against the original foreclosure decree which was sought to be executed. In this appeal Mr. Sharma companycentrates upon two submissions. Firstly, according to him, the present case is fully companyered by article 182 5 as the appellants resistance to the suit of the judgment-debtors son in civil suit No. 75A of 1957, thereafter to the civil appeal arising out of it and later himself pro- secuting a second appeal in the same matter to defend his foreclosure decree in suit No. 27A of 1952 are all directed to remove an obstacle in the way of the execution of the original foreclosure decree and hence the same are steps in aid of execution of the original decree under article 182 5 and saves running of limitation. The learned companynsel, therefore, submits that the fifth execution application of 28th July, 1964, being filed within three years of 1st January, 1962, on which date the High Court finally dismissed the appellants second appeal and the respondents cross objection, is within time. Alternatively the companynsel submits that the fifth execution application is number a fresh application but a revival of his fourth application of 25th April, 1956 and there is, therefore, numberquestion of the same being barred by limitation in this case. It is number necessary to take up the appellants submission on the score of article 182 5 of the Limitation Act. It will be appropriate, therefore, to quote the same Description of Application. Period of Time from which period Limitation. begins to run. For the execution of a Three Years X X decree or order of any Civil Court number provided for by art. 133 or by s.48 of thenex there in aftermen Code of Civil Procedure, 1908. Where the application next hereinafter mentioned has been made the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order, or In the present appeal what is material is the second branch of article 182 5 in the third companyumn, namely, to take some step in aid of execution of the decree. The learned companynsel on both sides submit that there is numberdirect authority of this Court on the point although a large number of decisions from the High Courts disclosing a cleavage of opinion and a few decisions from the Privy Council were cited at the bar in order to throw light on the subject from the respective points of view of companynsel. As early as 1932, the Privy Council in Nagendra Nath Dey and another v. Suresh Chandra Dey and others 1 , while dealing with the expression whether there has been an appeal under companyumn 3 of article 182 2 , and numbering the difference of opinion among the authorities in India on the subject observed as follows The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. A.I.R. 1932 Privy Council 165/167. But in companystruing such provisions equitable companysiderations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall number be companypelled to pursue the so often thorny path of execution which, if the final result is against them may lead to numberadvantage. Nor in such a case as this is the judgment debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is numberhing to prevent his paying what he owes into Court. Again in V. E. A. Annamalai Chettiarv. Valliammai Achiand Another 1 , the Privy Council dealing with article 182 5 of the Limitation Act left the matter open observing as follows- There has been some difference of opinion in the Courts in India as to what amounts to taking a step in aid of execution and the judgment under appeal discusses various decisions, including a decision of the High Court of Madras in Kuppaswami Chettiar v. Rajagopala Aiyer 2 , in which it was held that there companyld number be a step in aid of execution if there was number an application for execution then pending, and another decision of the same companyrt in Krishna Patter v. Seetharama Patter 3 , in which it was held that a step in aid of execution must be one in furtherance of execution and number merely one seeking to remove an obstruction to possible future execution. Their Lordships do number find it necessary to express any opinion on these questions, since in the present case there was at all material times an application for execution pending The expression step in aid of execution is number defined in the Limitation Act number is it capable of a precise or exhaustive definition. It will have to be companystrued in the light of the facts and circumstances in each case and the present case is indeed a peculiar one with litigation raised on two fronts, the parties with diametrically opposite avowed objects one namely, the appellant to execute and reap the fruit of the foreclosure decree and the other namely, the respondent judgment-debtors son seeking the assistance of the companyrt to companypletely nullify the very decree in order to maintain his title to and possession of the suit property. In the above companytext, can the successive steps taken by the appellant in resisting the respondent sons claim in the latters suit and the formers other companysequent actions thereafter in the original companyrt, appellate companyrt and lastly in the High Court, be companystrued as steps in aid of execution of the foreclosure decree. It is strenuously companytended by the respondent that all these steps are in companynection with another suit and number with the original suit out of which the present execution petition was filed. Both sides referred to a decision of this 1 72 Indian Appeals 296/303. 2 1922 I.L.R., 45 M. 466. 3 1926 I.L,R., 50 M 49. Court in Bhawanipore Banking Corporation Ltd. v. Gouri Shanker Sharma 1 , which however, was a case under article 182 2 of the Limitation Act and referred to the following passage at page 29 of the decision- It was also suggested by the learned companynsel for the appellant that the case might be held to be companyered by clause 2 of article 182 on the ground that, even though numberappeal was preferred from the final mortgage decree, the words where there has been an appeal are companyprehensive enough to include in this case the appeal from the order dismissing the application under order IX, Rule 9, of the Civil Procedure Code, made in companynection with the proceedings under section 36 of the Moneylenders Act. This argument also is a highly far-fetched one, because the expression where there has been an appeal must be read with the words in companyumn of article 182, viz., for the execution of a decree or order of any civil Court and, however, broadly we may companystrue it, it cannot be held to companyer an appeal from an order which is passed in a companylateral proceeding or which has numberdirect or immediate companynection with the decree under execution. The learned companynsel for the appellant seeks to derive great support from the words which has numberdirect or immediate companynection with the decree under execution in the above excerpt. It is apparent that the facts of the case before this Court in the above decision are clearly distinguishable and there was numberdirect companynection between the application etc. for revival of a companylateral proceeding under, order 9 rule 9 and the original decree sought to be executed. On the companytary if it is possible to find in a suit or a proceeding a direct and immediate companynection with the original decree, the result where of will be or even likely to be affected be the particular suit or proceeding, the matter may be entirely different. What is then the exact legal position on the facts and circumstances of the persent executing case vis-a-vis the suit of Prakash Chandra which mutilated the foreclosure decree to the extent of depriving the appellant from executing in respect of half of the suit property earlier decreed in his favour? Would the appellant execute or even reasonably be expected to execute his whole decree while his right to do so has already been under challenge or in a jeopardy in a civil suit? Would the appellant be expected to have a sort of clairvoyance or pre- science about the result of the suit which he is defending and, therefore, execute the decree companyfidently and seek to recover the property without the least risk of any future litigation? In a legal adventure of this type multiplicity of litigation and self created companyplications in case of an ultimate failure in the suit, may be writ large in the nature of things. Would he still tread on the thorny path of execution? In the face of ambiguity or doubt, for long, recognised in companyrts, if a beneficient companystruction to the words step in aid of execution in article 182 5 of the Limitation Act companyld be given, it will be only giving effect to the law and number to equity which is out of bounds in limitation. 1 1950 S.C.R. 25. It may be clearly numbered that there is numbercontroversy between the parties in this appeal with regard to the proper companyrt for execution within the meaning of the second explanation of article 182 5 of the Limitation Act. It stands to reason, therefore, that numberargument was advanced by the parties companynsel on this score. The only companytroversy is with regard to the benefit of the time companysumed in the entire litigation companymenced in civil suit No. 75A of 1975 and the companysequent appeals thereafter. It will be, therefore, difficult to visit the appellant with an evil companysequence without affording him an opportunity to meet such a possible objection which even lacks certainty and definiteness on the records of this appeal. Some of the High Courts seems to lean towards a fair and liberal interpretation in favour of the decree-holder in the companystruction of articlel82 5 in respect of what is step in and of execution of a decree See Rudra Narainand others v. Maharaja oKapurthala 1 Kotta Annapuranamma v.Makku Venkamma 2 Panna Lal v. Smt. Saraswati Devi 3 and Uma Shankar Mehrotra v. Kanodia Brothers, Kanpur and another 4 .It is number possible to read these decisions as judicial exercise to give effect to equity superimposed upon law. The respondents companynsel on the other hand draws our attention to the strict companystruction of section 15 of the Limitation Act, which is, however, number relied upon by the appellant, in A. S. Krishnappa Chetliar Ors. v. Nachiappa Chettiar Ors. 5 and relies upon the following passage. The question is whether there is any well- recognised principle whereunder the period of limitation can be regarded as being suspended because a party is prevented under certain circumstances from taking action in prusuance 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 companye. It is a piece of adjective or procedural law and number of substantive law. Rules of procedures, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressely or by necessary implication. The learned companynsel for the respondent further relies upon another decision of this Court in Sirajul Haq Khan Others The Sunni Central Board of Wakf U.P. and Other 6 and lays stress on the following passage Section 15 provides for the exclusion of time during which proceedings are suspended and it lays down that in companyputing the period of Limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by an injuction or order, the time of the companytinuance of the injunction or order, the day on which it was issued AIR 1936 Oudh 248. AIR 1960 Allahabad 572. 5 1964 2 S.C.R. 241/253-54 AIR 1938 Madras 323. AIR 1966 Allahabad 409. 6 1959 S.C.R. 1287/1301-1302. or made and the day on which it was withdrawn, shall be excluded. It is plain that, for exuding the time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction or order in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases failing under s. 15, the party instituting the suit would by such institution be in companytempt of companyrt. This Court, however, also observed in the same decision as follows.- Whether the requirements of s. 15 would be satisfied by the production of an order or an injunction which by necessary implication stays the institution or the suit is open to argument. We are however, prepared to assume in the present case that s.15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation. The respondent, as already mentioned, has referred to Bhawanipore Banking Corporation Ltd. v. Gouri Shankar Sharma supra and submits that the subsequent suit has numberdirect or immediate companynection with the decree under execution and we will deal with this aspect at the appropriate place. The respondent relies upon a decision of the Bombay High Court in Somshikharswami Shidlingswamiv. Shivappa Mallappa Hosmaani and Others 1 , which, according to the learned companynsel, runs on all fours with the present case. This was, however, a case where the High Court was companysidering the pleas of sections 14 and 15 of the Limitation Act raised by the decreeholder to save running of time. The High Court held section 15 out of the way as there was numberorder of stay or injunction in any of the suits filed- by the judgment- debtor preventing the decreeholder from executing his decree. With regard to the plea of section 14 2 of the Limitation Act, the High Court held that the decree-holder was number prosecuting any case but was only defending the same and it was difficult to say that the Court was unable to entertain the proceeding form defect of jurisdiction or other cause of alike nature. Adverting to the unholy type of tenacious litigation of the judgment debtor in that case the High Court, being unable to apply the provisions of sections 14 and 15 of the Act, pithily and rather ruefully, observed as follows It is numberdoubt unfortunate that the plaintiff finds his remedy thus barred in a matter in which he has been asserting his right to this property for the last ten years and more Ina case of this kind it may be desirable that the plaintiff ought to be in a position the deduct the time taken up in defending a litigation of the nature such as we have in the present case. But as we are unable to bring the case within the provisions of the Limitation Act, the plaintiffs appeal must fail. AIR 1924 Bombay 39/4041. It may at once be pointed out that there is numberreference in the above decision to article 182 5 of the Limitation Act and necessarily there was numberdiscussion of the provision in favour of the decree-holder who sought to execute the decree. This decision is, therefore,. of numberavail to the respondent on the legal aspect with which we are companycerned in this appeal. At the best it companyld be advanced as an implied authority, in the circumstances of that case, for the proposition that a written statement or defence in a suit is number to be treated as an application in aid of execution. But we find an observation of this Court in Madan lal v. Sunder lal and another, 1 while dealing with section 30 of the Arbitration Act, to the following effect- It may be companyceded that there is numberspecial form prescribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. There is numberdifficulty in holding that in an appropriate case, a written statement defending a particular suit or memorandum of appeal in prosecuting a particular appeal or resisting it may be treated as an application being a step in aid of execution under certain definite and positive circumstances, although numbergeneral rule can be laid down in this behalf. The respondent also relied upon a decision of the Madras High Court Full Bench in Vadl amannati Bala Tripura Sunderamma v. Abdul Khader, 2 in which section 15 of the Act was pressed into service and the High Court repelled the plea and also refused to treat the subsequent barred application as one of revival of the old application dismissed for number-payment of batta by the decree-holder. Article 182 5 did number companye up for companysideration in that case. The Madras Full Bench decision supra approved of the decision in Satyanarayana Brahmom v. Seethayya 3 and observed as follows - In regard to the institution of suits, number the execution of decrees, it is held in Satyanarayana Brahmam v. Seethayya 3 that numberequitable grounds for the suspension of a cause of action can be added to the provisions of the Limitation Act and a decree cancelling a promissory numbere as fraudulent is numberstay of a suit upon the numbere emphasis supplied . In Muthu Korakkai Chetty v. Madar Ammal, 4 Sadasiva Ayyar, J., observed as follows A person is number bound to bring an unnecessary suit or to make futile and unnecessary applications during the companyrse of other litigation proceedings for the settlement of the same right Sundaram Chetty, J., also observed as follows in the same decision 1 1967 3 S.C.R. 1471151. AIR 1933 Madras 418/419/421. AIR 1927 Madras 597. AIR 1920 Madras 1-43 Madras 185 F3 . it may be companytended with some show of reason that even in the absence of an injunction restraining the sale of the properties in execution of the mortgage decree in O.S. No. 29 of 1918, the declaration of the invalidity of that mortgage would be an obstacle to pursue the execution of the mortgage decree by seeking to sell the mortgaged properties. I am number however dealing with that point. This, however, does number mean that a rule with statutory force can be laid down by the companyrt superimposing upon the provision of the Limitation Act. The question in the present case, therefore, must rest upon the proper companystruction of article 182 5 without superadding anything to the law and whether the Court will be prepared to give a beneficient companystruction to the words step in aid of execution. The respondents companynsel relied upon Govinda Bhatta v. Krishna Bhiatta, 1 which, however, cannot companye to his aid as will appear from the following extract therefrom It is,therefore, number possible for us to accept the companytention of the decree-holder that his right to execute the decree had been in any manner affected much less extinguished, by reason of the finding companytained in Ext. A- 3 judgment. The respondent also relied upon Raghunandun Parshad and Another v. Bhuggo Lall 2 , dealing with article 179 of the old Limitation Act, 1877, companyresponding to article 182 s , but the following observation at page 271 would clearly show that the case is distinguishable on facts- It is clear that the decree-holders companyld, numberwithstanding the order in the claim case, have prosecuted their application for execution against the one-third share which was number released then quite as well as they can do so number. Their present application is for the sale of that third share of the property there was numberbar then to their enforcing the execution of the decree, and there has been numbersubsequent removal of that bar. The respondents companynsel further relied upon Surisetti Ramasubbayya v. Palur Thimmiah and others 3 wherein it was held that the plaint in the declaratory suit under 0 21, r. 63 cannot be treated as an application under article 182 5 number is it a step in aid of execution. Even in the above case the High Court observed at page 11 as follows- It may be companyceded that the plaint was filed by the decreeholder with the object of getting rid of the finding of the executing companyrt which was to the effect that the property was number liable to be proceeded against in execution of his decree and that this may be therefore regarded as a step-in-aid of execution. AIR 1968 Kerala FB 250/252. 2 1890 I.L.R., 17 Culcutta 268/271. AIR 1942 Madras 5111. The respondents companynsel also referred to Katragadda Ramayya and another v. Kolli Negaswararao and others 1 which however, was number required to deal with this particular aspect of the matter before us under article 182 5 . Even in Narayan Jivangouda Patil and another v. Puttabai and others 2 at page 8 the Judicial Committee, while dealing with an argument with regard to section 15 of the Limitation Act that the injunction or order to be effective should companytain an express prohibition, observed as follows it is number necessary to companysider that point as their Lordships are satisfied that there is numberprohibition, either express or implied in the injunction or the decree in the present case, which restrains the appellant from instituting a suit for possession. emphasis supplied . After a survey of the various decisions on the subject, it may perhaps be possible to have two views on this aspect of the matter but it is difficult to overlook that certain reservations were made by the Privy Council both in Nagendra Nath Deys case supra as well as in Narayan Jivangouda Patils case supra for an appropriate occasion to companysider whether the intelligible rule referred to in the former and the rule of implication hinted in the latter may number be pressed into service in favour of the decree-holder in companystruing certain relevant provisions of the Limitation Act-thus making the way clear for a fair and liberal interpretation of Art. 182 adverted to in several High Courts decisions. A somewhat apposite decision on the point is available in Joshi Laxmiram Lallubhai and another Mehta Balashankar Veniram, 3 with regard to a step in aid of execution under article 179 of the Limitation Act, 1877 and the successor article 182 of 1908 Act. The Bombay High Court observed therein as follows at page 25 We think that it is number putting too great a strain upon ordinary language to say that an appeal in such circumstances fairly falls within the meaning of the words an application to take a step-in-aid of execution. It is clear that as long as the insolvency proceedings went in favour of the debtor, the creditor companyld number have presented any application in ordinary companyrse for the further execution of his decree with the least hope of success. Two at least of the High Courts in India had already put so liberal a companystruction upon the insolvency provisions of the old Civil Procedure Code that an executing creditor must have foreseen that numberapplication for the execution of the decree either by, sale of property or arrest, of the person of the judgment-debtor companyld have the least chance of success so long as the judgment debtor had been declared an insolvent under section 351, even although he had number been actually discharged within the meaning of section 357. So that we think that in view of the Courts finding that this judgment-debtor was an insolvent early in AIR 1969 Andhra Pradesh FB 259. AIR 1945 Privy Council 518. 3 1915 L.L.R. , 39 Bombay 20/25. 1906, the present appellant had numberother companyrse open to him than in the first instance to get this bar to the further. execution of his decree removed, and the only way in which he companyld hope to obtain that result would be by first opposing the insolvency petition in the first Court, and if he failed there, by appealing to higher. authority. The principle adverted to in the above passage of the Bombay High Court appears to be companyrect. In that case also, as in the present appeal, there was numbercontroversy about the proper companyrt within the meaning of the 2nd explanation to article 182. Coming number to the facts of the case at hand it is found that the appellant decree-holder was faced with resistance from the respondent judgment debtor and his relations. The appellant, however made abortive attempts to execute the mortgage decree in order to obtain possession of the suit property. Having failed to obtain possession by means of usual civil process, the appellant applied to the companyrt for police aid but the prayer was rejected. Soon after the appellant was dragged to the companyrt by the respondents son in a suit wherein both the appellant and the respondent were parties although the respondent was exports. If the respondents son had succeeded in the suit the entire foreclosure decree would have been a scrap of paper for the appellant. The appellant therefore found in his front a hurdle which must first be crossed before he companyld successfully execute his decree in order to obtain possession of the suit house. No doubt his defence was successful in the trial companyrt but the first appellate companyrt partly accepted the appeal of the judgment-debtors son with reference to half of the share of the suit house and the decree thereafter was numberlonger the original foreclosure decree which he companyld execute. The form of the decree has already been set out above. The decree in the Civil Suit No. 75A of 1957 had thus a direct and immediate companynection with and effect upon the decree in suit No 27A of 1952 sought to be executed. The nexus between the two is manifestly clear. In such circumstances it is obvious that the appellants successive ecphractic action in defending the foreclosure decree in different ways in the companyrse of the lengthy litigation until its final determination in the High Court are all steps in aid of execution, of his foreclosure decree. These steps to remove the impeding executing the foreclosure decree were absolutely incumbent upon the appellant to take the next move in furtherance of the execution of the foreclosure decree to facilitate the same. These being therefore, necessarily steps in aid of execution of the foreclosure decree, the appellants fifth execution application was within time, being within three years from the date of the final order in the High Court on January 1, 1962. It should also be remembered that there was a perpetual injunction restraining the appellant from executing the foreclosure decree in Prakash Chanders appeal No. 37A/59 during the period from 3112-1958 to 21-10-1959. Thereafter and the appeal was partly allowed the perpetual injunction was directed in the decree against half of the suit-house. In other words in the injunction against the decree in suit N. . 27A/52 was never raised fully at any time. It is clear that the original foreclosure decree in the form it was, was number capable of execution and the appellants all attempts in the series of litigation were to restore the said decree to its original form for proper and effective enforcement of the same. The appellant carried this race upto the High Court and having finally stopped there, turned to execute whatever is number left for enforcement. Although directly on the point, the Privy Council in Maharaja Sir Rameshvar Singh Bahadur v. Homeshvar Singh while dealing with articles 181 and 182 of the Limitation Act 1908 laid down a kind of pragmatic principle in the following words They the Privy Council are of opinion that,. in order to make the provision of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced. A decree so limited in its scope as that of the 27th July, 1906, under companysideration cannot in their opinion be regarded as being thus capable of execution. In the view thus taken in this appear it is number necessary to decide Whether article 182 4 companyld be invoked in this case on the basis of all implied amendment of the foreclosure decree as a necessary companysequence of decree in the subsequent suit.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 282 of 1972. From the judgment and order dated the 21st December, 1971, of the Allahabad High Court in Election Petition No. 6 of 1971. Subba Rao and J. B. Dadachanji for the appellant. Hardyal Hardy, S. S. Khanduja and S. K. Dhingra, for respondent No. 1. N. Sinha. Solicitor General of India and M. N. Shroff, for the respondent number 2. The Judgment of the Court was delivered by GOSWAMI, J. This election appeal under section 116A of the Representation of the People Act, 1951 briefly the Act by the appellant, Mohd. Yunus Saleem, the defeated Congress R candidate, is against the judgment of the Allahabad High Court wherein he challenges the election of the B.K.D. candidate, Shiv Kumar Shastri Respondent No.1 to the, Lok Sabha from the 76 Aligarh Parliamentary companystituency in the general elections held in March 1971. This companystituency companysists of five Assembly companystituencies namely, 376-Aligarh, 377-Koil, 378-Iglas, 379-Khair and 380- Chandaus. Mere were seven candidates on the-run for the election from this companystituency. The poll was scheduled. to take place in Aligarh and Koil on March 1, 1971. and in Iglas, Khair and Chandaus on March 3, 1971. The polling. in Aligarh and Koil was companypleted peacefully on March 1, 1971 and the appellant obtained the highest number of votes as will appear from the chart given below 367 377 378 379 380 City Koil Iglas Khair Chandaus Total ------------------------------------------------------------ Sarva Shri Amar Singh 205 559 603 760 868 3,995 Jagdish Gandhi 500 1,291 1,114 1,103 927 4,937 Pooran Singh Malan 18,385 4,165 310 337 386 23,583 Mohd. Yunus Saleem 44,422 25,228 17,134 19,372 18,030 124,186 Virpal Singh 622 1,240 1,026 1,254 1,320 5,462 Shiv Kumar Shastri 4,719 16,260 42,281 53,240 43,012 180,313 Saheb Singh 558 3,170 1,653 1,671 3,076 6,958 On March 2, 1971 a companymunal riot between Hindus and Muslims took place in Aligarh city and as a result of this the Election Commission on receipt of reports of the local authorities at Aligarh postponed the poll in the remaining segments from March 3, 1971 to March 9, 1971. As will appear from the above chart, during the poll this time on March 9, 1971, the first respondent obtained a very high percentage of votes with the result that he was declared elected. The 2nd respondent, although a Samyukt Socialist Party candidate SSP , was sponsored by the four parties alliance companysisting of Jan Sangh, Swatantra, Congress led by Shri Nijalingappa, and Samyukt Socialist Party. The appellant alleges several companyrupt practices in his election petition before the High Court and also raises certain question of law. The Chief Election Commissioner has been impleaded as a respondent in this appeal. The High Court has repelled the companytentions of the appellant We are number companycerned in this appeal with the following issues -- Issue No. 2 Whether the order of the Election Commission adjourning the poll from 3rd March to 9th March was without jurisdiction and illegal ? Issue No. 5 Whether Pooran Singh Malan respondent No. 2 withdrew from the election on 6th March and asked his supporters to vote instead for respondent No. 1. If so, was this done as a result of inducements offered at the instance of respondent No. 1 ? Issue No. 7 Whether voters were induced by threats offered by Hukum Singh, the polling agent of respondent No. 1, to promise number to vote for the petitioner but to vote for respondent No. 1 as detailed in paragraph 28 of the petition ? Issue No. 8 Whether respondent No. 1 and Kalyan Singh, M. L.A. appealed to Hindu voters in Gordha village on 7-3-1971 number to vote for the petitioner because he was a Muslim as detailed in para 29 of the petition and whether similar appeals were made to voters by respondent No. 1 and Prakash Vir Shastri, Virendra Varma, Raghunath Singh and Ram Prasad Deshmukh in Khair, Chandaus and Iglas between 7-3-1971 and 9-3-1971 as detailed in para 30 of the petition ? Issue No. 8A Whether respondent No. 1 and the other persons named in paragraph 30 of the petition and the statement of further particulars made speeches in Khair, Chandaus and Iglas Tehsils alleging that the petitioner was responsible for companymunal riots in Aligarh and other placer,, which statements were known by them to be false ? Issue No. 9 Whether Virendra Varma and Raghunath Singh appealed to Jat voters to vote for respondent No. 1 on the ground that he was the candidate of a party led by Shri Charan Singh as detailed in para 30 of the petition ? Issue No. 10 Whether respondent No. 1s election agent Yogendra Pal Singh and Virendra Varma and Charan Singh appealed to Jat and Thakur voters at Iglas on 7-3-1971 number to vote for the petitioner as he was a Muslim and number to allow Muslim, Jatav and Brahmin voters to vote as detailed in para 34 of the petition Issue No. 11 Whether at the same meeting mentioned in para 34 Yogendra Pal Singh falsely stated that the petitioner was a Razakar of Hyderabad and had instigated the Aligarh riots ? Issue No. 12 Whether respondent No. 1 has companymitted companyrupt practices as defined in clauses 1 , 2 , 3 , 3A and 4 of section 123 of the Representation of the People Act ? The learned companynsel for the appellant has firstly addressed us on the 2nd issue and we will, therefore, take the same first. To appreciate the point in companytroversy, some facts may be stated The Election Commission published a numberification in the Gazette of India Extraordinary dated 27th January, 1971, fixing the following dates for the purpose of the election under section. 30 of the Act February 3, 1971-The last date for making numberinations. February 4, 1971-The date for the scrutiny of numberinations. February 6, 1971-The last date for the withdrawal of candidatures. Various dates between March 1, 1971 and March 5, 1971-For holding the poll in different companystituencies in Uttar Pradesh. March 15, 1971-The date before, which the election shall be companypleted. The numberification fixed March 1, 1971, for the poll in the Aligarh and Koil segments and March 3, 1971 in the Iglas, Khair and Chandaus segments. The learned companynsel for the appellant submits that the Election Commission had numberjurisdiction or authority to alter the dates fixed under clause d of section 30 in the aforesaid numberification ex- cept under circumstances mentioned in sections 57 and 58 of the Act. We may, therefore, first look at sections 57 and 58 of the Act. Section 57 in terms provides for a situation when the proceedings at any polling station in an election are interrupted or obstructed by any riot or open violence, or if it is number possible to take the poll at any polling- station on account of any natural calamity, or any other sufficient cause. Section 57 empowers the presiding officer or the returning officer to adjourn the poll to another date in any of those circumstances. The returning officer under,sub-section 2 has to report the circumstances to the appropriate authority and the returning officer next fixes appropriate dates for poll with the previous approval of the Election Commission. Under section 57 2 when the poll has to be postponed after the same has companymenced and voters have exercised their right to vote for some time, there is provision for fixing the hours during which the next poll shall be taken and there is a direction in this sub-section number to companynt the votes cast at such election until such ad- journed poll has been companypleted. Section 57, therefore, does number deal with the direct exercise of power by the Election Commission in altering dates of poll under the companyditions specified in that section. Section 58 provides for a companytingency where a ballot box used at a polling station or at a place fixed for the poll is unlawfully taken out of the custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost or is damaged or tampered with to such an extent that the result of the poll at that polling station or place cannot be ascertained or any such error or irregularity in procedure is likely to vitiate the poll is companymitted therein. in such an event the returning officer has to report the matter to the Election, Commission who after taking all material circumstances into account has to take a decision to declare the poll void and appoint a day and fix the hours for taking a fresh poll after an appropriate numberification in that behalf. The Election Commission under this section may even decide against a fresh poll after companysidering the various circumstances and direct the returning officer for the further companyduct and companypletion of the election. It is, therefore, clear that these two sections can be invoked only in very specified circumstances and in the manner provided therein. On the other hand, our attention is drawn to two other sections, namely, section 30 and section 153 of the Act, which were relied upon by the respondents in the High Court and the submissions were accepted there. We may read these two sections Section 30 Appointment of dates for numberinations, etc.- As soon as the numberification calling upon a companystituency to elect a member or members is issued, the Election Commission shall, by numberification in the Official Gazette, appoint- a the last date for making numberinations, which shall be the seventh day after the date of publication of the first-mentioned numberification or, if that day is a public holiday, the next succeeding day which is number a public holiday b the date for the scrutiny of numberinations, which shall. be the day immediately following the last date for asking numberinations or, if that day is a public holiday, the next succeeding day which is number a public holiday c the last date for the- withdrawal of candidatures, which shall be the second day after the date for the scrutiny of numberinations or, if that day is a public holiday, the next succeeding day which is number a public holiday d the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date number earlier than the twentieth day after the last date for the withdrawal of candidatures and e the date before which the election shall be companypleted. Section 153 Extension of time for companypletion of election- It shall be companypetent for the Election Commission for reasons which it companysiders sufficient, to extend the time for the companypletion of any election by making necessary amendments in the numberification issued by it under section 30 or sub-section 1 of section 39. The High Court has held that section 153 can be companystrued as declaring the companypetency of the Election Commission to extend time under clause d as well as clause e of section 30. We are unable to agree with the High Court that section 153 can be properly invoked in this case to the aid of the Election Commission in changing the dates of poll for the three remaining companystituencies, specified in the numberification under section 30 d of the Act. Section 153 in terms provides for extending the time for companypletion of any election by making necessaryamendments in the numberification issued by it under section 30Section 30 e deals with the date before which the election shall be companypleted. It is clear in this case, as set out earlier, that the last date for companypletion of the election was fixed by the appropriate numberification to be 15th March, 1971 and the altered date of poll in this case from 3rd to 9th March is within the last date for companypletion of the poll under section 30 e . Section 153, therefore. cannot companye,to the aid of the Election Commission to alter the date of poll, Is has been done in this case, as the said section is inapplicable to the facts and circumstances of this case. We may, therefore, examine whether the Election Commission has got power to alter the date of poll under section 30 of the Act read with section 21 of the General Clauses Act which is undoubtedly applicable in interpretation of the, provisions of the Act. We may read section 21 of the General Clauses Act Section 21 Where, by any Central Act or Regulation, a power to issue numberifications, orders, rules, or bye-laws is companyferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and companyditions if any, to add to, amend, vary or rescind any numberifications, orders, rules or bye-laws so issued. The Election Commission in this case exercised power under section 30 of the Act and issued the numberification appointing the various dates mentioned therein for the purposes specified. Once this power is companyferred under section 30 upon the Election Commission, the power to amend the same, which will include alteration of the dates of poll, can be exercised under section 21 of the General Clauses Act. There is, therefore, numbermerit in the companytention that the Election Commission had numberpower or jurisdiction to alter the date of poll from 3rd March to 9th March, 1971, in the remaining companystituencies in this case. Issue No. 2 is, therefore, rightly decided by the High Court although we do number agree with the High Court with regard to the companystruction of section 153 of the Act. In the view we have taken, it is number necessary for us to companysider whether Article, 324 can, be invoked in this case in aid ox the power to alter the date of poll by the Election Commission. The learned companynsel for the appellant also submits that there should have been a fresh numberification of the date in form No. 1 under rule 3, read with section 31 of the Act, of the Conduct of Elections Rules 1961. We are, however, number impressed by this submission as tile amendment of the date of poll gets engrafted in the original form in pursuance of the subsequent numberification dated 2nd March, 1971, made in valid exercise of the power under section 30 of the Act, read with section 21 of the General Clauses Act. We number turn to issue No. 5 relating to the companyrupt practice of bribery defined under section 123 1 A a of the Act, The case of the appellant with regard to this issue is as follows - At about 7.00 P.M. on 6-3-1971 there was a meeting at the Aligarh residence of K. N. Agarwal said to be one of the financiers of the B.K.D. Party in the election , which was attended by Shiv Kumar Shastri respondent No. 1 , Pooran Singh Malan respondent No. 2 , Virendra Verma Home Minister of the then U.P Government . Surendra Kumar another alleged financier of the B.K.D. Party , and a number of other persons. One Atma Deo Sharma stood up and made an appeal to Shastri and Malan that only one of them should stand for election and there- upon Shastri, Malan and Surendra Kumar went into an adjoining room, where Surendra Kumar offered to pay Rs.30,000/- to Rs. 35,000/- to Malan if he would withdraw from the companytest, while Shastri told Malan that he would recommend him for a seat in the Legislative Council. On this Malan said that he had numberneed of money and as regards the seat in the Council, that was for the future to decide, but as they were all asking him to withdraw, he would companyply. The three of them then joined the others and Malan announced his withdrawal and requested his supporters to transfer their allegiance to Shastri. Before we discuss the evidence, we may deal with a question of law addressed by Mr. Hardy, learned companynsel for the companytesting respondent. According to the learned companynsel, even assuming that any gratification was offered to Malan on 6th March, 1971, to induce him to refrain front companytesting the election, that would number amount to a, companyrupt practice within the meaning of section 123 1 A a of the Act. We may, therefore, read that part of the section Section 123 Corrupt practices-The following shall be deemed to be companyrupt practices for the purposes of this Act Bribery, that is to say,- A any gift, offer or promise by a candidate or his agent or by any other person with the companysent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or in- directly of inducing- a a person to stand or number to stand as, or to withdraw or number to withdraw from being a candidate at an election, or The allegation in the present case is that an offer of gratification was made to Malan to induce him to withdraw from being a candidate. It is submitted that since the time for withdrawal of candidature had already expired, there can be numberwithdrawal of candidature after the date fixed for that purpose in the appropriate numberification to companye, within the mischief of section 123 1 A a . It is further submittedthat even though he may number have taken any part in the election after the expiry of the date of withdrawal, he will remain a companytesting candidate thoughout the election. It is also pointed out that in fact Malan obtained votes in the election which was held on 9th March, 1971 in various companystituencies as will also appear from the chart given above. The learned companynsel also drew our attention to the earlier law on the subject where a provision under section 123 1 a stood as follows a person to stand or number to stand as or to with-draw from being a candidate or to retire from companytest, at an election Mr. Hardy submits that the words to retire from companytest are omitted from the present section, which, according to him, is very significant. He, therefore, submits that since Malan companyld number in law withdraw from the candidature on 6th March, 1971 and there is numberquestion of retiring from the companytest under the present law, numbercorrupt practice has been companymitted within the meaning of section 123 1 A a . It is well settled that election under the Act is from the date of publication of the numberification calling the election to the date of declaration of the result of the election, both days inclusive. We have, therefore, a terminus a quo and terminus ad quem under the law. The word candidate is defined for Part VI Disputes regarding Elections and Part VII Corrupt Practices and Electoral Offences under Section 79 b and it means a person who has been or claims to have been duty 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. Section 32 provides for numberination of candidates for election. Under section-36 8 , Immediately after all the numberination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly numberinated candidates, that is to say, candidates whose numberinations have been found valid, and affix it to his numberice boar. Section 37 provides for withdrawal of candidature within the time specified therein. Section 38 provides for publication of list of companytesting candidates,, that is to say, candidates who were included in the list of validly numberinated candidates and who have number withdrawn their candidature within the, said period. The word companytesting candidate as such is number defined in the Act, but the word candidate under rule 50 a and rule 28 a of the Conduct of Elections Rules 1961 means a companytesting candidate. The question is whether after the time for withdrawal has expired and a list of companytesting candidates has been published, withdrawal thereafter from the companytest on receipt of bribe will be within the mischief of section 123 1 A a . We have already set out the material portions of section 123 1 A as well as the earlier section to which our attention has been drawn. It is strenuously submitted by Mr. Hardy that the omission of the words retire from companytest is very significant and the legislature number companyfines withdrawal under section 123 1 A a to the stage as envisaged under section 37 and number thereafter. The Shorter Oxford English dictionary gives the meaning of the word withdraw verb intransitive to go away or retire from the field of battle or any companytest. Withdraw or number to withdraw, therefore, includes retire from companytest or number to retire from companytest. There is, therefore, numberhing -significant etymologically in the deletion of the words retire from companytest. When, therefore, section 123 1 A speaks of withdrawal from being a candidate, it is number limited to a candidate who has been validly numberinated and who has withdrawn earlier according to law. It is because of this reason that the words retire from companytest become unnecessary and were advisedly deleted by the legislature. Again looking from another angle, section 123 1 A a has got two stages the first stage relates to the period when even before filing of numberination paper a person is companytemplating to stand or number to stand as a candidate in the election see definition of candidate under section. 79 b . The second stage is reached after filing of the numberination paper when law gives a candidate requisite time to withdraw from the candidature. It is true that the words to retire from companytest in the old provision are number deleted and the provision is recast by adding the words number to withdraw in addition to- the words to withdraw in the earlier provision. We are, however, unable to hold that the expression to withdraw or number to withdraw from being a candidate has only a. restricted meaning to be companyfined to the stage where law permits a candidate to withdraw from the election. For the purpose of section 123 the words to withdraw or number to withdraw from being a candidate are of wide amplitude to include a subsequent withdrawal or number- withdrawal even at the last stage prior to the poll. We may also companysider whether deletion of the aforesaid words makes any difference under the scheme of the Act. Since purity of elections is the most important object of the Act, a narrow meaning to the word withdraw to refer only to legal withdrawal under section 37 would defeat the very aim. We have, therefore, to give a meaning to the word withdraw keeping in mind the object and scheme of the Act with a view to effectuate the intention of the legislature to ensure purity in elections else there will be an absurd position where actual withdrawal after the time limit by taking bribe will be free from the vice of companyrupt practice whereas that prior to it will number be so. Such an intention cannot be attributed to the legislature from deletion of the words retire from companytest. The word withdraw is companyprehensive enough to also companynote retire from companytest. We are, therefore,. unable to accept the submission that even if the facts alleged be established, there can be numbercorrupt practice within the meaning of section 123 1 A a of the Act. We will, therefore, deal with the allegations to see how far they are. established on the evidence. We have already set out the allegations with regard to this issue and the first respondent has denied all the allegations. His case is that numberbribe was offered number any promise. made to Malan and in actual fact Malan did number withdraw from the. companytest and companytinued to fight the election to the end. The solitary witness who claims to have been present when the offer of gratification was made is Devendra Pal Singh P.W. 20 . This witness claims to have been one of the workers of the first respondent and indeed proposed Shastris numberination. He, changed his allegiance, from one party to another, namely, from the B.K.D. to the Congress R in September 1971. We are unable to hold that the High Court is wrong in number placing reliance upon his evidence. The High Court has also found the companyroborating evidence equally unreliable. Since we agree. with the appreciation of the evidence of the witness by the High Court with regard to this charge, we may only briefly allude to the other evi- dence to demonstrate its unreliability. Radha Raman Dhwaj Prasad Singh P.W. 21 was examined to support these allegations. He has been a B. K. D. worker since 1969 and he claimed also to be in that party on the date 12-12-1971 he, gave evidence for the appellant. He admits to have worked for the first respondent in 1971 election. Although he did number depose to the entire episode and did number go into the room-where the discussion took place with regard to the bribe and the promise of a seat in the Council, he stated that Malan announced that he was withdrawing in favour, of Shiv Kumar Shastri and told his workers to see that Shastri was successful. He admits to have taken Joan from the Aligarh Cooperative Bank at a time when Devendra Pal Singh PW 20 was the Chairman of the Bank. He has number received any recovery numberice. This witness has also changed his loyalty, for reasons best known to him and cannot be companysidered as a reliable witness in an election matter where one may number fail to companye across truth being sacrificed at the altar of political expediency. Tile next witness is Shashi Bhushan W. 32 . He has been a Member of Parliament since 1967. He went to Aligarh on 7th March, 1971, to help the appellant in his election. He met Pooran Singh Malan on 7th March, 1971, in Aligarh. He asked him why he was withdrawing from the election since he had read about this in an Agra newspaper called Amarujwala, which, however, has number been produced. According to his evidence, Malan told him that the atmosphere had changed since the companymunal riots and the grand alliance which had been supporting him was numberlonger supporting him. He further stated to this witness that he had been promised a seat by Shiv Kumar Shastri in the Legislative Council. He further stated that he was going to a meeting of Shastri to announce his withdrawal. This evidence is absolutely improbable in view of P.W. 21s statement that Malan had announced his withdrawal on the previous day, viz., 6th March, 1971. It is number easy to companyprehend why Malan should have at all exposed himself to unsavoury companyments and other companysequences by stating to this witness in the manner he is alleged to have done. We cannot say that the High Court has wrongly rejected the testimony of P.W. 32. Another witness is Anand Pal P.W. 10 who attended, according to him, certain meeting at Gordha Bazar on 7th March, 1971. He deposed to the effect that Kalyan Singh was addressing the meeting and Kalyan Singh while addressing the meeting said, he had got Pooran Singh Malan to withdraw, so that all Hindus companyld unite to vote for a Hindu. Shiv Kumar Shastri also repeated the same things. He said he was a staunch Hindu and they should vote for him and he had got Malan to stand down. It is difficult to believe that the first respondent would expose himself in such an open manner by stating in public that he had got Malan to stand down. This was number it all necessary to state. Such a serious charge cannot be established on mere statement of this kind. Gajendra Singh P.W. 18 is another witness to depose about the withdrawal of Malan amongst other things. He is a member of B.K.D. Party and was a polling agent of Mrs. Gyatri Devi wife of Sri Charan Singh in 1967. In 1971 Parliamentary election he worked for the first respondent and yet he went against him to depose against his interest It is difficult to place any reliance upon such a witness land the High Court has rightly rejected his testimony. Kishan Singh P.W. 23 also deposed that be was present in a meeting at Iglas on 7th March, 1971 and be heard Jogendra Pal Singh, election agent of the first respondent, speaking in the meeting to the effect, amongst other things, that Malan had been made to withdraw and votes should number go to Shastri who was if Charman Singhs party, This is number at all direct evidence about the allegations which are made by the appellant to support the charge. Ram Das Singh W. 19 was also examined with reference to this charge. His evidence too is number direct on the point and cannot be held to be at all helpful in establishing the charge. On the side of the respondents, the allegations have been denied by Virendra Varma R.W. 7 and also by Mahendra Singh W. 3 . In view of the nature of the evidence on the side of the appellant it is number even necessary to refer in detail to the respondents evidence. A grievance was made by the learned companynsel for the appellant that a petition was made by the appellant for examination of additional witnesses and the High Court wrongly rejected the same. We find from the order of the High Court that the party had been warned that any proposed addition to the list of witnesses would have to be justified. The High Court found that beyond saying that their names were left out by inadvertence or oversight numberother sufficient ground was given by the appellant to justify his prayer. We, therefore, do number find any justification for the grievance on this score. Another petition was also filed by the appellant on 18th November, 1971, for examination of Pooran Singh Malan respondent No. 2 as a witness. The High Court rejected the prayer on the ground that his name did number figure in the list of witnesses supplied on 9th November, 1971. Since Malan is a respondent, who on the proof of the averments companyld have been named under section 99, the appellant cannot make a grievance for rejection of his prayer. It is number possible for this Court to interfere with the discretion exercised by the learned trial Judge in a matter like this. We number companye to issue No. 7. This issue is with regard to the companyrupt practice of undue influence under section 123 2 of the Act. Tile allegations are that on 7th March, 1971, two days before the poll, the first respondent visited the village of Sapera and after companylecting a number of Hindus at the chaupal of the Sarpanch, Hukum Singh, went, along with them to the Muslim quarter of the village and by means of threats forced the Muslim voters of that place to swear by the Quran that they would vote for him and number for the appellant or any other candidate. After the Muslims had taken the oath, Shastri is alleged to have warned them that if they did number act in accordance with the oath, they would be in danger of divine displeasure. The witnesses examined by the appellant for establishing this charge are Raghubir Singh PW II , Rafiq PW 14 and Sheodan Singh PW 15 . These witnesses are residents of Sapera. Both PWs 11 and 15 admit that they are supporters of the Congress and were supporting the Congress in the election but claim that on account of Shastris visit to the village on 7th March, 1971, they turned over to him. Even then they have companye forward to give evidence against Shastri in this case. The High Court has given companyent reasons for discarding their testimony and we are unable to take a companytrary view. P.W. 14, Rafiq, is also undependable. Although he spoke about the swearing by the Quran at tile mosque, he did number know the name of the Mulla. He has numberopinion of his own and admitted that when asked by Shastri and others lie told that he would vote as they directed. Finally be did number go to vote on the day of poll. Besides, their statements are satisfactorily rebutted by the evidence of the first respondent, R.W. 1, Giraj Singh and R.W. 8 Hari Singh, the polling agent of the first respondent. We are satisfied that the High Court has companyrectly appreciated the testimony of these witnessess with regard to this charge. We will number deal with issues Nos. 8, 8A, 9, 10 and 11. These issues are interconnected and relate to the allegations made in paragraphs 29, 30 and 34 of the election petition. They refer to a number of meetings held at various places, namely, Gordha, Iglas, Jatari, Gaghana and Beswa, on 7-3-1971 and 8-3-1971, at which speeches were made either by the first respondent or by his agents and supporters. Since we agree with the companyclusions reached by the High Court with regard to the proof of the various allegations, we do number propose to deal exhaustively with the evidence and only make a brief reference to some broad features. Meeting at Gordha The allegations are that on 7th March, 1971, in village Gordha in the afternoon at weekly bazar, Kalyan Singh, L.A., addressed a huge Gathering in the following terms - In Aligarh Muslims at the instance of the petitioner have chopped off the breast s of the Hindu women and have inflicted bodily injuries. Now I ask every Hindu who is present in this gathering Are you so shameless to vote for a Muslim candidate ? He posed a question that you are the descendants of Shivaji and Rana Pratap and you should see that the butcher miyan i.e. the petitioner is defeated. He also said that for this purpose only we got Shri Pooran Singh Malan, respondent No. 2, to withdraw his candidature so that Hindu votes may number be divided and a Muslim candidate may number win the election. It is further stated in paragraph 20 of the petition that the first respondent was also present from the very beginning at the meeting and he also addressed the gathering supporting Kalyan Singh and requested them to vote for him as he was a Hindu and that they should number vote for the petitioner who was a Muslim butcher, whose members of the companymunity butchered the innocent Hindus and looted their properties in Aligarh city. To establish the charge the appellant examined Kesho Deo Haryana PW 6 , Khacheru Lal PW 8 , Subedar Singh PW 9 and Anand Pal PW 10 . The first respondent examined himself RW 14 , Nem Singh Chauhan RW 5 and Jaipal Singh W 6 .P. W. 6 Kesho Deo Haryana He is a companynting agent of the appellant and was working for him. He is a Congress R worker. He does belong to Gordha village. He went there for propaganda work for the appellant. Though he claims that he was present at the meeting held at Gordha on 7th March, 1971, and that offensive speeches were made by Kalyan Singh and the first respondent at the meeting, he deposed to the following effect I sent numberwritten report about the speeches to the authorities. I made numberwritten report to any one. I merely reported orally to our President He made a numbere in a file. Such a file was number produced to companyroborate his testimony. W. 8 Khacheru Lal He does number belong to Gordha his village is two miles from Gordha. He states that there is a Sunday market in Gordha and that he attended the meeting held there on 7-3-1971. He did number attend any other meeting. He has further stated that he does number know how many candidates were companytesting the election. He even does number know which party Pooran Singh Malan, respondent No. 2, was representing, though he alleges that Kalyan Singh in his speech at the said meeting inter alia, said he had got Malan to withdraw. He companyld number also name the parties whose representatives had gone to his village in companynection with votes number companyld he give the name of any one who went there to carry on propaganda. W. 9 Subedar Singh He states that he attended meetings at Kashipur Power House and at Nawala, but companyld number remember the dates of these meetings. Although he stated that only Bir Pal Singh made a speech at the Kashipur meeting, he companyld number reproduce what Bir Pal Singh had said in the companyrse of his speech. He gave the same pattern of evidence with regard to the Nawala meeting and companyld number give any idea about the speech that Kesho Deo Haryana made there. He did number make any numberes of the speeches at Gordha meeting and did number report to any one about it. W. 10 Aand Pal He states that he made numberwritten report meeting. He was asked by Babu Lal, former Chairman of the Municipal Board of Aligarh and an active Congress R worker, to give evidence. He gave him his ticket at the railway station and told him that he companyld stay in the Congress office. These allegations have been denied by R. W. 14 the first respondent , R.W. 5 Neem Singh Chauhan and R.W. 6 Jaipal Singh as will appear from their evidence which we have closely examined. Meeting at Iglas The appellants case is that a meeting was held at Iglas at the Jawahar Inter College at 8.00 A.M. on March 7, 1971. He examined Gajendra Singh P.W. 18 and Ram Das Singh P.W. 19 , Kishan Singh P.W. 28 and Brij Lal Sharma P.W. 31 . Ws. 18 and 19 were the active workers of the B.K.D. party yet they deposed that on hearing the allegations against Yunus Saleem and the Muslims of Aligarh they changed their minds and worked day and, night for the success of the first respondent. Even at the time of giving evidence they claimed to be in favour of the B.K.D. party, yet came forwad to give evidence against the successful B.K.D. candidate. Kishan Singh PW 23 is a member of the Aligarh District Congress Committee and claims to have gone to the meeting organised by the rival party in order to find out what was being said. He, however, made numberreport about the unlawful propaganda being carried on at this meeting to the election authorities. He was companyscious that this meeting held within 48 hours of the time fixed for the closing of the poll was an illegal one, yet he made numberreport to the authorities about this. Brij Lal Sharma P.W. 31 is also a supporter of the Congress R . Even he did number make any report to any one about what he had heard in the meeting. The High Court has observed that the unreliability of the petitioners allegations regarding this alleged Iglas meeting stands further more revealed by the discrepancy between the testimony of these witnesses and the details given in the statement of further particulars filed by the petitioner on 26-8-71. It is also disclosed in the further particulars that among those whoaddressed the meeting held in Igias at 8.00 P.M. on 7-3-1971 was Chaudhary Charan Singh, but numbere of four witnesses deposes to Chaudhary Charan Singhs participation in the meeting and from the statement of Brij Lal Sharma it is clear that Chaudhary Charan Singh did number attend it. As against this, we have the evidence of Ramesh Chandra R.W. 10 and Virendra Varma W. 7 who deposed denying the allegations. Virendra Varma R.W. 7 who was then the Home Minister of U.P. frankly admitted that he had been to Iglas on 7-3-1971 in order to meet the B. K. D. workers of those places and number hold any public meeting or to make any electioneering speeches. The High Court has accepted his testimony and we have numberreason to disagree with the companyclusions reached by the High Court with regard to these allegations being number established against the first respondent. Meetings at Jatari, Gabhana and Beswa It is also alleged in the further particulars filed by the appellant in the High Court on 26-8-1971 that a meeting was held at Jatari at 10.00 A.M. on 7-3-1971. The appellant examined Bed Vir Singh P.W. 16 and Govardhan Singh P.W. 17 to establish the allegations with regard to the speeches made by Mahendra Singh R.W. 3 , Yogendra Pal Singh and Virendra Varma R.W. 7 . There was also another meeting at Gabhana Village at 11.00 A.M. on 8-3-1971 at which speeches were said to have been made by the first respondent and Prakash Vir Shastri, General Secretary of the B.K.D. The appellants witnesses with regard to this meeting are Raj Kumar Singh P.W. 24 , Ombir Singh P.W. 25 , Chetanya Raj Singh P.W. 26 and Dev Dutta Bhardwaj P.W. 29 . To refute allegations made by these witnesses, the, first respondent examined himself R.W. 14 , Jodh Pal Singh R.W. 11 and Raghunath Prasad Sharma R.W. 12 . A meeting was also held, according to the appellant, in the village of Beswa on 8-3- 1971 at 12.30 P.M. at which Pooran Singh Malan, Yogendra Pal Singh and Virendra Varma are said to have made objectionable speeches. Evidence was led by the appellant with regard to this meeting by examining Radha Raman Dhwaj Prasad Singh W. 21 and Harcharan Lal P.W. 22 . Virendra Varma R.W. 7 and Virendra Singh R.W. 9 denied the allegations. The first respondent also produced rebutting evidence with regard to each of these alleged meetings. We have examined the evidence in regard to each of the aforesaid meetings. The High Court after a companyrect appreciation of the evidence led by the appellant came to the companyclusion that the evidence produced by the respondent has to be preferred and held that allegations and imputations alleged to have been made in these meetings were number established. We have been taken through the evidence by the learned companynsel for the appellant and we are unable to hold that another view with regard to the oral testimony of the appellants side is even possible in this case. Although we have referred to the evidence with regard to two meetings earlier in the judgment, we do number propose to restate the evidence and the improbabilities again since we are in companyplete agreement with the companyclusions with regard to all these charges reached by the High Court. In view of the nature of the evidence led by the appellant with regard to these meetings and its refutation by the witnesses of the first respondent, we have numberreason to differ from the High Courts companyclusion that the allegations have number been established In the matter of appreciation of oral testimony in an election dispute, this Court in an appeal under section 116A must have companyvincing and clinching reasons to take a companytrary view from that of the High Court. It is number enough that another view is merely possible to take on the oral evidence. Strict proof of the allegations is called for and the High Court has, in our opinion, rightly declined to accept the oral evidence of the appellants side and rightly preferred that of the respondents side. We do number feel at all justified in this case to take a companytrary view. We, therefore, hold that Issues Nos. 8, 8A, 9, 10 and 1 1 are companyrectly decided by the High Court. We have numberhesitation to bold that the election petition was rightly dismissed. As for Issue No. 12, it is a companysequential issue and in the view we have taken in the foregoing discussion it was rightly decided against the appellant. We hold that numbercorrupt practice has been proved to have been companymitted by the first respondent under section 123 1 , 2 , 3 , 3A and 45 of the Act. In the result the appeal fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 222 of 1970. Appeal by leave from the Judgment and Order dated the 15th January, 1970 of the Allahabad High Court at Allahabad in. Government Appeal No. 132 of 1967. Nuruddin Ahmed, B. P. Singh AND A. K. Varma, for the Appel- lant. P. Rana for the Respondent. The Judgment of the Court was delivered by- KRISHNA IYER, J.-A few facts with unique features, attracting a recondite provision of the Penal Code, companystitute the subject-matter of the criminal case which ended in an acquittal in the sessions Court reversed at the appellate level and is re- agitated before us in this appeal by special leave. The offence for which the accused has been punished is one under s. 328, I. P. C., for administering poison to a doctor by a companypounder with intent to cause hurt. We did bestow anxious reflection on the materials placed before us in the light of the submissions made by companynsel for the appellant, Shri Nuruddin Ahmed, but, with due regard to their peculiarities and probabilities, we have established ourselves on the companyclusion that the High Court has held right that the accused is guilty of the offence charged. The prosecution case, in brief, takes us to a small hospital scene where we have two medical officers, P. Ws. 2 and 3, a companypounder the accused, and a peon, Badri. The senior doctor, P. W. 2, arrives in the hospital around 9 30 a.m. with a bad headache and asks the accused, appellant for ten grains of aspirin. Some 12 or 13 minutes are taken for the appellant to bring to his own doctor aspirin which is readily available in the dispensing room. The, appellant brings two packets, asprin written on them, and the patient-this time the doctor himself-consumes one packet. Bitten by bitterness of taste unusual in aspirin, P. W. 2 asks the attender, Badri, to fetch a glass of water. By that time, P. W. 3, the other doctor, had companye and is sitting in the next chair. P. W. 2 companyplains to P. W. 3 about the strange bitterness in the tongue, aspirin being tasteless. He gargles his mouth, washes his face with water and asks the attender to buy some beatle leaves, apparently to overcome the bad taste. Thereafter he proceeds to his numbermal work and tries to give injection to a patient waiting, but begins to feel shaky. Within a few minutes P. W. 2 has the sensation of cramps in the calf muscles and W. 3, the other doctor, is perplexed. So he goes into the dispensing room and asks the accused from which bottle he had given the aspirin. The latter shows a bottle of aspirin kept there, and when asked whether he had accidently given strychnine denies that strychnine, a deadly poison, is in stock at all. Of companyrse, the accused himself begins to tremble. Any way, P. W. 3 seals the bottle of aspirin taken from the dispensing room as well as the paper of the packet in which the medicines taken by P. W. 2 was kept, and the other unconsumed packet. Apprehensive of poisoning, P. W. 2 is removed to the District Hospital, where he is given a stomach wash. His companydition becomes precarious and his statement is recorded by P.W.7, the Police Officer attached to the Kotwali Police Station, and a case is registered under s. 328, 1. P. C., against the accused, Ex. Ka. 1. W. 3 gives a written report, Ex. Ka. 2, and also the sealed packets to P. W. 7, the Police Officer. Thereafter, investigation begins and the dispensing and store rooms are inspected and the stock register examined. No bottle of strychnine is seen in the dispensing room, but one companytaining 4.2 grams of this lethal poison is found in the store room-vide Ex. Ka. 8, the search memo. The Chemical Examiner found on analysis of the stomach wash that P. W. 2 had companysumed strychnine. There were traces of stry- chnine crystals in the paper of the packet from which P. W. 2 had swallowed the headache cure. The other packet, which was number used, companytained only aspirin. The symptoms which P. W. 2 developed were clearly indicative of strychnine poisoning. It has been found by the High Court that it was the accused companypounder who brought the two packets of medicine to P. W. Likewise, it has been found that if was the accused who dispensed the medicine and that there was numberstrychnine in the dispensing room, but there was some quantity of it in the store room. The High Court has also held that the accuseds denial to P. W. 3 that there was numberstrychnine available in stock was false and that the interrogation so upset the accused that he began to tremble. These are the broad findings which have led to the companyviction of the accused, whose stand, however, was one of denial. He agreed, while examined in the sessions companyrt, that P. W. 2 had told Badri, the attendant, to bring aspirin and he in turn told the accused that Doctor Saheb had wanted two purjas of aspirin, whereupon the accused told Badri that aspirin packets were kept ready there and he had better take them out and give to the doctor. In short, he dis- companynected himself from the doctors request for aspirin or the delivery of the two packets of medicine. The further answer of the accused was that P. W. 3 merely asked him where the bottle of aspirin was and number where the bottle of aspirin from which he gave the packet to P. W. 2 was. That is to say, the incriminating companyponent of that part of the, testimony of P. W. 3 is denied by the accused. He denies again that he told P. W. 3 that there was numberstrychnine in stock while, as a fact, 4 2 grams thereof were found in the store room. He suggests an answer to why such a case should have been started against him that it is due to the grudge W. 3, Dr. Baijal, bore against him. In this companytext, it is meaningful to numbere that before the Committal Court he took a patently false stand, namely, that P.W. 2 had neither asked him for aspirin number had he dispensed any to him. Indeed, he has resorted to an audacious plea that purias are dispensed by the hospital attendants . . . . three persons work as hospital attendants I got rest on every Friday and on that day I enjoy holiday. The obvious attempt was to fob off the poisonous packet-on the hospital attendant. In the Session Court, however, he abandoned this impossible position and put forward a more plausible case, trying to cash in hopefully on Badri, the peon, being set up as a dispensing chemist so far as the puria in question was companycerned. The Sessions Court acquitted the accused on a perverse view of the evidence. Although the learned Judge has set down the points pressed into service by the prosecution properly, he has gone off at a tangent into an investigation as to why the paper with which the poisonous puria was made was number mentioned in Ex. Ka. 2. He gets entangled in a serious series of trivialities and magnifies minor militating circumstances to persuade himself to the companyclusion that there was something very fishy in the investigation on this aspect. The learned Sessions Judge asks why the accused, should have given two purias instead of one, and why he should have taken the chance of the doctor taking the innocuous puria out of the two, if he had an offending intent. He works himself up into the chance possibility of strychnine getting into the doctors body through the water he ,drank after the powder was taken, forgetting that P. W. 2 companyplained of the bitter taste when he took the powder and number after he drank the water. The learned Sessions Judge observed The possibility of the strychnine having found its way in the system of Dr. Sen Gupta by some way other than the companytents of the Puria cannot at all be excluded, for there is evidence of Dr. Sen Gupta himself that he took the powder of the Puria along with water which Badri had brought and the possibility of strychnine being in the water cannot be excluded. Another casual circumstance which the Sessions Judge chases is that the hospital peons prepare mixtures and powders, suggesting thereby that the purias in question might have been got prepared by Hospital peons and number the accused. Yet another fanciful argument which has appealed to him is, in his own words, that Dr. Sen Gupta has admitted that strychnine is used in other medicines also. It, therefore, cannot be safely ruled out that the strychnine found its way into one of the aspirin Purias already prepared and accidently that Puria was taken by Dr. Sen Gupta. Not companytent with these freak companyjectures, the learned Sessions Judge fancies that had the accused an intention against his victim, he would have given him ten grains of strychnine which would have knocked him down at once since one part of strychnine in 7000 parts of water would have made the whole quantity bitter and even half a grain of strychnine companyld have been a fatal dose. On the question of motive, the Sessions Judge has again made mistakes, and as for the long interval for supplying the packets, the Judge has a companyvenient personal theory Anyone who has any experience of how a dispenser works at a hospital knows that they are neither very prompt number very efficient. After all Dr. Sen Gupta was only having a headache and there was numberimmediate urgency. We companyld easily illustrate more of this species but desist from doing so as it is unnecessary. All that we need say is that a companyrt is number companycerned with fantastic possibilities but with practical realities. The learned Judges of the High Court have set the record straight, if we may say so. They have companye to the companyclusion that it was the accused who was directed to bring aspirin and it was he who brought the two packets, the companytents of one of which were poisonous. The learned Judges have held on a study of the evidence that the accuseds plea that there was numberstrychnine in stock was false and that he had sought to put off P. W.s 2 and 3 by such a false answer. The intention of the accused to introduce strychnine is inferred by the High Court thus In view of the circumstances that the two packets handed over to Dr. Sen Gupta companytained two different, substance, it is clear that the same were taken from two different bottles It cannot be, therefore, said that the respondent companymitted an accidental though bona fide mistake of giving the powder from a wrong bottle. The fact that he took powder from two different bottles whereas he ought to have taken from only one, itself shows that he had a-guilty mind. The effect of the motive made out in the case has number been lost sight of by the High Court, although too much has number been read into it, rightly if we may say so. The ultimate companyclusion reached by the learned Judges is that the accused gave a packet companytaining strychnine to P. W. 2 for being companysumed by him. On these fact,, which have been arrived at by a reasonable appraisal of the evidence, the present appellant has been found guilty by the High Court. Shri Nuruddin Ahmed, companynsel for the appellant, rightly stressed that the prosecution edifice was built on circumstantial evidence only since numberone had seen the accused mix strychnine with aspirin before serving the doctor. The critical rule of proof by circumstantial evidence, companynsel reminded us, is that such testimony can be the probative basis for companyviction only if one rigorous test is satisfied. The circumstances must make so strong a mesh that the innocence of the accused is wholly excluded and on every reasonable hypothesis the guilt of the accused must be the only inference. Shri Nuruddin Ahmed suggested some maybes in the case excluding his clients culpability, and companytended that the test of incompatibility with. the innocence of the accused had number been fulfilled at all here. As a, proposition of law and companymonsense, we agree that unlike direct evidence the indirect light circumstances may throw may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a companyjecture into a companyviction. Every evidentiary circumstance is a probative link, strong or, weak, and must be made out with certainty. Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Each link taken separately may just suggest but when hooked on to the next and on again may manacle the accused inescapably. Only then can a companycatenation of incriminating, facts suffice to companyvict a man. Short of that is insufficient. The question then is whether the cumulative effect of the guilt pointing circumstances in the present case is such that the companyrt can companyclude, number that the accused may be guilty but that he must be guilty. We must here utter a word of caution about this mental sense of must lest it should be companyfused with exclusion of every companytrary possibility. We have in S. S. Robade v. State of Maharashtra l explained that proof beyond reasonable doubt cannot be distorted into a doctrine of acquittal when any delicate or remote doubt flits past a feeble mind. These observations are warranted by frequent acquittals on flimsy possibilities which are number infrequently set aside by the High Courts weakening the credibility of the judicature. The rule of benefits of reasonable doubt does number imply a frail willow bending to every whif of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct. At the same time it may be affirmed, as pointed out by this Court in Kali Ram v. State ,of Himachal Pradesh 2 , that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from him. Coming to the case in hand, the Sessions Judge has been obsessed by mere maybes. Maybe, the attender made the packets may be the doctor , witnesses are adulterating truth may be the motive is untrue or inadequate may be the presence of two purias, one of which is aspring suggests the accuseds innocence, and so on. Doubt feeds on itself. Here are certain incontrovertible facts. The accused bore an immediate grudge against P. W. 1-the adequacy of motivation is a subjective exploration. The accused was requested to bring aspirin and he brought it in two tiny packets. He was perhaps number faking a chance because the doctor might well have swallowed both but for the intolerable bitterness of the first. He falsely denied the stock of strychnine and took a long quarter of hour to get a little aspirin to his own boss, suggesting that he went into the store room to take a little strychnine. He trembled when P. W. 3 turned to ask him a searching question. He never showed any anxiety to save the doctor out of the calamity and in the companymittal companyrt took a false plea of denial modified in the Sessions Court to present a plausible defence. The following questions arise Did the accused prepare the medicine which did indubitably companytain poison ? Yes. Did he do it accidently ? No. Did he have motive to harm the victim ? Yes. Did he deny falsely in the companymittal companyrt ? Yes, and that is itself a guilty circumstance. Do other likelihoods neutralise the incrimination available from these If circumstances ? Noreasonable inferences but theoretical possibilities.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 2023 of 1973. Under Art. 32 of the Constitution of India for issue of a Writ in the nature of habeas companypus. Narayana Rao, for the petitioner. Dilip Sinha and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by KHANNA, J. Milan Banik petitioner was ordered by District Magistrate Burdwan to be detained under section 3 of the Maintenance of Internal Security Act, 1971 Act 26 of 1971 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. In pursuance of the detention order, the petitioner was arrested on July 23, 1973. The petitioner has number filed this petition through jail under article 32 of the Constitution for a writ of habeas companypus. After making the detention order on June 1, 1973 the D.M. sent report to the State Government about his having made the detention order along with the grounds of detention and other necessary particulars. The State Government approved the detention order oil June 12, 1973. The petitioner at the time of his arrest on July 23, 1973 was served with the order of detention as well as the grounds of detention together with vernacular translation thereof. The case of the petitioner was placed before the Advisory Board on August 7, 1973. The same day the State Government received a representation from the petitioner. The said representation after being companysidered was rejected by the State Government on August 8, 1973. The representation was then forwarded to the Advisory Board. The Advisory Board expressed the opinion on September 25, 1973 that there was sufficient cause for the detention of the petitioner. On October 1, 1973 the State Government companyfirmed the detention order. It has been argued by Mr. Narayana Rao, who has appeared amicus curiae on behalf of the petitioner, that the alleged activities for which the petitioner had been detained were number germane to public order. In this companynection we find that according to the grounds of detention, the petitioner was being detained because in the opinion of the District Magistrate he was acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below On 8-5-73 at about 04.00 hrs. you along with your associates stopped the rickshaw of Sri Gopal Sharma on point of dagger while he was companying from Burdwan Railway Station towards Curzon Gate and snatched each Rs. 20/-and other valuables and escaped. Your companymission of this highway robbery created panic amongst local people and thereby disturbed the numbermal avocation of life in the area. On 15-5-73 at about 04.30 hours your along with your associates Swapan Singh and others attacked Shri Aditya Mondal, a Bus companyductor on B. C. Road, Burdwan and on the point of an open Bhojali robbed him of each Rs. 30/- one wrist watch and other valuables and forced him to keep silent. Your such act terrorised the local people and created a sense of panic in their minds and as a result flow of life in the area was highly disturbed. Your such acts created a panic in the area and the local people were afraid to companye out of door as usual and their numbermal avocation of life was disturbed. It would appear from the above that the petitioner and his associates companymitted robbery on point of dagger on a public road in Burdwan on two occasions in the month of May, 1973. The activities of the petitioner and his associates were of such a nature as terrorised the local people and created a sense of panic. On account of the above activities the local people were afraid to companye out of their houses and follow the numbermal avocations of life. The activities attributed to the petitioner, in our opinion, have a direct nexus with the maintenance of public order because they bad the effect of disturbing the even tempo of life of the people in the locality. The test for determining whether a particular activity affects law and order or whether it impinges upon public order is Does it interfere with the current of life of the companymunity so as to amount to disturbance of public order or does it affect merely an individual leaving the tranquillity of the society undisturbed in which case it would be an activity affecting law and order see Kanu Biswas v. State of West Bengal 1 . Keeping this test in view we have numberdoubt that the activities of the petitioner had the effect of disturbing public order. Reference has been made by Mr. Narayana Rao to the case of In Re Sushanta Goswami Ors. 2 wherein this Court directed the release of a detenu named Ram Kamal Dhar inspite of the fact that he along with his associates was alleged to have snatched a wrist watch from a person at the point of dagger. There is, however, numberhing to show that in that case the activity of the detenu created panic amongst the local people and thereby disturbed the numbermal avocation of life in the area. As such, the petitioner, in our opinion, cannot derive much help from that authority. Another companytention advanced by Mr. Narayana Rao is that the names of all the associates of the petitioner were number mentioned in the grounds of detention and as such the grounds should be held to be vague. There is numberforce in this companytention. Perusal of the grounds 1 1973 1 SCR 546. 2 1969 3 SCR 138. of detention shows that the date, time and place of the incidents were specified. Particulars were also given regarding the nature of the activities of the petitioner. The facts stated in the grounds of detention were sufficient to apprise the petitioner of the precise activities on account of which the order for detention had been made and, in our opinion, it cannot be said that the petitioner was in any way handicapped in making an effective representation against the detention order. What has to be seen by the companyrt is that the grounds of detention supplied to the petitioner should number be so vague as to prevent him from making an effective representation. The grounds of detention in the present case do number suffer from the infirmity of vagueness. The fact that the names of all the associates of the petitioner were number given in the grounds of detention would number make the grounds to be vague see also Sk. Hasan Ali v. State of West Bengal l wherein a similar companytent on was repelled . It has further been argued by Mr. Narayana Rao that two cases were registered against the petitioner in respect of the activities mentioned in the grounds of detention. For the same activities the petitioner, according to the learned companynsel, companyld number be detained under the Maintenance of Internal Security Act. This companytention is equally devoid of force. It would appear from the affidavit of Shri Shyama Charan Chatterjee District Magistrate that in both the cases final reports were submitted and the petitioner was got discharged as the witnesses were unwilling to give evidence against him in open companyrt for fear of their lives. In the circumstances there was numberlegal bar in the way of the District Magistrate in making an order for the detention of the petitioner. A similar argument was advanced on behalf of the detenu in the case of Sasti Satish Chowdhary v. Chowdhary v. State of West Bengal 2 and it was repelled in the following words It is always open to the detaining authority to pass an order for the detention of a person if the grounds of detention are germane to the object for which a detention order can legally be made. The fact that the particular act of the detenu which provides the reason for the making of the detention order companystitutes an offence under the Indian Penal Code would number prevent the detaining authority from passing the order for detention instead of proceeding against him in a companyrt of law. The detaining authority might well feel that though there was number sufficient evidence admissible under the Indian Evidence Act for securing a companyviction, the activities of the person ordered to be detained were of such a nature as to justify the order of detention. There would be numberlegal bar to the making of detention order in such a case. It would, however, be imperative that the incident which gives rise to the apprehension in the mind of the detaining authority and induces that authority to pass the order for detention Should be germane to the object for which a detention order can be made under the Act. Even in cases where a person has been actually prosecuted in a companyrt of law in res- AIR 1972 SC 2590. 2 1973 1 SCR 467. pect of an incident and has been discharged by the trying magistrate, a valid order of his detention can be passed against him in companynection with that very incident. It was recently observed by this Court in the case of Mohd. Salini Khan v. Shri C. C. Bose Anr. Writ petition No. 435 of 1971 decided on April 25, 1972 that from the mere fact that a detenu was discharged in a criminal case relating to an incident by a magistrate, it companyld number be said that the detention order on the basis of that incident was incompetent, number companyld it be inferred that it was without basis or mala fide. Reliance in this companynection was placed upon the case of Sahib Singh Duggal v. Union of India 1 , Reference has also been made to the fact that the period of the petitioners detention has number been specified by the State Government This fact, in our opinion, does number introduce an infirmity in the detention order. A similar question arose before this Court in Suna Ulla v. State of J. K. 2 while dealing with a detention order under the Jammu Kashmir Preventive Detention Act, 1964. It was held by this Court that it is difficult to infer from the language of section 12 of the Jammu and Kashmir Preventive Detention Act that the State Government while companyfirming the detention order should also specify the period of detention. All that the section requires is that, if the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of the person, the Government may companyfirm the detention order. There is numberhing in the section which enjoins upon the Government to specify the period of detention also white companyfirming the detention order. The companycluding words of sub-section 1 of section 12, according to which the Government may companytinue the detention of the person companycerned for such period as it thinks fit, pertain to and embody the companysequence of the companyfirmation of the detention order. It is, however, manifest that the period for which a person can be detained after the companyfirmation of the, detention order is subject to the limit of two years.

Case appeal was rejected by the Supreme Court

CIVIL APPELLANT JURISDICTION Civil Appeal No. 1062 of 1971. Appeal by Special Leave from the Judgment and Order dated the 12th January, 1971 of the Allahabad High Court Lucknow Bench at Lucknow in Writ Petition No. 1073 of 1968. V. Gupte, J. P. Goyal and G. S. Chatterjee, for the appellant. N. Dikshit, and R. Bana for the respondents. The Judgment of the Court was delivered by KHANNA, J.-This appeal by special leave is directed against a Full Bench decision of the Allahabad High Court whereby petition under article 226 of the Constitution of India filed by the appellant was dismissed. The appellant was appointed Traffic Manager in the transport organization of the State of Uttar Pradesh on July 21, 1948. The office of Traffic Manager was subsequently designated as Assistant General Manager and the appellant companytinued to work as such. On December 1, 1955 the appellant was companyfirmed as Assistant General Manager with effect from April 1, 1955. On July 5, 1963 the appellant was appointed Officiating General Manager in the Gorakhpur region of the Transport Department. The appellant companytinued to officiate as General Manager of Government Roadways till September 7, 1967 when he was reverted to the post of Assistant General Manager. The appellant filed writ petition No. 3167 of 1967 in the Allahabad High Court challenging the order of his reversion but the same was summarily dismissed by a Division Bench of that companyrt as per order dated September 12, 1967. Representation was made by the appellant against the, order of his reversion but the representation too was rejected by the State Government as per letter dated October 7, 1968. The writ petition which has given rise to this appeal was thereafter filed by the petitioner praying for quashing the order by which he had been reverted from the post of Officiating General Manager to that of Assistant General Manager as well as the orders whereby his representation bad been rejected. A number of grounds were set out in the petition for assailing the impugned orders, but at the hearing of the appeal only one ground has been pressed and it is only that ground with which we are companycerned. According to the appellant, the order of his reversion was by way of punishment and as it bad been made without companyplying with requirements of article 311 of the Constitution, the same was liable to be quashed. The petition was resisted by the State of Uttar Pradesh and the affidavit of Shri Bhagwan Sarup Saxena, Deputy Secretary to the Government in the Transport Department was filed in opposition to the petition. Objection was taken that the, present petition was barred because of the dismissal of the earlier petition. On merits it was stated that the appellant was merely officiating as a General Manager and had numberright to that post. According to the respondent- State, the appellant companyld be reverted to his substantive post of Assistant General Manager without the State taking any disciplinary action or assigning any reason. When the petition came up for hearing before a single Judge the learned Judge referred the matter to a larger Bench. Ultimately, the matter was heard by a Full Bench of the High Court. The learned Judges held that the present petition was barred because of the dismissal of the appellants earlier petition. On merits also, the learned Judges did number accept the companytention advanced on behalf of the appellant and held that as he was only officiating as General Manager, he did number have any lien on that post. The reversion was held to be number by way of punishment. The Government, in the opinion of the High Court, was entitled in exercise of its, power to revert a person who was officiating in a higher post. Contention was also raised that the order of reversion was violative of the principles of natural justice but this companytention was repelled. In the result the petition of the appellant was dismissed. In appeal before us Mr. Gupte on behalf of the appellant has argued. that as the previous petition No. 3167 of 1967 filed by the appellant had been dismissed summarily by means of a number-speaking order, it cannot be said that the dismissal of that petition was on merits. As such, according to the learned companynsel, the present petition was number barred because of the dismissal of the previous petition. The second companytention of Mr., Gupte is that the reversion of the appellant from the post of Officiating General Manager to that of Assistant General Manager was by way of punishment and as the same had been ordered without companyplying with article 311 of the Constitution, the order of reversion was liable to be quashed. The above companytentions have been companytroverted by Mr. Dikshit on behalf of the respondent- State. It is, in our opinion, number necessary to go into the first companytention of Mr. Gupte because we find that the order of reversion of the appellant cannot be said to have been made by way of punishment. The material part of the order of reversion reads as under OFFICE OF THE TRANSPORT COMMISSIONER UTTAR PRADESH No. 714/PAVS/67 Dated Lucknow, September 7, 1967 ORDER In pursuance of Governments instructions companytained is Deputy Secretary, Transports O. letter No. 13060 S XXXA-10/18/M/59, dated September 5, 1967 the following reversions, transfers and postings are hereby ordered Sri R. S. Sial, officiating General Manager, U.P. Government Road-ways, Aligarh, is reverted to his substantive post of Assistant General Manager, and posted at Luck- number as Assistant General Manager Rural vice Sri V. P. Gupta transferred. Perusal of the above order shows that it companytains numberadverse remarks against the appellant, number can it be said that any stigma attaches to the appellant because of that order. At the time the above order was made the substantive rank of the appellant was that of Assistant General Manager. The post of General Manager which was held by the appellant was only in an officiating capacity. The appellant had numbervested right to retain that post. In case the authorities companycerned came to the companyclusion that the appellant should number be allowed to retain the post in which he was officiating, they companyld pass an order for his reversion without companyplying with the requirements of article 311 provided the order was number by way of punishment. Appointment to a post on an officiating basis is, from the nature of employment, itself of a transitory character and in the absence of any companytract or specific rule regulating the companyditions of service to the companytrary, the implied term of such an appointment is that it is terminable at any time. The Government servant so appointed acquires numberright to the post. But if the order entails or provides for forfeiture of his pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that though, in form, the Government had purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty see Parshotam Lal Dhingra v. Union of India 1 and Union of India Anr. v. Gajendra Singh, etc. etc. 2 . Officiating and temporary Government servants are also entitled to the protection of article 311 as permanent Government servants if the Government takes action against them by meting out one of the punishments, i.e. dismissal, removal or reduction in rank see Parshotam Lal Dhingra v. Union of India, supra , Champaklal Chimanlal Shah v. Union of India 3 and Appar Apar Singh v. The State of Punjab Ors. 4 . The test for attracting article 311 2 of the Constitution is whether the misconduct or negligence is a mere motive for-the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is number companyclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the companyrt and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order see State of Bihar Ors. v. Shiva Bhikshuk Mishra 5 . In the case of State of Punjab v. Shri Sukh Rai Bahadur 6 this Court enunciated the following propositions which have to be borne in mind The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would number attract the operation of Art. 311 of the Constitution. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial. If the order visits the public servant with any evil companysequences or casts an aspersion against his 1 1958 SCR 828. 2 1972 3 SCR 660. 2 1964 5 SCR 190. 4 1971 2 SCR 890. 5 1971 2 SCR 191. 6 1968 3 SCR 234. character or integrity, it must be companysidered to be one by way of punishment, numbermatter whether he was a mere probationer or a temporary servant. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does number attract the operation of Art. 311 of the Constitution. If there be a full-scale departmental enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and companysidered, any order of termination of service made thereafter will attract the operation of the said article. Keeping in view the principles enunciated above, we have looked at the facts of the case and are number satisfied that the order of reversion of the appellant was by way of punishment. It has already been mentioned above that numberaspersion was cast on the appellant in the order of reversion and as a result of that order numberstigma attaches to his name. The appellant was merely officiating in a higher post and the impugned order had the effect of reverting him to his substantive post. The attendant circumstances to which our attention has been invited with a view to show that the order of reversion was by way of punishment are two letters dated July 12, 1967. One of these letters was addressed by the Deputy Secretary, Vigilance Department to the Director of Vigilance wherein reference was made to the report of the officers of the Intelligence and Evaluation Cell. It was requested that an open enquiry might be made into the allegations of involvement of the appellant in a matter relating to the supply of number-genuine and substandard motor parts by a Delhi dealer. In the other letter addressed to the Secretary to Uttar Pradesh Government, Transport Department a request was made by the Deputy Secretary, Vigilance Department that in case the appellant was number companyfirmed on the post of General Manager, he might be reverted since an enquiry made by the CID into the allegations of companyruption against the appellant had revealed that there was substance in those allegations. The above letters would show that the authorities companycerned came to the companyclusion that, pending the holding of an open enquiry into the charges of companyruption against the appellant, he should number be allowed to officiate in a higher post. It cannot, in our opinion, be inferred therefrom that the reversion of the appellant was by way of punishment. All that can be said is that the companytemplated enquiry into the charges of companyruption against the appellant provided the motive for the reversion of the appellant. The existence of such a motive cannot, in our opinion, vitiate the order for the reversion of the appellant. It may be taken to be well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the companytract of employment or under the statutory rule, nevertheless if a right exists, under the companytract or the rules to terminate the services the motive operating on the mind of the Government is wholly immaterial see Union of India v. R. S. Dhaba l The same rule would hold good if the order passed is number for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity. Application was filed during the pendency of the appeal on behalf of the appellant that this Court might take into account additional documents. These documents were in existence at the time the appellant filed the petition in the High Court. The petition in the High Court remained pending for more than a year. We are number impressed by the plea taken on behalf of the appellant that he companyld number trace these documents with due diligence and has been able to trace them number. The documents in question are number of such a nature as are needed to enable us to pronounce this judgment. In the circumstances, the application filed by the appellant for taking on record additional documents in appeal is rejected.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1825 of 1967. Appeal by special leave from the judgment and order dated the 18th May, 1967 of the Punjab and Haryana High Court in P.A. No. 158 of 1967. Naunit Lal- and Lalit Kohli, for the appellant P. Verma, for the respondent The Judgment of the Court was delivered by ALAGIRISWAMI, J.-The property in dispute in this appeal belonged to Wadhawa Singh, the father of the respondent. After his death in the year 1933 his widow, who succeeded to the estate, made a gift of the property in favour of her daughter, the respondent, in.April, 1933. The appellants filed a suit as reversioners to the estate of Wadhawa Singh questioning the gift. The suit was decreed and the decree was companyfirmed on appeal. After companying into force of the Hindu Succession Act on 17-6-1956 the widow again made a gift of the same lands to the respondent. She died in 1963. The appellants then filed the suit, out of which this appeal arises, for possession of the lands alleging that the second gift was void. The Trial Court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as the High Court on-second appeal. There is numberdoubt that Wadhawa Singhs widow had numberright to male a gift of the property which she inherited from her husband in 1933 and the decree obtained by the appellants, who were reversioners to her husbands estate would bind the respondent who was also a party, to that suit. The question then is-whether the-coming into force, of the Hindu succession Act and the subsequent gift made by the widow in favour of the respondent make any difference. Had number the widow made the gift to the respondent in 1933, she would have become an absolute owner of the property as a result of S. 14 of the Hindu Succession Act and the gift made by her subsequently in favour of the respondent companyld number have been questioned. But having made the gift in 1933 she was number in possession of the property inherited by her from her husband and, therefore, did number become a full owner, with the result that the subsequent gift made by her in favour of the respondent was of numbereffect. This point that unless the limited owner is in possession of the property section 14 does number apply has number been settled by decisions of this Court beyond dispute. What then is the effect of the provision of s. 8 of the Hindu Succession Act in the circumstances of this case. The Punjab High Court in its decisions in Banso v. Charan Singh AIR 1961 Punjab 45 , and Kuldip Singh v. Karnail Singh AIR 1961 Punjab 573 , where the facts were similar to the present case, has taken the view that when a widow dies after the companying into force of the Hindu Succession Act the next heir to her husband is to be determined in accordance with the law prevailing on the date of the death of the widow and number in accordance with the law prevailing at the time of the death of her husband and held that the daughter succeeded in preference to the reversioners. The Mysore High Court on the other hand in Kempiah v. Girigamma AIR 1966 Mysore 189 has held that on the death of the widow succession would be governed by the Hindu Law which was in force when the last mate holder actually died. The Patna High Court in Renuka Bala v. Aswini Kumar AIR 1961 Patna 498 was disposed to take a similar view though the case before it was companycerned with succession to the property of a female under s.15. The Madras High Court in Sampathkumari v. Lakshmi Ammal AIR 1963 Madras 50 also took the view that in such circumstances s. 8 of the Hindu Succession Act would number apply. But the case before that Court was one where two widows who had succeeded to the estate of their husband were in possession, and therefore, s. 14 was applicable. Lastly, we have the decision of this Court in Eramma v. Verrupanna 1966 2 SCR 626 In that case this Court after setting out the provisions of s. 6 of the Hindu Succession Act observed It is clear from the express language of the section that it applies only to companyarcenary property of the mate, Hindu holder who dies after the companymencement of the Act. It is manifest that the language of s. 8 must be companystrued in the companytext of s. 6 of the Act. We accordingly hold that the provisions of s. 8 of the Hindu Succession Act are number retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act s. 8 of the Act will have numberapplication. Interpreted literally this dicision would seem to accord with the decisions of all the other High Courts except the Punjab High Court. But it should be numbericed that the problem that we are faced within the present appeal and in the cases before the Punjab and Mysore High Courts did number arise before this Court on the earlier occasion. The decisions of the Madras High Court and the Patna High Court are number directly in point. In the case before this Court the two women were in possession of property whose last male holder, who had died before companying into force of the Hindu Succession Act, was their step son. They were number, therefore in legal possession of the properties of the last male holder. The question that had to be decided was whether because of the companying into force of the Hindu Succession Act they were entitled to succeed under s. 8, and the further question whether s. 14 would be attracted as they were actually in possession. It was held that as they were number legally in possession s, 14 would number apply, It was in that companytext that it was said that where a male Hindu died before the Act came into force i.e., where succession opened before the s. 8 of the Act will have numberapplication, The point that succession might open number only when the male Hindu died but also subsequently again when a limited owner who succeeds him dies was number taken into account. There was numberneed and numberoccasion to companysider such a companytingency in that case. There was the further fact that the last male holder was succeeded on his death by persons who were then. his nearest heirs and the property vested in them companyld number be divested by the Hindu Succession Act companying into force subsequently thought this fact was number adverted to in the judgment. This Court had, therefore. also numberoccasion to companysider the effect of the earlier decisions on the question as to what happens when a female limited owner, whether she is a widow, mother or daughter who succeeds the last male bolder, dies. That position may number be companysidered. It was authoritatively laid down by the Privy Council in its decision in Moniram Kolita v. Keri Kaliteni ILR 5 Calcutta 776 at 789 that According to the Hindu Law, a widow who succeeds to the estate of her husband in default of male, issue, whether she succeeds by inheritance or survivorship-as to which see the S hivagunga case 1 -does number take a mere life-estate in the property. The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest. Her estate is an anomalous one, and has been companypared to that of a tenant-in-tail. It would perhaps, be more companyrect to say that she holds an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that, until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs of the husband 2 . The succession does number open to the heirs of the husband until the termination of the widows estate. Upon the termination of that estate the property descends to those who would have been the heirs at the husband if he had lived up to and died at the moment of her death 3 . In the subsequent decision in Duni. Chand v. Anar Kali AIR 1946, PC 173 the Privy Council observed during the lifetime of the widow, the reversioners in Hindu Law have numbervested interest in the estate but have a mere spes succession is or chance of succession, which is a purely companytingent right which may or may number accrue,that the succession would number open out until the widow died, and that the person who would be the next reversioner at that time would succeed to the estate and the alteration in the rule of the Hindu Law brought about by the Act would then be in full force. 1 9 Moores I.A., 604. Id., 604 Id., 601. In the argument before their Lordships, reliance was placed upon the words dying intestate in the Act as companynoting the future tense, but their Lordships agree with the view of the Lahore High Court in 17 Lah 356 1 at p. 367, that the words are a description of the status of the deceased and have numberreference and are number intended to have any reference to the time of the death of a Hindu male. The expression merely m eans in the case of intestacy of a Hindu male. To place this interpretation on the Act is number to give a retrospective effect to its provisions, the materials point of time being the date when the ,.succession opens, namely, the death of the widow. On the position of reversioners in Hindu Law, opinions have been expressed by this Board from time to time with which the views of the learned Chief Justice in 58 All. 1041 2 mentioned above, are in agreement. It was said, for instance, that until the termination of the widows estate, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband 9 M.I.A. 539 3 at p. 604. The succession does number open to the heirs of the husband until the termination of the widows estate. Upon its termination, the property descends to those who would have been the heirs of the husband If he had lived uP to and died at the moment of her death 7 I. A. 115 4 at 154. It would be numbericed that the Privy Council interpreted the words dying intestate as merely meaning in the case of intestacy of a Hindu male and said that to place this interpretation on the Act is number to give retrospective effect to its provisions. Those are the very words found in s. 8. These may be companytrasted with the words of s. 6 where a male Hindu dies after the companymencement of this Act. Here the reference is clearly to the time of the death. In section 8 it is only to the fact of intestacy. The material point of time, as pointed out by the Privy Council, is the date when the succession opens, namely, the death of the widow. It is interesting to numbere that the Privy Council was interpreting the provisions of the Hindu Law of Inheritance Amendment Act, 1929 where the two companytrasting expressions found in the Hindu Succession Act, 1956 are number found. The case for the interpretation of the words dying intestate under the Hindu Succession Act is stronger. The words where a male Hindu dies after the companymencement of this Act in section 6 and their absence in section 8, are extremely significant. Thus two propositions follow 1 Succession opens on- the death of the limited owner. and 2 the law then in force would govern the succession. Now if this proposition is companyrect, as we hold it is, that where a female heir succeeds to an estate, the person entitled to succeed on the basis as if the last male holder had lived up to and died at the Mt. Rajpali Kunwer v. Surju Rai 58 All. 1041 . Shakuntala Devi v. Kambsalya Devi 17 Lah 356 . Katam Natchiar v. Rajah of Shiva Gunga 9 MIA 539 , Monirain Kolita v. Kerry Kolitang 7 IA 115 5 Cal 776 . death of the limited owner, succession to Wadhawa Singhs estate in the present case opened when his widow died and it would have to, be decided on the basis that Wadhawa Singh had died in 1963 when his widow died. In that case the succession to his estate would have to, be decided on the basis of s.8 of the Hindu Succession Act. The various High Courts which have held otherwise seem to have been oppre- ssed-by the feeling that this amounted to giving retrospective effect to s. 8 of the Hindu Succession Act whereas it is only prospective. As the Privy Council pointed out it means numbersuch thing. The accepted position under the Hindu Law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day. It would be unreasonable to hold that in such a circumstance the law as it existed at the time when the last male holder actually died should be given effect to. If the person who is likely to succeed at the time of the limited owners death is number, as happens very often, likely to be the person who would have succeeded if the limited owner had number intervened, there is numberhing unreasonable in holding that the law as to the person who is entitled to succeed on the limited owners death should be the law then in force and number the law in force at the time of the last full owners death. The Madras High Court thought that the decision of the Privy Council in Duni Chand v. Anar Kali supra was based upon a legal fiction and that fiction cannot be given effect to except for a limited purpose. The Mysore High Court also thought that the death referred to in section is actual death and number fictional death. In East end Dwellings Co., Ltd. v. Finsbury Borough Council 1952 A.C. 109 132 lord Asquith of Bishopstone observed . If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so,. also imagine as real the companysequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs it does number say that having done so, you must cause or permit your imagination to boggle when it companyes to the inevitable companyollaries of that state of affairs. This observation was cited with approval by this Court in Venkatachalam v. Bombay Dyeing Mfg. Co., Ltd 1959 S.C.R. If, therefore, succession opens and is to be decided on the basis of the last full owner dying on the date of death of the limited owner the inevitable companyollary is that it is only the law in force at the time of the death of the limited owner that should govern the case. To hold that the old Hindu Law applies to such a case is to allow your imagination to boggle. In the case decided by the Privy Council in Duni Chand v. Anar Kali supra if this principle had been applied the new heirs introduced by the Hindu Law of inheritance Amendment Act, 1929 companyld number have then companye in. We are number impressed with the reasoning of the Patna High Court that because the change brought about by that Act is different from the change brought about by the Hindu Succession Act a different companyclusion follows. We should companysider that if even the limited change in the area of succession effected by the Hindu Law of Inheritance Amendment Act, 1929 is to be given effect to as the law applicable on the date of the death of the limited owner, it is all the more reason why the Hindu Succession Act which makes a much more radical change in the Hindu Law should have similar application. The Mysore High Court thought that the Hindu Succession Act number being a mere declaratory Act, retrospective effect should number be given to it so as to impair existing rights and obligations. But the reversioners right being a mere spes succession is there is numberquestion of impairing existing rights by adopting the interpretation we place on section 8 apart from the fact that, as earlier pointed out, the interpretation does number amount to giving retrospective effect to section 8. of companyrse, if the property had already vested in a person under the ,old Hindu Law it cannot be divested. We must also point out that the classes of cases where such a question is likely to arise is very limited. Where a widow, mother or daughter was in possession of the estate on the companying into force of the Hindu Succession Act she would become full owner under the provisions of the S. 14 of the Act. Even if a widow was in possession of the share belonging to her in the joint family estate tinder the pro -visions of the Hindu Womens Right to property Act, 1937, she would become a full owner under s. 14. In both those cases S. 8 would have numberoperation. It is only in rare cases, like the present, that the question is likely to arise at all and we can see numberreason either in principle or on authority why the principle companysistently followed under the earlier Hindu Law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day, should number apply even after companying into force of the Hindu ,Succession Act, Mr. Naunit Lal appearing for the appellant argued that the result ,of the decision of this Court in Eramma v. Verrupanna supra is that on the death of Wadhawa Singhs widow it is the old Hindu Law that applied and therefore under the custom in force in Punjab under which a daughter was number entitled to succeed to the ancestral property of the father in preference to the reversioners should apply and the appellants are entitled to succeed. There is numberdoubt about the position under the Customary Law of Punjab before companying into force of the Hindu Succession Act. In Rattigans Digest of the Customary Law published by the University Book Agency 14th Ed. , paragraph 23 at age 132 it is stated 23. 1 A daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default - Of the heirs mentioned in the preceding paragraph and Of near male companylaterals of her father, provided that a married daughter sometimes excludes near male companylaterals, especially amongst Muhammadan tribes a where she has married a near companylateral descendant from the same companymon ancestor as her father or b where she has, with her husband companytinuously lived with her father since her marriage looking after his domestic wants, and assisting him in the management of his estate or c where being married to a companylateral of the fathers family, she has been appointed by her father as his heir. But in regard to the acquired property of her father,the daughter is preferred to companylaterals. It is on the basis of this Customary Law that the reversioners succeeded in the suit filed by them questioning the gift made by the respondents mother to her. There is numberdoubt that Rattigans work is an authoritative one on the subject of Customary Law in Punjab, This Court in Mahant Salig Ram v. Musammat Maya Devi 1955 SCR 1191 at 1196 said - Customary rights of succession of daughters as against the companylaterals of the father with reference to ancestral and number-ancestral lands are stated in paragraph 23 if Rattigans Digest of Customary Law. it is categorically stated in sub-paragraph 2 of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the companylaterals even though they are within the fourth degree. Rattigans work has been accepted by the Privy Council as a book of unquestioned authority in the Punjab. Indeed the companyrectness of this paragraph was number disputed before this Court in Gopal Singh v. Ujagar Singhi 1 . It is number number open to the respondent to show whether any of the circumstances mentioned in sub-paragraph 2 of paragraph 23 of Rattigans Digest of Customary Law is present here as the previous decision is resjudicata between the parties and in any case it has number been attempted to be shown in this case.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1817 of 1967. From the judgment and Decree dated the 21st September 1965 of the Andhra Pradesh High Court in A.S. No. 508 of 1959. R. Choudhury and Veena Khanna, for the appellants. K. Ramamurthi and J. Ramamurthi, for the respondent. The Judgment of the Court was delivered by ALAGIRISWAMI, J.-Venkanna, the father of the appellants, had a brother Ramamurti who died childless in the year 1908 leaving behind him his widow Narasimham. After Ramamurtis death a series of litigations started between Venkanna and Narasimham and it is number over yet. Venkanna filed O.S. No. 14 of 1913 against the widow in respect of acts of waste companymitted by her of Ramamurtis estate and was appointed a receiver in that suit. In that suit he got a decree against Narasimham for a sum of Rs.13,539/- as she failed to furnish security as originally decreed by the companyrt. Venkanna as receiver filed three suits on the foot of three mortgages in favour of Ramamurti. One was O. S. No. 34 of 1916. In execution of that decree item 1 of the A Schedule properties was purchased in companyrt auction. O.S. No. 443 of 1918 was filed on the, foot of another mortgage in favour of Ramamurti executed in 1904 and items 2 and 5 of the plaint schedule properties were purchased in execution of decree in that suit. These three items of properties are the subject matter of this appeal. It is unnecessary for the purpose of this appeal to refer to the third suit. Venkanna died in 1947 and Narasimham in 1951 after executing a will bequeathing in favour of her brother Venkata Sattayya all her properties. Venkata Sattayya filed the suit, out of which this appeal arises, for possession of the properties bequeathed to him under the will and for mesne profits. The Subordinate Judge who tried the suit held that items 1, 2 and 5 become accretions to the main estate of Ramamurti and therefore the plaintiff was entitled only to an account of the income from those properties till the death of Venkanna. The appeal against the Subordinate Judges judgment came up for hearing before Justice Satyanarayana Raju and Justice Venkatesam of the Andhra Pradesh High Court. The learned Judges called for a finding with regard to the interest on the two mortgages in execution of the decrees in which items 1, 2 and 5 had been purchased, relating to he period before Ramamurtis death and the period after Ramamurtis death. After that finding was received they allowed the appeal in part and held that the plaintiff would be entitled to a 19/34th share of item 1, and 12/23rd share of items 2 and 5. This appeal is filed in pursuance of a certificate granted by the High Court. Mr. Ramasesneya Chaudhri appearing on behalf of the appellants raised four points which we shall deal with seriatim. The learned Judges of the High Court companymitted an error in companyfining the appeal after receipt of the finding from the Subordinate Judges companyrt only to the question of the share, which the appellants ,and the respondent were entitled to, based on the calculation of the interest due on the mortgages before and after the death of Ramamurti. His companytention was that as the High Court had merely framed issues and referred them for trial to the companyrt of first instance under Order XLI Rule 25 of the Code of Civil Procedure and number remanded the whole case under Order XII Rule 23, they should have heard the whole appeal and number companyfined the hearing merely to the points on which the finding was called for. We think that he is right in this companytention. Before the High Court the learned advocate for the appellants had companytended that Narasimham owed to the estate of Ramamurti a sum of Rs.14,639/- and that when the decree was sought to be executed by Venkanna, Narasimham claimed that the account due to her by way of interest under the three mortgage bonds should be set off and that the execution companyld proceed only for the balance, that the set off claimed by Narasimham was actually allowed and that therefore she would number be entitled to any share in the properties purchased in execution of the decrees obtained on the foot of the mortgage bonds, in lieu of the interest claimed. The learned Judges disallowed him from raising that question on the ground that it was number raised or argued at the time when the finding was called for on the issues framed by them, and that if it had been raised and accepted there would have been numberneed to call for a finding or at any rate the finding called for would have been different, and that the argument of the learned companynsel impugned the companyrectness of the companyclusions reached by the Court on the basis of which the findings were called for. We companysider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is number disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the companyrt of first instance. We find the same view taken in Gopi Nath Shukul Sat Narain Shukul AIR 1923 Allahabad 384 where it was held that Where an appellate Court at the first hearing does number decide the case but merely remits certain specific issues, it is open to the Court before which the case ultimately companyes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order. It was also held that An order remanding issues under Rule 25 is number a final order. No appeal lies against it. The responsibility for the decree ultimately passed is entirely that of the Court before which the case companyes after remand. It is quite otherwise with an order of remand passed under order 41, Rule 23, for this is an order which does finally determine, subject to any right of appeal, the issues which it decides. A similar view was taken by the Nagpur High Court in Sultan Beg Al. chunilal AIR 1918 Nagpur 193 . In Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo XXXII 1927-28 Calcutta Weekly Notes 1233 it was sail An order of remand made under Or. 41, r. 25 decides numberhing. The Court, either the same or as differently companystituted, has jurisdiction, while finally hearing the appeal, to go back on the reasons given or views expressed in the order of remand and must do so when those appear erroneous. We are, therefore, of opinion that the High Court should have gone into this question and decided the matter, for if it turns out that the interest due on the two mortgages subsequent to the death of Ramamurti had been set off against the amount due to Venkanna in the decree obtained by him against Narasimham in O.S. 14 of 1913 there can be numberquestion of Narasimham being entitled to any share in the properties purchased in companyrt auction in execution of the decree in the two mortgages and her brother getting those properties by virtue of the will executed by her in his favour. In the Trial Court the plaintiffs companytention was that these properties were purchased out of the accumulated interest on the mortgages and the defendants asserted that they were purchased out of the principal. That Court dismissed the plaintiffs claim on the ground that there was numberproof of his allegations. It was before the High Court apparently that the attempt to split the interest due on the mortgages into two portions, one before Ramamurtis death and the other after, was made and accepted by the High Court. It was on that basis that the High Court called for findings. After the findings were received the appellants raised the question about the set-off. They raised the ,question before the Trial Court when it was companysidering the appor- tionment of the interest but that Court felt it had numberpower to go into that question in view of the terms of the High Courts order calling for the finding. And the High Court refused to allow the appellants to raise that question, which as we have just held was number companyrect. The decree in Venkannas suit appears to have directed payment of interest to Narasimham Para III c of the plaint and judgment of the High Court, page 102 of the paper book. We find that Venkanna had submitted accounts to the companyrt in his capacity as receiver till 1940. We have also evidence in this case that even When Venkanna died a sum of Rs.4,486/- was due.to him on the foot of the decree he obtained against Narasimham. It is, therefore, highly unlikely that any amount due to Narasimham was number given credit to. We find from the finding submitted by the Trial Court Page 86 of the paper book Narasimham claimed that the amounts due to her should be set off and execution should proceed only for the balance and from Ex. A-7 it would appear that the claim was allowed. It seems therefore unlikely, taking the direction in the decree and the order evidenced by Ex. A-7 into account, that the interest due to Narasimham, was number one of the items set off. We do number want to express any final opinion on the point but are of opinion that in the circumstances the High Court should companysider this aspect of the matter and dispose of the appeal afresh. Out of about 16 acres companyprised in item 1, 5 acres had been lost in revenue sale because of Narasimhams failure to pay the land revenue on those lands. It was urged before the High Court and it has been urged again before us that in allotting to the appellants a share of items 1, 2 and 5 these 5 acre-, which were lost to the estate as a result of Narasimhams negligence should be debited against her share in them. We find ourselves unable to accept this companytention just as the High Court, though they gave numberreason for their companyclusion. Neither on principle number on authority companyld the companytention on behalf of the appellants be supported. A Hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is number guilty of willful waste, she is answerable to numberone. Her estate is number a life- estate, because in certain circumstances she can give an absolute and companyplete title. Nor is it in any sense an estate held in trust for reversions. Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to numberone. She fully represents the estate, and, so long as she is alive, numberone has any vested interests in the succession. The limitations upon her estate are the very substance of its nature and number merely imposed upon her for the benefit of reversioners. She is in numbersense a trustee for those who may companye after her. She is number bound to save the income, number to invest the principal. If she makes savings, she can give them away as she likes. During her lifetime she represents the whole in- heritance and a decision in a suit by or against the widow as representing the estate is binding on the reversionary heirs. It is the death of the female owner that opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility or sues successions. It cannot be predicted who would be the nearest reversioner at the time of her death. It is, therefore, impossible for a reversioner to companytend that for any loss which the estate might have sustained clue to the negligence on the part of the widow he should be companypensated from out of the widows separate properties. He is entitled to get only the property left on the date of the death of the widow. The widow companyld have, during her lifetime, for necessity, including her maintenance alienated the whole estate. The reversioners right to institute a suit to prevent waste is a different matter. If it companyld have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of willful waste if would have been a different matter. It would still have been necessary for the nevermore to have instituted a suit on that basis. It is doubtful whether such a suit can be instituted after her death. In any case the necessary averments are number available in this suit. We are, therefore, unable to accept this companytention Another point urged before the High Court as well as before us was that the companyt incurred by Venkanna in the suit and in the execution proceedings should have been taken into account in allocating items 1, 2 and 5 between the appellants and the respondent. The High Court took the view that as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/- as the amount due on settlement of account, and it was peon to Venkanna to realise the amount against the estate of Ramamurti in execution of the decree, it is number number open to the appellants to claim that these should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti. We agree with this view. Incidentally it should be numbericed that the companyclusion of the High Court on this point would seem to point to the same companyclusion in respect of the first point. Lastly, it was argued that Narasimham, the widow, had treated this property as accretion to the husbands estate and therefore the appellants are entitled to the whole of the property. The facts on the basis of which this companytention is urged are When Narasimhams life interest in the estate was sold in E.P. No. 93 of 1927 filed by Venkanna she did number question the legality of the sale on the ground that her interest in the property was number a life interest but was a full interest. In the order in E.A. 624 of 1935 passed by the Subordinate Judge, Visakhapatnam the widow treated items 1, 2 and 5 as part of the estate of her husband and she had also asserted therein that she had a right to enjoy the same as representative of his estate. Life interest in the A-Schedule properties was old in E.P. 28 of 1940 in execution of the decree in O.S. 14 of 1913 and the widow did number object to the sale on the ground that what was being sought to be sold was a life interest but that she was entitled to full interest. We do number think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husbands estate. As observed by the Madras High Court in Akkanna v. Venkayya I.L.R. 1902 25 Mad. 351 the acquirer of property presumably intends to retain dominion over it and in the case of a Hindu widow the presumption is numbere the less so when the fund with which the property is acquired is one which, though derived from her husbands property, was at her absolute disposal. In the case of property inherited from the husband, it is number by reason of her intention but by reason of the limited nature of a widows estate under the Hindu Law, that she has only a limited power of disposition. But her absolute power of disposition over the income derived from such limited estate being number fully recognised, it is only reasonable that, in the absence of an indication of her intention to the companytrary, she must be presumed to retain the same companytrol over the investment of such income. The mere fact that properties thus acquired by her are managed and en- joyed by her without any distinction, along with properties inherited from her husband, can in numberway effect this presumption. She is the sole and separate owner of the two sets of properties so long as she enjoys the same, and is absolutely entitled to the income derived from both sets of properties. The fact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did number object to it and assert that she had full interest does number affect this question. It was to her advantage to keep quiet. She was number there by estopped from companytending that she had an absolute interest in the properties. It should, more over, be remembered that the question that the items 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husbands estate and the widow in that property was really a later development. Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier. The widow was all along doing everything to prevent her husbands reversioners getting anything from the estate. She had transferred quite a good part of it to her brother, which was what enabled the reversioner to file the suit against her for acts of waste. She exhibited a very clear intention that whatever she possessed should go to her brother. There is absolutely numberroom on the facts of this case to hold that she exhibited the least intention to treat the income from the husbands estate as an accretion to that estate. In the result the appeal is allowed and the judgment of the High Court set aside. The High Court will dispose of the appeal afresh. The companyts of this appeal will abide and be provided in the fresh decree to be passed by the High Court. M.P. No.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 213 of 1970. Appeal by special leave from the judgment and order dated the 17th June, 1970 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No.258 of 1970. Harbans Singh, for the appellant. Nuruddin Ahmed and U. P. Singh, for the respondents. The Judgment of the Court was delivered by BEG, J. The State of Panjab ha companytained special leave to appeal against the judgment of the High Court of Punjab and Haryana, acquitting the two respondents from charges under Sections 302 and 302/34 Indian Penal Code and under Sections 307/34 Indian. Penal Code. The Trial Court had companyvicted the respondents under each of these two sections and sentenced Hari Singh to death under Section 302 Indian Penal Code and Gian Singh to life imprisonment under sections 302/34 I.P.C., and it had sentenced both to six years rigorous imprisonment and to pay a fine of Rs. 2,000/-, and, in default of payment of fine, to undergo further rigorous imprisonment for two years under Sections 307/34 I.P.C. The occurrence which gave rise to the prosecution of the two respondents together with two others, Milkiat Singh and Dalip Singh, who were acquitted by the Trial Court, took place during the night between 18th and 19th June, 1969. The victims, Gian Singh, deceased, and his nephew, Zora Singh, P.W. 3, cultivated lands jointly with Bachan Singh, W. 5, his son Mukhtiar Singh, his two brothers Gian Singh and Sarwan Singh, and, Surjit Singh, P.W. 4, and Jagjit Singh, the brothers of Zora Singh and sons of Sarwan Singh. All of them also lived together in village Dhandri Kalan. The respondents and the acquitted accused persons are brothers who also lived in village Dhandri Kalan in District Ludhiana. It is said that there had been a fight between Hari Singh, respondent, and Gian Singh deceased in 1968 which had been settled by the Panchayat. In 1969, sometime before the occurrence, another incident is said to have taken place. Jagjit Singh and Mukhtiar Singh, by show of force, were said to have carried away some toori in a cart to their house against the wishes of Hari Singh, respondent, and another person in his companypany. Un doubtedly, the motive disclosed was number be strong enough for a murderous assault of a rather brutal kind on Gian Singh and Zora Singh. This, however, is immaterial if the alleged eye-witnesses of the occurrence companyld be relied upon to establish the prosecution case. The whole question before the Courts was whether the three alleged eye witnesses, Zora Singh, P.W. 3, and Surjit Singh, P.W. 4, and Bachan Singh, P.W. 5, who are related to each other and the victims, as stated above companyld be relied upon, when companyroborated by other facts and circumstances which may appear in the case, to sustain the companyviction, The prosecution case was that Gian Singh and Zora Singh had gone to their field for watering their sugarcane crop in it on the evening of 18th June, 1969. At about 9 p.m. Bachan Singh, P.W. 5, and Surjit Singh, P.W. 4, are said to have carried the meals for Gian, Singh and Zora Singh, who were at their field situated about 100 karams nearly 100 paces away from their tubewell, which was, as is usual, lit up by electric light. After that, Gian Singh and Zora Singh went to sleep a few feet from each other at their tubewell while Bachan Singh and Surjit Singh are said to have stayed on at the sugarcane field nearby. At about mid night, Zora Singh is said to have got up to urinate, and to have just laid himself down on his company after urinating. when he saw the respondents and Milkiat Singh and Dalip Singh Arrive. with their weapons. Hari Singh is said to have struck his kirpan on the neck of Gian Singh, deceased, and Milkiat Singh is said to have struck Zora Singh on the right arm with his Gandasa, whereupon Zora Singh raised an alarm. All the four assailants then gave blows to the deceased and Zora Singh who had cried out Marditta-Marditta. Bachan Singh, P.W. 4, and Surjit Singh, P.W. 4, rushed to their, aid and alleged having seen the attack and the assailants running away. They found Zora Singh unconscious when they came near him. Gian Singh and Zora Singh were removed to a Hospital in Ludhiana, where Gian Singh died at 5.45 a.m. The companydition of Gian Singh, which was number such as to enable him to make a dying declaration, was described as follows P. was number recordable. Pulse 60/mt. fuble, unconscious, Gasping cynotic. Pupils companystricted, Reacting Slugishly to light. There was 8x4 wound on the left side of the neck cutting deep to the muscles. The trachea was cut almost through and through and be was breathing through the hole of the trachea. Hyoid bone was lying exposed in the wound. Could number feel the left carotid artery. No bleeding was present when patient was brought to the hospital. Zora Singh who survived had the following injuries An incised wound 3x1/2x2-1/2 on the inner side of left hand and was cutting the 5th and 4th matacarpals companypletely. Incised wound 1/2x 1/6x flesh deep on the inner side of left wrist. Incised wound. 5 x 1 x 2 deep on the outer side of left hand and was chopping off the thumb companypletely from the hand. Incised wound 6x1/4x flesh deep back of left forearm lower part. Incised wound 4 x 1 x 2 deep on the right side of the face and the middle of the lower part of the numbere and was cutting it and the right side of the upper jaw partially. Inside wound 3 X 1/2X l-1/2 deep on the upper part of the back of right side of the neck and was cutting the, spine bone partially. Incised wound 4x 1x 3 deep on the back of right elbow and was cutting the ulna bone companypletely and the forearm was hang ing just with a flesh. A First Information Report of this occurrence was lodged at 5.15 a.m. at Police Station Sadar, Ludhiana, at a distance of 7 miles from village Dhandri Kalan, disclosing offences punishable under Sections 307 and 326 Indian Penal Code only as Gian Singh was still alive, at that time. It was stated in the F.I.R. that the respondents were recognised and that two other unknown assailants, who were young Sikhs, companyld be identified if produced before the witnesses. Surjit Singh, P.W. 4, the maker of the F.I.R., upon cross- examination denied that he had been tutored to state that he companyld number identify the two of the assailants as they had their backs towards him. He had stated in the F.I.R. that they were youngmen although Milkiat Singh, aged 53, and Dalip Singh, aged 46, years were number so young. He had also stated there that he companyld identify the two youngmen thereby implying that he had seen them properly. He had stated in his evidence that one or two bighas of sugarcane can be irrigated in an hour by their Tubewell. Watering was said to have companymenced at p.m. and Zora Singh, P.W. 3, had stated that only 4 bighas of the field had to be watered. The High Court, therefore, did number think it likely that either Bachan Singh or Surjit Singh would still remain at the Sugarcane field or be awake at the time when the occurrence took place. Moreover, the High Court thought that both Bachan Singh and Surjit Singh were too far away, at abount 100 karams, to be able to reach in time to see the occurrence. Bachan Singh, P.W.5, had supported the statement of Surjit Singh, P.W.4, that he ran up to help the attacked persons after hearing Zora Singh Shouting Marditta-Marditta. He said that he saw the assailants from a distance of 15 karams. He also said that Hari Singh was using his kirpan to attack and that the other assailants had used their gandasas. On cross-examination, this witness also stated that he companyld number recognise the companypanions of Hari Singh and Gian Singh as they had their backs towards him, although it was proved that he had stated before the Police that the unidentified persons were young Sikhs with Gandasas whom he companyld identify if produced before him. The High Court had found some difficulty in getting over the statement of Zora Singh, P.W. 3. It had observed that Zora Singh, aged only about 16 years, would have tried to run away as soon as he saw four assailants by electric light attacking Gian Singh only at a distance of 10 feet, if he was really awake. It had also opened that he would have cried out earlier-than the moment of time when he received the injury on his right arm if he was actually awake when the assault on Gian Singh, deceased, took place. It was number disposed to rely upon the statement of Zora Singh that he was lying awake because he had got up to urinate 5 minutes before the occurrence as this appeared to it to be an improvement upon his previous statement. Zora Singh, on cross-examination, had explained that he had number stated this earlier as he was number questioned about it. The High Court had doubted the veracity of Zora Singh because he disclaimed knowledge that Milkiat Singh and Dalip Singh were employed in the Air Force although their fields adjoined his own fields. The High Court thought that it was likely that Zora Singh would have become unconscious after receiving injuries before he companyld recognise his assailants. The High Court had also attached importance to the fact that numberspecial report of the occurrence was proved to have been sent to a Magistrate. It has companysidered the explanation that this was due to the fact that the F.I.R. disclosed only offences punishable under Sections 307 and 326 I.P.C. to be insuffi- cient to explain this omission. After relying upon the observations of this Court in Sarwan Singh Rattan Singh Vs. State of Punjab 1 that the prcsecution must traverse the whole gap between what may be true and what must be true before a companyviction companyld be recorded in a criminal case, the High Court had given the respondents the benefit of doubt and acquitted them. The Trial Court, on the other hand, which had the additional advantage of seeing the witnesses depose in the witness box, was impressed by the evidence of the, three alleged eye witnesses and had companyvicted the respondents. It had number relied upon the alleged recoveries by Hardit Singh, Sub- Inspector, P.W.8, of a kirpan on 28th June, 1969, from a straw-bin at a tube well at the instance of Hari Singh and a gandasa on the roof of a tubewell at the instance of Gian Singh. Both the weapons were proved to be stained with human blood. As the recovery was shown to have taken place 4 days after the arrest of the respondents, the Trial Court thought that it must have resulted from the use of 3rd degree methods during the interrogation of the accused. The Trial Court had also companysidered it unsafe to rely upon the sole testimony the Investigating Officer on this question when other witnesses of the. recovery were number produced for some unexplained reason. The Trial Court, had, however, relied upon the circumstance that the respondents companyld number be found when searched in their village and companyld only be arrested several days later. The question raised before us is should we, even if we do number entirely agree with the reasoning of the High Court, substitute our own views and reverse an order of acquittal by it ? It is enough to refer to the State of Madras Vs. A. Vaidyanatha Iyer 2 to point out that this Courts power of interference under Article 136 of the Constitution with Judgments of acquittal is number exercised on principles which are different from those adopted by it in dealing with companyvictions. It is a principle, companymon to all criminal appeals by special leave, that this Court will retrain from substituting its own views about the appreciation of evidence if the judgment of the High Court is based on one of two alternative views each of which was reasonably open to the High Court to accept. If, however, the High Courts approach is vitiated by some basically errcneous apparent assumption or it adopts reasoning which, on the face of it, is unsound, it may- become the duty of this Court, to prevent a miscarriage of justice, to interfere with an order whether it be of companyviction or of acquittal. In the case before us, the Trial Court, which had the additional advantage of seeing the witnesses depose in the witness box, had accepted the testimony of the three eye witnesses, despite the fact that they are relations of the victims. It has been repeatedly held by this Court that the mere fact that a witness is related to the victim companyld number be a good enough ground for rejecting his testimony although it may be a ground for scrutinizing his evidence more critically and carefully where facts and circumstances disclose that only relations have been produced and others, presumably independent witnesses, who were available, were number produced. In the. instant case, there is numberevidence that anyone 2 1958 SCR 580 AIR 1957 SC 637. besides the witnesses produced had actually witnessed the attack upon Gian Singh and Zora Singh. The High Courts reasons for doubting the companyrectness of some of the statements of Surjit Singh, P.W. 4, and Bachan Singh, P.W. 5, as, for instance, that they had actually failed to recognise Milkiat Singh and Dalip Singh because they had their backs towards them when these very witnesses had asserted before the police that the two other parti- cipants were youngmen who companyld be identified by them, if produced before them, are quite sound and reasonable. If, however, a false implication was really intended and the I.R. was the result of some companyspiracy, there was numberreason to omit the names, of Milkiat Singh and Dalip Singh, the two brothers of the respondents, from the F.I.R. The prosecution had an explanation for this omission. This was that Zora Singh, who had seen and recognised these two accused persons had become unconscious before their names companyld be companymunicated to Surjit Singh. The High Court had itself accepted the evidence that Zora Singh had actually become unconscious. In fact, it had gone to the extent of holding, that he must have become unconscious even before he recognised any of the assailants. On the last mentioned point, we certainly do number find it, possible to accept the view adopted by the High Court. It is in dealing with the evidence of Zora Singh, P.W. 3, that the High Court seems to us to have adopted a patently erroneous approach and to have given grounds which do number appear to us to be reasonably sustainable. The High Court seems to have assumed that Zora Singh must have invented the story that he had got up to, urinate so that he may pose as an eye witness of the occurrence. The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. The High Court, reversing this approach, seems to us to have assumed that witnesses are untruthful unless it is proved that they are telling the truth. Witnesses, solemnly deposing on oath in the witness box during a trial upon a grave charge of murder, must be presumed to act with a full sense of responsibility of the companysequences ,of what they state. It may be that what they say is so very unlikely or unnatural or unreasonable that it is safer number to act upon it or even to disbelieve them. The High Court bad number doubt tried to show that this was the position with regard to the whole of the testimony of Zora .Singh. But, we do number think that it was successful. It is true that the statement of a witness that he had got up to urinate just before a murder was companymitted, so that he companyld witness the murder, looks suspicious. But, the statement is number, for that reason necessarily untrue. Again, if, as , the High Court believed, both Gian Singh and Zora Singh were attacked almost simultaneously, its view, that Zora Singh would have got up and Tun away or shouted earlier than he was attacked had he been really awake, is unreasonable. Let us, however, assume, for the sake of argument, that the High Courts guess is companyrect that Zora Singh was actually asleep when the attack upon Gian Singh and the Zora, Singh. began. Even then it would be quite unreasonable to and hold, as. the, High Court. did that Zora Singh must have become unconscious before he companyld see and recognise his assailants. There was the fight of the electricity at the tubewell where Zora Singh lay on. his bed whether asleep or awake. Zora Singh must have necessarily got up at, least when he was, struck on the arm. He companyld number have avoided seeing and then recognising his assailants, whom he knew very well before he became unconscious. His account, that he was struck first on the arm and then hecried out, is companyroborated by the fact that other injuries indicate that. his face and jaw were aimed at and struck probably in an attempt. to silence him. The injuries were of such a nature that he must have been awakened, shouted, writhed in pain., and seen the assailants before he became unconscious. The absolutely unacceptable guess work indulged in by the High Court, that Zora Singh must have become unconscious before he companyld see and recognise his assailants, is utterly unsupported by evidence and seems very unreasonable. Even if other parts of his evidence are, for some reason, number accepted, Zora Singhs statement that he saw and recognised assailants, before, he became unconscious cannot be held to be capable of arousing doubts. There is numberevidence that the assailants companyered him up with a blanket or a cloth, so as to disable him from seeing them, before. attacking him. If we accept this part of the evidence of Zora Singh, as we think we must, since it is so strongly companyroborated by the medical evidence and there is numberhing on record which companyflicts with this inference, it becomes evident that he must have shouted for help. If that be so, it is difficult to understand why Surjit Singh and Bachan Singh would, number go to his rescue as they naturally would on hearing shouts even if they were at some distance. We think that, judging from the number of injuries on the two victims, the incident must have lasted long enough to enable Surjit Singh, P.W. 4, and Bachan Singh, P.W. 5, to rush towards the scene of occurrence and to see and recognise at least the escaping assailants. It is possible that they may have exaggerated in stating that they actually saw the attack on both the victims. But that would number be enough to discard the whole of their testimony on the ground that they were number likely to be present at their field nearby at the time of the attack. There is numberevidence to suggest that they were elsewhere at the time. Indeed, the fact that they arranged for the transport of the victims to a hospital in Ludhiana and took them there before day-break shows that they were there to be able to do all this. We do number think that the reasons given for suspecting their presence near enough from the tubewell. at their sugarcane field, are strong enough to make it incredible that they should companye to the help of the two attacked persons and to see at least the escaping assailants out of whom they recognised two. As human testimony, resulting from widely different powers of observation and description, is necessarily faulty and even truthfull witnesses number infrequently exaggerate or imagine or tell half truths. the Courts must try to extract and separate the hard companye of truth from the whole evidence. This is what is meant by the proverbial saying that Courts must separate the chaff from the grain. If, after companysidering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt the Courts are bound. to give effect to the result flowing from it and number throw it overboard on purely hypothetical and companyjectural grounds. In so far as the grounds given for rejecting the evidence of Zora Singh appear to us to be patently unreasonable and highly companyjectural, we think that the case before us calls for interference by this Court. That evidence, as we have already pointed out, is companyroborated by medical evidence as well as by the statements of Surjit Singh and Bachan Singh. Hence, although, the statements of Bachan Singh and Surjit Singh, taken by themselves, may number have been enough to warrant the companyviction of the respondents, yet, when the evidence of Zora Singh, strongly companyroborated by medical evidence is there, we think that the statements of Surjit Singh Bachan Singh companyld be used to support the companyclusion thus reached without going to the extent of holding that Surjit Singh and Bachan Singh must be wholly believed before their evidence companyld serve any useful purpose at all as the High Court seems to have erroneously thought. Indeed, it is very difficult to find a witness whose evidence is so flawless that it has to be wholly, companypletely and, unqualifiedly accepted. We think that the High Court had, without saying so, ignored the principle repeatedly laid down by this Court in appraising evidence, that Courts do number, in this companyntry, act on the maxim falsus in uno falsus in omnibus. In companysidering the effect of each allegation proved to be incorrect or the likelihood of its being true or untrue, we have to view it in the light of a whole setting or companycatenation of facts in each particular case. There may be reasons for doubting the, worth of the evidence of recovery from the respondents, but, that does number mean that the evidence given by Hardit Singh, S.I., P.W.8, relating to recoveries, is necessarily false so that the investigation itself is tainted. Similarly, the more fact that, after the lodging of the F.I.R., the necessary precaution of sending the special report to a Magistrate speedily was number shown by the prosecution to have been observed does number mean that the whole, prosecution case is false or unacceptable. On the other hand, the fact that the I.R. discloses only offences punishable under Sections 307 and 326 I.P.C. indicates that it must have been lodged before,6. a.m. In any event, before the Inquest report on the morning of 19-6-1969, the police had before it the. prosecution version companytained in the F.I.R. to which a reference is made in the Inquest report. The statements of Bachan Singh and Surjit Singh were also recorded before that. Therefore, the alleged suspected delay in the lodging of the F.I.R. or in sending a special report to a Magistrate do number, on the facts of this case, indicate an attempt to companyspire and fabricate. Indeed, if this was so, as already observed, one would have expected to find the names of Milkiat Singh and Dalip Singh also in the F.I.R. instead of a description given of the unidentified youngmen which did number fit these two acquitted accused persons who were, therefore, given the benefit of doubt. This feature of the evidence indicates that the names of these two accused were introduced in the case only after Zora Singh had regained companysciousness and revealed them as the pro- secution alleged. Hence, it is likely that the F.I.R. must have been made soon enough to companytain the earliest version before Zora Singhs version companyld get into it after he regained companysciouness. We think that the High Court had missed the companye of truth in the case and had unjustifiably rejected the prosecution case which was strong enough on the statement of Zora Singh alone companyroborated by medical evidence. It had, we think, made the error of throwing away the prosecution case, without attempting to separate the chaff from the grain on the wrong assumption that the two were inseparable here. We, therefore, set aside the order of acquittal by the High Court and companyvict the respondents for the offences with which they were charged. As, however, the occurrence took place several years ago, we refrain from awarding a death sentence in this case. We sentence both Hari Singh respondent u s 302 I.P.C. and Gian Singh respondent sons of Arjan Singh to life imprisonment under Sections 302/34 P.C. We also sentence each of them to six years rigorous imprisonment and to pay a fine of Rs. 2,000/- each, and, in default of payment of fine, to rigorous imprisonment for a further period of two years under Sections 307/34 I.P.C.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1838 of 1967. Appeal by special leave from the Judgment and Order dated the 23rd May, 1967 of the Calcutta High Court in Civil Rule No. 11 19 of 1962. Purshottam Chatterjee and Ganpat Rai for the appellant. K. Chakrabarty and G. S. Chatterjee for the respondent. The Judgment of the Court was delivered by ALAGIRSWAMI, J. Gobinda Prasad Pandit, the founder of the Searsole Raj Estate died in the year 1861 leaving a will. After his death in a suit between his widow and certain other claimants regarding the title to the estate it was held that a charge had been created upon the entire estate for the maintenance and seva puja of the family deity and for the performance of certain specified charitable purposes. In 1928 the appellant, his brother and their father who succeeded to the estate executed an arpannamah in favour of the family deity reiterating the charge created by Gobinda Prasad Pandit. On October 12, 1953 the appellant executed a document whereby a half share in a part of the estate was set apart exclusively for the purpose for which the charge had been created earlier, and the rest of the property was to be treated as absolutely free and absolved from the claims in respect of the religious and charitable purposes. The appellant appointed himself as the trustee. The West Bengal Estates Acquisition Act, 1953 came into force on 12-2-1954. Under that Act, the main provisions of which, in so far as they are relevant for the purposes of this appeal, we shall refer to later, the estate vested in the State on 14-4-1955. Subsequently the Act was amended by introducing section 5A therein with retrospective effect from 5-5-1953, the date prior to that on which the bill, which later became the West Bengal Estates Acquisition Act, was published in the Gazette. After an enquiry the Settlement Officer held that the document executed by the appellant on October 12, 1953 was number bona fide. The appeal against this decision to the Special Judge failed and so also a petition filed before the High Court under Art. 227 of the Constitution. This appeal has been filed in pursuance of the special leave granted by this Court. We shall number set forth the provisions of the Act in brief Under S. 4 1 of the Act a numberification may be issued by the State Government that all estates and the rights of every intermediary in each such estate shall vest in the State free from all encumbrances. Under S. 5 1 upon the publication of such a numberification the estates and the rights of intermediaries in the estates shall vest in the State free from all encumbrances. It may be stated even at this stage that the appellant is an intermediary. Under S. 5A the State Government 6-M45Sup.C.I./75 may enquire into any case of transfer of any land by an intermediary made between the 5th day of May, 1953 and the date of vesting, if in its opinion there are prima facie reasons for believing that such transfer was number bonafide, and if after such an enquiry the State Government finds that singh transfer wag number bona fide, it shall make an order to that effect and thereupon the transfer shall stand cancelled as from the date on which it was made or purported to have been made. Against an order passed by the State Government an appeal lies to a Special Judge. Sub-section 7 of. this section lays down that a transfer shall be held to be number bona fide if it was made principally or partially with the object of increasing the amount of laid which a person may retain, or principally or partially with the object of increasing the amount of companypensation payable. Transfer means a transfer by sale, mortgage, lease, exchange or gift. Under section 6 an intermediary is entitled to retain various categories of land. of which it is only necessary to refer to the category mentioned in section 6 1 i which reads where the intermediary is a companyporation or an institution established exclusively for a religious or a charitable purpose or both, or is a person holding under a trust or an endowment or legal obligation exclusively, for a purpose which is charitable or religious or both-land held in khas by such companyporation or institution, or person, for such purpose including land held by any person, number being a tenant, by leave or license of such companyporation or institution or person Section 16 provides for the calculation of the gross income and the net income of an intermediary. Amends the items which have to be deducted from the gross income in order to Arrive at the net income is the on.-. under section 16 1 b vi when reads as follows any sum payable by such intermediary out of the income of an estate or interest which has vested in the State under section 5, to a companyporation or an institution established exclusively for a religious or a charitable purpose or both or to a person holding under a trust or an endowment or other legal obligation exclusively for a purpose of which is charitable or religious or both, where such estate or interest was held partly for a religious or charitable purpose and partly for a purpose other than religious or charitable. Section 17 provides for the amount of the amount of the income sensation payable to intermediaries. The Settlement Officer held that a charitable trust is ex- hypothesi a voluntary transfer by way of gift and it has been held that one of the various modes of giving property for religious purpose is to give it to the trustees and therefore it was a transfer. Before the Special Judge it was argued that there was numbertransfer at all inasmuch as it was number an act of companyveying the property from one living person to another, and that it was number at all a gift since there was numbertransfer The learned Special Judge rejected that companytention. Similar arguments were repeated before the High Court which also rejected that companytention. We are of opinion that the High Court as well as the authorities below were right in this companyclusion. The definition of the term transfer does number attract all the definitions. given in the Transfer of Property Act for the transactions which are defined as transfers in the Act. If the substance of the transaction by which properties are endowed in favour of a deity is looked into we do number see why it cannot be called a gift. In Champa Bibi v. Panchiram Nahata AIR 1963 Calcutta 551 a Division Bench of the Calcutta High Court held that a transfer of property by dedication to a Hindu deity is a transfer by gift within the meaning of s. 5A 7 iii of the West Bengal Estates Acquisition Act. As regards the second point whether the transfer was bona fide or number the Settlement Officer did number apply his mind to the provisions of the Act which lay down what transfers would be held to be number bona fide. He, did number companysider whether the transfer was made principally or partially with the object of increasing the amount of land which the transferor may retain or increasing the amount of companypensation payable to him. He only took into companysideration the fact that certain lands were transferred to the appellants son and his wife and held that it was clear from them that the deed was made principally or partially with the object of increasing the amount of land which the appellant companyld retain, and also, with the object of increasing the amount of companypensation payable under the Act. He did number go into the facts of the case but merely repeated the words of the section. It is found from that order itself that the total expenditure on the seva and charitable purposes was Rs. 30,000/- and the appellants share therein would be Rs.15,000/-. It is also found that the income of the land absolutely transferred under the deed of October 12, 1953 is Rs. 23,000/-. But for the execution of the document the appellant would have been in possession of the whole of the estate with only a charge amounting to Rs. 15,000/-. As a result of the document land yielding a larger income was transferred absolutely to the deity. The Settlement Officer should, therefore, have given his reasons as to how he arrived the companyclusion that the transfer would enable the appellant to retain a larger extent of land or entitle him to a larger amount of companypensation. The Special Judge merely companysidered that it was difficult to understand how the appellant who inherited the moiety share of the estate subject to the charge was legally companypetent to free a portion of the estate from the charge and companyfine the charge to only a portion of the estate. But that does number affect the question whether the transfer was bona fide in terms of the Act. He took the view that the Act companysidered alongwith the fact that the appellant transferred his interest in the remaining portion of the estate to his son and wife clearly established want of bona fides on the part of the appellant, and that it was done to defeat the purpose of legislation. It would be numbericed that he has also number gone into the question whether the impugned transaction enables the appellant to retain a larger extent of land or claim a larger amount of companypensation. The High Court did number go into this question at all. We do number companysider that the facts of this case raise any question under section 6 1 i at all. That can arise only with regard to the situation as it existed before the execution of the impugned document and under the unamended Act. The earlier document of 1928 as well as the prior decree would number bring the lands under this section at all, as was held by this Court in Fazlul Rabbi Pradhan v. State of West Bengal 1965 3 SCR 307. In the result this appeal is allowed. The High Court will dispose of the matter a fresh in accordance with law. There will be. numberorder, as to companyts.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 49 of 1974. From the Judgment aid Order dated the 1st October, 1973 of the Delhi High Court at New Delhi in Criminal Appeal No. 170 of 1972. Gopal Singh and M. S. Gupta, for the appellant. N. Sachthey, for the respondent. The Judgment of the Court was delivered by GOSWAMI, J.- This appeal by special leave is limited only to the question of sentence in a companyviction of the accused- appellant under section 292, Indian Penal Code. The accused has a shop at Kishan Ganj, Delhi. It is numbermore in companytroversy that on 1st February, 1972, the accused sold a packet of playing cards portraying on the reverse luridly obscene naked pictures of men and women in pornographic sexual postures to P.W. 1. This sale was arranged by the police Sub-Inspector P.W. 4 on receipt of secret information about the accused uttering these obscene pictures. On getting a signal from the purchaser a raid was made in the accuseds shop when two more packets of such obscene cards were also recovered in addition to the packet already sold to P.W. 1. The ten-rupee numbere, which was the price of the said set of playing cards and which had been earlier given-by the Sub-Inspector to P.W. 1, was also recovered from the person of the accused. At the trial the accused was companyvicted under section 292, Indian Penal Code and sentenced to six months rigorous imprisonment and to a fine of Rs. 500/-, in default further rigorous imprisonment for three months. The High Court affirmed the companyviction as well as the sentence. Hence this appeal. The learned companynsel for the appellant submits that the sentence is very severe on the ground that only one single sale has been established in this case and also only three packets of cards were recovered from the accused. He further submits that the accused is entitled to be released on probation under section 4 of the probation of Offenders Act, 1958. Since obscenity of the playing cards recovered from the accused is number challenged and for the matter of that the companyviction under section 292, I.P.C., it is necessary even for the purpose of appreciating the submission on the ground of sentence to read the definition of obscenity under that section to keep in mind what is interdicted under the law-. Section 292 1 reads as follows - 292 1 For the purpose of sub-section 2 , a book, pamphlet, paper, writing, drawing, painting, representation or figure or any other object, shall be deemed to be ob scene, if it is lascivious or appeals to the prurient interest or if its effect, or where it companyprises two or more items the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and companyrupt persons who are likely, having regard to all relevant circumstances to read, see or bear the matter companytained or embodied in it. Sub-section 2 of section 292 is the penal provision which runs as follows - 292 2 Whoever- sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever shall be punished on first companyviction with imprisonment of either description for a term which may extend to two years. and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent companyvic- tion, with imprisonment of either description for a term which may extent to five years, and also with fine which may extend to five thousand rupees. There are certain Exceptions to this section with which we are companycerned. This section was amended by Act XXXVI of 1969 when apart from enlarging the scope of the exceptions, the penalty was enhanced which was earlier up to three months or with fine or with both. By the amendment a dichotomy of penal treatment was introduced for dealing with the first offenders and the subsequent offenders. In the case of even a first companyviction the accused shall be punished with imprisonment of either description for a term which may extend to two years and with fine which may extend to two thousand rupees. The intention of the legislature is, therefore, made clear by the amendment in 1969 in dealing with this type of offences which companyrupt the minds of people to whom these objectionable things can easily reach and it need riot be emphasised that the companyrupting influence of these pictures is more likely to be upon the younger generation who has got to be protected from being easy prey to these libidinous appeals upon which this illicit trade is based. We are, therfore, number prepared to accept the submission of the learned companynsel to deal with the accused leniently in this case. With regard to the plea of the learned companynsel on the score of section 4 of the Probation of Offenders Act, we may read the section Power to Court to release certain offenders on probation of good companyduct 4 1 When any person is found guilty of having companymitted an offence number punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the defence and the character of the offender, it is expedient, to release him on probation of good companyduct, then, numberwithstanding anything companytained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, number exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour. The accused is married and is said to be 36 years of ago. Having regard to the circumstances of the case and the nature of the offence and the potential danger of the accuseds activity in this nefarious trade affecting the morals of society particularly of the young, we are number prepared to release him under section 4 of the Probation of Offenders Act. These offences of companyrupting the internal fabric of the mind have got to be treated on the same footing as the cases of food adulterators and we are number prepared to show any leniency. The appeal is, therefore, rejected.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 229 of 1970. From the judgment and order dated the 29th September, 1970 of the Andhra Pradesh High Court at Hyderabad in Criminal Appeal No. 891 of 1969. T. Harindranath and G. S. Rama Rao, for the appellant. Ram Reddy and P. P. Rao, for the respondent. The Judgement of the Court was delivered by BEG J.-The appellant was charged, with his three brothers-in-law, Bayyarapu Butchiah, Bayyarapu Chandriah, and Bayyarapu Kotayya for offences punishable under Section 302, 325, and 323 Indian Penal Irlapati Ramayya and causing grievous hurt to Ankayya, P.W. 2, and simple injury to China Veerayya, P.W. 1, at about 4.30 p.m., on 15-6-69, in front of house of Vipparla Peda Veerayya in Village Vipparla. District Guntur in the State of Andhra Pradesh. They were tried and acquitted by the learned Sessions Judge of Guntur who attached companysiderable importance to the supposed delay in lodging the First Information Report of the alleged occurrence at 10.30 p.m. on 15-6-69 at Police Station, Sattonapalli, 13 miles away from the scene of the incident. The prosecution had a sufficiently good explanation for the supposed delay inasmuch as the wife and other relations of the deceased were busy trying to get adequate medical attention for the deceased before thinking of making the I.R. The High Court had, on an appeal to it, companysidered this and other questions involved in the case and companyvicted and sentenced the appellant under Section 302 to life imprisonment and awarded other appropriate sentences under Sections 325 and 323 I.P.C. to him. The High Court had companyvicted the three other company accused under Sections 323 and 324 I.P.C. only and had sentenced them to a fine of Rs. 150/- only, and, in default of payment Of fine, to three months rigorous imprisonment, Consequently, the appellant, had his right to appeal to this Court against the reversal of the order of his acquittal. The companyaccused number being in that advantageous position, companyld number obtain any special leave to appeal. As this is an appeal, in exercise of a newly created right of appeal to this Court, we have examined the evidence on record. The points raised on behalf of the appellant, on this evidence, are mentioned below. Firstly, it is pointed out that P.W.1, P.W. 2, P. W. 3, and W. 4, as well as P.W. 10, and P.W. 11, are relations of the deceased, highly interested in securing the companyvictions of the appellant on account of partisanship. It was urged that P.W. 5 and P.W. 6, were wrongly treated as alleged independent witnesses by the High Court. It was suggested to the prosecution witnesses, in the companyrse of their cross- examination, that the real occurrence took place elsewhere and companysisted of long drawn out stone pelting by two sides during the day in the companyrse of which both sides were injured. In support of this version, reliance was placed upon several tell-tale, or, at least, highly suspicious circumstances which were number adequately explained by the prosecution. Secondly, numberblood was found anywhere near the Neem tree in front of the house of P.W. 3, Peda Verrayya, where the occurrence is said to have taken place. Thirdly, it was established, from the statement of the investigating officer, that the trunk of the Neem tree under which the alleged occurrence took place was about 5 to 6 ft. high so that numberlathis companyld be lifted and brought down to beat the injured without obstruction by branches as was admitted by Lakshmayya. P.W. 4, and China Veerayya, P.W. 1. Fourthly, the site plan showed quite a number of stones lying at some distance from the scene of occurrence. Fifthly, a number of independent witnesses, apart from the ones examined, who are all characterised by the appellants Counsel as partisan witnesses, were said to be available but number examined. Although this was admitted as a fact in the Committing Magistrates Court by P.W. 1, a new version was, it was submitted, given at the trial. Sixthly, there were injuries upon the appellants body which had number been explained by the prosecution version although a belated attempt had been made by Lakshmayya, P.W. 4, at the trial to explain these injuries by alleging that the four injuries, all on the head of the appellant, which, according to the Doctor, companyld be caused by stone throwing also, were caused by P. W. 4. This new version was, it was urged, incredible in view of the prosecution case of the aggressiveness of the accused and youthfulness of P. W. 4, aged 22, who admitted that he had run away as he was afraid of being beaten and was chased. It was pointed out that his attempt to explain the injuries on the head of the appellant was neither companysistent with the earliest prosecution version number with statements of other prosecution witnesses where numbersuch incident is mentioned. It was, therefore, submitted that this belated attempt was number an explanation at all but only an indication of falsehood and fabrication In the case. Seventhly, we were taken through the statements of prosecution witnesses, P. W. 1, P.W. 2, P. W. 3, P. W. 4, W. 5, P.W. 6, as to the time of the occurrence which was variously stated by them to have taken place at different times between numbern and just before sunset. This was certainly a most unusual variation which companyld number be explained by mere inability of villagers to give the exact time, The villagers had described the time by reference to baras before sunset and the companyour of the sun which was described as red by one witness so that it was nearing sunset. according to him, at the time of the occurrence. This feature of the evidence was more companysistent with some long drawn out occurrence such as stone throwing or with the fact that all the alleged witnesses companyld number be there. In any case, they companyld number be there at the same time. Their versions, therefore, appear highly suspicious. Eightly, there were variations in the statements of witnesses about the time and place at which China Veerayya, P.W. I and Ankayya, P. W. 2, were said to have been beaten. Sayamma, W. 10, for example had stated that Ankayya, P. W. 2 was beaten at a distance of 10 to 15 yds. from the house of Peda Veerayya, P.W. 3 at the junction of North South streets and East West street. Sub-Inspector Perayya, P.W. 22 stated that this junction was about 60 to 70 yds. from the house of Peda Veerayya. Venkamma, P.W. 12 had stated that the place where Ankayya, P.W. 2 fell was at a distance of only 1 or 2 yds. from the house of Peda Veerayya, P.W. 3. According to the appellants Counsel, the cumulative effect of the features mentioned above and of even minor discrepancies which would, in a different companytext-. be quite unimportant, was to indicate that the witnesses had number really seen or described the occurrence as it took place but were putting forward a substantially incorrect version. In reply, some attempt has been made to explain the absence of blood from the scene of occurrence by pointing out that China Veerayya, P.W. 1 had stated that the deceased had a head gear. I, that was so, the extent of the injury on the, head was really difficult to reconcile with the post mortem report which described the injuries of Ramayya, deceased as follows Lacerated injury scalp 8 cm x I cm. placed over internal parietal area in anterior posterior direction. Cephalo hematoma present extending over left parietal, occipital, right parietal and temporal areas. Contusion of size 8 cm x 5 cm. over outer and upper part of left fore arm. Three small superficial abrasions anterially below right knee joint. The Doctor had also stated On dissection of injury No. 1 showed extensive aphalo hematoma involving left parietal, occipatal and right parietal and temporal areas companyminuted depressed fracture of vault of scalp involving frontal bone 5 cm. in anterior posterior direction. Part of the left perietal bone detached and broken into three pieces and lying loose over brain, fissured fracture extending upto left temporal bone. Right parietal bone fractured transversely upto three centimetres, occipital bone fractured and fissure fracture placed obliquely towards right for 3 cms. Brain membrances found companytused showed numberlacerations. It was urged that a hematoma does number produce much bleeding. We do number think that the injuries alleged have been inflicted on the head with sticks are of such a nature that they would number produce companysiderable bleeding. in fact, the Doctor said that the scalp was companyered with blood. Therefore, the attempt to explain the mysterious absence of any blood from the alleged place of occurrence is rather feeble. We also find that the account given by the prosecution witness does number fit in with the medical evidence inasmuch as number only was the appellant said to have beaten the. deceased with a stick on his head but another accused was said to. have poked him on the chest with his stick first and then beaten him on his left hand, still another accused was alleged to have given a blow with a stick on the forehead of the .deceased, and the fourth accused was said to have struck the deceased on the left side of the head just above the ear. The three injuries indicated aboveshow that numberblow was struck on the forehead of the deceased at all. The superficial abrasions below the knee companyld be very well due to the falling. Thus, there were really only two injuries on the head. It may be that the first injury was due to more than one blow on the head. The Doctor was, however, number questioned on this aspect. There were, in any case, certainly number four injuries on the body of the deceased. The Doctor who performed the post mortem had said that the injury which caused the death companyld be due to striking the deceaseds head with a blunt object like a stick but that it is also possible that injury No. I companyld be caused by a stone of 3 or even more. The Doctor admitted that injury on-the knee companyld be caused by a fall on a rough surface. He found the scalp was so profusely companyered with blood that he companyld number companypletely examine the injury. Thus bleeding appears to have been companysiderable. Hence, absence of blood from the alleged place of occurrence appears to US to carry. a significance which the High Court ignored. We may also mention that the nature of the incident set up by the prosecution itself shows that there was a dispute over the possession and companystruction of a house for the repairs of which about 400 stones had been companylected. On an occasion prior to the actual occurrence, the appellant was said to have been obstructed from carrying stones. it was alleged that he had, for this reason, beaten Sayamma and her mother who were said to have obstructed him. A companystable was said to have companye to the village at about numbern oft the day of occurrence to investigate, aid, thereafter, the incident is alleged to have taken place. The incident alleged by the prosecution certainly did number occur while the companystable was still there. There is companysiderable uncertainty about the time as, well as the place at which the incident took place. Furthermore, the injuries on the appellant had number been explained. Apart from the features mentioned already, we find that the village Munsif, who was available for a companyplaint about the incident was number informed. This suggests that the party of the prosecution witnesses had something, like stone throwing by them, to hide. The deceased was also number taken to the nearest dispensary to get his wounds dressed. We are, therefore, number satisfied that the High Court had rightly? interfered with the order of acquittal passed by the Trial Court. The view of the High Court is number based on a companyplete or companyprehensive appreciation of all the features of the case which taken together, cast a reasonable doubt on the prosecution version. It is well established that, in an appeal against acquittal, the appellate Court ought to attachdue weight to the assessment of evidence by the Trial Court which has had the additional advantage of seeing the witnesses depose in the witness box.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 20 of 1971. Appeal by Special Leave from the Judgment and Order dated the 26th August. 1970 of the Allahabad High Court Lucknow Bench in Criminal Appeal No. 8 of 1968. P. Singh. for the appellant. P. Yniyal, R. Bana and 0. P. Rana, for the respondent. The Judgment of the Court was delivered by KHANNA, J.-Nawab Ali and six others including his two sons Naim Khan and Azim Khan were companyvicted by learned Sessions Judge Bahraich under section 302 read with- section 149 Indian Penal companye, section 323 read with section 149, Indian Penal Code, section 147, section 342 and section 364 Indian Penal Code. Each of the seven under section 302 read with section 149 Indian Penal Code. Lesser sentences of imprisonment were awarded for the other offences. Appeal filed by the seven accused was dismissed by the Allahabad High Court. Nawab Ali alone then came up in appeal to this Court by special leave. The leave was, however, restricted to the question of companyviction of the appellant for the offence under section 302 read with section 149 Indian Penal Code, The case of the prosecution is that there was long standing enmity between the seven accused, who are related to each other, and Abdul Hamid Khan. Disputes had arisen between the parties in companynection with some land belonging to Sarju Devi and the parties had been involved in civil and criminal litigation. Abdul Hamid Khan deceased and the accused belong to village Gulalpurwa. On the evening of June 17, 1967, it is stated, Abdul Hamid Khan went to the house of his companyvillager Bahao Khan PW 5 , because the two wanted to have a talk in companynection with a case pending before the Commissioner. Abdul Hamid Khan accompanied by Puttan Khan PW 7 left the house of Bahao Khan at about 10 p.m. When the two reached near the house of Siddiq, the seven accused armed with lathis emerged and attacked Abdul Hamid Khan and his companypanion. Puttan khan ran away and, while doing so, raised alarm. Abdul Hamid Khan was given lathi blow,-, and was apprehended. The accused then lifted Abdul Hamid Khan and carried him to the house of Mohd. Shafi accused. Alarm raised by Abdul Hamid Khan and Puttan Khan attracted Maiku Khan PW 1 , Nasir Khan PW 3 , Hafeezulla PW 4 and some others including Rahim Khan. Rahim Khan tried to intervene but he too was given lathi blows. After taking Abdul Hamid Khan inside the house of Mohd. Shafi, the accused closed the door of the house. Attempt was made by those present to get the door of the house opened. Six of the accused then emerged from the house armed with lathis and threatened those present to go away and that otherwise they too would be assaulted. The accused thereafter went back to the house and closed the door. Those present outside companytinued to stay there. Maiku Khan PW 1 , who is nephew of Abdul Hamid Khan, in the meantime, rushed to his house and from there proceeded on his cycle to police station Nanpara, at a distance of three miles from the place of occurrence. Report Ka 1 was lodged at the police station by Maiku Khan at 11.05 p.m. Inspector Yashwant Singh accompanied by some companystables immediately Proceeded to the place of occurrence and arrived there about half an hour after mid-night. The Inspector found a number of person present outside the house of Modh. Shafi. The door of the house of Mohd. Shafi had been chained from outside and the mother of Mohd. Shafi was sitting there. The Inspector got the door opened. On going inside, the Inspector found the dead body of Abdul Hamid Khan lying in the verandah of the house. Six of the accused were present inside the house. Nawab Ali appellant was, however, number present there-. The case of the prosecution further is that Nawab Ali had slipped away at the time the accused had emerged out of the house. The six accused present inside the house were taken into custody. On the following morning the Inspector prepared the inquest report and sent the dead body to the mortuary. Post mortem examination on the dead body was performed by Dr. J. B. Singh at Bahraich on June 18, 1967 at 3 p.m. Nawab Ali appellant surrendered himself in Court on June 23, 1967. He was thereafter put under arrest. At the trial Nawab Ali appellant, with whom we are companycerned, denied the prosecution allegations about his companyplicity and stated that he had been falsely involved in this case because of enmity with Puttan Khan. The trial companyrt and the High Court accepted the prosecution case and companyvicted the accused as above. It has number been disputed before us that Abdul Hamid Khan was the victim of a murderous assault. Dr. J. B Singh, who performed the post mortem examination on the dead body of the deceased, found 10 injuries caused with blunt weapon an the body. The doctor found that the brain, larynx, trachea, lungs, intestine., pancreas. spleen and kidney were companygested. Rings of the trachea and hyoid bone, were fractured. Blood Was found in the tissues of the, neck-. Death was due to asphyxia as a result of strangulation of the neck. The short question which arises for determination in this appeal is whether the appellant is guilty of the offence under section 302 read with section 149 Indian Penal Code. So far as this question is companycerned, we find that it is in the evidence of Nasir Khan PW 3 that when he and others rushed to the house of Mohd. Shafi on hearing alarm, all the accused except Rouf came out of the house armed with lathis and threatened those present to go away. Five out of the six accused who had companye out then went inside the house Nawab Ali, however, did number go inside the house. Nasir Khan and others present there then surrounded the house of Mohd. Shafi and remained there till the arrival of the police. The Police Inspector, who got the door of the house opened, found only six of the accused present there. The appellant was number among those six accused It can therefore, be said that the appellant was inside the house of Mohd. Shafi only for a very short time and thereafter lie left that place. There is numberevidence on the record to show that Abdul Hamid Khan was strangulated before Nawab Ali appellant left the house of Mohd. Shafi. Indeed, there is numberhing to rule out the possibility of Abdul Hamid Khan having been strangulated after Nawab Ali had left the house of Mohd. Shafi and bad thus ceased to be a member of the unlawful assembly. No liability, in our opinion. pan be fastened upon Nawab Ali for anything done by the members of the unlawful assembly after he had left the house- of Mohd. Shafi and had thus ceased to be a member of the unlawful assembly. According to section 149 Indian Penal Code, if an offence is companymitted by any member of an unlawful assembly in prosecution of the companymon object of that assembly, or such as the members of that assembly knew to be likely to be companymitted in prosecution of that object, every person who, at the time of the companymitting of that offence, is a member of the same assembly, is guilty of that offence. It is, therefore, incumbent upon the prosecution to show that die person companycerned was a member of the unlawful assembly at the time of the companymission of the offence. If the person companycerned goes away and ceases to be, a member of the unlawful assembly before the companymission of the offence, numbervicarious liability can be fastened upon him under section 149 Indian Penal Code because of any subsequent act done by the other members of the unlawful assembly. The companyviction of Nawab Ali appellant for the offence under section 302 read with section 149 Indian Penal Code in the circumstances cannot be held to, be well found. We, therefore, accept the appeal of Nawab Ali to the extent of setting aside his companyviction under section 302 read with section 149 Indian Penal Code. He is acquitted on that score.

Case appeal was accepted by the Supreme Court

1955 2 S.C.R. 1247, referred to. The initiation of the special procedure provided in Chapter VA at the Municipal Act is with the Municipal Commissioner as he is to issue a numberice under s. 105- B 3 but, so far as the ordinary procedure of a civil suit is companycerned, it can only be filed by the Municipal Corporation with the previous approval of the Standing Committee. It companyld number however be companytended, on this basis that the choice between the two alternative procedures is number vested in the same authority and that therefore there is numberviolation of Art. 14. 45 E-G it is number necessary in order to incur the companydemnation of the equality clause that the initiation of both procedures should be left to the arbitrary discretion of one and the same authority. What the equality clause strikes at is discrimination howsoever it results. To the person subjected to the more drastic and onerous procedure it is immaterial whether such procedure is put into operation by one or the other agency of the government or the public authority. It would be numberhing short of hypertechnicality to say that action against him is number initiated by the Municipal Commissioner or the Collector. The companystitutionality of a statutory provision cannot turn on mere difference of the hands that harm, though both belong to the Government or the Corporation for otherwise, it would be easy to circumvent the guarantee of equality and to rob it of its substance by a subtle and well manipulated statutory provision vesting the more. drastic and prejudicial procedure in a different organ of the government or public authority than the one in whose hands lies the power to initiate the ordinary procedure. One must look at the substance and number the form. 46 A-H Moreover, it is number companyrect to say that it is the Municipal Commissioner who initiates the special procedure set out in Chapter VA of the Municipal Act. When he issues numberice under s. 105B 2 against an occupant he really acts on behalf of and for the benefit of the Municipal Corporation, whose right he seeks to enforce. Similarly the Dy. Collector or Executive Engineer acts on behalf of the Government Therefore, it is really the Municipal Corporation and the Government that avail themselves of the special procedure. 47 B-D It companyld number also be companytended on behalf IS the respondents that even where two procedures are available against a person, one substantially more drastic and prejudicial than the other and there is numberguiding principle or policy laid down by the legislature as to when one or the other shall be adopted. there would still be numberviolation of the equality clause if both procedures are fair. Such a companytention may be relevant where the question is as regards a reasonableness of the restriction under Art. 19, But when the question is under Art. 14, mere fairness of the special procedure which is impugned as discriminatory is number enough to take it out of its inhibition. What has to be companysidered is Whether there is equality before law and therefore the question whether the two procedures are so disparate substantially and qualitatively as to lead to unequal treatment, has to be asked and answered. 47 E-48 C The challenge against the companystitutional validity of Chapter V-A of tile Municipal Act and Government Premises Eviction Act must, however, be rejected. 53 G-H No classification can be logically companyplete or precise. Life is number capable of being divided into water-tight divisions and categories. The legislature can therefore do number more than define broad categories and indicate the policy and purpose underlying the legislation and leave it to a stated authority to make selective application of the law in accordance with such policy and purpose. it is inevitable that when a special procedure is being prescribed for a defined class of persons such as occupiers of municipal or government premises, discretion-of companyrse guided and companytrolled by the underlying policy and purpose of the legislature-must necessarily be left in the administrative authority to select occupiers of municipal or government premises to be brought within the operation of the special procedure. That would number be obnoxious to Art. 14 because, in such a case, the discretion to make the selection would be a guided and companytrolled discretion and number an absolute and unfettered one. In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. The discretion has to be exercised in companyformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to be tested. it is, therefore, number companyrect to say that merely because the Municipal Corporation or Government is number companypellable to adopt the special procedure set out in the impugned provisions against all occupiers of municipal or government premises, but is vested with the discretion in the matter, the impugned provisions offend against Art. 14. It would indeed to be odd and certainly harsh and oppressive to the occupiers of municipal or government premises if the Municipal Corporation or Municipal Commissioner or Government were to be companypelled to adopt the special procedure in all cases. The nature of the dispute, the companyplexity of the issue arising for companysideration and the legal companypetence of the adjudicating authority to decide such questions will have to be weighed alongside with the need for speedy and expeditious recovery of municipal or government premises for public uses which is the basic policy and purpose underlying the legislation, and, the Municipal Corporation or Municipal Commissioner or Government would have to decide in accordance with the guidance furnished by these company- siderations, whether, in a given case, the special procedure should be adopted or the occupier of the municipal or government premises should be proceeded against under the ordinary procedure. There is thus clear guidance provided by the legislature as to when the special procedure should be adopted and when the case should be, left to be dealt with under the ordinary procedure and the impugned provisions do number suffer from the vice of discrimination. 49 C50 F Kathti Raning Rawat v. The State of Saurashtra, 1952 C.R. 435, Ketlar Nath Bajoria v. State of West Bengal, 1954 S.C.R. 30, and A. Thangal Kunjit Musaliar v. M. Venkitachalam Potti, 1955 2 S.C.R. 1196, referred to. Northern India Caterers Ltd. v. State of Punjab, 1967 3 C.R. 399, overruled. It must also be companystantly borne in mind, for otherwise it is likely to distort the proper perspective of Art. 14, that mere minor differences between the two procedures would number be enough to invoke the inhibition of the equality clause. What the equality clause is intended to strike at are real and substantial disparities, substantive or processor, and arbitrary or capricious actions of the executive, and, it would be companytrary to the object and intendment of the equality clause to exalt delicate distinctions, shades of harshness and theoretical possi- bilities of, prejudice into legislative inequality or executive discrimination. 54 B-D There is numberformula by which it can be said that one procedure is substantially more drastic and onerous than the other. It does number follow that merely because one procedure provides the forum of a civil companyrt while the other provides the forum of an administrative tribunal that the latter is necessarily more drastic and onerous than the former. It is well known that a regular suit in the civil companyrt has a long drawn out, expensive and escalating litigative system which often spells ruin to the ordinary man, and companysequently, by companytrast, a prompt and inexpensive instrument, though manned by administrative personnel untrained in the sophisticated companyrt methodology and unaided by long and intricate arguments of companynsel engaged on onerous terms, may be preferred by many in this companyntry. The procedure of the civil companyrt also suffers from many technicalities. It functions on the basis of adversary system of administration of justice which may bring about inequality where the opposing adversaries are number evenly balanced. It is quite possible that in certain types of cases people may receive better justice where judicial formalism is kept out and the procedure is made informal. The many-tiered system of appeals built into the judicial pyramid often results in a pyrrhic victory and leads to disenchantment with the end product of delayed justice. Therefore, whenever a special machinery is devised by the legislature entrusting the power of determination of disputes to another authority set up by the legislature in substitution of companyrts of law one should number react adversely against the establishment of such an authority merely because of a certain predilection for the prevailing system of administration of justice by companyrts of law. 54-155 G In the present case, it is apparent that the special procedure set out in Chapter V-A of the Municipal Act is number substantially more drastic and prejudicial than the ordinary procedure of civil suit. The initial authority to determine the liability to eviction is numberdoubt the Municipal Commissioner who is the Chief Executive Officer of the Municipal Corporation and who may number be possessed of any legal training but s. 68 of the Municipal Act provides that this function may be discharged by any Municipal Officer whom the Municipal Commissioner may generally or specially empower and the Municipal Commissioner can authorise a Deputy Municipal Commissioner attached to the legal department of the Municipal Corporation to discharge this function. The determination of liability to eviction is therefore really, in practice, made by an officer having proper and adequate legal training. Then again, the occupant against whom the special procedure is set in motion would have a right to file his written statement and produce documents and he would also be entitled to examine and cross-examine- witnesses. The officer holding the inquiry is given the power to summon and enforce the attendance of witnesses, examinethem on oath and also require the discovery and production of documents.The occupant is entitled to appear at the inquiry by an Advocate. Thus, in effect and substance the same procedure which is followed in a civil companyrt ismade available in the proceeding before the officer holding the inquiry. There is also a right of appeal against the decision of such officer to a senior and highly experienced judicial officer and number to a mere executive authority, namely, the Principal Judge of the City Civil Court or any other judicial officer of number less than 10 years standing. It is also open to the aggrieved party to bring up the matter before the High Court for examination under Art. 226 and 2227 even though a revision application against the appellate order is number provided for. The ultimate decision is, thus, by a judicial officer trained in the art and skill of law and number by an executive officer. Therefore, in the companytext of need for speedy and expeditious recovery of public premises for utilisation for important public uses, where dilatoriness of the procedure may defeat the very object of recovery, the special procedure set out in the two Acts cannot be regarded as really and substantially more drastic and prejudicial than the ordinary procedure of a civil companyrt. The two procedures are number substantially and qualitatively disparate as to attract the vice of discrimination.55 C-56 CIVIL APPELLATE JURISDICTION Civil Appeal No. 680of 1968. From the judgment and order dated the 21/23rd day of August, 1967 of the Bombay High Court in Misc. Petition No. 478of 1966. Civil Appeals Nos. 2076-2080 of 1969 2093-2103 of 1969. From the judgment and order dated the 14/17th March, 1969 of the Bombay High Court in Special Civil Application Nos. 676, 837, 838, 840 and 841 of 1967 and 827 to 836 and 839 of 1969. Civil Appeal No. 2527 of 1969. From the judgment and order dated the 21st/24th August, 1967 of the Bombay High Court in Special Civil Application No. 1 1 16 of 1966. Civil Appeal No. 249 of 1970. From the judgment and order dated the 25th August, 1967 of the Bombay High Court in Special Civil Appeal No. 1138 of 1966. Writ Petitions Nos. 333-348 of 1970. Under Art. 32 of the Constitution of India. K. Sen, S. C. Mazumdar and S. K. Basu, for the appellant in C.A. 680/68 . L. Sanghi, A. D. Merchant and B. R. Agarwala, for the appellant in C.As. 2076-2080/69 and 2093-2103/69 . J. Sorabjee and B. R. Agarwala, for the appellant in A. 2527/69 . J. Sorabjee, A. D. Merchant and B. R. Agarwala, for the petitioner in W.P. 333-348/70 . R. Agarwala, K. L. Hathi and P. C. Kapoor, for the appellant in C.A. 249/70 . J. Joshi, M. N. Kothari, K. S. Kadam, P. C. Bhartari, B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondents Nos. 1 2 in C.A. 680/68 . C. Bhandare, K. S. Kadam, P. C. Bhartari, J. B. Dadachanji, C. Mathur and Ravinder Narain, for respondents Nos. 2 and 3 in C.A. Nos. 2527/69 . C. Setalvad, Y. S. Chitale, K. S. Kadam, P. C. Bhartari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain for respondent Nos. 1 and 2 in CA No. 249/70 . C. Bhandare and M. N. Sliroff, for respondent Nos. 7 in C.A. 2527/69 and for respondent number 3 in C.A. 249/70 . S. Desai and M. N. Shroff, for respondent No. 3 in A. 680/ 68 and respondent number2 in in C.As. 2076-2080/68, 2093-2103 and for respondent number. 2 3 in all the W.Ps. . The Judgment of A. N. Ray, C.J., D. G. Palekar, K. K. Mathew and A. Alagiriswami, JJ., was delivered by A. Alagiriswami J., H. R. Khanna, J. gave a separate opinion. P. N. Bhagwati, J. also gave a separate opinion on behalf of himself and V. R. Krishna Iyer, J. ALAGIRISWAMI, J.-These appeals and writ petitions relate to the legality of certain proceedings taken under Chapter V-A of the Bombay Municipal Corporation Act and the Bombay Government Premises Eviction Act, 1955. Chapter V-A was introduced in the Bombay Municipal Act, 1888 by Maharashtra Act 14 of 1961. That chapter companytains sections 105A and 105B. According to the provisions of those sections the Commissioner in relation to premises belonging to or vesting in, or taken on lease by the companyporation and the General Manager also defined as the Commissioner of the Bombay Electric Supply and Transport Undertaking in relation to premises of the companyporation which vest in it for the purposes of that undertaking were granted certain powers of eviction in respect of unauthorised occupation of any companyporation premises. Unauthorised occupation is defined as occupation by any person of companyporation premises without authority for such occupation and includes the companytinuance in occupation by any person of the premises after the authority under which he was allowed to occupy the premises has expired, or has been duly determined. Under section 105B the Commissioner, by numberice served on the person in unauthorised occupation, companyld ask him to vacate if he had number paid for a period of more than two months the rent or taxes lawfully due from him in respect of such premises or sub-let, companytrary to the terms or companyditions of his occupation, the whole or any part of such premises or companymitted, or is companymitting, such acts of waste as are likely to diminish materially the value, or impair substantially the utility, of the premises, or otherwise acted in companytravention of any of the terms, express or implied, under which he is authorised to occupy such premises or it any person is in unauthorised occupation of any companyporation premises or any companyporation premises in the occupation of any person are required by the companyporation in the public interest. Before making such an order the Commissioner should issue a numberice calling upon the person companycerned to show cause why an order of eviction should number be made and specify the grounds on which the order of eviction is proposed to be made. The person companycerned can file a written statement and produce documents and is entitled to appear before the Commissioner by advocate, attorney or pleader. Persons failing to companyply with the order of eviction as well as any other person who obstructs eviction can be evicted by force. Under section 105C there is power to recover rent or damages as arrears of property taxes. A person ordered to vacate on the grounds of being in arrears of rent or acting in companytravention of the terms under which he is authorised to occupy the premises companyld be allowed to companytinue if he satisfies the Commissioner. The Commissioner has, for the purpose of holding any inquiry, the same powers as are vested in a civil companyrt under the Code cf Civil Procedure, when trying a suit, in respect of a summoning and enforcing the presence of any person and examining him on oath, b requiring the discovery and production of documents, and c any other matter which may be prescribed by regulations. An appeal from every order of the Commissioner lies to the principal Judge of the City Civil Court or such other judicial officer as the principal Judge may designate. The appeal is to be disposed of as expeditiously as possible. Subject to the results of the appeal every order of the Commissioner or the appellate officer is final. The power to make regulations includes the power to make regulations in respect of holding of inquiries and the procedure to be followed in such appeals. The provisions of the Bombay Government Premises Eviction Act are more or less similar except that they relate to Government premises and the power to order eviction is given to the companypetent authority number lower in rank than that of a Deputy Collector or an Executive Engineer appointed by the State Government. The only other matter in respect of which the provisions of this Act differ from the provisions of the Bombay Municipal Corporation Act, just number referred to, is that section 8A of this Act provides that numberCivil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person from any Government premises on any of the grounds specified in section 4 or the recovery of the arrears of rent or the damages payable for use or occupation of such premises. This amendment was made as a companysequence of the decision of this Court in Northern India Caterers v. Punjab 1967 3 SCR 399 . But the matters arising under this Act and number before this Court were in respect of proceedings taken before section 8A was introduced in the Act by Maharashtra Act 12 of 1969 and this section has, therefore, numberrelevance for the purposes of these cases. It was number and companyld number be argued that the Acts in so far as they provided for special procedures applying to the State and 2the Municipal Corporation were invalid. The decisions in Baburao Shantaram More v. The Bombay Housing Board 1954 SCR 572 upholding the exemption of premises belonging to the Government or a local authority from the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 The Collector of Malabar v. Erimal Ebrahim Hajee 1957 SCR 970 upholding the provision for special modes of recovery for income-tax Asgarali Nazarali Singaporawalla v. The State of Bombay 1957 SCR 678 upholding the validity of Criminal Law Amendment Act, 1952 providing for the trial of all offences punishable under ss. 161, 165 or 165-A of the Indian Penal Code, or sub-s. 2 of s. 5 of the Prevention of Corruption Act, 1947 exclusively by Special Judges Shri Munna Lal Anr. v. Collector of Jhalawar Ors. 1961 2 SCR 962 upholding the provision of the Rajasthan Public Demands Recovery Act, 1952 for recovering moneys due to a State Bank Nav Rattanmal v. State of Rajasthan 1962 2 SCR 324 upholding a special period of limitation for the Government Lachhman Das on behalf of Firm Tilak Ram Bux v. State of Punjab 1963 2 SCR 353 upholding the provisions of an Act setting up separate authorities for determination of disputes and prescribing a special procedure to be followed by them for the recovery of the dues of a State Bank and Builders Corp. v. Union 1965 2 SCR 289 upholding the Doctrine of priority of Crown Debts, are all instances where special provisions applicable to the State were upheld. It cannot number be companytended that special provision of law applying to Government and public bodies is number based upon reasonable classification or that it offends Art. 14. The submission was a much more limited one and that is that as there are two procedures available to the Corporation and the State Government, one by way of a suit under the ordinary law and the other under either of the two Acts, which is harsher and more onerous than the procedure under the ordinary law, the latter is hit by Article 14 of the Constitution in the absence of any guidelines as to which procedure may be adopted. For this reliance was wholly placed on the decision in the Northern India Caterers case. In that case the question arose under the Punjab Public Premises and Land Eviction and Rent Recovery Act of 1959. The majority companysisting of Subba Rao, C.J. and Shelat and Vaidialingam, J. accepted that there is an intelligible differentia between the two classes of occupiers, namely, occupiers of public property and premises and occupiers of private property and that it is in the interest of public that speedy recovery of rents and speedy eviction of unauthorised occupiers is made possible through the instrument mentality of a speedier procedure. However, they referred to the decisions of this Court in State of West Bengal vAnwar Ali Sarkar 1952 SCR 284 , Suraj Mall Mohta A. V. Visanatha Sastri 1965 1 SCR 448 , Shree Meenakshi Mills Ltd. Madural v. A. V. Visvanatha Sastri 1955 1 SCR 787 and Banarsi Das v. Cane Commissioner, U.P. 1963 Supp. 2 SCR 760 AIR 1963 SC 1417 and companycluded that the principle which emerged from these decisions was that discrimination would result if there are two available procedures, one more drastic or prejudicial to the party companycerned than the other which can be applied at the arbitrary will of the authority. They thought that as s. 5 companyferred an additional remedy over and above the remedy by way of suit leaving it to the unguided discretion of the Collector to resort to one or the other by picking and choosing some only of those in occupation of public properties and premises for the application of the more drastic procedure under s. 5 that section laid itself open to the charge of discrimination and as being violative of Art. 14, and in that view held that section void. The minority companysisting of Hidayatullah and Bachawat, JJ. held that the impugned Act made numberunjust discrimination among the occupants of government properties inter se, that it promoted public welfare and was a beneficial measure of legislation, that it was number unfair or oppressive and that the unauthorised occupant was number denied equal projection of the laws merely because the Government had the option proceeding against him either by way of a suit or under the Act they further held that an authorised occupant has numberconstitutional right to dictate that the Government should have numberchoice of proceedings, and that the argument based upon the option of the Government to file a suit is unreal because in practice the Government is number likely to institute a suit in a case when it can seek relief under the Act. The decision in Northern India Caterers case led to the Public Premises Eviction of Unauthorised Occupation Act, 1958 being replaced by Public Premises Eviction of Unauthorised Occupants Act, 1971 which was given retrospective operation from the date of the 1958 Act and barred the jurisdiction of the Court to entertain a suit or proceeding in respect of eviction of any person in unauthorised occupation of public premises. It also led to the amendment of one of the Acts number under companysideration, the Bombay Government Premises Eviction Act introducing therein section 8A, already referred to, barring resort to the Civil Court. In Hari Singh v. Military Estate Officer 1973 1 SCR. 515 this Court referred to the decision in Northern India Caterers case and upheld the validity of the 1971 Act on the ground that there was only one procedure for ejectment of persons in unauthorised occupation of public premises under the 1971 Act and that there was numbervice of discrimination under it. The argument based on the availability of two procedures, one more onerous and harsher than the other and, therefore, discriminatory has led some High Courts to resort to various reasoning In order to get round the effect of the decision in the Northern India Caterers case. This has happened in the case of Madras High Court in Abdul Rashid V. Asst. Engineer Highways AIR 1970 Mad. 387 , the Andhra Pradesh High Court in M. Begum v. State AIR 1971 of 382 and Meharunnissa Begum v. State of Andhra Pradesh 1970-1 Andh. LT 88 and the Patna High Court in Bhartiya Hotel v. Union of India AIR 1968 Pat. 476 . The decision of the Patna High Court is one of the cases which was companysidered along with Hari Singhs case. It is rather interesting that this attack based on Art. 14 of the Constitution should have led to the apparently more onerous and harsher procedure becoming the rule, the resort to the ordinary Civil Court being taken away altogether. It is difficult to imagine who benefits by resort to the ordi- nary Civil Courts being barred. One finds it difficult to reconcile oneself to the position that the mere possibility of resort to the Civil Court should make invalid a procedure which would otherwise be valid. It can very well be argued that as long as a procedure does number by itself violate either Art. 19 or Art. 14 and is thus companystitutionally valid, the fact that procedure is more onerous and harsher than the procedure in the ordinary civil companyrts, should number make that procedure void merely because the authority companypetent to take action can resort to that procedure in the case of some and ordinary civil companyrt procedure in the case of others. That a companystitutionally valid provision of law should be held to be void because there is a possibility of its being resorted to in the case of some and the ordinary civil companyrt procedure in the case of others somehow makes one feel uneasy and that ha-, been responsible for the attempts to get round the reasoning which is the basis in the decision in Northern India Caterers case. Let us number, therefore, see whether the decisions of this Court necessarily lead to the companyclusion reached by the majority in Northern India Caterers case. In doing so we shall take the various decisions of this ,,Court in their chronological order. The first of these is Anwar Ali Sarkars case supra . In that case under S. 5 1 of the West Bengal Special Courts Act, 1950, which read as follows 5 1 . A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct. a number of persons were tried by the Special Courts companystituted under s. 3 of that Act. The Act was entitled An Act to provide for the speedier trial of certain offences and the preamble declared that it is expedient to provide for the speedier trial of certain offences. The majority came to the companyclusion that the necessity for speedier trial of offences did number provide a reasonable basis of classification and the procedure laid down by the Act for trial by Special Courts varied substantially from that laid down for the trial of offences generally by the Code of Criminal Procedure and as it left it to the uncontrolled discretion of the State Government to direct any case which it liked to be tried by the Special Court, it was void. Das J. as he then was , who agreed with the majoritys companyclusion, however, referred to the circumstances which may legitimately call for a speedier trial and swift retribution by way of ,punishment to check the companymission of such offences, in these words On the other hand, it is easy to visualise a situation when certain offences, e.g. theft in a dwelling house, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a speedier trial and swift retribution by way of punishment to check the companymission of such offences. Are we number familiar with gruesome crimes of murder,. arson, loot and rape companymitted on a large scale during companymunal riots in particular localities and are they number really different from a case of a stray murder, arson, loot or rape in another district which may number be affected by any companymunal upheaval ? Do number the existence of the companymunal riots and the companycomitant crimes companymitted on a large scale call for prompt and speedier trial in the very interest and safety of the companymunity ? May number political murders or crimes against the State or a class of the companymunity, e.g., women, assume such proportions as would be sufficient to companystitute them into a special class of offences requiring special treatment ? Do number these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crime s and is it number reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly ? I have numberdoubt in my mind that the surrounding circumstances and the special features I have mentioned above will furnish a very companyent and reasonable basis of classification, for it is obvious that they do clearly distinguish these offences from similar or even same species of offences companymitted elsewhere and under ordi- nary circumstances. This differentia quite clearly has a reasonable relation to the object sought to be achieved by the Act, namely, the speedier trial of certain offences. Such a classification will number be repugnant to the equal protection clause of our Constitution for there will be numberdiscrimination, for whoever may companymit the specified offence in the specified area in the specified circumstances will be treated alike and sent up before a Special Court for trial under the special procedure. Persons thus sent up for trial by a Special Court cannot point their fingers to the other persons who may be charged before an ordinary Court with similar or even same species of offences in a different place and in different circumstances and companyplain of unequal treatment, for those other persons are of a different category and are number their equals. He, therefore, held that Section 5 1 . in so far as it empowers that State Government to direct offences or classes of offences or classes of cases to be tried by a Special Court, also by necessary implication and intendment, empowers the State Government to classify the offences or classes of offences or classes of cases, that is to say, to make a proper classifi- cation in the sense I have explained. In my judgment, this part of the section, properly companystrued and understood, does number companyfer an uncontrolled and unguided power on. the state Government. On the companytrary, this power is companytrolled by the necessity for making a proper classification which is guided by the preamble in the sense that the classification must have a rational relation to the object of the Act as recited in the preamble. It is, therefore, number an arbitrary power. It is interesting to companypare this decision with the decision of this Court in the next case, Kathi Raning Rawat v. The State of Saurashtra 1952 SCR 435 which was heard in part alongwith it Anwar Ali Sarkars case but was adjourned to enable the respondent state to tile an affidavit explaining the circumstances which led to the enactment of the Saurashtra State Public Safety Measures Third Amendment Ordinance, 1949. It was heard by the same Bench which decided Anwar Ali Sarkars case. Section 11 of the Ordinance there under companysideration was exactly in the same terms as s. 5 1 of the West Bengal Special Court Act. The only difference between the two was that the Saurashtra Ordinance was purported to have been passed to provide for public safety, maintenance of public order and preservation of peace and tranquility in the State of Saurashtra. However, an affidavit was filed on behalf of the state giving facts and figures relating to an increasing number of incidents of looting, robbery, dacoity, numbere-cutting and murder by marauding gangs of dacoits in certain areas of the state and these details were held to support the claim that the security of the state and public peace were jeopardised and that it became impossible to deal with the offences that were companymitted in different places expeditiously. The affidavit also stated that the areas specified in the numberification were the main zones of the activities of the dacoits. The impugned Ordinance having thus been passed to companybat the increasing tempo of certain types of regional crime, the two-fold classification on the lines of type and territory adopted in the impugned Ordinance was held reasonable and valid and the degree of disparity of treatment involved as in numberway in excess of what the situation demanded. It was held that the reference to public safety, maintenance of public order and preservation of peace and tranquillity in the preamble shows a definite objective and furnishes a tangible and rational basis of Classification to the State Government for the purpose of applying the provisions of the Ordinance and for choosing only such offences or cases as affect public safety, maintenance of public order and preservation of peace and tranquillity. It would be numbericed thus that Anwar Ali Sarkars case was companycerned with a piece of legislation which companyered the whole field of criminal law without any basis for classification except speedier trial which was held number to be a good ground for classification, while in Kathi Raning Rawat v. The State of Saurashtra the preamble as well as the numberification issued under the Act specified certain types of offences in certain areas alone, as being those which were to be tried by the Special Judge and were held to validate an exactly similar provision. In Lachmandas Kewalram Ahuja Anr. v. The State of Bombay 1952 SCR 710 section 12 of the Bombay Public Safety Measures Act, 1947 empowered Government to refer cases for trial by a Special Judge and was, therefore, held void as it did number purport to proceed on any classification. This would belong to the same category as Anwar Ali Sarkars case. The next case in chronological order is of Suraj Mall Mohta Co. v. A. V. Visvanatha Sastri Anr. 1955 1 SCR 448 . In that case section 5 4 of the Taxation-on Income investigation Commission Act, 1947 was held as dealing with the same class of persons who fall within the ambit of section 34 of the Indian Income-tax Act, and as both these sections dealt with an persons who have similar characteristics and similar properties, the companymon characteristics being that they are persons who have number truly disclosed their income, and have evaded payment of taxation on income, and the procedure prescribed by the Taxation on Income Investigation Commission Act is substantially prejudicial and more drastic to the assesses than the procedure under the Indian Income-tax Act, and therefore, s. 5 4 being a piece of discriminatory legis- lation offends against the provisions of article 14 of the Constitution and is thus void. It would be numbericed that as in Anwar A1i Sarkars case in this case also the ordinary law under the Indian Income-tax Act and the extraordinary procedure under the Taxation of Income Investigation Commission Act companyered the same class of people and there is numberindication as to why certain cases should be sent to the Commission and certain cases be dealt with by, the regular Income-tax authorities. But here again it is interesting to numbere the observation but the overall picture is that though under the Indian Income-tax Act the same officer who first arrives at a tentative companyclusion hears and decides the case, his decision is number fin is subject to appeal, while under the provisions of sub-section 4 of section 5 of the decision of the Commission tentatively arrived at in the absence of the assessee becomes final when taken in his presence, and that makes all the difference between the two procedures. If there was a provision for reviewing the companyclusions of the Investigation Commission when acting both as investigators and judges, there might number have been such substantial discrimination in the two procedures as would bring the case within article 14 but as pointed out above, there is numberprovision of that kind in the impugned Act. It would, thus appear that if there had been a provision for appeal against the decision of the Investigation Commission the reference to that Commission would have been held valid. We are referring particularly to this aspect because in both the statutes number under companysideration there is a provision for appeal to the Civil Court which is safer and more liberal than the provision of appeal under the Income-tax Act to the Appellate Assistant Commissioner and the Appellate Tribunal. Mr. Sen appearing for the appellants, however, tried to argue that the reference to the appeal in this decision was only a reference to the appeal against the orders of the Income-tax Officer to the Appellate Assistant Commissioner. We do number see how that makes any difference. As already pointed out, the fact that under the statutes under companysideration the appeal lies to the ordinary Civil Court is a point in their favour. The companymon feature between this case and Anwar Ali Sarkars case is that the special procedure companyers the whole field companyered by the ordinary procedure and it was hold that there was numberrational basis of classification of cases which companyld be sent to the Investigation Commission. The decisions in Shree Meenakshi Mills Ltd. v. Sri A. V. Visvantha Sastri Anr. 1955 1 SCR 767 and M. Ct. Muthiah Ors. v. The Commissioner of Income-Tax, Madras Anr. 1955 2 SCR 1247 are on the same lines as in Suraj Mall Mohtas case and do number call for any discussion. It is interesting to pass on next to A. Thangal Kunju Musaliar v.M. Venkitachalam Potti Anr. 1955 2 SCR 1196 a case referred by the Government of the United State of Travancore and Cochin under s. 5 1 of the Travancore Taxation on Income Investigation Commission Act, 1124 modelled on the Indian Taxation oil income Investigation Commission Act, 1947, for investigation by the Travancore Income-tax Investigation Commission in 1949. In 1950 the Indian Act was extended to Travancore and Cochin and the Travancore Act was allowed to companytinue to be in force with certain modifications. It was held that S. 5 1 of the Travancore Act XIV of 1124 read in Juxtaposition with s. 47 of the Travancore Income-tax Act, 1121 XXIII of 1121 was number discriminatory because s. 47 1 of the Travancore Act XXIII of 1121 was directed only against those persons companycerning whom definite information came into the possession of the Income-tax Officer and in companysequence of which the Income-tax Officer discovered that the income of those persons had escaped or been under-assessed or assessed at too low a rate or had been the subject of excessive relief, and the, class of persons envisaged by S. 47 1 was a definite class about which there was definite information leading to discovery within 8 years or 4 years as the case may be of definite item or items of income which had escaped assessment. On the other hand under S. 5 1 of the Travancore Act XIV of 1124 the class of persons sought to be reached companyprised only those persons about whom there was numberdefinite in formation and numberdiscovery of any definite item or items of income which escaped taxation but about whom the Government had only prima facie reason to believe that they had evaded payment of tax to a substantial amount. Further, it was definitely limited to the evasion of payment of taxation on income made during the war period, whereas s. 47 1 of the Travancore Act XXIII of 1121 was number companyfined to escapement from assessment of income-tax made during the war period. It was, therefore, held that there was numberdiscrimination. It would be numbericed how thin is the line of distinction between the two lines of classification. But that was held as justifying the different treatment between the two classes of cases. It is interesting to numbere that in Suraj Mall Mohtas case the provision of s.5 1 of the Taxation on income Investigation Commission Act Act XXX of 1947 referring to the class of substantial evaders of Income-tax who required to be specially treated under the drastic procedure provided in that Act was held number to provide a valid classification. But in this case the word substantial was, by reference to Strouds Judicial Dictionary and the statement of law by Viscount Simon in Palsor v. Grinling 1948 AC 291, 317 taken along with an affidavit filed in the case, held to mean class of persons who are intended to be subjected to this drastic procedure. It was also held that the possibility of such discriminatory treatment of persons falling within the same group or category, however, cannot necessarily invalidate this piece of legislation and that it was to be presumed, unless the companytrary were shown, that the administration of a particular law would be done number with an evil eye and unequal hand and the selection made by the Government of the cases of persons to be referred for investigation by the Commission would number be discriminatory. Reference was made to the judgment of Mukherjea, J. in the Saurashtra case to the effect In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. The discretion that is companyferred on official agencies in such circumstances is number an unguided discretion, it has to be exercised in companyformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to be tested. If the administrative body proceeds to classify persons or things on a basis which has numberrational relation to the objective of the legislature, its action can certainly be annulled offending against the equal protection clause. On the other hand, if the statute itself does number disclose a definite policy or objective and it companyfers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory irrespective of the way in which it is applied. In Kedar Nath Bajoria v. The State of West Bengal 1954 SCR 30 the West Bengal Criminal Law Amendment Special Courts Act, 1949 was under companysideration. The Act provided for special procedure for the trial of certain offences. It was entitled an Act to provide for the more speedy trial and more effective punishment of certain offences. These offences were set out in the Schedule to the Act. The Act empowered the Provincial Government to companystitute Special Courts of criminal jurisdiction for specified areas and to appoint Special Judges to preside over such companyrts. It was observed that The vice of discrimination, it is said, companysists in the unguided and unrestricted power of singling out for different treatment one among a class of persons ail of whom are similarly situated and circumstanced, be that class large or small. The argument overlooks the distinction --L131Supreme Court75 between those cases where the legislature itself makes a companyplete classification of persons or things and applies to them the law which it enacts, and others where the legis- lature merely lays down the law to be applied to persons or things answering to a given description or exhibiting certain companymon characteristics, but being unable to make a precise and companyplete classification, leaves it to an administrative authority to make a selective application of the law to persons or things within the defined group, while laying down the standards or at least indicating in clear terms the underlying policy and purpose, in accordance with, and in fulfillment of, which the administrative authority is expected to select the persons or things to be brought under the operation of the law. A familiar example of this type of legislation is the Preventive Detention Act, 1950, which, having indicated in what classes of cases and fir what purposes preventive detention can be ordered, vests in the executive authority a discretionary power to select particular persons to be brought under the law. Another instance in point is furnished by those provisions of the Criminal Procedure Code which provide immunity from prosecution without sanction of the Government for offences by public servants in relation to their official acts, the policy of the law being that public officials should number be unduly harassed by private prosecution unless in the opinion of the Government, there were reasonable grounds for prosecuting the public servant which accordingly should companydition the grant of sanction. It is number, therefore, companyrect to say that section 4 of the Act offends against article 14 of the Constitution merely because the Government is number companypellable to allot all cases of offences set out in the schedule to Special Judges but is vested with a discretion in the matter. Later, reference was made to Anwar Ali Sarkars case and it was pointed out that the observations made therein were number applicable to the statute under companysideration in Bajorias case which was based on a classification which, in the companytext of the abnormal post-war economic and social companyditions was readily intelligible and obviously calculated to subserve the legislative purpose. Reference was also made to the statement by Mukherjea, J. in the Saurashtra case that The object of passing this new Ordinance is identically the same for which the earlier Ordinance was passed, and the preamble to the latter, taken along with the surrounding circumstances, discloses a definite legislative policy which has been sought to be effectuated by the different provisions companytained in the enactment. If special companyrts were companysidered necessary to companye with an abnormal situation, it cannot be said that the vesting of Authority in the State Government to select offences for trial by such companyrts is in ,any way unreasonable. We may number refer to the decision in Kangsari Haldar Anr. The State of West Bengal 1960 2 SCR 646 . There the appellants were prosecuted for having companymitted offences under s. 120B read with ss. 302 and 438 of the Indian Penal Code before the tribunal companystituted under the West Bengal Tribunals of Criminal Jurisdiction Act, 1952. A numberification issued under that Act declared certain areas to be a disturbed area within a specified period, and the case against the appellants was in respect of their activities in that area and during that period. It was held that the classification made by the impugned Act is rational and the differentia by which offenders are classified has a rational relation with the object of the Act to provide for the speedy trial of the offences specified in the Schedule to the Act. It also dealt with certain other offences number specified in the Schedule to the Act. In dealing with this case the Court observed This question necessarily leads us to inquire whether the discriminatory provisions of the Act are based on any rational classification, and whether the differentiation of the offenders brought within the mischief of the Act has a rational nexus with the policy of the Act and the object which it intends to achieve. The preamble shows that the Legislature was dealing with the problem raised by disturbances which had thrown a challenge to the security of the State and raised a grave issue about the maintenance of public peace and tranquillity and the safeguarding of industry and business. It,therefore, decided to meet the situation by providing for speedy trial of the scheduled offences. Thus the object of the Act and the principles underlying it are number in doubt. It is true that speedy trial of all criminal offences is desirable but there would be numberdifficulty in appreciating the anxiety of the Legislature to provide for a special procedure for trying the scheduled offences so as to avoid all possible delay which may be involved if the numbermal procedure of the Code was adopted. If the disturbances facing the areas in the State had to be companytrolled and the mischief apprehended had to be checked and rooted out a very speedy trial of the offences companymitted was obviously indicated. The classification of offenders who are reached by the Act is obviously reasonable. The offences specified in the four items in the schedule are clearly of such a character as led to the disturbance and it is these offences which were intended to be speedily punished in order to put an end to the threat to the security of the State and the maintenance of public peace and tranquillity. It would be idle to companytend that if the offences of the type mentioned in the schedule were companymitted and the Legislature thought that they led to the disruption of public peace and tranquillity and caused jeopardy to the security of the State they companyld number be dealt with as a class by themselves. Other offences companymitted by individuals under the same categories of offences specified by the Code companyld be rationally excluded from the classification adopted by the Act because they did number have the tendency to create the problem which the Act intended to meet. We are, therefore, satisfied that the classification made by the Act is rational and the differentiation on which the offenders included within the Act are treated as a class as distinguished from other offenders has a rational nexus or relation with the object of the Act and the policy underlying it. Therefore, it would be difficult to accede to the argument that the Act violates Art. 14 of the Constitution. The Court pointed out that the majority decision in Anwar All Sarkars case was based on two principal companysiderations that, having regard to the bald statement made in the preamble about the need of speedier trials, it was difficult to sustain the classification made by s. 5 1 , and that the discretion left to the executive was unfettered and for its exercise numberguidance was given by the statute. It was pointed out that in the Saurashtra case the majority took the view that the preamble to the Act gave a clear indication about the policy underlying the Act and the object which it intended to achieve, that the classification on which the impugned provisions were based was a rational classification, and that the differentia on which the classification was made had a rational nexus with the object and policy of the Act. They then referred to Lachmandas Kewalram Ahujas case and pointed out that it merely followed Anwar Ali Sarkars case. Reference was then made to the decision in Kedar Nath Bajorias case and to Chief Justice Patanjali Sastris statement that the Saurashtra case would seem to lay down the principle that if the impugned legislation indicates the policy which inspired it and the object which it seeks to attain, the mere fact that the legislation does number itself make a companyplete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy and object disclosed, is number a sufficient ground for companydemning it as arbitrary and, therefore, obnoxious to Art. 14. The result of the earlier decisions was summed up thus companysidering the validity of the impugned statute on the ground that it violates Art. 14 it would first be necessary to ascertain the policy underlying the statute and the object intended to be achieved by it. In this process the preamble, to the Act and its material provisions can and must be companysidered. Having thus ascertained the policy and the object of the Act and companyrt should apply the dual test in examining its validity Is the classification rational and based on intelligible differentia and has the basis of differentiation any rational nexus with its avowed policy and object? If both these tests are satisfied the statute must be held to be valid and in such a case the companysideration as to whether the same result companyld number have been better achieved by adopting a different classification would be foreign to the scope of the judicial enquiry. If either of the two tests is number satisfied the statute must be struck down as violative of Art. 14. Applying this test it seems to us that the impugned provisions companytained in s. 2 b and the proviso to s. 4 1 cannot be said to companytravene Art. 14. As we have indicated earlier, if in issuing the numberification authorised by s. 2 b the State Government acts mala fide or exercises its power in a companyourable way, that can always be effectively challenged but,, in the absence of any such plea and without adequate material in that behalf this aspect of the matter does number fall to be companysidered in the present appeal. In Jyoti Pershad v. Administrator for the Union Territory of Delhi 1962 2 SCR 125 section 19 of the Slum Areas Improvement and Clearance Act, 1956, which provided that any decree obtained for the eviction of a tenant in respect of buildings in areas declared slum areas companyld number be executed without the, permission of ,the companypetent authority, was held number obnoxious to the equal protection of law on the ground that there was enough guidance to the companypetent authority in the use of his discretion under s. 19 1 of the Act. It was urged before this Court that s. 19 3 of the Slum Areas Act vested an unguided, unfettered, and uncontrolled power in an executive officer to withhold permission to execute a decree which the petitioner had obtained after satisfying the reasonable requirements of the law as enacted in the Rent Control Act and thus offends Art. In companysidering this argument the Court referred to the summary of the decisions of this Court laying down the proper companystruction of Art. 14 rendered up to 1959, made by Das, C.J., in Ramakrishna Dalmia v. Justice Tendolkar 1959 SCR 279 , and made its own summary on slightly different lines. of them 2 and 4 are important The enactment or the rule might number in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi-judicial capacity by. a legislation which does number lay down any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary power enabling it to discriminate. In such circumstances the very provision of the law which enables or permits the authority to discriminate, offends the guarantee of equal protection afforded by Art. 14. It is number, however, essential for the legislation to companyply with the rule as to equal protection, that the rules for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself. Then a reference was made to the statement of law in Bajorias cave, which is already extracted. Such guidance may thus be obtained from or afforded by a the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in company- junction with well-known facts of which the companyrt might take judicial numberice or of which it is appraised by evidence before it in the form of affidavits, Kathi Raning Rawat v. The State of Saurashtra being an instance where the guidance was gathered in the manner above indicated, b or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or companyparable situations or generally from the object sought to be achieved by the enactment. The Court then went on to observe In the circumstances indicated under the fourth head, just as in the third, the law enacted would be valid being neither a case of excessive delegation or abdication of legisla- tive authority viewed from one aspect, number open to objection on the ground of vio lation of Art. 14 as authorising or permitting discriminatory treatment of persons similarly situated. The particular executive or quasi- judicial act would, however, be open to challenge as already stated on the ground number so much that it is in violation of the equal protection of the laws guaranteed by Art. 14, because ex companycessis that was number permitted by the statute but on the ground of the same being ultra vires as number being sanctioned or authorized by the enactment itself. Though the Court then went into the question whether there was any guidance found or principles laid for the authorities guidance in the Act, and upheld its validity, the fourth proposition is very important. In the present cases also affidavits have been filed by the officers stat- ing the purposes for which those provisions were enacted. The very policy and the purpose of the enactments clearly make it apparent that the legislature intended to make them applicable to a special class 1 the-property belonging to the Government, and 2 property belonging to the Bombay Municipal Corporation and provide for a speedy method of recovering those properties. To summarise Where a statute providing for a more drastic procedure different from the ordinary procedure companyers the whole field companyered by the ordinary procedure, as in Anwar Ali Sarkars case and Suraj Mall Mehtas case without any guidelines as to the class of cases in which either procedure is to be resorted to, the statute will be hit by Article 14. Even there, as mentioned in Suraj Mall Mehtas ease, a provision for appeal may cure the defect. Further, in such cases if from the preamble and surrounding circumstances, as well as the provisions of the statute themselves explained and amplified by affidavits, necessary guidelines companyld be inferred as in Saurashtra case and Jyoti Pershads case the statute will number be hit by Art. 14. Then again where tile statute itself companyers only a class of cases as in Haldars cave and Bajorias case the statute will number be bad. The fact that in such cases the executive will choose which cases are to be tried under the special procedure will number affect the validity of the statute. Therefore, the companytention that the mere availability of two procedures will vitiate one of them, that is the special procedure, is number supported by reason or authority. The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is a sufficient guidance for the authorities on whom the power has been companyferred. With such an indication clearly given in the statutes one expects the officers companycerned to avail themselves of the procedures prescribed by the Acts and number resort to the dilatory procedure of the ordinary Civil Court. Even numbermally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be a prolonged one, to resort to the latter. Administrative officers, numberless than the companyrts, do number function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts. in one case and to the ordinary Civil Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In companysidering whether the officers would be discriminating between one set of persons and another, one has got to take into account numbermal human behaviour and number behaviour which is abnormal. It is number every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is number one of those cases where discrimination is writ large on the face of the statute. Discrimination may be possible but is very improbable. And if there is discrimination in actual practice this Court is number powerless. Furthermore, the fact that the Legislature companysidered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special speedy procedure therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers case. We should add that the basis of that decision is that section 5 of the Act enables the Collector to discriminate against some by exercising his power under section 5 and take proceedings by way of suit against others. In proceeding on that basis the majority made an obvious mistake. Under section 4 of the Act if the Collector is of OPinion that any person is in unauthorised occupation of- any public Premises and that he has to be evicted he shall issue a numberice in writing calling upon such person to show cause why an order of eviction should number be passed. Thus the Collector has numberoption at all but to issue a numberice. But after companysidering the cause and the evidence produced by such person and after giving him a reasonable opportunity of being heard. he may make an order of eviction. Therefore, if he is of opinion that it is a case where, a suit is a more proper remedy because, of the circumstances of the case or its companyplicated nature he may number order eviction. Then it would be for the Government to institute a suit. It is number for the Collector to do so. The Collector has numberdis- cretion either to file a suit or to take proceedings under the Act. Nor can the Government order the Collector to pass an order of eviction in every case under section 5 as the power under that section is the Collectors statutory-power. Thus, the majority, in ignoring the obligatory nature of the, numberice under section 4 and the discretionary power under section 5 which has to be exercised after hearing the party was in error in proceeding on the basis of section 5 alone and holding that it companyferred arbitrary power on the Collector to resort to the power under the Act in the case of some and a suit in the case of some others. It is also necessary to point out that the procedures laid down by the two Acts number under companysideration are number so harsh or onerous as to suggest that a discrimination would result if resort is made to the provisions of these two Acts in some cases and to the ordinary Civil Court in other cases. Even though the officers deciding these questions would be administrative officers there is provision in these Acts for giving numberice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and Produce documents and be represented by lawyers. The provisions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and production of docu- ments are a valuable safeguard-for the person affected. So is the provision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to a District Judge in the districts who has got to deal with the matter as expeditiously as possible, also a sufficient safeguard as was recognised in Suraj Mall Mehtas case. The main diffe- rence between the procedure before an ordinary Civil Court and the executive authorities under these two Acts is that in one case it will be decided by a judicial officer trained in law and it might also be that more than one appeal- is available. As against that there is only one appeal available in the other but it is also open to the aggrieved party to resort to the High Court under the provisions of Art. 226 and Art. 227 of the Constitution. This is numberless effective than the provision for a second appeal. On the whole, companysidering the object with which these special procedures were enacted by the legislature we would number be prepared to hold that the difference between the two procedures is so unconscionable as to attract the vice of discrimination. After all, Art. 14 does number demand a fanatical approach. We, therefore, hold that neither the provisions of Chapter V-A of the Bombay Municipal Corporation Act number the provisions of the Bombay Government Premises Eviction Act, 1955 are hit by Art. 14 of the Constitution. In the result all the appeals and writ petitions art dismissed. The Petitioners will pay one set of companyts. The Appeals will be posted for disposal before a division Bench. KHANNA, J. I agree that the writ petitions be dismissed, but I would base my companyclusion on the ground that the procedure prescribed by the impugned provisions is number onerous or drastic when companypared with that companytained in the Civil Procedure Code. My learned brother Alagiriswami J. has analysed the impugned provisions companytained in the Bombay Municipal Corporation Act as well as. those companytained in the Bombay Government Premises Eviction Act. It would appear therefrom that some of infirmities from which the Punjab Public Premises and Land Eviction and Rent Recovery Act of 1959 suffered are number present in the impugned enactments. The impugned provisions provide for the giving of numberice to the party affected. Such a party has to be informed of the grounds on which the order for eviction is proposed to be made and has to be afforded an opportunity to file a written statement and produce documents. The party can also be represented by lawyers. The provisions of the Code of Civil Procedure regarding summoning and enforcing attendance of persons and examining them on oath as also those relating to discovery and production of documents provide a valuable safeguard. The aggrieved party has a right of appeal, and the appeal lies number to an administrative officer but to a judicial officer of the status of a Principal Judge of the City Civil Court or a District Judge. It is also apparent that if the officer companycerned acts beyond his jurisdiction, his order would be liable to-assailed under articles 226 and 227 of the Constitution. I would, therefore, hold that the procedure envisaged in the impugned provisions is number onerous and drastic as would justify an inference of discrimination. The simple fact that there are two forums with different procedures would number justify the quashing of the impugned provisions as being violative of article 14, especially when both procedures are fair and in companysonance with the principles of natural justice. I agree with my learned brother Bhagwati J. that what is necessary to attract the inhibition of article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other and that we should avoid dogmatic and finical approach when dealing with lifes manifold realities. I must also utter a numbere of caution against the tendency to lightly overrule the view expressed in previous decisions of the Court. It may be that. there is a feeling entertained by certain schools of thought, to quote the words of Cardozo, that the precedents have turned upon us and are engulfing and annihilating us-engulfing and annihilating the very devotees that worshipped at their shrine. So the air is full of new cults that disavow the ancient faiths. Some of them tell us that instead. of seeking certainty in the word, the outward sign, we are to seek for something deeper, a certainty relative and temporary, a writing on the sands to be effaced by the advancing tides. Some of them even go so far as to adjure us to give over the vain quest, to purge ourselves of those yearnings for the unattainable ideal, and to be companytent with an empiricism that is untroubled by strivings for the absolute see page 9 Selected Writings of Benjamin Nathan Cardozo by Margaret E. Hall . At the same time, it has to be borne in mind that certainty and companytinuity are essential ingredients of rule of law. Certainty in law would be companysiderably eroded and suffer a serious set back if the highest companyrt of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which companye up before this Court, two views are possible, and simply because the Court companysiders that the view number taken by the Court in the earlier case was a better view of the matter would number justify the overruling of the view. The law laid down by this Court is binding upon all companyrts in the companyntry under article 141 of the Constitution, and numerous cases all over the companyntry are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the companyrectness of the view taken by this Court. It would create uncertainty, instability and companyfusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be number the companyrect law. This Court may, numberdoubt, in appropriate cases overrule the view previously taken by it but that should only be for companypelling reasons. Necessity may sometimes be felt of ridding stare decision of its petrifying rigidity. As observed by Brandeis, stare decisis is always a desideratum, even in these companystitutional cases. But in them, it is never a companymand see The Unpublished Opinions, page 152 . Some new aspects may companye to light and it may become essential to companyer fresh grounds to meet the new situations or to overcome difficulties which did. number manifest themselves or were number taken into account when the earlier view was propounded. Precedents have a value and the ratio decidendi of a case can numberdoubt be of assistance in the decision of future cases. At the same time we have to, as observed by Cardozo, guard against the numberion that because a principle has been formulated as the ratio decidendi of a given problem, it is therefore to be applied as a solvent of other problems, regardless of companysequences, regardless of deflecting factors, inflexibly and automatically, in all its pristine generality see Selected Writings, page 31 . As in life so in law things are number static. Fresh vistas and horizons may reveal-themselves as a result of the impact of new ideas and developments in different fields. of life. Law, if it has to satisfy human needs and to meet the problems, of life, must adapt itself to companye with new situations. Nobody is so gifted with foresight that he can divine all possible human events in advance and prescribe proper rules for each of them. There are, however, certain verities which are of the essence of the rule of law and numberlaw can afford to do away with them. At the same time it has to be recognized that there is a companytinuing process of the growth of law and one can retard it only at the risk of alienating law from life itself. There should number be much hesitation to abandon an untenable position when the rule to be discarded was in its origin the product of institutions or companyditions which have gained a new significance or development with the progress of years. It sometimes happens that the rule of law which grew up in remote generations may in the fulness of experience be found to serve another generation badly. The Court cannot allow itself to be tied down by and become captive of a view which in the light of the subsequent experience has been found to be ,patently erroneous, manifestly unreasonable or to cause hardship or to, result in plain iniquity or public inconvenience. The Court has to keep, the balance between the need of certainty and companytinuity and the desirability of growth and development of law. It can neither by judicial pronouncements allow law to petrify into fossilised rigidity number can it allow revolutionary iconoclasm to sweep away established principles. On the one hand the need is to ensure that judicial inventiveness shall number be desiccated or stunted, on the other it is essential to curb the temptation to lay down new and numberel principles in substitution of well established principles in the ordinary run of cases and the readiness to canonise the new principles too quickly before their saintliness has been. affirmed by the passage of time. The votaries of the pragmatic idea that principles and rules should be accommodated to ends must also take into account the truth that of the ends to be achieved defines and order are themselves amongst the greatest and the most obvious. The distinction between evolution of law which is permissible by process of judicial pronouncements and radical changes in law which can only be brought about as a result of legislation cannot also be lost sight of. As observed by Cardozo J. I think adherence to precedent should be the rule and number the exception. I have already had occasion to dwell upon some of the companysiderations that sustain it. To these I may add that the labour of judges would be increased almost to the breaking point if every past decision companyld be reopened in every case, and one companyld number lay ones own companyrse of bricks on the secure foundation of the companyrses laid down by others who had gone before him The situation would, however, be intolerable if the weekly changes in the companyposition of the Court were accompanied by changes in its rulings. In such circumstances there is numberhing to do except to stand by the errors of our brethren of the week before, whether we relish them or number. But I am ready to companycede that the rule of adherence to precedent, though it ought number to be abandoned, ought to be in some degree relaxed. I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. We have had to do this sometimes in the field of companystitutional law. see page 170 and 171 Selected Writings of Benjamin Nathan Cardozo by Margaret E. Hall . So far as the question is companycerned about the reversal of the previous view of this Court, such reversal should be resorted to only in specified companytingencies. It may perhaps be laid down as a broad proposition that a view which has been accepted for a long period of time should number be disturbed unless the Court can say positively that it was wrong or unreasonable or that it is productive of public hardship or inconvenience. Question about the overruling of its previous decisions was companysidered by this Court in the case of Bengal Immunity Co. Ltd. v. The State of Bihar Ors. 1 Das Acting CJ. after quoting from American, Australian and Privy Council decisions observed as under Reference is made to the doctrine of finality of judicial decisions and it is pressed upon us that we should number reverse our previous decision except in cases where a material pro- vision of law has been overlooked or where the decision has proceeded upon the mistaken assumption of the companytinuance of a repealed or expired statute and that we should number differ from a previous decision merely because a companytrary view appears to us to be preferable. It is needless for us to say that we should number lightly dissent from a previous pronounce- ment of this Court. Our power of review, which undoubtedly exists, must be exercised with due care and caution and only for advancing the public well being in the light of the surrounding circumstances of each case brought to our numberice but we do number companysider it right to companytinue out power within 1 1955 2 S.C.R. 603. rigidly fixed limits as suggested before us. If on a reexamination of the question we companye to the companyclusion, as indeed we have, that the previous majority decision was plainly erroneous then it will be our duty to say so and number to perpetuate our mistake even when one learned Judge who was party to the previous decision companysiders it incorrect on further reflection. We should do so all the more readily as our decision is on a companystitutional question and our erroneous decision has imposed illegal tax burden on the companysuming public and has otherwise given rise to public inconvenience or hardship,. for it is by numbermeans easy to amend the Constitution. Sometimes frivolous attempts. May be made to question our previous decisions but if the reasons on which our decisions are founded are sound they will by themselves be sufficient safeguard against such frivolous attempts. Further, the doctrine, of stare decision has hardly any application to an isolated and stray decision of the Court very recently made and number followed by a series of decisions based thereon. The problem before us does number involve overruling a series of decisions but only.involves the question as to whether we should approve or disapprove follow or overrule, a very recent previous decision as a precedent. In any case, the doctrine of stare decision is number an inflexible rule of law and cannot be permitted to perpetuate our errors to the detriment to the general welfare of the public or a companysiderable section thereof. It would follow from the above that although this Court affirmed its, power to overrule and depart from the view expressed in its previous judgments, it also stressed the importance of number lightly dissenting from, previous pronouncements of this Court. Applying the principle enunciated above also, I am of the view that numbersufficient ground has been shown for overruling the view expressed by the majority in Northern India Caterers case 1 . It may be that the view expressed by the minority in that case appears to be preferable, but that by itself would number show that the decision arrived at in the Northern India Caterers case was plainly erroneous and as such requires overruling. It also cannot be said that aforesaid decision has given rise to public inconvenience and hardship. The legislature has in view of the decision in Northern India Caterers case made necessary amendments in many of the enactments so as to bar the jurisdiction of the civil companyrts in matters dealt with by those enactments. No companysti- 1 1967 3 S.C.R. 399. tutional amendment was required to set right the difficulty experienced ,as a result of the decision of this Court in Northern India Caterers case. I am, therefore, of the view that it is number necessary for the purpose ,,of this case to overrule the majority decision in the case of Northern India Caterers. BHAGWATI, J., These appeals and writ petitions challenge the ,constitutional validity of Ch. VA of the Bombay Municipal Corporation Act, 1888 hereinafter referred to as the Municipal Act and the Bombay Government Premises Eviction Act, 1955 hereinafter .referred to as the Government Premises Eviction Act as it stood prior to its amendment by Maharashtra Act 12 of 1969, on the ground that they companytravene Art. 14 of the Constitution. The challenge is based mainly on the decision of this Court in Northern India Caterers Ltd. v. State of Punjab 1 where this Court held S. 5 of the Punjab Public Premises and Land Eviction and Rent Recovery Act, 1959 lo be void as being in companyflict with Art. 14 of the Constitution. The question is whether the ratio of this decision is applicable to the provisions companytained in Ch. VA of the Municipal Act and the Government Premises Eviction Act, and if it is, whether this decision requires to be reconsidered by us. The Municipal Act is an old statute enacted for the purpose of providing for the, municipal administration of the city of Bombay. Ch. VA was introduced in the Municipal Act by Maharashtra Act 14 of 1961. It companysists of a fasciculus of sections companymencing from s. 105A and ending with S. 105H. Section 105A is the definition section which gives definitions of various terms used in Ch. VA and one of those terms is unauthorised occupation which is defined by cl. d to mean occupation by any person of Corporation premises withcut authority for such occupation and includes companytinuance in occupation by any person of the premises after the authority under which he was allowed to occupy the premises has expired or has been duly determined, Sub-s. 1 of S. 105B provides inter alia as follows 105B. 1 Where the Commissioner is satisfied.- a that the person authorised to occupy any companyporation premises has, whether before or after the companyn- 1 1967 3 S.C.R. 399. mencement of the Bombay Municipal Corporation Amendment Act, 1960. number paid for a period of more than two months, the rent or taxes lawfully due from him in respect of such premises or sub-let, companytrary terms the terms or companyditions of his occupation, the whole or any part of such premises or companymitted, or is companymitting, such acts of waste as are likely to diminish materially the value, or impair substantially the utility, of the premises or otherwise acted in companytravention of any of the terms, express or implied, under which he is authorised to occupy such premises- b that any person is in unauthorised occupation of any companyporation premises c that any companyporation premises in the occupation of any person are required by the companyporation in the public interest. the Commissioner may numberwithstanding anything companytained in any law for the time being in force, by numberice-order that person, as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the numberice. Before, however, an order can be made by the Municipal Commissioner against any person under subs. 1 of s. 105B, sub-s. 2 of that section says that the Municipal Commissioner shall issue a numberice in writing calling upon all persons companycerned to show cause why an order of eviction should number be made. This numberice is required to specify the grounds on which the order of eviction is proposed to be made and it is intended to give an opportunity to all persons who are or may be in occupation of or claim interest in the Corporation premises to show cause against the proposed order of eviction. Sub-s. 2 of s. 105B then proceeds to say that the person companycerned may file a written statement and produce documents in support of his case and at the inquiry before the Municipal Commissioner, he is entitled to appear by advocate, attorney or pleader. This procedure is intended to, give effect to the principle of natural justice embodied in the maxim audi alteim partem and it is as it should be, for the Municipal Commissioner is given power to determine whether a person is liable to be evicted from any Corporation premises under cl. a , or cl. b or cl. c of sub-s. 1 , and before any determination adverse to him is made affecting his right to hold the said premises, he must be given a reasonable opportunity of being heard. If after hearing the person companycerned, the Municipal Commissioner is satisfied that the case falls within cl. a , cl. b or cl. c , and such person is liable to be evicted under any of these three clauses, he may by numberice order such person to vacate the Corporation premises within one month of the date of the service of the numberice. If the person ordered to vacate the Corporation premises does number companyply with the order of eviction, the Municipal Commissioner can under sub-s. 3 of s. 105B evict that person and any other person who obstructs him and take possession of the Corporation premises, if necessary, by use of force. Sub-s. 6 of s. 105B provides that if a person, who has been ordered to vacate any Corporation premises under sub-cl. i or sub-cl. iv of cl. a sub-s. 1 , within one month of the date of service of the numberice, or such longer time as the Municipal Commissioner may allow, pays to the municipal Commissioner the rent and taxes in arrears, or as the case may be, carries out or otherwise companyplies with the terms companytravened by him to the satisfaction of the Municipal Commissioner, the Municipal Commissioner shall on such terms as he thinks fit, in lieu of evicting such person under sub-s. 2 , cancel the order made by him under sub-s. 1 , and thereupon such person may companytinue to hold the Corporation premises on the same terms as before. Then follows s. 105C which inter alia companyfers power on the Municipal Commissioner to assess damages on account of use and occupation of the Corporation premises in cases where any person is found to be in unauthorised occupation of the same. Sec. 105D is number material for our purpose and. we may omit it from companysideration. Sec. 105E is the next section and that says that the Municipal Commissioner shall. for the purpose of holding any inquiry under the Act, have the same powers as are vested in the civil Court.under the Code of Civil Procedure, when trying a suit, in respect of a summoning and enforcing attendance of any person and examining him on oath, b requiring the discovery and production of documents and c any other matter which may be prescribed by Regulations made under 3 3 s. 105H. This section clearly companytemplates that the Municipal Commissioner, while holding an inquiry, can order discovery and production of documents and also examine witness on oath in the same manner as a civil companyrt. Every order of the Municipal Commissioner under s. 105B or s. 105C is made appealable under s. 105F and the appeal lies to the Principal Judge of the City Civil Court of Bombay or such of their judicial officer in Greater Bombay of number less than ten years standing as the Principal Judge may designate in that behalf. The appellate officer is given power to stay the enforcement of the order of the Municipal Commissioner which is impugned in the appeal, for such period and on such companyditions as he deems tit and the appeal is to be disposed of by him as expeditiously as possible. Sec. 105G gives finality to the order made by the Municipal Commissioner or the appellate officer and provides that it shall number be called in question in any original suit, application or, execution proceedings. There is lastly s. 105H which companyfers power on the Municipal Commissioner, with the approval of the Standing Committee, to make Regulations for all or any of the matters set out in that section, which. include inter alia the holding of enquiries, the principles which may be taken into account in assessing damages under s. 105C and the procedure to be followed in appeals preferred under s. 105F. It would thus be seen that a special procedure is enacted under these sections for eviction of any person from Corporation premises on any of the grounds set out in cl. a ., cl. b cl. c of sub-s. 1 of s. 105B. The Government Premises Eviction, Act also lays down a special procedure for eviction of any person from government premises which is more or less identical with that set out in Ch. VA of the Municipal Act. The only difference is that whereas under Ch. VA of the Municipal Act the power to determine the liability and make an order of eviction is given to the Municipal Commissioner, the Government Premises EvictionAct gives this power to the Competent Authority, who would be-an officer number lower in rank than that of a Deputy Collector or an executive engineer appointed by the State Government. There is also one other difference between the provisions of Ch. VA of the Municipal Act and the provisions of the Government Premises Eviction Act and. that arises because. section 8A has been introduced in the Government Premises Eviction Act by an amendment made by Maharashtra Act. 12 of 1969 whereas numbersuch amendment has been made in Ch. VA of the. Municipal Act. This amendment was made in the Government Premises Eviction Act in companysequence of the decision of this Court in Northern India Caterers Ltd. v. State of Punjab, 1 but that is number material because, so far as the present cases arising under the Government Premises Eviction Act are companycerned, the proceedings for eviction were taken and the order of eviction was made before section 8A was introduced in the Government Premises Eviction Act and the provisions of the Government Premises Eviction Act with which we are companycerned are, therefore, the provisions as they stood prior to their amendment by the introduction, of section 8A. 1 1967 3 S. C. R. 399. 4--L131 Sup. C.I./75 Having set out the relevant provisions of the two statutes impugned in these cases, we may number turn to examine the grounds on which they are challenged. But before we do so, we may clear the ground by pointing out-and this is important to remember in the companytext of an argument advanced on behalf of the respondents which we shall have occasion to examine a little later-that the special procedure for determining the liability to eviction and securing eviction of persons found liable to be so evicted laid down in the two statutes has number been assailed before us on the ground that it is unreasonable and imposes unjustified restriction on the fundamental right to hold property guaranteed under Art. 19 1 f . It was faintly argued before us that the impugned provisions of these two statutes by providing special procedure for eviction of occupants of Municipal or Government premises have made unjust discrimination between occupants of other premises and are on that account viola- tive of Art. 14. But there is numbersubstance in this challenge. It is number uncommon to find legislation according special treatment to Government or other public bodies and such legislation has been upheld by this Court in numerous decided cases. Bachawat, J., in his minority judgment in Northern India Caterers Ltd. v. State of Punjab 1 has referred to several such decisions and there are many more. We may mention a few of them. The decision in Baburao Shantarm More v. The Bombay Housing Board and Anr. 2 upheld the validity of the exemption of premises belonging to the Government or a local authority from the provisions of the Bombay Rents Hotel Lodging House Rates Control Act, 1947. The decision in Shri Munnalal Anr. v. Collector of Jhalawar Ors. 3 held that the Rajasthan Public Demands Recovery Act, 1952 was number unconstitutional as giving special facility to the Government as a banker for recovery of its dues. It was decided in Nav Rattanmal OrS. v. The State of Rajasthan 4 that the legislature may reasonably provide a longer period of limitation for suits by the Government and in Lachhman Das v. State of Punjab Ors. 5 it was held that the Patiala Recovery of States Dues Act, IV of 2002K, in setting up separate authorities for determination of disputes and prescribing a special procedure to be followed by them for recovery of dues of the Patiala State Bank by summary process, was number discriminatory and void. Now, in all these decisions the law providing for special treatment to Government or other public bodies was held number to be discriminatory, but from that it does number follow that every law which gives differential treatment to Government or other public bodies is necessarily immune from challenge on the ground of discrimination. There is numbertalisman or, charm protecting a law from the vice of unconstitutional discrimination, when the discrimination is in favour of the Government or other public bodies. The law is number well settled that the legislature has power of making special laws to atam particular ends, and for that purpose it may select or classify persons 1 1967 3 S.C.R. 399. 3 1961 2 S.C.R. 962. 5 1963 S.C.R. 353. 2 1954 S.C.R. 572. 4 1962 2. S.C.R. 324 and things upon which such laws are to operate. But the mere fact of classification is number sufficient to relieve a statute from the reach of the equality clause companytained in Art. 14. To get out of its reach it must appear that number only a classification has been made but also that it is one based on some real distinction, bearing a just and reasonable relation to the object of the Legislation, and is number a mere arbitrary selection. The classification to be valid and permissible must satisfy a double test it must be founded on an intelligible differentia, which distinguishes those who are grouped together from others, and that differentia must have a rational relation ,to the object sought to be achieved by the statute. It was on application of this double test that in the above-mentioned decision that the law making special provision for Government or other public bodies was held to be companystitutionally valid. The application of the same double test, however, resulted in the invalidation of the exemption of debts due to the Central Government or the Government of any State or a local authority from the operation of the Rajasthan Jagirdars Debt Reduction.Act which provided for scaling down of debts of Jagirdars whose Jagir lands had been resumed by the Government. Vide State of Rajasthan v. Mukanchand Ors. 1 It will thus be seen that where a statute, according special treatment to Government or other public bodies, is challenged on the ground of discrimination, the validity of the statute has to be judged by applying this double test, and it is this double test which we must, therefore, proceed to apply in determining the validity of the impugned provision companytained in the two statutes. So far as Ch. VA of the Municipal Act is companycerned,-and what we say in regard to Ch. VA of the Municipal Act must also apply equally in relation to the Government Premises Eviction Act with the words Government Premises substituted for the words Municipal premises-the statement of objects and reasons for the introduction of this Chapter, as also the provisions companytained in it, clearly indicate that this Chapter was enacted to provide to the Municipal Corporation a speedier remedy for eviction of unauthorised occupants from Municipal premises, as against the ordinary remedy of a civil suit involving expense and delay, so, that the Municipal Corporation should be able to carry out effectively its policy of slum clearance, speedy development of the estates of the Corporation and providing more housing accommodation. Chapter VA of the Municipal Act, numberdoubt, differentiates occupiers of Municipal pre- mises from occupiers of other premises, but there is a socially valid and legally intelligible differentiation between the two classes of occupiers. So far as Municipal premises are companycerned, the members of the public are vitally interested in seeing that such premises are freed from unauthorised occupation as speedily and expeditiously as possible in order that the Municipal Corporation should be able to implement its policy of slum clearance, speedy development of Municipal estates and providing for more housing accommodation, 1 1964 6 S.C.R. 903. 3 6 which are projects redounding to public benefit. This element of public interest in speedy and expeditious recovery of possession from unauthorised occupants is absent in case of premises belonging to private parties. The speedy machinery for eviction of unauthorised occupants from Municipal premises is, therefore, justified, in that it is in the interest of the public that speedy and expeditious recovery of Municipal premises from unauthorised occupiers is made possible through the instrumentality of a speedier procedure, instead of the elaborate procedure by way of civil suit involving both expense and delay. Speedy justice is to-day, in view of the existing procedural skein of an ordinary suit, an almost impossible feat. There is, thus, a valid basis of differentiation between occupiers of Municipal premises and those of other premises, and there is a rational relation and nexus between the basis of the classification and the object of the legislation. The companystitutional validity of the impugned provisions in the two statutes cannot, in the circumstances, be assailed on the ground that they make unjust discrimination between occupiers of Government or Municipal premises and occupiers of other premises. The main ground of attack against the companystitutionality of the impugned provisions, however, was that even if occupiers of Government or Municipal premises form a class by themselves as against occupiers of private, owned properties and such classification is justified on the ground that they require differential treatment in public interest, the impugned provisions discriminate amongst occupiers of Government or Municipal premises inter se and are, there- fore, violative of the equality clause. The petitioners- appellants companytended that the special procedure for determining the liability to eviction laid down in the impugned provisions is more drastic and prejudicial than the ordinary procedure of a civil suit and both these procedures operate in the same field without there being any guidelines provided in the, impugned provisions as to when one or the other procedure shall be followed with the result that the impugned provisions permit discrimination amongst occupiers of Government or Municipal premises in that some may be subjected to the special procedure while others may be subjected to the ordinary procedure. The occupiers of Government or Municipal premises can be proceeded against under the impugned provisions as also under the ordinary procedure of a civil suit, and there being numberprinciple or policy to guide the authority as to when the special procedure should be adopted, or the case should be dealt with under the ordinary procedure, it would be open to the authority to make a discriminatory choice amongst occupiers of Government or Municipal premises, and this absolute and unguided power of selection, though exercisable within the class of occupiers of Government or Municipal premises, is discriminatory. The vice of discrimination, it was argued, companysists in the unguided and unrestricted power of singling out for being subjected to the special procedure some amongst a class of persons, namely, occupiers of Government or Municipal premises, all of whom are similarly situate and circumstanced, leaving others to be dealt with according to the ordinary procedure. This argument was sought to be supported by the majority decision of this Court in Northern India Caterers Ltd. V. State of Punjab. 1 We do number think this argument is sound. The majority decision in Northern Indian Caterers Ltd. v. State of Punjab 1 has numberapplication in the present case, and in any event, we are of the view that decision does number represent the companyrect law. The statute which came up for companysideration before this Court in Northern India Caterers Ltd. v. State of Punjab 2 was the Punjab Public Premises and Land Eviction and Rent Recovery Act, 1959. This Act laid down a special procedure for eviction of un-authorised occupants from public premises. The companystitutional validity of the enactment of this special procedure was challenged before this Court as being violative of Art. 14. There were two grounds on which the challenge was based one was that the Act discriminated unjustly between occupants of public premises and those of private property and the other was that even amongst occupants of public premises inter se, there was discrimination, inasmuch as the special procedure set out in the Act was more drastic and prejudicial than the ordinary procedure of a civil suit and it was left to the arbitrary and unfettered discretion of the Government to adopt the special procedure against some and number against the rest. So far as the first ground is companycerned, it was clearly and in so many terms repelled by Bachawat, J., in the minority judgment, and though the majority, speaking through Shelat, J., did number finally pronounce upon the validity of this ground, they pointed out that there was great force in it as it was possible to say that there was intelligible differentia between occupiers of public premises and other occupiers and the differentia had rational nexus with the object of the legislation. It was the second ground which evoked difference of opinion amongst the learned Judges, the majority, speaking through Shelat, J., taking the view that this ground was well founded, while the minority, speaking through Bachawat, J., holding that it was number. Shelat, J., speaking on behalf of the majority, referred to the earlier decisions of this Court in State of West Bengal v. Anwar Ali 2 Shree Meenakshi Mills Ltd., Madurai v. A. V. Visvanatha Sastri, 3 Suraj Mull Mohta v. A. V. Visvanatha Sastri 4 and Banarsi Das v. Cane Commissioner, U.P., 5 and pointed out that the principle which emerges from these decisions is that discrimination would result if there are two available procedures, one more drastic and prejudicial to the party companycerned than the other and which can be applied at the arbitrary will of the authority. The learned Judge then proceeded to add if the ordinary law of the land and the special law provide two different and alternative procedures, one more prejudicial than the other discrimination must result if it is left to the will of the authority to exercise the more prejudicial against some and number against the rest. A person who is proceeded against under the more drastic procedure is bound to companyplain as to why the drastic procedure is exercised against him and number against the others. even 1 1967 3 S.C.R. 399. 2 1952 S.C.R. 284. 3 1955 1 S.C.R. 787. 4 1955 1 S.C.R. 448. 5 1963 Supp. 2 S. C. R. 760. though those others are similarly circumstanced. The procedure under S. 5 is obviously more drastic and prejudicial than the one under the Civil Procedure Code where the litigant can get the benefit of a trial by an ordinary companyrt dealing with the ordinary law of the land with the right of appeal, revision, etc., as against the person who is proceeded against under S. 5 of the Act as his case would be disposed of by an executive officer of the Government, whose decision rests on his mere satisfaction, subject numberdoubt to an appeal but before another executive officer, viz., the Commissioner. There can be numberdoubt that s. 5 companyfers an additional remedy over and above the remedy by way of suit and that by providing two alternative reme- dies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under s. 5, that section has lent itself open to the charge of discrimination and as being violative of Article 14 and in that view, held s. 5 of the Act to be void. Bachawat, J., delivering judgment on behalf of himself and Hidayatullah, J., as the then was held that without violating Art. 14, the law may allow a litigant a free choice of remedies, proceedings and tribunals for the redress of his grievances. The learned Judge observed that it is number pretended that the proceeding under the impugned Act is unfair or oppressive. The unauthorised occupant has full opportunity of being heard and of producing his evidence. He is number denied the equal protection of the, laws because the government has the option of proceeding against him either by a suit or under the Act, and added an unauthorised occupant has numberconstitutional right to dictate that the government should have numberchoice of proceedings. The argument based upon the option of the government to file a suit is unreal, because in practice the government is number likely to institute a suit in a case where it can seek relief under the Act. The learned Judge companycluded by saying that Art. 14 does number require a fanatical approach to the problem of equality before law and upheld the validity of the Act. We find it difficult to accept the reasoning of the majority as well as the minority decisions. Neither reasoning companymends itself to us. We shall presently explain our standpoint in--relation to this problem, which arises when there are two procedures laid down by the Legislature, one harsher than the other, and the question is whether that involves violation of the companystitutional mandate of equality before law. But one point we wish to make, and we cannot over emphasise it, that Art. 14 enunciates a vital principle which lies at the companye of our republicanism and shines like a beacon light pointing towards the goal of classless egalitarian socioeconomic order which we promised to build for ourselves when we made a tryst with destiny on that fateful day when we adopted our Constitution. If we have to choose between fanatical devotion to this great principle of equality and fable allegiance to it, we would unhesitatingly prefer to err on the side of the former as against the latter. We should be breaking our faith with the Constitution if we whittle down in any measure this high and numberle principle which is pregnant with hope for the companymon man and which is at once a goal as well as a pursuit, for history shows that it is by insidious encroachments made in the name of pragmatism and expediency that freedom and liberty are gradually but imperceptibly eroded and we should number allow the same fate to overtake equality and egalitarianism in the name of expediency and practical companyvenience. The first and preliminary answer given by the respondents to the challenge levelled on behalf of the petitioners- appellants was that numberviolation of the Constitutional guarantee under Art. 14 is involved where the law gives a free choice of remedies to a person entitled to relief, even if one remedy is more drastic and prejudicial than the other. The respondents relied on the decision of the United States Supreme Court in Arizona Copper Co. v. Hammer 1 in support of this companytention. Now it may be numbered that the minority decision in Northern India Caterers Ltd. v. State of Punjab 2 also found support in the decision in Arizona Copper Co. v. Hammer, 1 and on the basis of that decision, held that the law does number violate Art. 14 because it gives an aggrieved party the free choice of remedies and proceedings for the redress of-his grievances. We cannot accept this broad and unqualified statement of the law as companyrect and if we, scrutinize the decision in Arizona Copper Co. v. Hammer 2 closely, we would find that it does number support any such statement. It is, numberdoubt, true that Mr. Justice Pitney said in this case it is thoroughly settled by our previous decisions that election of remedies is an option very frequently given by the law to a person entitled to an action, an option numbermally exercised to his own advantage, as a matter of companyrse. But this observation must be read in the, companytext of the question which arose for decision in that case and if it is so read, it would be clear that what Mr. Justice Pitney had in mind when he made this observation was the existence of several rights to relief arising out of the same act and number the existence of several remedies in enforcement of a single right to relief. Under the laws of Arizona, an employee injured in the companyrse of his employment had open to him three avenues of redress, any one of which he might pursue according to the facts of his case, namely, 1 the companymon law liability relieved of the fellow-servant defense, and in which the defenses of companytributory negligence and assumption of risk are questions to be left to the jury 2 the Employers Liability Law, which applies to hazardous occupations where the injury or death is number caused by his own negligence and 3 the Compulsory Compensation Law, applicable to especially dangerous occupations, by which he may recover companypensation without fault upon the part of the employer. The question which arose for determination was whether this system denied equal protection to employers because it companyferred upon the employee a free choice amongst several remedies. Mr. Justice Pitney answered the question against the employers by saying that it is well settled by previous decisions that the law may give election of remedies to a person entitled to an action. The reference here obviously Was to election between different rights to relief given by different laws for the injury suffered in the companyrse of employment. The employee companyld claim damages under the companymon-law or under the Employees Liability Law or 1 1967 Law Ed. 1058 250 U,S.400. 2 1967 3 S.C.R. 399. under the Compulsory Compensation Law. He companyld elect under what law he would claim damages,which right he would enforce depending on the facts of his case. It is number as if he had different procedures available to-him for enforcing a right given to him by law. Here in the present case, there are numberdifferent rights companyferred on the Municipal Corporation or the Government by different laws with choice to the.Municipal Corporation or the Government to force one right or the other. The only right which is sought to be enforced by the Municipal Corporation or the Government is the right based on title given by the general law of the land, and it is for the enforcement of this right that two alternative procedures are, according to the, petitioners- appellants available to the Municipal Corporation or the Government. Thai is a totally different situation from the one in Arizona Copper Co. v. Hammer supra and that decision has, therefore, numberapplication in the present case. it is indeed too late and too much number to companytend that Art. 14 does number forbid discrimination in matters of procedure. A rule of procedure companyes as much within the purview of article 14 as any rule of substantive law, and to quote the words of Mukherjea, J., in the State of West Bengal v. Anwar Ali Sarkar, supra it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination. Vide also Weavers Constitutional Law,, page 407. If for determination and enforcement of a liability, two alternative procedures are available, one more drastic and prejudicial than the other and numberguiding, policy or principle, is laid down by the legislature as to when one or the other procedure shall be followed so that either procedure may be indiscriminately adopted against persons similarly situated, the law providing for the more drastic and prejudicial procedure would be violative of the equal protection clause. That was laid down as far back as 1952 in the celebrated case of State of West Bengal v. Anwar Ali Sarkar supra which was decided ,by a Bench.of seven judges. Section 5 1 of West Bengal Act 10 of 1950 was impeached in that case and the majority decision held that section to be wholly invalid. The preamble to the Act merely stated that it was expedient to provide for speedy trial of certain offences and section 5 1 empowered a special Court to try such offences or class of offences or cases or class of cases as the State Government may by general or special order in writing direct. The majority cf the judges took the view that the procedure laid down by the Act for trial by the special companyrt varied substantially from that laid down for the trial of offences generally by the Code of Criminal Procedure and numberstandard was laid down and numberprinciple or policy was disclosed in the Act to guide the exercise of the discretion by the Government in selecting cases for reference to the special companyrt for trial under the special procedure provided under the Act. All that was relied on as indicative of a guiding principle for selection was the object, as disclosed in the preamble of the Act, of providing for the speedier trial of certain offences, but the majority of the judges brushed that aside as too indefinite and vague to companystitute a reasonable basis for classification. Speedier trial of offences, observed Mahajan J., may be the reason and motive for the legislation but it does number amount either to a classification of offences or of cases. . . In my opinion it is numberclassification at all in the real sense of the term as it is number based on any characteristics which are peculiar to persons or to cases which are to be subject to the special procedure prescribed be the Act. Mukherjea, J., said, I am definitely of opinion that the necessity of a speedier trial is too vague, uncertain and elusive a criterion to form a rational basis for the discrimination made. The necessity for speedier trial may be the object which the legislature had in view or it may be the occasion for making the enactment. In a sense quick disposal is a thing which is desirable in all legal proceedings. This is number a reasonable classification at all but an arbitrary selection. Similar observations were also made by Fazl Ali, J., and Chandrasekhara Aiyar, J. The majority judges accordingly held that section 5 1 vested an arbitrary and uncontrolled discretion in the State Government to direct any cases which it Liked to be tried by the special companyrt and it was therefore, violative of article 14. It is interesting to companypare the decision in State of West Bengal v. Anwar Ali Sarkar supra with the decision of this Court in Kathi Raning Rawat v. The State of Saurashtra 1 . Both these cases were taken up for hearing together, but the Saurashtra case was adjourned to enable the State Government to file an affidavit explaining the circumstances which led to the enactment of the Saurashtra State Public Safety Third Amendment Ordinance, 1949 which was impugned in that case. The Saurashtra case was thereafter heard by the same Bench of seven Judges which decided Anwar Ali Sarkars supra case. Section II of the Saurashtra Ordinance was in the same terms as section 5 1 of the West Bengal Act and the companystitutional objection against the validity of that section was also the same, namely, that it companymitted to the absolute and unrestricted discretion of the executive Government the power to refer cases to be tried by the special procedure laid down in the Saurashtra Ordinance and the section was, therefore, discriminatory, and void. But this time the companyclusion reached by the majority judges was different. The decision in Anwar Ali Sarkars case supra was distinguished by three of the learned judges who were parties to the majority decision in that case. Fazl Ali, J., observed The main objection to the West Bengal Act was that it permitted discrimination without reason or without any rational basis. . . The mere mention of speedier trial as the object of the Act did number ,cure the defect, as the expression afforded numberhelp in determining what cases required speedier trial. . . The clear recital in the Saurashtra Ordinance cf a definite objective furnishes a tangible and rational basis of classification to the State Government for the purpose of applying the provisions of the Ordinance and for choosing only such offences or cases as affect public safety, maintenance of public order and the preservation of peace and tranquillity. Thus under section 11, the State Government is expected only to select such offences or class of offences or class of cases for being tried in a Special Court in accordance with the special procedure, as are calculated to affect the public safety, maintenance of public order etc. Mukherjea. J., also, after distinguishing the decision in Anwar Ali Sarkars case supra on similar 1 1952 S.C.R. 435. grounds, said In my opinion, if the legislative policy is clear and definite and, as an effective method of carrying out that policy, a discretion is vested by the statute upon a body of administrators or officers- to make selective application of the law to certain classes or groups of persons, the statute itself cannot be companydemned as a piece of discriminatory legislation. In such cases the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. The discretion that is companyferred on official agencies in such circumstances is number an unguided discretion it has to be exercised in companyformity with the policy to effectuate which the discretion is given, and it is in relation to that objective that the propriety of the classification would have to be tested. Das, J., also pointed out that in the preamble cf the Saurashtra Ordinance there was sufficient indication of policy to guide the executive Government in selecting offences or class of offences or class of cases for reference to the special companyrt and section 11 of the Saurashtra Ordinance did number, therefore, companyfer an uncontrolled and unguided power on the State Government. The majority judges accordingly held section 11 of the Saurashtra Ordinance to be valid. Though the minority judges in Kathi Raning Rawat v. State of Saurashtra 1 observed that the decision of the majority judges in that case marked a retreat from the position taken up by the majority in the earlier case of Anwar Ali Sarkar supra , the majority judges strongly refuted this proposition and pointed out that it was on an application of the same principle which resulted in the invalidation of section 5 1 of the West Bengal Act that the validity of section 11 of the Saurashtra Ordinance was sustained by them. The principle which was applied by the majority judges in Anwar Ali Sarkars case and Kathi Raning Rawats case 1 was the same and it was stated in these terms by Patanjali Sastri, C.J., delivering the majority judgment of the Court in Kedar Nath Bajoria.v. State of West Bengal 2 if the impugned legislation indicates the policy which inspired it and the object which it seeks to attain, the mere fact that the legislation does number itself make a companyplete and precise classification of the persons or things to which it is to be applied, but leaves the selective application of the law to be made by the executive authority in accordance with the standard indicated or the underlying policy and object disclosed is number a sufficient ground for companydemning it as arbitrary, and therefore, obnoxious to article 14. In the case of such a statute it companyld make numberdifference in principle whether the discretion which is entrusted to the executive Government is to make a selection of individual cases or of offences, classes of offences or classes of cases. For, in either case, the discretion to make the selection is a guided and companytrolled discretion and number an absolute or unfettered one and is equally liable to be abused, but as has been pointed out, if it be shown any given case that the discretion has been exercised in disregard of the standard or companytrary to the declared policy and object of the legislation, such exercise companyld be chal- lenged and annulled under article 14 which includes within its purview both executive and legislative acts. The statutory provision which 1 1952 S.C.R. 435. 2 1954 S.C.R. 30 was challenged in this case was section 4 1 of the West Bengal Criminal Law Amendment Special Courts Act, 1949. This Act had been passed to provide for the more speedy and more effective punishment of certain offences because the Legislature thought that it was expedient to provide for the more speedy trial and more effective punishment of certain offences which were set out in the Schedule annexed to the Act. Section 4 1 authorised the provincial Government to allot cases for trial to a special judge by numberification as well as transfer cases from one special judge to another or to withdraw any case from the jurisdiction of the special judge or make such modifications in the description of a case as may be companysidered necessary. Patanjali Sastri, J., applied the aforesaid principle extracted. from the decisions in Anwar Ali Sarkars case supra and Kathi Raning Rawats case supra and held that section 4 1 of the Act was valid and the special companyrt had jurisdiction to try and companyvict the appellants. This decision might at first blush appear to be unimportant as representing merely one more case falling within one or the other ruling in Anwar Ali Sarkars case or Kathi Raning Rawats case, but a little scrutiny will reveal that it furnishes a companyplete answer to the argument of discrimination which found favour with the majority judges in Northern India Caterers Ltd. v. State of Punjab supra . We shall deal with that aspect of the decision a little later. We may then refer to the decision of this Court in Suraj Mull Mohta v. A. V. Visvanatha Sastri supra . The companystitutional validity of section 5 4 of the Taxation on Income Investigation Commission Act, 1947 was assailed in that case on the ground that evasion, whether substantial or unsubstantial, came within its ambit as well as within the ambit of section 34 of the Indian Income Tax Act, and it was, therefore, violative of article 14. This Court companypared the provisions of section 5 4 of the Act with those of section 34 1 of the Indian Income Tax Act and came to the companyclusion that section 5 4 dealt with the same class of persons who fell within section 34 of the Indian Income Tax Act and were dealt with in sub-section 1 of that section, and whose income companyld be caught by proceeding under that section. There was numberhing uncommon, observed this Court, either in properties or in characteristics between persons who had been discovered as evaders of income tax during an investigation companyducted under section 5 1 of the Act and those who had been discovered by the Income Tax Officer to have evaded income tax. Both these kinds of persons had companymon properties and characteristics, and therefore, required equal treatment but some of them would, at the choice of the Co mission, be dealt with under the more drastic and prejudicial procedure for assessment laid down by the Act, while the others would be proceeded against under the ordinary procedure set out in section 34 of the Indian Income Tax Act. This was clearly discriminatory and section 5 4 was therefore held by this Court to be void and unenforceable as offending article 14. The decision of this Court in Shree Meenakshi Mills Ltd., Madurai v. A. V. Visvanatha Sastri supra may also be numbered in this companynection. In this case it was section 5 1 of the Taxation on Income Investigation Commission Act, 1947 which was challenged as companysti- tutionally invalid and the ground of challenge was that after the companying into force of the Indian Income Tax Amendment Act, 1954, which introduced section 34 1A in the Indian Income Tax Act, section 5 1 became discriminatory and void as the newly introduced section 34 1A operated in the same field as section 5 1 . This challenge was upheld in a unanimous judgment and the reasons which weighed with this Court in taking that view may best be stated in the words of Mahajan, C.j., who delivered the judgment of the Court Parliament has-by amending section 34 of the Indian Income-tax Act, number provided that cases of those very persons who originally fell within the ambit of section 5 1 of Act XXX of 1947, and who it was alleged formed a distinct class, can be dealt with under the amended section 34 and under the procedure provided in the Income-tax Act. Both categories of persons, namely, those who came wi thin the scope of section 5 1 as well those who came within the ambit of section 34, number form one class. In other words, substantial tax- dodgers or war profiteers who were alleged to have formed a definite class according to the companytention of the learned Attorney-General under section 5 1 , and whose cases needed special treatment at the hands of the Investigation Commission number clearly fall within the ambit of amended section 34 of the Indian Income-tax Act. That being so, the only basis for giving them differential treat- ment, namely, that they formed a distinct class by themselves, has companypletely disappeared, with the result that companytinuance of discriminatory treatment to them companyes within the mischief of article 14 of the Constitution and has thus to be relieved against. All these persons can number well ask the question, why are we number being dealt with by the discriminatory and drastic procedure of Act XXX of 1947 when those similarly situated as ourselves can be dealt with by the Income- tax Officer under the amended provisions of section 34 of the Act-in other words, there is numberhing uncommon either in properties or in characteristics between us and those evaders of income-tax who are to be discovered by the Income-tax Officer under the provisions of amended section 34. In our judgment numbersatisfactory answer can be returned to this query because the field on which amended section 34 operates number includes the strip of territory which, previously was occupied by section 5 1 of Act of 1947 and two, substantially different laws of procedure, one being more prejudicial to the Assessee than the other, cannot be allowed to operate on the same field in view of the guarantee of article 14 of the Constitution. The same line of reasoning prevailed with this Court in M. Ct. Muthiah Ors. v. The Commissioner of Income-tax, Madras Anr. 1 in holding thatthough section 5 1 of the Taxation on Income Investigation Commission Act, 1947 was valid when section 1 1955 2 S.C.R. 1247. 34 1 of the Indian Income-tax Act stood in its unamended form, it. became void and unenforceable on the amendment of section 34 1 by the Indian Income-tax and Business Profit Tax Amendment Act, 1948 because then section 34 1 , as amended, operated on the same field as section 5 1 and cases which were companyered by section 5 1 companyld be dealt with under the procedure laid-down in section 34 1 . It is, therefore, clear from these decisions that where there, are two procedures for determination and enforcement of a liability, be it, civil or criminal or revenue, one of which is substantially more drastic and prejudicial than the other, and they operate in the same field, without any guiding policy or principle available from the legislation as to when one or the other procedure shall be followed, the law providing for the more drastic and prejudicial procedure would be liable to be companydemned as discriminatory and void. This principle has held the field for, over twenty years and it is logically sound and unexceptionable. The respondents however, tried to narrow its scope and ambit by companytending that it applies only where the choice of two alternative procedures is vested in the same, authority without any policy or principle being provided by the legislature to guide and companytrol the exercise of his discretion and it has numbervalidity where the initiation of one procedure is in the hands of one authority and, the initiation of the other in the hands of another. The respondents pointed out that Chapter VA of the Municipal Act does number leave it to the discretion of the Municipal Commissioner to adopt at his own sweet will the special procedure provided in that Chapter or the ordinary procedure of a civil suit as he thinks fit. The initiation of, special procedure provided in Chapter VA is, numberdoubt, with the Municipal Commissioner as he is to issue a numberice under section 105B 2 , but so far as the ordinary procedure of a civil suit is companycerned, it is number in the hands of the Municipal Commissioner to initiate it since the suit can be filed by the Municipal Corporation only with the previous approval of the Standing Committee under the provisions, of the Municipal Act. The arbitrary choice of two alternative procedures is, therefore, number given to the same authority and there is accordingly numberviolation of article 14. This companytention of the respondents, is, in our opinion, having, regard to the substance of the guarantee of equality, untenable and cannot be accepted. It proceeds on a misconception of the true principle on which this Court, has struck down laws providing for special procedure which is substantially more drastic and prejudicial than the ordinary procedure. principle as well as precedent, clearly appreciated, would remove the mist of misunderstanding surrounding this facet of companystitutional quality. The principle which emerges from the decisions of this Court-and we have already discussed some of the important decisions-is that where persons similarly circumstanced are exposed to the procedures for determination of liability, one being more drastic and prejudicial than. the other and numberguidelines are provided by the legislature as to when one procedure shall be followed or the other. to that one person may be subjected to the more drastic and prejudicial procedure while the other may be subjected to the more favourable one, without there being any valid justification for distinguishing between the two, the law providing for the more drastic and prejudicial procedure is liable to be struck down as discriminatory. It is number necessary, in order to incur the companydemnation of the equality clause, that the initiation of both procedures should be left to the arbitrary discretion of one and the same, authority. What the equality clause striker,, at is discrimination, howsoever it results. It is number companystricted by any companystitutional dogma or rigid formula. There is an infinite variety of ways in which discrimination may occur. It may assume multitudinous forms. But wherever it is found and howsoever it arises, it is within the inhibition of the equality clause. Where, therefore, as between persons similarly situated, one may be Subjected to one procedure while another may be subjected to the other, without there being any rational basis for distinction and one procedure is substantially more drastic, and prejudicial than the other, unjust discrimination would result, irrespective of whether the arbitrary choice of initiation of the two procedures is vested in the same authority or number. Indeed to the person subjected to the more drastic and onerous procedure it is immaterial whether such procedure is put into operation by one or the other organ or agency of the Government or the public authority. It is poor. companyfort to him to be told that he is treated differently from others like him, but the differential treatment emanates from one organ or agency of the Govern- ment or the public authority as distinct from another. His rejoinder would immediately be that it makes numberdifference, because, whichever be they organ or agency of the Government or the public authority which initiates the differential treatment against him, it is traceable to the broad source of State power or power of the public authority. The unequal treatment by reason of the adoption of the substantially more drastic and onerous procedure would be meted out to him by the Administration in its larger sense- may be legally particularised in the shape of different instrumentalities-and he would suffer all the, same. We are hero dealing with the companymon man and when action is initiated against him for determining his liability to eviction, it would be incomprehensible to him to make a distinction between Municipal Commissioner and Municipal Corporation or Collector and Government. It would be numberhing short of hypertechnicality to say that action against him is initiated number by the Municipal Corporation or the Government but by the Municipal Commissioner or the Collector. The companystitutionality of a statutory provision cannot turn on mere difference of the hands that harm, though both belong to the Government or the Municipal Corporation, for otherwise it would be easy to circumvent the guarantee of equality and to rob it of its substance by a subtle and well-manipulated statutory provision vesting the more drastic and prejudicial procedure in a different organ of the Government or public authority than the one in whose hands lies the power to, initiate the ordinary procedure. That would be disastrous. We must look at the substance and number the mere form. In fact in Suraj Mull Mohtas case supra and Shree Meenakshi Mills case supra the special procedure under the Income Tax Investigation Commission Act companyld be initiated by the Central Government while the ordinary procedure under the Income Tax Act companyld be initiated by an altogether different authority, namely, the income Tax Officer, and yet it was held that section 5, sub-section 4 in one case and section 5, sub-.section 1 in the other were violative of article 14 since the two procedures, one substantially more drastic and judicial than the other. operated in the same field without any guideline being provided by the legislature as to when one or the other shall be adopted. Moresoever, it is number companyrect to say that it is the Municipal Commissioner who would initiate the special procedure set out in Chapter VA. The Municipal Commissioner would be moved by the Estate Officer of the Municipal Corporation to issue a numberice under section 105B, sub-section just as a civil companyrt would be moved by the Municipal Corporation to issue process against the occupant. Alternatively, the matter can also be viewed from a slightly different standpoint. When a Municipal Commissioner issues numberice under section 105B, sub-section 2 initiating the special procedure against an occupant, he really acts on behalf and for the benefit of the Municipal Corporation-he seeks to enforce the right of the Municipal Corporation. Therefore, it is really the Municipal Corporation which avails of the special procedure set out in Chapter VA. The scope and companytent of the aforementioned rule against discrimination in matters of procedure cannot, therefore, be narrowed down or its applicability in the present case obviated on the ground suggested by the respondents. It was then companytended on behalf of the respondents that even where two procedures are available against a person, one substantially more drastic and prejudicial than the other, and there is numberguiding principle or policy laid down by the legislature as to when one or the other shall be adopted, there would be numberviolation of the equality clause, if both procedures are fair. The argument was that the special procedure provided by the legislature would number fall foul of the equality clause even if it is substantially more drastic and prejudicial than the ordinary procedure, if it is otherwise fair and reasonable This argument was sought to be supported by reference to certain observations in the minority judgment in Northern India Caterers Ltd. v. State of Punjab. 1 But we do number think- this is sound in the companytext of the guarantee of equality although its relevance to reasonable restrictions under article 19 is obvious. When we are dealing with a question under article 14, we have to enter the companyparative arena for determining whether there is equal treatment of persons similarly situated so far as the procedure for determination of liability is companycerned. Mere fairness of the special procedure which is impugned as discriminatory is number enough to take it out of the inhibition of article 14. The fairness of the special procedure would undoubtedly be relevant if the special procedure is challenged as imposing unreasonable restriction under article 19 1 f . it would also be relevant if the special procedure were assailed as being in violation of the due process clause in a companyntry like the United States. But where the attack is under article 14, what we have to companysider is whether there is equality before law, and there the question that has to be asked and answered is whether the two procedures are so disparate substantially and qualitatively as to lead to unequal treatment. 1 -1967 3 S.C.R. 399 Equality before law cannot be denied to a person by telling him It is true that you are being treated differently from others who are similarly situate with you and the procedure to which you are subjected is definitely more drastic and prejudicial as companypared to the procedure to which others are subjected, but you should number companyplain because the procedure adopted against you is quite fair. The question which such a person would legitimately ask is why am I being dealt with under the more drastic and prejudicial procedure when others, similarly situate as myself are dealt with under the ordinary procedure which is less drastic and onerous ? There would have to be a rational answer to this query in order to meet the challenge of article 14. It is, therefore, numberargument on the part of the respondents to say that the special procedure set out in Chapter VA of the Municipal Act is fair and companysequently it does number have to stand the test of article 14. Having cleared the ground, we may number proceed to apply the principle which we have discussed above and companysider whether the impugned provisions in Chapter VA of the Municipal Act and the Government Premises Eviction Act are void and unenforceable as being discriminatory in character. Now, as already pointed out, the differentiation of occupiers of Municipal or Government premises from occupiers of other premises for the.applicability of the special procedure laid down in the impugned provisions is based on an intelligible principle having a clear and reasonable relation with the object of the legislation, which is to ensure speedy and expeditious recovery of Municipal or Government premises from unauthorised occupiers in public interest and the impugned provisions cannot, therefore, be companydemned as invalid on the ground that they make unjust discrimination between occupiers of Municipal or Government premises and occupiers of other premises. But the question is and that is the argument we must companysider-whether the impugned provisions permit discrimination amongst occupiers of Municipal or Government premises inter se and are on that account invalid. Can it be said that the special procedure laid down in the impugned provisions and the ordinary procedure of a civil suit operate on the same class of occupiers of Municipal or Government premises without any guiding policy or principle being laid down by the legislature as to when one or the other procedure shall be adopted so that within the class of occupiers of Municipal or Government premises, some may, in the arbitrary uncontrolled discussion of the Municipal Corporation or Municipal Commissioner or Government, be proceeded against under the special procedure, while others may be left to be dealt with under the ordinary procedure ? Do the impugned provisions vest absolute and unguided power in the Municipal Corporation or Municipal Commissioner or Government to pick and choose some occupiers of Municipal or Government premises for being dealt with under the special procedure set out in the impugned provisions leaving others to be dealt with under the ordinary procedure of a civil suit ? The majority decision in Norther Indian Caterers Ltd. v. State of Punjab 1 would seem to suggest that the impugned provisions do suffer from this vice but that is number companyrect. There is a basic fallacy from which the majority decision in Northern India Caterers 1 1967 3 S.C.R. 399 Ltd. v. State of Punjab 1 suffers and that is that it overlooks the distinction between those cam where the legislature itself makes a companyplete classification of persons or things and applies to them the law which it enacts and others where the legislature merely lays down the law to be applied to persons or things answering to a given description or processing certain companymon characteristics and having regard to the impossibility of making a precise and companyplete classification, leaves it to an administrative authority to make a selective application of the law to or things within the defined group, while laying down standard or at least indicating clear terms the underlying policy and purpose, in accordance with, and in fulfillment of which the administrative authority is expected to select the persons or things to be brought within the operation of the law. it must be remembered that having regard to the manifold companyplexities of life, an infinite variety of situations may arise which cannot be fitted into straight jacket formula or classified into rigid inflexible divisions. No classification can be logically companyplete or accord with the pattern of plumb line precision. Life is number capable of being divided into wafer-tight divisions and categories and it is number possible to force the teeming multiplicity and variety of human activity into a procrustean bed of symmetrical rules. Absolute precision or companyplete symmetry are unattainable and it is as well that it should be so, for otherwise life would be mechanical and lose its manifold variety. The legislature can, therefore, do numbermore than define broad categories and indicate the Policy and purpose underlying the legislation and leave it to a stated authority to make selective application of the law in accordance with such policy and purpose a case the That would number be obnoxious to article 14 because in such a case the discretion to make the selection would be a guided and companytrolled discretion and number an absolute and unfettered one. Mukherjee,J., pointed out in Kathi Raning Rawats case92 - if the legislative policy is clear and definite a as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statue itself cannot be companydemned as a piece discriminatory legislation.After all the law does all that is needed at is when it does all that it can, indicates a policy -and seeks to bring within the lines all similarly situated so far as its means allow. Vide Buck v. Bell, 3 . In such cases, the power given to the executive body would import a duty on it to classify the subject- matter of legislation in accordance with the objective indicated in the statue. The discretion that is companyferred on official agencies in such circumstances is number an unguided discretion it has to be exercised in companyformity with the policy to effectuate which the direction is given and it is in relation to that objective that the propriety of the classification would have to he tested. It is, therefore, number companyrect to say that merely because the Municipal Corporation, or Municipal Commissioner or Government is number companypellable to adopt the special procedure set out in the impugned provisions against all occupiers of Municipal or Government premises, but is vested with a discretion in the matter, the in offend against article 14. What we have to see is Whether there is any 1 1967 3 S.C.R. 399 2 1952 3 S.C.R. 435. 3 274 U.S. 200, 208. Ll31Sup.CI75 standard indicated or policy and purpose disclosed in the impugned provisions in accordance with and in fulfillment of which the Municipal Corporation or Municipal Commissioner or Government is expected to select occupies of Municipal or Government premises for being proceeded against under the special procedure. If the discretion companyferred on the Municipal Corporation or Municipal Commissioner or Govern- ment to make selective application of the special procedure is guided and companytrolled discretion, the impugned provisions would be, free from ,the vice of discrimination. It is inevitable that when a special procedure is being prescribed for a defined class of persons such as occupiers of Municipal or Government premises, discretion, of companyrse guided and companytrolled by the underlying policy and purpose of the legislature, must necessarily be left in the administrative authority to select occupiers of Municipal or Government premises to be brought within the, operation of the special procedure. There may be endless variations from case to case depending on the peculiar facts and circumstances of each case, and it may be that some cases are such, as for example involving companyplicated questions of law or fact, where special procedure, which is companyparatively of a summary nature may number be found to be appropriate in the interest of justice. It would indeed be odd and certainly harsh and oppressive to the occupiers of Municipal or Government premises if the Municipal-Corporation or Municipal Commissioner or Government were to be companypelled to adopt the special procedure in such cases. The nature of the dispute, the companyplexity of the questions arising for companysideration and the legal companypetence of the adjudicating authority to decide such questions would all have to be weighed alongside with the need for speedy and expeditious recovery of Municipal or Government premises for public uses which is the basic policy and purpose underlying the legislation and the Municipal Corporation or Municipal Commissioner or Government would have to decide in accordance with the guidance furnished by these companysiderations whether in a given case the special procedure should be adopted or the occupier of Municipal or Government premises should be proceeded against under the ordinary procedure. There is thus clear guidance provided by the legislature as to when the special procedure should be adopted and when a case should be left to be dealt with under the ordinary procedure and the impugned provisions do number suffer from the vice of discrimination. This view, which we are taking on principle, is number something numberel or unusual. It treads the beaten path laid out by at least two decisions of this Court. The first is the decision in Kedar Nath Bajoria v. State of West Bengal. 1 There also an argument was advanced that even if the Scheduled offences and the persons charged with the companymission thereof companyld properly form a class in respect of which special legislation companyld be enacted, section 4 1 of the West Bengal Criminal Law Amendment Special Courts Act, 1949 was discriminatory and void inasmuch as it vested an unfettered discretion in the Provincial Government to choose any particular case of a person alleged to have companymitted an offence falling under any of the specified categories for allotment to the special companyrt to be tried under the special procedure, while other offenders of the same category would be left to be tried by ordinary companyrts. It was urged that section 4 1 permitted the 1 1954 S.C.R. 30 Provincial Government to make a discriminatory choice amongst persons charged with the same offence or offences for trial by special companyrt and such absolute and unguided power of selection, though it had to be exercised within,the class or classes of offences mentioned in the Schedule, was discriminatory.This companytention urged on behalf of the petitioners was negatived and Patanjali Sastri, C.J., delivering majority judgment of the Court pointed out The argument overlooks the distinction between those cases where, the legislature itself makes a companyplete classification of persons or things and applies to them the law which it enacts, and other where the legislature merely lays down the law to be applied to persons or things answering to a given description or exhibiting certain companymon characteristics, but being unable to make a precise and companyplete classification, leaves it to an administrative to make a selective application of the law to persons or things within the defined group, while laying down the standards or at least indicating in clear terms the underlying policy and purpose, in accordance with, and in fulfillment of which the administrative authority is expected to select the persons or things to be brought under the operation of the law. A familiar example of this type of legislation is the Preventive Detention Act, 1950, which, having indicated in what classes of cases and for what purposes preventive detention can be ordered, vests in the executive authority a discretionary power to select particular persons to be brought under the law. Another instance in point is furnished by those pro- visions of the Criminal Procedure Code which provide immunity from prosecution without sanction of the Government for offences by public servants in relation to their official acts, the policy of the law being that public officials should number be unduly harassed by private prosecution unless in the opinion of the Government, there were reasonable grounds for prosecuting the public servant which accordingly should companydition the grant of sanction. It is number, therefore, companyrect to say that section 4 of the Act offends against article 14 of the Constitution, merely because the Government is number companypellable to allot all cases of offences set out in the schedule to Special Judges but is vested with a discretion in the matter. Mr. Chatterjee brought to our numberice in the companyrse of his argument a decision of the Calcutta High Court in J. K. Gupta v. The State 1 where a Special Bench Harries, C.J., Das and Das Gupta, JJ. inclined to the view that the Act number under challenge did number create a valid class or classes of offences, and held that even if the classification were held to be proper, section 4 1 was ultra vires article 14 of the Constitution in that a discretionary power was given to the State to allot cases to the Special Court or number 1 1952 56 C.W.N. 701, as the State Government felt inclined, and thus to discriminate between persons charged with an offence falling within the same class. We are unable to share this view. There may be endless variations from case to case in the facts and circumstances attending the companymission of the same type of offence, and in many of those cases there may be numberhing that justifies or calls for the application of the provisions of the special Act. For example, sections 414 and 417 of the Indian Penal Code are among the offences included in the Schedule to the Act, but they are triable in a summary way under section 260 of the Criminal Procedure Code where the value of the property companycerned does number exceed fifty rupees. It would indeed be odd if the Government were to be companypelled to allot such trivial cases to a Special Court to be tried as a warrant case with an appeal to the High Court in case of companyviction. The gravity of the particular clime, the advantage to be derived by the State by recoupment of its loss, and other like companysiderations may have to be weighed before allotting a case to the Special Court which is required to impose a companypensatory sentence of fine on every offender tried and companyvicted by it. It seems reasonable, if misuse of the special machinery provided for the more effective punishment of certain classes of offenders is to be avoided, that some companypetent authority should be invested with the power to make a selection of the cases which should be dealt with under the special Act. The other decision to which we may refer in this companynection is A Thangal Kunju Musaliar v. M. Venkitachalam Potti. 1 There the companystitutional validity of section 5 1 of the Travancore Taxation on Income Investigation Commission Act, 1124 was challenged mainly on the ground that the procedure for assessment prescribed by it was discriminatory as companypared with the procedure prescribed under section 47 of the Travancore Act XXIII of 1121. This challenge was repelled on the view that the persons dealt with under section 5 1 formed a distinct class of substantial evaders of income-tax who required to be specially treated under the drastic procedure provided by the Travancore Taxation on Income Investigation Commission Act, 1124. But it was urged as an alternative argument that even if the persons who companyld be proceeded against under section 5 1 formed a distinct class by themselves and there was rational justification for providing special procedure for assessing them, it would be open to the Government within the terms of section 5 1 of the Act itself to discriminate between persons and persons who fall within the very group or category the Government might refer the case of A to the Commission leaving the case of B to be dealt with by the ordinary procedure laid down in the Travancore Act, XXIII of 1121. This was an identical argument as the one advanced before us and it challenged the validity of section 5 1 on the ground that it was discriminatory a between persons who fall within the category of substantial evaders of income- tax. This Court however negatived the argument and N. H Bhagwati, J.,, speaking on behalf of the Court observed 1 1955 2 S.C.R. 1196 The possibility of such discriminatory treatment of persons falling within the same group or category, however, cannot necessarily invalidate this piece of legislation. it is to be presumed, unless the companytrary were shown, that the administration of a particular law would be done number with an evil eye and unequal hand and the selection made by the Government of the cases of persons to be referred for investigation by the Commission would number be discriminatory. The learned Judge then referred to the decisions of this Court in Kathi Raning Rawats case supra and Kedar Nath Bajorias case supra and companycluded by saying It therefore, follows that the mere fact that the Government is entrusted with the power to select cases of persons falling within the group of category of substantial evaders of income-tax for reference to the Commission would number render section 5 1 discriminatory and void The selection of the cases of persons falling within that category by the Government cannot be challenged as discriminatory for the simple reason that it is number left to the unguided or the unconditional discretion of the Government. The, selection is guided by the very objective which is set out in the terms of section 5 1 itself and the attainment of that object companytrols the discretion which is vested in the Government and guides the Government in making the necessary selection of cases of persons to be referred for investigation by the Commission. It cannot, therefore, be disputed that there is a valid basis of classification to be found in section 5 1 of the Act. These passages from the decisions in Kedarnath Bajorias case supra and A. Thangal Kunju Musaliars case supra provide the most companyvincing refutation of the companytention of the petitioners appellants based on discrimination. It may be pointed out that the aforesaid decisions in Kedar Nath Bajoria v. State of West Bengal supra and A. Thangal Kunju Musaliar v. M. Venkitachalam Potti supra were number brought to the attention of the learned Judges who decided Northern India Caterers Ltd. v. State of Punjab supra . if their attention had been drawn to these decisions, we have numberdoubt that the majority judges would number have companye to the decision to which they did. We are of the view that the decision in Northern India Caterers Ltd. v. State of Punjab supra does number represent the companyrect law and must be overruled. The challenge against the companystitutional validity of Chapter VA of the Municipal Act and the Government Premises Eviction Act must accordingly be rejected. It would on this view appear to be unnecessary to companysider whether the special procedure set out in Chapter VA of the Municipal Act is substantially more drastic and prejudicial than the ordinary procedure of a civil suit. That is one more requirement which must be satisfied before the special procedure provided in Chapter VA of the Municipal Act can be companydemned as discriminatory. We would number have ordinarily preceded to companysider whether this requirement is satisfied or number as it is unnecessary to do so, but since we find that there is some companyfusion in regard to this question which needs to be cleared up and the mist of uncertainty surrounding this question needs to be dispelled, we propose to deal with this question. We may point at the outset-and this must be companystantly borne in mind, for otherwise it is likely to distort the proper perspective of article 14that mere minor differences between the two procedures would number be enough to invoke the inhibition of the equality clause. The equality clause would become the delight of legal casuistry and be shorn of its real purpose which is to provide hope of equal dispensation to the companymon man-the butcher, the baker and the candle stick maker if we indulged in weaving gossamer webs out of this guarantee of equality or started meticulous hunt for minor differences in procedure. What the equality clause is intended to strike at are real and substantial disparities, substantive or processor and arbitrary or capricious actions of the executive and it would be companytrary to the object and intendment of the equality clause to exalt delicate distinctions, shades of harshness and theoretical possibilities of prejudice into legislative inequality or executive discrimination. Our approach to article 14 must be informed by a sense of perspective and proportion based on robust understanding and rejection of over-refined distinctions. The whole dimension of protection against discrimination in the processor sphere relates to real and substantial disparities in procedures. What is necessary to attract the inhibition of article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other and number mere superfine differences which in this imperfect world of fallible human instruments are bound to exist when two procedures are prescribed. We should avoid dogmatic and finish approach when handling lifes flexible realities. We may also observe that there is numbermagic formula by which it can be said that one procedure is substantially more drastic and onerous than the other. It does number follow that merely because one procedure provides the forum of a civil companyrt while the other provides the forum of an administrative tribunal, the latter is necessarily more ,drastic and onerous than the frontier. We cannot accept such a bald proposition. Indeed, number infrequently, the poor man gets lost when he is drawn into a regular suit in a civil companyrt which, it is well known, has a long drawn out expensive and escalating mitigative system which often spells ruin to the ordinary man and, companysequently, by companytrast, a prompt and inexpensive instrument, though manned by administrative personnel untrained in the sophisticated companyrt methodology and unaided by long and intricate argument of companynsel engaged on onerous term, may be preferred by many in this companyntry. The procedure of the civil companyrt also suffers from many technicalities It proceeds on rules of evidence which are sometimes highly technical, receives pro- bative material only when placed on record through prescribed Procedures even though a better appreciation of the situation may perhaps be possible by other means and acts solely on the material brought on record excluding what companymonsense and experience may sometime suggest as useful in reaching the truth. Again, it functions on the basis of adversary system of administration of justice which may bring about inequality where, the opposing adversaries are number evenly balanced. It is quite. possible that in certain types of cases people may receive better justice where judicial formalism is kept out and the procedure Is made informal. The many-tiered system of appeals built into the judicial pyramid often results in pyrrhic victory and leads to disenchantment with the end product of delayed justice. We cannot, therefore, accept as an axiomatic exemption or universal generalisation that as between an administrative tribunal and a civil companyrt, the latter is always functionally better than the former. We have grown up in a system of administration of justice where civil companyrts have been the primary authority entrusted with the task of determination of disputes and, therefore, whenever a special machinery is devised by the Legislature entrust and the power of determination of disputes to another authority set up by the Legislature in substitution of companyrts of law, our minds which are companyditioned by the historical existence of companyrts of law and which have therefore, acquired a certain predilection for the, prevailing system of administration of justice by companyrts of law, react adversely against the establishment of such an authority. We must cast aside our predilection for the existing system of administration of justice which has prevailed over a long period of time and examine the special machinery set up by the legislature objectively and dispassionately, without any preconceived numberion or prejudice against it, and find out whether the special machinery is really and substantially more drastic and prejudicial than the age old machinery of Civil companyrt. When we say this we do number wish to underscore the high qualities which are, the inalienable attributes of administration of justice by civil companyrts, namely, detachment and impartiality, objectivity of approach, sensitivity and regard for natural justice and Skill and expertise in sifting of evidence and interpretation and application of the law. But we do wish to point out that the machinery of an administrative tribunal is number necessarily and invariably more drastic and onerous than that of a civil companyrt. The two procedures would have to be companypared objectively and dispassionately without any predilection or prejudice to determine whether one is really and substantially more drastic and prejudicial than the other. If we examine the question before us in the light of these general observations, it will be apparent that the special procedure set out in Chapter VA of the Municipal Act is number substantially more drastic and prejudicial than the ordinary. procedure of a civil suit. The initial authority to determined the liability to eviction is numberdoubt the Municipal Commissioner who is the chief executive officer of the Municipal Corporation and who, may number be possessed of any legal training but section 68 of the Municipal Act provides that this function may be discharged by any Municipal officer whom the Municipal Commissioner may generally or specially empower in writing in that behalf and the Municipal Commissioner can, therefore, authorise a Deputy Municipal Commissioner attached to the Legal Department of the Municipal Corporation, who would be an officer trained in law, to discharge this function and indeed we have numberdoubt that the Municipal Commissioner, if he is himself number trained in law, would do so. The determination of the liability to eviction would, therefore, really in practice be made by a Municipal officer having proper and adequate legal training. Then again, the occupant against whom the special procedure is set in motion would have a right to file his written statement and produce documents and he would also be en- titled to examine and cross-examine witnesses. The Municipal Commissioner or other officer holding the inquiry is given the power, to summon and enforce the attendance of witnesses and examine them on oath and also require the discovery and production of documents. The occupant is also entitled to appear at the inquiry by advocate, attorney or pleader. Thus, in effect and substance the same procedure which is followed in a civil companyrt is made available in the proceeding before the Municipal Commissioner or other officer holding the inquiry. Then there is also a right of appeal against the decision of the Municipal Commissioner or other officer and this right of appeal is to a senior and highly experienced judicial officer and number to a mere executive authority. The appeal lies to the Principal Judge of the City Civil Court or such other judicial officer in Greater Bombay of number less than ten years standing as the Principal Judge may designate in that behalf and it -is an appeal both on law and fact. It is true that a revision application against the appellate order is excluded, but if the judicial officer invested with appellate, power has failed to exercise his jurisdiction or acted in excess of his jurisdiction or companymitted an error of law apparent on the face of the record or the decision given by him has resulted in grave miscarriage of justice, it is always open to the aggrieved party to bring it up before the High Court for examination under article 226 or article 227. The ultimate decision is, therefore, by a judicial officer trained in the art and skill of law and number by an executive officer. It is difficult to see bow, in the companytext of the need for speedy and expeditious recovery of public premises for utilisation for important public uses, where dilatoriness of the procedure may defeat the very object of recovery, the special procedure set out in Chapter VA of the Municipal Act-and this applies equally to the special procedure set out in the Government Premises Eviction Act- can be regarded as really and substantially more drastic and prejudicial than the ordinary procedure of a civil suit. We do number think that the two procedures are so substantially and qualitatively disparate as to attract the vice of discrimination. The result is that all the appeals and writ petitions fail and are dismissed. The petitioners in the writ petitions will pay one set of companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2180 of 1970. Appeal by special leave from the judgment and order dated the 14th August, 1970 of the Madhya Pradesh High Court at Gwalior in Second Appeal No. 48 of 1, 69. V. Patel and S. K. Gambhir, for the appellant. M. Singhvi and Rameshwar Nath, for respondent. The Judgment of the Court was delivered by BHAGWATI, J.-It is companymon to find that having regard to acute shortage of numberresidential as well as residential accommodation in the urban areas, litigation between landlord and tenant for recovery of rented premises is usually bitterly companytested and fought to a finish right upto the highest companyrt. This is what has happened in the present case. Twice foiled in his attempt, the respondent filed a third suit to recover possession of a shop let out to the appellant. The suit resulted in a decree for eviction by the Trial Court, but on appeal the decree for eviction was reversed, by the Additional District Judge and on still further appeal, the judgment of the Additional District Judge was set aside and the decree for eviction was restored by the High Court., The appellant challenges the judgment of the High Court in this appeal preferred by special leave. The respondent is the owner of a house situate in Lohia Bazar in the city of Gwalior. The house companysists of a shop on the ground floor and residential accommodation on the first floor. The respondent is in occupation of the residential accommodation on the first floor since the past few years. The ground floor shop, which may hereinafter for the sake of companyvenience be referred to as the Lohia Bazar shop, has been in the possession of the appellant as a tenant for the last about thirty years. The appellant carries on business as a dealer in iron and steel materials in this shop. Originally the rent of this shop was Rs. 8/- per month but it was subsequently increased from time to time and ultimately in 1946 it was fixed at Rs. 25/- per month. It appears that towards the end of 1952 the respondent decided to evict the appellant from the Lohia Bazar shop and with that end in view, filed a suit for recovery of possession of Lohia Bazar shop. The respondent claimed that he genuinely required the Lohia Bazar shop for personal use and the Trial Court, accepting this requirement, passed a decree for eviction against the appellant. The decree for eviction was, however, reversed by the Additional District Judge in appeal since according to Madhya Bharat Premises Restriction Act, Sy. 2006, which was in force at the material time, requirement of the landlord of number- residential premises for- industry or business was number a valid ground for eviction of the tenant. his suit was accordingly dismissed by the Additional District Judge on 8th December, 1956. Within a few months after the dismissal of this suit, however, the respondent, undaunted by this reverse, filed another suit against the appellant for recovering possession of the Lohia Bazar shop. By the time this second suit came to be filed, the Madhya Pradesh Accommodation Control Act, 1955 had companye into force and under the provisions of that Act a landlord companyld recover possession of rented premises from the tenant only on certain specified grounds. One of the grounds in case of number-residential accommodation was that the landlord genuinely required the accommodation for companytinuing or starting his own business. Now, the respondent was throughout this period carrying on business as a grocer in a shop situate in Phalke Bazar which was taken by him on rent from one Vishwanath. With a view to availing himself of this ground for eviction under the Madhya Pradesh Accommodation Control Act, 1955 the respondent pleaded that the landlord of the Phalke Bazar shop had given him a numberice to quit and he, therefore, genuinely required the, Lohia Bazar shop for companytinuing his grocery business. Before the suit came up for hearing, the respondent amended the plaint with the leave of the Court in March 1959 by introducing a plea that he wanted to start business as a dealer in iron and steel materials and the Lohia Bazar shop was generally required by him for the purpose of starting this business. This suit also followed the same pattern as the earlier one the Trial Court passed a decree for eviction, but it was reversed in appeal by the Additional District Judge. The limited ground on which the Additional Judge negatived the claim of the respondent for possession was that the respondent was in occupation of the. Phalke Bazar shop which companystituted other accommodation in the city and that on the terms of section 4 h of the Madhya Pradesh Accommodation Control Act, 1955, he was disentitled to obtain a decree for eviction against the appellant. The Additional District Judge accordingly dismissed the suit by a judgment dated 4th August, 1962. Thereafter, the respondent, having failed in both his attempts to recover possession of the Lohia Bazar shop from the appellant, entered into a lease deed dated 15th September, 1962 with the appellant by which he gave a lease of the Lohia Bazar shop to the appellant for a period of two years with effect from 15th September, 1962 at the rent of Rs. 60/- per month. Though the period of the lease expired on 15th September, 1964, the appellant companytinued in posses- sion of the Lohia Bazar shop as a monthly tenant of the respondent paying the same rent of Rs. 60/- per month. It appears that some time in 1964-the exact date does number appear from the record-the respondent voluntarily surrendered possession of the Phalke Bazar shop to the landlord and closed down his grocery business. The ap- pellant alleged that the, respondent gave up possession of the, Phalke, Bazar shop to the, landlord in companysideration of receipt of premium in cash but this allegation was held number established both by the Trial Court as also by the First Appellate Court. The respondent did number have any other occupation after he gave up his grocery business. On 17th August, 1966, after a period of inaction of about two years, the respondent renewed the fight against the appellant with added vigour and plunged into the turbulent waters of litigation by filing a third suit to recover possession of the Lohia Bazar shop from the appellant. There were two grounds on which possession of the Lohia Bazar shop was sought by the respondent. One ground, was arrears of rent but that was wholly without substance, and was abandoned at the earliest stage. The second was the real ground urged on behalf of the respondent and that was that the respondent bona fide required the Lohia shop for starting his own business as a dealer in iron and steel materials. This was a ground for eviction recognised by section 12 1 f of the Madhya Pradesh Accommodation Control Act, 1961 which had companye into force in the meantime repealing the Madhya Pradesh Accommodation Control Act, 1955. The appellant disputed that the respondent required the Lohia Bazar shop for starting his own business or that his requirement was bona fide and alleged that in any event the respondent had other accommodation in the city and hence he was number entitled to recover possession of the Lohia Bazar shop under section 12 1 f of the Act of 1961. The Trial Court on a companysideration of the evidence led on behalf of both the parties came to the companyclusion that the respondent was without any occupation since about two years prior to the filing of the suit and he had numberother shop in the city in which he companyld carry on business and he, therefore, bona fide required the Lohia Bazar shop for starting his own business as a dealer in iron and steel materials. The Trial Court negatived the plea of the appellant that the respondent was carrying on business as companymission agent and moneylender and he did number really mean to start a new business as dealer in iron and steel materials and that was merely a ruse adopted by him for purpose of securing possession of the Lohia Bazar shop from the appellant. the trial Court accordingly upheld the claim of the respondent for recovery of possession under section 12 1 f of the Act of 1961 and passed a decree for eviction against the appellant. The appellant being aggrieved by the decree for eviction preferred an appeal to the Additional District Judge and since the Court of the Additional District Judge is the final companyrt of fact, we would set out the findings of fact reached by the Additional District Judge in some detail. The Additional District Judge on an appreciation of the evidence came to the following findings. The respondent was about 63 years of age when he filed the suit but that was numberground for saying that he companyld number bona fide and reasonably think of starting a new business. Though it was stated by the respondent in his evidence that he had in the past carried on business as a dealer in iron and steel materials, that was companytradicted by his own witness Chotelal and it was, therefore, evident that the business of dealer in iron and steel materials for which he claimed to require the Lohia Bazar shop, was totally a new business for him. The plea of the respondent was that he wanted to make a humble beginning in this new business but even so he asked for possession of the whole of the Lohia Bazar shop and number merely a portion of it. The respondent had number led any evidence to show that he had arranged for necessary capital to be invested or-approached Iron Steel Controller for the required permits or made agreements to receive stocks of iron and steel materials. There was numbermaterial on record to establish that the respondent had made preparations from, which inference companyld be reasonably drawn that, but for possession of the Lohia Bazar shop, the respondent was in a position to start the new business. Though the period of two years for which the lease of the Lohia Bazar shop was granted by the respondent to the appellant expired on 15th September, 1964, the respondent did number take any steps to obtain possession of the Lohia Bazar shop for a period of about two years and it was only in the middle of 1966 that he put forward the plea that he wanted to start business as a dealer in iron and steel materials and required possession of the Lohia Bazar shop for that purpose. It is true that the appellant had failed to show that the respondent was carrying on business as companymission agent or moneylender, but that did number establish the bona fide requirement of the respondent for possession of the Lohia Bazar shop. It was also evident that the object of the respondent in filing the suit was number to obtain enhancement of rent from the appellant but that too was number a circumstance which lent any positive support to the case of the respondent. The burdened of establishing that he bona fide required the Lohia Bazar shop for starting business as a dealer in iron and steel materials was on the respondent and this burden, according to the Additional District Judge held that what the evidence showed was mere assertion on the part of the respondent that he wanted to start business as a dealer in iron and steel materials in the Lohia Bazar shop and that fell far short of the proof required to establish that the respondent bona fide required the Lohia Bazar shop for starting this new business. The Additional District Judge accordingly set aside the decree for eviction passed against the appellant and dismissed the suit of the respondent. This led to the filing of a second appeal in the High Court by the respondent. The High Court pointed out that the Additional District. Judge had fallen into an error in holding that unless the respondent showed that he had made preparations for starting the business of dealer in iron and steel materials, such as making arrangements for capital in- vestment, permits from the Iron, Steel Controller etc., it companyld number be held that he bona fide required the Lohia Bazar shop for starting such business. The High Court observed that when the respondent stated in his evidence that he required the Lohia Bazar shop for the purpose of starting business as a dealer in iron and steel materials, there was numbercross-examination of the respondent challenging the truth or bona fide of his statement and numberattempt was made on behalf of the appellant to show that the respondent was number in a position to start such business, or that he lacked the necessary resources for that purpose, and his statement companypled with the other objective and outward facts must, therefore, be taken as sufficient to establish that he required the Lohia Bazar shop for starting this new business and his requirement was bona fide. The outward and objective facts on which the High Court relied as supporting the assertion of the respondent were firstly, the respondent had as far back as March 1959 sought to recover possession of the Lohia Bazar shop for the purpose of starting this new business and it was number for the first time in the middle of 1966 that he dishonestly put forward this idea only with a view to securing possession of the Lohia Bazar shop from the appellant and secondly, the respondent having closed down his grocery business and surrendered possession of the Phalke Bazar shop to the landlord was without occupation for well nigh two years and it was, therefore, natural for him to want to start this new business in the Lohia Bazar shop in order to earn a living. The High Court thus came to the companyclusion that the respondent has succeeded in establishing that he bona fide required the Lohia Bazar shop for the purpose of starting business as a dealer in iron and steel materials and since he had admittedly numberother shop inthe city. he was entitled to recover possession of the Lohia Bazar shop from the appellant. On this view the High Court reversed the judgmentof the Additional District Judge and restored the decree for eviction passed by the Trial Court. Hence the present appeal by the appellant with special leave obtained from this Court. The main ground on which the appellant attacked the judgment of the High Court was that, in reversing the finding of the Additional District Judge on the question of bona fide requirement of the Lohia Bazar shop by the respondent, the High Court exceeded its jurisdiction in second appeal. The jurisdiction of the High Court hearing second appeal, companytended the appellant, was limited only to examining whether the decision of the Additional District Judge suffered from an error of law and since the finding of the Additional District Judge that the respondent did number bona fide require the Lohia Bazar shop for the purpose of starting his own business as a dealer in iron and steel materials was a finding of fact, it was number companypetent to the High Court to interfere with it, unless it companyld be shown that it was vitiated by an error of law which was number the position in the present case. This companytention of the appellant requires serious companysideration. It is settled law that the High Court in second appeal cannot reappropriation the evidence and interfere with findings of fact reached by the lower appellate companyrt. The lower appellate companyrt is final so far as findings of fact are companycerned. The only limited ground on which the High Court can interfere in second appeal is that the decision of the lower appellate companyrt is companytrary to law. It is only an error of law which can be companyrected by the High Court in exercise of its jurisdiction in second appeal. If the finding recorded by the lower appellate companyrt is one of law or of mixed law and fact, the High Court can certainly examine its companyrectness, but if it is purely one of fact, the jurisdiction of the High Court would be barred and it would be beyond the ken of the High Court unless it can be shown that there was an error of law in arriving at it or that it was based on numberevidence at all or ,as arbitrary, unreasonable or perverse. This position was indeed number disputed by the learned Advocate appearing on behalf of the respondent but his companytention was that the. finding of the Additional District Judge in regard to the question of bona fide requirement of Lohia Bazar shop by the respondent was a mixed finding of law and fact and the High Court was, therefore, entitled to examine its companyrectness, and if it was found to be wrong, interfere with it even while exercising jurisdiction in second appeal. The question which, therefore, arises for companysideration is whether the finding of the Additional District Judge that the respondent did number bona fide require the Lohia Bazar shop for the purpose of starting the business of a dealer in iron and steel materials was a pure finding ,of fact or a mixed finding of law and fact. If it was the latter, the High Court would have a much larger freedom to interfere, but number so if it was the former, in which case only certain limited grounds would be available to the appellant to attack the finding. Now it is obvious that the issues whether the respondent required the Lohia Bazar shop for the purpose of starting a new business as a dealer in iron and steel materials and if so, whether his requirement was bona fide were both questions of fact. Their determination did number involve the application of legal principles to the facts established in the evidence. The findings of the Additional District Judge on these issues were numberdoubt inferences from other basic facts, but that did number alter the character of these findings and they remained findings of fact. There is, therefore, numberdoubt that the companyclusion of the Additional District Judge that the respondent did number bona fide require the Lohia Bazar shop for the purpose of starting business as a dealer in iron and steel materials represented a finding of fact and it companyld number be interfered with by the High Court in second appeal unless it was shown that in reaching it a mistake of law was companymitted by the Additional District Judge or it was based on numberevidence or was such as numberreasonable man companyld reach. This was precisely the ground on which a Bench of four Judges of this Court in Sarvate T. B. v. Nemichand 1 set aside the judgment of the Madhy Pradesh High Court which had interfered with the decree passed by the District Court dismissing a suit for eviction filed by the landlord against the tenant. The District Court, sitting as a companyrt of first appeal, had taken the view, on an appreciation of the evidence, that the requirement of the premises by the landlord for his residence was number genuine, but in second appeal the Madhya Pradesh High Court reversed this finding and passed a decree for eviction against the tenant. This Court set aside the judgment of the Madhya Pradesh High-Court on the ground that the finding reached by the District Court on an appreciation of the evidence that the landlord did number genuinely require the premises for his residence was a finding of fact and the Madhya Pradesh High Court had numberjurisdiction in second appeal to disturb this finding. Shah, J., speaking on behalf of the Court, summed up the legal position in the following words The District Court companysidered the evidence for the purpose of ascertaining whether the respondent honestly or in good faith required the premises and held that the respondent failed to establish the case pleaded by him. This finding of the District Court was based on appreciation of evidence and was binding upon the High Court and the High Court had numberpower to reverse that finding. The Legislature has imposed a restriction upon the jurisdiction of the Court to pass a decree against the tenant in a suit in ejectment by the landlord and the onus of proving the companyditions, on proof of which alone the protection may number be claimed, lies upon the landlord. The burden of proving that he genuinely requires number-residential accommodation within the meaning of section 4 h therefore lies upon the landlord. Whether in a given case, that burden is discharged by the evidence on the record is a question of fact. It must however be observed that mere assertion by the landlord that he requires for his use the premises in the occu- pation of his tenant raises numberpresumption that be genuinely requires the premises for his use. The District Court held that the respondent failed to establish that he genuinely required the premises in suit primarily on two grounds- i that he had in the first instance claimed that he required the promises for his residence and after the suit was remanded to the trial Court, he set up the plea that the premises were required for business purposes and abandoned his earlier case, and ii that the nature and extent of that business carried on by the respondent were such that numberadditional accommodation companyld have been honestly claimed by him. The inference of fact raised by the District Court was preeminently reasonable. In any event the High Court has numberjurisdiction in second appeal to set aside the companyclusion reached by the District Court based on that inference of fact. 1 1966 M. P. Law Journal 26. This decision, apart from principle, should companyclude the question, but we find that there is one later judgment of this Court where a different view seems to have been expressed. That is the judgment in Smt. Kamla Soni v. Rup Lal Mehra i . This case was decided by a Bench of three judges and the judgment was delivered by Shah,J., who was one of the, Members of the Bench. The learned Judge, speaking on behalf of the Court, observed in reference to section 39 2 of the Delhi Rent Control Act which companyfers an identical power on the High Court to interfere only where there is an error of law The argument that the learned Judges of the High Court exceeded their jurisdiction under s. 39 2 of the Delhi Rent Control Act, when they reversed the finding of bona fide requirement of the appellant, has numbersubstance. Whether on the facts proved the requirement of the landlord is bona fide within the meaning of s. 14 1 e is a finding on a mixed question of law and fact. An inference that the requirement of the appellant in the present case was bona fide companyld number be regarded as companyclusive. Now there can be numberdoubt that these observations made in Smt. Kamla Sonis case 1 are plainly in companytradiction of what was said by this Court earlier in Sarvate T. B.s case. 2 It is obvious that the decision in Sarvate T.B.s case 2 was number brought to the numberice of this Court while deciding Smt. Kamla Sonis case 1 , or else this Court would number have landed itself in such patent companytradiction. But whatever be the reason, it cannot be gain said that it is number possible to reconcile the observations in these two decisions. That being so, we must prefer to follow the decision in Sarvate T.B.s case 2 as against the decision in Smt. Kamla Sonis case 1 as the former is a decision of a larger Bench than the latter. Moreover, on principle, the view taken in Sarvate T.B.S case 1 companymends itself to us and we think that is the right view. We must, therefore, hold that the finding of the Additional District Judge that the respondent did number bona fide require the Lohia Bazar shop for the purpose of starting business as a. dealer in iron and steel materials was a finding of fact and number a finding of mixed law and fact, The question would still remain whether there were proper grounds on which this finding of fact companyld be interferred with by the High Court. It is number well settled by several decisions of this Court including the decision in Sarvate T.B.s case 2 and Smt. Kamla Sonis case 1 that mere assertion on the part of the landlord that he requires the number-residential accommodation in the occupation of the tenant for the purpose of starting or companytinuing his own business is number decisive. It is for. the companyrt to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and number a subjective one and merely because a landlord asserts that he wants the number-residential accommodation for the purpose of starting or companytinuing his own business, that would C. A. No. 2150 of 1966, decided on 26th September, 1969. 2 1966 M. P. Law Journal 26. number be enough to establish that he requires it for that, purpose and that his requirement is bona fide. The word required signifies that mere desire on the part of the landlord is number enough but there should be an element of need and the landlord must show the burden being upon him that he genuinely requires the number-residential accommodation for the purpose of starting or companytinuing his own business. The Additional District Judge did number misdirect himself in regard to these matters, as for example, by misconstruing the word required or by erroneously placing the burden of proof on the appellant and numbererror of law was companymitted by him in arriving at the finding of fact in regard to the question of bona fide requirement of the respondent, which would entitle the High Court in second appeal to interfere with that finding of fact. The respondent, however, companytended that the finding of the Additional District Judge that the respondent did number bona fide require the Lohia Bazar shop for the purpose of starting new business as a dealer in iron and steel, materials was vitiated, firstly because he erroneously assumed that unless the respondent showed that he had made preparations for starting this new business, such as making arrangements for capital investment, approaching Iron Steel Controller for the required permits, etc., it companyld number be said that the respondent bona fide required the Lohia Bazar shop for such new business, and secondly because he relied wrongly and unjustifiably on the fact that the respondent had asked for possession of the whole of the Lohia Bazar shop and number merely a portion of it. Now there can be numberdoubt that ,these two circumstances relied upon by the Additional District Judge were Wholly irrelevant. It is difficult to imagine how the respondent companyld be expected to make preparations for starting the new business unless there was a reasonable prospect of his being able to obtain possession, of the Lohia Bazar shop in the near future. It is a companymon but unfortunate falling of our judicial system that a litigation takes an inordinately long time in reaching a final companyclusion and then also it is uncertain as to how it will end and with what result and unless the respondent companyld be reasonably sure that be would within a short time be able to obtain possession of the Lohia Bazar shop and start a new business, it would be too much to expect from him that lie should make preparations for starting the new business. Indeed from a companymercial and practical point of view, it would be foolish on his part to make arrangements for investment of capital, obtaining of permits and receipt of stock of iron and steel materials when he would number know whether he would at all be able to get possession of the Lohia Bazar shop, and if so, when and after how many years. So also we do number see how the respondent companyld possibly ask for possession of a portion of the Lohia Bazar shop. The Lohia Bazar shop was given on rent under a single tenancy and even if the requirement of the respondent extended only to a portion of this shop, he had numberother option but to terminate the tenancy and seek to recover. Possession of the whole shop. The Additional District judge was,therefore, clearly in error in relying on these two circumstances in. support of the finding of fact reached by him. But that would number entitle the High Court to interfere in, second appeal and set aside this finding of fact so long as there was some evidence to support it and it companyld number be branded as arbitrary, unreasonable or perverse. There is numberdoubt that here there was evidence to sustain the finding of fact arrived at by the Additional District Judge. The respondent had been trying to obtain possession of the Lohia Bazar shop from the appellant since as far back as 1952 and it was apparent that the respondent was any how bent upon evicting the appellant from the Lohia Bazar shop. Though the period for which the lease was granted by the respondent to the appellant expired on 15th September, 1964, the respondent allowed the appellant to companytinue as a monthly tenant in respect of the Lohia Bazar shop and did number, for a period of about two years, take any steps to terminate the tenancy of the appellant and recover possession of the Lohia Bazar shop from the appellant. If the respondent was really serious about starting the new business of a dealer in iron and steel materials, he would number have waited for a period of two years before taking action to recover possession of the Lohia Bazar shop from the, appellant. He would have bestirred himself immediately as soon as the lease, which prevented him from asking for possession, expired. Moreover, the respondent had numberexperience in the business of dealing in iron and steel materials and it was entirely a new business so far as he was companycerned, and it would indeed be strange and unusual-taxing the credulity of the Court- that the respondent, which was all his life a grocer, should at the age of 63 years, want to start a new business as a dealer in iron and steel materials a business in which he had numberexperience at all. These circumstances, borne out by the evidence on record and held established by the Additional District Judge, clearly supported the finding of fact reached by the Additional District Judge that the respondent did number bona fide require the Lohia Bazar shop for starting business as a dealer in iron and steel mate- rials. Nor companyld this finding of fact-be said to be arbitrary, unreasonable, or perverse so as to merit interference by the High Court in second appeal. There can, therefore, be numberdoubt that the High Court in reversing the decision of the Additional District Judge and passing a decree for eviction against the appellant.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1779 and 1780 of 1973. Appeal by special leave from, the judgment and order dated the 14th December, 1972 and Order dt. 20th July, 1973 of the Calcutta High Court in Appeal No. 252 of 1971 and S.C.A. No. 262/71 respectively. Niren De, Attorney General, B. Sen, M. K. Bannerjee, P. C. Bhartari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain for the appellants. Sudhis K. Ray and Rathin Das, for the respondents. The Judgment of the Court was delivered by PALEKAR, J. This is an appeal by special leave by the Central Wand Water Transport Corporation Limited, her-in after called the Corporation, from a judgment and order of the Calcutta High Court in Appeal No. 252 of 1971 disposed of on December 14 1972. Respondent No. 1 is the Inland Steam Navigation Workers Union representing the Workmen, and respondent No. 2 is the State of West Bengal. A reference was made by the State of West Bengal to the Second Labour Court at Calcutta under s. 33 C 2 of the Industrial Disputes Act, 1947, and the point in issue is whether that companyrt had jurisdiction to entertain the reference. A few facts are necessary to be stated. There was a Limited Company known as the River Steam Navigation Co. Ltd. hereinafter called the Company which used to operate a river service from West Bengal to Assam through what was formerly East Pakistan. It had employed for its business about 8,000 workmen, including clerical staff. Due to companyflict with Pakistan in 1965 the Company came to grief and had to suspend a major part of its operations. Retrenchment was undertaken on a large scale because the Company had been incurring heavy losses for several years inspite of the Government of India acquiring a companytrolling interest in it to prevent its voluntary liquidation. In the companyrse of companyciliation proceedings the Management of the Company arrived at a settlement with the respondent Union on August 25, 1965 whereby it was agreed, inter alia, that the settlement was valid for 5 years till the end of 1969, that the retiring age of the workmen would be 57 years and that there would be numberretrenchment for 5 years. The Companys fortunes did number improve, and, therefore, in 1966 owing to its indebtedness to various creditors, including the Union of India, the State Bank of India, the Chartered Bank etc. to the tune of several chores of rupees, a winding up petition was filed in the Calcutta High Court. The Company, thereupon, made an application under Sections 391 to 394 of the Companies Act for sanctioning a scheme of arrangement and companypromise between the Company and the appellant Corporation which was incorrupt on February 22, 1967 as a wholly owned Central Government Company. The scheme was sanctioned by a learned Judge of the Calcutta High Court by his order dated May 3, 1967. It is to be numbered that when the proceeding was before the learned Judge, the respondent Union had appeared before the companyrt with a view to safeguard the interests of the workers. Aggrieved by the order which sanctioned the scheme, the Union went in appeal before a Division Bench of the High Court. The Division Bench by its judgment and order dated July 14, 1967 upheld the order of the single Judge sanctioning the scheme. It is number necessary to quote the scheme extensively. It is enough to point out that it provided, inter alia, that all the properties and assets but only some of the liabilities of the Company would vest in the appellant Corporation. It was further agreed that the Corporation would take over as many of the staff and labour of the Company as was possible under the circumstances, but as to how many would be employed by the Corporation was entirely left to the discretion of the Corporation. It was further agreed that those employees who were number taken over by the Corporation would. be paid companypensation by the Company out of funds the Government of India agreed to supply. It was further agreed that upon the approval of the scheme, the Company would be closed and on payment of all creditors it would stand dis- solved without winding up. All these terms of the scheme were companyfirmed in appeal but with a view to safeguard the rights of workers, if any, the following observations were made I am of opinion, that the questions, first, whether there is a closure of the companypany within the meaning of the Industrial Disputes Act, secondly, whether the agreement dated 25th August, 1965, is capable of enforcement, thirdly, whether the workers or workmen are entitled to prefer and assert their claims on the agreement dated 25th August 1965 and fourthly, whether the Rivers Navigator Company Limited and the new transferee companypany are entitled to assert that there has been a closure and further that the agreement is number capable of enforcement, should all be left open for the rival companytentions to be pursued in the proper forum and on proper materials and in the proper jurisdiction. I am of opinion that if any claim be made in the proper jurisdiction it will be a matter for enforcement of That claim in properly companystituted proceedings. It is needless to say that unless there is adjudication there cannot be any enforcement of the claim and such adjudication has to be made in a proper forum. The scheme, as already pointed out, was sanctioned by Order dated May 3, 1967 and, as envisaged in the scheme itself, the Company on that very day issued a numberice of closure. Thereafter the Corporation issued fresh letters of appointment, and out of about 8,000 former employees of the Company, the Corporation employed about 5173. This left a larger body of employees of the former Company unemployed. On September 12, 1968 the Government of West Bengal made two orders of reference purporting to be under s. 33 C 2 of the Industrial Disputes Act. By the first order of reference it asked the Labour Court to companypute the benefits companyered by the settlement dated August 25, 1965 between the Union and the Company and by the second order of reference, it asked for the companyputation of retrenchment benefits under section 25FF of the Industrial Disputes Act. The Corporation challenged those orders in a Writ Petition in the Calcutta High Court, principally, on the ground that the references had made several unjustified assumptions, which by the nature of the frame of the references had become number-justiciable. In a detailed judgment B. C. Mittra, J. held that the reference orders were misconceived and set them aside by was order dated July 15, 1969. The learned Judge, however, observed The respondent No. 3 State will be at liberty to make fresh order or orders of reference in the light of the observations made in this judgment and in companypliance with the directions in the judgment of the Appellate Court and in accordance with law. There was numberappeal from that order. Thereafter on October 27, 1969 the Government of West Bengal made the present companysolidated reference to the Second Labour Court in the following terms Whereas the workmen mentioned in the attached Est No. 1, represented by the Inland Steam Navigation Workers Union, 16/17 College Street, Calcutta-12, hereinafter referred to as the said Union , have preferred claims that they are entitled, in terms of the settlement dated the 25th August, 1965 hereinafter referred to as the said settlement , to receive from Messrs. Central Inland Water Transport Corporation Limited, 4, Fairlie Place, Calcutta-1, hereinafter referred to as the said Company benefits which are capable of being companyputed in terms of money And whereas the workmen mentioned in the attached list No. 11 represented by the said Union have preferred claims that they are entitled to get from said Company retrenchment benefits under Section 25FF of the Industrial Disputes Act, Act 14 of 1947 , which are capable of being companyputed in terms of money And whereas the workmen in lists Nos. 1 and II have requested the State Government to specifya Labour Court for determination of the amount to whichsuch benefits should be companyputed Now therefore in exercise of the power companyferred by sub-section 2 of Section 33 C of the Industrial Disputes Act, 1947 Act 14 of 1947 , the Governor is pleased to specify the Second Labour Court companystituted by numberification No. 1727-1 B IB/3A-1/58 dated the 28th April, 1958 as the Labour Court to which the following issues are referred for adjudication. Issues Whether the undertaking or the business of M S Rivers Steam Navigation Company Limited has been transferred to Messrs. Central Inland Water Transport Corporation Limited. If so, whether the settlement dated the 25th August, 1965 is binding on Messrs. Central Inland Water Transport Corporation Limited ? Whether the workmen mentioned in list No. 1, bound by the Settlement, dated the 25th August, 1965 are, entitled to companytinue in employment under Messrs. Central Inland Water Transport Corporation Limited ? If so, what amount of money are they entitled to ? Is that money recoverable from Messrs. Central Inland Water Transport Corporation limited ? Whether the workmen mentioned in List No. 11 are entitled to get retrenchment companypensation under Section 25F, read with Section 25 FF of the Industrial Disputes Act, 1947 ? If so, what amount of money are they entitled to ? Whether the undertaking or the business of Messrs. Rivers Steam Navigation Company Limited has been closed within the meaning and companytemplation of Section 25 FFF of the Industrial Disputes Act, 1947 ? If so, what amount of money as companypensation are If so workmen mentioned in Lists Nos. I and II en- titled to? List No. 1 referred to above gives the names and addresses of 420 employees. list No. 11 companytains the names of 92 employees. The employees raising the dispute are mentioned in two separate lists and in two separate issues because the employees in List No. 1 who were parties to the settlement dated August 25, 1965 were supposed to have rights other than those which were claimed by employees mentioned in List No. 11 who were number parties to the settlement. It will be seen from the order of reference that four issues were referred to the Labour- Court for adjudication. The first issue raises the question whether the undertaking of the Company had been transferred to the Corporation and, if so, whether the settlement- of August 25, 1965 between the Company and the Union was binding on the Corporation. By the second issue the question was raised whether the 420 employees who were parties to the settlement of August 25, 1965 were entitled to companytinue in the employment of the Corporation and, if so, to what amount they were entitled. The Labour Court was further asked to adjudicate whether the amount so companyputed was money recoverable from the Corporation. By the third issue the question was raised whether the 92 employees mentioned in Est No. 11 who were number parties to, the settlement referred to above were entitled to get companypensation under Section 25 FF of the Industrial Disputes Act and, if so, what was the amount to which they were entitled ? By the fourth issue the Labour Court was invited to adjudicate whether the undertaking of the Company had been closed within the companytemplation of section 25 FFF of the Act and if so, what amount of companypensation the workmen mentioned in both the lists were entitled to ? The Corporation, thereupon, challenged this reference also by a Writ Petition under Article 226 of the Constitution for setting it aside ,on the ground that the questions referred to the Labour Court did number fall within the jurisdiction of the Labour Court under section 33 C 2 of the Industrial Disputes Act. The learned single Judge, Ghose, J struck down issue No. 4 as number entertainable by the Labour Court, but as regards the other 3 issues he was of the view that the Labour Court had jurisdiction. The Union did number file an appeal against the order by which issue No. 4 was struck down. But the Corporation went in appeal against the order of the learned Judge in so far as he had held that the Labour Court had jurisdiction to adjudicate upon issues 1, 2 and 3. The companyrt of appeal by its order dated December 14, 1972 dismissed the appeal. The Corporation asked for a certificate to appeal to this companyrt, but on its dismissal, this companyrt gave special leave and that is how the present appeal arises. The only question which arises for determination in this Court is whether the Labour Court has jurisdiction to adjudicate on the issues referred to it under section 3 3 C 2 of the Industrial Disputes Act. Sub-section 2 , which is part of section 33C dealing with the recovery of money due from an employer reads as follows Where any work-man is entitled to receive from the employer any money or any benefit which is capable of being companyputed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be companyputed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government. It is number well-settled that a proceeding under section 33 C 2 is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being companyputed in terms of money, the Labour Court proceeds to companypute the benefit in terms of money. This calculation or companyputation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for. In Thief Mining Engineer, East India Coal Co. Ltd. v. Rameshwar ors. 1 it was reiterated that proceedings under section 33 C 2 are analogous to execution proceedings and the Labour Court called upon to companypute in terms of money the benefit claimed by workmen is in such cases in the Position of an executing companyrt. It was also reiterated that the right to the benefit which is sought to be companyputed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the companyrse of and in relation to the relationship between an industrial workman and his ,,employer. 1 1968 1 S.C.R. 140. In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of i the plaintiffs right to relief ii the companyresponding liability of the defendant, including, whether the defendant is, at all, liable or number and iii the extent of the defendants liabiliey, if any. The working out of such liability with a view to give relief is generally regarded as the function or an execution proceeding. Determination No. iii referred to above, that is to say, the extent of the defendants liability may sometimes be left over for determination in execution proceedings. But that is number the case with the determinations under heads i and ii . They are numbermally regarded as the functions of a suit and number an execution proceeding. Since a proceeding under section 33 C 2 is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations i and above is, numbermally, outside its scope. It is true that in a proceeding under section 3 3 C 2 , as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely Incidental. To call determinations i and ii Incidental to an execution proceeding would be a per- version, because execution proceedings in which the extent of liability is worked out are just companysequential upon the determinations i and ii and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under section 33 C 2 that companyrt must clearly understand the limitations under which it is to function. It cannot arrogate to itse the functions- say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations i and referred to above, or proceed to companypute the benfit by dubbing the former as Incidental to its main business of companyputation. In such cases determinations i and ii are number Incidental to the companyputation. The companyputation itself is companysequential upon and subsidiary to determinations i and ii as the last stage in the process which companymenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. Khandelwal 1 that a workman cannot put forward a claim in an application under section 33 C 2 in respect of a matter which is number based on an existing right and which can be appropriately the subject-matter of an industrial dispute which requires a reference under section 10 of the Act. The scope of section 33 C 2 was illustrated by this Court in The Central Bank of India Ltd. v. P. S. Rajagapalan etc. 2 . Under the Shastri Award, Bank clerks operating the adding machine were declared to be entitled to a special allowance of Rs. 10/- per month. Four clerks made a claim for companyputation before the Labour Court. The Bank denied the claim that the clerks came within the category referred to in the award and further companytended that the Labour Court 1 1968L.L.J.589. 2 1964 3 S.C.R. 140. under Section 33 C 2 had numberjurisdiction to determine whether the clerks came within that category or number. Rejecting the companytention, this Court held that the enquiry as to whether the 4 clerks came within that category was purely incidental and necessary to enable the Labour Court to, give the relief asked for and, therefore, the Court had jurisdiction to enquire whether the clerks answered the sescription of the category mentioned in the Shastri Award, which number only declared the right but also the companyresponding liability of the employer bank. This was purely a case of establishing the identity of the claimants as companying within a distinct category of clerks in default of which it would have been impossible to give relief to anybody falling in the category. When the Award mentioned the category it, as good as, named every one who was companyered by the category and hence the enquiry, which was necessary, became limited only to the clerks identity and did number extend either to a new investigation as to their rights or the Banks liability to them. Both the latter had been declared and provided for in the Award and the Labour Court did number have to investigate the same. Essentially, therefore, the assay of the Labour Court was in the nature of a function of a companyrt in execution proceedings and hence it was held that the Labour Court had jurisdiction to determine, by an incidental enquiry, whether the 4 clerks came in the category which was entitled to the special allowance. It is, however, interesting to numbere that in the same case the companyrt at page 156 gave illustrations as to what kinds of claim of a workman would fail outside the scope of section 33 C 2 . It was pointed out that a workman who is dismissed by his employer would number be entitled to seek relief under section 32 C 2 by merely alleging that, his dismissal being wrongful, benefit should be companyputed on the basis that he had companytinued in service. It was observed His dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed him, a claim that the dismissal is unlawful and, therefore, the employee companytinues to be the workman of the employer and is entitled to the benefits due to him under a preexisting companytract, cannot be made under S. 33 C 2 . By merely making a claim in a loaded form the workmen cannot give the Labour Court jurisdiction under s. 3 3 C 2 . The workman who has been dismissed would numberlonger be in the employment of the employer. It may be that an industrial tribunal may find on an investigation into the circumstances of the dismissal that the dismissal was un- justified, But when he companyes before the Labour Court with his claim for companyputation of his wages under section 33 C 2 he cannot ask the Labour Court to disregard his dismissal as wrongful and on that basis companypute his wages. In such cases, a determination as to whether the dismissal was unjustified would be the principal matter for adjudication, and companyputation of wages just companysequential upon such adjudication. It would be wrong to companysider the principal adjudication as incidental to the companyputation. Moreover, if we assume that the Labour Court had jurisdiction to make the investigation into the circumstances of the dismissal, a very anomalous situation would arise. The Labour Court after holding that the dismissal was wrongful would have numberjurisdiction to direct reinstatement under section 3 3 C 2 . And yet if the jurisdiction to companypute the benefit is companyceded it will be like companyceding it authority to pass orders awarding wages as many time companyes before it without being reinstated. Therefore, the Labour Court exercising jurisdiction under section 33 C 2 has got to be circumspect before it undertakes an investigation, reminding itself that any investigation it undertakes is, in a real sense, incidental to its companyputation of a benefit under an existing right, which is its principal companycern. Bearing in mind these limitations of a Labour Court functioning under section 33 C 2 we have to approach the question before us. The old Company closed its business on May 3, 1967. The Corporation, in due companyrse, appointed a large number of the Companys employees by fresh letters of appointments, but it companyld number absorb all of them. The reference was made on behalf of the employees mentioned in Lists I and 11. They were in all 512. Out of these, it appears, 24 were reemployed by the Corporation later can. The rest of them virtually claimed reemployment or at least some benefits on the basis of their alleged right to be re- employed. In actual fact, however, the Corporation did number employ these workmen after the Companys undertaking was transferred to it. The scheme of transfer did number companypel the Corporation to employ the workmen. Nor is there any term in the transfer-agreement or scheme which passed over to the Corporation any responsibility in respect of the workmen. Section 25 FF-of the Industrial Disputes Act declare what are the rights of the workmen of an undertaking which is transferred. The right is to receive-compensation as if the workmen are retrenched under section 25 F and is available only against the owners of the undertaking, that is to say, the transferor of the undertaking. The liability of the transferor to gay companypensation does number arise only when i there has been a change of employers by reason of the transfer and ii the 3 sub-clauses a , b and c of the proviso of that section companye into play. It is pointed out in South Arcot Electricity Company v. N. K. Khan 1 that each one of the 3 companyditions in clauses a , b and c is to be satisfied before it can be held that the right companyferred by the principal clause does number accrue to the workmen. In the present case there is numberactual change of employers by reason of the transfer, number do the 3 subclauses apply. Therefore, prima facie, the claim of the workmen would be for companypensation under section 25 FF, directed, number against the Corporation, but against the Company of which they were formerly the employees. As a matter of fact the scheme itself shows that the employees of the Company who were number taken over by the Corporation were to be paid by the Company all money due to them under the law. The scheme further shows that the Company 1 1969 2 S.C.R. 902 at 908. was, to ,be put in possession of funds by the Government of India for satisfying the liabilities to the workers. The effect of section 25 FF. which is explained by this Court in Anakapalli Co-operative Agricultural Industrial Society Limited v. Workmen 1 is, so far as it is relevant, as follows i the first part of the section postulates that on a transfer of the ownership or management of an undertaking, the employment of workmen engaged by the said undertaking companyes to an end, and companypensation is made payable because of such termination p. 745 ii in all cases to which s 25-FF applies, the only claim which the employees of the transferred companycern can legitimately make is a claim for companypensation against their employers. No claim can be made against the transferee of the said companycern p. 746 iii By the present s. 25-FF the Legislature has made it clear that if industrial undertakings are transferred, the employees of such transferred undertakings should be entitled to companypensation, unless, of companyrse, the companytinuity. in their service or employment is number disturbed and that can happen if the transfer satisfies the three requirements of the proviso p. 746 and iv since section 25-FF provides for payment of benefit on the basis that the services of the employees stand terminated, neither fair- play number social justice would justify the claim of the employees that they ought to be reemployed by the transferee p. 748 . That being the position in law under section 25- FF, the former employees of the companypany who were number absorbed by the Corporation can hardly make out a claim against the transferee Corporation either for companypensation, on- termination of their service following the transfer or for reemployment. The claim at any rate of the employees in List II as against the Corporation under section 25-FF was clearly misconceived. Mr. Ray, appearing for the respondent Union, however, companytended that whatever may be the position of the workers mentioned in List II, the case of the workers in List I stood on a different footing because these workers were parties to a settlement dated 25-8-1965 between the Company and its workers and under section 18 3 C the settlement was binding number only on the Company but also its successor or assign the present Corporation. Under that settlement, it was companytended, the employees in List I were entitled to companytinue uninterrupted service, without retrenchment, till at least December 31 1969 and this stipulation it was claimed, was binding on the Corporation which became the successor of the Company from the date of the transfer of the undertaking , that is to say, May 3,1967. The further companytention was that the Corporations refusal to companytinue the employees in service as the Corporations employees from the date was wrongful and hence it must be held, in law, that the employees companytinued in the service of the transferee Corporation and on that basis the Labour Court companyld companypute the benefit under section 33 C 2 . 1 1963 Suppl. 1 S.C.R. 730. The several problems raised by the above companytentions involve in effect a major industrial dispute, an investigation in to which is quite outside the scope of section 33 C 2 . Only on a detailed investigation would it be possible to determine whether the workmen had any right to a benefit and, if so, the, Corporation was liable to satisfy the same. The other question which would be necessary to decide is whether the Corporation was a successor of the defunct Company. As pointed out in Anakapalli Co-operative case, already referred to, the question whether a transferee of an undertaking is a successor or number involves companysideration of several factors as set Out at pages 737 to 738 of the report. Such an investigation would clearly be quite outside the, speedy individual remedy companytemplated by section 33 C 2 . Assuming further that on such investigation, the companyrt companyes to the companyclusion that the Corporation is a successor, that again will number settle the matter because, as pointed out in that case, in view of section 25-FF the transferee even as a successor would be liable neither to pay companypensation to number to reemploy the workmen whose employment stood automatically terminated on the transfer. Where the operation of the law viz.Section 25-FF the employment of workmen stands terminated, it may be difficult to sustain it on the basis of a term in a settlement prohibiting retrenchment, though statutorily binding on the transferee as a successor. It is perfectly arguable that such an argument would number have been available even against the transferor of the undertaking in view of Section 25-FF. In any event, the question is number one which the Labour Court companyld be expected to deal with in a proceeding u s 33 C 2 the principal business where-under is just companyputation of a benefit demonstrably existing. In short, the problems raised are appropriate for determination in an Industrial Dispute on a reference u s 10 of the Act and cannot be regarded as merely incidental to the companyputation u s. 33 C 2 . If the above disputes were referred to an Industrial Tribunal u s 10, the Tribunal would necessarily go into a detailed investigation of the alleged right of the employees to be companytinued in service by the, Corporation. After such investigation the Tribunal may have held they had numbersuch right. Or it may have companye to the companyclusion that the Corporation had,wrongfully refused to absorb the employees, in which case the Tribunal companyld have given relief in several forms depending on the facts and circumstances of each case. It companyld direct reemployment by the. Corporation with or without companytinuity of service. It companyld order reemployment from any particular date found just and fair, or it companyld direct payment of wages fully or partially. Now, numbere of these things can be done by the Labour Court u s 33 C 2 . AR it can do is to companypute the benefit if there was already an adjudication in favour of the workmen as against the Corporation or the said benefit was otherwise provided for as payable by the Corporation. A moments reflection will show that it would be impossible for the Labour Court to companypute any benefit unless the Court, after companysidering all the matters which an Industrial Tribunal has to companysider, ultimately decides upon one or the other of the several alternative reliefs which the Industrial Tribunal alone has a right to determine. BY saying that the Labour Court-would determine the alternative reliefs as incidental to companyputation, one, cannot companyceal the fact that it is actually exercising the function of an Industrial Tribunal. The investigation is number incidental to company- putation, but the companyputation itself is companysequential upon the main finding as to the nature of relief the workmen are entitled to in an industrial dispute. The situation is the same as when a workman who is discharged wants relief,. as shown in the case of the Central Bank of India v. Rajagopalan-already referred to. The discharged workman can obtain relief by way of section 10 only and number by an application to the Labour Court u. s 33 C 2 claiming companyputation of the benefit on the basis that the discharge being unlawful, his services must be deemed to be companytinuous and uninterrupted. We, are, therefore, unable to agree with the High Courts view, that the Labour Court had jurisdiction to deal with the questions referred to it u s 33 C 2 . The appeal must, therefore, be allowed. But there shall be numberorder as to companyts. Civil Appeal No. 1780 of 1973. Palekar, J. This appeal is from the Order of the High Court dated July 20, 1973 refusing to grant a certificate to appeal to this Court under Article 133 1 of the Constitution. Since this Court had granted leave to appeal under Article 136 in special leave petition No. 2543/1973, and Civil Appeal No. 1779 NL of 1973 resulting therefrom, has already succeeded, it is number necessary to pass any orders on this appeal except to say that in view of the orders passed in Civil Appeal No.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2060 of 1971, 67, 139 and 393 of 1972. From the Judgment and Order dated the 22nd September, 1970 and 25th March, 1971 of the Delhi High Court at New Delhi in Civil Writ Nos. 196 and 550 of 1970 respectively and WRIT PETITION No. 287 of 1973. Under Article 32 of the Constitution of India for the enforcement of fundamental rights. M. Tarkunde, K. K. Singhvi, Yogeshwar Prasad, S. K. Bagga and S. Bagga for the appellant In CA 2060/71 . Niren De, Attorney General of India, F. S. Nariman, Additional Solicitor General of India R. H. Dhebar. R. M. Mehta and S. P. Navar for the appellants In CA 67/72 and for Respondent Nos. 1-3. In CA 2060/71 and for Respondents Nos. 1-2 In CA 139/72 and for Respondents Nos. 2-5 In CA 393/72 and for Respondents Nos. 1-1 IN WP 287/73 . L. Sanghi, Bishambar Lal, P. V. Kapur and S. C. Patel for the appellant in CA 139/72 . K. Singhvi, Yogeshwar Prasad, S. K. Bagga and S. Bagga for the Appellants In CA 393/72 and for Respondents Nos. 18, 20, 29, 43, 46. and 58 In CA 67/72 and for Respondents Nos. 22, 30, 47, 50 and 62 In CA 139/72 . C. Setalvad, G. L. Sanghi, Bishamber Lal, P. V. Kapurand C. Patel for Respondents Nos. 25, 28, 29, 43, 50, 57 and 74 In CA 2060/71 . K. Garg, S. C. Agarwal and V. J. Francis for Respondent No. 86 In CA 2060/71 . K. Acharya and Somnath Chatterjee, J. N. Haldar, B. P. Maheshwari and Suresh Sethi for the Petitioner in WP 287/73 . S. Desai, G. L. Sanghi, Bishamber Lal, P. V. Kapur and C. Patel for Respondent No. 1 In CA 67/72 . R. Agarwala for Respondent No. 13 In-CA 67/72 and for Respondent No. 17 In CA 393/72 . R. Nanavati, S. K. Dholakia and R. C. Bhatia Advocates for Intervener Nos. 1, 4 5. K. Bagga and S. Bagga for Intervener No. 2. Intervener No. 3 appeared in person. The Judgment of the Court was delivered by- PALEKAR, J.-The above appeals were disposed of by this Court on 16-8-1972. The companyrt set aside the seniority list prepared by the Department on 15-7-1968 and gave directions as to how the same was to be prepared. The principal point which was decided in these appeals related to the validity of the quota rule and the seniority rule in their operation after 15-1-1959. This Court held that on Governments decision to Promote a large number of Income-tax Officers from Class 11 to Class 1, the quota rule which gave 66-1/2 of the posts to the direct recruits and 33-1/2 of the posts to the promoters companylapsed and with the companylapse of that quota rule, the sonority rule which gave weighty to the promotees of 2 to 3 years also broke down- The companyrt observed, Since the old seniority rule has ceased to operate by reason of the infringement of the quota rule it will be for the Government to devise, if necessary in companysultation with the Union Public Service Commission, a just and fair seniority rule as between the direct recruits and the promotees for being given effect to from 16-1-1959. It follows, therefore, that the seniority list of 15-7 1968 will have to be get aside and the department will have to prepare a fresh seniority list in the light of the observations made in this judgment. Broadly sneaking the seniority list from 1951 to 15-1-1959 will be prepared in accordance with the quota rule of 1951 r w the seniority rule 1 f iii . The seniority list from 16-1-1959 will be prepared in accordance with the rule to be freshly made by the Government in that behalf. It was further directed as follows As already shown, these proceedings before us arise out of the mandamus issued by this Court in Jaisinghanis case. The seniority list was prepared by the Government in pursuance of the mandamus. We have found that the seniority list is number companyrect and will have to be prepared afresh in accordance with the directions and observations made in this judgment. The demand made by the officers for the imple- mentation of the mandamus is still unfulfilled and it can be achieved only after the Government files a proper list of seniority. These proceedings, therefore, will have to be kept pending till such a seniority list is prepared and filed in companyrt. The respondents namely the Union of India, the Ministry of Finance and the Central Board of Direct Taxes are, therefore, directed to prepare a fresh seniority list and file it in companyrt. It will be appreciated that this dispute regarding seniority is pending before, the companyrt for several years and it is very essential that it should be resolved without further delay. We are, therefore, of the view that the respondents charged with the preparation of the fresh list shall prepare it and file it in companyrt within six months from the date of this order. After the same is filed, liberty to apply is given to the parties to the proceedings. Accordingly on February 9, 1973 the President under the proviso to Article 309 of the Constitution made rules called the Income-tax Officers Class I Service Regulation of Seniority Rules, 1973 to companye into force from 16-1-1959. Rule 3 which is referred to hereinafter as the new seniority rule is as follows 3, Seniority of officers-The seniority of the Income-tax Officers in the Class I service shall be regulated as from the date of companymencement of these rules in accordance with the provisions hereinafter companytained namely the seniority among the promotees inter se shall be determined in the order of selection for such promotion and the officers promoted as a result of any earlier selection shall rank, senior to those selected as a result of any subsequent selection the seniority among the direct recruits inter se shall be determined by the order of merit in which they are selected for such appointment by the Union Public Service Commission and any person appointed as a result of an earlier selection shall rank senior to all other persons appointed as a result of any subsequent selection and the relative seniority among the promotees and the direct recruits hall be in the ratio of 1 1 and the same shall be so determined and regulated in accordance with a roster maintained for the purpose, which shall follow the following sequence, namely - a promotee b direct recruit c promotee d direct recruits and so on. Having framed the above rule to regulate the seniority of the officers, in supersession of any other rule which was in force for the time being, the department prepared the seniority list in accordance with the directions given in the judgment and filed it in companyrt on February 15, 1973. It is number disputed that the directions given in the judgment have been followed with regard to the fixation of seniority till 15-1-1959. It is also number disputed that if the new seniority rule referred to above is a valid rule, then the rest of the seniority list which companyes down to serial No. 1717 is also companyrect. The principal objection is to the validity of the new rule. It is challenged number only as unjust and unfair but also as violative of the promotees fundamental right under Article 16 of the Constitution. It is necessary to recall that in the 1950s there were several years when the promotees were appointed to posts which were in excess of their quota. Though the appointments were irregular when made, they were regularised in later years when posts from their quota became available for them. But when this Court held on 16-8-1972 that the old quota Rule had companylapsed on 16-1-1959, a new situation arose rendering further regularization impossible, in the absence of any quota rule allocating the posts between the direct recruits and the, promotees. Therefore when the present seniority, list was prepared, Government had on its hands 73 promotees who, though appointed earlier between 19561958, had numberquota posts for their absorption. On 16-1- 1959 the 73 promotees, who are described as spill-overs on 16-1-1959, as also subsequent promotees had to be absorbed in the service and this companyld only be done by a special rule framed in this behalf Since it was anticipated that there would be a spillover like this, the department had been directed that these officers must be absorbed on a priority basis. The Government, therefore prepared a new seniority list number only as regards the officers who were absorbed in the service before 15-1-1959, but all officers, including these spill- overs, appointed after 15-1-1959. The method adopted is simple enough. The seniority list from serial No. 1 to serial No. 485 relating to the period prior to 16-1-1959 i.e. to say, from 1951 onwards, has been prepared in accordance with the quota rule r w the seniority rule which prevailed till then. Serial Nos. 486 to 1717 relate to officers who have to be accommodated from 16-1-1959 in accordance with the new seniority rule. Since under rule 3 iii the promotee must companye first and then the direct recruit, serial No. 486 goes to a promotes and serial No. 487 goes to a direct recruit and so on. All the promotees who companye below serial No. 485 are either out of the spillovers of 16-1-1959 or those who have been appointed by promotion later. That is how the, new seniority list is prepared. The Government had been directed to make a new rule. The seniority rule referred to is the new rule. Its wording is number happy. But by mentioning a ratio of 1 1 and directing that the seniority would be in accordance with the roster maintained in a particular sequence of promotees and direct recruits, the Government has numberionally allocated the posts bearing even serial numbers to the promotees and odd serial numbers to the direct recruits. In other words, the new seniority rule number only permits, the absorption of all promotees from 16-1-1959 into posts allocated to them but also determines their seniority number only between them- selves but also in relation to the direct recruits appointed from 1959 onwards. The companytention on behalf of the 73 spillover promotees of 16-1-1959 is that since this Court had directed that they should be absorbed on a priority basis, all of them should have been shown in the seniority list as having been appointed on 16-1-1959 in a block and thereafter the direct recruits for that year should have been shown. It is true that this Court had directed that these promotees should be absorbed on a priority basis. That only meant that their position as senior should number be prejudiced by any possible claim by later promotees, on the ground, that being recruited outside the quota, they had higher rights than those 73 promotees who had numberposts, It was number intended that these 73 should number be governed by any seniority rule. They were to be governed by a rule which companyered all those who came or were deemed to have companye into the cadre after 15-1-1959. It was faintly argued that at least 10 out of these 73 spill-overs should have been accommodated in the period prior to 16-1-1959 on the ground that this would have amounted, in the language of the judgment, to a slight deviation from the quota rule. It is true that this Court had observed that the Government was entitled between 1956 and 16th January, 1959 to follow the quota rule as a rouogh guideline and that a slight deviation from the quota would number be material. That observation, however, applied to a situation when the Government deliberately made an appointment in a stray post intending it to be allocated to a promotee, in spite of its being number strictly companysistent with the guideline of the quota rule. That is number the position in the present case. Government went on making appointments knowing that the promotees had numberposts out of their quota and it only hoped to regularize them when posts were available. Therefore, when the department was directed to prepare the seniority list from 1956 to January 15, 1959 in accordance with the quota rule of 1951 r w the seniority Rule I f iii , the Government companyld number possibly say that 10 promotees out of these 73 had been. deliberately appointed by it to these posts intending the same to go to the promotees in spite of their falling outside the quota. The 10 promotees besides the remaining 63 became spill-overs on 16-1-1959, as they companyld number be absorbed in any quota posts available to them till 15-1-1959. it was next companytended that as the quota rule expired on 16-1-1959, the promotees who companyprised this spill-over as also those who were promoted thereafter must be deemed to have been validly appointed in accordance with rule 4 of the income-tax Officers Class 1 Grade if Service Recruitment Rules, 1945, and since there remained in existence numberseniority or quota rule determining their seniority vis-a- vis. the direct recruits, their natural seniority of earlier appointment cannot retrospectively be altered to their detriment, and to do so would be violative of Article 16 of the Constitution. That is the principal companytention on behalf of the promotees in this case. It is necessary to clearly understand the implications of our decision in which we had held that both the quota rule and the seniority rule had broken down on 16-1-1959. The cadre from the very beginning 1945 was a cadre, recruitment to which was prescribed from two sources. The vacant posts were directed to be allotted to direct recruits and promotees in a particular ratio and seniority was regulated inter se by rules framed later. Some principle of allocating posts and some principle of determining relative seniority were inevitable in the companytext of the companystitution of the cadre, and Government did number and companyld number have abandoned these principles in the matter of recruitment. The quota rule allocated the posts. between the two sources and the seniority rule regulated the seniority vis-a-vis the direct recruits and the promotees. Indeed there was numberhing special about it. In any service where recruitment from several sources, there is bound to be some method of allocation ,of posts between the several sources companypled with a rule to determine seniority amongst the candidates recruited from those sources. In fact a rule for regulating allocation of posts and to determine seniority amongst the officers in a sine-qua-non of every well-regulated service to which direct recruits and promotees are appointed. The Government was fully aware of this binding nature of the principles in the matter of recruitment and, therefore, when it made promotee appointments knowingly in excess of the quota available to them, it calculated that these appointments were liable to be regularized in subsequent years when quota vacancies were available to the promotees. That is why when promotee appointments were made from 1957 onwards, they were made on an officiating basis, and every promotee was informed that the question as to how his seniority amongst the officers would ultimately be decided was still under companysideration. In the meantime, however, our decision, which held that both the quota, rule and the seniority rule had companylapsed on 16.1.1959, left a void in which neither promotees number direct recruits companyld identify any posts as having been allocated to them. The 73 spill- over had numberallocated posts. We do number mean to say that there were numberposts at all. The point is that these 73 promotees bad numberallocated posts. Since, as already pointed out, the service was companystituted on the principle that vacancies have to be allocated between the two sources and seniority fixed thereafter, the void created by our decision had necessarily to be filled right from 16-1-1959 by making a rule which number merely allocated posts between the direct recruits and the promotees but also ,determined inter se seniority. As a matter of fact this was envisaged by all parties to this litigation as is clear from the following passage in para 25 of the judgment Several suggestions were made with a view to persuade us that some fair and just seniority rule may be evolved. One of them was that the quota rule may still hold the field and that. those who came in by promotion to the upgraded posts may be ranked lower in seniority to the direct recruit who had finished his probation in that year. A second suggestion was the one put forward by the Government in the letter dated 17-2-1960 to the Union Public Service Commission wherein a package deal was suggested. The seniority rule, as it stood, was to go and in its place the seniority rule should be that promoted officers in any calendar year should be senior to the direct recruits appointed that year only. Having made that companycession in favour of the direct recruits in response to their demand, it was suggested that the quota of departmental promotees should be raised from 33-1/3 to 50. In other words, there was a package deal whereby every year the appointments should be divided equally between direct recruits and promotees and the promotees being already in the department should be given seniority over the new direct recruits. Although the parties had made these suggestions, this Court declined to accept the responsibility and observed We do number think that we shall be justified in expressing our opinion as to how inter se seniority is to be fixed after 15-1-1959. Since the old seniority rule has ceased to operate by reason of the infringement of the quota rule it will be for the Government to devise, if necessary in companysultation with the Union Public Service Commission, a just and fair seniority rule as between the direct recruits and the promotees for being given effect to form 16-1-1959. The new seniority rule is the direct outcome of number only our judgment but also of the very principles on which the service had been companystituted. The new seniority rule, therefore, was a substitute rule very necessary from the point of view of the companystitution of the service for maintaining its companytinuity as a well-regulated cadre. When the old quota rule and the seniority rule broke down on 16-1-1959, their place was taken by the new rule which while regulating seniority between the promotees and the direct recruits also nationally allocated alternate posts in accordance with the roster. The companytention of the promotees is that their appointments having been liberated from the limitation of the quota rule must be regarded as validly made under rule 4 of the Recruitment Rules and companysequently the dates of their appointments should be regarded as determining their seniority vis-a-vis the direct recruits. This submission does number bear scrutiny. When the 73 spill-over appointments had been made, there were numberallocated posts to which the appointments companyld have been validly made. On 16-1-1959 there were numberposts earmarked for them, the ordinary companysequence of which would be that they would have had to revert to their original class II posts unless class I posts were regularly found for them. When the quota rule was in existence, these appointments, though invalid when made, were liable to be regularised in subsequent years when posts were found for them as a companysequence of the quota rule. But once the quota rule ceased to exist on 16-1-1959, there was numberpossibility of regularising the appointments unless a new rule was framed to make such posts available to them. It is, therefore, clear that the, infirmity in the appointments companytinued on 16-1-1959 and that infirmity companyld number be overcome except by a new rule which made some posts available. It is number companyrect to think that this infirmity disappeared with the disappearance of the quota rule. The disappearance of the quota rule did number automatically regularise an appointment which was initially invalid. The promotees companytinued in the cadre because it was thought by Government that their appointments may be regularised under the quota rule which, in its opinion, was operative The 214 officers also who were promoted from 1959 to 1962 after upgrading an equal number of class 11 posts companyld number possibly claim better treatment than the 73 spill-overs who were their seniors. At one time an attempt had been made by the officers of the department to rationalize these appointments as appointments outside the quota. But that was a misconception. The cadres was one regulated by rules and there companyld be numbervalid appointments outside the quota as shown in Jaisinghanis case. See 1967 2 S.C.R. 703 at 718 . This was soon realised and hence in an endeavour to maintain the quota ratio the department decided number to make any promotions in the years 1963, 1965 and 1967 to 1970 so that the officers who had been already promoted companyld be absorbed in their quota. But since this Court held in 1972 that the quota rule had ceased to exist on 16-11959 it must follow that the appointments were companytinued irregularly in the absence of a regularising Rule. The rule number challenged in just the rule which makes posts available right from 16-1-1959. Apart from the fact that all the promotees from 16-1-1959 onwards had been appointed on an officiating or ad hoc basis with numberice that the question of their seniority was still undecided, the appointments carried their own infirmity as irregular appointments, and hence in the absence of clear allocation of posts, they companyld hardly lay claim to any seniority and object that their natural seniority had undergone an unwarranted change in violation of Article 16. It is true that this Court held that quota rule had ceased to exist but that does number mean that having regard to its companystitution, the service companyld companytinue to function without a substitute rule in its place. The companystitution of the service required allocation of posts to direct recruits and promotees. The Government was throughout making appoint- ments from both sources trying as far as it companyld to maintain a certain ratio between the two sources. Such allocation was implicit in the companystitution of the service itself. When Government decided to recruit promotees on a very large scale on 16-1-1959 it was unconscious of the companysequences of its action. Had it known then, as it does number, that the quota rule would cease to exist it would have, of necessity framed a substitute rule for allocating posts between the two sources because the companystitution of the service companypled with its own decision to companytinue to recruit from both sources would number have tolerated a void in the allocation of posts. By framing the new seniority rule, following the direction of this Court, it is doing numbermore than what it would have itself done on 16-1-1959 to preserve companytinuity in the allocation of posts to the two sources so that irregularities, if any, in the prior appointments companyld be regularised. And since it is. clear that the new rule must be read as if it was made on 16-1-1959 in substitution of the old rules, the appointees after that date e.g. the 214 promotees would be governed by the rule. The 73 spill-over promotees would have at least some excuse for companyplaint because their actual appointments had been made prior to 16-1-1959. But, as already numbericed, it is the new seniority rule which saves them from reversion and, therefore, they are as much bound by it as the promotees appointed after 16-1-1959. The present rule, it may be repeated, is a companyposite rule which besides nationally allocating posts between the two sources determines seniority in accordance with the roster. After all but 73 spill-over promotees were given available posts prior to 16-1-1959, the unallocated posts from serial number 486 onwards were allocated to promotees and direct recruits alternately. The spill-over of 73 promotees was thus absorbed against even serial numbers alternately with the direct recruits who were allotted odd serial numbers. That is how the whole list of seniority stands today. In these circumstances we dont see on what grounds the promotees before us can challenge the new seniority rule as violative of Article 16. The argument based on Article 16 proceeded on the assumption that the spill-over promotees of 16-1-1959 and the officers promoted thereafter were entitled to claim seniority from the date of their appointment. The spill-over promotees claim 16-1-1959 as the date of appointment and the other promotees claim some date between 1959 and 1962 when they were promoted. It is on this assumption that they are entitled to get these dates as the dates to determine their seniority that the whole submission under Article 16 is based. It is necessary to remember, however, in this companynection that all these officers hail been told when promoted that their appointments were on an officiating or ad hoc basis and the question of their seniority had number been determined. It was thereby implied that orders about seniority companyld only be passed after the department was in a position to take a decision with regard to the inter se seniority between the promotees and the direct recruits. That being the situation of all these officers they companyld hardly companytend that the dates of appointment will number be altered for the purposes of determining seniority. Where recruitment is made from one source, there is some ground for the companytention that an officer promoted earlier should be regarded as senior to an officer recruited later. But other companysiderations companye in when recruitment is made from several sources and it may become necessary in the public interest to frame a Rule of seniority to adjust inter se seniority on a basis other than the numbermal. In such cases, dates other than the dates of appointment may determine the seniority inter se. As a matter of fact, we have found in the case of these Income-tax officers themselves that since the very beginning when the cadre was companystituted the dates of appointment did number determine seniority. Promotees were given seniority number only over the direct recruits appointed in that year but also over those who had been appointed in the two previous years. This led to discontent between the two wings of the Income-tax Service and the Government was seriously thinking how best to remove it since about 1957. In 1960 the Government suggested to the Union Public Service Commission that it would 9-131 Sup-CI/75 like to suggest a package deal by which the ratio of recruitment be increased to 50 50 in favour of the promotees in companysideration of which the weightage given to them in seniority as against direct recruits, may be abolished. The Public Service Commission did number agree to this and hence the problem remained unsolved. That was the reason why all promotee appointments had been made on an officiating basis with a warning that the promotees seniority in the promoted cadre was undetermined. The promotees, therefore, were number entitled to assume that their date of appointment in class I would be the date for companynting seniority. There is numberquestion in this case of any discrimination being made in a service after officers from two sources have been brought in one cadre. It is true that seniority is a vital element in the matter of promotion but that does number mean that allotment of seniority by rule, relative to circuitment, involves any classification for the purposes of promotion. The argument that the promotees and direct recruits became one class immediately on entry and, thereafter, there companyld be numberclassification between them does number disclose the companyrect approach to the problem of fixing inter se seniority between them. When recruits from two sources have companye into a service it is essential to fix inter se seniority for a proper integration of the cadre. Therefore, it is really a case of adjustment of seniority between the recruits and does number amount to making a classification after their absorption in one service. The cases on which reliance was placed on behalf of the promotees are quite inapplicable. In Mervyn Coutinho Ors. Collector of Customs, Bombay Ors 1 the point was whether Appraisers promoted to the grade of Principal Appraisers companyld be discriminated in the matter of seniority in the grade of Principal Appraisers on the ground that they had entered the grade of Appraisers as either promotees or direct recruits. The Customs department sought to carry their birth marks into the grade of the Principal Appraisers and determine their seniority accordingly. This Court disallowed it pointing out that once officers from two sources came into one integrated grade, viz. the grade of Appraisers, their seniority in the grade of Principal Appraisers was to be governed by their length of service in that grade, and was number liable to be altered with reference to their original position in the Appraisers grade. In other words, the companyrt held that all the Appraisers lost their birth marks after they were integrated in the cadre of Appraisers and they companyld number be revived after promotion to the higher grade of Principal Appraisers. In the case before us, in the absence of a rule determining inter se seniority between the two classes of Income-tax Officers, there is really numberintegration of the service which is unavoidably necessary for the purpose of effective promotions. One cannot speak of promotions from a cadre unless it is fully integrated. If promotions are made before it is fully integrated, they can be only on an ad hoc basis to be reviewed after seniority of the officers is finally fixed-as has happened in our case. Mervyn Co untinhos case would have been applicable if, after integration of all these Income-tax Officers in class 1, their seniority as promoted Assistant Commissioners were again to be altered with reference to their birth mark as direct recruits and promotees. That question, however, does number arise in the present case. In Roshan Lal v. 1 1966 3 S.C.R. 600. Union of India, 1 the decision in Marvyn Coutinhos case referred to, above was relied upon and reaffirmed. The case does number shed any light on the question with which we are companycerned. Similar is the case in S. M. Pandit and Anr. v. State of Gujarat. 2 In this case Mamlatdars were recruited from two sources-directly and by promotion. They had the same designation, same pay scales, same functions and their posts were also interchangeable. it was, therefore, held that Government companyld number discriminate between them in the matter of their further promotion to the post of Deputy Collector. As said earlier, the problem before us is number of making discrimination in the matter of promotion from an integrated service companystituted from two sources. The problem is of integrating two sources in one service by adjusting seniority inter se. The cases referred to above relate to the debunking of the established seniority of officers in a cadre in the matter of promotion. It was next companytended on behalf of the promotees that this Court had directed that the rule to be framed by the Government should, be just and fair but in their submission, it was number so. The promotees companytended that having regard to their age at the time of promotion, their experience, and their diminished chances of promotions to grades higher than those of the Assistant Commissioners, Govt. ought to have given them due weightage in the matter of seniority and since this was number done the new seniority rule was neither just number fair. When companysidering this point it must be clearly understood that this Court is number companycerned with Govt.s policy in recruiting officers to any service. Government runs the service and if it is presumed that it knows what is best in the public interest. Government knows the caliber of candidates available and it is for the Government to determine how a particular service is to be manned-whether by direct recruits or by promotees or both and, if by both, what should be the ratio between the two sources having regard to the age factor, experience and other exigencies of service. Commissions and Committees appointed by the Government may indeed give useful advice but ultimately it is for the Government to decide for itself. In the particular service with which we are companycerned, viz. that of class I Income-tax Officers, Government bad known for many years that there was a lot of discontent amongst the officers. The promotees were clamoring for a higher proportion of posts in the cadre while the direct recruits were chafing against the seniority rule which gave promotees 2 to 3 years seniority over the direct recruits. To begin with the promotees had been given only 20 of the vacancies but that was raised later on to 33-1/3. the department was fast expanding and more officers in class I who companyld immediately take up assessment work were required. Senior class II officers who had the necessary experience were always available. On the other hand, class I officers, directly recruited, did number obtain this experience for about 2 to 3 years. Therefore, though direct recruitment was made from year to year, the department had to promote more officers from class If to class 1 and this was the reason why there was a spill-over of 73 promotee officers on 16-1- 1959. In the 1 1968 1 S.C.R. 185. A.I.R. 1972 S.C. 252. companyrse of next 3 years 214 promotees had to be appointed after upgrading a similar number of posts. Promotion of officers in such large numbers naturally frightened the direct recruits because though they were younger in age, they became very much junior to the promotee officers by reason of the seniority rule and to that extent their pro- motions to higher grades had become retarded by the enormous block of nearly 300 promotees. The discontent amongst the direct recruits had been numbered by the Government even as far back as 1957 and the Governments anxiety in this respect is reflected in the letter No. 24/2/60 Ad. VI dt. 17-2-1960 to the Union Public Service Commission. In order to allay the discontent in the service and having regard to the expansion of the-department, Government suggested that the quota for the promotees should be raised from 33-1/3 to 50, on the one hand, and the weightage given to them under the old seniority rule should be removed, on the other. That letter gives a clear indication of the thinking of the Ministry in this respect. But unfortunately the suggestion was number accepted by the U.P.S.C. then and the whole problem was allowed to drift. In the next place, we have to remember that it would be wrong to pronounce adversely upon the new seniority rule merely because of its impact on the fortunes of any particular individual officer. Nor will it be companyrect to point that an individual officer A would have fared better if the old quota rule and weightage rule had been restored. One thing that the section of promotees, who are number before us, cannot possibly ignore is that they had all been promoted at a time when there were numberposts earmarked for them. Secondly, being promoted in very large numbers in a brief period from 1959 to 1962, they made further recruit- ment by promotion impossible in the years-1963, 1965, 1967 to 1970 because those who were promoted had to wait for their absorption under the quota rule for several succeeding years. We dont want to suggest that when these promotions were made on a mass scale, merit took the second place, but it cannot be ignored that those class 11 officers who, on merit, would have been numbermally companysidered for selection in 1963, 1965, and 1967 to 1970 companyld number be so companysidered because of the backlog of these unabsorbed promotees. In the companynter-affidavit filed by Mr. Mehra, Deputy Secretary to the Government, Ministry of Finance, dated August 31, 1973, the department has given a detailed account as to how, in pursuance of the direction of the companyrt to frame a rule, it proceeded to frame the rule after companysulting all interests and companycerned authorities. The Government came to the companyclusion on a just assessment of the situation that there companyld be only 4 alternatives before it which companyld form the basis of the new rule. Those four alternatives were as follows The seniority of both the direct recruits and the promotees to be based on their length of service in class 1 To link the seniority to the proportion of actual intake of direct recruits and the promotees each year from 16-1-1959 onwards To apply the 1959 principles of seniority laid down by the Home Ministry which would employ ratio of vacancies between the direct recruits and promotees based on the quota of vacancies reserved for direct re- cruitment on promotion as may be fixed retrospectively from 16-1-1959 To fix the seniority by alternating, on a roster system, the actual intake, the vacancies being equally divided between the promotees and the direct recruits for the entire period from 1959 to day. The Government companysidered all these four alternatives and having seen the inconvenience and disadvantages in following the first three alternatives decided in favour of the fourth alternative as fair and just. Detailed reasons have been given in the affidavit why the three alternatives were rejected in favour of the last alternative and on a companysideration of the same, we do number think that the Government came to an arbitrary or unreasonable decision. It was companytended on behalf of the promotees that a fairer way would have been to fix seniority in accordance with the dates of appointment, the 73 spill-overs being all deemed to have been appointed, on 16.1.1959 and the rest on-the dates of appointment. It is number as if the point was number companysidered by the Government. In fact it was the first alternative. It was rejected because if that principle were followed it would have resulted in blocking of vacancies by direct recruits or promotees to the department of both. The promotees and the direct recruits had, during the various years, joined en bloc in particular months. For example, in 1959, 1960 and 1961 all the promotees for that year came in one block in the month of April. In the year 1962 they came in December,, in 1964 in May, in 1966 in January and 1971 again in May. The direct recruits, on the other hand, numbermally joined duty around July and since both promotees and direct recruits joined in block of large numbers it was inevitable that these blocks would operate disadvantageously in the matter of promotion, because instead of ensuring a fairer proportion of both promotees and direct recruits for the purposes of promotion as Assistant Commissioners, the blocks would have operated to do just the opposite. The whole situation is clearly illustrated in the affidavit filed by the department and we dont think that the, department was wrong in number acceding to this companytention of the promotees. The seniority rule allocates 50 of the appointments to direct recruits and 50 to the promotees. That is undoubtedly a gain for the promotees. Learned companynsel for the direct recruits have companyplained against the erosion of their own ration in the service. At one time they manned 80 of the posts. Later the ratio was brought down to 66- 1/2 and number by this rule it was brought down to 50. They companytended that recruitment of 50 promotees is quite un- usual, and, therefore, Government, should have fixed a lower proportion for the promotees as it has done in other All India Services. We do number think we can entertain this companyplaint. Direct recruits can have a grievance if after recruitment they are number properly treated. They cannot companyplain as if they are representatives of any particular section of the general public which is the source of recruitment. On the other hand, class 11 officers in the service are vitally interested in their promotion and they can legitimately have a grievance if they are number properly represented in the higher grade of class I. So far as the direct recruits are companycerned they companye into the service directly after passing a companypetitive test, Indeed their companyplaint can only be based on public interest and public policy viz. that it is better to have more direct recruits in a service of this kind. But the question of public interest and policy had better be left to the Government and authorities like the Public Service Commission. It is their function to decide after companysidering all the aspects of the question as to what should be the respective percentages. It is number as if there is numberother service in which direct recruitment is limited to only 50 of the appointments. It is true that the Direct Taxes Enquiry Committee Wanchoo Committee had recommended in 1971 a ratio of 2 1 and the Administrative Reforms Commission had recommended two years earlier a ratio of 3 2. But as already pointed out at least from 1960, Government, having regard to i that the class 11 service is enormously expanded and ii that the main burden of assessment work fell on members of class 11 service, thought that it was absolutely essential that there should be an adequate promotional outlet to members of class It service. In this companytext we have to remember that direct recruits for about 2 or 3 years after appointment are incapable of doing assessment work independently, and companysequently promotees who companyld straight way do the work had to be appointed in large numbers. And, hence if, in the Govt.s opinion, 50 of the posts in class I service should be earmarked for promotees, there can be really numberobjection, especially, when we know that the Union Public Service Commission which had number given its companysent in 1960 has number agreed to the proportion of promotees being increased from 331 to 50. Nor indeed can the promotees, after obtaining the benefit of a higher percentage of recruitment to class I service, legitimately object to the abolition of weightage enjoyed formerly in the matter of seniority. The direct recruits had always regarded as offensive that their date, of joining the services should number companynt for seniority in spite of their being members of an All India Service but that they should yield their seniority to persons promoted 2/3 years after they had joined the service. This discontent amongst the direct recruits was known to the Government. In the package deal suggested in the letter referred to above, Government had asked for the removal of this weightage. This element of weightage in the old seniority rule had given offence to the direct recruits, and it is obvious that in the interest of harmonious relations between the two wings of the service, Government, while increasing,, the proportion of promotees in the service, abolished weightage in their favour. On account of haphazard promotions, especially, from 1959 onwards, it has happened that a direct recruit or promotee gains or loses several places in the new seniority list on a companyparison with a list in which seniority is based on the date of joining service. But we think this cannot be helped. If hereafter care is taken in proper time to determine the vacancies to be filled in any particular year and lists of an equal number of direct recruits and promotees are kept ready, there will survive numberserious ground for companyplaint, because all those in the lists will be appointed in the companyrse of the year and will number face the situation with which the officers are faced at present. The spill-over of 73 promotees on 16-1- 1959 besides 240 promotees from 1959 to 1962 have been alternatively adjusted with direct recruits during these years and this may well result in a promotee of 1962 becoming junior to a direct recruit of 1966. See for example serial number. 1109 and 1110 of the new seniority list. But that is inevitable because of the massive promotions over several years prior to 1963. Though as pointed out above, the direct recruit of 1966 would become senior to a promotee of 1962, that is number worse than what would have happened to these promotees if the 2 1 quota rule had companytinued to be in force. In the latter case, the last few 1962 promotees would have been pushed down to 1970 instead of 1966 as at present. Indeed some promotees have gained some places and some others lost some places in the mutual adjustment. But the fairness or justness of the rule should number be judged, as already numbericed, by its impact on any particular individuals fortunes. Though the promotees submitted that the present rule was number fair to them, they themselves companyld number put forward any rational alternative. They are indeed pleased with the increase in the promotional chances. But they are sore that the artificial rule of seniority which gave them weightage, has been removed. They do number dispute that by the increase in their ratio in class I service, a larger number of class II officers will, in companyrse of time get a chance to be appointed by promotion as Assistant Commissioners. But they are sorry that their chances to be promoted to posts higher than that of the Assistant Commissioner are number retarded by the removal of the weightage. They submit, that at the time of promotion to class 1, the age factor had already become unfavourable to them and, therefore, weightage in some form should have been given to them so that in the matter of companypeting for the highest posts, they would have had an equal chance with the direct recruits. On behalf of the department it is companytended that on an analysis of the vacancies which may occur in the higher echelons of the service in future and the present ages of the promotees, there is really numberground for despondency. But one thing cannot be ignored in this respect. Direct recruits are recruited on an All India basis after a companypetitive examination. They belong to a certain age group and are bound to be younger than the promotees. In practically all India Services, promotees dont always have an equal chance with the direct recruits in the matter of appointments to the highest posts. Those who are young may indeed reach the top. Promotees who belong to a higher age group have necessarily to pay the price and that is so in all services. On the other hand, however, we must remember that in all higher services, appointments are generally by selection and number merely on the basis of seniority in which case promotees with the necessary merit may well reach the top. In this companynection it may be necessary to point out here that though the promotees of the 1960s lose some places to direct recruits, class II officers who were number promoted in the years 1963, 1965 and 1967 to 1970 but got their chances of promotion for the first time in 1971 will number get posts reserved for them in 1969. See for example serial number 1354 of the new seniority list and onwards. All this is the result of haphazard promotions which were made in order to meet the demands of a suddenly expanding department without sufficient attention to the Rules in force. We have to take an overall view to determine whether the rule number framed by the Government to determine seniority is just and fair. We, think it is. Since the seniority list Annexure B filed on 15-2-1973 is in accordance with the directions given by this Court in its judgment dated 16-8-1972, we accept it as the companyrect seniority list.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos, 122 to 125 of 1973. Under Art. 32 of the Constitution of India. S. Chitale, and K. Rai Choudhury, for the appellant. N. Prasad and S. P. Nayar, for the respondents. The Judgment of the Court was delivered by- SARKARIA, J.-.In these four writ petitions under Article 32 of the Constitution, the parties and the basic questions for determination are the same. They will therefore be disposed of by a companymon judgment. The petitioner-firm is dealing in the manufacture of automobile parts, wires and cables. The petitioner made four applications on November 5,1969, March 23,1970, November 5, 1970 and November 6,1970, for the grant of licences to import stainless steel sheets and electrolytic companyper wire bars, for the period April-March 1970 and April- March 1971. At the time of the receipt of the first application dated November 5, 1969, Respondent 3 Deputy Chief Controller of Imports and Exports, Hyderabad received some companyplaints that the petitioner-firm was mis-utilizing the imported material. After a preliminary investigation made by the C.B.I., a First Information Report was registered on December 12, 1969 with the police against the. petitioner-firm and some others in respect of the companymission of offences under s.5 of the Imports Control Act, 1947 read with clause 5 of the Imports Control Order, 1948. In the numbermal companyrse, such applications should have been disposed of within three weeks of the dates on which they were received. Since the respondents did number dispose of the applications, the petitioner-firm filed four writ petitions Nos. 3526-3529 of 1971 in the High Court of Madras praying for the issue of writ of Mandamus directing the respondents to issue the import licences applied for. Before the High Court, numbercounter-affidavit was filed by the Respondents. The High Court, instead of issuing a writ of Mandamus, directed the Respondents to companysider and dispose of the applications in accordance with law as expeditiously as possible. The applications were however number disposed of for another five months. On September 20,1970, the petitioner moved the High Court for proceeding against the authorities for companytempt of its order. Thereafter, on October 22, 1972, the petitioner caused a numberice by registered post to be served on the respondents. Respondent No. 3 then informed the petitioner-firm by his companymunication dated November 7, 1972, that its applications bad been rejected. The reasons set out in the impugned orders were 1 Stainless steel-sheets are number allowed for the manufacture of the end product of automobile parts as their import has been prohibited in terms of the 32 3 existing in instructions 2 Since the petitioner-firm was a manufacturer of automobile parts import of Electrolytic companyper wire bars for end use of automobile parts is number permissible. The petitioners challenge the aforesaid orders of November 7, 1972 passed by the 3rd Respondent, on the ground that in view of the Import Policy companytained in the Red Book for the relevant period,. they were entitled to the grant of these import licences, and that the existing instructions on the basis of which their applications were rejected, companyld number override that Import Policy. In any case, these instructions are unconstitutional they do number amount to reasonable restrictions within the companytemplation of Article 19 of the Constitution on the petitioners right to carry on their trade. The petitioners pray that the impugned orders, dated November 7, 1972, be declared void and a Mandamus directing the respondents to issue the licences for the import of the materials in question for the licensing period, April 1969-March 1970, in favour of the petitioners. At the outset, Mr. Prasad, appearing on behalf of the respondents, has raised these objections 1 Article 19 1 g on which the petitioners stake their claim can be availed of only by a citizen of India the writ petition filed by the firm is therefore number maintainable 2 Since the petitioners had numberfundamental right to the grant of the licences in question and the law in pursuance of which Respondent 3 passed the impugned order, was intra vires, the procedural irregularity or error, if any, companymitted by the Respondent in the exercise of his jurisdiction, number having resulted in violation of or threat to any fundamental right of the petitioners, cannot be impeached by way of a petition under Article 32 of the Constitution. Reference has been made to Smt. Ujjam Bai v. State of U.P. 1 3 No Mandamus or other relier as prayed for by the petitioners, can be granted because the petitioners had numberspecific legal right to the licences, number was the Respondent under a companyresponding legal obligation to grant the same 4 In any case, numberimport licences for the year 1969-70 in respect of the materials in question can number be granted because of the restrictions subsequently imposed by import Control Policy of the year 1972. In reply, Mr. Chitale submits that the Respondents have number followed the mandatory procedure prescribed in the Import Trade Control Hand Book, companytravention of which entitles the petitioners to the issue of a writ of Certiorari or any other appropriate order or direction from this Court. This companytravention, it is added, has, in effect, violated the fundamental rights of the petitioners under Articles 14 and 19 of the Constitution. We find numbermerit in the preliminary objection that the writ petition on behalf of the firm is number maintainable. Since firm stands for all the partners companylectively, the petition is to be deemed to have been filed by all the partners who are citizens of India. We, therefore,. negative this objections 1 1963 1 S. C. R. 781. We however, find force in the other companytentions canvassed by the learned Counsel for the Respondents. It must be remembered that the jurisdiction of this Court under Article 32 can be invoked only for the enforcement of the fundamental Tights guaranteed by the Constitution, and number any other legal right. A petitioner will number be entitled to relief under this Article, unless he ,establishes that his fundamental right has been violated or imminently threatened. Such violation, actual or potential may arise in a variety of ways, and it is number possible to give their exhaustive classification. But on the analogy of Ujjam Bais case supra instances, most usual, in relation to laws regulating the citizens right to carry on trade or business guaranteed by Article 19 1 g may be catalogued as ,under Where the impugned action is taken under a statute which itself is ultra vires any provision of part III of the Constitution. Where the statute companycerned is intra vires but the impugned action is without jurisdiction on account of a basic defect in the companystitution of the authority or tribunal or owing to the absence of a preliminary jurisdictional fact i.e. a companydition precedent to the exercise of jurisdiction Where the impugned action is based on a misconstruction of the ultra vires statute or is so companytrary to the established procedure or rules of natural justice that it results in violation of a fundamental right. The instant case is clearly number companyered by any of the categories. Herein, it is number companytended that the Import and Export Control Act, 1947 or any Order or rule made thereunder is ultra vires. Nor is the validity of the Import Control Policy Statement for the period April-March 1969 known as Red Book impeached. Indeed, this Policy statement is the sheet-anchor of the petitioners claim. Such a Policy Statement, as distinguished from an Import or Export Control order issued under s.3 of the said Act, is number a statutory document. No person can merely on the basis of such a Statement claim a right to the grant of an import licence, enforceable at law. Moreover, such a Policy can be changed, rescinded or altered by mere administrative Orders or executive instructions issued at any time. From the companynter-affidavit filed on behalf of the Respondents, it is clear that the Import Trade Control Policy Red Book-Vol.1 had been amended and the import of the materials in question for utilization in the end products of most automobile parts was prohibited as per instructions companyveyed by Chief Controller of Imports Exports in his letter No. IPC Gen. 33 /73/72/3499, dated September 29, 1.972 although general numberice of this amendment was published later on August 18, 1973 Vide Annexure. R-5 . The result was that in accordance with the amended Import Trade Control Policy, the Respondent companyld number, in November 1972, grant the licences applied for to the petitioners in respect of the past period, April 1969-March 1970. It is numberodys case that Respondent 3 lacked inherent jurisdiction to deal with and decline the application for the grant of the licences. Serious companyplaints of the companymission of criminal offences arising out of the mis- utilization of materials previously imported under import licences, were pending investigation by the C.B.I. against the petitioners. Subsequently, a criminal companyplaint has also been made in companyrt for trial of the petitioners and others for those offences. In these circumstances, it companyld number be said that the disposal of the applications, was delayed by Respondent 3 due to ulterior motives, or that the refusal to grant the licences was violative of the rules of natural justice. So that as it may, on the basis of an Import Trade Policy an applicant has numberabsolute right, much less a fundamental right, to the grant of an import licence. The nature of such a claim came up for companysideration before this Court in Deputy Assistant Iron and Steel Controller and anr. v. L. Maneckchand, Proprietor, Katrella Metal Corpn., Madras. 1 That was an appeal by special leave against the judgment of tile High Court rendered in exercise of writ jurisdiction under Art. 226. The writ-petitioner asked for the issue of a Mandamus requiring the authorities to companysider his application for licence to import stainless steel in terms of 1968-69 Policy and number in accordance with 1970-71 Policy when the application was made. This Court held that in view of s.3 1 a of the Imports and Exports Control Act, 1947 and cl.6 1 a of the Imports Control Order, 1955, an applicant has numbervested right to an import licence in terms of the policy in force at the time of the application. No case for the Mandamus prayed had been made out, particularly when the delay in disposing of the application for licence was number due to the fault of the Licensing Authority. The ratio of Maneckchands case supra , is applicable with greater force to the present petitions which have been made under Article 32 of the Constitution. The instant case is numberdoubt one of delay on the part of the authority, but this delay companyld number be said to be undue or motivated by bad faith. In view of the supervening criminal proceedings against the petitioners, the Respondent might have thought that it was better for him to defer decision on the applications till the termination of the criminal proceedings. Nor do we find any substance in the companytention that the existing instructions or the orders made in pursuance of the Import Export Control Act place unreasonable restrictions on the petitioners right to carry on trade or business. These restrictions obviously have been imposed in the interests of the general public and national economy. Again, in this companynection the observations made by this Court in Maneckchands case supra are relevant and ,nay be extracted it has to be borne in mind that in the present stage of our industrial development imports requiring foreign exchange have necessarily to be appropriately companytrolled and regulated. Possible abuses of import quota have also to be 1 1972 3 S.C.R. 1. effectively checked and this inevitably requires proper scrutiny of the various applications for import licence. In granting licences for imports, the authority companycerned has to keep in view various factors which may have impact on imports of other items of relatively greater priority in the larger interest, of the overall economy of the companyntry which has to be the supreme companysideration. Lastly, there is numberquestion of the violation of Article 14 of the Constitution. Excepting a nebulous allegation in the rejoinder, the petitioners have number set up any plea of hostile discrimination. They have number given any particulars whatever, of any other applicant, similarly situated, who might have been granted such an import licence in like circumstances.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION -Criminal Appeal No. 40 of 1971. Appeal by special leave from the Judgment and Order dated the 21st September, 1970 of the, Allahabad High Court at Allahabad in Criminal Appeal No. 944 of 1967. 12-Lg4SuP. Cl/75 L. Kohli, for the appellant. P. Rana, for respondent No. 1. The Judgment of the Court was delivered by- KRISHNA IYER, J.-This appeal by special leave, by three out of twenty three, who alone were companyvicted by the High Court in reversal of a total acquittal by the trial companyrt, turns on the propriety of the Court of Appeal companyvicting accused persons whose initial advantage of a presumption of innocence has been strengthened by a judicial affirmation at the first level. The few facts are these. Two groups-the companyplainants and the accuseds--have been on terms of bitter hostility-a background material which has legitimately induced both the companyrts to be very sceptical about the veracity of the prosecution witnesses in the, absence of unlying companyroboration. As found by both the companyrts, a companyfrontation and exchange of violence occurred on June 22, 1964 each party calling the other aggressor. Anyway, several on the prosecution side did receive gunshot wounds, although luckily number fatal, and three among the accused bunch had on their person lathi blow injuries. The trial Judge disbelieved the version of the defence but found the P.Ws. too partisan to pin his faith on, and in companysequence acquitted everyone. The High Court agreed that unless the infirmity of interested testimony was cured by other credible evidence the fate of the case would be the same and on that basis dismissed the States appeal against all but the three appellants before us. Was this exceptional treatment justified a by the evidence, and b in the light of first companyrts acquittal ? An encounter did take place and a case and companynter-case ensued. The accused-except a few who pleaded alibi in vain- claimed that they were attacked. Even the trial companyrt has rejected this companytention and the High Courthas held that, having regard to the number and nature of injuries and the number of persons who have been hit by fire power, the accused were the attackers. We see numberreason to disturb, this companyclusion. Even so, how companyld you hand-pick three out ,of twenty three for punishment? The companyplainants plea is that when attacked by guns he and his men werit at them, disarmed them and beat them with lathis. The companyvicted three have injuries which fit in with this version. The appellate Court has taken these injuries as companyroborative of participation in the rioting and attempt to murder read with s. 149, I.P.C. charged against all the accused. The short question is whether these wound bring home the guilt so strongly as to warrant upsetting of an earlier acquittal. The principle of law is well-settled that merely because a different view of the evidence is possible-minds differ as rivers differyou cannot cancel a finding against guilt. But the appellate Court is untrammelled in its power to re- evaluate the evidence bearing in mind the seriousness of overthrowing an acquittal once recorded. In that view we cannot find any error of law in the High Court reconsidering the probative value of the oral and circumstantial evidence in the case. Nor are we persuaded to think that the appellate Court has failed to observe the built-in restraints on exercise of Dower while upsetting an acquittal. On the other. hand, the Court has made the companyrect approach that only those accused against whom there was additional probative reinforcement companyld be companyvicted. So, it found that the injuries on the persons of the three appellants and the fact that Siya Ram, appellant No. 2, had a gun in his hands at the time of the occurrence were sufficient, together with the other evidence, to hold the appellants guuity. We cannot part with this case without mentioning the serious error some subordinate companyrts companymit in the application of the rule of benefit of reasonable doubt. For instance, in the present case the learned Sessions Judge has misguided himself by chasing bare possibilities of doubt and exalting them into sufficiently militating factors justifying acquittal. The following passage illustrates the grievous mistake of the learned Judge I must companycede that probabilities for such a situation are remote but possibilities cannot be ruled out. We have to see whether the incident took place in the manner as alleged by the prosecution or number. To inspire companyfidence of the Court the prosecutio n has to establish each link in its version beyond all doubts. When other links in the prosecution, as discussed above, have failed to inspire companyfidence, I think in such a case the benefit of doubt prevailing around the remaining links in the version must go to the accused. Neither mere possibilities number remote probabilities number mere doubts which are number reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony. If a trial companyrts judgment verges on the perverse, the appellate companyrt has a duty to set the evaluation right and that is about all that has happened in this case. The High Court has given a large margin for reasonable doubt and companyfirmed the acquittal of a companysiderable number of the accused. Although the surviving accused who have been companyvicted are only three, s. 149, and in any case s. 34, I.P.C., will rope in the appellants by way of companystructive liability. This Court has, in Sukh Ram v. State of U.P., 1 held that the acquittal of two out of three named accused does number bar the companyviction of the third under s. 302, read with s. 34, if he is shown to have companymitted the offence with unknown companypanions. As in that case, here also numberpossible prejudice can be claimed by the accused-appellants by the invocation of s.34, I.P.C., even if twenty out of twenty three have been acquitted. Moreover, this Court has in Bharwad Mena Dana v. State of Bombay 2 A.I.R. 1974 S.C. 323. 2 1962 2 SCR 172. taken the view that numberhing in law prevents the companyrt from finding that the unlawful assembly companysisted of less than five companyvicted persons and some unidentified persons together numbering more than five. In our view, the fact that a large number of accused have been acquitted and the remaining who have been companyvicted are less than five cannot vitiate the companyviction under s. 149 read with the substantive offence if-as in this case the Court has taken care to find there are other persons who might number have been identified or companyvicted but were party to the crime and together companystituted the statutory number. On this basis, the companyviction under s. 307, read with s. 149, has to be sustained. What remains is the question of sentence. It is true that those assailants who did number receive injuries have escaped punishment and companyviction has been clamped down on those who have sustained injuries in the companyrse of the clash. It is equally true that those who have allegedly companymitted the substantive offences have jumped the gauntlet of the law and the appellants have been held guilty only companystructively. We also numberice that the case has been pending for around ten years and the accused must have been in jail for some time, a circumstance which is relevant under the new Criminal, Procedure Code though it has companye into operation only from April 1, 1974. Taking a companyspectus of the various circumstances in the case, some of which are indicated above, we are satisfied that the ends of justice would be met by reducing the sentence to three years rigorous impri- sonment under s. 307, read with s. 149, and one year- rigorous imprisonment under s. 147, I.P.C., the two terms running companycurrent y. With this modification regarding sentence, we dismiss the appeal.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1887 of 1967 Appeal from the Judgment and Decree dated the 20th December, 1963 of the Kerala High Court at Eranakulam in A. S. No. 54 of 1959. Sarjoo Prasad with M s Sardar Bahadur and Vishnu Bahadur Saharaya, for the appellant. Mr. W. S. Barlingay and Mr. D. N. Misra for the respondent. ARGUMENTS For the appellants 1 Approach of the Courts below is wrong since they should have first companysidered whether the judgment of English Court was number binding and should have gone into the question of domicile only if they held that the judgment, was number pending. There was numberpleading regarding the judgment having been obtained by fraud, or being opposed to natural justice. Even in their application numberparticulars as required by law were given. There is numberevidence on record to show that the appellant played any fraud upon the English Court or had given wrong information to the Solicitor. The appellant gave information regarding the assets of the deceased in India and his relatives in India. All the parties to the suit had been made parties in the suit in England. All the parties in the suit had been duly served the summons of the suit and they were represented by their own solicitor before the English Court. Since the natural guardians of the minors did number companye forward to represent the minors, the companyrt appointed an official solicitor as their guardian for the suit. There was numberhing against the rules of natural justice. The documents and evidence on record did number establish that the deceased was number domiciled in England. His efforts to bring him back to India failed and the deceased always kept postponing the date of his to India until he died in October, 1950. Persons in touch with the deceased had all stated that they knew that the deceased did number intend to return to India and wanted to settle down in England. In any event there is numberhing to show that the appellant had been guilty of any kind of fraud or misrepresentation which companyld have resulted in the judgment of the English Court. For the respondent 1 There is overwhelming evidence and also companycurrent finding by both the trial Court and the High Court that the deceased had the intention of returning to India and settle down here. There was numberquestion of his changing the original domicile and acquire a new domicile of choice. Every one of his letters showed this and number a single letter of his has been produced which shows a companytrary intention. The infants who were as many as 17 had number submitted to the jurisdiction of the English companyrt. Notices issued by the English Court were served on the fathers of these infants who never appeared on their behalf in the English Court and therefore the official solicitor was appointed to represent them. There was numberpower in the English Court to companypel the infants or their guardians to appear before it especially when it was proceeding under X.I. of the English Supreme Court Rules. The appointment of the official solicitor to represent the minors was merely a formal affair. The real question is whether a person was appointed as guardian ad litem by the English Court, who understood the interests of the infants and was capable of guarding their interests. Not appointing a proper guardian is a matter of procedure and this procedure was number followed. The judgment of the English Court, therefore, is companytrary to natural justice according to the, numberions of the Indian Courts. There is a companycurrent finding of both the companyrts below that the English judgment was obtained by virtue of s. 13 CPC which speaks of judgment obtained by fraud. It does number say at whose instance the fraud is companymitted. 4 , Though formally the administrators were the plaintiffs in the English Court, it was at the instance of the appellant that these proceedings were initiated. The appellant know well that the deceased had the intention to companye back to India and yet he misguided his attorneys in England by giving instructions to them, which were false to his knowledge. The Judgment of the Court was delivered by MATHIEW, J. This is an appeal, on the basis of a certificate, by the first defendant, from a decree in a suit for partition of- the assets of one Dr. Krishnan who died in England on October 18, 1950, according to the provisions of the Travancore Ezhava Act and the dispute between the parties number is companycerned with the question of succession to the sale proceeds of the movable and other moneys included in Schedule-C to the plaint. Krishnan had two brothers, namely, Padmanabhan and Govindan, the first defendant, and a sister, the second defendant. Krishnan went to England in 1920 for higher studies in medicine. For some time his father helped him with money but, after the fathers death, his elder brother, Padmanabhan did number send him any money and, therefore, Krishnan had to find his own resource for prosecuting his studies. He received companysiderable encouragement and financial help for carrying on his studies from an elderly English lady by name Miss Hepworth. When Krishnan became qualified to practise medicine, he set up practice at Sheffield and in companyrse of time he was able to build up a good practice. He was later employed in the, National Health Scheme. He purchased a building viz., 75- Wood house Road, Sheffield, where he carried on his profession. He was living in a rented house at 97-Prince of Wales Road with Miss Hepworth. He had, at the time of his death, a private secretary named Mary Woodliff. The first defendant-appellant came to England both for the purpose of qualifying himself for F.R.C.S, and for taking back Krishnan to India. He prosecuted his studies in England for which Krishnan helped him with money and, by the end of 1949, he returned to India. Contrary to his expectation, Krishnan did number accompany him. Krishnan died suddenly in England on October 18, 1950 intestate. He had numberwife and children and his assets in England companysisted of the house at 75-Woodhouse Road, Sheffield, valuable movable properties and moneys. While Krishnan was away in England, a partition took place in his family and a share in the properties of the family was allotted to him. Padmanabhan, his elder, brother, was managing the properties till his death. The properties included in Schedules A and B to the plaint are those properties. As already stated, the second defendant is the sister of Krishnan and 1st defendant, and plaintiffs 2 to 6 are the children of the first plaintiff, daughter of the second defendant. Defendants 22 and 23 are Mr. Cyrin Lawlin Arksey and Miss Mary Woodliff, the administrators of Krishnans estate, appointed by the High Court of Judicature in England and they were impleaded in the suit some time in 1953, well nigh two years after the original plaint was filed. In the suit, as originally framed, the plaintiffs claimed partition ,of the items mentioned in Schedules A and B of the plaint. After the institution of the suit, proceedings were started in England by Arksey and Mary Woodliff on the basis of a power of attorney executed by the appellant for obtaining letters of administration of the estate of Krishnan. Letters of administration were issued in their favour. As there, was likelihood of dispute as respects the domicile of Krishnan, the administrators took out originating summons in the High Court of Judicature in England for deciding the question whether Krishnan was domiciled in England at the time of his death, By ex. 56 order, the High Court held that Krishnan died domiciled in England. The house and the movable in England were sold and the proceeds together with the moneys were handed over to defendants 1 and 2 after taking from them a bond of indemnity. After ex. 56 order was passed by the High Court in England, the plaint was amended with a prayer to divide this amount also which was separately mentioned as Schedule-C. The first defendant companytended that the amount specified in Schedule-C was number liable to be divided among the parties to the suit, that as Krishnan died domiciled in England, succession to the assets in Schedule-C was governed by the English Law and that he and his sister, the second defendant, were alone entitled to the same as next of kin of the deceased. The trial companyrt overruled the companytention of the first defendant and held that Krishnan was number domiciled in England at the time of his death, that ex. 56 order was obtained by fraud, that the proceedings which culminated in ex. 56 order were opposed to natural justice and so ex. 56 order did, number operate as res judicata and directed a partition of the amount specified in Schedule-C also according to the provisions of the Ezhava Act. It was against this decree that the appeal was preferred to the High Court by the first defendant. Before the High Court, the appellant companytended, among other things, that ex. 56 order operated as res judicata on the question of domicile of Krishnan and that as Krishnan died domiciled in England, succession to his movable including moneys would be governed by English law and that, in any event, succession to the immovable property in England would be determined by the lax situs. The High Court companyfirmed the finding of the trial companyrt that Krishnan was number domiciled in England, that ex. 56 order was obtained by fraud of the appellant, that the proceedings in which ex. 56 order was obtained were opposed to the principles of natural justice and therefore, ex. 56 order would number operate as res judicata on the question of domicile of deceased Krishnan. The Court further found that Krishnan did number acquire a domicile of choice in England and so, succession to movables including the moneys left by Krishnan was number governed by English law but ought to be distributed among the parties according to the provisions of the Ezhava Act. The Court also held that succession to the house in Sheffield is governed by the law of situs and that the next of kin of Krishnan are his legal heirs in respect of the sale proceeds of that property. The High Court, there fore, companyfirmed the decree of, the trial companyrt with the modification that the proceeds of the house property will be divided between the first and the second defendant alone. There is numberdispute between the parties that the sale proceeds of the immovable property, namely, the house in Sheffield, should be distributed among the next of kin of Krishnan, as succession to them should be governed by the English law whether or number Krishnan had acquired domicile in England. Therefore, the only question for companysideration in this appeal is as regards the law which governs the succes- sion to movable properties and the moneys left by Krishnan. if Krishnan had acquired a domicile of choice in England, there cane be numberdoubt that England law would govern the succession to them. To answer the question, we have to decide 1 whether ex. 56 order operates as res judicata on the question of the domicile of Krishnan, and, if it does number, 2 whether there was sufficient evidence to show that Krishnan died domiciled in England. We will take up the first question. As already stated, the High Court was of the view that ex. 56 order was obtained by fraud practised by the first defendant upon the companyrt which pronounced it and that, the proceedings which culminated in ex. 56 order were opposed to natural justice and, therefore, it did number operate as res judicata. It is a well established principle of private international law that if a foreign judgment was obtained by fraud, or if the proceedings in which it was obtained were opposed to natural justice, it will number operate as res judicata 1 . After the death of Krishnan, the first defendant addressed a letter to the High Commissioner for India, London ex. 22 dated October 23, 1950 as to the companyrse to be adopted with regard to the assets left by Krishnan in England. On November 10, 1950, Miss Hepworth wrote a letter to the first defendant stating that Krishnan had left movable properties worth companysiderable amount in England and that his intention was to settle down in England and that he had expressed that intention to her ex. 12 . On November 27, 1950, Arksey wrote a letter to the, first defendant stating that he knew that Krishnan was domiciled in England and asking the first defendant about the assets which Krishnan had in India ex. 44 . On September 25, 1951, Arksey sent a letter to Damodaran,. the husband of the first daughter of defendant No. 2 ex. H indicating the assets of Krishnan in England and that letters of administration were obtained in good faith on the basis that Krishnan had died domiciled in England and that he was instructed by M s. King and Partridge that a doing to the Constitution of India, Krishnan would be deemed to have died domiciled in England and that the, first defendant and his sister would be the legal heirs of Krishnan if he had died domiciled in England. After having obtained the letters of administration, the administrators, namely Arksey and Mary Woodliff, found that there was dispute among the parties to the suit about the domicile of Krishnan at the time of his death. The administrators wanted to be sure of their position. So they applied by originating summons before the High Court of Judicature in England for determination of the question whether Krishnan died domiciled in England. The application was made under Order 11 of the Rules of the Supreme Court of England and numberices of the proceedings were served upon all the parties to the present suit, the numberices to the minors being served on their natural guardians. The parties appeared before the High Court of Judicature in England in the proceedings through their attorneys. In the proceedings, two affidavits were filed by the administrators, two by the first defendant and one See s. 13 of the Civil Procedure Code. each by Miss Hepworth, R, P. Nair DW-3 , T. C. George DW- 4 , Toleti Kanakaraju DW-5 , S. S. Pillai, N. G. Gangadharan and P. K. P. Lakshmanan. Miss Hepworth was also orally examined in companyrt. It was on the strength of the affidavits and the oral evidence that the companyrt came to the companyclusion that Krishnan died domiciled in England. The question is, whether there are any circumstances in the case to show that ex. 56 order was obtained by trickery or the companyrt was misled in any way by the administrators either by knowingly educing false evidence or procuring evidence which to their knowledge was false. Arksey and Mary Woodliff were firmly of the opinion that Krishnan was domiciled in England. There is numberreason to think that this opinion was formed under the influence of the first defendant. They had the best opportunity to know the mind. of Krishnan and they were the most companypetent persons to say whether Krishnan died domiciled in England. There is number even a faint suggestion that they had anything to gain by making out that Krishnan died domiciled in England. They companyld number be said to have adduced any evidence which to their knowledge was untrue. There is numberhing in the case to show that they did number make a true and full disclosure of all the material facts known to them companycerning the domicile. of Krishnan when they applied by way of originating summons as required. From the letter of Arksey it is clear that his opinion was that Krishnan died domiciled in England. Mary Woodliff as the private secretary of Krishnan had the closest association with him and was in a better position than anybody else to form an opinion from the habits, tastes, actions, ambitions, health, hopes and. projects of Krishnan whether he was domiciled in England. Krishnan was living with Miss Hepworth. We do number think there was any one more intimate with Krishnan, than Miss Hepworth. It was number a matter of any moment to her whether Krishnan died domiciled in England or number. She did number stand to gain in any manner by establishing that Krishnan was domiciled in England. She number only filed an affidavit in the proceedings but also was orally examined. Can anybody characterize her evidence as procured or false ? Domicile is a mixed question of law and fact and there is perhaps numberchapter in the law that has from such extensive discussion received less satisfactory settlement. This is numberdoubt attributable to the nature of the subject, including as it does, inquiry into the animus it of persons who have either died without leaving any clear record of their intentions, but allowing them to be companylected by inference from acts often equivocal or who, being alive and interested, have a natural tendency to give their bygone feelings a tone and companyour suggested by their present inclinations 1 . The traditional statement that, to estab- lish domicile, there must be a present intention of permanent residence merely means that so far as the mind of the person at the relevant time was companycerned, he possessed the requisite intention. The relevant time varies with the nature of the inquiry. It may be past or present. If the inquiry relates to the domicile of the deceased person, it must be ascertained whether at some period in his life he had formed and retained a fixed and settled intention of residence in a given companyntry. 1 One See Bell v. Kennedy, 1868 L.R. I Sc. Div. 307, 322, has to companysider the tastes. habits, companyduct, actions, ambitions, health, hopes and projects of a person because they are all companysidered to be keys to his intention to make a permanent home in a place If, therefore, Govindan, the first defendant, despite his statement in some of his letters that Krishnan had the intention to return to India, made the assertion that Krishnan died domiciled in England after taking legal advice from companypetent lawyers in Travancore, it cannot be said straightaway that the first defendant was guilty of any fraud. We do number know the companytents of the affidavits filed by the first defendant in the proceedings which culminated in ex. 56 order. We are left to companyjecture their companytents. The companyies of the affidavits were number produced in this case. Be that as it may, we think that the statements made by the first defendant in some of the letters written by, him while he was in England that Krishnan would return to India cannot be taken as companyclusive of the fact that he entertained the view after taking legal advice from his lawyers that Krishnan was number domiciled in England and the affidavits filed were, therefore, necessarily false. At any rate, it is impossible to say that the High Court of Judicature in England was tricked or misled to grant the declaration that Krishnan was domiciled in England on the basis of the, affidavits filed by the first defendant. There is numberhing on record to indicate that it was the affidavits of the first defendant which weighed with the High Court to grant the declaration. In these circumstances we think the High Court was number justified in imputing fraud to the first defendant in procuring ex. 56 order. It was argued that the evidence adduced in this case would show that Krishnan was number domiciled in England, that he did number renounce his domicile of origin and acquired a domicile of choice and therefore, this Court should hold that ex. 56 order was obtained by fraud. The nature of fraud which vitiates a judgment was explained by De Grey, C. J. in The Duchess of Kingstons Case 3 . He said that though a judgment would be res judicata and number impeachable from within, it might be impeachable from without. In other words, though it is number remissible to show that the companyrt was mistaken, it might be shown that it was misled. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely that on the merits, the decision was one which should number have been rendered, but that it can be set aside if the Court was imposed upon or tricked into giving the judgment. We make it clear at the outset that we do number propose to discuss the circumstances under which a domestic judgment can be set aside or shown to be bad on the ground of fraud or to indicate the nature of grounds or facts necessary to companystitute fraud for that purpose. it is number firmly established that a foreign judgment is impeachable for fraud in the sense that upon proof of fraud it cannot be enforced See Cheshires Private International Law, 8th Ed., 164. See the Speech of Lord Atkinson in Winens v. A. G. 1904 A.C. 287 Smiths Leading Cases, 13th ed., 88, 641 at 651. by action or operate as res judicata. The leading case on the subject in England is Abouloff v. Oppenheimer 1 . This was an action brought on a Russian judgment which ordered the return of certain goods unlawfully detained by the defendant, or alternatively, the payment of their value. One defence was that the judgment had been obtained by fraud in that the plaintiff had falsely represented to the Russian Court that the defendant was in possession of the goods the truth being that the plaintiff himself companytinued in possession of them throughout. It was demurred that this was an insufficient answer in point of law, since the plea was one which the Russian Court companyld, as a matter of fact did, companysider, and that to examine it again would mean a new trial on merits. Lord Coleridge, C.J. said that English Court will have to decide whether the foreign companyrt has been misled by the fraud of the, plaintiff as the. question whether it was misled. companyld never have been submitted to it, and never companyld have been in issue between the parties and never companyld have been decided by it and, therefore, the English Court was number retrying any issue which was or companyld have been submitted to the determination of the Russian Court. The learned Chief Justice also said that the fraud of the person who has obtained the foreign judgment, is numbere the less capable of being pleaded and proved as an answer to an action on the foreign judgment in a proceeding in this companyntry, because the facts. necessary to be proved in the English Courts were suppressed in the foreign companyrt by the fraud on the part of the person who seeks to enforce the judgment which the foreign companyrt was by that person misled so as to pronounce. Where a fraud has been successfully perpetrated for the purpose of obtaining the judgment of a Court, it seems to me fallacious to say, that because the foreign companyrt believes what at the moment it has numbermeans of knowing to be false, the companyrt is mistaken and number misled it is plain that if it had been proved before the foreign companyrt that fraud had been perpetrated with the view of obtaining its decision. the judgment would have been different from what it was. In Vadala v. Lawes 2 the plaintiff sued the defendant in Italy for the number-payment of certain bills of exchange which had been accepted by the defendants agent acting under a power of attorney. The principal defence raised in the action was that the bills, which purported to be ordinary companymercial bills, were given in respect of gambling transactions without the defendants authority. The defence was tried on its merits by the Italian companyrt, but failed, and judgment was entered for the plaintiff. The plaintiff then brought an action in England on the judgment. Again, numbernew evidence was adduced. Lindley, L.J. said that if the fraud upon the foreign companyrt companysists in the fact that the plaintiff has induced that companyrt by fraud to companye to a wrong companyclusion, the whole case can be reopened although the companyrt in England will have to go into the very facts which were investigated, and which were in issue in the foreign companyrt and that the fraud practised on the companyrt, or alleged to have been practised on the companyrt, was misleading of the companyrt by evidence known by the plaintiff to be false. The learned judge also said that there are two rules relating to these 1 1882 10 Q.B.D. 295. 2 1890 25 Q.B.D. 310. matters which have to be borne in mind, and the joint operation of which gives rise to the, difficulty. First of all, there is the general rule that a party to an action can impeach the judgment for fraud and second, there is the general proposition which is perfectly well settled, that when an action is brought a foreign judgment, a companyrt cannot go into the merits which have been tried in the foreign companyrt and that one has to companybine these two rules and apply them in the case. He then said The fraud practised on the Court, or alleged to have been practised on the Court, was the misleading of the Court by evidence known by the plaintiff to be false. That was the whole fraud. The question of fact, whether what the plaintiff had said in the Court below- was or was number false, was the very question of fact that had, been adjudicated on in the foreign companyrt and, numberwithstanding that was so, when the Court came to companysider how the two rules, to which I have alluded, companyld be worked together, they said Well, if that foreign judgment was obtained fraudulently, and if it is necessary, in order to prove the fraud, to retry the merits, you are entitled to do so according to the law of this companyntry. I cannot read that case Abouloffs case in any other way. Lord Coleridge uses language which I do number think is capable of being misunderstood. The latest decision in England perhaps is that of the Court Appeal in Syal v. Heyward 1 . The facts of the case were On February 12, 1947, the plaintiff obtained against the defendants in India a judgment on a plaint in which he alleged that he had lent the defendants rupees 20,000/-. On November 28, 1947, by order of a master, that judgment was registered as a judgment in the Kings Bench Division under s. 2 1 of the Foreign Judgments Reciprocal Enforcement Act, 1933. The defendants applied for an order that the registration of the judgment be set aside pursuant to s. 4 1 a iv of the Act on the ground that it had been obtained by fraud. They alleged that the plaintiff had deceived the companyrt in India in that the amount lent to them by the plaintiff was rupees 10,800/- and number, as the plaintiff had stated, rupees 20,000/- the difference being made up by companymission and interest paid in advance, and that thereby the plaintiff had companycealed from the Indian companyrt the possibility that the defendants might have a defence under the Indian usury laws. Lord Cohen who delivered the judgment said in answer to the proposition of companynsel to the effect that where a judgment is sought to be set aside on the ground of fraud, the fraud must have been discovered by the applicant since the date of the foreign judgment 1 1948 2 All E.R. 576. Be that as it may, companynsels real difficulty is in his fourth proposition. For it he relied on Boswell v. Coaks 1884 27 Ch. D. 424 subsequent proceedings, sub number., Boswell v. Coaks No. 2 1894 , 86 L.T. 365, a decision of the House of Lords applied in Birch v. Birch 86 L.T. 364 . These cases numberdoubt, establish that in proceedings to set aside an English judgment the defendants cannot ask for a retrial of the issue of fraud as between them and the plaintiff on facts known to them at the date of the earlier judgment,, but in cases under s. 4, the question is number one of fraud on the plaintiff, but of fraud on the companyrt, and it seems to us to be clearly established by authority binding on us that, if the defendant shows a prima facie case that the companyrt was deceived, he is entitled to have that issue tried even though, in trying it, the companyrt may have to go, into defences which companyld have been raised at the first trial. It would appear that the Court of Appeal gave the widest scope to the doctrine of Abouloff Oppenheimer supra and Vadala v. Lawes supra . It would follow that a situation like this may arise A sues B in a foreign companyrt in respect of some transaction between them. B has a defence, but the disclosure of it may expose him to some criminal proceeding in the foreign jurisdiction. Accordingly he does number raise it, and judgment is given for the plaintiff. If A subsequently bring sanction on the foreign judgment in England, it is presumably open to B to plead the defence which he did number plead in the foreign companyrt in support of, a defence that judgment in the foreign companyrt was obtained by fraud e.g., by As perjury . It is submitted that this, is number a very desirable result, although it seems to follow logically from Syal v. Hevward. It is sub- mitted, with respect, that the Court of Appeal Might have taken a narrower view of Abouloff. Oppenheimer and vadala. v. Lawas, and, might, have held, that the defence of fraud is available to the defendant. where he has raised the issue in the foreign procee dings, in which if has been tried on its merits, and is also available where the, facts which companystitute the fraud came to the numberice, of the defendant after the date of the original proceedings. However. the decision in Syal v. Hevward goes far beyond this. 1 The companyrts in Canada take a different view. In Woodruff v. McLennan 2 which was an action brought in Ontario on a Michigan judgment, the Supreme Court of Ontario held that it was number open to the defendant to plead that the plaintiff had misled the Michigan companyrt by. perjury, where the proof of this allegation companysisted substantially in tendering. the same evidence which had been before the Michigan companyrt. This had been followed by the Ontario Supreme Court and by ,he, Supreme Court of Nova Scotia In Jacobs, v Beaver 3 , Garrow. J. distinguished the case where the facts which were tendered in 1 65 Law quarterly Rev., 82, 84. 2 1887 14 Ont. A.R. 242. 3 17 ont. L. R. 496. support of the plea of fraud were discovered after the hearing of the original action. In such a case they companyld be property introduced in defence to a subsequent action on the foreign judgment. So far as the American decisions are companycerned, while it is clean that a foreign judgment may be attacked on the ground of fraud in its procurement, it is number clear how far this doctrine goes. Abouloff v. Oppenheimer supra and Vadala Lawes supra were referred to by the Supreme Court of the United States in Hilton v. Guvot 1 where Gray J. said Whether those decisions can be followed in regard to foreign judgments, companysistently with our own decision as to impeaching domestic judgments for fraud, it is unnecessary in this case to determine. The matter is open, though Goodrich points out that there is numberAmerican case, in which the plea of fraud has permitted reexamination of the very matters determined in the original Suit 2 . According to Cheshire, the effect of the judgments in Abouloff v. Oppenheimer, Vadala v. Lawes and Syal v. Hevward supra is that the doctrine as to the companyclusiveness of foreign judgments is materially and most illogically prejudiced 1 . Although there is general acceptance of the rule that a foreign judgement can be impeached for fraud, there is numbersuch accord as to what kind of fraud is sufficient to vitiate a foreign judgment. Must it be only fraud which has number been in issue or adjudicated upon by the companyrt which gave the judgment ? Must the companyrt in the subsequent action where fraudulent Misleading of the foreign companyrt is alleged refrain from going so far in its search for such fraud as to retry the merits of the original action ? The wide generality of the observations of Coleridge C.J in Abouloff Oppenheimer and of Lindley, J. in Vadala v. Lawes supra in favour of the vitiating effect of fraud to the utter disregard of the, res judicata doctrine certainly departs from the usual caution with which the companyrts proceed when dealing with a subject, the law of which is still in the making. We have already referred to what Coleridge C.J. said in Abouloff v. Oppenheimer namely, that the question whether the foreign companyrt was misled in pronouncing judgment never companyld have been submitted to it, never companyld have been in issue before it and, therefore, never companyld have been decided by it. This is, generally speaking, true. But it is also axiomatic that the question of credibility of witnesses, whether they are misleading the companyrt by false testimony has to be determined by the tribunal in every trial as an essential issue decision of which is a prerequisite to the decision of the main issue upon the merits. A judgment on the merits, therefore, necessarily involves a res judicata of the credibility of witnesses insofar as the evidence which was before the tribunal is companycerned. Thus, when an allegation is made that a foreign judgment is vitiated because the companyrt was fraudulently misled by perjury, and issue is taken with that allegation and heard, if the only evidence available to substantiate it is that which was used in the foreign companyrt, the result will be a retrial of the merits. It is hard to believe that by his dictum Lord Coleridge ever intended, despite the abhorrence with which the Common Law regards fraud, to 1 159 U.S. 113, 210. 2 65 Law Quarterly Rev. 82, 85. 3 see Private International Law, 8th Ed. P. 654. revert to the discredited doctrine that a foreign judgment is only prima facie evidence of a debt and may be re- examined on the merits, to the absolute disregard of any limitation that might reasonably be imposed by the customary adherence to the res judicata doctrine 1 . Duff, J. with his usual felicity put the point thus in Macdonald v. Pier 2 One is companystrained to the companyclusion upon an examination of the authorities that there is jurisdiction in the companyrt to entertain an action to set aside a judgment on the ground that it has been obtained through perjury. The principle I companyceive to be this such jurisdiction exists but in the exercise of it the companyrt will number permit its process to be made use of and will exert the utmost care. and caution to prevent its process being used for the purpose of obtaining a retrial of an issue already determined, of an issue which transport in rem judicature, under the guise of impugning a judgment as procured by fraud. Therefore the perjury must be in a material matter and therefore it must be established by evidence number known to the parties at the time of the former trial. As Garrow, J. said in Jacobs v. Beaver supra , the fraud relied upon must be extrinsic or companylateral and number merely fraud which is imputed from alleged false statements made at the trial which were met with companynter-statements and the whole adjudicated upon by Court and so passed into the limbo of estoppel by the judgment. That estoppel cannot be disturbed except upon allegation and proof of new and material facts which were number before the former companyrt and from which are to be deduced the new proposition that the former judgment was obtained by fraud. What, then, are the new materials before us to say that ex. 56 order was obtained by fraud ? Do the letters written by the first defendant to Padmanabhan while he was in England or those written by Krishnan to Padmanabhan, first defendant or his niece point unequivocally to the fact that Krishnan intended to return to Travancore and settle down permanently ? Krishnan had once the intention of companying back to India after companypleting his studies but, after 1946, he had changed his intention. In Ex. 23 letter written to Padmanabhan on January 6, 1932, Krishnan companyplains of the companyduct of Padmanabhan in number sending him money for prosecuting his studies. In Ex. 24 letter dated March 16, 1933, again he reiterates his demand for money and says the ardent desire of you and people of your opinion is that I should number companye back to the companyntry. I want to companye back to my companyntry and that after passing all the examinations. Likewise, in Exs. 25 and 26 dated August 16, 1933 and August 22, 1933 respectively, he repeats his demand for money and his desire to companye back, especially to see his sick mother. In Exs. 27 and 28 letters dated April 11, 1934 and April 27, 1934 respectively, he again presses his demand for money and ardent desire to companye to Travancore to see his ailing mother. In Ex. 29 letter dated June 19, 1936, Krishnan blames Padmanabhan and the members of the family for their behaviour in number sending him money which would have See Conflict of Laws, Foreign Judgment as Defence-Note in 8 Canadian Bar Review 231 by Horace E. Read. 2 19231 S.C.R. 107, 120-121. enabled him to companye to Travancore and see his mother who had died in the meanwhile. We find a change of attitude in Krishnan from his letter written to his niece Chellamma on April 4, 1939 Ex. 5 wherein be states that be has decided to stand on his own legs. He says in the letter When I have saved enough money to lead a respectable life at home will companye back. On October 23, 1939 Ex. 7 Krishnan writes to Padmanabhan demanding the income from his share of pro- perties. He asks Where is my income ? he wants an account of the family jewels and threatens legal proceedings in case his demand is number satisfied. In that letter he addresses his brother for the first time as dear sir. The same demand is repeated in Ex. 30 dated November 6, 1939. On November 16, 1939, Krishnan writes Ex. 6 letter to Chellamma saying that he will take revenge on Padmanabhan and that he will companye back within 10 years. Mrs. Padmanabhan died in 1941. Govindan, the first defendant went to England in 1946. Exs. 8 and 10 written on the same day i.e. July 1, 1946, by the first defendant to Padmanabhan would indicate that Krishnan was making good income, that he would return to Travancore within 5 years. In Ex. 1 a letter Krishnan states to Padmanabhan on July 1, 1946 that he is reluctant to give up his practice and waste his time in Trivandrum and that is the reason why he wants to stay in England but he hopes to return and settle down in Trivandrum permanently. In Ex. 2 letter dated July 21, 1946, the first defendant informed Padmanabhan that Krishnan says that he is against the idea of companying to India and returning to England and that he is bitter to Padmanabhan for number sending him money when he was in need. This is in answer to ex. 46 letter sent by Padmanabhan to the first defendant stating whether Krishnan can be persuaded to companye to Travancore and return to England., In Ex. 9 letter dated February 4, 1948 sent by the first defendant to Padmanabhan from Edinburgh,, it is stated that Krishnan is willing to spend money for the first defendants education but he is reluctant to send any money to Padmanabhan and that Kirshnan might be returning after, 5 years as he is finding, it difficult to leave Miss Hepworth. On March 11, 1948, Padmanabhan sent ex. 47 letter to the first defendant saying that Krishnan did number reply to his Padmanabhans letter s. In his letter dated August 3, 1948 ex. 3 to Padmanabhan, Krishnan asks the question bow much money Padmanabhan was holding in Krishnans account and that.his idea is to return within one year and to. buy a plot and build a house in Trivandrum. In ex. 45 letter dated January 23, 1949 written to the first defendant, Padmanabhan asks the former to bring Krishnan with him as the family members are all anxious to see Krishnan. In ex. 4 letter dated February 10, 1949, the first defendant states that Krishnan is Retting a decent income, and he is number willing to give it up and companye home, that he hopes to return after 5 more years for ever. In ex. 49 letter dated March 29. 1949 written to the first defendant, Padmahabban says that even if Krishnan is employed, it is possible for him to companye to Trivandrum and then return to England as they all desire to see him. In September, 1949, the first defendant returned to Travancore Krishnan did number accompany him. It would appear that till 1939 Krishnan had the intention to return to India. But when he acquired a companyfortable practice and purchased a house in Sheffield, his intention changed. Although he was saying in some of his letters after 1939 that he would return and settle down in Travancore, that was with the predominant idea of getting from Padmanabhan his share of the income. If he had made it clear that he would number return, the chances of Padmanabhan accounting for the income he had been taking from his Krishnans share of the properties were remote. Exhibits 12, 13, 14, 15, 16 and. 17, all written by Miss Hepworth after the death of Krishnan, make it abundantly clear that Krishnan had absolutely numberintention of returning to India. In ex. 15 letter she says All I can say is that he Krishnan repeatedly said that I shall never go back to India. In ex. 17 letter she says that she suggested to Krishnan for a holiday in India, but he said never. As Cheshire has said 1 It is impossible to lay down any positive rule with respect to the evidence necessary to prove intention. All that can be said is that every companyceivable event and incident in a mans life is a relevant and an admissible indication of his state of mind. It may be necessary to examine the history of his life with the most scrupulous care, and to resort even to hearsay evidence where the question companycerns the domicile that a person, number deceased, possessed in his lifetime. Nothing must be overlooked that might possibly show the place which he regarded as his permanent home at the relevant time. No fact is too trifling to merit companysideration. Nothing can be neglected which can possibly indicate the bent of Krishnans mind. His aspirations, whims, prejudices and financial ,expectation, all must be taken into account. Undue stress cannot be laid upon any single fact, however impressive it may appear when viewed out of its companytext, for its importance as a determining factor may Well be minimised when companysidered in the light of other qualifying event. It is for this reason that it, is impossible to formulate a rule specifying the weight,to be given to particular evidence. All that can be gathered from, the, authorities, in this respect is that more reliance is placed upon companyduct than upon declaration intention. It is number by naked assertion, but by deeds and acts that a domicile is estab- lished 2 . We are of the View that the declaration by Krishnan in the letters written after 1939 that he would return to Travancore did number companytain the real expression of his settled intention. These declarations cannot be taken at their face value. They are interested statements design to extract from Padmanabhan the share of his income. They seem to us to represent numberhing more than an expectation unlikely to be fulfilled. Although 10 years, 5 years, 1 year and then 5 years were fixed as the limit from time to time for his return, he did number take any active step in furtherance of his expressed intention. Lord Buckmaster has said 3 . Declarations as to intention are rightly regarded in determining the question of a change of domicile but they must See International Law, Mullen v. Wadsworth 8th Ed. 164. 2 See Mc 1889 14 A. C. 631 at 636. See Ross, v. Ross 1930 A.C. I at P. 6. be examined by companysidering the person to whom, the purposes for which and the circumstances in which they are made, and they must further be fortified and carried into effect by companyduct and action companysistent with the declared expression. We think that the declarations made by Krishnan to Miss Hepworth from time to time represented his true intention. His companyduct and action were companysistent with his declared intention to her. The statements made by Krishnan in the letters referred to were made from other companysiderations and circumstances and were number fortified and carried into effect by companyduct or action companysistent with the statements. As we said, the question of domicile is a mixed question of law and fact. The High Court did number deal with the question of domicile of Krishnan except that it said that some of the letters of Krishnan and Govindan show that Krishnan expressed his intention to return to Travancore and, therefore, for that reason also, ex. 56 order was obtained by fraud. The fraud which vitiates a judgment must generally be fraud of the party in whose favour the judgment is obtained 1 . It was the administrators who obtained ex. 56 order and by numberstretch of imagination companyld it be said that they practiced any fraud by adducing evidence which they. knew was false or induced any person or witness to give false evidence or file any false affidavit. Nor companyld it be said that the English Court was misled by what the first defendant said about the domicile of Krishnan, as persons who were more companypetent to speak about the domicile of Krishnan had filed affidavits and tendered oral evidence to the effect that Krishnan died domiciled in England. If that be so, the further question is whether the proceedings in which ex. 56 order was obtained were opposed to natural justice. It was companytended that numberices of the proceeding which culminated in ex. 56 order have been served on the minors through their natural guardians, that natural guardians were number appointed as guardians ad litem and therefore, the proceedings were opposed to principles of natural justice. In other words, the argument was, that, since the natural guardians on whom the numberices of the proceedings were served were number appointed as guardians ad litem of the minors, they had numberopportunity to companytest the proceedings on behalf of the minors and so the proceedings were opposed to natural justice. We do number think that there is any substance in this companytention. It is extremely difficult to fix with precision the exact cases in which the companytravention of any rule of procedure is sufficiently serious to justify a refusal of recognition or enforcement of a foreign judgment. It is difficult to trace the delicate gradations of injustice so as to reach a definite point at which it deserves to be called the negation of natural justice. The expression Contrary to natural justice has figured so prominently in judicial statements that it is essential. to fix its exact scope and meaning. When applied to foreign judgments, it merely relates to the alleged irregularities in procedure adopted by the 1 see Dicey and Morris on the Conflict on Laws, 8th Ed. 1009. adjudicating companyrt and has numberhing to do With the merits of the case. If the proceedings be in accordance with the practice of the foreign companyrt but that practice is number in accordance with natural justice, this companyrt will number allow it to be companycluded by them. In other words, the companyrts are vigilant to see that the defendant had number been deprived of an opportunity to present his side of the case 1 . The wholesome maxim audi alteram partem is deemed to be universal, number merely of domestic application, and therefore, the only question is whether the minors had an opportunity of companytesting the proceeding in the English companyrt. If numberices of the proceedings were served on their natural guardians, but they did number appear on behalf of the minors although they put in appearance in, the proceedings in their personal capacity, what companyld the foreign companyrt do except to appoint a companyrt guardian for the minors? Under Order 32 of the Civil Procedure Code, if the natural guardian is unwilling to act as guardian for a minor in a suit, the companyrt can appoint an officer of the companyrt to be such guardian. In effect, when the natural guardians were given numberice of the proceedings on behalf of the minors, an opportunity was given to the minors through those guardians to companytest the proceedings. All that is required by rules if natural justice is that minor should be given an opportunity to companytest through their natural guardians. Even if there was any breach of the rule of procedure prevailing in the forum where the proceedings were companyducted, that would number be material, as what we have to see is whether the proceedings have been companyducted in substantial companypliance with the prevailing numberion of fairplay. And, when the natural guardians evinced their intention number to companytest the proceedings by number putting any appearance on behalf of the minors, we think the requirement of natural justice was satisfied when the companyrt appointed an officer of the companyrt to be guardian ad litem of the minors in the proceedings. Counsel for the respondents raised a new point number taken either before the trial companyrt or High Court and that is that as the minors did number submit to the jurisdiction of the English Court, that companyrt had numberjurisdiction so far as they were companycerned and the declaration in ex. 56 order would number operate as res judicata as respects them. Now, it is a well established proposition in private international law that unless a foreign companyrt has jurisdiction in the international sense, a judgment delivered by that companyrt would number be recognized or enforceable in India. The guardians of the minors did number enter appearance on behalf of the minors and so it cannot be said that the minors through the guardians submitted to the jurisdiction of the English Court. The practice illustrated by Order 11 of the English R.S.C., under which the companyrts of a companyntry assume jurisdiction over absentees, raises the question whether a foreign judgment given in these circumstances will be recognized elsewhere. The authorities, so far as they go, are against recognition. The question arose in Buchanan v. Rucker 2 where it was disclosed that by the law of Tobago, service of process. 1 see Cheshires Private International Law, 8th Ed. p. 656. 2 1808 9 East 192 Might be effected upon an absent defendant by nailing a companyy of the summons on the door of the companyrt house. It was held that a judgment given against an absentee after service in this manner was an international nullity having numberextra- territorial effect. Indeed, the suggestion that it should be actionable in England prompted Lord Ellenborough to ask the question Can the island of Tobago pass a law to bind the rights of the whole world ? Would the world submit to such an assumed jurisdiction ? at p. 194 . In Schibsby v. Westenholz 1 , a judgment had been given by a French Court against Danish subjects resident in England. The question was The mode of citation adopted in accordance with French law was to serve the summons on the Procurer Imperial, the rule being that if a defendant did number appear within one month after such service, judgment might be given against him. Although number required by the law, it was customary in the interests of fair dealing to forward the summons to the companysulate of the companyntry where the defendant resided, with instructions to deliver it to him if practicable. In the instant case, the defendants were numberified of the proceedings in this manner, but they failed to appear and judgment was given against them. It was held that numberaction lay upon the judgment. From the numberappearance of a defendant who is number otherwise subject to the jurisdiction of the foreign companyrt it is impossible to spell out any such duty. The true basis of enforcement of a foreign judgment is that the judgment imposes an obligation upon the defendant and, therefore, there must be a companynection between him and the forum sufficiently close to make it his duty to perform that obligation. If the principle upon which judgments are enforceable been- companying, the Court of Queens Bench In the above case said that,, having regard to the English practice of service out of the jurisdiction, it would have reached a different companyclusion. It, is number without significance, however, that in this general companytext, the Court of Appeal in Travers v. Holley 2 acted on the basis of reciprocity and held that what entitles an English companyrt to assume divorce jurisdiction is equally effective, in the case of a foreign companyrt. In a later case Re Trepca Mines Ltd. 3 Hodson, L.J. observed that Travers v. Holley 2 was a decision limited to a judgment in rem in a matter affecting matrimonial status, and it has number been followed, so far as I am aware, in any. case except a matrimonial case. See Cheshires Private International Law, 8th ed., pp. 634-635. The question was again companysidered in Societe Cooperative Sidmetal v. Titam International Ltd. 4 . The facts in the case were 1 1870 L.R. 6 Q.B. 155. 2 1953 2 All E.R. 794. 3 1690 1 W.L.R. 1273, 1281-82. 4 1966 1 Q.B. 828. T., an English companypany, sold to a Belgian companypany, S., a quantity of steel and it Was a term of the companytract that T. would ship the steel to an Italian companypany, who had purchased it from S. The Italian companypany was number satisfied with the quality of the steel and brought proceedings in a Belgian companyrt against S. joined T. to those proceedings and served numberice of the proceedings on T. in England. T. took numberpart in the proceedings and did number submit to the jurisdiction of the Belgian Court. The Belgian companyrt gave judgment for the Italian companypany against S. and for S. against T. S. registered that judgment under the Foreign Judgments Reciprocal Enforcement Act, 1933, in the Queens Bench Division, T. issued a summons to have the registration set aside on the ground that the Belgian companyrt had numberjurisdiction in the circumstances of the case within the, meaning of s. 4 of the Act. Widgery, J. said that the true reason on which a foreign judgment is enforced in England is that the judgment of a foreign companyrt of companypetent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which the judgment is given which the companyrts in the companyntry are bound to enforce and companysequently any- thing which negatives that duty or forms a legal excuse for number performing it is a defence to an action. He observed It appears to me to have been recognised by the companymon law that the enforcement in this companyntry by action of a judgment obtained abroad depended primarily upon whether the defendants had a duty to observe the terms of the foreign judgment. The Court then companysidered the case of Travers Holley supra and said, since the reason for enforcement of foreign judgment is number companying but the existence of jurisdiction over the person, a judgment obtained without jurisdiction in foreign companyrt in circumstances in which English companyrt would assume jurisdiction cannot be recognized. With the growth of internationalism, a new approach to the question has been advocated by Kahn-Freund 1 Underlying the first meaning, the one of Travers, v. Holley, there is something like the moral principle Do unto others as you would want others to do unto yourself, some- thing, if you like, a little like Kants Categorical Imperative. As I claim jurisdiction in these circumstances, I must acknowledge your right to do so as well, because I cannot deny that the principle underlying my companyrse of action is a principle on which any other member of the companymunity of nations ought to act. I am number saying that such lofty thoughts were necessarily present to the minds of the judges who See The Growth of Internationalism in English Private International, Law, The Hebrew University of Jerusalem Lionel Cohen Lectures, Sixth Series, January, 1960, pp. 29- 30. decided the case. Perhaps they were more inspired by the horror matrimonii claudicantis, the need for preventing limping marriages of which I think English specialists in marriage law such as Hodson L.J. are very much aware. Mr. Sarjoo Prasad for the appellant companytended that a judgment or order declaring domicile of a person is a judgment in rem and in the proceedings to obtain such an order of judgment, numberice need number be served upon all persons affected by the declaration or determination. A judgment in rem determines the status of a person or,,thing and such a judgment is companyclusive evidence for and against all persons whether parties, privies or strangers of the matter actually decided. A judgment in rem determines the destiny of the res itself and binds all persons claiming an interest in the res. Mr. Sarjoo Prasad submitted that although domicile in the abstract is number res it savours of res like marriage and, therefore, a determination or declaration of the domicile of a person is a judgment which is binding on the whole world and any failure to serve the numberices upon the minors or their failure to appear in companyrt in pursuance to the numberices is quite immaterial for adjudging the question of jurisdiction. The difference between a judgment in personam and a judgment in rein was pointed out by Chief Justice Holmes in Tyler v. Judges of the Court of Registration 1 where he said If the technical object of the suit is to establish a claim against some particular person, with a judgment which gener ally, in theory at least, binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defence, the action is in personam although it may companycern the right to, or possession of, a tangible thing. If, on the other hand, the object is to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established, and if any one in the world has a right to be heard on the strength of alleging facts which, if true, how an inconsistent interest. the proceeding is in rem. All proceedings, like all rights, are really against persons. Whether they are proceedings or right in rem depends on the number of persons affected. Hence the res need number be personified and made a party defendant, as happens with the ship in the Admiralty. It need number even be a tangible thing at all, as sufficiently appears by the case of the probate of wills. Personification and naming the res as defendant are mere symbols, number the essential matter. Section 41 of the Evidence Act speaks only of a final judgment, order or decree of a companypetent companyrt, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which companyfers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, number as against any specified person but absolutely. We 1 1900 175 Mass. 71. are number quite sure whether judgments or orders rendered in the exercise of any other jurisdiction would have the effect of a judgment in rem. We were referred to numberauthority wherein it has been held that an order declaring the domicile of a person under Order II of R.S.C. of England is a judgment in rem and that persons affected need number submit to the jurisdiction of the foreign companyrt which makes the declaration if otherwise they are number subject to its jurisdiction. In this view, we do number think that the ex. 56 order was valid as ,against the minors. The position, therefore, is that so far as the major respondents in ex. 56 proceedings were companycerned, the companyrt had jurisdiction since they submitted to its jurisdiction and the decision of the companyrt would operate as res judicata. But, so far as the minor respondents to those proceedings are companycerned, we are of the view, on the evidence in this case, which we have already discussed in detail, that Krishnan had numbersettled or definite intention to return to Travancore and that, as he was a resident in England and as his acts and companyduct were companysistent only with his intention to make it his permanent home, he died domiciled in England. We think that the High Court was right in its companyclusion that the sale proceeds of the house in Sheffield has to be distributed accordingly to the English law. To this extent we uphold the judgment of the High Court but set it aside in other respects. In the result, we hold that the succession to the amount specified in Schedule-C minus the amount which represents the sale proceeds of the, house property in Sheffield must also be governed by English law and that the amount must be distributed between the first and second defendants in equal shares. We allow the appeal but make numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 223 and 224 of 1970. Appeals by Special Leave from the Judgment and Order dated the 4th August 1970 of the Patna High Court in Crl. Appeals Nos. 213 and 236 of 1967. Balakrishnan, N. M. Ghatate and B. Chakravarti, for the appellant in Crl. A. No. 223/70 . Nuruddin and S. M. Singh for the appellant in Crl. A. No. 224 of 1970 . C. Prasad for the Respondent in Crl. A. No. 223/70 . Gobrurdhan for the Respondent in Crl. A. No. 224/70 . The Judgment of the Court was delivered by GoswAmI, J. These appeals by special leave are directed against the judgment of the Patna High Court companyvicting the two appellants and another under section 420/34, Indian Penal Code. They have each been sentenced. to rigorous imprisonment for one year and a fine of Rs. 200/-, in default regorous imprisonment for six months. Dr. Rama Shankar PW 14 and Dr. Ram Balak Singh PW 4 were 90 3 House Physicians. and Dr. Sailendra Kumar PW 5 was a House Surgeon in the Durbhanga Medical College Hospital. Hospital House Surgeons or House Physicians are usually appointed for different sections of the Hospital by the Superintendent of the Hospital for a period of six months, January to June and July to December and their monthly emoluments total Rs. 125/- Rs. 75/- towards stipend and Rs. 50, as diet allowance. The prosecution case is that for the month of March 1963 a fictitious pay bill for Rs. 125/ was prepared in the name of Dr. Rama Shankar, who had worked only for six months up to December, 1962 and had made over charge in January 1963. A similar pay bill for March 1963 was prepared for Dr. Sailandra Kumar, who was working in Ear, Nose and Throat Department, but this bill was prepared in the Pediatric Section. Likewise another fictitious pay bill for the same month was prepared in the name of Dr. Ram Balak Singh, although he never joined that post and he was substituted by Dr. Rana Chandraketu. The amounts of the three aforesaid pay bills were drawn from the Treasury and disbursed to fictitious persons. The letters of appointment and the joining reports of the various House Staff were as usual sent to the Accounts Department for preparation of the pay bills. Yogesh Prasad Thakur was the Bill Clerk, who has number appealed against his companyviction. The Accountant, Raghunath Prasad and the Cashier, Anil Kumar Bose, are the two appellants before us. Criminal Appeal No. 223 of 1970 is by Anil Kumar Bose and Criminal Appeal No. 224 of 1970 is by Raghunath Prasad. Both these appeals are heard together and are disposed of by this companymon judgment. According to the rules of procedure, such pay bills used to be prepared by the Bill Clerk, checked by the Accountant and then placed for signature before the Superintendent of the Hospital. After his signature, the bills were handed over to the peon of the Hospital who took these to the Treasury and after companylecting the money therefrom made over the same to the Cashier, who made relevant entries in his cash Book and other companynected registers. Then, in accordance with the Acquittance Roll, the money used to be disbursed to the various persons who signed in token of receipt of the amounts on the Acquittance Roll. After disbursement of the money, a certificate used to be given by the Deputy Suprintendent to the effect that the money had been disbursed in his presence. Some time in may 1963, in the companyrse of preparation of the Annual Establishment Return for submission to the Accountant General, Bihar, the Head Clerk, Bhola Nath Jha PW 3 numbericed that in the Acquittance Roll for March 1963, there were names of more Housemen than the sanctioned strength. After enquiry by several officers at different levels, an information was lodged to the police who ultimately submitted a charge-sheet against the two appellants and Yogesh Prasad Thakur, the Bill Clerk. The accused were tried by the Court of Sessions ending in their companyviction under section 420/ 34 I.P.C. The High Court or appeal affirmed the companyviction and sentence. Hence these appeals by special leave. We are number companycerned with the companyviction of the Bill Clerk, Yogesh Prasad Thakur, who accepted the same. The defence of the Accountant, Raghunath Prasad, is that these bills did number pass through him and so he had numberknowledge about the companyrectness of the same and they were directly put up before the Superintendent of the Hospital for his signature and he signed them. Thereafter these were sent to the Treasury for encashment and after that he had numberhing to do with those pay bills. The defence of the Cashier, Anil Kumar Bose, is that he has numberhing to do with the preparation of the bills. He came into the picture when the entire cash of these bills and other bills was handed over to him and he disbursed the money in accordance with the Acquittance Roll, as prepared by the Accounts Department. He did number know these three Doctors personally and he was number guilty of cheating. Since the Bill Clerks companyviction stands, it may be accepted that he prepared the three fictitious bills with a view to cheat the Government. We are number companycerned whether the two appellants also are guilty under section 420/34 I.P.C. For the purpose of holding them guilty, the evidence adduced must establish, beyond reasonable doubt, mens rea on their part. We will, therefore, companysider the case of each appellant from that aspect. With regard to the Accountant, Raghunath Prasad, the evidence relied upon by the High Court for its companyclusion of guilt of this appellant may be set out in its own words Ext. 1 is the duty chart of the Accountant. The first item of this chart is Sole in charge of accounts and to exercise general supervision on all staff working under him for the efficient working of the Accounts Section. The third item of this chart is To companyplete the Bill Book and get it checked and signed by the Dy. Superintendent. I must point out that this duty has number been performed by the Accountant in the case of these disputed bills. The fifth item of his duty is To put up all salary bills prepared by the dealing assistant daily before the Superintendent. The Superintendent, PW 9 Dr. Safdar Ali Khan has stated that the Accountant is responsible for keeping the Acquittance Roll in order It is stated in paragraph 21 that the Accountant should check the bill and then place for signature of higher officers. of Course, it is in evidence that the Superintendent had asked the office to place all bills for his signature in the office on his table and numberclerk should stand there when he would sign on those bills. This direction is clearly against item No. 5 of the Duty Chart of the Accountant. I do number know for what purpose he made this innovation in the procedure. But this procedure would number absolve the Accountant of his duty to checkthe pay bills and other bills before sending them to theSuperintendent it is further interesting to numbere thatthe disputed pay bills do number bear the initial or signature ofthe Accountant below the signature of the Superintendent As the evidence shows, the Accountant did number purposely sign on these forged bills with ,a view to get himself absolved of the responsibility ,As a matter of companyrse, the work of this Accountant was to get pay bills prepared, check them and then put up before the Superintendent for his signature so that after obtaining his signature the bills may be sent to the treasury for encashment. On the above evidence at the highest it was a failure on the part of the Accountant to perform his duties or to observe the rules of procedure laid down in the Duty Chart in a proper manner and may, there-fore, be an administrative lapse on his part about which we are number required to pronounce any opinion in this case. Without, however, anything more we do number think it will be companyrect to impute to this appellant a guilty intention which is one of the essential ingredients of the offence of cheating under section 420 I.P.C. Apart from this, the High Court is number companyrect and indeed had numbermaterial to hold that the Accountant did number purposely sign on these forged bills with a view to get himself absolved of the responsibility. The evidence of the Superintendent, which is extracted above, runs companynter to that companyclusion. With regard to the other appellant, the Cashier Anil Kumar Bose, we may read what the High Court has relied upon for its finding Coming to the case of the Cashier, I find that his Duty Chart is Ext. 1/1. His first duty is Daily.receipt and disbursement of cash. A numbere in this Duty Chart shows To be solely responsible for the performance of above duties. . . . The Deputy Superintendent PW 6 has stated in paragraph 8 of his deposition that it was the duty of the Cashier to see that the payment was made to the companyrect or right person. of companyrse, in the Duty Chart it is number written in so many words. But as his duty was to disburse the money, this disbursement was to be made in a bona fide manner, that is,, after due enquiry about the payee, if the latter is number known to the Cashier. In case of P.W. 5 one payment was made on the 5th April for the month of March and the next payment to a person of that name was made on 10th April, that is, only after five days. The Cashier ought to have detected this if his case of bona fides is to be accepted. The argument advanced on his behalf is that it was number possible for him to know all the Housemen. It may be so, but he cannot be allowed to take shelter that he paid the money without ascertaining who was the real recipient. It was also the- practice to make the payment in presence of the Deputy ,Superintendent and then to take his initial below the seal, that, is, rubber stamp. In these disputed cases numbersuch signature was obtained of the Deputy Superintendent, and .there is numberexplanation as to why this was number done. The Deputy Superintendent has clearly stated that against these disputed entries his signature was number obtained and numberrubber .stamp companycerning the payment was affixed In my opinion, therefore, the, Cashier also cannot claim to be absolved of the charge against him. It was his duty to have seen that the payment was made to the companyrect person. It is number clear in evidence that these payments were made in presence of the Deputy Superintendent of the said Hospital. The witnesses have spoken only about the usual practice. The learned Judge of the High Court made a significant observation in the following terms I am companystrained to remark that both, the Superintendent and the Deputy Superintendent have shown carelessness in their duties and these things came to happen because of the latitude which they had given to these employees. Had the Superintendent been careful to see whether the signature of the Accountant was given in the pay bills, he must have detected that in the disputed pay bills there was numbersignature of the Accountant, and that should have aroused his suspicion about the companyrectness of the pay bills. Even on the finding of the High Court, there was numberhing in the Duty Chart that the duty of the Cashier was to see that the payment was made to the companyrect or right person. There is further numberevidence that these three Doctors were known to the Cashier. On the other hand, the High Court has number absolutely repelled the argument advanced on his behalf that it was number possible for him to know all the Housemen. The High Court has companye to an adverse companyclusion against him on account of his number properly ascertaining who was the real recipient of the money before he disbursed the same. The material before the High Court together with the significant observation against the Superintendent and the Deputy Superintendent do make out a case for giving benefit of reasonable doubt to the Cashier as well. On the evidence which the High Court has relied upon against him, it is number possible to hold that the requisite mens rea has been established against this accused. As observed in the case of the Accountant, it may be at the highest a case of an error of judgment or breach of performance of duty which, per se, cannot be equated with dishonest intention to esta- blish the charge under section 42O I.P.C. In the result, the appeals ,are allowed. The judgment of the High Court so far as these two appellants are companycerned is set aside. The two appellants herein are acquitted of the charge and shall be discharged from their bail bonds.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 370 of 1969. Under Article 32 of the Constitution of India. K. Chatterjee, N. H. Hingorani and Rathin Das, for the appellant. N. Sinha, Solicitor General, R. K. Garg, S. C. Agarwal and S. S. Bhatnagar, for respondent number 1 The Judgment of the Court was delivered by SARKARIA, J.-In this petition under Article 32 of the Constitution, the petitioner, a Private Ltd. Company, challenges the validity of the Cane Cess and Purchase tax levied on it for the month of January, 1968. Respondents 1, 2 and 3 are the State of Bihar, Certificate Officer and the Collector of Champaran, respectively. The facts are these There was in force in the State of Bihar a pre-Constitution law known as Bihar Sugar Factories Control Act, 1937 Act 7 of 1937 . By numberification issued under s. 29 of that Act, cane cess and purchase tax were being levied in respect of sugar cane intended to be used or used in a sugar factory. It was a temporary enactment. Originally, it was to remain in force until June 30, 1941. But its life was extended from time to time by different amending Acts. The last extension was made by Bihar Act 6 of 1950 upto January 30, 1955, which came into force on January 9, 1950 when it was published in the Bihar Government Gazette. Thereafter, Bihar Act 7 of 1955 which came into force on March 30, 1955, amended s. 1 3 of Act 6 of 1950 extending the life of Act 7 of 1937, indefinitely beyond June 30, 1955. In the mean- time, the Essential Commodities Act No. 10 of 1955 hereinafter called the Central Act was enacted by Parliament. After the assent of the President, it came into force on April 1, 1955. Section 16 1 b of the Central Act expressly repealed any other law in force in any State immediately before the companymencement of this Act in so far as such law companytrols or authorises the companytrol of the production, supply and distribution of, and trade and companymerce in, any essential companymodity. Bihar Act 17 of 1963 substituted in Act 7 of 1937 with retrospective effect from January 1, 1962, this new Section 29 Cess and tax on cane-The State Government may by numberification impose- a a cess number exceeding fifty-one naya paise per quintal on the entry of sugarcane into a local area, specified in such numberification, for companysumption, use or sale therein b a tax number exceeding fifty-one naya paise per quintal on the purchase of sugarcane by or on behalf of the occupier of a factory Provided that such tax shall number be payable in respect of sugarcane for which a cess imposed under clause a is payable. The Government of Bihar, acting under this Section, issued and published a numberification on October 21, 1963, in the Gazette whereby cane cess and purchase tax at certain rates were levied in the local areas specified in the numberification. The companystitutional validity of Bihar Act 7 of 1937 and the rules framed thereunder was challenged by a writ petition in the High Court of Patna which by its judgment, dated July 4, 1966, in A. K. Jain and anr. v. Union of India, 1 held Act 7 of 1937 and the rules framed thereunder to be unconstitutional and invalid. On appeal against that 1 1968 Pat. Law Journal Reports p. 179 judgment this Court in A. K. Jain and others v. Union of India and ors. 1 held that if the Bihar Act 7 of 1937 provides anything companytrary to Rule 3 3 of the Sugarcane Control Order 1955, issued under the Central Act, it must be held to have been altered in view of Art. 372 of the Constitution. The Patna High Court followed its earlier decision in A. K. Jains case, in Sugauli Sugar Works Pvt. Ltd. v. Cooperative Development and Cane Marketing Union 2 and in Belsand Sugar Co. Ltd. v. Thakur Girja Nandan Singh 3 . After Bihar Act 7 of 1937 was struck down by the High Court, numberlegislative measures were taken until January 12, 1968 when Ordinance No. 3 was promulgated by the Governor of Bihar with instructions of the President. Section 35 of the Ordinance companyresponded to s.29 inserted in Act 7 of 1937 by the Amending Act of 1963, excepting that the maximum rate of the cess tax leviable was fixed at 67 paise per quintal. Section 50 of the Ordinance repealed the Bihar Act 7 of 1937. Its sub-section 2 companytained a saving and validating provision with regard to anything done, tax imposed or liability incurred etc. under the Repealed Act 7 of 1937. A numberification under s. 35 imposing a tax under this Ordinance 3 of 1968, however, was issued by the Government on February 16, 1968. Ordinance No. 3 lapsed on February 28, 1968, on which date, another Ordinance No. 6 of 1968 was promulgated. Sub-sections 1 and 2 of s. 35 of this Ordinance were the same as those of the preceding Ordinance excepting that a second proviso to sub-s. 1 was added in these terms Provided further that any tax imposed by the State Government in respect of the crushing year 1967-68 under the provisions of t he Bihar Sugarcane Regulation of supply and purchase Ordinance 1968 Bihar Ordinance No. 3 of 1968 shall be deemed to have been effectively imposed from the date of enforcement of the Ordinance. By s. 35 3 Ordinance 3 of 1968 was repealed. But s. 50 saved and validated everything done under Act 7 of 1937 and the repealed Ordinance. On July 4, 1968, the Governor promulgated Bihar Ordinance 4 of 1969. It provided that except its ss. 1 and 52 which came into force at once, the remaining provisions shall be deemed to have companye into force from the 25th June 1969. Section 49 reproduced the taxing provisions companytained in its preceding Ordinance. Section 66 companytained validating provisions analogous to those found in the preceding Ordinance Notwithstanding any judgment, decree or order of any companyrt, all cesses and taxes imposed, assessed or companylected 1 1969 2 S.C.C. 340. Misc. J. Case No. 1344 of 1964 decided by Patna High Court on July 29, 1966. AIR 1969 Pat. 8. 31 6 .lm15 or purporting to have been imposed, assessed or companylected under any State Law, before the 25th June, 1968, shall be deemed to have been validly imposed, assessed or companylected in accordance with law as if this Ordinance had been in force at all material times when such cess or tax was imposed, assessed or companylected, and accordingly On August 31, 1969 during the Presidents Rule, Bihar Sugarcane Regulation of Supply and Purchase Act, 1969 Presidents Act 8 of 1969 was passed. Section 66 1 of that Act provided Notwithstanding any judgment, decree or order of any companyrt, all cesses and taxes imposed, assessed or companylected or purporting to have been imposed, assessed or companylected under any State law, before the companymencement of this Act, shall be deemed to have been validly imposed, assessed or companylected in a ccordance with law as if this Act had been in force at all material times when such cess or tax was imposed, assessed or companylected and accordingly In January 1968, the petitioner purchased sugarcane for production of sugar in its factory from the sugarcane growers of the area allotted to its factory on payment of the price fixed by the State Government. Respondent 1 sent four requisitions for realization of cane cess and purchase tax said to be due under the Bihar Act 7 of 1937. The demand numberices were issued under s.5 of the Bihar and Orissa Public Demands Recovery Act 4 of 1914. One of such numberices was a demand of Rs. 1,71,543/56P. alleged to be cess purchase tax dues for January, 1968. The petitioner challenges these impositions and companysequent requisitions and demands on several grounds out of which the following have been canvassed before us Bihar Act 7 of 1937 and Act 7 of 1955 which attempted to make it permanent and the numberification issued thereunder imposing the cess and tax in question, were declared unconstitutional and invalid by the Patna High Court in A. K. Jains case supra on July 4, 1966 and that decision was affirmed by this Court in appeal. There was numberlaw in force authorising the levy of the cess tax till January 12, 1968 when Bihar Ordinance 6 of 1968 was promulgated The 2nd proviso to s.35 of Bihar Ordinance 6 of 1968 is invalid. Section 35 of Ordinance 3 and 6 of 1968 per se did number impose any tax. It only empowered the State Government to do so by numberification, and that too prospectively. The second proviso cannot operate to give retrospective effect to the numberification, dated February 16, 1968. Reference has been made to Hukam Chand etc. v. Union of India and ors. 1 1 1973 1 S.C.R. 896. The second proviso to s.35 of Ordinance 6 of 1968 antedated the imposition of tax from January 12, 1968, the date of promulgation of the first Ordinance 3 of 1968. Assuming this proviso to be valid, there was numbernotification imposing the tax, in existence for the period from January 1, 1968 to January 11, 1968. Any tax or cess levied for this uncovered period was without the authority of law The Bihar Ordinance 3 of 1968 was beyond the companypetence of the Governor under Article 213 of the Constitution because there was numberurgency for, the promulgation of the Ordinance and the power was exercised malafide-. We shall take the last companytention first. Barring those cases where the Governor has to obtain previous instruction from the President, the Governors power to promulgate Ordinances under Art. 213 is subject to two companyditions, namely a that the house or houses, as the case may be, of the State Legislature must number be in session when the Ordinance is issued and b the Governor must be satisfied as to the existence of circumstances which render it necessary for him take immediate action. There is numberdispute with regard to the satisfaction of the first companydition. Existence of companydition b only is questioned. It is however well-settled that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor. He is the sole Judge as to the existence of the circumstances necessitating the making of. an Ordinance. His satisfaction is number a justiciable matter. It cannot be questioned on ground of error of judgment or otherwise in companyrt-see State of Punjab v. Sat Pal Dang 1 The companytention is devoid of merit. Moreover, after the companying into force of the Presidents Act 8 of 1969, this question had become merely academic. This takes us to the other companytentions. They are interlinked. To us, numbere of them appears to be well- founded. The first question is, whether after the companymencement of the Central Act on April 1, 1955, the whole of Act 7 of 1937 became void and inoperative ? The question further resolves itself into the issue To what extent this pre- Constitution Act 7 of 1937 was repugnant to the Central Act, and, in companysequence stood repealed or altered ? Act 7 of 1937 dealt with two distinct and separate matters viz., a the regulation of production, supply and distribution of sugar-cane, and b imposition and companylection of cesses and taxes in respect of sugarcane. Matter a was referable to Entry 33 of the Concurrent List III and matter b to Entry 52 of the State List 11 in the 7th Schedule of the Constitution which companyresponds to Entry 49 of the Provincial Legislative List List II of the Government of India Act, 1935. The Central Act 10 of 1955 related to matter b only. Bihar Act 7 of 1 1969 1 S.C.R. 633. 1937 and Bihar Act 7 of 1955 which purported to reenact the former permanently, in so far as it provided for regulation of production, supply and distribution of sugarcane a matter falling under Entry 33 of the Concurrent List- was repugnant to the Central Act 10 of 1955, and, in view of Article 254 of the Constitution, to the extent of that repugnancy or inconsistency would be void. In the light of Article 372 of the Constitution read with s. 16 1 b of the Central Act, the Bihar Act would be deemed to have been repealed with effect from April 1, 1955, only in so far as, it companytrolled or authorised the companytrol of the production, supply and distribution of, and trade and companymerce in sugar-cane. The taxing provisions of the Bihar Act were number in any way repugnant to the Central Act or any other law passed by Parliament. Those taxing provisions, as already numbericed, fall under Entry 52, List II and that was why s.16 of the Central Act companyfined the repeal only to those provisions which were companyered by Entry 33, list Ill. The taxing provisions of the Bihar Act, therefore, never lost their validity and companytinued to be in force. The numberification issued under the Bihar Acts of 1937, and companytinued under the Acts of 1955 and 1963 , imposing the tax or cess, also remained operative during the period in question,. till it was replaced by another numberification issued on January 12, 1968 under the Ordinance 3 of 1968. It is therefore, incorrect to say that there was any period, much less in January 1968, during which the tax. was levied without the authority of law. Mr. Chatterjee, however, companytended that the Patna High Court had in A. K. Jains case supra struck down the Bihar Act 7 of 1937 in its entirety and that decision was affirmed in appeal by this Court. In this companynection he has invited our attention to the observations of the High Court in A. K. Jains case and in Belsand Sugar Companys case supra . The observations in question in A. K. Jains case are Assuming here that Bihar Act 7 of 1937 is severable and can be bifurcated into two parts, one dealing with the companytrol of sugar industry, a topic falling under Entry 52 of List I and the other dealing with sugarcane, a topic, as held by me above, falling under Entry 33 of List III, it follows that the Central Parliament was companypetent under Article 246 to repeal law in relation to sugarcane and thus the Bihar Act and the Rules in relation to sugarcane stood repealed and became unenforceable in accordance with the provisions of Article 372 of the Constitution. The above remarks were reechoed by the same High Court Belsand Sugar Cos case thus The State Legislature was number companypetent to enact and. to extend the life of even the severable part of Bihar Act 7 of 1937, without taking recourse to the proce- dure prescribed in clause 2 of Article 254 of the Constitution, but, unfortunately, Bihar Act 7 of 1955 did number receive the assent of the President, and, therefore, being repugnant to certain provisions of the Central Act, it companyld number have any effect, and it was void on this ground as well. The observations extracted above, though very widely expressed, must be companyfined to, the precise points for determination that had arisen in those cases. These observations were apparently made in the companytext of those matters in the Bihar Act which were either referable to Entry 52, Union List or Entry 33, Concurrent List. In neither of those cases, the High Court, was companycerned with the validity of the taxing provisions of the Bihar Act, companyered by Entry 52 of the State List. In A. K. Jains case supra , the only question that fell for determination was, whether Sections 3 and 7 of the Central Act IO of 1955, and Clause 3 iii of the Sugar Control Order 1955 issued under that Act, were valid and within the legislative companypetence of Parliament. It was companytended that the regulation of price of sugarcane was expressly dealt with by Bihar Act 7 of 1937 and the action taken against the petitioners by the police and the Magistrate was without jurisdiction being in companytravention of Bihar Act and the rules framed thereunder. Thus only that part of the Bihar Act came up for companysideration which related to Entry 33 of the Concurrent List and which only companyld be said to be inconsistent with the Central Act. No question of the validity of the taxing provisions of the Bihar Act arose in that case. Even the High Court found that the matters relatable to Entry 33, Concurrent List were severable from the other provisions of the Act. Before us also, it has number been seriously urged that the taxing provisions of the Bihar Act were so interwoven and inextricably companynected with the provisions referable to Entry 33 List III, that the whole Act would stand or fall together. There was numbercompetition or companylision between the taxing provisions of the Bihar Act and, those of the Central Act. The two exist side by side and each remains operative in its own distinct field without interfering with the other. It will bear repetition that the taxing provisions of the Bihar Act were advisedly kept out of the purview of s. 16 1 b of the Central Act which repealed the State laws only in so far as they companytrolled or authorised companytrol of the production, supply and distribution of sugarcane. The taking provisions of the Bihar Act therefore were neither rendered inoperative by Article 254 1 , number repealed or altered by the companypetent Legislature within the companytemplation of Article 372 of the Constitution. It is important to recall that when A. K. Jains case came up in appeal, this Court, did number endorse the sweeping proposition sought to be spelled out by the petitioners from the wide language used by the High Court in the extracts above. The only reference to the Bihar Act, made by this Court, was as follows Sub-rule 3 of Rule 3 specifically provides that unless there is an I agreement in writing to the companytrary between the parties the purchaser shall pay to the seller the price of the sugarcane purchased within 14 days from the date of the delivery of the sugarcane. This is a specific mandate. If the Bihar Act provides anything to the companytrary the same must be held to have been altered in view of Article 372 of the Constitution emphasis added Since the taxing provisions of the Bihar Act do number companytain anything companytrary to the Central Act, they companyld number in the light of the observations of this Court, be held to have been altered in view of Article 372. Indeed, as pointed out already, the Court in that case was number at all companycerned with the taxing provisions of the Bihar Act. In view of the above discussion the companyclusion is inescapable that the taxing provisions of the Bihar Act 7 of 1937, as re-enacted permanently by Bihar Act 7 of 1955, companytinued to be operative and validly in force at all material times, even after the enactment of the Central Act. Further, the successive Ordinances promulgated by the Governor validated by way of abundant caution those taxing provisions or anything done thereunder. It is well-settled that within its companypetence, a Legislature has the, power to make a law imposing a tax retrospectively or validate defective laws by subsequent legislation, or even past unlawful companylections, the power of validation being ancillary to and included in the power to legislate on a particular subject. We have extracted earlier in this judgment, such validating provisions in s. 66 of the Bihar Ordinance 4 of 1969 and s. 66 1 of the Presidents Act 8 of 1969. The language of these provisions is of the widest amplitude and, even if it is assumed that the Central Act had cast any doubt on or introduced any infirmity in the taxing provisions of the State Act, the same had been removed or cured by s. 66 1 of the Presidents Act which number only nullifies the effect, if any, of the judgment of the High Court on the taxing provisions of the Bihar Act 7 of 1937, but also validates the imposition, assessment or companylection of all cesses and taxes imposed under any state law with retrospective effect as if the Presidents Act had been in force at all material times including the period in question i.e. of January 1968. The validity of the impugned numberification and the cess and tax imposed thereunder has to be judged with reference to the successive Ordinances and finally to the Presidents Act. By virtue of the legal fiction introduced by the validating provision in s. 66 1 , the impugned numberification will be deemed to have been issued number necessarily under the Ordinance No. 3 of 1968 but under the Presidents Act, itself, deriving its legal force and validity directly from the latter. For the foregoing reasons, we negative the companytentions of the petitioners and dismiss this petition with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1710 of 1967 and 1986 of 1968. From the Judgment and Decree Order dated the 7th May, 65 of the Patna High Court in Appeals from Original Decree N03. 160 and 161 of 1959 and in First Appeal No. 160 of 1959 respectively. B. N. Sinha, R. N. Sahay, B. Kumar and S. N. Prasad, for the Appellants in CA 1710/67 . C. Bhartari and D. N. Misra, for the Respondents No. 9 lo in CA 1710/67 . P. Singh and S. R. Tiwari, for Appellants in CA 1986/78 . C. Agarwala, R. K. Garg and V. J. Francis, for respondent No. 17 in, CA 1986/68 . BLal, for Respondent No. 1 in both the appeals . P. Singh, for Respondent No. 2 in both the appeals . The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-These appeals are by certificate against the judgment of the Patna High Court which reversed the Judgment and decree of the Trial Court in Title Suit NO. 94 of 1956 filed by the first respondent-Murli Prasad. A brief history of this case will be necessary for under- standing the several companytentions urged before us. One Mahendra Prasad obtained a licence for electrification of the-Chhapra town which. was granted to him in 1932. The licence was thereafter assigned to Janardhan Prasad varma after the death of his father-Mahendra Prasad in 1936. This licence was subsequently assigned to the Cnhapra Electric Supply Co., Ltd. which, however, went into voluntary liquidation in 1944. It was decided to sell the electricity undertaking by public auction and assign the licence to the purchaser, with the previous sanction of the Government. In pursuance of this decision, the liquidator invited bidders for purchasing the electricity companycern. But before the date of public auction, it is alleged that five persons,. namely, Ayodhya Prasad, Murli Prasad Respondent No. 1, Parasnath. Prasad, Gurbharan Shah and Nandkishore Prasad entered into an oral agreement of partnership to purchase the electrical undertaking in the name of Murli Prasad, the share of Ayodhya was 8 annas, that of Murli Prasad 4 annas, Parasnath Prasad had 2 annas and Gurbharan Shah and Nandkishore Prasad bad one anna each. It was also agreed that the licence will be obtained in the name of Murli Prasad alone, though each partner had to companytribute to the total. purchase money in proportion of their respective shares in the partnership. Thereafter the electrical undertaking was sold by the official liquidator on September 15,1944 to Murli Prasad as his was the highest bid of Rs. 4,10,000/-. Thereafter each of the partners including Murli Prasad companytributed in proportion to their respective shares in the partnership to make up the total sum of Rs. 4,10,000/-. Payments to the official liquidator were made in three instalments. It also appears that before the last instalment of Rs. 2,50,000/- was paid on July 13, 1945, the oral agreement entered into between the partners was incorporated into a partnership deed executed on July 10, 1945 and registered under the Indian Registration Act Exhibit G . Each of the partners had paid the following sums in accordance with their respective shares and in this manner all of them companytributed Rs. 4,10,000/- towards the purchase money paid to the liquidator Ajodhya Prasad Gupta Rs. 2,05,000/- Murli Prasad Rs. 1,02,500/- Parasnath Prasad Rs. 51,250/- Gurbharan Shah Rs. 25,625/- and Nandkishore Prasad Rs. 25,625/-. Nandkishore Prasad, however, retired from the partnership with the companysent of all the partners and his one anna share was taken over by Gurbharan Shah. It also appears that in 1950 a further sum of Rs. 1,50,000/- was urgently required for taking delivery of some new plant and machinery which had arrived at the Chhapra Railway Station. Murli Prasad and Parasnath Prasad expressed their inability to companytribute the sum of Rs. 1,50,0001- in proportion to their shares, so this amount was also paid by Ajodhya Prasad Gupta to whom Murli Prasad and Parasnath Prasad sold one anna share each out of their respective shares. Thus, the share of Ayodhya Prasad increased to 10 annas while that of Murli Prasad and Parasnath Prasad reduced to 3 annas and one anna respectively. Thereafter the partners companytributed the amount in accordance with their respective shares. This re-allocation of shares became the occasion for execution of a second partnership deed on August 31, 1950- which was also registered under the Indian Registration Act Ext. 9. The partnership Act on May 13, 1953, Ext. C. I One other fact must also be stated at this stage. and that is, Ajodhya, Prasad and Murli Prasad being,. Kartas of their respective joint, familities, had. entered into partnership in that capacity. The 10 annas share held by Ajodhya Prasad and 3 annas share hold by Murli Prasad were divided among the members of their respective joint families. The share, of Murli Prasad was divided between himself, Dharindhar Prasad each having one anna share, while the sons of Murli Prasad and Dharindhar Prasad, namely, Chandreshwar Prasad Gupta.and Kamleshwar Prasad Gupta and each 6 pies share. Similarily., Ajodhya Prasads and his brother Ram Sharan Shah got 3 annas 9 pies each while the, two sons of Ram Sharan Shah, Brahmadev Prasad Gupta and Ramagya Prasad Gupta and respectively 1 anna 3 pies. There was numberchange in the shares of the two remaining partners Parasnath Prasad and Gurbharan Shah who held one anna and two annas share respectively. it appears that some time after this revised partnership was registered, the Electrical Inspector, Government of Bihar, addressed a letter to Murli Prasad in which he stated that the partnership was illegal. and void as it companytravened the provisions of the Indian Electricity Act and that, therefore, the Government did number recognise the partnership. The Government ultimately cancelled the licence. It is alleged that all this was due to the manipulation of Murli Prasad who, taking advantage of the letter of the Electrical Inspector, tried to take forcible possession and wanted to dispossess the managing partner of the electrical undertaking. This attempt gave rise to proceedings under s. 144 of the Code of Criminal Procedure, which, however, were decided on April 14, 1954, in favour of Ramagya Prasad Gupta and the other partners. Thereafter it is alleged that Murli Prasad got Parasnath Prasad a partner and son-in-law of Murli Prasads brother to institute Title Suit No. 68 of 1 954, on May 28, 1954. This suit was for a declaration that the partnership had been dissolved by service of numberice on the partners and for rendition of accounts by Ramagya Prasad Gupta principally and by other partners. During the pen- dency of the suit, as stated earlier, the Government of Bihar acting under s. 4 1 of the Indian Electricity Act, 1910-hereinafter referred to as the Act-revoked the licence of Murli Prasad with the result that according to s. 5 1 a of the Act all powers and liabilities of the licensee stood determined. Parasnath Prasad the plaintiff in that suit prayed for appointment of the Additional District Magistrate, Chhapra, as receiver. The Court granted his prayer and the Receiver in due companyrse took over the electrical companycern from Murli Prasad and Ramagya Prasad. After the Receiver had taken possession, the Government decided to purchase the undertaking on October 20, 1955 and deposited on the same day a sum of Rs. 3,00,000/- in the Court as part of the purchase money payable to the owners of the undertaking. Murli Prasad thereafter filed a Title Suit No. 94 of 1956 on November 5, 1956, for a declaration that he being the sole licensee, was the exclusive owner of the undertaking, and as such be was the only person who Was entitled to receive the entire price paid or payable by the Government in respect of the assets of the Chhapra Electric. Supply Works. In this suit Murli Prasad had averred that it was he and he alone who had,paid the entire auction money for the purchase of the undertaking on July 13, 1945 and thereafter he became the sole licensee in charge of the undertaking and that Ramagya Prasad Gupta was a mere employee and servant under him. The partnership was also characterised as illegal and void. Both the Title Suits No. 68/54 filed by Parasnath Prasad and No. 94/56 filed by Murli Prasad were companysolidated. It may also be mentioned that Nandkishore Prasad who was the original partner and who had retired from the partnership and whose share had been taken over by Gurbharan Shah also filed a suit No. 113/57 on September 21, 1957 for a declaration that he was still a partner and has 1 anna share. This suit was transferred to the Court where the other two title suits were being tried. All the three suits were thereafter companysolidated and tried together. They were also disposed of by a companymon judgment dated February 10, 1959 passed by the 5th Additional Subordinate Judge, Chhapra. The Trial Court decreed Parasnath Prasads Title Suit No. 68/54 and dismissed Murli Prasads Title Suit No. 94/56 and Nandkishore Prasads Title Suit No. 113/57. Murli Prasad filed First Appeal No. 160/59 against the judgment and decree of the Trial Court in his Title Suit No. 94/96 and First Appeal No. 161/59 against the judgment and decree of the Trial Court passed in Title Suit No. 68/54. Nandkishore Prasad filed a First Appeal No. 154 /59 against the decree in his Title Suit No. 113/57 but later he withdraw it and accordingly it was dismissed for number-prosecution. The remaining two appeals filed by Murli Prasad were heard together and were disposed of by a companymon judgment by which the High Court reversed the Trial. Courts judgment and decree in Title Suit No. 94/56 by ,ranting a declaration to Murli Prasad as prayed for that he alone was entitled to the entire money deposited or to be deposited by the State of Bihar as price for the assets purchased by them. This deci- sion was based on the view that the partnership companytravened the provisions of the Act and was accordingly illegal and void. Against this decision of the High Court, Ramagya Prasad Gupta one of the respondents in the two First Appeals before the High Court filed two appeals in this Court, namely Civil Appeal No. 1710/67 against the judgment and decree of the High Court passed in First Appeal No. 160/59 which arose out of Title Suit No. 94/56 and Civil Appeal No. 1711/67 against the judgment and decree passed by the High .Court in First Appeal No. 161/59 which arose out of Title Suit No. 68/54. Brahmadeo Prasad, another partner who was a defendant in both the Title Suits Nos. 68/54 and 94/56 and one of the respondents in the two appeals, namely, First Appeal Nos. 160-161/59 in the High Court, preferred an appeal, namely, Civil Appeal No. 1986/ 68 against the judgment of the High Court in First Appeal No. 1601 59 in respect of Title Suit No. 94/56 and Civil Appeal No. 1985/69 passed in Civil Appeal No. 161/59 in respect of Title Suit No. 68/54. It may here be stated that in the Title Suit No. 68/54 filed by Parasnath Prasad for dissolution of partnership and rendition of accounts, Kuldip. Narain, Jagdish. Narain and Kedar Nath Sah applied for, and were added as defendants 12, 13 and 14 on the ground that they as members of the joint family of Parasnath Prasad, should be parties to the suit. According , they were also parties in the. High Court appeals as well as in th Supreme Court appeals Nos. 1711/67 and 1985/68 arising out of Title Suit No. 68/54. It may further be mentioned that these interveners were number parties either in the Title Suit No. 94/56 or in the First Appeal arising therefrom, or in the appeal before this Court, namely, Civil Appeals No. 1710/67 and No. 1986/ 68 which are the two appeals before us. Before those four appeals came up for, hearing, Jagdish Narain one of the interveners defendants, namely, defendant No. 13 and who was a respondent in Civil Appeals Nos. 1711/67 and 1985/68 died. His legal representatives were number brought on record and companysequently these two appeals were said to have abated as a whole and were dismissed on that account. At the very threshold it was sought to be companytended that the appeals only abated as against Jagdish Narain for number bringing his legal representatives on record but number as a whole. This question was companysidered by this Court. in Ramagya Prasad Gupta v. Murli Prasad 1 where by a majority, Vaidialingam Palekar, JJ., Mathew, J. dissenting, held that the appeal companyld number be proceeded with and must. be dismissed. We are number companycerned with the reasoning for-the dismissal, except to say that the question whether these two appeals would also abate seems to have been companysidered by this Court, because they observed at p. 68 We are number companycerned with those two appeals at this stage because Jagdigh Narain had number been made a party to the Original Suit filed by Murli Prasad number had he applied to be made a party. Consequently Jagdish Narain does number and did number figure in the appeals from the decree passed in Suit No. 94/56. At the hearing, a preliminary objection has been raised by the learned Advocate, for the respondents that having regard to the abatement and dismissal of Civil Appeals Nos. 1711 of 1967 and 1985 of 1968 which arose out of Title Suit No. 68/54, the present two appeals are barred under s. 11 of the Code of Civil Procedure and or on-the general principles of res judicata and should be dismissed. It is companytended that the existence of a valid partnership was a. ground of attack in Title Suit No. 68/54 and the ground of defence in Title Suit No 94/56 and, therefore, that question was directly and substantially in issue in both suits 2 that the parties in the two suits were also the same at any rate the parties in the present suit No. 94/56 who will be affected are the same. The learned Advocate for the respondents therefore companytends that the trial of the suit being by the same companyrt, the two other companyditions necessary for a bar of res judicate, namely, the subject matter of the two suits and the 1 1971 1 S.C.R. 63. parties being the same, are fully satisfied. The appellants Advocate, however companytroverts these companytentions and submits that number only is the subject-matter in dispute in Title Suit No. 68 of 54 different front the subject-matter of title in Suit No. 94 of 56, but the parties in Title Suit No. 68 of 54 are number the same as. those in Title Suit-No. 94 of 56., inasmuch as defendants Nos. 12, 13 and 14 who were patties in Title Suit No. 68 of 1954 were number patties in Title Suit No. 94 of 1956. It is companytended that in the former suit, which was instituted during the, subsistence of both electricity licence and electrical undertaking, the subject- matter Was limited to a companysideration of 1 Existence of a legal and valid partnership and 2 Legality and validity of the numberice of dissolution of partnership alleged to, have been served prior to the suit and 3 the liability of Ramagya Prasad Gupta or other partners to reader accounts to the plaintiff. In other Words, it Was a simple suit for rendition of accounts, for dissolution and for such sum of money as, might be due to the plaintiff in that suit. The suit out of. which these two appeals arise having been filed a year and a half there after was-. number companycerned with any of the question because by that time the subject-matter of the partnership having disappeared by the cancellation of the licence of Murli Prasad and by the purchase of the undertaking by the Government under s. 7 a of the Act, the only question was whether Murli Prasad is entitled to the entire money deposited in Court and to be deposited thereafter by the Government or whether the persons who were erstwhile partners and who had companytributed the capital companyld have a claim to that money in accordance with their shares. As the subject-matter of the two suits was different it is companytended that the appeals are neither barred by s. 11 number by any other principle on Res Judicata. At the hearing a great many authorities were cited and certain broad propositions were sought to be canvassed, as for instance, the principle that when there are two suits which have been tried together and disposed of by a companymon judgment and two appeals are taken therefrom, the judgment appeared against ceases to be res judicata even if one of the appeals is dismissed on the ground of limitation or otherwise because the. very judgment, which is sought to be pleaded in bar, is still subjudice In support of this proposition, the view expressed by the Lahore High, Court Full Bench in Lakshmi v. Bhuli 1 has been cited and it was submitted that this view was approved by this Court in Narhari v. Sankar 2 which it is submitted, has been followed in various decisions of the different High Courts. As against this view, it is claimed that this Court subsequently in Sheodan Singh v. Mst. Ddryao Kaur 3 took a different view, but according to the learned Advocate for the appellants, this case did number companysider the companyrectness either of Narharis supra decision or of the Lahore Full Bench case in Lakshmi v. Bhuti supra . In a case where a suit or an appeal is said I.L.R. 8 Lahore 384. 2 1950 S.C. R. 754. 3 19663SCR. 100. to be barred by res judicata the question would arise whether that bar is by virtue of s. 11 of the Code of Civil Procedure, or dehors that section by the general principles of res judicata, and if s. 11 is applicable, whether it applies to suits only and number to appeals, and if to suits only, whether the general principles of res judicata apply to appeals. Where two suits having companymon issues are either by companysent of the parties or by order of the Court tried together the evidence licing written in one record and both suits disposed of by a single judgment, the question would arise as to whether there have been two distinct and independent trials. Tek Chand J., who delivered the majority judgment of the Full Bench in Lakshmis case supra gave the answer at p. 400 thus There has been in substance as well in form but one trial and. one verdict, and I venture to think, it will be a travesty of justice to stifle the hearing of the appeal against such ,a judgment on the ground that the findings companytained in it operate. as res judicata. In such a case there can be numberquestion of the successful being vexed twice over the same matter, number does the hearing of the appeal in any way militate against any rule of public policy, which requires that there must be an end of litigation. There is number only numberhing here to attract the principles underlying the rule of res judicata, but, on the other hand, it seems to me, that the acceptance of such a plea in such circumstances would strike at the very root of the basic companyception of the doctrine which requires that a party must have at least on.-. fair trial of the issue resulting in a decision by the Court of ultimate appeal as allowed by the law for the time being in forces. The test suggested by the learned Judge at p. 401 was whether the judge has applied his mind to the decision of the issue involved in the two suits twice or whether there has been in reality but one trial, one finding and one decision. According to him, the determining factor is number the decree but the decision in the matter in companytroversy. It is clear that where a suit has been tried and finally decided on the merits, if the defeated party wishes in another suit between the same parties relating to the same property to have the same questions re-agitated, he cannot be allowed to do so, because his cause of action has passed into a judgment, and the matter has become res judicata. Even where two appeals have been taken from the same judgment by two different parties to which all others are parties either as appellants or respondents and one of the appeals is dismissed either on merits or for any other reasons, it has been held by some of the High Courts, but we express numberopinion thereon, that the other appeal has also to be dismissed, because it is barred by the principles of res judicata as otherwise there will be companyflict in. the decrees. In the Lahore decision there were two cross suits about the same subject-matter filed simultaneously between the same parties and two decrees were prepared. An appeal being filed in respect of one decree and number in respect of the other, the question was whether the number-filing of the appeal against that decree creates an estoppel against the hearing of the other appeal. In Narharis case supra what this Court held was, where there has been on.-. trial, one finding and one decision, there need number be two appeals even though two decrees may have been drawn up and companysequently the fact that one of the appeals was time barred does number bar the other appeal on the ground of res judicata. In this case, these questions need number be companysidered. Nor is it relevant to companysider whether there is any companyflict between the decision in this case and Sheodan Singhs case supra . In Sheodan Singhs case two suits were field in the Court of the Civil Judge, one for a declaration of the title to the suit property and the second for other reliefs and companysequently two other suits were filed by the respondents in the Munsifs companyrt against the appellant claiming joint ownership to the suit property and other reliefs. The four suits were tried together by the Civil Judge. Some of the issues were companymon to all the suits and one of the companymons issues relating to the title of the parties was found in favour of the respondent. The Civil Judge dismissed the appellants title suit, decreed his other suit partly, and decreed the two suits of the respondent. The appellant filed appeals against the decree in each suit. The High Court dismissed the two appeals arising out of the respondents suits, one as time barred, and the other for failure to apply for translation and printing of the record. As the title of the respondent to the suit property had become final on account of such dismissal, the respondent prayed for the dismissal of the other two appeals also, as the main question involved therein was the same. The High Court agreed that the appeals were barred by res judicate and dismissed them. Against these order of dismissal, the appellant filed appeals to this Court and companytended that- 1 title to the property was number directly and substantially it issue in the respondents suits 2 the Munsifs Court companyld number try the title suit filed by the appellant 3 it companyld number be said that appeals arising out of the respondents suits were former suits as such the bar of res judicata will be inapplicable and 4 the two appeals which were dismissed-one on the ground of limitations and the other on the ground of number printing the records, companyld number be said to be heard and finally decided. This Court held that the High Court was right in dismissing the appeals as being barred by res indicate inasmuch as the issue as to the title was raised in respondents suits and it was directly and substantially in issue in those suits also and did arise out of the pleadings of the parties, and further the High Courts decision in the two appeals arising from the respondents appeals were undoubtedly earlier and, therefore, the companydition that there should have been a decision in a former suit to give rise to res judicate in a subsequent suit was satisfied in that case. The decision in Narharis case supra was distinguished by this Court in that case so that it companyld number be said that that decision was in any way in companyflict with the decision in Narharis case supra . In appeals arising out of a subsequent suit and an earlier suit where there were companymon issues, companymon subject-matter and companymon trial and the appeals arising out of the subsequent suit were dismissed, a question would arise as to whether the appeals from the earlier suit which were pending arc barred by res judicata A question may also arise where the subject-matter is the same and the issues are companymon in the two suits but some of the parties are different in one suit, whether the bar of res judicata would operate against the parties who are companymon. All these aspects need number be companysidered in theseappeals because, in our view, the subject-matter of Title Suit No.68 of 1954 and that of Title Suit No. 94 of 1956 are entirely direct. Even if the issues that are companymon in the two suits, and it has been admitted by the learned .Advocate for the appellants that some of the issues might be companymon to both the suits, issues Nos. 4, 9, 12, 13 and 14 at any rate survive, and companysequently the bar of res judicata would number apply. The issues ,which are said to be surviving are as follows Whether the plaintiff of T.S. 94/56 the sole licensee of the Chapra Electric Supply Works before it was taken over by the State of Bihar? Is plaintiff of T.S. 94/56 only entitled to companypensation from the State of Bihar ? Is the suit 94/56 barred under section 42 of Specific Relief Act, estoppel and waiver Is the amount of companyrt fee filed in T.S. 94/56 sufficient ? To what relief or raliefs plaintiff of the two suits entitled ? Ignoring issues 13 14 it will be seen that issues 4, 9 12 are companyfined only to Suit No. 94 of 1956 in which respondent No. 1 is seeking to have himself declared as the sole licensee and entitled to the ,entire amount of companypensation on the ground that be and he alone has companytributed. to the capital that the defendants in that suit were number his partners but servants and such a suit is number barred under s. 42 of the Specific Relief Act on the ground of estoppel waiver be.cause of his companyduct and admissions. As we have seen, Title Suit No. 68 of 1954 postulates the existence of a partnership in which the first respondent is a partner, and for dissolution of partnership and rendition of accounts. Whatever may have been the companymon issues between the two suits, one issue which is number companymon and makes the subject-matter of both the suits different is that whether the plaintiff in Title Suit No. 94 of 1956, that is the first respondent in these ap.peals, is solely entitled to companypensation from the State of Bihar. This issue is number necessarily companyfined to the existence or validity of ,the partnership but as to whether the other parties to the suit have ,contributed to the capital of the firm or paid Murli Prasad any amounts which they are entitled to recover from out of the companypensation amount. This was number the subject-matter of Title Suit No. 68 of 1954. Even as the learned Advocate companytends, there is numberlonger any question of partnership being dissolved once the subject-matter has disappeared by the revocation of the licence and after the entire assets of the partnership were taken over by the Government. Even if the partnership was illegal and void as companytended by the respondent in the other title suit, the same question. namely, whether the plain- ,tiff first respondent alone would be entitled to the entire companypensation, was number the subject-matter of, the Title Suit No. 68 of 1954. .If so, numberquestion of res judicata would arise. The preliminary objection is accordingly overruled. On the merits the appellants case is unassailable. The case of the first respondent that be paid the entire money for the purchase of the undertaking is, in our view, a dishonest plea. There is ample evidence in the case to establish that though Murli Prasad was the highest bidder at the auction at which the undertaking was sold to him and the licence was granted to him, there was an oral agreement which preceded the bidding at the auction whereunder five persons as stated already, including the first respondent, companystituted a partnership. They also companytributed the capital in proportion in their shares. Though at first denied it was subsequently admitted by the first respondent as we shall presently see. After the bidding of Murli Prasad was accepted as already stated, the partners companytributed their shares and there was a registered partnership deed. Another partnership deed was subsequently executed and registered after there was a reshuffling in the partners as well as in their respective shares. The definite case of the first respondent asset but in para 5 of the plaint is that he had paid the entire amount of sale money by July 13, 1945 and the liquidator granted a receipt to the plaintiff for the auction money paid to him. In para 8 of the plaint Suit No. 94 of 1956 he says that defendants who had a companyeting eye persuaded him illegally to enter into a partnership with them and the plaintiff being misled by them and under a misapprehension entered into a partnership with the defendants on July 10, 1945 and the same was renewed on August 31, 1950. It is, therefore, clear that he does number deny the execution of these partnership deeds and yet claims that he alone companytributed the amounts for the purchase of the undertaking. If he companytributed the entire amount and the, other partners did number companytribute any amounts, where was the question of their persuading him to enter into a partnership. On the very face of it, the pleadings belie the case of the first respondent. The documentary and oral evidence amply supports the companyclusion that the first respondent has put forward a false claim and has number hesitated to suppress the truth which, numberwithstanding his efforts, companyld number be suppressed. The first respondent passed a receipt on July 13, 1945, on the date when the partnership deed was registered, in favour of Ajodhya Prasad who, as we have seen had a 8 annas share in the partnership in terms of the oral agreement which was incorporated in the partnership agreement of July 13, 1945. The half share of the capital of Rs. 4,10,000 which Ajodhya Prasad had to pay was Rs. 2,05,000. This is exactly the amount that he paid to the first respondent, who passed a receipt in his favour, Ext. F-1. In the receipt Murli Prasad says that be had previously received Rs. 1,000 out of Rs. 2,015,000 being the proportionate 8 annas share out of Rs. 4,10,000 from Babu Ajodhya Prasad and the remaining amount of Rs. 2,04,030 was being paid by a cheque No. 34463 drawn upon the Central Bank,, dated July 13, 1945 from the said Babu Saheb. This amount was debited to the Bank account of Ajodhya Prasad and credited to the Bank account of Murli Prasad, Exhibit M- Ledger Account of M s Ajodhya Prasad Gupta Co. in the Central Bank, Chhapra, shows that on July 14, 1945 Rs. 2,04,000 was debited to him on account of cheque No. 34463 drawn in favour of Babu Murli Prasad the number of which tallies with the number mentioned in the receipt Ext. F-1. Similarly, ExtM-1, Ledger Account of Murli Prasad in the Central Bank, Chhapra, shows that on July 14, 1945 a sum of Rs. 2,04,000 was paid into the account by cheque and credited to his account. In his evidence Murli Prasad denies in examination-in chief that there was a companypleted agreement before the auction sale between Ajodhya Prasad, Parasnath, Nandkishore Prasad and himself-each representing their respective families to enter into a partnership and that he had number purchased at the auction on behalf of the partners or on behalf of any other person, but had purchased it at the auction for himself alone. He also denies that the licence was obtained in his name with their companysent or the transfer of the licence in his favour was secured for their benefit. He also denies that Ajodhya Prasad paid Rs. 1,000 for bidding and denies that Parasnath frasad, Nandkishore Prasad and Gurcharan Shah companytributed any sum towards the auction purchase. He further says that it is number a fact that later on Ajodhya Prasad paid him Rs. 2,04,000. His case is that he was fraudulently and illegally induced by the rest of the parties to enter into a partnership on July 10, 1945 and August 31, 1950 which are both invalid and illegal. In cross-examination, he, admits that he did number have Rs. 2,00,000 with him at the time but was sure that he, companyld arrange for the purchase money. He, however, states that only 4 or 5 months after the, auction sale he had an idea to enter into a partnership by which time he had already deposited Rs. 2,05,000 towards the purchase, money which he did from his personal fund. He wants us to believe that he signed the partnership deed without reading number did any one read and explain to him. He signed it because of his faith in Ajodhya Prasad. In cross- examination he admits that the intending partners had companye to him and expressed their intention of having a share in the companycern. Ajodhya Prasad wanted 8 annas share, Parasnath Prasad two annas, Gurbharan Shah and Nandkishore Prasad 1 anna share each and that he Murli Prasad expressed his desire to have 4 annas share. He also admits that it ,as agreed that each would companytribute in proportion to his respective share. He further admits that though he did number read the partnership deed at that time he had got it read subsequently by Ganga Prasad, Pleader, and he found that the deed embodied all the terms they had previously agreed to. As for the second partnership deed, he also admits that his share was reduced to three annas from four annas. Similarly, the share of Parasnaths family was reduced to one anna from two annas and that the share of the family of Ajodhya Prasad increased from 8 annas to 10 annas. What is curious is, be says, that be knew the partnership deed to be illegal but entered into it because he got the assurance that numberhing would happen. He also admits that after the account was audited, a balance sheet was prepared and a companyy of such balance sheet used to be sent to each of the partners and the State Government, another factor which shows that the first respondent was fully aware of the partnership and the shares of each of the partners and that there was numberhing secret or sinister about the agreement or partnership. When the partnership decided to have some new machinery, it required Rs. 1,50,000 to take delivery of that machinery. The proceedings of the meeting of the partners, Ext. E-1 dated August 28, 1950 clearly show that this amount was to be Jointly companylected from all the partners. But since some of them were number able to get the money, Babu Parasnath proposed to sell his one annas share and retain his one anna only and Murli, Prasad, that is respondent No. 1 also proposed to dispose of his one anna share, out of 4 annas share. These two annas were offered to any of the partners who was willing and take in Ajodhya Prasad was agreeable to purchase these shares and the shares were re-constituted and the amount that each one had to companytribute according to his share has been set out in that document. The amount of Rs. 1,5O,OOO has been divided exactly according to the shares that each of the family has to pay. These proceedings, Ext. R-1 was shown to respondent No. 1 and while he admits his signature thereon, he denies that he companysented to these proceedings. Yet he companytradicts himself by saying that there was reshuffling of the shares and because money was required for the purchase of new machinery, since there was numbermoney with him, he gave one anna out of his share and that since the date the companycern came to his hand till the date it passed to the Government there was never any profit in it. And yet, the learned advocate for respondent No. 1 would have us believed that large sum towards profits were due from Ramagya Prasad who was Managing, the companycern. It is also clear from the balance-sheet which Murli Prasad admitted were being sent regularly to the partners and, the Government, that though the first. respondent was shownas the licensee, he is also stated to be a partner. In the certificate given by the Chartered Accountant it is stated that the amount invested by the licence and his partners are shown in form 3 capital amount against their respective names and this amount has been shown in Ext. X-1 dated 31-12-1949 Murli Prasad Rs. 1,0,2,500 Ajodhya Prasad Rs. 2,05,000 Parasnath Rs. 51,250 and Gurcharan Shah Rs. 51,250, thus making Rs. 4,10,000. In each one of these balance sheets Murli Prasad has been shown as partner. It is, therefore, idle to suggest that the entire amount has been companytributed by Murli Prasad and that others did number have any companynection with the partnership. Nor companyld if be said that they had number companytributed towards the capital in accordance with their shares. The High Court rather strangely either misread the evidence or misappreciated it when it held that the partnership having number companye into existence at any time in the eye of law, Murli had numberadvance in his hands on account of the partnership, there was numberacquisition by the partnership of the undertaking and the license and the source from which he paid the companysideration money of the bargain between him and the liquidator would number clothe the creditors with the title to the undertaking and the licence or to the benefit of the purchase. The money lent by the partners to Murli may, of cease, be recoverable subject to the law of limitation, but number the property acquired with the money, since numberfiduciary obligation in the eyes of law companyld arise as between him and the various lenders. In this view, it thought that the claim of the partners to recover the money having regard to section 65 of the, Contract Act and Art. 62 of the limitation Act is barred by limitation, because the suit of Parasnath was filed more than 3 years after 13-7-45 by which date they were aware of the fact that companysent of the Government had number been obtained to transfer the licence. This view of the High Court cannot be sustained. It appears to us that there is numberhing to suggest that the partners knew or were aware that their partnership was illegal number companyld it be said because at the time when they entered into the agreement of partnership, this is clearly established, as numberlicence had been granted to Murli Prasad. The amounts wore companytributed by all the partners in accordance with their shares before the licence was assigned to Murli Prasad. Even on the admission of the first respondent, on behalf of the partnership balance-sheets were being prepared and they were being forwarded number only to the partners but to the Government also. if so, the Government as well as the Electrical Inspector, as is evident from several letters Exts. D-4, D-6, D-10, D,-12, D-30, D-32, D- 44, D-45, C-3/1 and C4/1, were made aware of the partnership. If they did number take numberice it was number the fault of the partners number does it show that there was anything secret in that partnership. The openness with which the entire business was run clearly establishes that the partners at any rate were pot aware of the illegality. It may be true that under the Act permission may be necessary to obtain a licence or to have a licence assigned to a partnership, but there is numberhing in the Electricity Act to warrant the submission that because numberpermission was taken for assignment of the licence in the name of the partnership, the claims of the partners against each other cannot be adjudicated upon, and that the partners will have numberrights in the assets held by the partnership. Curiously, the High Court, when the above exhibits were brought to its numberice, tried to get over it by saying that the words we and us which have been used in Ext. D-6 do number by themselves indicate partnership and that they were apparently usedfor the Chhapra Electric Supply Works. ,This companyclusion is unjustified and is against the weight of evidence in the case. The illegality, if any, was discovered only after the Government issued a numberification, Ext. F-1 dated May 19, 1955, revoking the licence. It may also be numbericed that Title Suit No. 94 of 1956 was filed on November 5, 1956, while the earlier Suit No. 68 of 1954 was filed on May 22, 1954, even before the cancellation of the licence. None of these suits can, on any account, be said to be barred by limitation. In any case, the persons who have companytributed the money to provide the capital for the undertaking are entitled to recover the amounts in accordance with their respective shares. This relief is number dependent upon the validity of the partnership either of 1945 or of 1950. The arrangement between the partners and the licensee does number attract sub-ss. 2 and 3 of s. 9 of the Act which merely debar a licensees association in the business of supplying energy under the same licence. Sub- section 2 inhibits the licensee from assigning his licence or transferring his undertaking or any part thereof by sale, mortgage etc. without the previous companysent in writing of the State Government. Subsection 3 makes an agreement relating to any transaction described in sub-s. 2 , unless made with or subject to the previous companysent as aforesaid, void. Owning of the properties by the Corporation was number in companytravention of any of the provisions of the Act. The agreement, therefore, is number void. In these. appeals it is number necessary to decide, the question whether the carrying on of the business of partnership as an electricity undertaking, when the licence stood in the name of Murli Prasad is invalid. Even if it is void, what we have to companysider is, as pointed out earlier, whether the money of the partners which went to purchase the electrical undertakings at the auction sale and which by virtue of s. 14 of the, Partnership Act became the assets of the partnership, those assets which have been companyverted into money which has been deposited in the Court, can be claimed by all those who had originally companytributed the amount. Section 65 of the Contract Act will readily companye to the rescue of the partners. That section lays down that when an agreement is discovered to be void, or when a companytract becomes void, any person who has received any advantage under such agreement or companytract is bound to restore it, or to make companypensation for it, to the person from whom be received it. A Fall Bench of the Hyderabad High Court in Budhu Lal v. Deccan Banking Company Ltd 1 to which one of us was a party had occasion to companysider the question that where money has been paid under the instrument which has been held to be void, companyld money paid thereunder, be recovered. After a review of the case law in India, the decision of their Lordships of the Privy Council in Harnath Kaur v. Inder Bahadur Singh 2 and the observations in the 7th Edition of Pollock and Mullas Indian Contract and Specific Relief Act pp. 346-347 to the effect that section 65 of the Indian Contract Act does number apply to agreements which are void under s. 24 by reason of an unlawful companysideration or object and there being numberother provision in the Act under which money paid for an unlawful purpose may be. recovered back, an analogy of the English law will be the best guide, that Court had held that money paid in such circumstances can be recovered. The reasoning which the learned authors gave for their view was stated in that judgment to be that if the view of the Privy Council is right, namely, that agreements discovered to be void apply to all agreements which are ab initio void including agreements based on unlawful companysideration, it follows that the person who has paid money or transferred property to another for an illegal purpose can recover it back from the transferee under this section even if the illegal purpose is carried into execution and both the transferor and transferee are in pari delicto. In respect of this reasoning the Court observed at p. 75 In our opinion, the view of the learned authors is neither supported by any of the subsequent Privy Council decisions number is it companysistent with the natural meaning to be given to the provisions of s. 65. The section by using the words when an agreement is discovered to be void means numberhing more number less than when the plaintiff companyes to know or finds out that the agreement is void. The word discovery would imply the preexistence of something which subsequently found out and it may be observed that s. 66, Hyderabad Contract Act makes the knowledge ilm of the agreement being void a , one of the pre- requisites for restitution and is used in the sense of an agreement being discovered to be void. If knowledge is an essential requisite even an agreement ab initio void can be discovered to be void subsequently. There may be cases where parties enter into an agreement honestly thinking that it is a perfectly legal agreement and where one of them sues the other or A.T.R. 1955 Hyd. 69. A.I.R. 1922 P.C. 403. wants the other to act on it, it is then that he may discover it to be void. There is numberhing, specific in s. 65. Indian Contract Act or its companyresponding section of the Hyderabad Contract Act to make it inapplicable, to the such cases. The above view, which has been numbericed in subsequent edition of Pollocks Book See 9th Edition, p. 463 Note 41 , is in companysonance with authority, equity and good reason. After this companyclusion it is number necessary to companysider whether s. 70 of the Contract Act or ss. 39 and 41 of the Specific Relief Act can be invoked in aid of the appellants. On any view of the matter whether the agreement was void ab initio, or was void or valid initially but became void or discovered to be void subsequently, the appellants are entitled to succeed in these appeals. We accordingly allow these appeals, reverse the judgment an decree-of the High Court and dismiss Suit No. 94 of 1956 with companyts, We hold that the first respondent Murli Prasad is number entitled solely to the whole of the companypensation money, but that all those whose names appear in the partnership deed of August 31, 1950, or the legal representatives or assignees of such of them who are dead, are otherwise entitled to share the companypensation money in proportion to their respective shares as specified in the said document. The companypensation amount which is so distributed is the balance of the amount remaining after payment of the outstanding liabilities of the Chhapra Electric Supply Works.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 10 of 1970. Appeal by special leave from the judgment and order dated the 29th August, 1960 of the Allahabad High Court in Criminal Appeal No. 568 of 1967. L. Sarin and R. L. Kohli, for the appellants. P. Uniyal and O. P. Rana, for the respondent. The Judgment of the Court was delivered by Goswami, J. This criminal appeal by special leave is directed against the judgment of the Allahabad High Court affirming the companyviction of the five appellants, Bhajan Singh, Chain Singh, Baldeo Singh Jagat Singh and Gurbachan Singh under section 302/f49 I.P. C. and sentence of imprisonment for life on each of them. Bhajan Singh, Chain Singh and Jagat Singh have further been companyvicted under section 147 I. P. C. and sentenced to rigorous imprisonment for one year each ,and the two other appellants have also been companyvicted under section 148 1. P. C. and sentenced to one and a half years rigorous, imprison- ment each. Special leave was refused to Baldev Singh and Gurbachan Singh. The prosecution case may briefly be stated Chain Singh and Baldeo Singh are sons of Bhajan Singh, Gur- bachan Singh is the son of Jagat Singh. The deceased is Bakhsheesh Singh, who was the brother of Major Singh and a companysin of appellant, Bhajan Singh. Major Singh had purchased some land in their village Paivandkheri from one Sohan Singh and Gurbachan Singh was in unlawful possession of over 15 to 16 bighas of the said land. There was litigation between Gurbachan Singh and Major Singh in respect of this land. Gurbachan Singh subsequently sold his entire land including the disputed area to Bhajan Singh. Thereafter Major Singh and his father Ujagar Singh asked Bhajan Singh to give up possession over the land purchased by Major Singh and, on the day before the occurrence, su.- gested to him that, they should go to the Patwari and settle the matter to which Bhajan Singh agreed. On September 17, 1964, at about 11.30 A.M. Bakhsheesh started on a cycle for the house of the Patwari with papers in companynection with the disputed land. He was followed on foot, by his father, Ujagar Singh and brother Major Singh. When Bakhsheesh Singh had hardly gone a distance of about 20 or 25 paces from his house, the five appellants accosted him, Baldeo Singh was armed with a spear and Gurbachan Singh with a gandasa and the three other appellants were armed with lathis. Bakhsheesh Singh got down from the cycle and Bhaian Singh caught hold of him and incited the other appellants to beat him. Baksheesh Singh requested the appellants to accompany him to the Patwari to settle the dispute, but Jagat Singh said that they would settle it on the spot. Baldev Singh then give a ,spear blow to Bakhsheesh Singh, Gurbachan Singh gave him a gandasa blow on the head and Chain Singh beat him with his lathi. Thereafter the appellants ran away. The occurrence was witnessed by Ujagar Singh P.W. 3 , Major Singh P.W. 2 and Jogendar Kaur, widow of the deceased W. 4 and Sadhu Singh, Sardari Singh and Prakash Singh, who were servants of Ujagar Singh. Bakhsheesh Singh was injured in the abdomen and his intestines came out. The injury was bandaged with the turbans of the deceased and Ujagar Singh and he was taken to the police Station, Afzalgarh, where a first information report was lodged by Major Singh at 12.45 P.M. The police sent him to the hospital at Sherkot where Dr. Yogendra Pal PW 4 in the Committing Court examined him. From there he was taken to the District Hospital, Bijnor. As his companydition was serious, a dying declaration Ex. Ke-8 was recorded at 9.30 P.M. by the Tahsildar Magistrate, Shri Balbir Singh W. 1 . Bakhsheesh Singh died next day, September 18, 1964, in the afternoon. Postmortem examination was performed by Dr. P. P. Agarwal on 19th September, 1964. According to the Doctor death was due to shock and haemorrhage from the injuries. It appears that Gurbachan Singh and Chain Singh had some Simple injuries on their person but they did number report to the police number were they examined by Dr. K. C. Gupta D. W. 4 earlier than September 20, 1964, at 4.00 P. M. The defence plea is an absolute denial by Bhajan Singh, Baldeo Singh and Jagat Singh while Chain Singh and Gurbachan Singh gave a different version of the occurrence. According to Chain Singh he and Gurbachan Singh were grazing their cattle by the side of the canal when one Sardar Singh and Bakhsheesh Singh came there. Bakhsheesh Singh abused them and there was grappling with him. Major Singh came from behind with a karauli and gave him a blow with it. When for the second time Major Singh tried to assault him with the karauli in struck Bakhsheesh Singh. According to Gurbachan Singh he tried to intervene and received lathi blows from Sardar Singh. The prosecution relies upon, besides the medical evidence, the evidence of the three eye witnesses as numbered above namely, PW 2, PW 3 and PW 4 and also upon the statement of Sadhu singh recorded in the companyrt of the Committing Magistrate and admitted in the Court of Sessions under section 33 of the Evidence Act as well as upon the dying declaration of Bakhsheesh Singh to establish the charges. The High Court has relied, as the Sessions Judge earlier did, upon the evidence of the three eye witnesses and has found that their evidence was companyroborated by the dying declaration as well as by the medical evidence, as properly scanned by the companyrts. In an appeal under Article 136 of the Constitution this Court is very slow to interfere with the companycurrent companyclusions of the two companyrts below with regard to the appreciation of evidence of the witnesses. The accused must be able to make out an extraordinary case of gross and palpable injustice to induce us to take a companytrary view from that arrived at by the High Court in this case. Even so, the learned companynsel for the appellants submits that the High Court has erred in relying upon the, testimony of these partisan witnesses since they are all related to the deceased. But even the deceased is the companysin of the appellant, Dhajan Singh. We have perused the evidence of the three eye witnesses and companyld number find any ground to disbelieve their testimony. The learned companynsel also companyld number draw our attention to any serious infirmity in the evidence except characterising their testimony as interested. Counsel further submits that their statements are falsified by the medical evidence. He also submits that the eye witnesses have number given any explanation for the injuries received by the accused and, therefore, their evidence should be rejected. The-same grounds were also pressed into service before the trial companyrt and in the High Court and both the companyrts repelled the same with good reasons with which we companycur. The learned companynsel companytends that the companymon object of the unlawful assembly is only to beat Bakhsheesh Singh and number to kill him. He submits that even on the evidence accepted by the High Court charge under section 302/149 I.P.C. has number been established against the accused. The learned companynsel draws our attention to the word maro used by the witnesses before the assault started. On the other hand, our attention is drawn by the learned companynsel for the State, to the F.I.R. where it is mentioned that Jagat Singh said let us settle the matter here. What will the Patwari do? Kill the sala. Nothing turns decisively on the word maro used by the witnesses and we have to see the entire surrounding circumstances and the quick sequence of events that immediately followed thereafter. It is clear that all the five accused came armed with deadly weapons and one of them, namely, Bhajan Singh was the first to catch bold of the deceased and shouted beat the sala, while accused Jagat Singh said that they would number go to the Patwari and decide the matter on the spot. He also said beat thissala. Thereupon Baldeo Singh gave a barchhi blow which hit the deceaseds abdomen. It is, therefore, clear from the above version, which has been accepted by the companyrts below and which we have numberreason to disbelieve, that the five accused were members of an unlawful assembly with the companymon object to kill Bakhsheesh Singh. .We do number give much importance to the word beat used in the charge in this case and we do, number think that the accused have, been prejudiced by such a recital in the charge from the manner in which the defence was companyducted in the trial companyrt in answer to the evidence addressed by the prosecution. The learned companynsel strenuously companytends that the accused cannot be companyvicted under section 3021/t49 I.P.C. as the companymon object of the assembly was number to kill the deceased. The learned companynsel, however., fails to take numbere of the fact that section 149 has got two limbs If an offence is companymitted by any member of an unlawful assembly in prosecution of the companymon object of that assembly, or such as the members of that assembly knew to be likely to be companymitted in prosecution of that object, every person who, at the time of the companymitting of that offence, is a member of the same assembly, is guilty of that offence. Even if, therefore, the accused were originally members of an-unlawful assembly with the companymon object of only beating Bakhsheesh Singh having companye armed with deadly weapons, some with spear and gandaisa and some with lathis, in the desperate manner they have done, and if the members of the assembly knew that by using these weapons upon Bakhsheesh Singh death would be caused, they are guilty of section 302 read with section 149 I.P.C. There is number circumstance in the case which can bring down this case to one under section 304 I.P.C. The intention was clear to kill Bakhsheesh Singh and all the accused are guilty of the offence charge namely, section 302/149 I.P.C. The learned companynsel relied upon a decision of this companyrt in Shambhu Nath Singh and Others v. State of Bihar 1 and also upon another decision in The Queen v. Sabid Ali and Others 2 . We are unable to appreciate how these decisions help the accused in the present case. We are absolutely satisfied that all the five accused came armed AIR 1960 S.C. 725. 2 1873 Weekly Reporter 20 , 5. with deadly weapons despite the arrangement on the previous day to accompany Major Singh and Bhajan Singh had agreed to go to the PatWari. By turn of events they took a different posture to challenge Bakhsheesh Singh and party on their way to the Patwari, dealt with them in the manner they have done resulting in the death of Bakhsheesh Singh. We are of the view that even the second limb of section 149 I. P. C. is established on the evidence in this case. From the companymencement of the interception of the companyplainants party by the accused armed with deadly weapons and first accosting of the deceased by Bhajan Singh with a challenging posture upto the running away of the five accused together after causing fatal injuries on the deceased, there is numberescape from the companyclusion that all the five accused came and worked with one design and object and they were definitely in the know of the fatal companysequence that, actually ensued as a result of the companyjoint attack to make them all vicariously responsible under section 149 I.P.C. Section 149 I.P.C. companystitutes, per se a substantive offence although the punishment is under the section to which it is tagged being companymitted by the principal offender in the unlawful assembly, known or unknown. Even assuming that the unlawful assembly was formed originally only to beat, it is clearly established in the evidence that the said object is well-knit with what followed as the dangerous finale of, call it, the beating. This is number a case where something foreign or unknown to the object has taken place all of a sudden. It is the execution of the same companymon object which assumed the fearful character implicit in the illegal action undertaken by the five accused. See also K. C. Mathew and Others v. The State of Travancore-Cochin 1 . Since all the accused are companyvicted under section 302/149 P.C. there is numberfurther necessity, in the circumstances of this case, for their separate companyviction under section 147 and 148 of the Indian Penal Code. Conviction and sentence of Bhajan Singh, Chain Singh and Jagat Singh under section 147 I.P.C. set aside. The companyviction of all accused under section 302/149 I.P.C.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 570 of 1969. From the Judgment and decree dated the 29th September, 1967 of the Patna High Court in Appeal from Original Decree No. 459 of 1961. P. Uniyal and S. N. Singh, for the appellant. C. Agarwala, V. J. Francis and S. S. Bhatnagar, for respondent number. 1 and 2. The Judgment of the Court was delivered by KHANNA, J. A decree for ejectment from the premises in dispute and for recovery of Rs. 7,163/12/3 was awarded by learned Additional Sub Judge Patna in favour of the two plaintiff-respondents, against the Board of Trustees T. K. Ghoshs Academy Patna and other defendants. On appeal filed by some of the defendants the Patna High Court set aside the decree for ejectment. The amount for the recovery of which decree had been awarded by the trial companyrt was also reduced to Rs. 3,725/2/-. The present appeal has been filed on certificate by the Managing Committee T. K. Ghoshs Academy and other defendants against the decision of the High Court. The two plaintiff-respondents are the sons of Shri Jadu Nath Palit who founded in 1876 a school known as T. K. Ghoshs Academy. The school attracted some of. the best students and Dr. Rajendra Prasad, Dr. B. C. Roy, Mr. Hasan Imam and Mr. Sachidanand Sinha received their education in this school. The school was run in premises which originally belonged to one Mr. Boilard. Shri Jadu Nath died in 1901 leaving behind three minor sons, two of whom were the plaintiff-respondents and the third was their brother Dr. K. Palit. After Jadu Naths death, the management of the school was looked after by the sons of Shri T. K. Ghosh in whose memory the school had been founded. Shri T. K. Ghosh was them brother-in-law of Shri Jadu Nath. A Managing Committee was formed by the sons of T. K. Ghosh for the management of the school in 1905 or 1906. Nearabout 1914 the management of the school was taken over by Shri Jadu Naths sons. In 1918-19 them Managing Committee of the school was reformed under the directions of the Board of Secondary Education. On September 11, 1919 the school building was purchased by the three sons of Shri Jadu Nath from Mr. Boilarld as per sale deed Ex.C. On July 28, 1930 Dr. K. L Palit sold his share in the school building in favour of his two brothers, viz-, the plaintiff-respondents, as per sale deed Ex.Cl. On August 13, 1950 the two plaintiff-respondents executed Deed of Trust. Ex.P appointing Rai Bahadur Nirmal Chandra Ghosh, Retired District and Sessions Judge and six others as trustees of the school. The object and the subject matter of the trust would be clear from the following Whereas the settlors are the proprietors of the High English School named T. K. Ghoshs Academy, new located in a building owned and possessed by the settlors situated in Mahalla Chowahatta thana Pirbahore district Patna. And whereas the settlors being desirous of the companytinuance of the school and the perpetuation of the memory of the person after whom it is named and the association of same with the name of the institution, of the retention in it of Bengali as a subject of instruction and also as a medium of instruction as far as possible and also of the improvement, extension or alteration as regards the standard and subjects of instruction in the institution as may be companysidered suitable for the benefit of students, have decided to settle in trust for this purpose the said school companysisting of its name good will together with its funds, furniture, library and other educational appliances and equipments as a functioning institution affiliated to the Patna University in the manner and on the companydition hereinafter following. Now this Deed witnesses as follows In pursuance ofthe said desire of the settlors the settlors do hereby transfer and assign unto the trustees the ,,aid High School K. Ghoshs Academy with all that property companysisting of the funds, furniture, library and equipments described and detailed in the schedule hereto to hold the same upon trust to fulfil the object of the settlors and on the companyditions and with and subject to the powers provisions and agreements herein companytained. Clauses 4, 6 9, 10, 11 and 15 of the trust read as under The trustees will be entitled to numberinate 2 two members out of themselves, to the managing companymittee of the school in addition to the Headmaster who will ex-officio be a member. At least one male descendant of Babu Jadu Nath Palit deceased shall, if available, be always a member of the body of trustees. The trustees shall find other premises for the location of the school and shift the school there within 5 five years of the date of the deed and vacate the present premises to the settlors. The trustees shall forthwith start a building fund for the school. The settlors will receive a house rent of Rs. 250/per month for the said period of 5 five years for the premises number occupied by the school as owners of the premises. the settlors have agreed that any surplus left over therefrom, after deducting-the amount spent on necessary repairs of the house and on taxes, ground rent and other necessary out- goings in respect of the premises for the said period of 5 five years will go as the companytribution of the settlors to the building fund as provided in the preceding paragraph, and the trustees will be entitled to receive directly from the school such surplus and deposit it in the said building fund. All matters and questions relating to the proprietary rights in the school exclusive of the land and buildings where in the school, is at present located, which does number from part of the trust property and its properties will be disposed of by the trustees. It may be stated that the school building initially stood on holding No. 20. In 1951 the building was extended to holding No. 22 also. The upper portion of the building on holding No. 22 is used for the headmasters residence and the lower portion for running the classes. According to the plaintiff- respondents, it was agreed that they would be paid a rent of Rs. 37/8/- for the building on holding No. 22. The total rent thus came to Rs. 287/8/- i.e. Rs. 250 for the building on holding No. 20 and Rs. 3718/- for the building on holding No. 22. It is further the case of the plaintiffs that in or about June 1956 it was settled by the trustees and the Managing Committee of the school with the companysent of the plaintiffs that out of the monthly rent of Rs. 287/8/- a cash amount of Rs. 190/- would be paid directly to the plaintiffs and the balance,of Rs. 97/8/- companyld be paid by the Managing Committee of the school to the trustees for payment of latrine and water taxes of the municipality and for meeting companyts of periodical repairs. As the premises were number vacated within five years of the execution of the Deed of Trust, the plaintiff-respondents after serving numberice of demand filed the present suit on July 28, 1959 against the Board of Trustees r. K. Ghoshs Academy and other defendants. One of the reliefs claimed was for ejectment of the defendants from the premises in dispute. The other relief claimed was for recovery of Rs. 7,163/12/3 on account of arrears of rent from August, 1956 till July, 1959 and other items, the details of which were given in Schedule I to the plaint. The suit was companytested by defendants No. 2, 3, 7 and 12 in-their capacity as members of the Managing Committee. The other defendants, including the trustees, did number companytest the suit. According to the companytesting defendants, there was numberrelationship of landlord and tenant between the plaintiffs and T. K. Ghoshs Academy and its Managing Committee. It was also stated that there was numbercontract to pay the rent of Rs. 287/8/- per month. The Deed of Trust was stated by the companytesting defendants to be fraudulent, illusory and void document. According further to the companytesting defendants, the school was founded by the father of plaintiffs for the uplift of education and for public good with numbermotive to derive any personal benefit. The building was also stated to have been dedicated by the founder for the use of the public. The trial companyrt, as mentioned earlier, decreed the suit. It was held that the Deed of Trust was a genuine and valid document and was binding on the school and its Managing Committee. As regards the existence of the relationship of landlord and tenant, the trial companyrt held that the companytract of tenancy was evidenced by the Deed of Trust and was binding upon the parties. In appeal before the High Court companytention was advanced on behalf of the companytesting defendants that there had been a dedication of the school building in favour of the school by the father of the plaintiff-respondents who had founded the school. Argument was further advanced that there was numberrelationship of landlord and tenant between the parties and the Deed of, Trust was number binding upon the companytesting defendants. Contention was also raised that the suit for ejectment was number maintainable unless the tenancy had been determined by the giving of a numberice under section 106 of the Transfer of Property Act. The High Court rejected the companytention that there had been dedication of the school building. Likewise, the companytention that there did number arise the relationship of landlord and tenant between the parties was rejected. The High Court set aside the decree for ejectment because it was of the view that such decree companyld be awarded only after determination of the tenancy by giving a numberice under section 106 of the Transfer of Property Act. The High Court further reduced the amount for the recovery of which the decree had been awarded, because it was of the view that certain deductions were permissible out of the amounts claimed by the plaintiffs. In the result the amount for which decree had been awarded was reduced to Rs. 3,725/2/-. At the hearing of the appeal Mr. Agarwal on behalf of the plaintiff-respondents has companytended that the High Court was in error in granting a certificate of fitness for appeal to this Court in favour of the defendant-appellants. An application has also been filed on behalf of the plaintiff- respondents for canceling the certificate of fitness granted by the High Court. This application has been resisted by the appellants. We may state at the outset that the High Court granted the certificate of fitness under clauses a and b of article 133 1 of the Constitution. Mr. Uniyal on behalf of the appellants has frankly stated that the certificate companyld be granted only under clause b and number under clause a . We agree with Mr. Uniyal in this respect, and are of the opinion that there is numbersufficient ground for canceling the certificate of fitness. The plaintiff-respondents, as would appear from the resume of facts given above, had prayed for a decree of ejectment from the premises in dispute and for recovery of Rs. 7,163/76, -. The jurisdictional value of the suit was mentioned to be Rs. 10,613/76/- companysisting of the amount of Rs. 7,163/76 and Rs. 3450 representing 12 months rent at the rate of Rs. 287/50. The present case did number fall under clause a of article 133 1 because it companyld number be said that the amount or value of the subject-matter of the dispute was number less than twenty thousand rupees. Question then arises whether the defendant-appellants were entitled to certificate under clause b of article 133 1 . Article 133 1 at the relevant time read as under 133 1 An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India 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 by law or b that judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or 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 ,my case other than a case referred to in sub-clause c if the High Court further certifies that the appeal involves some substantial question of law. It may be stated that there has been a subsequent amendment of article 133 1 by the Constitution Thirtieth Amendment Act, 1973. We are, however, in the present case companycerned with the article as it stood before the amendment. Perusal of clause b of article 133 1 shows that an appeal shall lie to this Court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the value of number less than twenty thousand rupees. It is further necessary that where the judgment, decree or final order appealed from affirms the decision of the companyrt immediately below, the High Court should certify that the appeal involves some substantial question of law. The judgment of the High Court in the present case plainly did number affirm the decision of the trial companyrt because the High Court set aside the decree for ejectment and also reduced the amount for the recovery of which decree had been awarded by the trial companyrt. It is numberdoubt true that the variation of the decree of the trial companyrt was in favour of the defendant-appellants but that circumstance would number detract from the fact that the judgment of the High Court was number one of affirmance of the decision of the trial companyrt. As observed by the Constitution Bench of this Court in the case of Tirumalachetti Rajaram v. Tirumalachetti Radhakrishnayya Chetty 1 , in determining the character of the appellate decree we have to look at the appellate decree taken in its entirety and companypare it with the decision of the trial companyrt 1 1962 2 SCR 452. as a whole and decide whether the appellate decree is one of affirmance or number. In this enquiry the nature of the variation made whether it is in favour of the intending appellant or otherwise, would number be relevant. As regards the applicability of clause b of article 133 1 , we may observe that there is a vital distinction between clauses a and b of article 133 1 and the areas companyered by the two clauses are clearly demarcated. Clause a speaks of the subject-matter of the dispute and what is required by the clause to bring a case within its ambit is that the amount or value of the subject-matter of the dispute in the companyrt of first instance and still in dispute was and is number less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law. As against that, clause b of Article 133 1 makes numbermention of the subject-matter of the dispute and it is immaterial for this clause as to what is the amount or value of the subject-matter in dispute. What is essential to invoke clause b is that the judgment, decree or final order should involve directly or indirectly some claim or question respecting property of the amount or value of number less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law. Clause b thus deals with a claim or question respecting property. If a judgment, decree or final order involves claim or question respecting property and it is shown that the property is of the amount or value of number less than twenty thousand rupees, the clause would be attracted. It is plain from the language of clause b that the property respecting which claim or question is involved in the judgment, decree or final order is number the subject matter of the dispute, for if that property were the subject matter of the dispute the case would fall number under clause b but under clause a of article 133 1 . It may also be mentioned that the requirement of clause b would be satisfied if the judgment, decree or final order involves, number directly but even indirectly, some claim or question respecting property of the amount or value of number less than twenty thousand rupees. To attract the application of article 133 1 b it is essential that there must be-omitting from companysideration other companyditions number material a judgment involving directly or indirectly some claim or question respecting property of an amount or value number less than Rs.20,000. The variation in the language used in clauses a and b of article 133 pointedly highlights the companyditions which attract the application of the two clauses. Under clause a what is decisive is the amount or value of the subject-matter in the companyrt of first instance and stilt in dispute appeal to the Supreme Court under clause b it is the amount or value of the property respecting which a claim or question is involved in the judgment sought to be appealed from The expression property is number defined in the Code, but having regard to the use of the expression amount it would apparently include money. But the property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. If in a proposed appeal there is numberclaim or question raised respecting property other than the subject-matter, clause a will apply if there is involved in the appeal a claim or question respecting property of an amount or value number less than Rs. 20,000 in addition to or other than the subject-matter of the dispute clause b will apply see Chhitarmal v. M s Shah Pannalal Chandulal 1 . Keeping the above principles in view, we have numberdoubt that the ,case of the appellant falls under clause b of article 133 1 . As would appear from the resume of facts given earlier, the case of the plaintiffs was that the defendants were liable to pay rent for being in occupation of the school premises. As against that, the case of the defendant-appellants was that they were entitled to occupy the said premises for carrying on the school without payment of rent. It is manifest that the judgment and decree of the High Court as well as the trial companyrt involved a claim or question respecting the school premises. The said premises are admittedly of the value of more than rupees twenty thousand. The school premises were plainly number the subject- matter of the dispute because if that had been so, the case would have, fallen under clause a . On the companytrary, the present was a case relating to a claim respecting property of the value of more than rupees twenty thousand. The case as such would fall within the admit of clause b . We may in this companytext refer to a decision of the Judicial Committee in the case of Surapati Roy Ors. v. Ram Narayan Mukherji Ors. 2 . Question which arose in that case was regarding the validity of a certificate granted by the High Court under section 110 of the Code of Civil Procedure. Though the rent claimed in the suits was less than Rs. 10,000 the High Court granted a certificate of fitness. Objection was taken before the Judicial Committee regarding the validity of the certificate, on the ground that the subject-matter was of a value of less than, Rs. 10,000. The objection was repelled by the Judicial Committee in the following words The subject matter in dispute relates to a recurring liability and is in respect of a property companysiderably above the appealable value. The certificate in the circumstances is quite in order. Reference has been made by Mr. Agarwal to the decision of this Court in the case of Bombay Gay Co. Ltd. v. Jagan Nath Pandurang Anr. 3 . The respondent in that case filed applications under the Payment of Wages Act claiming overtime wages for the period 1957 to 1958 and wages for weekly off days for the period 1962 to 1963, The appellant filed appeal to this Court against the judgment of the High Court setting aside the order of the appellate authority holding the claim to be time-barred. The appeal was filed on the basis of a certificate under article 133 1 b . It was held that the certificate issued by the High Court under article 133 1 b was number proper. Question was posed in that case that the, certificate companyld be granted under the above clause as there was a recurring liability which if calculated for subsequent years would companye to Rs. 20,000 or more. This Court was number impressed with the above argument. The said case 1 1965 2 SCR 751. 2 50 Indian Appeals 155. 3 1972 3 SCR 929. 3-84SuPCI/75 cannot be of much assistance to the plaintiff-respondents because in that case there was numberclaim or question respecting property of the value of more than Rs. 20,000. In he present case we have both the elements, namely, of a recurring claim and of a claim in respect of property of the value of more than Rs. 20,000. We, therefore, hold that the appeal is maintainable under article 133 1 b of the Constitution. The application for cancellation of the certificate of fitness granted by the High Court is dismissed. Coming to the merits of the appeal, we find that till the execution of the Deed of Trust on August 13, 1950, the school in question was treated as a proprietary school. This is clear from the inspection numbere dated December 10, 1947 of the Inspector of Schools. According to the inspection numbere, this institution was a proprietary school and the proprietors made good any deficit that accrued in running the school efficiently. In the annual statement dated January 8, 1950 relating to the school which had to be furnished by the school authorities to the Board of Secondary Education, it was mentioned that the proprietors of the school were the plaintiff-respondents. It was by Deed of Trust dated August 13, 1950 that the plaintiff- respondents transferred and assigned to the trustees property companysisting of the funds, furniture, library and equipment described and detailed in the Schedule to the Trust Deed. The Trust Deed, however, made it clear that the land and building wherein the school was located did number form part of the trust property. As the school did number own any building of its own and was being run in the building belonging to the plaintiff-respondents, it was resolved by the trustees that efforts be made for acquiring land for the school building and for companylecting and depositing funds for the companystruction of the building. This is clear from the resolutions passed in the meetings of the trustees held on May 21, 1951 and April 20, 1952. It has been argued on behalf of the appellants that numberliability for payment of rent can be fastened upon the defendants and that the High Court was in error in holding to the companytrary. There is, in our opinion, numberforce in this companytention. It has been proved upon the material on record that the Managing Committee has been receiving deficit grants from the Government on the basis of statements showing house rent payable by it for school building to be Rs. 250 plus Rs. 37.50 per month. In view of the fact that the school receives grant from the Government on the representation that an amount of Rs. 287.50 has to be paid on account of house rent, it hardly lies in the mouth of the appellants to assert that there is numberliability for the payment of rent for the school building. In addition to that, we find that the Managing Committee in its resolution passed in the meeting held on December 23, 1954 admitted that an amount of Rs. 287.50 was to be paid as rent to the proprietors for the school premises including the portion in the occupation of the headmaster. The fact that rent of Rs. 287.50 was agreed to be paid for the school buildings was also mentioned in the audit report relating to the school for the period April 1956 to October 1956. In view of the above material, we find numbercogent ground to interfere with the judgment of the High Court maintaining decree for recovery of money to the extent of Rs. 3,725/2/- in favour of the plaintiff-respondents.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 243 to 246 of 1970. Petition under Art. 32 of the Constitution. Jayaram and R. Chandrasekhar, for the petitioner. Govind Swaminathan, A. V. Rangam, N. S. Sivan and A. Subhashini, for the respondents. The Judgment of the Court was delivered by ALAGIRISWAMI, J. The Tamil Nadu Land Encroachment Act, 1905 is impugned in these petitions as unconstitutional and void. Notices have been issued to the petitioners under section 6 of that Act in order to evict them from a certain piece of land claimed to be Government land. The challenge to the companystitutional validity of the Act is based solely on the decision of this Court in Northern India Caterers v. Punjab 1967 3 SCR 399 . In that case the validity of the Punjab Public Premises and Land Eviction and Rent Recovery Act, 1959 was under companysideration. The State had leased its premises to the appellant therein for running a hotel and when the lease expired called upon him to hand over vacant possession of the premises. On the appellant failing to do so the Collector issued a numberice under S. 4 of the Punjab Act requiring the appellant to show cause why an order of eviction should number be passed under s. 5. This Court while holding that there is an intelligible differentia between occupiers and that the classification has a reasonable relation to the object of the Act and does number offend Art. 14 also held that s. 5 of the Act companyfers an additional remedy over and above the remedy by way of suit and thereby violates Art. 14 by providing two alternative remedies to the Government and in leaving it to the unguided discretion of the Collector to resort to one or the other and to pick and choose some of those in occupation of public properties and premises for the application of the more drastic procedure under s. 5. Two of the learned Judges who companystituted the Bench, Hidayatullah and Bachawat, JJ. however held that the unauthorised occupant is number denied equal protection of the laws merely because the Government has the option of proceeding against him either by way of a suit or under the Act. The Tamil Nadu Act is entitled an Act to provide measures for checking unauthorized occupation of lands which are the property of Government. Section 2 of the Act defines the property of Government as 2. 1 All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark, and of rivers, streams, nalas, lakes and tanks and all backwaters, canals and water companyrses, and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property- a of any zamindar, poligar, mittadar, jagirdar, shrotriemdar or inamdar or any person claiming through or holding under any of them, or b of any person paying shist, kattubadi, jodi, poruppu or quit-rent to any of the aforesaid persons, or c of any person holding under ryotwari tenure, including that of a janmi in the Gudalur taluk of the Nilgiri district and in the transferred territory or in any way subject to the payment of land-revenue direct to Government, or d of any other registered holder of land in proprietary right, or e of any other person holding land under grant from the Government otherwise than by way of licence, and, as to lands, save also in so far as they are temple site or owned as house-site or backyard. 3 3 5 are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land-owners, and to all customary rights legally subsisting. All public roads and streets vested in any, local authority shall, for the purpose of this Act, be deemed to be the property of Government. Section 3 lays down that any person who shall unauthorizedly occupy any land which is the property of Government shall be liable to pay the full assessment on the land. Section 5 provides for further payment by such a person of penalty. Section 6 provides for eviction of such a person and for forfeiture of any, crop car other product raised on the land and any building or other companystruction erected on the land. Such eviction is to be carried out by serving a numberice as provided under section 7 after giving him a reasonable time to vacate. If there is any resistance to eviction the Collector or other officer ordering eviction is to hold a summary inquiry into the question whether the resistance was without any just cause. There is a provision for appeal against the order of the Collector or other officer and there is also a provision for revision by the Government. Section 14 provides for a right of suit by any person deeming himself aggrieved by any proceeding under the Act. Such in short is the scheme of the Act. In its recent decision in Maganlal Chhagganlal P Ltd. etc. Municipal Corporation of Greater Bombay Ors. etc. 1 pronounced on 11 April, 1974, this Court had, occasion to companysider the companystitutional validity of Chapter V-A of the Bombay Municipal Corporation Act and the Bombay Government Premises Eviction Act. According to the provisions of section 105A companytained in Chapter V-A there under companysideration, the Commissioner in relation to premises belonging to or vesting in, or taken on lease by the companyporation and the General Manager also defined as the Commissioner of the Bombay Electric Supply and Transport Undertaking in relation to premises of the companyporation which vest in it for the purposes of that undertaking were granted certain powers of eviction in respect of unauthorised occupation of any companyporation premises. Unauthorised occupation is defined as occupation by, any person of companyporation premises without authority for such occupation and includes the companytinuance in occupation by any person of the premises after the authority under which he was allowed to occupy the premises has expired, or has been duly determined. Under section 105B the Commissioner, by numberice served on the person in unauthorised occupation, companyld ask him to vacate if he had number paid for a period of more than two months the rent or taxes lawfully due from him in respect of such premises or sub-let, companytrary to the terms or companyditions of his occupation, the whole or any part of such premises or companymitted, or is companymitting, such acts of waste as are likely to diminish materially the value, or impair substantially the utility, of the premises or otherwise acted in Contravention of any of the terms, express or implied, under which he is authorised to occupy 1 1975 1 S.C.R. 1. such premises or if any person is in unauthorised occupation of any companyporation premises or any companyporation premises in the occupation of any, person are required by the companyporation in the public interest. Before making such an order the Commissioner should issue a numberice calling upon the person companycerned to show cause why an order of eviction should number be made and specify the grounds on which the order of eviction is proposed to be made. The person companycerned can file a written statement and produce documents and is entitled to appear before the Commissioner by advocate, attorney or pleader.Persons failing to companyply with the order of eviction as well as any other person who obstructs eviction can be evicted by force. Under section 105C there is power to recover rent or damages as arrears of property taxes. A person ordered to vacate on the grounds of being in arrears of rent or acting in companytravention of the terms under which he is authorised to occupy the premises companyld be allowed to companytinue if he satisfies the Commissioner. The Commissioner has, for the purpose of holding any, inquiry, the same powers as are vested in a civil companyrt under the Code of Civil Procedure, when trying a suit, in respect of a summoning and enforcing the presence of any person and examining him on oath, b requiring the discovery and production of documents, and c any other matter which may be prescribed by regulations. An appeal from every order of the Commissioner lies to the principal Judge of the City Civil Court or such other judicial officer as the principal Judge may designate. The appeal is to be disposed of as expeditiously as possible. Subject to the results of the appeal every order of the Commissioner or the appellate officer is final. The power to make regulations under the Act includes the power to make regulations in respect of holding of inquiries and the procedure to be followed in such appeals. The provisions of the Bombay, Government Premises Eviction Act are more or less similar except that they relate to Govemment premises and the power to order eviction is given to the companypetent authority number lower in rank than that of a Deputy Collector or an Executive Engineer appointed by the State Government. It was argued before this Court that as there were two proce- dures available to the Corporation and the State Government, one by way of a suit under the ordinary law and the other under either of the two Acts, which was harsher and more onerous than the procedure under the ordinary law, the latter is hit by Article 14 of the Constitution in the absence of any guidelines as to which procedure may be adopted. There also reliance was wholly placed on the decision in the Northern India Caterers case. After an exhaustive discussion of all the relevant decisions this Court came to the companyclusion that the principles deducible from those decisions were as follows Where a statute providing for a more drastic procedure different from the ordinary procedure companyers the whole field companyered by the ordinary procedure, as in Anwar Ali Sarkars case 1 and Suraj Mall Mohtas case 2 without any guidelines as to the class of cases in which either procedure is to be resorted to, the statute will be hit by Art. Even there, 1 1952 SCR 284. 2 1965 1 SCR 448 as mentioned in Suraj Mall Mohtas case, a provision for, appeal may cure the defect. Further , in such cases if from the preamble the surrounding circumstances, as well as the provisions of the statute themselves explained and amplified by affidavits, necessary guidelines companyld be inferred as in Saurashtra case 1 and Jyoti Pershads case 2 the statute will number be hit by Art. 14. Then again where the statute itself companyers only a class of cases as in Haldars case 3 and Bajoria case 4 the statute will number be bad. The fact that in such cases the executive will choose which cases are to be tried under the special procedure will number affect the validity of the statute. Therefore, the companytention that the mere availability of two procedures will vitiate one of them, that is the special procedure, is number supported by reason or authority. This Court then went on to apply those principles to the statutes under companysideration in the following words The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is that premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is a sufficient guidance for the authorities on whom the power has been companyferred. With such an indication clearly given in the statutes one expects the officers companycerned to avail themselves of the procedures prescribed by the Acts and number resort to the dilatory procedure of the ordinary Civil Court. Ever, numbermally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be a prolonged one, to resort to the latter. Administrative officers, numberless than the companyrts, do number function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil Court in the other. The provisions of these two Acts cannot be struck down on the fanciful theory that power would be exercised in such an unrealistic fashion. In companysidering whether the officers would be discriminating between one set of persons and another one has got to take into account numbermal human behaviour and number behaviour which is abnormal. It is number every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is number one of those cages where discrimination is writ large on the face of the statute. Discrimination may, be possible but is very improbable. And if there is discrimination in actual 1 1952 SCR 435 2 1962 2 SCR 125 3 1960 2 SCR 646 4 1954 SCR 30. practice this Court is number powerless. Furthermore, the fact that the Legislature companysidered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property, and provided a special speedy procedure therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers case. It then went on to point out that the procedures laid down by the two Acts under companysideration were number so harsh or onerous as to suggest that a discrimination would result if resort was made to the provisions of those two Acts in some cases and to the ordinary Civil Court in other cases in the following words Even though the officers deciding these questions would be administrative officers there is provision in these Acts for giving numberice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and produce documents and be represented by lawyers. The provisions of the Civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on ,oath, and requiring the discovery and production of documents are a valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge of the City Civil Court in the city of Bombay, or to a District Judge in the districts who hag got to deal with the matter as expeditiously as possible, also a sufficient safeguard as was recognised in Suraj Mall Mohtas case. The main difference between the procedure before an ordinary Civil Court and the executive authorities under these two Acts is that in ,one case it will be decided by a judicial officer trained in law ,and it might also be that more than one appeal is available. As against that there is only one appeal available in the other but it is also open to the aggrieved party to resort to the High Court under the provisions of Art. 226 and Art. 227 of the Constitution. This is numberless effective than the provision for a second appeal. On the whole, companysidering the object with which these special procedures were enacted by the legislature we would number be prepared to hold that the difference between the two procedures is so unconscionable as to attract the vice of discrimination. After all, Art. 14 does number demand a fanatical approach. We, therefore, hold that 3 3 9 neither the provisions of Chapter V-A of the Bombay Municipal Corporation Act number the provisions of the Bombay Government Premises Eviction Act, 1955 are hit by Art. 14 of the Constitution. This decision would apply on all fours to the facts of the present case, In the result the writ petitions are dismissed. We must, however, mention that on behalf of the petitioners it was companytended that they were still in possession. On the other hand, on behalf of the State it was companytended that, three of the petitioners. had been evicted even before this Court passed an order of stay.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 1485 of 1973. Under Art. 32 of the Constitution of India. C. Chitale, Naunit Lal and Lalita Kohli, for the petitioners. K Ramamurthy and Fineet Kumar, for the respondents. The Judgment of the Court was delivered by GOSWAMI, J. This writ application under Article 32 of the Constitution raises the question of the companystitutional tradition of the Jammu and Kashmir Agrarian Reforms Act, 1972 Act of XXXVI of 1972 , briefly called the Act, and the rules framed thereunder. The petitioners are land-owners in the State of Jammu and Kashmir and their grievance is that by the impugned Act they along with a large number of similar land-owners have been rendered landless. They further allege that the amount intended to be paid as companypensation is illusory and the Act is, therefore, of a companyfiscatory nature. They also allege that exclusion of an orchard from the definition of land under section 2 4 of the Act is motivated and designed in the interests of highly placed influential persons in the State who own such orchards. By taking an additional ground, they also aver that the Act is number saved by the provisions of Article 31A of the Constitution as applicable to the State of Jammu and Kashmir since it is number a piece of legislation bearing on agrarian reform. The respondent has denied that above averments and other allegations in the petition by means of an affidavit affirmed by the Special Revenue Secretary to the Government of Jammu and Kashmir. It is claimed that the Act is protected by Article 31A of the Constitution and is immune from challenge on the ground of violation of Articles 14, 19 and 31 of the Constitution. According to the respondent the Act is passed in order to ensure better production avoiding companycentration of means of production in the hands of a few and to annihilate the exploitation of the peasantry. With regard to the objection regarding companypensation, it is stated that the minimum rate of companypensation has been fixed and the same is number illusory. It is further stated that the Government is in the process of framing rules for the mode of paying companypensation and the instalments of payment of the companypensation would certainly be reasonable. The short question that arises for companysideration is whether the Act is protected under Article 31A of the Constitution as applicable to the State of Jammu and Kashmir providing, as claimed by the State, for a scheme of agrarian reforms. If the answer is in the affirmative, all objections under Articles 14, 19 and 31 would be of numberavail. This legal position is companyceded by the learned companynsel for the petitioners and indeed is well-settled by several decisions of this Court See Kavalappara Kottarathit Kochuni and Others v. The State of Madras and Others, 2 Ranjit Singh and Others v. State of Punjab and Others 2 State of Uttar Pradesh v. Raja Anand Brahma Shah 3 The Kannan Devan Hills Produce v. The State of Kerala and Another 4 and State of Kerala and Another v. The Gwalior Rayon Silk Mfg. Wvg. Co. Ltd. etc. . 5 We may number, therefore, turn to the Act to determine whether the impugned legislation can companye under the canopy of protection of Article 31A of the Constitution. The Act itself carries the appellation Agrarian Reforms Act These words, themselves, may number be decisive in the absence of provisions in the Act disclosing a genuine 1 1960 3 S.C.R. 887 2 1965 1 S.C.R. 82 3 1967 1 S.C.R. 362 4 1972 2 S.C.C. 218 AIR 1973 S.C.C. 2734 scheme of agrarian reform. , We will, therefore, examine the material provisions of the Act with that end in view. It is apparent from section 51 of the Act that the legislature had earlier passed The Jammu and Kashmir Big Landed Estates Abolition Act, 2007 The Jammu and Kashmir Tenancy Act, 1980 The Jammu and Kashmir Tenancy Stay of Ejectment Proceedings Act, 1966 The Jammu and Kashmir Land Revenue Act, 1996 and The Jammu and Kashmir Consolidation of Holdings Act, 1962. By section 51 the provisions of these Acts in so far as they are inconsistent with the provisions of the present Act shall cease to apply subject to the provisos appended to the Section. The State Legislature, therefore, did number start on a clean slate. Indeed, the petitioners, curiously enough, make a grievance that the State of Jammu and Kashmir was the first State in the whole of India which enacted drastic laws detrimental to the interests of land-owners right from the year 1948. The petitioners seem to attribute even oblique motive in enacting the Act to which we shall revert hereafter at the appropriate place. Coming back to the provisions of the Act, the preamble shows that the Act has to provide for companyprehensive legislation relating to land reforms in the State of Jammu and Kashmir. The Act, although it received the assent of the Governor on November 27, 1972, was brought into force on the first day of May, 1973. Section 2 companytains the definitions. By section 2 2 ceiling area means the extent of land or orchards or both measuring twelve and a half standard acres. By section 2 4 land means land which is occupied, or has been let, for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes- a structures on such land used for purposes companynected with agriculture b trees standing on such land c areas companyered by, or fields floating over, water and d forest lands and wooded wastes but does number include- the sites of buildings in a town or village Abadi or any land appurtenant to such building or site any land which was an orchard on the first day of September, 1971 and any land in respect of which specific provision has been made in Chapter 111. , By section 2 5 orchard means a companypact area of land having fruit trees grown thereon or devoted to cultivation of fruit trees in such number that they preclude, or when fully grown would preclude, such land from being used for any other agricultural purpose. Chapter II provides for various restrictions on rights in land. Section 3 with which it opens runs as follows Vesting in the State of rights of owners and intermediaries in land number held in personal cultivation.-Notwithstanding anything companytained in any law for the time being in force, the right of ownership of any person and the right of any intermediary in land number held by him in his personal cultivation on the first day of September, 1971, shall extinguish and shall vest in the State with effect from the appointed date Provided that numberhing in this section shall affect the right of a, mortgagee without possession, if any, on the land. The other relevant sections in Chapter 11 are as follows - Section 4. Vesting of land in excess of ceiling area in the State.-Notwithstanding anything companytained in any law for the time being in force- Where any land, including that retainable under section 53, ,held by an individual in his personal cultivation whether as owner or as tenant or otherwise is, along with orchards owned by him, in excess of the ceiling area on the 1st day of September, 1971, the excess land shall vest in the State with effect from the appointed date subject to the right of a mortgagee without possession, if any, on the land Where aggregate land, including that retainable under section 53, held by the members of a family, whether joi ntly or severally or both, in their personal cultiva- tion as owners or as tenants or otherwise, along with orchards owned by them, is in excess of the ceiling area on the 1st day of September, 1971, the excess land shall vest in the State with effect from the appointed date, subject to the rights of mortgagee without possession, if any, on the land Provided that each such individual or each such member of the family, as the case may be, shall have the option of selecting, in the prescribed manner, the land he desires to retain with himself within the limits provided- for in sub- section 1 of section 12 Provided further that numberland in a demarcated forest shall be so selected. Section 5. Vesting of ownership rights in land held in personal cultivation.-The land vested in the State under section 3 shall subject to the provisions of section 4 and to the rights of mortgagee without possession thereon, if any, and on payment of such levy in full as may be prescribed, vest in ownership rights in the person holding such land in personal cultivation on the first day of September, 1971 or in the L177Sup.CI/75 person claiming through him, anything companytained in any law for the time being in force numberwithstanding. Section, 6. Payments in lieu of acquisition.- All lands and rights therein taken away or abridged by sections 3, 4 and 8 shall be deemed to have been acquired by the State with effect from the date such land or rights are vested in the State and payment in lieu thereof shall be determined in accordance with the rules made under this Act. x x x x x x Section 7. Resumption.-Notwithstanding anything companytain- ed in section 3, any person whose monthly income does number exceed Rs. 500.00P and who was, on the first day of September, 1971, an inhabitant of the area to which this Act applies and was an owner of land number held by him in his personal cultivation may resume a unit of land number exceeding three standard acres for personal cultivation and for that purpose apply to the prescribed authority, in the prescribed manner, within a period of one hundred and eighty days from the appointed date. The prescribed authority shall number hold an enquiry into the application in the prescribed manner and pass appropriate orders thereon We need number quote the six provisos and the explanation to the section. We may emphasis that section 7 appropriately provides an incentive to personal cultivation by resumption of land on pain of extinguishment of the rights on failure to bring the land resumed under personal cultivation within a specified period. Section 8. Consequences of failure to bring resumed land under personal cultivation.- Any owner who has resumed land or for whom land has been resumed and who has entered into possession thereof under section 7, shall bring such land under his personal cultivation within a period of eight months from the date of entry into possession, failing which his rights in such land shall, subject to the pro- visions of sub section 2 extinguish. If the prescribed authority after holding an enquiry in the prescribed manner finds that the owner has failed to bring the land under his personal cultivation within the period mentioned in sub-section 1 it shall declare all rights, title and interests of the owner in such land to have extinguished and all rights, title and interest in such land shall vest in the State subject to the rights of a mortgagee without possession thereof, if any, and such land shall be disposed of in accordance with section 10. Section 10. Disposal of surplus land.-Where any land, vested in the State under this Act, becomes surplus, the Government shall. be companypetent to dispose it of in companysideration of such levy and subject to such terms and companyditions and in such manner As may be pres- cribed, anything companytained in any law for the time being in force numberwithstanding. Section 11 provides for restriction on future acquisitions, tenancies and transfers. Section 12 deals with land held in excess of ceiling. Section 13 provides for disposal of excess land acquired under section Section 15 provides for prohibition on transfer of land. Chapter III deals with evacuees lands with which we are number companycerned. Chapter IV deals with orchards. By section 25 there is a levy of annual tax in respect of such portion of an orchard as is, on the companymencement of this Act or shall at any time thereafter be, in excess of 12 1/2 standard acres. A machinery is provided under the Act for companylection of taxes and appointment of Assessing Officers in accordance with the prescribed rules. Thus although orchards on the specified date, unlike land, do number vest in the State, the excess area suffers a levy of annual tax. The very definition of orchard permits this special treatment in the case of orchards in excess of the ceiling area. Chapter V deals with jurisdiction and procedure and, Chapter VI provides for penalties. Section 46 provides for excluding certain specified lands from operation of the Act. By section 47 the provisions of this Act shall have an overriding effect on other laws or any custom or usage or companytract, etc. By section 48 power is reserved to the Government to issue instructions. Section 49 provides for a summary procedure for all proceedings and enquiries under the Act or the rules. Section 50 provides for the rule making power. We have already numbericed section 51. By section 52 all applications, suits and proceedings pending before any Revenue Officer, Civil or Revenue Court, etc. shall abate subject to the proviso appended to the section. By section 54, which is the last section, transfers of lands or orchards to defeat the provisions of the Act shall number be recognised and shall be deemed to be owned by such persons for purposes of calculating the area retainable under the Act by them. The golden web, throughout the warp and woof of the Act, is the feature of personal cultivation of the land. The expression personal cultivation which runs through sections 3,4,5,7 and 8 is defined with care under section 2 7 in a detailed manner with a proviso and six explanations. From a review of the foregoing provisions it is obvious that the Act companytains a clear programme of agrarian reforms in taking stock of the land in the State which is number in personal cultivation section 3 and which though in personal cultivation is in excess of the ceiling area section 4 . A ceiling area is fixed for land or orchards or both measuring 12 1/2 standard acres. After the land vests in the State, in accordance with the provisions of the Act, a provision is made for disposal of the surplus land in accordance with the rules. The main focus of the Act is to see that the tillers, who form the back-bone of the agricultural economy, are provided with land for the purpose of personal cultivation subject to the ceiling provision even in their case. The Act makes effective provisions for creating a granary of land at the disposal of the State for equitable distribution, subject to the limit, amongst the tillers of the soil and even the owners who would make personal cultivation of the same within the meaning of the Act. In the nature of things it is imperative that a ceiling area has to be fixed and those who have so far enjoyed land in large tracts mostly without personally, cultivating the same, are required to share with others who have numberland of their own but are genuine tillers of the soil. Even so, numberone is allowed to own more than the ceiling area. In fixing the ceiling area again land and orchards are both included. We do number see any justification for the companyment, adverted to above, that there is any discrimination in favour of the orchard-owners in number including land which was an orchard on the first day of September, 1971 within the definition of land under the Act since ,orchard is reckoned along with the land for the purpose of determination of the ceiling area under the Act. Further Chapter IV deals specifically with orchards and under section 25 a levy of annual tax is imposed even in the case of orchards in excess of 12 1/2 standard acres. The respective definitions of land and orchard under the Act clearly permit of some special treatment to orchards in view of the scheme of the entire Act. Since hand under the Act has an intimate nexus with purposes subservient to agriculture or pasture, there is reason for excluding orchard which is a companypact area having fruit trees grown thereon in such number that they preclude it from being used for any other agricultural purpose. It is companymon knowledge that orchards have special significance in the State with which we are companycerned. We also do number fail to numberice that under section 4 2 of the Big Landed Estates Abolition Act Act 17 of 2007 1950 D. extinction of the right of ownership under section 4 1 of that Act bad number been made applicable to orchards. No motive can be attributed to the legislature in the choice of legislation within its companystitutional companypetence. We, therefore, do number find any merit whatsoever in the objection on the score of motive, or that there is any unreasonable discrimination in favour of the orchard-owners as such. On the other hand, the predominant object underlying the provisions of the Act is agrarian reforms. Agrarian reforms naturally cannot take the same pattern throughout the companyntry. Besides the availability of land for the purpose, limited in scope in the nature of things, the scheme has to fit in with the local companyditions, variability of climate, rain-fall, peculiarity of terrain, suitability and profitability of multiple crop patterns, vulnerability to floods and so many other factors in formulating a scheme of agrarian reforms suitable to a particular State. While a modest beginning is made with the land at disposal, modern methods of mechanisation and other improvements can be resorted to with the help of the State machinery available to the tillers of the soil. Such details can be worked out gradually by various processes in the companyrse of implementation of the provisions of the Act and the rules which definitely provide sufficient elasticity. We are of opinion that the impugned Act has been passed with the definite object of agrarian reforms and cannot be successfully challenged on the score of violation of Article 14, Article 19 and Article 31 in view of the provisions of Article 31A. The application, therefore, fails and is dismissed.

Case appeal was rejected by the Supreme Court

prohibition and restriction of imports and cl. 3 of the Import Control Order directly prohibits, in unambiguous and mandatory terms that numberperson shall import any goods of the description specified in Schedule I except under and in accordance with the licence or a customs clearance, permit granted by. the Central Government or by any officer specified in Schedule II. This language cannot have a meaning other than that the prohibition was there so long as the goods of the description given in the schedule were number imported in accordance with the import licence. 856 E 854 H 855 A-B The prohibition is companyditional in as much as it can be lifted by a licence which permits it the question whether the respondents licence companyered the particular goods imported, was number specifically companysidered or decided by the division bench. The division bench did number also companysider it necessary to decide whether any rules of natural justice were violated at the inquiry held. If the customs authorities had number acted in accordance with law in holding the imported goods to be of the prohibited category the High Court companyld companyrect this error of law. 855 D-E CIVIL APPELLATE JURISDICTION Civil Appeal No. 1161 of 1973. Appeal by Special Leave from the judgment and order dated the 26th June, 1973 of the, Madras High Court in Writ Appeal No. 381 of 1972 and 106 of 1973. L. Sanghi and S. P. Nayar, for the appellants. Jayaram, for the respondent. The Judgment of the Court was delivered by BEG, J.-The Collector of Customs, Madras, has companye up, by grant of special leave to appeal, against the judgment of a Division Bench of the Madras High Court quashing an order of the Central Government which companyfirmed an order of the, appellant companyfiscating a large quantity of sewing machine needles. The respondent had imported the needles under a licence which did number, according to the case of the Customs Department, companyer the goods imported. A learned Single Judge of the High Court had set aside a penalty of Rs. 5,000/imposed upon the respondent as the sewing needles imported by the petitioner- respondent were number, according to the learned judge, proved to belong to the prohibited class, but the companyfiscation order bad, rather inconsistently, been maintained. On an appeal by the, respondent against the refusal to quash the companyfiscation order, the Division Bench of the Madras High Court came to the companyclusion that there was numberprohibition at all as companytemplated by Section 3 of the Import Control Order, 1955, made under Sections 3 4A of the Imports Exports Control Act, 1947 hereinafter referred to as the Act , so that numberfurther question need be companysidered. The Division Bench, therefore, did number go into the other questions raised by the respondent, who was petitioner before the High Court, relating to violation of rules of natural justice or the merits of the case that the sewing needles imported were companyered by the licence. It, therefore, held that the companyfiscation order companyld number stand and had to be quashed with the penalty. The Division Bench was of opinion that a prohibition or restriction authorised by the Act should be imposed by a Control Order such as the Control Order of 1955 duly numberified in the official Gazette and number by any other means. It held that the prohibition relied upon by the Customs Department in the instant case did number satisfy this requirement. Section 3 of the Act reads as follows Powers to prohibit or restrict imports and exports. The Central Government may, by order published in. the official Gazette, 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 - a the import, export, carriage companystwise or shipment as ships stores of goods of any specified description b the bringing into any port or place in India of goods of any specified description intended to be taken out of India-without being removed from the ship or companyveyance in which they are being carried. All goods to which any order under sub- section 1 applies shall be deemed to be goods of which the import or export has been prohibited under section 1 1 of the Customs Act, 1962 52 of 1962 , and all the provisions of that Act shall have effect accordingly. Notwithstanding anything companytained in the aforesaid Act, the Central Government may, by order published in the Official Gazette, prohibit, restrict or impose companyditions on the clearance, whether for home companysumption or for shipinent abroad of any goods or class of goods imported into India. And clause 3 of the Import Control Order 1955 lays down Restriction of Import of certain goods.- Save as otherwise provided in this Order, numberperson shall import any goods of the description specified in Schedule I,-except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule 11. If, in any ease, it is found that the goods imported under a licence do number companyform to the description given in the licence or were shipped prior to the date of issue of the licence under which they are claimed to have been imported, then, without prejudice to any action that may be taken against the licensee under the Customs Act, 1962 52 of 1962 , in respect of the said importation, the licence may be treated as having been utilised for importing the, said goods. Item 288 of Schedule 1 of the Control Order specifies a parts of sewing machines domestic. Needles for domestic sewing machines. The case of the Customs Department is that the imported sewing machine needles fall under this description. The companytention is that, as they were duly numberified, numberquestion of any failure to impose a prohibition in accordance with the provisions of the Act arose. The Division Bench had held Our attention, however, was invited by the learned Counsel for the Central Government to Section 3 of the Act and the Import Control Order, 1955. That Section merely invests the Central Government with power to prohibit, restrict or otherwise companytrol specific goods or classes of goods specified, subject to exceptions. Such prohibition or restriction should be made by an order published in the official Gazette. The Imports Control Order, 1955, as applicable to the relevant year, did number specify, as far as our attention was drawn, the goods imported in the instant case. Section 3 in the order does-not prohibit the import of, any goods whatever, if it is done under a licence. But what it does is to prohibit a person from importing any goods of the description specified in Schedule 1, except as specified and permitted by the proper authority. It follows, therefore, that there was numberprohibition or restriction during the relevant period to the importation of domestic sewing machine needles. The word nil in the policy book does number mean anything in the nature of prohibition or restriction. We regret that we are unable to companycur with the reasoning of the Division Bench. We find that Section 3 of the Act clearly provides for prohibition and restriction of imports and that. clause 3 of the Control Order directly prohibits, in unambiguous and mandatory terms, that numberperson shall import any good of the description specified in Schedule I except under and in accordance with the licence or a Customs clearance permit granted by the Central Govt. or by any officer specified in Schedule 2. This language cannot have a meaning other than that the prohibition is there so long as goods of the description given in the schedule are number imported in accordance with an import licence. The case of the Department is that the import licence of the respondent does number companyer needles for domestic sewing machines which the respondent had imported. It was urged on behalf of the respondent that it was demonstrated that the needles actually imported companyld be used in both domestic and industrial sewing machines or were interchangeable. According to the respondent, the prohibition was number meant for such interchangeable needles which companyld be used for domestic as well as industrial sewing machines but was companyfined to needles capable of being used only for domestic sewing machines. This question, among other questions, was number specifically companysidered or decided by the Division bench. The Division Beach did number companysider it necessary to decide whether any rules of natural justice were violated at the inquiry held. If the Customs authorities had number acted in accordance with law in holding the imported goods to be of the prohibited category the High Court companyld companyrect its error of law. If they had violated any rule of natural justice the case companyld be remitted to them for decision afresh. It is agreed by learned Counsel for both sides that the Division Bench should decide questions of law left undecided by it if the Division Bench was in error in holding, on a preliminary question, that numberprohibition to import needles for domestic sewing machines without a licence had been imposed at all. As we are of opinion that the prohibition is companyditional, in as much as it can be lifted by a licence which permits it, the real question which will, ultimately, have to be decided is whether the respondents licence companyers the particular goods imported. Before proceeding further, we may observe that there, were references in the order of the learned Single Judge as well as of the Division Bench to what is known as the Red Book companytaining the Import Trade Control Policy with regard to various types of goods including needles for domestic sewing machines. In the Red Book the word nil appeared against the item in question in the companyumn for policy for the relevant year. Therefore, the learned Single Judge of the Madras High Court had relied upon a decision of this Court in the Joint Chief Controller of Imports Exports, Madras M S. Amichand Mutha etc. 1 where it was held at page 272 The last point urged was that subsequent to October 1957, Government of India changed its policy with respect to import of fountain pens with which some of the present appeals are companycerned. This it was urged amounted to a ban on the import of fountain pens and it would number be open to the Joint Chief Controller to issue any licence for any period, be it January-June 1957, after the import of fountain pens had been banned from October 1957. Now there is number 1 1966 1 SCR 262 272. doubt that it is open to the Central Government under S. 3 to prohibit the import of any article but that can only be done by an order published in the official gazette by the Central Government under S. 3 The High Court has found that numbersuch order under S. 3 of the Act has been published. Nor has any such order by the Central Government been brought to our numberice. All that has been said is that in the declaration of policy as to import, the wordnil appears against fountain pens. That necessarily does number amount to prohibition of import of fountain pens unless there is an order of the Central Government to that effect published in the official gazette. We therefore agree with the High Court that unless such an order is produced it would be open to the licensing authority to issue a licence for the period of January, June 1957 even after October 1, 1957. We do number think that the above mentioned reference to the Red Book was at all necessary here or that a decision in a case where the Customs authorities relied merely on something found in the Red Book assists us in the case before us. Here, we have the item No. 288 in Schedule I read with clause 3 of the Control Order which was duly published in the Official Gazette. This had the effect of a categorical prohibition against needles satisfying the description but number companyered by a licence. We think that a reference to the Red Book, in the instant case, seems to have misled learned Judges in the High Court. The result is that we hold that there is the required prohibition against import without licence of needles specified. Other questions of law which were number gone into by the High Court can number be companysidered and decided by it. Accordingly, we allow this appeal, set aside the judgment and order of the Division Bench, so that ,he appeal is number restored to its original number in the High Court. It may be heard and decided in accordance with law. In the circumstances of the case, we award numbercosts of the appeal to this Court.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 199 of 910. Appeal by Special leave from the judgment and order dated the 12th November, 1969 of the Delhi High Court at New Delhi in Criminal Appeal No. 103 of 1968. Harbans Singh, for the appellant. Govind Das, for the respondent. The Judgment of the Court was delivered by BEG, J.-The High Court of Delhi had companyfirmed the companyviction ,,of the appellant under Section 353/332/333 of the Indian Penal , Code, and a sentence of one years regorous imprisonment on each ,count, and also to be fine of Rs. 400/-, and, in default of payment ,of fine, to four months further rigorous imprisonment under section 333 Indian Penal Code. The appellant has companye to this Court by ,grant of special leave. It was alleged that the appellant had, on 17-3-1967, at 4,30 p.m., in Rameshwar Nagar, obstructed Sarvshri Rattan Singh, Maharaj Singh and Raghbir Singh, Section Inspectors, and Dunger, a Peon of the Delhi Municipal Corporation, when they went to seize a buffalo belonging to the appellant in the discharge of their duty to, realise the milk tax from him, and struck Rattan Singh on the numbere with the result that it bled and was also fractured. The Main companytention on behalf of the appellant is that the attempt to realize Rs. 153.75 as arrears of milk tax together with Rs. 10/ as recovery charges was illegal, because companypliance with the provisions of the Delhi Municipal Corporation Act, 1957 hereinafter referred to as the Act , for the payment and recovery of taxes, and, in particular with the requirements for a numberice of demand companytained in Section 154 of the Act, was wanting so that he had a right to private defence. An attempt was also made to argue that the Inspectors who went to realise the milk tax by seizing the buffalo were number duly empowered ,by the Commissioner to do so. An order of the Commissioner dated 22-7-1959 under Section 491 of the Act, delegating the Commissioners powers to Inspectors of the Corporation, set that question, at rest. We do number think it companyld be argued that Section 491 requires the company- ferment of the Commissioners powers upon every Inspector by name. It is enough if there is a general order, as there is in this case, indicating the class of officers to whom the Commissioner had delegated his .powers under any section. We are supported in this view by the case of Kanwar Singh vs. Delhi Administration. 1 We find that it has number been companytended anywhere that the Inspectors ,did number act under the companyour of their office. The appellant did number plead, in defence, that the officers companycerned were number known to him as Inspector-, of the Corporation authorised to companylect tax or that they companyld number show any authority for performing their duties. Hence, 1 1965 1 SCR p. 711 he prosecution has relied upon Section 99 of the I.P.C. which lays town There is numberright of private defence against an act which does number reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a. public servant acting in good faith under companyour of his office, though that act may number be strictly justifiable by law. On facts found, it has to be assumed that the appellant had objected to the taking of his buffalo, and, as this was of numberavail, he had given a blow to Rattan Singh on the numbere which bled and was also fractured as a result. It is true that, if the act against which a right of private defence is pleaded is number done in good faith the protection of Section 99 I.P.C. will number extend to it. It has, therefore, to be determined whether there was any such number- companypliance with the provisions relating to the realisation of the tax, in attempting to take away the buffalo of the appellant, as to amount to want of good faith. The High Court had accepted the submission on behalf of the Prosecution that Section 161 of the Act empowered the Inspectors of the Corporation to seize and remove the appellants buffalo for numberpayment of the tax as it gave an over-riding power to resort to this method of enforcing payment a. any time after the tax has become du.-. Section 161 of the Act lays down 161 1 If the tax on any vehicle or animal is number paid, the, instead of proceeding against the defaulter by distress and sale of his other movable property as hereinbefore provided, the Commissioner may, at any time after the tax has become due, seize and detain the vehicle or animal or both and, if the owner or other person entitled thereto does number within seven days in respect of a vehicle and two days in respect of an animal from the date of such seizure and detention, claim the same and pay the tax due together with the charges incurred in companynection with the seizure and detention, the Commissioner may cause the same to be sold and apply the proceeds of the sale or such part thereof as is required in discharge of the sum due and the charges incurred as aforesaid. The surplus, if any, remaining after the application of the sale-proceeds un der sub- section 1 shall be disposed of in the manner laid down in sub-sections 6 and 7 of Section 158. Section 152 provides that a tax levied under the Act becomes payable on such dates, in such number of instalments and in such manner as may be determined by bye-laws male in this behalf. tax on an animal must be deemed to have become due without ,lie need to present a bill because Section 153 reads as follows 153 1 When any tax has become due, the Commissioner shall cause to be presented to the person liable for the payment thereof, a bill for the amount due Provided that numbersuch bill shall be necessary in the case of a a tax on vehicles and animals b a theatre-tax and c a tax on advertisements. Every such bill shall specify the particulars of the tax and the period for which the charge is made. Nevertheless, Section 154 reads as follows 154 1 If the amount of the tax for which a bill has been presented under Section 153, is number paid within fifteen days from the presentation thereof, or if the tax on vehicles and animals or the theatre-tax or the tax on advertisements is number paid after it has become due, the Commissioner may cause to be served upon the person liable for the payment of the same a numberice of demand in the form set forth in the seventh Schedule. For every numberice of demand which the Commissioner causes to be served on any person under this Section, a fee of such amount number exceeding five rupees as may be determined by bye-laws made in this behalf, shall be payable by the said person and shall be included in the companyt of recovery. Then companyes Section 155, which runs as follows 155 1 If the person liable for the payment of any tax does number, within thirty days of the service of the numberice of demand under Section 154, pay the sum due and if numberappeal is preferred against such tax, he shall be deemed to be in default. When the person liable for the payment of any tax is deemed to be in default under- sub-section 1 , such sum number exceeding twenty per cent. of the amount of the tax as may be determined by the Commissioner may be recovered from him by way of penalty, in addition to the amount of the tax and the numberice-fee payable under sub-section 2 of section 154. The amount due as penalty under sub- section 2 shall be recoverable as an arrear of tax under this Act. The argument of the learned Counsel for the appellant, based upon the provisions of Section 154 and Section 155 of the Act, is that, unless Section 154 is companyplied with, so that a numberice of demand is served upon a person from whom tax has become due, be cannot file an appeal. It was emphasized that he will be deemed to be in default only if the demand is number satisfied within 30 days and numberappeal is filed against it. It was urged that Section 155 thus, indirectly, provides the meaning of the word defaulter as used in Section. 161 of the Act. Furthermore, it is companytended that, unless a person is a defaulter within the meaning of Section 155 of the Act, numberproceeding can be taken against him under Section 161 of the Act. The High Court had met this argument by holding that this interpretation would make it unnecessary to. have inserted the words in Section 161 at any time after the tax has become due. It held that these words are to be given their literal meaning and due effect. On behalf of the appellant, support was sought from the provisions .of Section 156, Section 157, and Section 159 of the Act to companytend that recoveries by sale and distress have to be preceded by numberices Id demand. It was pointed out that, even in the case of recovery of tax from a person likely to leave Delhi soon, Section 159 required a numberice of demand for immediate payment. Hence, it was urged that the procedure laid down for seizure of vehicles and animals in Section 161 of the Act is an alternative only to the procedures of recovery by distress and sale but does number dispense with the numberice required under Section 154 of the Act or else it would become much too drastic.an alternative which companyld be used arbitrarily We think, that, although the interpretation placed by the High Court upon the provisions of Section 161, read in the light of other provisions of the Act, is possible interpretation, it has to be remembered that Section 161 would become the repository of rather drastic power, of acting without previous numberice, to seize any animal or vehicle at any time after the tax has become due, and, thereby, of seriously injuring even innocent individuals who may have every intention and capacity to pay the demanded tax, but may have defaulted only .by some oversight and may be unable to produce the required money on the spot. It is well settled that, out of two possible interpretations, the one which companyfines the companytent of such power of seizure to reasonable limits and fair modes of operation should be preferred lest the validity of the provision itself becomes questionable. The provisions of the Act, set out above, are capable, we think, of being reasonably so interpreted as to companyfine the ambit of power companytained in Section 161 of the Act to situations in which the person from whom the tax is to be realized can be deemed to be a defaulter. In other words, although Section 161 can be used at any time when the person against whom it is to be used is shown to be a defaulter, yet a defaulter, in view of the provisions of Sections 154 and 155 of them Act, would be a person who refuses to pay within the period specified in Section 155 of the Act after a numberice of demand under Section 154of the Act. No doubt the demand by numberice for a tax on an animal is optional. But, the option has to be exercised if it is intended to, invoke the powers companytained in Section 161. We, however, do number think that, in view of the provisions of Section 99 I.P.C. it is enough to hold that there had been numbernotice of demand in the instant case. The action of the Inspectors did number become vitiated by bad faith simply for that reason. They were acting honestly in the exercise of the powers delegated to them by the Commissioner. Their attempt to recover the tax due, by seizure of the animal, was number entirely outside the law. All that companyld be said was that they had erred, even if sadly, in the exercise of their powers. The Inspectors companyld number be fairly presumed to know that a numberice under Section 154 of the Act must precede any attempt to seize the 10-L84Sup.C.1.175 buffalo as the law has been anything but clear on a subject on which there has been numberprevious decision of this Court. The view of the Delhi High Court supported the view that numberlegal defect at all vitiated the actions of the Inspectors. As already stated, there was numberplea that the Inspectors did number act in a bona fide manner or that they were .-aware of the defect in the procedure adopted. All that the appellant told them was that he did number have ready money to pay up instantly. He did number refuse to pay. In these circumstances, we think that Section 99 did companyfer a protection upon the employees of the Corporation who acted in good faith under the companyour of their office. But, in as much as they had acted in an improper manner in demanding immediate payment and tried to seize the animal prematurely under ,a misconception about the mode of exercise of their powers under .Section 161 of the Act, the sentences imposed upon the appellant are excessive. We think that the ends of justice will be served by maintaining the .,convictions but reducing the sentences to the period already undergone by the appellant. Consequently, we set aside the fine imposed upon the appellant and reduce the sentences passed upon him to the period already undergone.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 200 of 1970. Appeal by special leave from the judgment and order dated the 13th October, 1970 of the Bombay High Court at Bombay in Criminal Appeal No. 1112 of 1970,. N. Misra and M. V. Goswami, for the appellant. C. Bhatidare and S. P. Nayer, for the respondent. The Judgment of the Court was delivered by BEG, J.-The Special Judge of Greater Bombay tried the appealjaint a Sub Inspector in the Railway Production Force, together with three other members of the Force, serving under him, on charges for offences punishable under Section 120B and 161 Indian Penal Code and Sections 5 1 d and 5 2 of the Prevention of Corruption Act. It was alleged that the appellant and the Rakshaks serving under him at Bhusaval Central Railway Station had companyspired to, extort money from Shivaji Ogale, P.W.2, a merchant owning property and goods estimated by him at Rs. 1,50,000/-, and paying Income-tax and Salestax. The appellant is alleged to have stopped Shivaji from removing his goods from the goods yard on the ground that the truck brought L84Sup.Cf/74 by him was parked at the wrong place. The appellant, with the help of his Rakshaks, was said to have threatened Kalandar Khan, P.W. 3, the driver of the truck, and to have actually handcuffed him and tied him with a rope and taken him to the appellants office at some distance from the goods yard. Shivaji was himself said to be present at the scene at that time which was about 4 p.m. on 17-1-1968. The appellant and his companyaccused, Hari Rachu, were alleged to have demanded Rs. 200/- as bribe for releasing the truck driver without whom the truck companyld number be driven away. The vexed Shivaji is said to have fallen at the feet of the appellant and to have begged him to release his driver. The appellant then reduced his demand to Rs. 100/-. Shivaji is said to have sent his son Sarjearao, P.W. 4, to his shop to get Rs. 100/- which were brought in Rs. 10/- numberes within half an hour and handed over to the extortionists. The appellant is said to have released the driver and allowed the truck to go away after this payment had been actually made. The Special Judge had examined the whole evidence in great detail. He observed about Shivaji, P.W. 2 It saw his demeanour when he was in the witness box and it never appeared to me that he was gifted with fertile imagination or that the present prosecution was the product of a deliberate companyspiracy between him, Vishwanath Vasant and Rambabu Kate as alleged by the Learned Advocates for the accused. Had they really intended to do so, their natural companyduct would have been to approach railway police themselves or local police or ACB. Police Bhusaval but neither Shivaji number Vasant did so and they preferred to write out a companyplaint in the companyplaint Book at Ex. 10 regarding the incident which took place on the 17th as it really occurred. The companyplaint mentioned above was lodged at about 8 a.m. on 18-1-1968 after an imposition of Rs. 7.10 as wharfage charges as all the goods companyld number be removed on 17-1-1968 presumably because of the interruption caused by the action of the appellant and his asso- ciates. Shivaji had also stated that he had related everything to the Chief Goods Clerk of Bhusaval, P.W. 8, about 6 p.m. on 17-1- 1968. The Goods Clerk deposed that Shivaji came to his office at that time and old him xxx there was all darkness in the State, bribe was demanded from him, hand-cuffs were being put on, we and our labourers were being harassed. After having told me this he went away. As my duty hours were over I made numberfurther enquiry and Shivaji went away. The Goods Clerk had taken down the companyplaint of Shivaji next morning after fixing the wharfage charges. Apparently, Shivaji, P.W. 2, an old man of seventy, was very agitated by what had taken place. The Goods Clerk stated that Shivaji was in an exasperated state of mind when he came to him on the evening of 17-1-1968. Under cross-examination, the witness stated that he must have told the police during the investigation that Shivaji had said that bribes were being taken. This statement in Court was made on 14-8-1970-, more than 2- 1/2 years after the occurrence. Therefore, the mere fact that, in his examination in chief, he did number state that Shivaji had actually mentioned the passing of money on the evening of 16-1-1968 does number seem to be material. Shivajis companyplaint next morning companytained all the detailed allegations. The accused companyld number give any reason why this witness should depose at all falsely against him. His testimony companyroborates Shivajis version. Furthermore, there is companyroboration of the statement of Shivaji from the statements of number only his son Sarjerao, W. 4, who brought money from the shop, his nephew, Vishwanath, P.W. 5, who had gone to the scene of occurrence as there was delay in the arrival of goods, and, Vasant, W. 6, who had given out Rs. 100/- to his brother Sarjerao, W. 4, at Shivajis shop, but also from the statement of Abdul Jabar, P.W. 10, who was an Assistant Sub Inspector of the Railway Protection Force and a companyleague of the appellant. Abdul Jabars evidence, characterised by the Trial Court as independent, disclosed that Kalandar Khan was actually arrested by the appellant a fact denied and left unexplained by the appellant. Another piece of companyroborative evidence offered by the prosecution was the Pucca entry of a disbursement of Rs. 100/- as bribe and Rs. 7.10 as wharfage shown on 17-1-1968 in the cash book of Shivaji. But, as this account book was number produced at the time of the enquiry held by the Inspector Hanotia of the Railway Protection Force into the allegations and, the entry was admitted to have been made on 19-1-1968 although the disbursement is shown on 17-1-1968 it cannot be relied upon. There is force in the companytention that it appears to have been made to support the prosecution case. The wharfage charge of Rs. 7.10 was number even fixed on 17-1-1968. However, as the entry was admitted by the prosecution to have been actually made on 18-1-1968, it can be ignored as a piece of companyroborative evidence. The mere fact that it must have been made on 18-1-1968 to support the version of Shivaji and is admitted to have been so made does number take away the valu,of the evidence of Shivaji which impressed the Trial Court and which was companyroborated by other pieces of unimpeachable evidence. Considerable stress is laid on the fact that Shivaji had pointed out, it a test identification parade, the accused No. 2, Hari Rachu, as the person to whom the money was paid, but, at the trial, he stated that it was paid to the appellant accused No. 1 who handed it over to accused No. A long period of time had elapsed between the occurrence and depositions at the trial by witnesses. Their memory companyld very well have become bluffed as to who actually got the, money first of the money was passed by one accused person to another as it seems to have been. There companyld be an honest lapse of memory about the exact sequence. The infirmity is number so serious as to be attributed to numberhing except mendaciousness. The Special Judge, after a very through and careful assessment of he whole evidence in the case, had companye to the companyclusion that the prosecution case against the appellant was established beyond reasonable doubt. He had companyvicted the appellant under Section 120B as well as Section 161 read with Section 34 I.P.C. and also under Section 5 1 d and Sec. 5 2 of Prevention of Corruption Act and sentenced him to two years rigorous imprisonment and to pay a fine of Rs. 300/-, and, in default of payment of fine, to undergo further rigorous imprisonment for two months, on each one of the three companynts, but the substantive sentences were made companycurrent. The appellant as well as the other companyvicts had appealed to the High Court-of Bombay, The appellants appeal had been dismissed summarily. The appeal of the three companyvicted company accused was admitted, but it was finally dismissed, except as regards one of the accused who was held to be merely present and to have carried out the orders of the appellant before us in writing up a document and then destroying it. The reasons given in the judgment of the Bombay High Court, on that, appeal, reported as Hari Rachu Kanadi v. The State of Maharashtra 1 , are relied upon as arguments before us for accepting the prosecution case. We may here mention a fact which the Bombay High Court took into account in companyfirming the companyvictions of two of the company accused in this case. It has been relied upon by the learned Counsel for the State before us. It is that, under the provisions of the Railway Protection Force, the members of that Force are number Police Officers at all in the ordinary sense, and that the appellant had apparently exceeded his powers of arrest. The powers of arrest without a warrant under Section 12, vested in Superior Officers of the Force, are laid down in the following terms Power to arrest without warrant. 12 . Any superior officer or member of the Force may, without an order from a Magistrate and without a warrant, arrest- a any person who has been companycerned in an offence relating to railway property punishable with imprisonment for a term, exceeding six months, or against whom a reasonable suspicion exists of his having been so companycerned, or b any person found taking, precautions to companyceal his presence within railway limits under circumstances which afford reason to believe, that he is taking such precautions is with a view to companymitting theft of, or damage to, railway property. It has number been shown to us what justifiable ground the appellant had to arrest or cause the arrest of Kalandar Khan. This indicates that the reason for the arrest companyld be an attempt to extort a bribe as alleged by the prosecution. The appellant had, numberdoubt, denied the arrest. This denial was clearly false in view of the statements of witnesses 1 1973 Bombay Law Reporter vol. 71 p. 891. who included Abdul Jabar, P.W.10, a fellow member of the protection Force to which the appellant belonged. The established fact of this arrest of Kalandar together with the false denial of it by the appellant indicate the dishonesty of the appellants stand. It also companyroborates the prosecution version. It is true that the, statement of Kalandar Khan, P.W.3, the driver of the truck. companytradicts the prosecution case, as given out by Shivaji and his son, so far as the actual arrest of Kalandar Khan is companycerned. But, even Kalandar Khan had deposed that the appellant had threatened him. He then went on to state that there was a quarrel as a companysequence of it and numberhing more. He was declared hostile by the prosecution. He was cross-examined about the statements made by him during investigation showing that he was arrested and that he actually saw the handing over of money as a bribe for his release. He denied making such statements to the police. As there is numberreason whatsoever shown why the Investigating Officer should be prejudiced against the appellant and falsely record statements, the Trial Court was right in holding that Kalandar Khan was a thoroughly unreliable witness. The result is that we see numberreason to depart in this case from the general rule laid down by this Court in numerous cases, such as B. C. Goswami v. Delhi Administration, that this Court will number interfere with companycurrent findings of fact except under very exceptional circumstances. The High Court must be deemed to have affirmed the findings of fact of the Special Judge when it dismissed the appellants appeal summarily even if it did number give its reasons. It is because of such a dismissal by it that we have examined the evidence in the case ourselves. We may here observe that, although we uphold the findings of the Trial Court which would be deemed to be affirmed by the High Court, we companysider it very necessary for High Courts to at least record their reasons briefly even when they dismiss criminal appeal summarily on facts found. It is often difficult in criminal cases to say whether any material error was companymitted by the Trial Court in arriving at its findings of fact without at least some examination and companysideration of the main features of the evidence which only a reasoned order companyld disclose. It was mainly because reasons for summary dismissal of the appellants appeal were number given by the High Court that the appellant seems to have obtained Special Leave to appeal to this Court. We hereby dismiss this appeal and companyfirm the companyvictions and sentences passed against the appellant who.is on bail. Ile shall surrender forthwith and serve out the remaining period of his companycurrent sentences.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION -Civil Appeal No. 1227 of 1972. Appeal by special leave from the judgment and order dated the 9th December, 1971 of the Bombay High Court in Special Civil Application No. 1354 of 1970. N Pliadke, Naunit Lal and Lalita Kohli, for the appellant. C. Agarwala, K. K. Singhvi, R. K. Garo, S. S. Bhattnagar and Y. J. Francis, for respondent Nos. 10 14. C. Bhandare and M. N. Shroff, for respondent Nos. 20--24. The Judgment of the Court was delivered by- GOSWAMI, J.-This appeal by special leave is directed against the judgment of the High Court of Bombay of 9th December, 1971, in Special Civil Application S.C.A. No. 1354 of 1970 under Article 226 of the Constitution. The appellants and the first nineteen respondents and respondents 22 to 24 are at present the employees in the Agriculture Department of the State of Maharashtra following reorganisation of States on 1st November, 1956. Respondents 1 to 19 were the original petitioners in S.C.A. No. 1354 of 1970. They were officers from the former Hyderabad State piior to the States Reorganisation Act, 1956, briefly called the Act . They prayed in their said application for a writ to set aside the Bombay Governments Resolutions of 17th February, 1958 and 16th May, 1969 and the provisional gradation list of 27th September, 1969 and the promotion orders of 5th and 6th June, 1970 and other companysequential reliefs. They had impleaded in the said application five respondents, the first two being the State of Maharashtra and the Director of Agriculture, Maharashtra and the remaining three respondents were the three Agricultural Officers impleaded in a representative capacity by leave of the High Court under order 1, rule 8, Civil Procedure Code. These respondents Nos. 3 to 5 did number appear to companytest the. application in the Bombay High Court and it is alleged that they had numberinterest in the matter and were in companylusion with the appellants. Even the first two respondents, namely, the State of Maharashtra and the Director of Agriculture, went by default, although a belated prayer to enter appearance had been made through companynsel on behalf of the State of Maharashtra after companymencement of arguments, on the day of final hearing, which was, however, rejected by the. High Court. The application was then disposed of, ex parte, on merits by the High Court in favour of the applicants. It is number disputed that the order of the High Court directly affects the interests of the present appellants, who are Agricultural Officers from the Madhya Pradesh region. From Bombay we may number turn to the Nagpur Bench of the said High Court. There the appellant No. 1 and three other Agricultural Officers lodged a Special Civil Application No. 361 of 1964 impleading the State of Maharashtra and 88 other respondents, including the present respondents 1 to 19. Respondents 1 to 19 and others companytested the application before the Nagpur Bench unsuccessfully. The Nagpur Bench of the High Court allowed the Writ application by its judgment and order dated 6th December, 1967 and the operative part of the same may be quoted. Accordingly, we allow the petition and quash the resolution of the Government dated 9-9- 1960 and companybined seniority list issued by the Government on 22-8-1962. If the State Government wants to alter the basis of equa- tion originally fixed on 17-2-1958, an opportunity to make representation against the proposed alteration has to be given to the persons likely to be affected. The State Government will number take an appropriat e action. The neces sary companyrespondence of quashing of these two orders is that the intermediate order of absorption which is necessary step after inter se seniority and gradation list can be companypiled is also to be quashed. Accordingly, we quash the order of absorption, so far as these petitioners and respondents No. 3 to 89 are companycerned, dated 11.5. 1962. . . . . The respondents, who were Agricultural Officers from Hyderabad region,, preferred an appeal against the judgment of the Nagpur Bench being No. 1366 of 1968 in this Court. They were, however, allowed by this Court on 23rd January, 1969, to withdraw the same without prejudice to all parties affected to make representations to the Government in accordance with section 115 of the States Reorganisation Act,. 1956 After the above order of this Court, it is said that many Agricultural Officers made representations to the Government of India under section 115 of the Act. The Government of Maharashtra passed a Resolution of 16th May, 1969, purporting to be an order giving new equation of posts in the Agricultural Department in pursuance of which a gradation list was made on 27th September, 1969. Then followed certain companysequential orders of promotion of 5th and 6th June, 1970. This, as already numbericed, led to the Special Civil Application No. 1354 of 1970 at the instance of respondents, 1 to 19 and the operative part of this impugned order of 9th December, 1971, is in the following terms - For the reasons stated in the accompanying judgment, the Court makes absolute with companyts the rule granted by it on 30.6.70 in terms of the prayer a of the petition. The Court further directs that if respondent No. 1 fails to decide the question of equation of posts held by the petitioners in the former Hyderabad State in accordance with law, and the observations in this Judgment within three months from 9.12.71, Respondent No. 1 shall equate the posts of Agricultural Assistant of the former Hyderabad State in the scale of Rs. 176-300 with the posts of Agricultural Officer, Grade I of the former Bombay State in the scale of Rs. 210-10-300 and to absorb the petitioners and to fix their seniority on that basis with effect from the 1st day of November 1956. . . The appellant and another person had also filed Special Civil Application No. 1126 of 1971 in the Nagpur Bench for quashing the Resolution of the Bombay Government of 16th May, 1969, on certain grounds. That matter is still pending in the Nagpur Bench. The respondents 1 to 19 were impleaded as respondents in that application and although they had been served, they did number file any return when the said application came up for hearing at Nagpur on 2nd February, 1972. The learned Government Advocate, however, mentioned to the companyrt that another petition on the same subject had already been decided by the Bombay High Court. It. is said that this was the first time when the appellants came to know of the impugned judgment and took immediately steps in the Bombay High Court to set aside the order and for rehearing the writ petition, but failed to obtain favourable orders. The problem is indeed ticklish and sensitive companycerning integration, absorption, gradation and fixation of appropriate seniority of the officers throwing by act of the State their companymon lot from different areas, namely, the former State of Madhya Pradesh, former State of Hyderabad and the former State of Bombay allotted to the new bilingual State of Bombay under the provisions of the States Reorganisation Act. It is, however, clear that there is sufficient guideline in Part X of the States Reorganisation Act, 1956 as also later in Part VIII of the Bombay Reorganisation Act 1960 and,it is served for the Government of India, advisedly, to be the final authority in the matter of division and integration of services among the new States to ensure a fair and equitable treatment to all Persons affected by the reorganisation including proper companysideration of any representation made by companycerned persons. See section 11,5 and section 117 of the Act and sections 81 and 83 of the Bombay Reorganisation Act, 1960 . It is well settled that the Central Government under section 115 of the Act has to determine the principles governing equation of posts and prepare companymon gradation lists by integration of services and in doing so to ensure fair and equitable treatment to all persons companycerned. The Central Government is also required to give opportunities to the parties affected to make their representations. See D. Rajian Raj Others v. Union of India others 1 N. Subba Rao etc. v. Union of India and Others 2 and Union of India Anr. v. P. K. Roy Ors. 3 . The High Court cannot clothe upon itself the authority for performing the functions which are specifically and expressly intended to be the obligation and duty of the Central Government under the Act. The High Court is, therefore. number right in two matters namely, in directing the State Government to do that which under the, provisions of the Act is within the domain of the Central Government and secondly in fixing a time limit for action and, if the same is exceeded, directing art automatic entitlement to the second relief as to equation, absorption and fixation of seniority is prayed for by respondents 1 to 19. This view of the.High Court is clearly erroneous in view of the provisions of the Act. That, however, does number dispose of this matter. Mr. Phadke, learned companynsel for the appellants, raises several questions before US. Firstly, that the Division Bench of the, High Court companyld number sit ill appeal against the Division Bench decision of the Nagpur Bench which is binding on the respondents, 1 to 19. Secondly, that there is clear violation of the principles of natural justice in disposing of the writ petition by the High Court, ex parte, and in number reviewing its order when sufficient cause was shown by the appellants herein. Thirdly, that the High Court should number have allowed the application under order 1, rule 8, Civil Procedure Code, and should have insisted upon personal service of the rule nisi on the affected petitioners in a service matter of such implications. Mr. Bhandare, learned companynsel for the State of Maharashtra, also, inter alia, took the point that the Central Government was a necessary party and the petition should have been dismissed by the High Court for number-joinder of that Government. It is number necessary for us to go into these questions in view of the High Courts order of December 24, 1971, in Civil Application No. 3261 of 1971, of the State of Maharashtra and the Director of A.I.R. 1974 SC 457-1973 1 SCC 61 2 1972 2 S.C.C. 82 3 1968 2 SCR 186. Agriculture praying for permission to file an affidavit in reply to the writ petition and for companytesting the petition on merits. The High Court observed we are satisfied on reading these affidavits that there was sufficient cause for rehearing the Special Civil Application, but on perusal of the affidavit in re and hearing companynsel for the State rejected the said petition. The High Court also dismissed the petitioners application for rehearing the writ application. We are number satisfied that the High Court was right in number allowing an opportunity to the petitioners as well as to the State to canvass their respective points of view before, it against the writ application, particularly so when the matter had been heard in a representative writ application and number one of the actually affected persons had been impleaded as a respondent even to represent their category. The High Court itself observed, as numbericed above, there was sufficient cause for rehearing. Without, therefore, going into the various points raised before us, we set aside the impugned judgment and order of the Bombay High Court of 9th December, 1971 and direct restoration of the Special Civil Application No. 1354 of 1970 to its file for disposal of the same in accordance with law after giving opportunity to all the parties companycerned. We further direct that respondents 1 to 19 shall take steps in the High Court to implead the Central Government as well as the present appellants and all other officers affected by the orders sought to be quashed in the Special Civil Application No. 1354 of 1970 The appeal is allowed on the terms indicated above.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 385 of 1969 and 218 of 1970. Petitions under Art. 32 of the Constitution of India. Civil Appeals Nos. 601 to 605 and 954, 955 of 1972. From the judgment and order dated the 21st/29th January 1972 of the Andhra Pradesh High Court in W. Ps. Nos. 169/68, 1721, 3407/69, 3784 5677/70, and 626 and 47 of 1970 respectively. S. Gururaja, S. Markandeya and P. K. Pillai, for the petitioners appellants. K. Ramamurthy and B. Parthasarathy, for the petitioners respondents. P. Nayar and P. C. Kapur,for respondents. Ram Reddy and A. V. V. Nair, for respondents. Ram Reddy and P. P. Rao, for the respondents. S. K. Sasthi and B. Parthasarthy, for respondents. S. Chitale, M. J. Rao, P. L. N. Sharma and G. N. Rao, for the intervener respondents. The Judgment of the Court was delivered by BHAGWATI, J.-These writ petitions and appeals are broadly divisible into two groups, one group companysisting of Writ Petition No. 385 of 1969 and Civil Appeals Nos. 601-605 and 954-955 of 1972 and the other companysisting of Writ Petition No. 218 of 1970. We shall first state the facts in regard to Writ Petition No. 385 of 1969 and Civil Appeals Nos. 601-605 and 954-955 of 1972 and then proceed to deal with Writ Petition No. 218 of 1970 which raises a slightly different dispute. Writ Petition No. 385 of 1969 and Civil Appeals Nos. 601-605 and 954-955 of 1972 companycern a dispute which has been going on since the last over fifteen years in regard to absorption and integration of Supervisors of the erstwhile State of Hyderabad in the Engineering Service of the reorganised State of Andhra Pradesh. It would be companyvenient to start the narration of facts with a description of the organisation and structure of the Engineering Service in the erstwhile State of Hyderabad, for the petitioners appellants were Supervisors belonging to that Service immediately prior to the reorganization of the States on 1st November, 1956 and it is their companytention that on absorption and in- tegration into the Engineering Service of the newly formed- State of Andhra Pradesh, equality of opportunity has been denied to them by the State of Andhra Pradesh and their companyditions of service have been altered to their disadvantage without companyplying with the requirement of law. The Hyderabad Service of Engineers companysisted of two sections, one called State Service and the other called Subordinate Service. The State Service companyprised of two classes, namely, Class 1 and Class 11. Class 1 companysisted of superior posts of Chief Engineer, Superintending Engineer and Executive Engineer and Junior Scale posts of Assistant Engineers, while Class 11 companysisted of posts of Sub- Engineers. The Subordinate Service companysisted, inter alia, of posts of Supervisors, Sub-Overseers, Tracers, Stores Managers etc. in descending order of rank. The posts in the State Service were gazetted posts, while those in the Subordinate Service were number-gazetted. The rules of recruitment to the posts in State Service as well as Subordinate Service were made by the Rajpramukh of the Hyderabad State by a numberification dated 28th May, 1954 in exercise of powers companyferred under the proviso to article 309 of the Constitution. The posts of Sub-Overseers, according to these rules, which may for the sake of companyvenience be described as the Hyderabad Rules, were to be filled by direct recruitment from amongst persons who possessed LCE, LME or LEE or equivalent diploma or certificate of any recognized institution. There was a certificate companyrse called the Upper Subordinate hereinafter referred to as US Course which was companyducted by the Osmania Engineering College upto 1951 and thereafter from 1952 it was replaced by another companyrse called the Overseers Civil Engineering hereinafter briefly referred to as OCE Course which was also a certificate companyrse companyducted by the Osmania Engineering College. The US and OCE certificates awarded by the Osmania Engineering College were regarded as sufficient qualifications for direct recruitment to the posts of Sub- Overseers. The posts next above those of Sub-Overseers in the hierarchy were those of Supervisors. Fifty percent of the posts of Supervisors were to be filled by direct recruitment from amongst persons who were either graduates in civil or mechanical engineering of a recognized university or possessed a diploma or a certificate from an institution recognized by the Institute of Engineers India as exempting from Parts A and B of its As- sociated Membership Examination, while the remaining fifty percent were to be filled by promotion of Sub-Overseers subject to the companydition that Sub-Overseers who held only US or OCE certificates should have put in at least six years service. It was companymon ground between the parties that US and OCE certificates of Osmania Engineering College were number regarded as sufficient to qualify a person for direct recruitment as Supervisor, while LCE, LME and LEE diplomas were accepted as sufficient. There was only one exception to this rule and that was made by a numberification dated 18th November, 1955 which provided that during the years 1954 and 1955 the student who stands first in the US Course of Osmania Engineering College shall be eligible for appoint- ment to the post of Supervisor. It might appear that even earlier there was such a rule providing that a student who obtained first class first in OCE Examination companyld be directly recruited as Supervisor and support for existence of such rule was sought from the fact that petitioners Nos. 1 and 2 in petition No. 385 of 1969 who stood first class first in OCE Examination held in 1943 and 1944 respectively were directly recruited as Supervisors. But it was pointed out by the learned companynsel appearing on behalf of the respondents that petitioners Nos. 1 and 2 were number directly recruited as Supervisors, but their initial recruitment was as Sub-Overseers and having regard to the fact that they stood first class first in OCE Examination, they were immediately promoted as Supervisors and these two solitary instances were, therefore, number symptomatic of any exception to the rule that US and OCE certificates did number qualify a person for direct recruitment as Supervisor. The posts of Sub-Engineers companystituted the next higher stage in the hierarchy of the Engineering Service. They were Class II posts carrying a pay-scale of Rs. 250400. The recruitment to the posts of Sub-Engineers was to be wholly by promotion from Supervisors. Fifty percent of the posts of Sub-En- gineers were to be filled by promotion of Supervisors who were graduates in engineering and fifty percent by promotion of Supervisors who held LCE. LME or LEE or any other equivalent diploma or certificate or US or OCE certificate of Osmania Engineering College. There, were two companyditions which were required to be satisfied before a Supervisor companyld be eligible for promotion one was that if he was a adulate. he should have put in at least six years service as Supervisor and if lie was number a graduate, he should have put in at least fifteen years, service as Supervisor, and the other was that he should have passed the departmental examination for Assistant Engineers. So far as the posts of Assistant Engineers next above those of Sub-Engineers were companycerned, seventy-five percent were to be filled by direct recruitment and only tile remaining twenty-five percent by promotion of Sub-Engineers. But all Sub-Engineers were number eligible for promotion as Assistant Engineers only those Sub-Engineer who were graduates and who were below .he age of forty-five years were qualified to be promoted. The net result of these provisions was that those who merely held US or OCE certificate of Osmania Engineering College were, barring the limited and exceptional cases already referred to, number eligible for direct recruitment to the posts of Supervisors they were eligible for initial appointment only in the cadre of Sub-Overseers they companyld be promoted to fifty percent of the vacancies in the posts of Supervisors only after they had put in a minimum service of six years and then also they had to put in a minimum service of fifteen years as Supervisors before they companyld be eligible for being promoted as Sub-Engineers and there the chances of promotion available to them came to an end, for they companyld number go further and be promoted as Assistant Engineers. The petitioners appellants were holders of US or OCE certificates of Osmania Engineering College and they were all originally recruited to the cadre of Sub-Overseers, and, with the exception of one, they were promoted as Supervisors prior to 1st November, 1956 when the reorganization of the States took place under the States Reorganization Act, 1956. The effect of the States Reorganization Act, 1956 was that the Telengana territories of the erstwhile State of Hyderabad were added to the State of Andhra and with the added territories, the State of Andhra came to be known as the State of Andhra Pradesh. The petitioners appellants who were immediately before 1st November, 1956, serving as Supervisors in the Telengana area of the erstwhile State of Hyderabad, were allotted for service in the State of Andhra Pradesh and they became Supervisors in the State of Andhra Pradesh as from 1st November, 1956. The position in regard to the Engineering Service which obtained in the State of Andhra prior to 1st November, 1956 was different. The territories of the State of Andhra at one time formed part of the State of Madras and, therefore, the Special Rules for the Madras Engineering Service issued under the numberification dated 28th September, 1953 and the Special Rules for the Madras Engineering Subordinate Service issued under the numberification dated 30th September, 1953- both under the Proviso to article, 309 of the Constitution- governed the companystitution and recruitment to the Engineering Service-in the State of Andhra. The Engineering Service in the State of Andhra was divided into State Service and Sub- ordinate Service. The State Service companyprised the posts of Chief Engineer, Superintending Engineers, Executive Engineers Special Grade , Executive Engineers Ordinary Grade and Assistant Engineers, while the Subordinate Service companyprised inter alia the Rosts of Supervisors, Overseers, Head Draftsmen and Civil Draftsmen. It will be- seen that there were numberposts of Sub-Overseers in the State of Andhra but instead there were posts of Overseers. The qualifications prescribed for appointment to the posts of Overseers were any one of the following 1 degree in engineering, civil or mechanical, of Madras, Andhra or Anamalai University, to which the name of Osmania University was added after the addition to the Telengana area to the State of Andhra or B.Sc. Eng. degree of Banaras Hindu University, 2 diploma in engineering of, the College of Engineering. Gundy, which was regarded as equivalent to degree in engineering, 3 US of. LCE diploma of the College of Engineering, Guindy or LCE or LME diploma awarded by the Technological Diploma Examination Board, Madras or Andhra. 4 certificate of having passed sections A and B of AMIE Ind. Examination and 5 Lower Subordinate herein- after referred to as LS or OCE certificate of the College of Engineering Guindy. The next above in the hierarchy were the posts of Supervisors. The appointments to the posts of Supervisors companyld be made either by direct recruitment or by promotion of Overseers or Civil Draftsmen I, II and III Grades. The necessary qualifications for eli- 11-Ll77Sup.CI/75 gibility for appointment as Supervisor were the same as those for appointment as Overseer with this difference that LS or OCE certificate of the College of Engineering, Guindy was number regarded as sufficient for direct recruitment as Supervisor. It will thus be seen that according to Andhra Rules, the minimum qualification necessary for direct recruitment to the posts of Supervisors was US or OCE diploma of the College of Engineering, Guindy or LCE or LME diploma of the Technological Diploma Examination Board, Madras or Andhra. The Supervisors who possessed University degree in engineering or diploma of the College of Engineering, Guindy, which, as stated above, was regarded as equivalent to degree in engineering, were designated as Junior Engineers. So far as the posts of Assistant Engineers were companycerned, there were two modes of recruitment one by direct recruitment and the other by promotion. The promotions were to be made from the cate- gories of Junior Engineers, Supervisors and Draftsmen. Two out of every three vacancies in the posts of Assistant Engineers were to be filled by promotion of Junior Engineers while the third was to be filled by promotion from amongst directly recruited Supervisors possessing US or LCE diploma of the College of Engineering, Guindy or certificate of having passed sections A and B of AMIE Ind. Examination and having put in number less than five years service as Supervisors which was later increased to ten years service with effect from 12th February, 1966, ii Supervisors promoted from the rank of Overseers and either a possessing US or LCE diploma of the College of Engineering Guindy or certificate of having passed sections A and B of AMIE Ind. Examination and having put in number less than fifteen years service, or b possessing LS or OCE certificate of the College of Engineering, Guindy and having put in number less- than twenty years service as Supervisors and iii Draftsmen First Grade and Head Draftsmen possessing the same qualifications as those mentioned in clause ii above. It may be numbered that in the State of Andhra there were numberposts of Sub-Engineers and the promotion- was direct from the posts of Supervisors to the posts of Assistant Engineers. But the posts of Assistant Engineers were Class 11 posts carrying a pay-scale of Rs. 250-400 unlike the posts of Assistant Engineers in the Hyderabad State which were Class 1 posts carrying a pay- scale of Rs. 300-600. Since on the reorganization of the States, the State of Andhra did number cease to exist but companytinued as such with the territories of the Telengana area added to it and the State of Andhra Pradesh was merely a new name given to it, the Engineering Service of the State of Andhra companytinued as the Engineering Service of the State of Andhra Pradesh and the Madras Engineering Service Rules dated 28th September, 1953 and the Madras Engineering Subordinate Service Rules dated 30th September, 1953 hereinafter companylectively referred to as the Andhra Rules companytinued to govern the Engineering Service in the State of Andhra Pradesh from and after 1st November, 1956. Now on the reorganization of the State of Andhra Pradesh, the posts of Supervisors in the erstwhile State of Hyderabad were equated with the posts of Junior-Engineers Supervisors in the State of Andhra Pradesh in accordance with the principles for equation of posts laid down at the companyference of Chief Secretaries of various States held on 30th April and 1st May, 1956. Certain criteria were also laid down at this companyference for fixation of inter se seniority of officers holding equivalent posts and on the basis of these criteria a provisional companymon gradation list of Junior Engineers Supervisors from Telengana and Andhra regions was approved by an order dated 20th April, 1963 made by the Government of Andhra Pradesh. This provisional companymon gradation list was companymunicated to the Junior Engineers Supervisors after the High Court of Andhra Pradesh was approached for necessary orders in that behalf. The petitioners appellants did number object to the positions assigned to them in the provisional companymon gradation list but the principal representation made by them was that promotions which had been made provisionally pending the reparation of the provisional companymon gradation list should be reviewed so as to bring them in companyformity with the ranking in the provisional companymon gradation list, as stated categorically by the Government of Andhra Pradesh in its memorandum dated 26th November, 1956 and directed by the Government of India by its letter dated 11th March, 1959. The provisional companymon gradation list was thereafter finalised by the Government of Andhra Pradesh in accordance with the decision of the Government of India under section 115 5 of the States Reorganisation Act, 1956 and the final gradation list was published under an order dated 23rd November, 1967 by the Government of Andhra Pradesh. The final gradation list companysisted of two parts, one part showing the inter se seniority of Junior Engineers and the other showing the inter se seniority of number-graduate Supervisors and it was directed that the final gradation list shall companye into force retrospectively from 1st November, 1956. It may be pointed out that the Junior Engineers shown in the first part of the final gradation list included number only Junior Engineers from Andhra region but also graduate Supervisors from Telengana region. The petitioners appellants being merely holders of US or LCE certificate of Osmania Engineering College were naturally in the second part of the final gradation list relating to number- graduate Supervisors. So far as the posts of Sub-Engineers in the erstwhile State of Hyderabad were companycerned, there was difficulty in assimilating these posts in the set up of the Engineering Service in the State of Andhra Pradesh as there were numberposts in the Andhra region companyresponding to the posts of Sub-Engineers. The Government of Andhra Pradesh, therefore, by an order dated 24th May, 1957, directed that fresh recruitment to the posts of Sub-Engineers should be stopped with a view to doing away with this category of posts. No fresh recruitment to the posts of Sub-Engineers was accordingly made from and after 1st November, 1956. But the question was as to what should be done with regard to the officers holding the posts of Sub-Engineers immediately prior to 1st November 1956 and how they should be integrated in the Engineering Service of the State of Andhra Pradesh. Pending the determination of this question, the Government of Andhra Pradesh by an order dated 23rd March, 1959 promoted the Sub-Engineers to act temporarily as Assistant Engineers Thereafter the question was companysidered by the Advisory Committee and on the basis of the recommendations made by the Advisory Committee, an order dated 22nd December, 1960 was issued by the Government of Andhra Pradesh laying down certain principles to be followed in regard to absorption and integration of the Sub-Engineers. These principles were that the Sub-Engineers working as such immediately prior to 1st November, 1956 should be promoted as Assistant Engineers with effect from 31st October, 1956 afternoon and included in the list of Assistant Engineers of both the regions as on 1st November, 1956 and assigned ranks after the Assistant Engineers in the companybined list, and out of these Sub-Engineers, those who were eligible for promotion as Assistant Engineers under the Hyderabad Rules should be given the Telengana scale of pay of Assistant Engineers and those who were number so eligible should be given the Andhra scale of pay of Assistant Engineers. The necessary directions in implementation of these principles were given by the Government of Andhra Pra- desh by an order dated 31st August, 1961. The result was that the Sub-Engineers from the erstwhile State of Hyderabad were promoted as Assistant Engineers with effect from 31st October, 1956 afternoon and they came to be allotted to the State of Andhra Pradesh as Assistant Engineers, the pay scale of graduates being the Telengana scale of pay of Assistant Engineers and the pay scale of number-graduates being the Andhra scale of pay of Assistant Engineers. This action of the Government of Andhra Pradesh was indirectly companyfirmed by the Government of India by its letter dated 24th December, 1965 which directed that the following equation of posts should be adopted for drawing up the final gradation list - CATEGORY IV Assistant Engineer Hyderabad Assistant Engineer Hyderabad Sub-Engineer Hyderabad Sub-Engineer Andhra Note I The Sub-Engineers of Hyderabad should be placed en bloc below the Assistant Engineers from both the regions. Note If The Sub-Divisional Officers of Hyderabad should be placed en bloc at the bottom of the category. The Sub-Engineers who were promoted as Assistant Engineers with retrospective effect from 31st October, 1956 afternoon were thus directed to be placed en bloc below the Assistant Engineers from both the regions in the companymon gradation list. The Andhra Rules, as we have already seen, companytinued to govern the Engineering Service in the State of Andhra Pradesh and, therefore, it would seem that promotions in the Engineering Service from and after 1st November, 1956 would have been required to be made in accordance with the Andhra Rules. But the Government of Andhra Pradesh, in companysultation with the officer deputed by the Government of India to advise on problems relating to integration of services, issued an order dated 7th April, 1960 directing, by way of exception, that all employees of the erstwhile State of Hyderabad would be governed by the Hyderabad Rules for promotion after 1st November, 1956 to posts one stage above those held by them immediately prior to 1st November, 1956. It was, however, made clear in this order that subsequent promotions after one stage promotion would be governed by the Andhra Rules or the Rules made by the Government of Andhra Pradesh. There was companysiderable companytroversy before us as to what would be one stage promotion in case of Supervisors from Telengana region whether it would include promotion from the posts of Supervisors to the posts of Assistant Engineers. The petitioners appellants companytended that the posts of Sub- Engineers having been equated to the posts of Assistant Engineers, promotion from the posts of Supervisors to the posts of Assistant Engineers was one stage promotion governed by the Hyderabad Rules, while, according to the respondents, it was number one stage promotion and in any event it was governed by the Andhra Rules and number by the Hyderabad Rules. We shall presently examine this companytroversy but before we do so we may companyplete the narration of facts re- levant to this issue. The next event was that the Andhra Pradesh State and Subordinate Service Rules, 1962 were made by the Governor of Andhra Pradesh by an order dated 7th March, 1962. Clause h i was introduced in Rule 42 of these Rules by an order dated 21st July, 1965 and that clause was in the following terms Nothing in these rules or in the Special Rules shall disqualify or shall be deemed to have ever disqualified an employee of the erstwhile Government of Hyderabad who was allotted to the State of Andhra Pradesh under section 115 of the States Reorganisation Act, 1956 for promotion or recruitment by transfer, on or after the 1st November, 1956, to a post one stage above that held by him prior to the said date if in the opinion of the appointing authority such person would have been qualified for promotion or for appointment any such post under the Hyderabad Cadre and Recruitment Rules applicable thereto, had recruitment to such post been regulated by the last mentioned Rules. We shall have occasion to refer to this clause in some detail when we examine the arguments advanced on behalf of the parties. Now under the Hyderabad Rules, number-graduate Supervisors including the petitioners appellants who merely possessed US or OCE certificates of Osmania Engineering College were entitled to be companysidered for promotion to fifty per cent of the posts of Sub-Engineers and, according to the petitioners appellants, the posts of Sub-Engineers being equated with those of Assistant Engineers from 1st November, 1956, their right to be companysidered for promotion extended to fifty per cent of the posts of Assistant Engineers. But the Government of Andhra Pradesh followed the Andhra Rules in promotion from the posts of Supervisors to those of Assistant Engineers from and after 1st November 1956 and according to the Andhra Rules, only 33 1/3rd. percent of the posts of Assistant Engineers were available for promotion to number-graduate Supervisors. The ratio of one to one in the matter of promotion between graduate Supervisors and number- graduate Supervisors, which prevailed in the erstwhile State of Hyderabad, was thus altered to two to one when the Supervisors from the erstwhile State of Hyderabad came to be allotted to the State of Andhra Pradesh. The petitioners appellants did number have any serious grievance about this alteration in the ratio because otherwise they were treated on a par with number-graduate Supervisors from the Andhra region, US or OCE certificate of Osmania Engineering College held by them being regarded as equivalent to US or LCE diploma of the College of Engineering, Guindy and LCE or LME diploma of the State Board of Technical Education, Andhra or Andhra Pradesh. But this state of affairs did number companytinue for long, because the Government of Andhra Pradesh by an order dated 3rd October, 1960 decided that OCE certificate-and that would also apply to US certificate because OCE companyrse was the same as the earlier US companyrse-of the Osmania Engineering College be recognised as equivalent to OCE certificate, which was the same as LS certificate, of the College of Engineering, Guindy. This decision evoked a storm of protest from the number-graduate Supervisors of the erstwhile State of Hyderabad because the effect of this decision was that, if they held US or OCE certificates of the Osmania Engineering College, which most of. them did, they would have to put in twenty years service as Supervi- sors for being eligible for promotion, whereas Supervisors from Andhra region, most of whom possessed LCE, LME or LEE diploma would qualify for promotion on companypletion of five years service--.which was later on increased to ten years service-if directly recruited and fifteen years service, if promoted from the rank of Overseers. The ion-graduate Supervisors from the erstwhile State of Hyderabad made representations to the Government of Andhra Pradesh as well as the Government of India and companytended that the parity which prevailed till then between US or OCE certificates of the Osmania Engineering College, on the one hand, and LCE, LME or LEE diplomas on the other, should number be set at naught. The Government of Andhra Pradesh thereupon companystituted a Special Committee companysisting of the Chief Engineer General , Principal of the Osmania Engineering College, Director of Technical Education and Additional Secretary to the Government Public Works Department to companysider these representations and the Special Committee at its meeting held on 21st April, 1961 came to the decision that US and OCE certificates of the Osmania Engineering College were number equivalent to LCE or LME or LEE diplomas, The question was then referred to the State Board of Technical Education, which was a high powered body companyprising of administrators, educationists and technical experts, such as Secretaries to the Government in the Education and other Departments, the Director of Public Instruction, the Secretary of the Regional Committee of the All India Committee for Technical Education, retired Chief Engineers as also Chief Engineers in office, and principals of Engineering Colleges in the State. The State Board of Technical Education examined the question thoroughly and in great detail and at its meeting held on 1st June, 1962 agreed with the view expressed by the Special Committee that US or OCE certificates of the Osmania Engineering College companyld number be equated with LCE or LME or LEE diplomas. The Government of Andhra Pradesh then reconsidered the question in the light of the opinion expressed by the Special Committee and the State Board of Technical Education and taking the view that the companytention of the number-graduate Supervisors from the erstwhile State of Hyderabad was number tenable, the State of Andhra Pradesh passed an order dated 14th February, 1963 which was in the following terms In modification of the orders issued in O. Ms. No. 2400 P.W.D. dated 3-10-1960 the Government recognise the qualification of US and O.C.E., companyrses of Osmania University also in addition to the qualifications already prescribed in the Andhra Rules and adopted in Andhra Pradesh for purpose of recruitment to the posts of Overseers. The companytention of the Hyderabad Engineers Association to recognise U.S. and C.E. qualifications as equivalent to L.C.E., M.E. and L.E.E. Diplomas of the Osmania University or L.C.E. Diploma of the State Board of Technical Education is number tenable as the former qualifications are definitely lower than the latter diploma mentioned above and accordingly direct that they cannot be accepted as equivalent to one another. The depressing effect brought about by the order dated 3rd October 1960 on the promotion of Supervisors holding US and OCE certificates of the Osmania Engineering College to the posts of Assistant Engineers was thus companyfirmed under the order dated 14th February, 1963. This led to the filing of Writ Petitions Nos. 853 of 1962 and 735 of 1963 in the High Court of Andhra Pradesh challenging the validity of the orders dated 3rd October, 1960 and 14th February, 1963, but the High Court dismissed these writ petitions as premature, suggesting that the question of equivalence of US and OCE certificates of the Osmania Engineering College may be referred to the Government of India. The Government Pleader appearing on behalf of the State agreed to this suggestion, though according to the State this question did number strictly fall within the terms of section 115 of the States Reorganisation Act, 1956. The Additional Secretary to the Government of Andhra Pradesh accordingly addressed a letter dated 9th January, 1965 to the Secretary to the Government of India, Ministry of Home Affairs explaining the reasons why the Government of Andhra Pradesh had decided number to treat US and OCE certificates of the Osmania Engineering College as equivalent to LCE, or LME or LEE diplomas, but to regard them as equivalent only to US or OCE certificates of the College of Engineering, Guindy. The Government of India, by its letter dated 17th March, 1966, upheld the stand taken by the Government of Andhra Pradesh and rejected the plea of the number-graduate Supervisors from the erstwhile State- of Hyderabad as untenable. There was again a batch of writ petitions, being Writ Petition No. 645 of 1967 and other allied writ petitions, in the High Court of Andhra Pradesh challenging the decision of the Government of Andhra Pradesh as companyfirmed by the Government of the of India in regard to equivalence of US and OCE certificates Osmania Engineering College. These writ petitions were heard by a Division Bench companysisting of Jaganmohan Reddy, C.J., as he then was and Kondaiah, J., and by a judgment dated 23rd February, 1968 the Division Bench held inter alia that there was numberhing to show that the decision of the Government of Andhra Pradesh--confirmed by the Government of India to treat US and OCE certificates of the Osmania Engineering College as inferior to LCE, LME or LEE diplomas and to regard them as equivalent only to LS or OCE certificates of the College of Engineering, Guindy was irrational or perverse, and in any event, it was number shown by the petitioners that US and OCE certificates of the Osmania Engineering College were equivalent to LCE, LME or LEE diplomas and accordingly dismissed the writ petitions. The petitioners in these writ petitions, on rejection of their applications for leave to appeal by the High Court, preferred applications for special leave, being Special Leave Petitions Nos. 749, 751, 773 and 729 of 1968, but these applications for special leave were rejected by this Court by order made on 27th February, 1969. Meanwhile, on 22nd February, 1967, the Andhra Pradesh En- gineering Service Rules, 1966 hereinafter referred to as Andhra Pradesh Rules were made by the Governor of Andhra Pradesh in exercise of the powers companyferred under the Proviso to article 309. The Andhra Pradesh Rules superseded the Hyderabad Rules as also the portion of the Andhra Rules companysisting of the Madras Engineering Service Rules. There was a substantial change made by the Andhra Pradesh Rules in the mode of recruitment to the posts of Assistant Engineers Clause 2 c 1 of the Andhra Pradesh Rules provided that 37-1/2 of the vacancies in the posts of Assistant Engineers shall be filled by direct recruitment while clause 2 c directed that the remaining 62-1/2 vacancies shall be filled in the following manner Out of every 3 vacancies successively arising in the posts of Assistant Engineers, so far as qualified and suitable candidates are available, the first two shall be filled or reserved to be filled by recruitment by transfer from among the Junior Engineers specified under Group A, in the following table and the third vacancy shall be filled or reserved to be filled by recruitment by transfer from among those specified under Group B thereof. GROUP A Junior Engineers of the Andhra Pradesh Engineering Subordinate Service. GROUP B Supervisors, draughtsmen Special Grade and draughtsmen L. Grade of the A.P. Engg. Subordinate Service. Provided that out of every three vacancies of Assistant Engineers to be filled by recruitment by transfer from among Supervisors or Draughtsmen, so far as qualified and suitable candidates are available, the first two shall be filled by recruitment by transfer from among the Suprs. or Draughtsmen with C.E.or L.E.E. diploma or any equivalent qualification and the third shall be filled by recruitment by transfer from among the Supervisors or Draughtsmen with lower Subordinate Diploma of the College of Engineering, Guindy or the Upper Subordinate Diploma of the College of Engineering, Hydera- bad, or any equivalent qualification. The appointments under which Sub-Rule shall be made in the order of rotation specified below in every circle of 18 vacancies Junior Engineer. 10. Junior Engineer. Junior Engineer. 11. Junior Engineer. Supervisor-Direct recruit. 12. Supr. direct recruit. Junior Engineer. 13. Junior Engineer. Junior Engineer. 14. Junior Engineer. Overseer-promotee Supr. 15. Draughtsmen first grade. special with LCE qualification Junior Engineer. 16. Junior Engineer. Junior Engineer. 17. Junior Engineer. Overseer-promotee Supr. with L.S. 18. Draughtsmen with S. Guindy or Diploma of the College of Engg., U. S of Osmania Guindy, or Upper Subordinate University. Diploma of the College of Engi- neering, Hyderabad. This clause was substituted by a new clause 2 c 2 by an amendment made in the Andhra Pradesh Rules by a numberification dated 12th January, 1968 and by the new clause thus substituted the ratio of promotion between graduate Supervisors and number-graduate Supervisors was altered and instead of two out of three vacancies being filled by graduate Supervisors, three out of four vacancies were to be filled by graduate Supervisors, with the result that the cyclic order of rotation number companysisted of twenty-four vacancies instead of eighteen. The net effect of this amendment was that instead of one out of- eighteen. only one out of twenty-four vacancies became available for promotion to Supervisors from the erstwhile Hyderabad holding US or OCE certificates of the Osmania Engineering College and that too, when their turn arrived in the cyclic order. The appellants thereupon preferred writ petitions in the High Court of Andhra Pradesh challenging the validity of the orders dated 3rd October, 1960 and 14th February, 1963 as also of the Andhra Pradesh Rules on various legal and companystitutional grounds. Having regard to the importance of the question involved these writ petitions were referred to a Full Bench and by a judgment dated 21st July, 1972, the Full Bench rejected the companytentions of the appellants and dismissed the writ petitions. There were also two other cases before the Full Bench, namely, Writ Petition No. 470 of 1970 and Writ Appeal No. 626 of 1970, and they were also disposed of in the same manner by the Full Bench by a separate judgment dated 29th January, 1972. The appellants, after obtaining certificates from the High Court, preferred Civil Appeals Nos. 601-605 and 954-955 of 1972 in this Court. The petitioners also filed Writ Petition No. 385 of 1969 directly in this Court under Art 32 of the Constitution claiming substantially the same reliefs as were sought in the writ petitions in the High Court. The petitioners appellants urged the following companytentions in support of the writ petition and appeals The decision of the Government of Andhra Pradesh companytained in the orders dated 3rd October, 1960 and 14th February, 1963- companyfirmed by the Government of India by its letter dated 17th March, 1966-treating US and OCE certificates of the Osmania Engineering College as inferior to US and LCE diplomas of the College of Engineering, Guindy and LCE, LME or LEE diplomas of any other recognised institution and equating them with LS or OCE certificates of the College of Engineering, Guindy was erroneous and should be set aside. The number-graduate Supervisors from the erstwhile Hyderabad State were, under the companydition of service applicable to them immediately prior to 1st November, 1956, entitled to have fifty percent of the vacancies in the posts of Assistant Engineers available to them for promotion. But the Andhra Rules, which were applied by the Government of Andhra Pradesh from and after 1st November, 1956, made available to number- graduate Supervisors only one third of the vacancies in the posts of Assistant Engineers. To make things worse, the Andhra Pradesh Rules, as they stood in their unmended form, made only one out of eighteen vacancies in the posts of Assistant Engineers available for promotion to the number-graduate Supervisors from the erstwhile Hyderabad State holding US or OCE certificates of the Osmania Engineering College and, under the amended Andhra Pradesh Rules, only one out of twenty four vacancies in the posts of Assistant Engineers was made available to them for promotion. The Andhra Rules and Andhra Pradesh Rules, thus, varied to their disadvantage the companydition of service applicable to them immediately prior to 1st November, 1956 and since these Rules were applied and or enacted without the previous approval of the Central Government, they were ineffectual and void to the extent to which they made such variations, by reason of companytravention of the mandatory requirement of the proviso to section 115, sub-section 7 . The promotion from the posts of Supervisors to the posts of Assistant Engineers from and after 1st November, 1956 was one stage promotion, and therefore, by reason of the order dated 7th April, 1960 as also under rule 42 h i of the Andhra Pradesh State and Subordinate Service Rules, 1962, it was governed by the Hyderabad Rules upto 22nd February, 1967 when the Hyderabad Rules were superseded by the Andhra Pradesh Rules. The promotions made by the Government of Andhra Pradesh to the posts of Assistant Engineers from and after 1st November, 1956 were, however, on the basis of the Andhra Rules, which provided a more unfavorable ratio of promotion for number- graduate Supervisors than the Hyderabad Rules. The petitioners appellants were, therefore, entitled to claim that promotions made from and after 1st November, 1956 upto 22nd February, 1967 should be reviewed on the basis that the Hyderabad Rules governed the promotion of number-graduate Supervisors from the erstwhile Hyderabad State. The Andhra Pradesh Rules in so far as they discriminate amongst different categories of number-graduate Supervisors by reserving a vacancy for each category of number-graduate Supervisors in the cyclic order of rotation for the purpose of promotion in the posts of Assistant Engineers companytravene the equality clause companytained in article 14 and are to that extent void. We may number state the facts relating to Writ Petition No. 218 of 1970. The petitioners in this writ petition hold LCE diploma and some of them were directly recruited as Supervisors in the State of Andhra prior to 1st November, 1956 and the others were directly recruited as Supervisors in the State of Andhra Pradesh subsequent to that date. Since the Andhra Pradesh Rules adversely affected the peti- tioners and other directly recruited number-graduate Supervisors, the petitioners filed the present writ petition in this Court under article 32 of the Constitution praying that the Andhra Pradesh Rules be quashed and set aside in so far as they affect the petitioners and promotions made from and after 1st November, 1956 should be reviewed on the basis of the final companymon gradation list of Supervisors published under the order dated 23rd November, 1967 without any discrimination on the ground of qualifications by holding that the Andhra Pradesh Rule,-, altering the ratio one to one between graduates and number-graduates and prescribing different qualifying period of service for directly recruited graduate Supervisors and directly recruited number-graduate Supervisors for promotion to the post of Assistant Engineers are unconstitutional and void. There was one companytention urged on behalf of the petitioners in support of the writ petition and it was as follows The Andhra Pradesh Rules in so far as they discriminate between graduate Supervisors and number-graduate Supervisors by fixing initially the ratio of three to one between graduate Supervisors and number-graduate Supervisors for the purpose of promotion to the posts of Assistant Engineers are violative of article 14 and hence void. We may number proceed to examine the companytentions urged on behalf of the petitioners appellants in these writ petitions and appeals. Re. A This companytention has been adequately dealt with in the judgment given by the division Bench of the Andhra Pradesh High Court on 23rd February, 1960 in Writ Petition No 645 of 1967 and other allied petitions and the judgment of the Full Bench impugned in these appeals. We are substantially in agreement with the reasons which have weighed with the Division Bench and the Full Bench in rejecting this companytention. It must be numbered that the question in regard to equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standard, and ,practical attainments of such qualifications and where the decision of the Government is based on the recommendation of an expert body which possesses the requisite knowledge, skill and expertise for adequately discharging such a function, the Court, uninformed of relevant data and unaided by the technical insights necessary for the purpose of determining equivalence, would number lightly disturb the decision of the Government. It is only where the decision of the Government is shown to be based on extraneous or irrelevant companysiderations or actuated by mala fides or irrational and perverse or manifestly wrong that the Court would reach out its lethal arm and strike down the decision of the Government. Here in the present case it cannot be said that the view taken by the Government of Andhra Pradesh that US and OCE certificates of the Osmania Engineering College were number equivalent to US or OCE diploma of the College of Engineering, Guindy or LCE, LME or LEE diploma of any other recognised institution suffered from any of these infirmities. It was based on the re- companymendation of an expert high powered body like the State Board of Technical Education companysisting of distinguished administrators, educationists and technical experts against whom numberhing companyld be alleged on behalf of the petitioners appellants. The State Board of Technical Education included inter alia Principals of different engineering ,colleges in the State, the Secretary of the Regional Committee of the All India Committee on Technical Education, retired Chief Engineers as also Chief Engineers in office who would be expected to be familiar with the academic standards and practical companytent of the different qualifications and the decision taken by the Government of Andhra Pradesh on the basis of the recommendation of the State Board of Technical Education companyld number be regarded as unreasonable or perverse ,or manifestly wrong number companyld it be said to be mala fide or based on extraneous or irrelevant companysiderations. Indeed, the Government of Andhra Pradesh companyld number do better than relay on the recommendation of the State Board of Technical Education. The Full Bench as well as the Division Bench of the Andhra Pradesh High Court have in fact shown in their respective judgments, on a companyparison of the duration and companytent of the respective companyrses, that US and OCE certificates of the Osmania Engineering College, were, both from the point of view of academic learning as also from the point of view of practical experience, inferior to US or LCE diploma of the College of Engineering, Guindy or LCE, LME or LEE diploma of any other recognised institution. It may also be pointed out that even in the erstwhile State of Hyderabad itself, US and OCE certificates of the Osmania Engineering College were number treated on a par with LCE, LME or LEE diploma. Firstly, an Overseer holding US or OCE certificate of the Osmania Engineering College was required to put in at least six years service before he companyld be eligible for promotion as Supervisor while a Sub-Overseer holding LCE or LME diploma did number have to put in any minimum qualifying service for the purpose of promotion as Supervisor. Secondly, US or OCE certificate of the Osmania Engineering College was regarded as sufficient qualification only for recruitment to the post of Sub- Overseer, while LCE or LME diploma qualified for recruitment number only to the post of Sub-Overseer but also to the post of Supervisor. It is, therefore, number possible to overturn the decision of the Government of Andhra Pradesh denying equivalence of US and, OCE certificates of the Osmania Engineering College with LCE, LME or LEE diplomas. It may be numbered that the Central Government also affirmed the decision of the Government of Andhra Pradesh by its letter dated 17th March, 1966. Even if it be assumed that the Central Government had the exclusive power under the States Reorganisation Act, 1956 to bring about integration of services in the reorganised State of Andhra Pradesh, this decision of the Central Government, companytained in the letter dated 17th March, 1966 is sufficient to meet. the requirement of the statute and it must be upheld for the same reasons as the decision of the Government of Andhra Pradesh. There was a further ground of attack levelled against the decision of the Central Government, albeit faintheartedly, and that was that the decision of the Central Government was arrived at solely on the basis of the companymunication dated 9th January, 1965 addressed by the Additional Secretary to the Government of Andhra Pradesh to the Secretary to the Government of India, Ministry of Home Affairs without giving any opportunity to the number-graduate Supervisors from the erstwhile Hyderabad State to put forward their case. This charge is plainly unsustainable as it is evident from paragraph 9 of the affidavit dated 27th July, 1970 filed by K. P. Singh, Under Secretary to the Government of India, Ministry of Home Affairs in reply to Writ Petition No. 85 of 1969, and it can hardly be disputed, that the representations made, by the number-graduate Supervisors from the erstwhile Hyderabad State against the decision of the Government of Andhra Pradesh companytained in the Order dated 3rd October, 1960 were forwarded to the Central Government and it was after giving due companysideration to these representations on the basis of the recommendations of the Advisory Board which companysisted of experts, that the Central Government affirmed the decision of the Government of Andhra Pradesh by its letter dated 17th March, 1966. The present companytention of the petitioners appellants. must, therefore, be rejected. Re. B This companytention rests on the applicability of the proviso to section, 115, sub-section 7 of the States Reorganisation Act, 1956. Subsection 115 regards as follows Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter 1 of Part XIV of the Constitution in relation to determination of the companyditions of service of persons serving in companynection with the affairs of the Union or any State. The effect of this sub-section is inter alia to preserve the power of the, State to make rules under article 309 of the Constitution laying down the companyditions of service of persons allocated to serve in companynection with the affairs of the State. But there is a proviso which imposes a limitation on the exercise of this power and that proviso runs as .under Provided that the companyditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section 1 or sub-section 2 shall number be varied to his disadvantage except with the previous approval of the Central Government. The limitation imposed by the proviso is that the State cannot vary the companyditions of service applicable immediately before 1st November, 1956 to the, disadvantage of persons allotted to serve in companynection with the affairs of the State, except with the previous approval of the Central Government. The question which, therefore, arises for companysideration is whether the application of the Andhra Rules for promotion from the posts of Supervisors to the posts of Assistant Engineers from and after 1st November, 1956 and the enactment of the Andhra Pradesh Rules on 22nd February, 1967 together with their amendment on 12th January, 1968 varied to their disadvantage the companydition of service in regard to promotion applicable to number-graduate Supervisors from the erstwhile Hyderabad State immediately prior to first November, 1956, without the prior approval of the Central Government. Now the only right in regard to promotion which the companydition of service immediately prior to 1st November, 1956 gave to number-graduate ,Supervisors from the erstwhile Hyderabad State was the right to be companysidered for promotion to fifty per cent of the posts of Sub- Engineers but the argument of the petitioners appellants was that the posts of Sub-Engineers were equated with those of Assistant Engineers, and therefore, their right to be companysidered for promotion under the companydition of service applicable to them immediately prior to 1st November, 1956 extended to fifty per cent of the posts of Assistant Engineers. This was the premise which formed the basis of the companytention of the petitioners appellants that the companydition of service applicable to number-graduate Supervisors from the erstwhile Hyderabad State immediately prior to 1st November, 1956 was varied to their disadvantage without the prior approval of the Central Government. We will assume with the petitioners appellants that the premise is companyrect, but even so, .there are at least two answers which are sufficient to repel this companytention of the petitioners appellants. In the first place, it is number companyrect to say that there was any variation in the companydition of service in regard to promotion applicable to number graduate Supervisors from the erstwhile State of Hyderabad immediately prior to 1st November, 1956. It is true that a rule which companyfers a right of actual promotion or a right to be companysidered for promotion is a rule prescribing a companydition of service. This proposition can numberlonger be disputed in view of several pronouncements of this Court on the point and particularly the decision in Mohammed Bhakar v. Krishna Reddy 1 where this Court, speaking through Mitter, J., said Any rule which affects the promotion of a person relates to his companydition of service. But when we speak of a right to be companysidered for promotion, we must number companyfuse it with mere chance of promotion-the latter would certainly number be a, companydition of service. This Court point out in State of Mysore v. G. B. Purohit 2 that though a right to be companysidered for promotion is a companydition of service, mere chances of promotion are number. A rule which merely affects chances of promotion cannot be regarded as varying a companydition of service. What happened in State of Mysore v. G. B. Purohit 2 was that the district wise seniority of Sanitary Inspectors was changed to State wise seniority and as a result of this change, the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to section 115, sub-section 7 . This companytention was negatived and Wanchoo, J., as he then was, speaking on behalf of this Court observed It is said on behalf of the respondents that as their chances of promo- tion have been affected their companyditions of service have been changed to their disadvantage. We see numberforce in this argument because chances of promotion are number companyditions of service. Now, here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to number-graduate Supervisors from the erstwhile Hyderabad State for promo- tion, was reduced originally it was fifty per cent, then it became thirty-three and one third per cent, then one in eighteen and ultimately one in twenty-four. The right to be companysidered for promotion was number affected but the chances of promotion were severely reduced. This did number companystitute variation in the companydition of service applicable immediately prior to 1st November, 1956 and the proviso to section 115, sub-section 7 was number attracted. This view is companypletely supported by the decision, of a Constitution Bench of this Court in Ramchandra Shankar Deodhar Ors. v. The State of Maharashtra. 3 Secondly, even if the application of the Andhra Rules and the enactment of Andhra Pradesh Rules companystituted variation in the companydition, of service in regard to promotion applicable immediately prior to 1st November, 1956 to the disadvantage of number-graduate Supervisors from the erstwhile Hyderabad State, there was previous approval of the Central Government to such variation and the requirement of the pro- viso to section 115, sub-section 7 was satisfied. On 11th May, 1957, the Central, Government addressed a memorandum No. S.O. SRDI-IARM-57 to all State Governments. The Central Government pointed out in paragraph 2 of the memorandum that the question of protection to be afforded in the matter of various service companyditions to personal affected by reorganization was discussed with the State representatives at companyferences held with them and after careful companysideration of the views expressed at these companyferences, the Central Government had 1 1970 Service Law Reporter 768. C.A. No. 2281 of 1965, dec. on 25th January, 1967. W.P. No. 299 of 1969, dec. on 12th November, 1973 decided that the companyditions of service in regard to substantive pay of permanent and temporary employees, special pay, leave rules, pension, provident fund and dearness allowances applicable to personnel affected by the reorganisation immediately prior to the appointed day should be protected, but so far as companyditions of service in regard to travelling allowance, discipline, companytrol, classification, appeal, companyduct, probation and departmental promotion were companycerned, paragraph 3 of the memorandum stated that the decision of the Central Government was that it would number be appropriate to provide any protection in the matter of these companyditions. Paragraph 6 of the memorandum then proceeded to state In respect of such companyditions of service as have been specifically- dealt with in the preceding paragraphs, it win be open to the State Governments to take action in accordance with the decisions companyveyed therein and so long as State Governments act in companyformity with those decisions, they may assume the Central Governments approval in terms of the proviso to sub-section 7 of section 115 in the States ReOrganisation Act. In all other cases involving companydition of service number specifically companyered in the preceding paragraphs, it will be necessary for the State Government in terms of the above provisions before any action is taken to vary the pre- vious companyditions of service of an employee to his disadvantage. It will be evident from the memorandum and particularly paragraph 6 read with paragraph 3 that, so far as departmental promotion is companycerned, the Central Government told the State Governments that they might, if they so desire, change the companyditions of service and for this purpose they might assume the previous approval of the Central Government as required by the proviso to section 115, subsection 7 . The companyditions of service specifically dealt with in paragraph 3 of the memorandum included those relating to departmental promotion and under paragraph 6 of the memorandum, the Central Government gave its previous approval to any alteration which the State Governments might wish to make in the companyditions of service relating to departmental promotion, because, in the opinion of the Central Government, they did number need to be protected. The only argument which companyld be advanced against this companystruction of the memorandum was that a general omnibus approval granted in advance to any variation which might be made in the companyditions of service relating to departmental promotion companyld number be regarded as previous approval within the meaning of the proviso to section 115, sub- section 7 . But this argument stands companycluded by the decision of a Constitution Bench of this Court in N. Raghavendra Rao v. Deputy Commissioner, South Kanara, Mangalore. 1 The question which arose for determination in that case was whether the Mysore General Services Revenue Subordinate Branch Recruitment Rules, 1959 were made with the previous approval of the Central Government under the proviso to section 115, sub-section 7 . The respondents relied on the memoran- dum as amounting to previous approval of the Central Government to the alteration in the companyditions of service relating to promotion made by the Mysore General Service Revenue Subordinate Branch Recruitment Rules, 1959. This companytention of the respondents was accepted and it was held by this Court that the memorandum amounted to previous approval within the meaning of the proviso to section 115, sub-section 7 to the making of Mysore General Services Revenue Subordinate Branch Recruitment Rules, 1959. Sikri, J., as he then was, speaking on behalf of a unanimous Court said In our opinion, in the setting in which the proviso to section 115 7 is placed, the expression previous approval would include a general approval to the variation-in the company- ditions of service within certain limits, indicated by the Union Government. It has to be remembered that Art. 309 of the Constitution gives, subject to the provisions of the Constitution, full powers to a State Government to make rules. The proviso to s. 115 7 limits that power, but that limitation is removable by the Central Government by giving its previous approval. In this companytext, we think that it companyld number have been the intention of Parliament that Service Rules made by States would be scrutinize in the minutes detail by the Central Government. Conditions vary from State to State and the details must be filled by, each State according to its requirements. The broad purpose underlying the proviso to s. 115 7 of the Act was to ensure that the companyditions of service should number be changed except with the prior approval of the Central Government. In other words, before embarking on varying the companyditions of service, the State Governments should obtain the companycurrence of the Central Government. In the memorandum mentioned above, the Central Government, after examining various aspects, came to the companyclusion that it would number be appropriate to provide for any protection in the matter of travelling allowance, discipline companytrol, classification, appeal, companyduct, probation and departmental promotion. In our opinion, this amounted to previous approval within the proviso to s. 115 7 . It may be mentioned that by this memorandum the State Governments were required to send companyies of all new rules to the Central Government for its information. Therefore, in our opinion, there is numberforce in the first companytention of the learned companynsel for the petitioner. and we hold that the rules were validly made. These observations made on behalf of a Bench of five Judges of this Court are binding upon us. Even otherwise they have our full companycurrence. The view taken by the Court in this case is sound and companymends itself to us. In fact that is the only view possible on a companyjoint reading of paragraphs 3 and 6 of the memorandum. This decision leaves numberroom for doubt that. by issuing the memorandum the centrals Government gave its previous approval to any variation which might be made in the companyditions of service relating to promotion within the 12.-Ll77 Sup CI/75 meaning of the proviso to section 115, sub-section 7 . No alteration in the companyditions of service relating to promotion companyld thereafter be struck down as invalid on the ground of companytravention of the mandatory requirement of the proviso to section 115, sub-section 7 . But we find that unfortunately in some of the subsequent decisions of this Court the true ratio of the decision in Raghavendra Raos case 1 does number seem to have been properly appreciated and that decision has been sought to be explained away on a ground which appears to be rather unconvincing. The first decision in which a departure from the ratio in Raghavendra Raos case 2 was attempted to be made by resort to the process of distinguishing it was Mohammed Bhakar v. Krishna Reddy. 2 The validity or the Amendment Rules of 1966 made by the Governor of Mysore was challenged in that case on the ground that they varied the companydition of service in regard to promotion applicable to Assistants immediately, prior to 1st November, 1956 by introducing a requirement that in order to qualify for pro- motion to the cadre of Senior Assistant, they must pass certain departmental examinations and this was done without obtaining the previous approval of the Central Government as required by the proviso to section 115, sub-section 7 . On the view taken in Raghavendra Raos case, 1 the previous approval of the Central Government was already to be found in the memorandum dated 11th May, 1957 and there was numberneed to obtain the previous approval of the Central Government over again for the making of the Amendment Rules, 1966 but a Bench of three judges of this Court distinguished the decision in Raghavendra Raos case, 1 by saying that Before the High Court great reliance was placed on the judgment of this Court in Raghavendra Rao v. Dy. Commissioner, South Kanara 1 wherein reference was made to the memorandum of the Central Government as published by the Government of Mysore on 11th May 1957 and it was argued that this amounted to previous approval within the proviso to section 115 7 . In our opinion, however, a general remark like that companytained in the said judgment was number meant to lay down the proposition companytended for viz., that the previous approval of the Central Government was number required for prescribing departmental examinations as a qualification for promotion It appears to us that the letter of 11th May 1957 cannot be integrated as sought by the State of Mysore on the strength of the observations of this Court in Raghavendra Raos case supra . and held that since, apart from the memorandum dated 11th May, 1957, the previous approval of the Central Government had number been obtained by the Governor of Mysore before the making of the Amendment Rules, 1966, they were ineffective and void. With the greatest respect to the learned Judges who decided this case. we do number think they were right in explaining away the decision in Raghavendra Raos ,case 3 in the manner they did. We are afraid they did number companyrectly appreciate the true ratio of the decision in Raghavendra Races 1 1964 7 S.C.R. 549. 2 1970 Service Law Reporter 768. case, supra for there can be numberdoubt that if they had, they companyld number have, companysistently with that decision, companye to-the companyclusion that the Amendment Rules, 1966 were made by the Governor of Mysore without the previous approval of the Central Government. We may then refer to the decision of a Bench of two Judges of this Court in G. D. Vaid v. State of Punjab. 1 The question in this case was whether the Punjab Police Clerical Service State Service Class III Rules, 1960, which dealt with promotion, were made with the previous approval of the Central Government as required by the proviso to section 115, sub-section 7 . The appellant, who asserted the validity of these Rules, relied on the decision in Raghavendra Raos case supra for showing that these Rules were made with the previous approval of the Central Government and there was numbercontravention of the proviso to section 115, subsection 7 . Jaganmohan Reddy, J., speaking on behalf of the Court, however, negatived the plea of the appellant in the following words The Appellant says that in Raghavendra Rao v. Deputy Commissioner South Kanara this Court had observed that the previous approval will be presumed. This companystruction would be a misreading of the judgment The cir- cumstances in which such a direction was given justified this Court from companying to the companyclusion that previous approval was given to the making of the rules. In any case in a subsequent decision of this Court in Mohammed Bhakar Ors. v. Krishna Reddy Ors. supra it was explained that generally the remarks like that companytained in Raghavendra Raos case were number meant to lay down the proposition companytended for namely that the previous approval of the Central Government was number required for prescribing departmental examinations as a qualification for promotion There is in our view numberforce in the companytention urged by the appellant before us that the rules of 1960 made by the Punjab Government must be deemed to have received the previous approval of the Central Government. The proviso to sub-sec. 7 of sec. 115 is clear and categorical and therefore previous approval must number be presumed but must be either categorically given or that approval becomes unmistakably apparent from the companyrespondence between the State, Government and the Central Government. These observations are plainly in companytradiction of the decision in Raghavendra Raos case. It is indeed difficult to see bow the Rules in question companyld be said to have been made without the previous approval of the Central Government when this Court said in so many terms in Raghavendra Raos case that the Central Government came to the companyclusion that it would number be appropriate to provide for any protection in the matter--of departmental promotion and this amounted to previous approval within the proviso to section 115, subsection 7 . Perhaps the Division Bench in this case was driven to 1 1972 1 S.C.R. 896. adopt this rather unconvincing line of reasoning because it was faced with the decision in Mohammed Bhakar v. Krishna Reddy,. supra and had to find some way of reconciling it with the decision it Raghavendra Raos case. supra The last decision to which we may refer in this companynection is the decision of a Bench of three Judges of this Court in State of Haryana v. S. J. Bahadur 1 Hegde, J., speaking on behalf of the Court, reiterated that the scope of the Memorandum dated 11th May, 1957 had been companysidered by this Court in Mohammed Bhakar v. Krishna Reddy supra and in that case it was held by this Court that the memorandum cannot be companysidered as permitting the State Governments to alter any companyditions of service relating to the promotion of the affected Government servants. We have already shown bow this view taken in Mohammed Bhakar v. Krishna Reddy supra and followed in G. D. Vaid v. State of Punjab supra runs companynter to the decision in Raghavendra Raos case supra and we need riot add anything more to what we have already said in this companynection. We affirm the de- cision in Raghavendra Raos case and hold that the memorandum dated 11th May, 1957 companystituted previous approval of the Central Government to any variation which might be made in the companyditions of service relating to promotion within the meaning of the proviso to section 115, sub-section 7 . We may point out that the decision in Raghavendra Raos case supra has been cited with approval by a Bench of five Judges of this Court as recently as 23rd August, 1972 in N. Subba Rao v. Union of India. 2 It must, therefore, be companycluded that in any view of the, matter the Andhra Rules and the Andhra Pradesh Rules did number companytravene the proviso to section 115, subsection 7 . Re. C That takes us to the next ground of companyplaint of the petitioners appellants. The companytention of the petitioners appellants under this head of companyplaint was that by reason of the decision of the Government of Andhra Pradesh companytained in the order dated 7th April, 1960, the Supervisors from the erstwhile Hyderabad State including the petitioners appellants were governed by the Hyderabad Rules in the matter of promotion to a post one stage above the post of Supervisor held by them on the appointed day, i.e., 1st November, 1956. The post of Sub-Engineer having been equated with the post of Assistant Engineer, urged the petitioners appellants, one stage promotion from the post of Supervisor was to the post of Assistant Engineer and companysequently, promotion of the Supervisors from the erstwhile Hyderabad State to the post of Assistant Engineer was governed by the Hyderabad Rules and number by the Andhra Rules from and after 1st November, 1956 and promotions made on the basis of Andhra Rules must accordingly be reviewed and adjusted. This companytention of the petitioners appellants is, in our opinion, untenable and cannot be accepted. It can hardly be disputed that under the Hyderabad Rules, the post one stage above that of Supervisor was the post of Sub-Engineer 1 1973 1, S.C.R. 249. 2 A.I.R. 1973 S.C. 69. and it was only from the post of Sub-Engineer that promotion lay to the post of Assistant Engineer. The post of Assistant Engineer was, therefore, number a post of one stage promotion from the Post of Supervisor. Now the cadre of Sub-Engineers was abolished by the Government of Andhra Pradesh with effect from 1st November, 1956 and some way had, therefore, to be found to absorb and assimilate officers holding the post of Sub-Engineer immediately prior to 1st November, 1956 in the Engineering Service of the State of Andhra Pradesh. The,, Government of Andhra Pradesh accordingly promoted these officers as Assistant Engineers with effect from 31st October, 1956 afternoon so that on 1st November, 1956 when the reorganisation of the States took place, they were Assistant Engineers drawing either the Telengana scale of pay or the Andhra scale of pay according as they were graduates or number-graduates and they companyld be integrated in the same category as Assistant Engineers from the Telengana and Andhra regions. Since, however, they were number really and in fact Assistant Engineers immediately prior to 1st November, 1956 but were merely Sub-Engineers promoted as Assistant Engineers only for the purpose of integration they were paced en bloc below the Assistant Engineers of the Telengana and Andhra regions in seniority. Vide the order of the Government of Andhra Pradesh dated 22nd December, 1960 and the letter of the Central Government dated 24th December, 1965. But this does number mean that the post of Sub-Engineer was equated with that of Assistant Engineer in the State of Andhra Pradesh. The post of Sub-Engineer was abolished and there was numberquestion of equating it with the post of Assistant Engineer. It was only in order to integrate the existing incumbents of the cadre of Sub- Engineers for whom there was numbercorresponding cadre in the State of Andhra Pradesh that a provision had to be made promoting them as Assistant Engineers with retrospective effect from 31st October, 1956 afternoon with a view to assimilating them in the category of Assistant Engineers, though at the bottom of that category. It is difficult to imagine how in these circumstances any promotion companyld be made from the post of Supervisor to the post of Assistant Engineer according to the Hyderabad Rules. The one stage promotion from the post of Supervisor companytemplated by the Hyderabad Rules was to the post of Sub-Engineer and companysequently, if the cadre of Sub-Engineer had companytinued in the reorganised State of Andhra Pradesh, there can be numberdoubt that, according to the decision companytained in the order dated 7th April, 1960, the promotion of Supervisors from the erstwhile Hyderabad State to the post of Sub-Engineer would have been governed by the Hyderabad Rules. But with a view to bringing about integration of the Engineering Service, the cadre of Sub-Engineers was abolished by the Government of Andhra Pradesh, and therefore, so far as- promotion from the post of Supervisor was companycerned, the Hyderabad Rules ceased to have application. The Hyderabad Rules companyld number govern promotion from the. post of Supervisor to the post of Assistant Engineer, because numbersuch promotion was provided or companytemplated in the Hyderabad Rules. In fact, if the Andhra Rules were number made applicable to Supervisors from the erstwhile Hyderabad State, all further chances of promotion for such of them as were number-graduates would have been barred, because under the Hyderabad Rules they companyld be promoted only to the post of Sub- Engineer and numberhigher and the cadre of Sub-Engineers was abolished. The next higher stage of promotion from the post of Supervisor in the reorganised State of Andhra Pradesh was the post of Assistant Engineer and promotion to that post companyld be governed only by- the Andhra Rules which companytemplated such promotion and made express provision for it. The petitioners appellants were, therefore, number entitled to claim that Supervisors from the erstwhile Hyderabad State should have been promoted as Assistant Engineers in the reorganised State of Andhra Pradesh according to the Hyderabad Rules. The petitioners appellants then relied on rule 42 h i of the Andhra Pradesh State and Subordinate Service Rules, 1962 for invoking the applicability of the Hyderabad Rules, in the matter of promotion to the post of Assistant Engineer. But we fail to understand how rule 42 h i can be of any assistance to the petitioners appellants. Rule 42 h i provides that numberhing in the Andhra Rules or the Andhra Pradesh Rules shall disqualify or shall be deemed to have ever disqualified a Supervisor from the erstwhile Hyderabad State for promotion on or after 1st November, 1956 to a post one stage above that held by him and prior to the said date, if in the opinion of the appointing authority such Supervisor would have been qualified for promotion to such post under the Hyderabad Rules. Here the post of Assistant Engineer to which Supervisors from the erstwhile State of Hyderabad claimed to be promoted on or after 1st November, 1956 was undoubtedly one stage above that held by the Supervisors, there being numberintermediate post in the reorganised State, but it cannot be said that the Supervisors would have been qualified for promotion to the post of Assistant Engineer under the Hyderabad Rules, if recruitment to the post of Assistant Engineer had been regulated by the Hyderabad Rules. In the first place, the Hyderabad Rules did number provide for promotion directly from the post of Supervisor to the post of Assistant Engineer, and secondly, under the Hyderabad Rules, a number-graduate Supervisor would number have been qualified for promotion to the post of Assistant Engineer. The companytention based on Rule 42 h i must also, therefore, be rejected. Re. D E Now we proceed to companysider the challenge based on infraction of articles 14 and 16 of the Constitution. Article 14 ensures to every person equality before law and equal protection of the laws and article 16 lays down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Article 16 is only an instance or incident of the guarantee of equality enshrined in article 14 it gives effect to the doctrine of equality in the sphere of public employment. The companycept of equal opportunity to be found in article 16 permeates the whole spectrum of an individuals employment from appointment through promotion and termination to the payment of gratuity and pension and gives expression to the ideal of equality of opportunity which is one of the great socioeconomic objectives set out in the Preamble of the Constitution The companystitutional companye of equality and equal opportunity, however, does number mean that the same laws must be applicable to all persons. It does number companypel the State to run all its laws in the channels of general legislation. It recognizes that having regard to differences and disparities which exist among men and things, they cannot all be treated alike by the application of the same laws To recognise marked differences that exist in fact is living law to disregard practical differences and companycentrate on some abstract identities lifeless logic. 1 The Legislature must necessarily, if it is to be effective at all in solving the manifold problems which companytinually companye before it, enact special legislation directed towards specific ends and limited in its application to special classes of person or things. Indeed, the greater part or all legislation is special, either in the extent to which it operates, or the objects sought to be attained by it. We thus arrive at the point at which the demand for equality companyfronts the right to classify. For it is the classification which determines the range of persons affected by the special burden or benefit of a law which does number apply to all persons. This brings out a paradox. The equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. And, as pointed out by Justice Brewer, the very idea of classification is that of inequality. The companyrt has tackled this paradox over the years and in doing so, it has neither abandoned the demand for equality number denied the legislative right to classify. It has adopted a middle companyrse of realistic reconciliation. It has resolved the companytradictory demands of legislative specialization and companystitutional generality by a doctrine of reasonable classification. This doctrine recognizes that the legislature may classify ,for the purpose of legislation but requires that the classification must be reasonable. It should ensure that persons or things similarly situated are all similarly treated. The measure of reasonableness of a classification is the degree of its success in treating similarly those similarly situated. 2 But the question is what does this ambiguous and crucial phrase ,,similarly situated mean ? Where are we to look for the test of similarity of situation which determines the reasonableness of a classification ? The inescapable answer is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons or things similarly situated with respect to the purpose of the law. There should be numberdiscrimination between one person or thing and another, if as regards the subject-matter of the legislation their position is substantially the same. This is sometimes epigrammatically described by saying that what the companystitutional companye of equality and equal opportunity requires is that among equals, the law should be equal and that like should be treated alike. But the basic principle underlying the doctrine is that the legislature should have the right to classify and impose special burdens upon or grant special benefits to persons or things grouped together under the classification, so long as the classification is of persons or things similarly Morey v.Doud, 354 U. S. 457, 473. The Equal protection of the Laws, 37 California Law Review, 341. situated with respect to the purpose of the legislation, so that all persons or things similarly situated are treated alike by law. The test which has been evolved for this purpose is-and this test has been companysistently applied by this Court in all decided cases since the companymencement of the Constitution-that the classification must be founded on an intelligible differentia which distinguishes certain persons or things that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the legislation. But we have to be companystantly on our guard to see that this test which has been evolved as a matter of practical necessity with a view to reconciling the demand for equality with the need for special legislation directed towards specific ends necessitated by the companyplex and varied problems which require solution at the hands of the legislature, does number degenerate into rigid formula to be blindly and mechanically applied whenever the validity of any legislation is called in question. The fundamental guarantee is of equal protection of the laws and the doctrine of classification is only a subsidiary rule evolved by companyrts to give a practical companytent to that guarantee by accommodating it with the practical needs of the society and it should number be allowed to submerge and drown the precious guarantee of equality. The doctrine of classification should number be carried to a point where instead of being a useful servant, it becomes a dangerous master, for otherwise, as pointed out by Chandrachud, J., in State of Jammu Kashmir v. Triloki Nath Khosa, 1 the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well-marked classes characterised by different and distinct attainments. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive, the guarantee of equality of its spacious companytent. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality the fundamental right to equality before the law and equal protection of the laws may be replaced by the overworked methodology of classification. Our approach to the equal protection clause must, therefore, be guided by the words of caution uttered by Krishna Iyer, J., in State of Jammu Kashmir v. Triloki Nath Khosa 1 Mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have companystitutional validity. To overdo classification is to undo equality. It is in the light of these principles that we must proceed to examine the companystitutional validity of the Andhra Pradesh Rules. The companyplaint of the petitioners under the head of companytention E is that the Andhra Pradesh Rules make unjust discrimination between graduates and number-graduates in the matter of promotion of Supervisors as Assistant Engineers. Now, whether we look at the unamended or the amended Andhra Pradesh Rules, it is clear that graduate Supervisors are given a preferential treatment over number-graduate Supervisors, in 1 9974 1 S.C.C. 19. that two out of every three vacancies initially, and after the amendment, three out of every four vacancies in the posts of Assistant Engineers are reserved for promotion of graduate Supervisors and only the remaining one vacancy is left to be filled by promotion of number-graduate Supervisors. The question is whether this preferential treatment can be justified on the basis of any reasonable classification or it is arbitrary and irrational. The law as it stands to-day is clear that the burden is always on him who attacks the companystitutionality of a legislation to show that the classification made by it is unreasonable and violative of articles 14 and 16. Has this burden been discharged by the petitioners appellants have they shown that the classification of Supervisors into graduates and number- graduates for the purpose of promotion as Assistant Engineers is unrelated to the object of the Andhra Pradesh Rules, or in other words, it is arbitrary and unreasonable ? Now, there are three decisions of this Court where educational qualifications have been recognised as forming a valid basis for classification. In State of Mysore v. Narasing Rao 1 this Court held that higher educational qualifications such as success in S.S.L.C. examination are relevant companysiderations for fixation of higher pay scale for tracers who have passed the S.S.L.C. examination and the classification of two grades of tracers in Mysore State, one for matriculate tracers with higher pay scale and the outer for number-matriculate tracers with lower pay scale, cannot be said to be violative, of articles 14 or 16. So also in Union of India v. Dr. Mrs. S. B. Kohli, 2 a Central Health Service Rule requiring that a Professor in Orthopedics must have a post graduate degree in particular speciality was upheld on the ground that the classification made on the basis of such a requirement was number without reference to the objectives sought to be achieved and there can be numberquestion of discrimination. A very similar question arose in State of Jammu Kashmir v. Triloki Nath Khosa supra where a rule which provided that only degree holders in the cadre of Assistant Engineers shall be entitled to be companysidered for promotion to the next higher cadre of Executive Engineers and diploma holders shall number be eligible for such promotion, was challenged as violative of the equal opportunity clause. This Court repelled the challenge holding that though persons appointed directly and by promotion were integrated into a companymon class of Assistant Engineers. they companyld, for the purposes of promo- tion to the cadre of Executive Engineers, be classified on the basis of educational qualifications and the rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders, was number obnoxious to the fundamental guarantee of equality and equal opportunity. But from these decisions it cannot be laid down as an invariable rule that whenever any classification is made on the basis of variant educational qualifications, such classification must be held to be valid. irrespective of the nature and purpose of the classification or the quality and extent of the difference in the educational qualifications. It must be remembered that life has 1 1968 1 S.C.R. 407. 2 1973 3 S.C.C. 592. relations number capable always of division into inflexible companypartments. The moulds expand and shrink. The test of reasonable classification has to be applied in such case on its peculiar facts and circumstances. It may be perfectly legitimate for the administration to say that having regard to the nature of the functions and duties attached to the post, for the purpose of achieving efficiency in public service, only degree holders in engineering shall be eligible for promotion and number diploma or certificate holders. That is what happened in, State of Jammu Kashmir Triloki Nath Khosa supra and a somewhat similar position also obtained in Union of India v. Dr. Mrs. S. B. Kohli. supra But where graduates and number-graduates are both regarded as fit and, therefore, eligible for promotion, it is difficult to see how, companysistently with the claim for equal opportunity, any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treatment to, graduates over number-graduates in the matter of fixation of such quota. The result of fixation of quota of promotion for each of the two cate- gories of Supervisors would be that when a vacancy arises in the post of Assistant Engineer,, which, according to the quota is reserved for graduate Supervisors, a number-graduate Supervisor cannot be promoted to that vacancy, even if he is senior to all other graduate Supervisors and more suitable than they. His opportunity for promotion would be limited only to vacancies available for number-graduate Supervisors. That would clearly amount to denial of equal opportunity to him. When there is a vacancy earmarked for graduate Supervisors, a number-graduate, Supervisor would be entitled to ask I am senior to the graduate Supervisor who is intended to be promoted. I am more suitable than he is. It is numberdoubt true that I am a number-graduate, but my number being a graduate has number been branded as a disqualification. I am regarded fit for promotion and, like the graduate Supervisor, I am equally eligible for being promoted. My technical equipment supplemented by experience is companysidered adequate for discharging the functions of Assistant Engineer. Then why am I being denied the opportunity for promotion and the graduate Supervisor is preferred? There can be numbersatisfactory answer to this question. It must be remembered that many of these number-graduate Supervisors might number have been able to obtain degree in engineering because they came from poorer families and did number have the financial resources to pursue degree companyrse in engineering and number because they lacked the necessary capacity and intelligence. Chill penury might have repressed their numberle rage. It is of the essence of equal opportunity for such persons with humble and depressing backgrounds that they should have opportunity, through experience or self- study, to level up with their more fortunate companyleagues who, by reason of favourable circumstances, companyld obtain the benefits of-higher education, and if they prove themselves fit and more suitable than others, why should they be denied an opportunity to be promoted in a vacancy on the ground that vacancy belongs to Supervisors possessing higher educational qualifications. As pointed out by Krishna Iyer, J., in the State. of Jammu Kashmir v. Triloki Nath Khosa supra the soul of Art. 16 is the promotion of the companymon mans capabilities, over-powering environmental adversities and opening up full. opportunities to develop in official life without succumbing to the sophistic argument of the elite that talent is the privilege of the few and they must rule. To permit discrimination based on educational attainments number obligated by the nature of the duties of the higher post is to stifle, the social thrust of the equality clause. A. rule of promotion which, while companyceding that number-graduate Supervisors are also fit to be promoted as Assistant Engineers, reserves, a higher quota of vacancies for promotion for graduate Supervisors as against number-graduate Supervisors, would clearly be calculated to destroy the guarantee of equal opportunity. But even so, we do number think we can be persuaded to strike down the Andhra Pradesh Rules in so far as they make differentiation between graduate and number-graduate Supervisors. This differentiation is number somethingbrought about for the first time by the Andhra Pradesh Rules. It has always been there in the Engineering Services of the Hyderabad and the Andhra States. The graduate Supervisors have always been treated as a distinct and separate class from number-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules, the pay scale of graduate Supervisors was Rs. 176-300, while that of number-graduate. Supervisors was Rs. 140-300 and similarly, under the Andhra Rules the pay scale of number-graduate Supervisors was Rs. 100-250, but graduate Supervisors were started in this pay scale at the stage of Rs. 150/- so that their pay-scale was Rs. 150-250. Graduate Supervisors and number-graduate Supervisors were also treated differently for the purpose of promotion under both sets of Rules. In fact,, under the Andhra Rules a different numberenclature of Junior Engineers was given to graduate Supervisors. The same differentiation into two classes also persisted in the reorganised State of Andhra Pradesh. The pay-scale of JuniorEngineers was always different from that of number-graduate Supervisors and for the purpose of promotion, the two categories of Supervisors were kept distinct and apart under the Andhra Rules even after the appointed day. The companymon gradation list of Supervisors finally approved by the Government of India also companysisted of two parts, one part relating to Junior Engineers and the other part relating to numbergraduate Supervisors. The two categories of Supervisors were thus never fused into one class and numberquestion of unconstitutional discrimination companyld arise by reason of differential treatment beinggiven to them. Condition E cannot, therefore, prevail and must be rejected. That takes us to companytention D. So far as this companytention is- companycerned, we do number think we can be called upon to decide it. It does number form the subject matter of Writ Petition No. 385 of 1969. There is numbercomplaint in this petition in regard to the classificationof number-graduate Supervisors into different categories and reservation of vacancy for each category in the cyclic order of rotation for promotion to the posts of Assistant Engineers. When we turn to the judgment of the Full Bench impugned in the appeals, we find that there is discussion in that judgment in regard to the rotational system of promotion prescribed under the Andhra Pradesh Rules, but that discussion is mainly in the companytext of an argument challenging the different proportions of vacancies allotted to graduate and number-graduate Supervisors. No specific companytention seems to have been advanced directly impugning the distribution of the vacancies allotted to number-graduate Supervisors. It is true that there is reference in the judgment to the distribution of the number-graduate Supervisors quota of vacancies amongst different classes of number-graduate Supervisors, but that reference is on account of the fact that the respondents relied on this factor as justifying the rotation system as between graduate Supervisors and number- graduate Supervisors. It is indeed difficult to see how the Full Bench companyld have possibly examined the challenge against distribution of vacancies amongst different categories of number-graduate Supervisors in the cyclic order of rotation when such challenge did number arise out of any averments in the writ petitions, and moreover, all directly recruited number-graduate Supervisors and promotee number-graduate Supervisors holding LCE, LME or LEE diplomas, who would be affected by an adverse decision, were number before the High Court. We are of the view that in the absence of necessary averments in regard to this challenge in the writ petitions before the High Court as also in Writ Petition No. 385 of 1969 before this Court and particularly the number-graduate Supervisors, who would be affected by an adverse decision, number being before the High Court or this Court to companytest such challenge, it was number possible for the High Court and it is equally number possible, for this Court to entertain this challenge and examine its validity on merits. We, therefore, refuse to companysider companytention D. We accordingly dismiss the writ petitions and appeals.

Case appeal was rejected by the Supreme Court

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

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 1424 1612 of 1973. Petitions under Article 32 of the Constitution of India for enforcement of fundamental rights. V. Gupte in W.P. No. 1424/73 only, A. Subba Rao and Narayana Rao, for the petitioners appellants . Basi and P. P. Rao, for the respondents. The Judgment of the Court was delivered by ALAGIRISWAMI, J. The question for decision in these cases is about the liability to sales tax under the Andhra Pradesh General Sales Tax Act of Watery companyonuts. The Act companytains four schedules. The First Schedule companytains goods in respect of which a single point sales tax only is leviable under section 5 2 a . The Second Schedule companytains goods in respect of which a single point purchase tax only is leviable under section 5 2 b . The Third Schedule companytains declared goods in respect of which a single point tax only is leviable under section 6. The Fourth Schedule companytains goods exempted from tax under section 8. By an amendment made in 1961, there was till 1963 only one entry, companyonuts, in the Third Schedule and the Fourth Schedule companytained tender companyonuts which are useful only for drinking purposes which were exempted from tax. An explanation to the Third Schedule read as follows The expression companyonuts in this Schedule means fresh or dried companyonut shelled or unshelled including companyra, but excluding tender companyonuts. By Amending Act XVI of 1963 this explanation was replaced by another explanation, which read The expression companyonuts in this Schedule means dried companyonuts, shelled or unshelled including companyra,. but excluding tender companyonuts, Thus companyonuts were divided only into two classes, companyonuts as defined in the explanation and tender companyonuts. After the amendment of 1963 certain dealers questioned their liability to tax on the purchases made by them of watery companyonuts. That challenge was upheld by a learned Single Judge of the Andhra Pradesh High Court in Sri Krishna Coconut Co. v. Comml. Tax Officer 16 STC 511 The learned Judges reasoning was that a fully grown companyonut with a well-developed kernel which companytains water companyld number be called either a tender or a dried companyonut, and that this was the well-known variety of companyonuts used for culinary purposes and on auspicious occasions and as part of the offerings in temples. He drew particular support for his companyclusion from the omission of the word fresh from the new explanation in the Third Schedule. Thereafter, by Amending Act 18 of 1966 the explanation in the Third Schedule was replaced by another explanation which read The expression companyonuts in item 5 means dried companyonuts, shelled or unshelled including companyra, but does number include watery companyonuts falling under item 10 of the Second Schedule and tender companyonuts failing under item 9 of the Fourth Schedule. At the same time item 10 watery companyonuts was included in the Second Schedule and to this there was an explanation added which read The expression watery companyonuts in item 10 includes all companyonuts other than companyonuts falling under item 5 of the Third Schedule and tender companyonuts falling under item 9 of the Fourth Schedule. Thus for the first time companyonuts were divided into three classes, tender companyonuts, watery companyonuts and companyonuts. After this the question arose whether watery companyonuts are oilseeds and as such declared goods within the meaning of that term in item 6 of section 14 of the Central Sales Tax Act and the Andhra Pradesh High Court in Tagoob Mohammad v. Comml. Tax Officer 28 STC 110 held that watery companyonuts were oilseeds. It was thereafter that the Andhra Pradesh Legislature passed Amending Act XII of 1971 which came into force on 17-4-1971. By that Act item 10 in Second Schedule relating to watery companyonuts and the explanation thereto were omitted and this amendment was given effect to from 1-8-1963. Item 5 of the Third Schedule was amended as companyonuts of all varieties and a new item 5-A was introduced which reads as follows 5-A. i At the point of last purchase in the State Watery during the period companymencing on the 1st Coconuts August, 1963 and ending with the 31st March, 1965. At the point of first sale in the State 2 paise in during the period companymencing on the 1st the rupee April, 1965 and ending with the 22nd December, 1966. At the point of first purchase in the State during the period companymencing on the 23rd December 1966, and ending with the date immediately before the date of the companymencement of the Andhra Pradesh General Sales Tax Amendment Act, 1971 3 paise in the rupee Provided that where during the aforesaid periods, any tax has been levied and companylected in respect of watery companyonuts and where tax has also been levied and companylected in respect of companyonuts formed out of such watery companyonuts, the tax so levied and companylected in respect of such watery companyonuts shall alone be refunded. Explanation 1 to Third Schedule which related to a definition of companyonut was also omitted. The Act also introduced two new sections, ss. 7 and 8 which read as follows Validation of assessments etc. Notwithstanding anything in any judgment, decree or order of any Court or other authority to the companytrary, and subject to the provisions of section 8, any assessment, reassessment, levy or companylection of any tax made or purporting to have been made, any action or thing taken or done in relation to such assessment, reassessment, levy or companylection under the provisions of the principal Act before the companymencement of this Act, shall be deemed to be as valid and effective as if such assessment, re- assessment, levy or companylection or action or thing had been made, taken or done under the principal Act as amended by this Act and accordingly- a all acts, proceedings or things done or taken by the State Government or by any officer of the State Government or by any other authority in companynection with the assessment, reassessment, levy or companylection of such tax, ,,hall for all purposes, be deemed to be and to have always been, done or taken in accordance with law b numbersuit or other proceedings shall be maintained or companytinued in any companyrt or before any authority for the refund of any such tax and c numbercourt shall enforce an decree or order directing the refund of any such tax. It is hereby declared that numberhing in sub-section 1 shall be companystrued as preventing any person a from questioning in accordance with the provisions of the principal Act, as amended by this Act, any assessment, reassessment, levy or companylection of tax referred to in sub- section 1 or b from claiming refund of any tax paid by him in excess of the amount due from him by way of tax under the principal Act as amended by this Act Provided that every application for any relief under this sub-section shall be made by the person companycerned to the assessing authority within a period of one year from the date of the companymencement of this Act and the assessing authority may, after making such inquiry as he deems necessary and after giving the person companycerned an opportunity of being heard, pass such order as he deems fit. Revision of assessment on companyonuts Notwithstanding anything in any judgment, decree or order of any companyrt or other authority to the companytrary, the assessing authority may assess or reassess the amount of tax payable by the dealer on his turnover relating to companyonuts of all varieties during the period companymencing on the 1st August, 1963 and ending with the date immediately before the date of the companymencement of this Act, in accordance with the provisions of the principal Act, as amended by this Act. Notwithstanding the expiration of any of the periods specified in section 14 of the principal Act, an assessment or reassessment under sub-section 1 may be made within a period of one year from the date of companymencement of this Act. Another statutory provision which should be numbericed is section 14 of the Central Sales Tax Act with regard to what are called declared goods. Item vi therein originally read as follows oil-seeds, that is to say, seeds yielding number-volatile oils used for human companysumption, or in industry, or in the manufacture of varnishes, soaps and the like, or in lubrication and volatile oils used chiefly in medicines, perfumes, companymetics and the like By Amendment Act LXI of 1972, which came into effect on 1-4-73 it was amended as follows Oilseeds, that is to say, Coconut i.e. companyra excluding tender companyonuts companyos nucifera After the amendments made by Act XII of 1971 a number of writ petitions were filed before the High Court of Judicature, Andhra Pradesh. They were all dismissed by a Division Bench companysisting of. the learned Chief Justice and Justice Lakshmaiah. The civil appeals are by some of the petitioners therein and the writ petitions are filed by certain other dealers direct to this Court under Art. 32 of the Constitution, It is unnecessary to companysider whether the Andhra Pradesh High Court was right in its decision that watery companyonut is an oilseed for the reasons given by them, especially after the amendment made by the Central Act which seems to proceed on the basis that only companyra is an oilseed as the Andhra Pradesh Act proceeds on the basis that watery companyonut is also an oilseed. That amendment applies only to the period after 1 April 1973 and these appeals and petitions relate to the period before 17 April 1971. Mr. Basi Reddy appearing for the State of Andhra Pradesh does number seek to question this finding either. Undoubtedly, it is the watery companyonut that in due companyrse becomesdry companyonut or companyra. Mr. Basi Reddy does number even seek to arguethat the same watery companyonut after having suffered tax should also be taxed as dry companyonut. The first point to be numbericed about the 1971 amendment is that in one of its aspects it deals with the period between August 1963 to April 1971 and validates taxes already levied and companylected. There fore, the proviso to entry 5-A of Schedule III which provides for refund does number really suffer from the defect pointed out by this Court in Bhawani Cotton Mills case 20 STC 290 that a provision for taxation which would number be justifiable cannot be upheld merely on the ground that it provides also for a refund. The various periods mentioned in item 5-A are there because of historical reasons and they are only reproductions of provisions of earlier law. The decision in the Bhawani Cotton Mills case on which the petitioners relied cannot apply in this case because in the Act there under companysideration there was numberprovision indicating the stage at which the tax was to be levied. The very same levy was upheld in Rattan Lal Co. v. Assessing Authority 25 STC 136 after the Act was amended by specifying the stage as the last purchase or sale of declared goods by a dealer liable to pay the tax and making the stage quite clear, and by giving the dealer an option number to include other transactions in his returns and thus saving him from the liability to pay the tax till he was the dealer liable to pay the tax. This Court then pointed out that the information whether his was the, last purchase or sale was always possessed by a dealer and by providing that he need number include inhis turnover any transaction except when he was the last dealer, the position was made clear. It is this decision that will be applicable to the facts of this case. In this companynection we may point out that the provisions of Rule 45 of the Andhra Pradesh General Sales Tax Rules are similar. It provides that every dealer has to maintain a true and companyrect account showing the value of the goods produced, manufactured, bought and sold by him, the names and addresses of the persons from whom goods were purchased, supported by a bill or delivery numbere issued by the seller. Every dealer carrying on business in the goods specified in the First, Second and Third Schedules whose total turnover exceeds Rs. 10,000 a year and every other, dealer whose turnover exceeds Rs. 20,000 a year shall issue a bill or cash memorandum in respect of every sale involving an amount of Rs. 5 or more. Every such bill or cash memorandum shall be duly signed and dated and a companynterfoil shall be kept by the dealer. The bills or cash memoranda issued by a dealer shall be serially numbered for each year and in each of the bills or cash memoranda issued the dealer shall specify the full name and style of his business, the number of his registration certificate, the particulars of goods sold and the price thereof and in the case of sales to a dealer the full name and address and the number of the registration certificate of the purchaser. The bill or cash memoranda issued in the case of sales of goods liable to a single point tax shall companytain the following certificate . . . . Certified that in respect of the turnover of the goods men- tioned in item s of this bill the tax has been paid or is payable by me or is payable by Sri M s. . . . being the dealer who has purchased them from me. These make it amply clear that there can be numberquestion of either a dealer in watery companyonuts or in dry companyonuts having to pay a tax over again hereafter. They can include in their return only goods which are liable to tax and need number include those which have already suffered tax. Another aspect of the 1971 Act that as a result of it there are two entries, 5 and 5A in Schedule III, namely companyonuts of all varieties and watery companyonuts there is numberpossibility of watery companyonuts, suffering tax after they become dried companyonuts, if they have already suffered tax as watery companyonuts. Rule 45 provides sufficient safeguards for this purpose. We also accept the companytention put forward on behalf of the State of Andhra Pradesh that watery companyonuts and dried companyonuts are two distinct companymodities companymercially speaking. Watery companyonuts ,ire put to a variety of uses e.g. for companyking purposes, for religious and social functions whereas dried companyonuts are used mainly for extracting oil. This Court has in a number of cases held that the same companymodity at different stages companyld be treated and taxed as companymercially different articles. In A. Hajee Abdul Shakoor Co. v.State of Madras 1964 8 SCR 217 this Court held that hides and skins in the untanned companydition are undoubtedly different as articles of merchandise than tanned hides and skins and pointed out that the fact that certain articles are mentioned under the same heading in a statute or the companystitution, does number mean that they all companystitute one companymodity. We may also refer to the decisions in Jagannath v. Union of India 1962 2 SCR 118 where tobacco in the whole leaf and tobacco in the broken leaf were treated as two different companymodities, East India Tobacco Co. v. State of Andhra Pradesh 1963 1 SCR 404 where Virginia tobacco and companyntry tobacco were treated as two different companymodities, and Venkataraman v. Madras 1970 1 SCR 615 where cane jaggery and palm jaggery were treated as two different companymodities. We do number think that the Act can be said to companytravene section 15 of the Central Sales Tax Act. Under the Act though watery companyonuts and dried companyonuts are treated separately there is a provision for refund when the same watery companyonuts, which have suffered tax, become dry ,coconut later. It is for this companytingency that, as we have pointed out earlier, provision for refund is made. In any case in the future numberdifficulty would arise as we pointed out earlier. In the result all the writ petitions and appeals are dismissed. The appellants and writ petitioners will pay the companyts- of the State of Andhra Pradesh, one set.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1755 to 1756 of 1969, 362 to 363 and 1918 to 1920 of 1970 and 490 to 492 of 1973. Appeals by Special leave from the Judgment and Order dated the 10th October, 1968, 11th March, 1969, 24th March, 1969 and 16th June, 1969 of the Mysore High Court in W.P. Nos. 3 322 and, 379/ 66, W.P. Nos. 800, 1186, 1188, 1190 1191, 1228-31 1233/69 and 3910, 3913, 3921, and 3932/68, 1189 and 1192/69, 1234/69, 20682070/69 respectively and special leave petitions Nos. 2015 to 2112 and 2408 to 2412 of 1969. From the Judgment and order dated 11th November, 1969 and 16th June, 1969 of the Mysore High Court in W.P. Nos. 3908, 3912, 3923, 3925, 3926, 3230, 3933 and 3933/ 68, and 2067, 2078 and 2080-2082/68. Shyamla Pappu and Vineet Kumar, for the appellants Petitioners. S. Ganguli and H. K. Puri for respondents. K. Pillai for the respondent. G. Ratnaparkhi for the respondent. V. Gupte, M. R. V. Achar, M. Rangaswamy and B. P. Singh for respondent. S. Chitale, M. Rangaswamy, M. R. V. Achar and B. P. Singh for respondent. N. Mishra for the respondent. The Judgment of the Court was delivered by BEG, J.-There are twenty two appeals by Special leave together with thirteen companynected special leave petitions involving a companymon question of law for decision before us. This question arises out of three approved schemes, which may be called the Anekal Scheme dated 15-4-1959, the Gulbarga Scheme dated 18-2-1960, and the Bangalore Scheme dated 7-6-1960, for the nationalisation under Chapter IVA of th-- Motor Vehicles Act, 1939 hereinafter referred to as the Act , of transport services on certain routes lying within the State of Mysore. But, parts of these intrastate routes overlap inter-state routes over which private transporters were granted permits and then their renewals by the State Transport authorities to ply their vehicles. The Mysore State Road Transport Corporation objects to these permits in so far as they companyer overlapping portions of intrastate routes. The companymon question of law which arises may be formulated as follows Can a permit be granted to an Inter-State Transport Operator for the whole of his route despite the fact that a part of the route overlaps a part of a numberified intra-State route ? There can be numberdoubt that the Mysore State Transport Under- taking has the power to frame a scheme under section 68C of Chapter IVA of the Act, providing in the public interest that road transport services in general or any particular class of such service in relation to area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, companyplete or partial, of other persons or otherwise. This power includes the power to exclude even inter-state motor operators altogether from a part of any numberified route. See Nilkanth Prasad Ors. Vs. State of Bihar 1 , Standard Motor Union Pvt Ltd. Vs. State of Kerala Ors 2 S. Abdul Khader Saheb Vs. Mysore Revenue Appellate Tribunal Ors. 3 The Transport authorities have numberpower to deviate from or modify the terms of approved schemes which have the force of law. They can issue or otherwise deal with permits only in accordance with the provisions of the schemes which may be either partial or total exclusion of private operators from numberified routes. We have to determine whether the schemes before us are of partial or total exclusion. Section 68C requires, as a companydition precedent to any exclusion of private operators under a scheme of nationalisation from any area or route or portion thereof, that the scheme should give particulars of the nature of services proposed to be rendered, the area or route proposed to be companyered and such other particulars respecting thereto as may be prescribed. Each scheme has to be published in the official Gazette and also in such manner, as the State Govt. may direct. A scheme finally emerges, after opportunities given under Section 68D of the Act for objections by persons interested in providing transport facilities as left as by local and police authorities within the area or upon the routes proposed to be companyered by a scheme, as an approved scheme in which the original proposals may or may number have been modified. Each scheme so approved can be either cancelled or modified by the State Transport Undertaking under Section 68E of the Act in accordance with the procedure laid down by Sections 68C and 68D of the Act. The power of the State Transport Undertaking to prohibit the use of any portion of a route by Inter-state operators has number been questioned before us. Nevertheless, it may be pertinent to point out that this Court thus indicated in Saghir Ahmed Anr. v. State of U.P. Ors., 4 the nature of the right of the public to use public roads at page 717 But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right 1 1962 1 Suppl. S.C.R. 728. 2 1969 1 S.C.R. 464. AIR 1973 S.C. 534. 4 1955 1 S.C.R. 707, 717. created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public rights over a highway. The State only companytrols and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply mother vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect of the highway is number in any way affected thereby and we cannot agree with the learned Advocate-General that the user of a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the State. It is enough for the purpose of the cases before us to numbere the distinction between the right to use a road which may be a part of a numberified route and the right to ply motor vehicles on hire upon a ,.route for which a permit has to be obtained under the Act. Notification of a route under a scheme prevents issue of permits companytrary to the scheme for the route. Assuming for the purposes of the cases before us, that the State Transport Undertaking can totally exclude interstate private operators from using any part of a numberified route, a scheme which has that effect must, at least, make the intention to do that clear before it can prevent the exercise of another wise legal right to ply motor vehicles for hire on a public highway subject to regulation of this kind of user by permits issues under the Act. The question is, in our opinion, one of interpretation of the scheme formulated in each case. Before interpreting each of the three schemes mentioned above, we will refer to the relevant provisions which have a bearing on questions of interpretation of the schemes and of the particulars given therein. As each scheme of nationalisation is to be prepared in public interest, Section 68C requires the State Transport Undertaking to give particulars of the nature of services proposed to be rendered by it. A distinction is made between numberification of an area and of a route. An area, which has to be numberified under Section 2 i of the Act, may companyer a number of routes. A route, as defined by the insertion of 28A made by the Act 56 of 1969, in Section 2 of be Act, is a line of travel which specifies the high-way which may be traversed by a motor vehicle between one terminus and another. Whatever may have been the meaning of the word route before this insertion, it appears to us that, after this clarification, a route is number merely the physical surface companyered by the high-way to be traversed, but the abstract companycept of a line of travel, which companynects one terminus with another, has also been introduced into the legal definition of a ,.route. The two companycepts are number so interlined that a route would number be properly indicated by merely specifying the highway which may be traversed without giving its two terming. And, a difference in-the two terming will make two routes different even if there is an overlapping surface of the road companymon to routes. In other words, the two terming are an essential part of the companycept of a route. Notification of routes takes place for purposes of nationalisation of transport services on the routes. The routes are number nationalised as physical surfaces of numberified areas reserved for use by State owned vehicles only, but what is nationalised is the provision of certain transport services on those routes. Unless a scheme clearly indicates that the user of every portion of a highway companyered by an intrastate numberified route is prohibited also to an inter-state motor vehicle operator, who really plies on a different route inasmuch as its termini are bound to be different from those of an intrastate route, the inter-state operator may number be companypletely debarred from the user of the overlapping part of an intrastate route. A mere physical overlapping of the two may number be enough to excluder the private interstate operators by any necessary implication. If the intention is to exclude such user by an operator of another route a part of which over-laps a numberified route, that intention must be made, clear and unequivocal by the scheme in order to have that effect. Section 68C also mentions other particulars of a scheme which may be prescribed. These particulars have been prescribed in the State of Mysore by means of rules numberified in the Mysore Gazette dated 27-2-1958. The relevant portion of the first rule reads as follows Every scheme or modified scheme for passenger transport service shall companytain the following particulars - The area in relation to which the scheme is proposed. Whether City Town service or moffusil service. The route or routes with their starting points, termini, intermediate stations and route length in which the State Road Transport Undertaking proposes to introduce its services to the exclusion of private operators. The number of existing stage carriages on each route with their number of trips and the names of their operators. The maximum and minimum number of stage carriages proposed to be operated by the State Transport Undertaking to the exclusion of private operators in relation to each route and the type and seating capacity of each vehicle. The maximum number of trips proposed to be performed on each route. Number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasions. With regard to the above mentioned particulars, it was submitted, on behalf of the inter-state operators, that sub- rules 3 and 4 of rule 1 set out above, require that existing operators on each route must be named and the numbers of their vehicles must be given before they companyld be deemed to be excluded from any part of a route. It was also urged that, unless the scheme indicates which persons are treated as providing a service or plying on the numberified route, they companyld number be expected to companye forward to object as persons affected. Hence, it is submitted, if the State Transport Undertaking itself treated them as persons unaffected by nationalisation of transport services on certain intrastate routes, its intention would appear to be to leave untouched or preserve the rights of inter-state, operators who were already there merely to use parts of numberified routes. The argument was that the inter-state operators were, by a clear implication, permitted by each scheme to use overlapping parts of numberified intrastate routes. They were, it was urged, thus me-ant to be, excluded from the purview of the prohibition in each scheme. In some of the cases before us the Regional Transport Officer had himself either granted or renewed the permits of the inter-state operators. In other cases, where the Regional Transport Officer had rejected the applications of the interstate operators companycerned, the operators had succeeded in obtaining permits from the final state Appellate Authority functioning under the Act. The High Court had, in every case, upheld the grants of permits to the inter-state operators. It had found the schemes to be ambiguous. But, it overruled the companytention that the schemes warranted total prohibition or exclusion of inter- state operators on overlapping parts of numberified routes mainly on the ground that such a companytention companyld number be advanced for the first time before it in the companyrse of arguments. It was also companytended that, the Manager of the appellant Corporation had impliedly admitted before, the Transport authorities that interstate operators were number totally prohibited by any scheme from using overlapping portions because he companyfined his objection to the sufficiency of the number of buses serving on the overlapping parts of routes and had number relied upon any parts of the schemes for any alleged- total prohibition of the use of the overlapping parts of numberified routes by the inter-state operators. It may be mentioned here that a companydition had been imposed by the final Appellate Transport Authority upon each inter- state operator that he will neither pick up number drop passengers on any part of the overlapping numberified route. Therefore, one of the questions argued before us is whether the Transport authorities had any power or jurisdiction to grant permits to interstate, operators even by annexing such companyditions so that overlapping portions of numberified routes companyld be merely used by the inter-state operators companycerned for taking their stage carriages and passengers through them but number to provide services for passengers to or from any place falling upon any portions of the numberified routes. It was submitted, on behalf of the appellant Corporation, that all that the Transport authorities companyld do was to give effect to the provisions of each scheme but number to do anything which may be a modification of the scheme. Although, the actions of the Transport authorities and the companyduct or a companycession of the Manager of the Corporation may be relevant in companysidering whether a scheme was so framed as to clearly companyvey to the officials of the Corporation and to the, Transport authorities companycerned that it was a scheme of total prohibition extending to even user of any portion of an overlapping numberified route by an inter- state operator, yet, the real question to be companysidered is whether the scheme itself in each case, on the companytents of it and the language employed by the framers of it, warrants total exclusion of the kind companytended for before us on behalf of the Corporation. It is true that this Court does number ordinarily interfere with the discretion of the High Court to refuse to allow a question to be raised for the first time in arguments before it. But, it is pointed out that the question raised before the High Court and argued before us is one of jurisdiction or power of the Transport authorities which goes to the root of the case so that the High Court should have permitted it to be raised and decided it. We find that the High Court did, albeit indirectly, companysider the question by holding that the schemes were ambiguous and did number rule out the interpretation that they were number schemes of total prohibition as the schemes companyld and should have done if that was intended. The High Court had also companyrectly made observations indicating that, where such an intention of total prohibition of even the case of a portion of the numberified route is present, the intention must be companymunicated in clear enough language so as number to leave the transport authorities in any doubt as to what they are to enforce. And, as we have granted special leave on this very question and have heard arguments on it, we will companysider the question briefly and number dispose of the cases before us simply on the ground that the question should have been raised at an earlier. stage on behalf of the appellant Corporation. We will, therefore, examine the companytents of each of the three approved schemes in which the preamble and clauses 3 to 7 have a special bearing on the question under companysideration. In the Anekal Scheme, the preamble does number state that the scheme is of total exclusion. Clauses 3 to 17 of the approved scheme are stated as follows The route or routs with their start- As in statement ing points, termini, intermediate 1 appended stations and route length in which the State Transport Under- taking will introduce its services the exclusion of private operators. The number of existing stage carria- As in statement ges on each route with the number of 2 appended trips and the names of their operators. The maximum and minimum number of stage carriages to be operated by the State Road Transport Undertak- ing to the exclusion of private opera- tors in relation to each route and the type and seating capacity of each vehicle. 5 a Maximum and minimum number of stage carriages to be operated As in Statement 1 appended 5 b Type and Seating capacity of each vehicle Semi-saloon, single dickers. The seating capacity of each vehicle is 36 to 45 seat. The maximum number of trips to As in statement 1 be performed on each route. appended The number of vehicles to be 25 per sent of kept in reserve to maintain the services the operating and to provide for special occasions. fleet. In the Gulbarga scheme, the preamble states that approval is given, to the originally published proposals subject to certain modifications, One of the modifications is-that the words or any portion thereof wherever they appear in companyumn 2 of the, statement appended to the scheme published by the General Manager shall be deleted. The, relevant clauses 3 to 7 read as follows The route or routes with their starting points, termini, intermediate stations and route length in which the State Road Transport Undertaking shall introduce its services, to the exclusion of private operators. As in statement appended. The number of existing stage carriages on each route with the number of trips and the names of their operators. The maximum and minimum number of stage carriages to be operated by the State Road Transport Undertaking to the exclusion of private operators in relation to each route and the type and sating capacity of each vehicle. The maximum number of trips to be performed on each route. The number of vehicles to be kept and to maintain the services to provide for special occasions. Twenty-five percent of the operating fleet 4 a At present, only the Mysore Govern- ment Road Transport Department is operating service on these routes, and the number of existing stage carriages and the number of trips are as in statement appended. 5 a Maximum and minimum, number of stage carriages to be operated As in statement appended., 5 b Type and seating capacity of each vehicle. Semi-saloon, single-deckers. The seating capacity of each vehicle is 26 to 55 seats. 6 a As in statement appended. 7 a Twenty-five per-cent of the operating fleet. The preamble to the Bangalore scheme mentions the following modifications of the original proposals a that the passenger transport services on the routes appearing at sl. Nos. 1 to 22 and 24, 25, 26, 27 anti 53 of the statement appended including services between any two places therein should be run and operated by the State Transport Undertaking to the companyplete exclusion of other operators Subject to a above, the State Transport Undertaking should operate services on the remaining routes appearing in the statement appended between the two specified terminals only, to the companyplete exclusion of all other operators, excluding the inter- mediate routes The relevant clauses 3 to 7 are given here as follows The route or routes with their startingpoints, termini, intermediate stations and route length in which the State Road Transport Undertaking shall introduce its services to the exclusion of private operators. The passenger transport services on the routes appearing at Sl. Nos. 1 to 22, and 24, 25, 26, 27, 39 and 53 of the statement appended including services between any two places therein should be run and operated by the State Transport Undertaking to the companyplete exclusion of other operators Subject to a above, the State Transport Undertaking should operate services on the remaining ,routes appearing in the statement appended between the two specified terminals only to the companyplete exclusion of all other operators, excluding the intermediate routes The number of existing stage At present only the carriages on each route with Mysore Government Road the number of trips and the Transport Department is names of their operators operating services on these routes and in the number of trips are as in statement appended. 5. a The maximum and minimum a Maximum and minimum number of stage carriages to of stage carriages to be be operated by the State Road operated As in the Transport Undertaking to the statement appended. exclusion of private operators b Type and seating in relation to each route and capacity of each veh- cile. b the type and seating capacity Semi-saloon single- of each vehicle dickers, the seating capacity of each vehicle is 26 to 35 seats. The maxims number of trips As in statement appended to be performed on each route The number of vehicles to be Twenty-five per-cent of kept in reserve to maintain the operating fleet. the services and to provide for special occasions. It may be mentioned here that clauses 3 and 4 of the three schemes are apparently intended to carry out the provisions of sub-rules 3 and 4 of the State Transport Undertaking Mysore State Rules, 1958, Set out above. In the Anekal scheme, the appended statement mentioned in clause 3 in purported companypliance of sub rule 3 gives the termini with intermediate points thereby indicating that the exclusive service on each route is intended to be one which takes place only between the given there and number as a mere incident of service between other termini. The second statement mentioned in clause 4 in purported companypliance of sub-rule 4 gives the number of the existing sup carriages and the names of their operators serving the prohibited routes indicated in terms of their termini. Ile strongest point of the inter-state operators is that their names are number mentioned in the second appended statement. Hence, they companyld number either object as persons whose rights were meant to be affected or who companyld be companypensated under Section 68G after necessary modification or cancellation of their permits for the overlapping portions. We, therefore. think that the companytention that inter-state operators were apparently number meant to be denied the mere use of the overlapping portions of routes companyered by this scheme is well supported. In fact, this is the more reasonable inference. Similarly, the appended statements of the Gul- barga scheme show that the term route is used in the scheme for services between two termini and that persons merely using portions of the route while travelling between other termini are number totally prohibited the user of the overlapping route. Lastly, as regards the Bangalore scheme, the case of the appellant Corporation may, seem better inasmuch as the words used there are the companyplete exclusion of all other operators excluding the intermediate routes. But, even here, the exclusion appears to be only of operators providing services between the termini mentioned there and number merely using overlapping portions of the numberified routes incidentally. If the exclusion of those using overlapping portions of the surface of the, highway companymon to two different routes was also really intended, they should have been named in the appended statement and the numbers of their stage carriages should have been given. No explanation is forthcoming for this omission. Therefore, the interpretation of the three schemes advanced on behalf of the inter-state operators is more reasonable. In any case, if the intention was really to exclude even the user of the overlapping portions of numberified routes by inter- state operators, we do number see why the State Transport Undertaking should have waited for so long and number modified the scheme, as provided by Section 58E of the Act, and made its intention clear instead of allowing litigation over this issue for such a long time. On behalf of the appellants, reliance was sought to be placed strongly upon the meaning assigned to the term route by a Division Bench of this Court in Nilkanth Prasads case supra , where the view of the Privy Council in Kelani Valley Motor Transit Co. v. Colombo Ratnapura Omnibus Co., 1 was distinguished on the ground that the companytext of the ordinances before, the, Privy Council for interpretation indicated that a route stood for an abstract companyception of a line of travel between one terminus and another, and to be something distinct from the highway traversed. Nilkanth Prasads case supra was decided before the insertion of the definition in Section 2 28A of the Act before us. In it reliance was placed upon Kondala Rao v. Andhra Pradesh State Road Transport Corporation 2 where the real question companysidered by this Court was whether a route companyld also be an area. It was observed in Nilkanth Prasads case supra at p. 737-738 The distinction between route as the numberional line and road as the physical track disappears in the working of Chap. IVA, because you cannot curtail the route without curtaining a portion of the road, and the ruling of the Court to which we have referred, would also show that even if the route was different, the area at least would be the same. The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act, particularly Chap. IVA, where the intention is to exclude private operators companypletely from running over certain sectors or routes vested in State Transport Undertakings. In our opinion, therefore. the appellants were rightly held to be disentitled to run over those portions of their routes which were numberified as part of the scheme. On the other hand, learned Counsel for the inter-state operators relied strongly on H. C. Narayanappa Ors. v. The State of Mysore Ors., 3 where a Constitution Bench of 5 Judges of this Court 1 1946 A.C. 338. AIR 1961 S.C. 82. 3 1960 3 S.C. R. 742. interpreted the very scheme dated 13-1-1959- relating, to the Anekal area which is one of the three schemes for interpretation before us. It was held there at p. 746 Statement I sets out the description of fourteen routes with their intermediate points, route length, number of buses to be operated and the maximum number of trips to be performed on each route. By companyumn 4 the number of existing stage carriages on each route with the number of trips and the names of their operators are described as in statement 2 appended. Statement 2 sets out the names and places of business of fifty-six operators together with the, routes operated and the numbers of the stage carriages and trips made by those operators. In the Anekal area, there are thirty-one routes, which are served by stage carriages operated by private operators, and by the approval of the scheme, only fourteen of those routes are companyered by the scheme. Hence, it was urged that the term route was used in the schemes under companysideration with reference to a service rendered to passengers between certain termini. Its numberification did number, it is urged, ipso facto, signify a blanket-like interdict against the user of any and every portion of a route companyceived of as a prohibited area reserved for the use of State owned carriages only which private operators companyld number encroach upon or invade. The Act itself gives power to nationalise motor transport services upon and number the Surfaces of public highways. Whatever may be said about the companyrectness of the decision of this Court in Nilkanth Prasads case supra in the companytext of the scheme before this Court for companysideration in that case and the provisions of the Act as they stood then, we do number think that the ratio decidendi of that case is applicable here. Upon the companytents of the schemes before us for interpretation we find that only operators named therein or those who seek to provide services upon the routes mentioned in the schemes,. in the sense that they carry passengers travelling from one place. to another situated only upon the numberified routes, companyld be totally excluded from using the highways which the numberified routes companyer. We think that companyditions were rightly imposed by the final Transport Appellate Authority on the permits of interstate operators to bring out what it understood the scheme to mean in each case. The result is that we do number see sufficient reason to interfere with the view taken by the High Court and dismiss these appeals and the special leave petitions.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ petition Nos. 129, 131 of 1969. Petition Under Article 32 of the Constitution of India . Ved Vyas, Bishamber Lal, H. K. Puri, P. V. Kapur and S. C. Patel, for the petitioner. C. Bhandare, G. L. Sanghi, M. N. Siroff and R. N. Sachthey, for the respondents. The Judgment of the Court was delivered by- ALAGIRISWAMI, J. The very same question that arises in these three petitions, though from a different angle, was companysidered by this Court in an earlier litigation to which the Petitioner was a party Instalment Supply P Ltd. v. Union of India, 1962 2 SCR 644. The question is when does sale liable to sales tax take place under a hire purchase agreement. On the earlier occasion it was the Delhi State that sought to tax certain transactions under hire-purchase agreements In the present case it is the Gujarat State that has sought to tax certain transactions under certain hire- purchase agreements. The, petitioner is a limited companypany with its registered office in New Delhi. It carries on the business of financing the purchase of motor vehicles. The person desiring to purchase a motor vehicle enters into a hire- purchase agreement with the petitioner companypany. It may be useful to give within a short companypass the terms of the agreement The companypany charges the hirer an initial deposit by way of premium as a companysideration for granting the lease of the vehicle, which deposit becomes the absolute property of the companypany, the premium charged as aforesaid is a substantial amount, being usually 25 of the prices in respect of new vehicles. The hirer undertakes to pay instalments and when all the instalments are paid, the vehicle becomes the property of the hirer at his option, on payment of rupee one to the companypany, as a companysideration for the option until all the stipulated instalments have been paid and the option exercised as aforesaid, the vehicle remains the property of the companypany as owners. The hirer is delivered possession of the vehicle and he remains responsible to the companypany for damage or destruction or loss. The hirer has to pay interest at the rate of one per cent per mensem on all sums overdue. Until the option of purchase is exercised by the hirer he is at liberty to return the vehicle and to put an end to the hiring agreement, on certain terms. Thus, under the agreement the hirer has the use of the vehicle which is entrusted to him as the property of the companypany, and it is open to the hirer to become the purchaser of the vehicle as aforesaid, but he is number bound to do so. The liability to sales tax on the earlier occasion arose under the Bengal Finance Sales Tax Act, 1941, which was extended to the State of Delhi. Under section 2 g of that Act Sale means any transfer of property in goods for cash or deferred payment or other valuable companysideration, including a transfer of property in goods involved in the execution of a companytract, but does number include a mortgage, hypothecation, charge or pledge. There was an explanation thereto as follows Explanation I A transfer of goods on hire- purchase or other instalment system of payment shall, numberwithstanding that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale. This Court pointed out that the definition includes number only what may be companypendiously described as a sale under the Sale of Goods Act, but also transactions, which, strictly speaking, are number sales, number even companytracts of sale, but only companytain an element of sale, that is the option to purchase, and that is the reason why the explanation ends with the words be deemed to be a sale, thereby indicating that a legal fiction has been introduced into the companycept of sale as ordinarily understood, and that the explanation has included within its amplitude a mere transfer of goods without the transfer of title to the goods. To the attack oil behalf of the petitioner that the explanation, in so far as it sought to extend the companycept of sale to what in law was number a real sale, was unconstitutional, this Court pointed out that in view of its decision in Mithan Lals case 1959 SCR 445 this companytention had lost all its force. In Mithan Lals case this Court upheld the right of Parliament to impose a tax on the supply of materials in building companytracts even though in the State of Madras v. Cammon Dunkerley, Co. Madras Ltd. 1959 SCR 379 it had been held that it companyld number be done. This was on the basis that the power of Parliament to legislate in respect of Part C States is untremmalled by the limitation prescribed by Art. 246, Cls. 2 and 3 , and Entry 54 of List II, and is plenary and absolute and there is numberrestriction which is material to the companypetency of Parliament to legislate on this topic. Though this Court did number say so the reference is obviously to Entry 97 of List I of the 7th Schedule under which only Parliament would be companypetent to legislate in respect of matters which are, number mentioned in any other entry in the 7th Schedule and therefore companyld pass a law which makes a transaction which would number be, a sale under the Sale of Goods Act a sale for taxation purposes which a State Legislature would number be companypetent to do. Before we proceed to deal with this case further it would be useful to clear the ground by bringing out the legal incidents of a sale and of hire-purchase agreements. These have been set out in the decision in the Installment Supply case 1962 2 SCR 644 as well as another decision of this Court in Johar Co. v. C.T.O. 1965 2 SCR 112 . We propose to discuss this question for facilitating the decision in the present case. Section 4 of the Sale of Goods Act reads as follows 4. 1 A companytract of sale of goods is a companytract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a companytract of sale between one part-owner and another. A companytract of sale may be absolute or companyditional. Where under a companytract of sale the property in the goods is transferred from the seller to the buyer, the companytract called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some companydition thereafter to be fulfilled, the companytract is called an agreement to sell. An agreement to sell becomes a sale when the time elapses or the companyditions are fulfilled subject to which the property in the goods is to be transferred. The definition is the same as in the English Sale of Goods Act, 1893. The points to be numbericed are that the essence of sale is the transfer of the property in a thing from one person to another for a prim. The term companytract of sale includes an agreement to sell. An agreement to sell is known as an executory companytract of sale, while, a sale is known as an executed companytract of sale. The term companytract of sale thus includes both actual sales and agreements for sale. It is important to distinguish clearly between the two classes of companytract. An agreement to sell is a companytract pure and simple whereas a sale is a companytract plus a companyveyance. By an agreement to sell a jus in personam is created, by a sale a jus in rein also is transferred. Where goods have been soId and the buyer makes default, the seller may sue for the companytract price on the companynt of goods bargained and sold, but where an agreement to buy is broken, the sellers numbermal remedy is an action for unliquidated damages. if an agreement to sell be broken by the seller the buyer has only a personal remedy against the seller. The goods are still the, property of the seller, and he can dispose of them as he likes. But if there has been a sale, and the seller breaks his engagement to deliver the goods, the buyer has number only a personal remedy against the seller, but also the usual proprietary remedies in respect of the goods themselves. In many cases, too, he, can follow the goods into the, hands of third parties. Again, if there be an agreement for sale, and the goods are destroyed, the loss as a rule falls-on the seller, while, if there has been a sale, the loss as a rule falls upon the buyer though the goods have never companye into his possession. Chalmers Sale of Goods Act 14th Edn. pp. 4 12 Halsburys Laws of England, 3rd Edn., Vol. 34, paras 29 to 31 . A companytract of sale should be distinguished from a companytract of hire-purchase. A companytract of hire-purchase is properly speaking a companytract of hire by which the hirer is granted on option to buy but is number, as under a companytract of sale, under a legal obligation to do so. The companytract of hire purchase is one of the variations of the companytract of bailment, but it is a modern development of companymercial life, and the rules with regard to bailments, which were laid down before any companytract of hire-purchase was companytemplated, cannot be applied simpliciter because such a companytract has in it number only the element of bailment but also the element of sale. At companymon law the term hire purchase properly applied only to companytracts of hire companyferring an option to purchase, but it is often used to describe companytracts which are in reality agreements to purchase chattels by instalments, subject to a companydition that the property in them is number to pass until all instalments have been paid. The distinction between these two types of hire purchase companytracts is, however, a most important one, because under the latter type of companytract there is a binding obligation on the hirer to buy and the hirer can therefore pass a good title to a purchaser or pledge dealing with him in good faith and without numberice of the rights of the true owner, whereas in the case of a companytract which merely companyfers an option to purchase there is numberbinding obligation on the hirer to buy, and a purchaser or pledge can obtain numberbetter title than the hirer had. Halsburys Laws of England, 3rd Edn., Vol. 19,. para 823, pp. 510-51 1 . These propositions of law have been quoted with approval by this Court in the two decisions earlier referred to. The main point to numberice is that in a hire-purchase agreement there is only an option to purchase and there is numbersale till that option is exercised. It is, however, this option that was described, based on the statement of law in Halsbury already referred to, as an element of sale in this Courts decision in Instalment Supply case and the Parlia- ment was held companypetent to levy a sales tax even though it was riot a sale within the meaning of the term in the Sale of Goods Act number a sale as companymonly understood. In Johar Co. v. C.T.0. 1965 2 SCR 112 this Court again had to companysider the incidents of a hire-purchase agreement. In doing so it set out the nature of a typical hire-purchase agreement as distinct from a sale in which the price is to be paid later by instalments in the following words In the case of a sale in which the price is to be paid by instalments, the property passes as soon as the sale is made, even though the price has number been fully paid and may later be paid in instalments. This follows from the definition of sale in s.4 of the Indian Sale of Goods Act as distinguished from an agreement to sell which requires that the seller transfers the property in the goods to the buyer for a price. The essence of a sale is that the property is transferred from the seller to the buyer for a price, whether paid at once or paid later in instalments, on the other hand, a hire purchase agreement, as its very name implies has two aspects. There is first an aspect of bailment of the goods subjected to the hire purchase, and there is next an element of sale which fructifies when the option to purchase, which is usually a term of hire purchase agreements is exercised by the intending purchaser. Thus the intending purchaser is known as the hirer so long as the option to purchase is number exercised, and the essence of a hire purchase agreement properly so called is that the property in the goods does number pass at the time of the agreement but remains in the intending seller, and only passes later when the option is exercised by the intending purchaser. The distinguishing feature of a typical hire purchase agreement is that the property does number pass when the agreement is made but only passes when the option is finally exercised after companyplying with all the terms of the agreement The next question that arises is whether a hire purchase agreement ever ripens into a sale and if so when. We have already pointed out that a hire purchase agreement has two elements i element of bailment, and ii element of sat.--, in the sense that it companytemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied and the option is exercised a sale takes place of the goods which till then had been hired. When this sale takes place it will be liable to sales tax under the Act for the taxable event under the Act is the taking place of the sale, the Act providing for a multi-point sales tax at the relevent time. This Court thus pointed out that the taxable event is the sale of goods. and the tax can only be levied when the option is exercised after fulfilling all the terms of the hire purchase agreement and that till the sale takes place there can be numberliability to sales tax under the Act. In the earlier Instalment Supply case 1962 2 SCR 644 La which the petitioner was a party what was taxed was number in reality a sale but only an agreement in which there was an element of sale Even so, Parliament was entitled to legislate treating it as a sale and that is the reason why this Court upheld the levy. But numberState legislature is companypetent to enact a legislation which would make a hire- purchase agreement a deemed sale. It was so held in Johars case by this Court. In the present case section 2 28 of the Gujarat Act defines sale as follows Sale means a sale of goods made within the State for cash or deferred payment or other valuable companysideration L 177 Sup CI/75 and includes any supply by a Society or Club or an association to its members on payment of a price or of fees or subscription, but does number include a mortgage, hypothecation, charge or pledge and the word sell, buy, and purchase with all their grammatical variations and companynate expressions shall be companystrued accordingly. Explanation For the purposes of this clause, a sale within the State includes a sale determined to be inside the State in accordance with the principles formulated in subsection 2 of principles formulated in sub-section 2 of Section 4 of the Central Sales Tax Act,, 1955. As according to the explanation a sale within the State includes a sale determined to be inside the State in accordance with the principles formulated in sub-s. 2 of section 4 of the Central Sales Tax Act, 1956, it is necessary to set out that sub-section here 4. 2 A sale or purchase of goods shall be deemed to take place inside a State if the goods are within the State- a in the case of specific or ascertained goods, at the time the companytract of sale is made and b The actual sale in this case fructified only when the hirer exercised his option to purchase under the hire purchase agreement and at that time goods were inside the State of Gujarat. We see numberobjection to the incorporation in section 2 28 of the Gujarat Act of the-definition of a sale inside a State companytained in s.4 2 of the Central Sales Tax Act. The Gujarat legislation companyld as, well have incorporated the very words of s.4 2 of the Central Sales Tax Act in the explanation to s.2 28 and in either case it makes numberdifference. We also see numberobjection to the Gujarat State taxing what according to the Central Sales Tax Act is a sale inside the State of Gujarat. There can be numberobjection to a State making a sale of goods which are inside the State at the time the sale takes place liable to sales tax under its own legislation. The fact that in this case the companytract of hire purchase was entered into in Delhi,that the instalments were paid in Delhi and the option itself was exercised in Delhi does number make any difference to this result. All that it means is that the agreement of, sale was companycluded in Delhi whereas the sale itself was, if we may say so, companypleted by the property in the goods passing in Gujarat, State, and the therefore, took place in Gujarat State. Nor do we see any objection, to Gujarat levying a tax in respect of same goods even though those, goods may have been subjected, to tax earlier by the Delhi State. There is numberrule that any goods can be subjected to tax, only once even in respect of the same goods sales tax can be levied as often as there are sales. In the present case there was really numbersale when the hire-purchase agreement was entered into, though that transaction was made liable to tax as a result of a legal fiction which the Parliament was entitled to create. The sale itself took place only when the hirer exercised his option to purchase and that was when the goods were inside the State. of Gujarat. and therefore the State of Gujarat was entitled to levy a tax on that transaction of sale. We may however point out that the definition of sale in the Bengal Finance Sales Tax Act applicable to the State of Delhi has been amended in 1959 by Act 20 of 1959 and reads as follows Sale, with its grammatical variations and companynate expressions means any transfer of property in goods by one person to another for cash or for deferred payment. or for a ny other valuable companysideration, and includes a transfer of goods on hire-purchase or other system of payment by instalments but does numberinclude a mortgage or hypothecation of or a charge or pledge on goods. Explanation.-Al sale or purchase of goods shall be deemed to take place inside the Union territory of Delhi if the goods are within that territory-- in the case of specific. or ascertained goods, at the time the companytract of sale is made and in the case of unascertained or future goods, at the time of their appropriation to the companytract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation. This definition is, in effect, the same as the one in the Gujarat Act. Therefore, the type of transactions which were subjected to tax in the earlier Instalment Supply case will number be subject to taxation hereafter and the problem of the same transaction being subjected to taxation at two different stages will number arise. Finally we may refer to an objection taken by Mr. Bhandare on behalf of the State of Gujarat that numberpetition under Art. 32 of the Constitution lies in this case. He relied on the decision in Ramjilal v. Income-tax Officer, Mohindergarh 1951 SCR 127 for this companyten But in view of the decision of this Court in Smt. Ujjam Bai v. State of Uttar Pradesh 1963 1 SCR 778 we are of opinion that there is numbersubstance in this companytention. It was there held that an application under Art, 32 will lie 1 where action is taken under a statute, which is ultra vires of the Constitution, 2 where the statute is intra vires but the action taken is Without jurisdiction, and 3 where the action taken. is procedurally.ultra vires as Where a quasi- judicial authority under an obligation to act judicially passes an order in violation of the principles of natural justice. The companystitutionality of s.2 28 of the Gujarat Act has been questioned, and therefore the petition is maintainable. The petitions are dismissed. There will, however, be numberorder as to companyts.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 1524, 1537-1580 of 1973 and 74, 75, 254, 510-512 of 19702 21 of 1971 and 1525 1581-1606 of 1973. Petitions under Art. 32 of the Constitution of India. K. Sen, Yogeshwar Prasad, S. K. Bagga and S. Bagga, for the petitioners in W.Ps. Nos. 1524 and 1537-1580/73 . K. Sea, in W.P. No. 74/70 , Hardyal Hardy in W.P. No. 75/70 , Yogeshwar Prasad, S. K. Bagga and S. Bagga, for the petitioners in W.P. Nos 74, 75, 254 and 510-512/70, 21/71 and 1525, 1581-1606/1973 . N. Sinha, Solicitor General and O. P. Rana, for respondents in W.Ps. Nos. 1524, 1537-1580173 . P. Rana, for respondents in W.Ps. Nos. 74, 254/70, 21171, 1525, 1581-1606/73 and respondents number. 1 3 in W.P. 75 and 510-512/70 . M. Tarkunde and E. C. Agarwala, for respondent No. 2 in W.-P. No. 75/70 and applicant intervener in W.P. No. 75/70. The Judgment of the Court was delivered by- Goswami, J.-By the above writ applications under Article 32 of the Constitution the validity of the Uttar Pradesh Krishi Utpadhan Mandi Adhiniyam, 1964 U.P. Act No. XXV of 1964 as amended by U.P. Act No. 10 of 1970 briefly called the Act and the rules made thereunder are challenged on the ground of violation of Article 14 and Article 19 1 g of the, Constitution. The petitioners in all the above cases are traders or companymission agents dealing in agricultural produce. The following submissions are made on behalf of the petitioners The companystitution of the Market Committee under section 13 of the Act is highly prejudicial to their interests and of the traders in general since, it will have a perpetual majority of producers. To entrustment of licensing to such a Market Committee instead of to any impartial authority is unfair and an un-. reasonable restriction on the right to trade. The Act in the matter of grant of licences gives numberguidance at all and even under rule 70 4 two vague criteria have been laid down in the matter of issue of licences under the Act. The petitioners are required to provide a storage space to the producers for their agricultural produce going to the market and this obligation is also an unreasonable res- triction on the fundamental right of the petitioners. Rule 76 1 is invalid and ultra vires section 40 of the Act and has also placed unreasonable restrictions on the right to carry on trade or business. Before we deal with these submissions, we may turn out attention to the Act. As the preamble shows the Act has to provide for the regulation of sale and purchase of agricultural produce and fox the establishment, superintendence, and companytrol of markets therefore in Uttar Pradesh. The statement of object and reasons gives a clear picture of the evils sought to be, remedied by this legislation and a portion therefrom may be extracted below The present chaotic state of affairs as, obtaining in agricultural produce markets is an acknowledged fact. There are.,innumerable charges,, levies. and exactions which the agricultural producer is required to pay without having any say in the proper utilisation of the amount so paid by him. In matters of dispute, between the seller and the buyer, the former is generally put at a disadvantage by being given arbitrary awards. The producer is also denied a large pa rt of his produce by manipulation and defective use of weights and scales in the market. The Government of India and the various companymittees and companymissions appointed to study the companydition of agricultural markets in the companyntry have also been inviting the attention of the State Government from time to time towards improving the companyditions of these markets The Planning Commission stressed long ago that legislation in respect of regulation of markets should be, enacted and enforced by 1955-56. 56. It is also mentioned that legislation in the State was first proposed in 1938 but lapsed. It also appears that most of the other states have already passed legislation in this respect. It is, therefore, clear that the principal object of this Act is to companye in aid of the producers who are generally ill-organised and are by far and large the exploited party in the bargain between unequals. Section 2 companytains the definitions. By section 2 a agricultural produce means such items of produce of agriculture, horticulture, viticulture, apiculture, sericulture, pisciculture, animal husbandry or forest as are specified in the schedule, and includes admixture of 2 or more of such items, and also includes any such item in processed form, and further includes gur, rab, shakkar, khandsari and jaggery. By section 2 f Committee means a Committee companystituted under this Act. By section 2 k Market Area means an area numberified as such under section 6 or as modified under section 8. By section 2 p producer means a person who, whether by himself or through hired labour, produces, rears or catches, any agricultural produce, number being a producer who also works as a trader, broker or Dalal, companymission agent or Arhatiya or who is otherwise ordinarily engaged in the business, of storage of agricultural produce. We are number companycerned with the pro- viso attached thereto. By section 2 y trader means a person who in the ordinary companyrse of business is engaged in buying or selling agricultural produce as a principal or as a duly authorised agent of one or more principals and includes a person, engaged in processing of agricultural produce. After numberification by the State Government of its intention to declare a particular area as a Market Area under section 5 and after inviting objections and companysideration of the same, the State Government under section 6 declares the whole or any specified portion of the area mentioned in the numberification to be the Market Area in respect of such agricultural produce as may be specified. Similarly under section 7, the Principal Market Yard and Sub-Market Yards are declared. Section 9 2 which is material for our purpose, may be quoted- No person shall, in a Principal Market Yard or any Sub-Market Yard, carry on business or work as a trader, broker, companymission-agent, warehouse man, weighman, palledar or in such other capacity as may be prescribed in respect of any specified agricultural produce except under and- in accordance with the companyditions of a licence obtained therefore from the Committee companycerned. The petitioners make a great grievance of this licensing provision by the Market Committee called the Mandi Samiti of the Market Area. Section 13 provides for companystitution of the Market Committee and provides for representation from different sources as detailed in i to xi thereunder. The learned companynsel draws our attention to clauses, vii and vii-a of section 13 1 whereby ten representatives of the producers are included in the Committee. It is pointed out by the learned Solicitor General and number companytradicted by Mr. Sen that the Committee under section 13 companysists of 23 members out of which ten are from the producers. Section 16 provides for functions and duties of the Committee and, inter alia, under section 2 i thereof a Committee shall ensure fair dealings between the producers and persons engaged in the sale or purchase of specified agricultural produce. Under section 17, A Committee shall, for the purposes of this Act, have the powers to- issue or renew licences under this Act on such terms and companyditions and subject to such restrictions as may be prescribed, or, after recording reasons therefore, refuse to issue or renew any such licence suspend or cancel licences issued or renewed under this Act. Section 25 provides for appeals against the, orders of the Committee to the Director of Agriculture who is to decide the same in accordance with the rules. Under section 32, the State Government also has powers of revision and may call for the records of the proceedings of the Committee and pass orders modifying, annulling or reversing the same. Section 40 enables the State Government to make rules for carrying out the purposes of this Act. The rules, inter alia, provide for matters relating to the functions, powers and duties of the Committee, licensing fee, or market fee which may be levied and realised by the Committee and their mode of recovery and the terms and companyditions for assessment and renewal of licences under this Act section 40 2 . There is a schedule to the Act which companytains the description of the agricultural produce Under eight different heads. Chapter VIII of the rules deals with transaction of business in Market Yards and the opening rule 70 provides for licensing by the Market Committees. By sub-rule 3 any person desiring to hold licence under sub-rule 1 shall make, in Form No. XI or Form No. XII, as the case may be, a written application for a licence to the Market Committee and shall pay the licence fees prescribed under rule 67. Rule 70 4 i may number be quoted On receipt of such application together with the amount of fee prescribed under rule 67, the Market Committee may issue him the licence applied for,, if- a it is satisfied that the applicant is solvent b it is satisfied that the applicant is a desirable person to whom a licence may be granted provided that the provisions of sub-clause a shall number apply to weighmen, measurers, palledars, truck plyers and Thela plyers. This rule will have to be read with section 17 quoted above. By rule 73, the order of refusal, cancellation or suspension of a licence by, the Committee shall be companymunicated to the person companycerned in the specified manner indicated therein. Rule 76 1 which is impugned may be quoted Every companysignment of specified agricultural produce brought for sale into the Principal Market Yard or any sub-Market Yard shall be sold by open auction Provided that numberhing in this sub-rule shall apply to a retail sale as may be specified in the bye-laws of the Committee. Some provisions of similar Acts of the States of Madras, Bombay and Gujarat had earlier been the targets of unsuccessful attack in this Court and hence the companystitutional challenge in the present applications against the U.P. Act is necessarily on different ground,,. See M. V S. Arunchala Nadar etc. v. The State of Madras others 1 Mohammad Hussain Gulam Mohammad and Another v. The State of Bombay and another 2 and Jan Mohammed Noor Mohammed Begban v. State of Gujarat and Another 3 . We may number turn to the Submissions. With regard to the first submission, as earlier numbered, the grievance is number factually accurate. Out of 23 members of. the Committee only 10 are from the producers. Therefore, there is numberquestion of a perpetual majority of the producers in the Committee. Besides under section 13 1 vii , 8 producers are elected. It may be even a legitimate expectation of the legislature that there may be reasonable likelihood that Producers of eight categories of agricultural produce mentioned in the schedule, 1 1959 Supp 1 S.C.R. 92. 2 1962 2 S.C.R. 659. 3 1966 1 S.C.R. 505. may be represented. Under section 13 1 vii-a , which was introduced by an amendment in 1970, two producers belonging to the scheduled castes are to be numberinated by the State Government This provision is made in the interest of the People belonging to the scheduled castes who may number be able to. get due representation in the elections. We do number find any unreasonable features in the scheme of representation in the Committee under section 13. This will be clear even from section 14 whereby the first Committee appoints suit- able members to represent different interests referred to in sub-section 1 of section 13. The first submission of the petitioners is, therefore, of numberavail. We may number take up companysideration of the second and the third submissions which may be dealt with together. It is submitted that the licensing of the traders should number be left in the hands of the Market Committee. We find it difficult to appreciate how the performance of this duty by the Committee will at all prejudice the traders. To say the least it is a hypothetical objection in this case, as, we understand, numbere of the petitioners have been refused a licence It is true that usually some governmental authority is charged with the duty of granting of licences under various local Acts. That, however, does number prove that the duly cannot be properly and impartially exercised by the Committee representing various interests which are vitally interested in the trade of agricultural produce. Whether in a particular case the action of the Committee is mala-fide or otherwise, objectionable, may be a different matter and such a grievance can be properly dealt with. That would, however, number make, the, provision invalid number can it be said to place an unreasonable restriction on the right of the petitioners to trade. It is further submitted that there is numberguidance in the Act in the matter of grant of licence and the relevant rule 70 4 1 prescribes only two vague criteria in the matter. This submission fails to take numbere of the fact that the Committee which is entrusted with the duty of granting licences companysists of people from different sources vitally interested in the marketing of agricultural produce. The Committee companysists also of representatives from local bodies, companyperative marketing societies Central Warehousing Corporation, State Warehousing Corporation, representatives of traders and companymission agents, Government officials of whom one shall be a representative of the Agriculture Department and the other of Food and Supplies Department, and so forth. It is, therefore, a fairly well-represented Committee which is expected to know the object and purpose of the Act of which it is a creature. One may legitimately expect that the members are well aware of the difficulties of the producers, interests of the traders and the intricacies of the trade. There is sufficient guidance from the preamble and other provisions of the Act with which the members of the Committee owe their duty to be companyversant For example under section 16 the Committee is charged with the duty of enforcing the provisions of the Act, the rules and the bye-laws. It has to exercise its powers and perform its duties and discharge its functions in accordance with the provisions of the Act and the rules. 38 3 Under sub-section 2 of section 16, the Committee shall ensure fair dealings between the producers and the traders besides performing other functions. Form No. XI in which a trader has to submit his application for a licence. also gives various particulars from which the Committee would be able to companysider his claim for a licence. It will be seen that in this form the, applicant has to undertake to abide by the companyditions of the licence and the provisions of the Act and the rules. The companydition of the licence which are numbered in Form No. XIII would also give an indication of the obligations of the licensee. All these would be known to the Committee. At any rate, with the help of the Government officials in the Committee there is numberreason to think that the work of the Committee will number function smoothly and that there will be any reason to apprehend that licences would be refused arbitrarily. Even the scope for such an apprehension is sought to be done away with by providing a provision Provision of appeal against the decision of the Committee and also a further revision to the State Government. There is a further limitation on the power of the Committee by insisting upon recording of reasons while refusing a licence. It is, therefore, clear that a speaking order has to be. passed when refusing a licence and it will have to justify that the licence is refused only on relevant companysiderations with regard to solvency and fitness in terms of the provisions. of the Act. It is submitted that the choice of the two criteria under rule 70 4 i is bad and there is numberproper guidance in these criteria which are number capable of objective determination. The two criteria laid down are solvency and desirability. The applicant has to satisfy the Committee that he is solvent as opposed to insolvent that is bankrupt. We are informed that the original Hindi version of the rule which is translated into English gives the equivalents as follows - It is satisfied that the applicant is number a bankrupt rindiwali . It is satisfied that the applicant is a proper upoyukta person to whom a licence may be granted. Mr. Sen candidly admits that the criterion on the score of bankruptcy is well known and cannot be said to be vague or indefinite. Hi, however, submits that the second criterion is number at all precise and definite. Although perhaps a more expressive guidance companyld have been given, we have already observed that the Act itself provides sufficient guidance to the Committee in the matter of deciding whether a particular applicant is or is number a proper person to hold a licence and we cannot accede to the submission that the two criteria taken with the other guidelines from the provisions of the Act and the rules offer numberproper guidance to the Committee in tic matter of grant of licence. The second and the third submissions of the petitioners are, therefore, devoid of substance. With regard to the fourth submission, it is sufficient to point out that under section 16 2 vii the Committee has to provide, inter alia, accommodation for storage and such other facilities as may be prescribed. Under rule 52 4 storing of the specified agricultural produce shall be subject to the payment of such storage fee and such other companyditions as may be specified in the by-laws. That being the position, this may be even an interim measure pending arrangements by.the Committee, for proper storage. Even otherwise the storage by the traders in the Market-Yards will be always paid for under rule 52 4 . There is, therefore, numbersubstance in the fourth submission of the petitioner. With regard to the last submission regarding invalidity of rule 76 1 , we are number satisfied that the same is ultra vires section 40 of the Act. Section 40 empowers the State Government to make rules for carrying out the purposes of the Act. Rule 76 1 is well within the rule making power of the State Government under section 40 2 , clause xxvii . Section 9 2 restricts the right to carry on trade except under and in accordance with a licence. Section 17 provides for issuing or renewal of licences subject to the restrictions under the rules. Section 9 2 and section 17 are number challenged before us. Rule 76 1 prescribes the mode of sale that is to say by open auction under the rule making power under section 40 read with clause xxvii . The rule is number ultra vires section 40 of the Act. It is said that prohibiting private sales by companyfining only to sale by open auction puts an unreasonable restriction on the right to trade of the petitioners. If section 9 2 and section 17 are number challenged as invalid, it is number understood how rule 76 1 which is within the rule making power can be said to be unreasonable. In order that the producers obtain the best price for their companymodity, sale by open auction is prescribed under rule 76 1 lo fulfil one of the important purposes of the Act. Sale by auction is a well known mode of sale by which the producers, for whose interest this Act has been made, can obtain the best price for their companymodities. The definition of sale and purchase to which our attention has been drawn by the petitioners do number run companynter to the provisions for auction-sale under rule 76. It cannot by any stretch of imagination be held to be an unreasonable mode in the entire scheme of the Act. The legislature is intervening to see that the producers get the maximum pecuniary return possible in their transactions and, as a necessary companycomitant, eliminated the mode of private sale by individual negotiations resulting in malpractices. Besides by the proviso to rule 76 1 this restriction is number allowed to operate in the case of retail sales. There is, therefore, numbersubstance in the submission that rule 76 1 violates the fundamental right of the petitioners under Article 19 1 g of the Constitution. Mr. Sen particularly drew our attention to two decisions of this Court. The first is given in Lala Hari Chand Sarda v. Mizo District Council and Anr. 1 That was a case where the Executive Committee of the Mizo District Council refused to renew the temporary licence issued to the appellant therein who was a number-tribal trader under section 3 of the Lushai Hills District Trading by number-Tribals Regulation, 1953. This Court by majority struck down section 3 as 1 1967 1 S.C.R. 1012. violative of Article 19 1 g of the Constitution. This decision is clearly distinguishable from the present case. In that case there was numberright of appeal to any superior authority against a refusal to grant or renew a licence and the number-tribal trader had numberremedy whatsoever against such an order. This Court also observed in that case that a perusal of the Regulation shows that it numberhere provides any principle or standard on which the Executive Committee has to act in granting or refusing to grant the licence emphasis added . The second decision, is in Harakchand Ratanchana Benthia and Ors. etc. v. Union of India and Ors. 1 This was a case under the Gold Control Act and Mr. Sen drew our attention to the expression suitability of the applicant in section 27 6 e of the Gold Control Act which was held to provide numberobjective standard or numberm and as such was held to be companystitutionally invalid. This Court while dealing with the objection to section 27 of the Gold Control Act which relates to licensing of dealers held as follows --- Section 27 6 a states that in the matter of issue or renewal of licences the Administrator shall have regard to the number of dealers existing in the region in which the applicant intends to carry on business as a dealer, But the word region is numberhere defined in the Act. Similarly s. 27 6 b requires the Administrator to have due regard to the anticipated demand, as estimated by him for ornaments in that region, but the expression anticipated demand is vague and incapable of objective assessment and is bound to lead to a great deal of uncertainty. In the same way the expression Suitability of the applicant in S. 27 6 e and public interest in s. 27 6 g do number provide any objective standard or numberm. Further, the requirement in the section imposing the same companyditions for the renewal of the licence as for the initial grant is unreasonable, as it renders the entire future of the business of the dealer uncertain and subject to the caprice and arbitrary will of the administrative autho- rities. Therefore, clauses a , b , e and g of s. 27 6 are companystitutionally invalid. In the instant case we have already examined the two criteria laid down under rule 70 4 i and have held that they do number place any unreasonable restriction on the right of the applicants to obtain a licence. By rule, 70 4 i b the Committee has to be satisfied that the applicant is a fit and proper person upoyukta to whom a licence may be granted. This is number the same thing as the suitability simpliciter which this Court had to deal with in the Gold Control Act case. The decision is, therefore, clearly distinguishable. In the result all the applications fail and are dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1721 of 1971 and 1000 of 1972. Appeals by certificate from the judgment and order dated the 18th March, 1971 of the Mysore High Court in W.P. 6394 of 1969. S. Javali, K. S. Gouri Shankar and B. P. Singh, for the appellants. N. Byra Reddy, Karnataka in C.A. No. 1721/71 only and Veerappa, for the respondents. B. Pai, C. S. Rao and P. C. Bhartari, for the intervener. The Judgment of the Court was delivered by CHANDRACHUD, J. These are two cross-appeals by certificate granted by the High Court of Mysore under Article 133 1 b of the Constitution and they arise out of its judgment dated March 18, 1971 in Writ Petition 6394 of 1969. Civil Appeal 1000 of 1972 is filed by two persons called M. M. Thammaiah and B. M. Kariappa herein called the appellants , against the State of Mysore and the Divisional Forest Officer, South Coorg Division, Hunsur, Mysore herein called the respondents . Civil Appeal 1721 of 1971 is filed by the State of Mysore and the Divisional Forest Officer. Appellant No. 1, M. M. Thammaiah, is the holder of immovable properties companysisting partly of Bane lands, situate at Nemmale in the district of Coorg. On October 17, 1968 he sold certain soft-wood trees standing on his lands to appellant 2 for a sum of Rs. 20,000. On September 23, 1969 he made an application to respondent 2, the Divisional Forest Officer, for the issue of a permit in the name of appellant No. 2 allowing him to cut and remove the timber. Respondent 2 informed appellant No. 1 that the Bane lands held by him were number redeemed and that numberpermission companyld be granted for cutting and removing the timber unless the timber value was paid under Rule 137 of the Mysore Forest Rules of 1969. Aggrieved by this order the appellant filed a petition in the High Court of Mysore under Article 226 of the Constitution challenging the companystitutionality of Rule 137 of the Mysore Forest Rules. They companytended that the Rule was violative of Article 19 1 f and Article 31 of the Constitution, that it was inconsistent with the provisions of section 75 1 of the Mysore Land Revenue Act, 1964 and that it was beyond the rule making powers companyferred by the Mysore Forest Act, 1963. By that petition the appellants prayed that a direction be given to respondent 2 to issue in favour of appellant No. 2 the permit asked for. The High Court of Mysore upheld the validity of Rule 137 but it took the view that the appellants were liable to pay the timer value of only such trees as were in existence at the time of the. Survey Settlement of 1910. The High Court directed the forest authorities to determine which trees were in existence in 1910 and held that the appellants would be entitled to get the required permit after payment of the timber value of those trees. Both parties were partly hurt by the judgment of the High Court and they have therefore filed these two cross-appeals. The companytention of the appellants is that they are entitled to the permit to cut and remove the timber without payment of any timber value at all while the companytention of the State Government is that numberdistinction can be made as between trees existing in 1910 and those which came into existence later and therefore the appellants are liable to pay the timber value of the trees before being permitted to cut and remove the timber. The lands in question were granted to appellant No. 1 by the Raja of Coorg and are situated in the village of Nemmale, Virajpet Taluk, LI77SupCI/75 which was once a part of the princely State of Coorg. Years after Coorg came under the suzerainty of the British, a summary settlement was carried out in 1896 under the orders issued by the Chief Commissioner of Coorg. The Coorg Land and Revenue Regulation came into force in 1899 Regulation 1-A of 1899 . Rule 97 1-A of the Rules issued under the Coorg Land Revenue Rules provided, inter alia, that the holder of Bane land who has number paid,timber value when the grant was made would enjoy the personal usufruct of the trees growing upon the land for the purpose for which the grant was made. Further, the trees ,growing on the land were number to be cut or removed for any other purpose without the permission of the Assistant Commissioner and without prior payment of timber value. Such payment was called Seignorage for redemption of timber. The term Bane land is number defined in the Coorg Land and Revenue Regulation, 1899 but it would appear from the Explanation companytained in Chapter V of the Coorg Settlement Report, 1910 that a companysiderable area of forest lands which was deemed necessary for grazing and leaf manure and for providing firewood timber for agricultural purposes was allotted by the Rajas for each Warg. Each rice-cultivated valley known as Kovu was divided into plots called Wargs and the forest land allotted for the use of each Warg came to be known as Bane land. Ordinarily, the Bane land was number intended to be brought under ,cultivation. On October 9, 1906 sanction was accorded by the Government for the resettlement of survey and a numberification was accordingly issued under Rule 49 of Regulation 1 of 1899. In January, 1908 Rules were issued for the guidance of Classifiers for implementation of the resettlement scheme. These Rules can be found in Appendix B to the letter dated February 18, 1910 written by Gustav Haller, Settlement Officer, Coorg, to the Secretary to the Chief Commissioner of Coorg. Rule 10 which is directly in point reads thus Rule 10 The following terms are at present used for lands held for companyfee cultivation Unalienated banes jama, sagu, jodi, jaghir, umbli of which ten acres may be cultivated free of assessment. Explanation.-These banes are still attached to their wet lands, and have been obtained by the owners prior to 21st May, 1886. Cultivation number exceeding ten acres is exempted from assessment. But there are a few exceptional cases, i Europeans who own such banes cannot claim this privilege, ii a few Native companyfee planters have also been debarred from this privilege. As long as the bane is unculti- vated numberassessment can be levied. The owner of such bane has the exclusive right of cutting and felling without any charge for his own domestic and agricultural requirements in the village in which the warg is situated, all wood and timber on his bane, except sandalwood, which remains the property of Government. But he has numberright to cut or fell timber for sale or barter, or for the use of any one but his own household servants, or to remove it into another village even for his own use without permission of the Commissioner. Firewood may be removed to another village under a pass granted by the Forest Officer. On the enactment of the Constitution in 1950, Coorg became a Part C State and on November 1, 1956 it became a part of the new St-ate of Mysore number Karnataka . The existing laws companytinued to be in force in the Coorg area until the enactment of uniform laws in the new State of Mysore. The Mysore legislature enacted the Mysore Forest Act, 5 of 1964, to companysolidate and amend the law relating to forests and forest produce in the State of Mysore. Section 102 of that Act empowers the State Government to make rules to carry out all or any of the purposes of the Forest Act. After the companymencement of that Act the Mysore Forest Rules were promulgated by the State Government in 1969. Rule 137 which is impugned by the appellants is in these terms Redemption of trees in Bane lands in Coorg District- No holder of Bane lands who has number paid the timber value when the grant was made or subsequently, shall cut or remove any tree or timber or any other material obtained from such tree for purposes other than those for which the Bane land was assigned, i.e., for the service of the wet land attached to the Bane land for their bona fide domestic use. Holders of Bane lands intending to redeem the trees except sandalwood on such Bane lands, either fully or partially, may do so either by payment of the timber value or by permitting the Forest Department to extract and dispose of the trees. On April 1, 1964 the Mysore legislature enacted the Mysore Land Revenue Act, 12 of 1964, to companysolidate and amend the law relating to land and the land revenue administration in the State of Mysore. Section 202 of that Act provides for the repeal of enactments specified in the Schedule, in which is included the Coorg Land and Revenue Regulation 1 of 1899. Section 75 of the Land Revenue Act which has an important bearing on the case provides for the right to trees in villages in which survey settlement has been introduced. Learned companynsel for the appellants urges that by virtue of the provisions companytained in section 75 1 of the Mysore Land Revenue Act, 1964 appellant No. 1 must be deemed to have become the owner of trees standing on the Bane lands and therefore the Divisional Forest Officer has numberright under Rule 137 of the Mysore Forest Rules, 1969 to ask for the payment of the timber value of the trees before they can be cut and removed. This argument requires an examination of the terms of section 75 1 which reads thus Right to trees in villages, to which survey. settlement has been introduced.- 1 In any village or portions of a village if the original survey settlement has been companypleted before the companymencement of this Act, the right of the State Government to all trees in any land, except trees reserved by the State Government or by any Survey Officer, whether by express order made at or about the time of such settlement or by numberification made and published at or any time after such settlement shall be deemed to have been companyceded to the occupant. This provision, in our opinion, admits of numberdoubt or difficulty. The companydition precedent to the application of section 75 1 is admittedly satisfied in this case because in regard to the village of Nemmale where the Bane lands of the 1st appellant are situated, the original survey settlement was companypleted before April 1, 1964 when the Mysore Land Revenue Act came into force. By section 75 1 the right of the State Government to all trees in any land shall be deemed to have been companyceded to the occupant except in regard to trees reserved by the State Government or by any Survey Officer either by an express order made at or about the time of such settlement or by a numberification made and published at or any time after such settlement. The first question which then arises is whether there is an express order made at or about the time of the original survey settlement by which the right to trees standing on Bane lands was reserved by the State Government or by any Survey Officer. The High Court has held that Rule 10 of the Rules for Classifiers companytained in Appendix B to the Coorg Settlement Report, 1910 companytains an express reservation of the trees standing on Bane lands in favour of the State Government. Learned companynsel appearing for the State of Mysore has also placed strong reliance on Rule 10 in support of the States companytention that the particular trees are vested in it. We find it difficult to agree that Rule 10 can be read as an express order reserving the right of the State Government to the trees, within the meaning of section 75 1 of the Mysore Land Revenue Act, 1964. Rule 10 is a part of the Rules meant for the guidance of Classifiers for implementing the impending survey settlement. The Rules called Rules for Classifiers companytain instructions as to how the Classifiers should companyduct themselves In making the survey settlement. For example, Rule 1 says that Such classifier will take up a village which will be assigned to him by the Settlement officer and will work in it until it is, companypleted. Rule 2 enjoins the Classifiers to have with them the village map, the latest jamabandi register, the crop inspection registers and the mutation register at the time of making the survey. Rule 3 requires the Classifiers to post in a companyspicuous place of the. village a companyy of the Chief Commissioners Notification announcing that the settlement operations have begun. By Rule 4 the classification of wet lands is to be taken up first and for that purpose various details are required to be entered in Form A. Rule 5 companytains instructions as to how the Classifiers should fill up that Form. Rules 6, 7 and 8 companytain instructions regarding the inquiries which the Classifiers must make at the time of survey settlement. By Rule 9 the Classifiers are required to attend to the work in regard to companyfee plantations after companypleting the work in regard to the wet lands. Then companyes Rule 10 which begins with the recital The following terms are at present used for lands held for companyfee cultivation. Clause a of the Rule refers to unalienated banes, and the Explanation to that clause companytains information about such banes. The second paragraph of the Explanation on which the State relies in support of its alleged right to the trees, by its very language refers to a state of affairs that is assumed to exist and does number companytain any express order or declaration regarding the reservation of trees in favour of the Government. The very nature and companytext of the Rules for Classifiers would show that they companyld number possibly companycern themselves with a matter regulating the vesting of a substantive right like the right of the State Government to the trees on Bane lands. At best, Rule 10 may be said to refer to a historical fact. The learned Advocate-General of Karnatka who appeared in this appeal at a later stage was number able to support the decision of the, High Court on the companystruction of Rule 10. But he argued that 1 Appellant No. 1, number being an occupant, cannot claim the benefit of section 75 1 of the Mysore Land Revenue Act, 1964 2 that, companycededly owners of Bane lands like appellant No. 1 had numberright to the trees growing thereon until April 1, 1964 when the Act of 1964 came into force and section 75 1 is number intended to companyfer on holders of Bane lands a right or privilege number enjoyed by them till then 3 that sections 75 1 and 79 2 of the Act of 1964 must be read together and so read they show that only certain privileges enjoyed by holders of Bane lands were saved by that Act and 4 that,, in any event, Rule 97 1-A of the Rules issued under the Coorg Land and Revenue Regulations 1 of 1899 is either in the nature of an express order or a numberification within the meaning of section 75 1 of the Act of 1964, by which the right of the State Government to the trees growing on Bane lands was reserved. These arguments have been companytroverted by Mr. Javali on behalf of the appellants and by Mr. Pai on behalf of the interveners. In the present state of the record it is. number possible to entertain and examine the submissions of the Advocate-General. But that is number entirely the fault of the State Government. The writ petition filed by the appellants in the High Court is utterly sketchy and inadequate. They have number made averments necessary for a proper understanding of their case, they have number disclosed the source and authority of the claim made by appellant No. 1 to the trees and they have number traced the history of the right which appellant No. 1 claims in the writ petition. The State Government by its companynter-affidavit in the High Court rested companytent with formal denials of the appellants claim though, it is true, there was number much to deny or traverse. The writ petition raised important questions affecting the right of the State Government to trees standing on vast tracts of forest areas and it ought to have shown a greater companycern for those rights. The upshot of the matter is that there is numbermaterial on the record to enable us to decide the companytentions raised by the parties except the one relating to the companystruction of Rule 10 of the Rules for Classifiers. We may also indicate that the only relief sought by the appellants by their writ petition is that Rule 137 of the Mysore Forest Rules, 1969 be struck down as it infringes Article 19 1 f and Article 31 of the Constitution and is inconsistent with section 75 1 of the Mysore Land Revenue Act, 1964. That rule was deleted, during the pendency of this appeal, by the Karnataka Forest Amendment Rules, 1973 numberified on January 15, 1974. In spite of the deletion of the Rule, the appellants did number seek the permission of this Court to amend the writ petition. The only relief sought by the appellants has thus become infructuous. In these circumstances, we have decided to relegate the parties to such remedies as they may be advised to adopt for the vindication of their rights. Our judgment will companyclude the question regarding the interpretation of Rule 10 of the Rules for Classifiers only. That rule does number companytain an express order reserving the right of the State Government to the trees growing on Bane lands, within the meaning of section 75 1 of the Mysore Land Revenue Act, 1964. Accordingly, we set aside the judgment of the High Court on the companystruction of Rule 10 and since, apart from the validity of Rule 137 of the Mysore Forest Rules 1969, that is the only question decided by the High Court we allow the appeal. The question as regards the Validity of Rule 137 is number academic as the rule has been deleted. In the circumstances of the case there will be numberorder as to companyts. Parties will be at liberty to agitate the other questions in such proceedings as they may be advised to take.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 2053 of 1973. Petition under Article 32 of the Constitution of India, Shiv Pujan Singh, for the petitioner. The Judgment of the Court was delivered by RAY, C.J. The petitioner in a writ petition under Article 32 of the Constitution challenges the order of detention dated 15 March, 1973. The order is in exercise of the powers companyferred by sub- section 1 read with sub-section 2 of section 3 of the Maintenance of Internal Security Act hereinafter referred to as the Act directing the petitioner to be detained. The petitioner challenges the order on the ground that it is the duty of the authority to fix the period of detention after carefully examining the circumstances requiring detention. The petitioner submits that the authorities haye bodily lifted the section fixing the maximum period without applying their mind as to the period of detention. This Court in Fagu Shaw etc. v. The State of West Bengal I.R. 1974 S.C. 613 held that the maximum period mentioned in section 13 of the Act as amended by section 6 d of the Defence of India Act, 1971- is a companystitutionally valid provision. That section states that the maximum period for which any person can be detained in pursuance- of any detention which has been companyfirmed under section 12 shall be 12 months from the date of detention or until the expiry of the Defence of India Act whichever later. This Court companystrued section 13 of the Act to be valid with ,reference to Article, 22 7 b of the Constitution. The maximum period under Article 22 7 b can be fixed with reference to the duration of an emergency The expiry of the Defence of India Act is dependent upon the revocation of emergency. The duration of maximum period of detention with reference to an event like the cessation of the period of emergency is number indefinite. The order of detention in the present case does number suffer from any companystitutional infirmity.The authorities have applied their mind. The authorities have detained for the maximum period mentioned in the, statute. The petition is dismissed.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 84 of 1973. Appeal under Section 19 of the Contempt of Court Act, 1971 from the Judgment and Order dated the 13th February, 1973 of the Orissa High Court at Cuttack in original Criminal Misc. Case No. 3 of 1973 . Baradakanta Mishra, in person. S. Nariman, Addition-,it Solicitor-General of India, and Vinoo Bhagat, for the respondent. The Judgment of the Court was delivered by BHAGWATI, J., Since we are disposing of this appeal on a preliminary point, it is number necessary to state the facts in detail. It would be sufficient if we state only so much of the facts as bear on the preliminary point. The appellant was at all material times a member of the Judicial Service of the State of Orissa. He was promoted as an Additional District and Sessions Judge on 31st July, 1968 but by an order dated 30th March, 1972 made by the High Court of Orissa, he was suspended as a disciplinary inquiry was decided to be instituted against him. On 29th April, 1972, a charge-sheet companytaining eight charges was served on him and he was called upon to show cause why disciplinary action should number be taken against him. In the meantime, on 10th April, 1972, the appellant addressed an appeal to the Government companyplaining against the order of suspension passed by the High Court and requesting the Governor to cancel the order of suspension on the ground that it was outside the authority of the High Court. The High Court withheld the appeal of the appellant and refused to forward it to the Governor since in its opinion numberappeal lay to the Governor, against an order of suspension passed by the High Court. The appellant thereupon forwarded directly to the Governor a representation dated 14th May, 1972 with a companyy to the Registrar of the High Court and by this representation the appellant moved the Governor to transfer the disciplinary inquiry against him to the Administrative Tribunal. There were several statements made in this representation which scandalized the High Court and tended to lower its prestige, dignity and authority and thus companystituted criminal companytempt of companyrt within the meaning of the Contempt of Courts Act, 1971. The High Court, therefore, suo motu issued a numberice dated 3rd July, 1972 calling upon the appellant to show cause why he should number be punished for companytempt of companyrt. The numberice set out the passages from the representation made by the appellant to the Governor which, in the prima facie opinion of the High Court, amounted to companytempt of companyrt. The proceeding for companytempt initiated by this numberice was numbered as Criminal Miscellaneous Case No. 8 of 1972. The appellant appeared in answer to the numberice and raised several companytentions with a view to exonerating himself from the charge of companytempt. One of the companytentions was that whatever he had said in regard to the judges of the High Court in the representation made by him to the Governor was in regard to their companyduct in the discharge, of administrative functions and number judicial functions, and therefore, it did number amount to companytempt of companyrt. The appellant pleaded before the Full Bench of five judges, which was companystituted to hear the pro- ceeding for companytempt, that this companytention should be tried as a preliminary issue, but the Full Bench rejected the plea of the appellant. The appellant thereupon preferred a petition for special leave to appeal to this Court and in this petition, the appellant once again made statements which prima facie appeared to companystitute criminal companytempt of companyrt. The petition was rejected by this Court but the High Court taking numbere of the objectionable statements companytained in the petition issued a supplementary numberice dated 5th January, 1973 to the appellant to show cause why he should number be punished for having companymitted companytempt of companyrt by publishing such statements. The Full Bench there- after heard the proceeding for companytempt on the charges companytained in both the numberices and by an order dated 5th February, 1973 held the appellant guilty of companytempt of companyrt and sentenced him to simple imprisonment for two months. Meanwhile the disciplinary inquiry instituted under the charge-sheet dated 29th April, 1972 was entrusted to K. B. Panda, J., and the learned Judge, after holding a proper inquiry in accordance with the principles of natural justice, submitted a report dated 2nd August 1972 finding the appellant guilty of all the eight charges set out in the charge-sheet, except charge No. 4 a . The High Court companysidered the report at a Full Court meeting of all the judges and finding itself in agreement with the report, the High Court issued a show cause numberice calling upon the appellant to show cause why he should number be reduced to the rank of Additional District Magistrate Judicial . The appellant was granted personal hearing and after companysidering the explanation given by him, the High Court again at a Full Court meeting of all the judges held on 8th December, 1972, found the appellant guilty of the charges levelled against him except charge No. 4 a and reduced him to the rank of Additional District Magistrate Judicial . The appellant took the view that same of the issues arising in the disciplinary inquiry were the same as those arising in the proceeding for companytempt which was pending against him and the decision of those issues by the High Court on the Administrative side in the companyrse of the disciplinary inquiry amounted to pre-judging those issues in the proceeding for companytempt which was a judicial proceeding and the Chief Justice and other judges of the High Court, who decided the disciplinary inquiry were, therefore, guilty of criminal companytempt of their own High Court. The appellant, therefore, as soon as the proceeding for companytempt was decided by the Full Bench on 5th February, 1973, moved the Full Bench for initiating proceeding for companytempt against the Chief Justice and other judges in their personal capacity. The motion of the appellant was heard by a Full Bench of three judges and by an order dated 13th February, 1973, the Bench held that in its opinion there was numbercontempt of companyrt companymitted by the Chief Justice and the other judges and in any event, by reason of section 15, sub-section 4 , the appellant was number entitled to move the High Court for taking action against the Chief Justice and other judges since he had number obtained the companysent in writing of the Advocate General and the Bench accordingly declined to take any action on the motion of the appellant. The appellant thereupon, purporting to avail of the right of appeal granted under section 19, subsection 1 , preferred the present appeal to this Court. When the appeal reached hearing before us, the learned Additional Solicitor General, appearing on behalf of the respondent, raised a preliminary objection against the maintainability of the appeal. The learned Additional Solicitor General companytended that number appeal lay under section 19, sub-section 1 against the refusal of the High Court to take action on the motion made by the appellant. It is, only if the High Court suo motu or on a motion made by the Advocate General or any other person with the companysent in writing of the Advocate General takes action and initiates proceeding for companytempt against the alleged companytemner and on arising at a finding of guilt, punishes him for companytempt that the alleged companytemner has a right of appeal under section 19, sub-section 1 . Even if a proceeding for companytempt is initiated against the alleged companytemner but the alleged companytemner is found number guilty and is exonerated, there is numberright of appeal, companytended the learned Additional Solicitor General, and neither the Advocate General number the person who has, with the companysent in writing of the Advocate General, moved the High Court, can appeal as of right. The appellant, who appeared in person, companybated this companytention by relying on the, words any order or decision-in the exercise of its jurisdiction to punish for companytempt and urged that even if a decision was taken by the High Court number to take action can the motion made by the Advocate General or any other person with the companysent in writing of the Advocate General, it would still be a decision in the exercise of its jurisdiction to punish for companytempt and would, therefore, be appealable on the plain terms of section 19, sub-section 1 . It is difficult to imagine, companytended the appellant, that the legislature should have companyferred a right on the Advocate General,or any other person with the companysent in writing of the Advocate General to move the High Court for taking action for companytempt, but should have refused to grant a right of appeal to the Advocate General or such other person even if his motion was wrongly rejected by the High Court. These rival companytentions raise an interesting question of law depending for its determination on the true interpretation of the language of section 19, sub-section 1 . Now, while companysidering this question, we must bear in mind the true nature of the companytempt jurisdiction exercised by the High Court and the law in regard to right of appeal which obtained immediately prior to the enactment of the companytempt of Courts Act, 1971. It has always been regarded as well settled law that so far as criminal companytempt is companycerned, it is a matter entirely between the Court and the alleged companydemner. No one has a statutory or companymon law right to say that he is entitled as a matter of companyrse to an order for companymittal because the alleged companydemner is guilty of companytempt. All that he can do is to move the Court and draw its attention to the companytempt alleged to have been companymitted and it will then be for the Court, if it so thinks fit, to take action to vindicate its authority and companymit the alleged companytemner for companytempt. It is for the Court in the exercise of its discretion to decide whether or number to initiate a proceeding for companytempt. Even if the Court is prima facie satisfied that a companytempt has been companymitted, the Court may yet choose to ignore it and decline to take action. There is numberright in any one to companypel the Court to initiate a proceeding for companytempt even where a prima facie case appears to have been made out. The same position obtains even after a proceeding for companytempt is initiated by the Court on a motion made to it for the purpose. The Court may in the exercise of its discretion accept an unconditional apology from the alleged companytemner and drop the proceeding for companytempt. Or, even after the alleged companytemner is found guilty, the Court may, having regard to the circumstances, decline to punish him. So far as the companytempt jurisdiction is companycerned, the only actors in the drama are the Court and the alleged companytemner. An outside party companyes in only by way of drawing the attention of the Court to the companytempt which has been companymitted he does number become a party to the proceeding for companytempt which may be initiated by the Court. It was for this reason that a Division Bench of the Bombay High Court held in Narendrabhai Sarabhai Hatheesing v. Chinubhai Manibhai, Seth 1 that an order made by the High Court refusing to companymit a man for breach of an undertaking given to the Court is number a judgment within the meaning of clause 15 of the Letters Patent as it does number affect the merits of any question between the parties to the suit. Beaumont, C.J., pointed out the undertaking is given to the Court if it is broken, and that fact is brought to the Courts numberice, the Court may take such action as it thinks fit. If it companyes to the companyclusion that the order has been deliberately broken, it will probably companymit the defaulter to jail, but the Court is free to adopt such companyrse as it thinks fit. Rangnekar, J., also spoke in the same strain when he said Proceedings for companytempt are matters entirely between the Court and the person alleged to have been guilty of companytempt. No party has any statutory right to say that he is entitled as a matter of companyrse to an order for companymittal because his opponent is guilty of companytempt. All that he can do is to companye to the Court and companyplain that the authority of the Court has been flouted, and if the Court thinks that it was so, then the Court ill its discretion takes action to vindicate its authority. It is, therefore, difficult to see how an application ?or companytempt raises any question between the parties, so that any order made I.L.R. 60 Bom. 894. on such an application by which the Court in its discretion refuses to take any action against the party alleged to be in the wrong can be said to raise any question between the parties. It is, therefore, clear that under the law as it stood prior to the enactment of the Contempt of Courts Act, 1971 numberappeal lay at he instance of a party moving the High Court for taking action for companytempt, if the High Court in the exercise of its discretion refused to take action on the motion of such party. Even if the High Court took action and initiated a proceeding for companytempt and in such proceeding, the alleged companytemner, being found guilty, was punished for companytempt, the order being one made by the High Court in the exercise of its criminal jurisdiction was number appealable under clause 15 of the Letters Patent, and therefore, numberappeal lay against it from a Single Judge to a Division Bench and equally, there was numberappeal as of right from a Division Bench to this Court. The result was that in cases of criminal companytempt, even a person punished for companytempt had numberright of appeal and he companyld impugn the order companymitting him for companytempt only if the High Court granted the appropriate certificate under Art. 134 in fit cases or on the refusal of the High Court to do so, this Court intervened by granting special leave under article 136. This was a highly unsatisfactory state of affairs and it was largely responsible for the criticism against the large powers of the Court to punish for companytempt. This unsatisfactory feature of the law of companytempt was adversely companymented upon by Sanyal Committee in its Report dated 28th February, 1963 submitted to the Government of India. The Sanyal Committee, pointed out in Paragraph 2.1 in Chapter XI of its Report The present state of the law relating to appeal in cases of criminal companytempt appears to be more, the result of accidents of legal history than a matter of policy. That this is so is clearly evident from the fact that in those cases of companytempt for which specific. provision is made in the Indian Penal Code and the Code- of Criminal Procedure a right of appeal is provided for under section 486 of the Code of Criminal Procedure. In the case of companytempt falling within the purview of inherent powers of the High Courts, numberspecific provision has been made in the Letters Patent of the High Courts and the only explanation for this seems to be that numbersuch provision was made in England in regard to the English superior companyrts. Further, under the provisions of the Letters Patent, numberappeal is ordinarily permissible where the order of the companyrt is made in the exercise of the criminal jurisdiction. It has also been held that section 411A of the Code of Criminal Procedure does number afford any remedy by way of appeal in companytempt cases. The result has been that before the Constitution came into force, an appeal in companytempt cases from the decision of a High Court companyld lie only in special cases to the Judicial Committee. The Constitution did number alter this position very much for the effect of articles 134 and 136 of the Constitution is merely to substitute the Supreme Court for the Privy Council. In short, there is only a discretionary right of appeal available at present in cases of criminal companytempt. Then in Paragraph 3.1 in Chapter XI of its Report the Sanyal Committee proceeded to state we accordingly recommend that against an order of a single Judge, punishing for companytempt, the appeal should lie, in the High Court, to a Bench of Judges and against a similar order of a Bench of Judges of a High Court, the appeal should lie as of right to the Supreme Court. Chapter XII of the Report companytained the recommendations of the Sanyal Committee and clause, 25 of the recommendations was in the following terms Provision may be made for an appeal as of right from any order or decision of a High Court in the exercise of its. .jurisdiction to punish for companytempt. The appeal should lie to a Bench of Judges of the High Court where the order or decision is of a single Judge. Where the order or decision is of a Bench the appeal should lie to the Supreme Court. It was in pursuance of this recommendation made by the Sanyal Committee that the Parliament, while enacting the Contempt of Courts Act, 1971, introduced section 19, sub- section 1 in that Act companyferring an appeal as of right from any order or decision of a High Court in the exercise of its jurisdiction to punish for companytempt. Before we examine the language of section 19, sub-section 1 in order to arrive at its true interpretation, we may first look at sections 15, 17 and 20. Sub-section 1 of section 15 provides that in a case of criminal companytempt other than companytempt in the face of the Court, the Supreme Court or the High Court may take action on its own motion or on a motion made by the Advocate General or any other person with the companysent in writing of the Advocate General and subsection 2 of that section-says that in case of criminal companytempt of any subordinate companyrt, the High Court may take action on a reference made to it by the subordinate companyrt or on a motion made by the Advocate General or in relation to Union Territories, by such law officer as the Central Government may specify in this behalf. Section 17 lays down the procedure to be followed by the, Court when it decides to take action and initiates a proceeding for companytempt under section 15. Sub-section 1 of that section provides that numberice of every proceeding under section 15 shall be served personally on the person charged and according to subsection 2 , such numberice shall be accompanied, in case of a proceeding companymenced, on a motion, by a companyy of the motion as also companyies of the affidavits, if any, on which such motion is founded, and in case of a proceeding companymenced on a reference by a subordinate companyrt, by a companyy of the reference. Section 20 prescribes a period of limitation by saying that numbercourt shall initiate any proceeding for companytempt either on its own motion or other wise after the expiry of a period of one year from the date on which the companytempt is alleged to have been companymitted. It will be seen from these provisions that the scheme adopted by the legislature is that the Court may initiate a proceeding for Contempt suo motu or on a motion made by the Advocate General or any other person with the companysent in writing of the Advocate General or on a reference made by a subordinate companyrt. Where the Court initiates a proceeding for companytempt suo motu, it assumes jurisdiction to punish for companytempt and takes the first step in exercise of it. But whit happens when a motion is made by the Advocate General or any other person with the companysent in writing of the Advocate General or a reference is made by a subordinate companyrt. Does the Court enter upon the jurisdiction to punish for companytempt and act in exercise of it when it companysiders such motion or reference for the purpose of deciding whether it should initiate a proceeding for companytempt ? We do number think so. The motion or reference is only for the purpose of drawing the attention of the Court to the companytempt alleged to have been companymitted and it is for the Court. on a companysideration of such motion or reference, to decide, in exercise of its discretion, whether or number to initiate a proceeding for companytempt. The Court may decline to take companynizance and to initiate a proceeding for companytempt either because in its opinion numbercontempt Prima facie appears to have been companymitted or because, even if there is prima facie companytempt, it is number a fit case in which action should be taken against the alleged companytemner. The exercise of companytempt jurisdiction being a matter entirely between the Court and the alleged companytemner, the Court, though moved by motion or reference, may in its discretion, decline to exercise its jurisdiction for companytempt. It is only when the Court decides to take action and initiates a proceeding for companytempt that it assumes jurisdiction to punish for companytempt. The exercise of the jurisdiction to punish for companytempt companymence with the initiation of a proceeding for companytempt, whether suo motu or on a motion or a reference. That is why the terminus a quo for the period of limitation provided in section 20 is the date when a proceeding for companytempt is initiated by the Court. Where the Court rejects a motion or a reference and declines to initiate a proceeding for companytempt, it refuses to assume or exercise jurisdiction to punish for companytempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for companytempt. Such a decision would number, therefore, fall within the opening words of section 19, sub-section 1 and numberappeal would lie against it as of right under that provision. This of companyrse does number mean that there is numberremedy available where the High Court on an erroneous view of the law or unreasonably and perversely refuses to take action for companytempt on a motion or a reference. Though numberappeal lies under section 19, sub-section 1 as of right against such order or decisions of the High Court, the Advocate General or any other person who has with the, companysent in writing of the Advocate General moved the High Court can always companye to this Court by a petition for special leave to appeal and the power of this Court to interfere with such order or decision in the exercise of its extraordinary jurisdiction under article 136 is unfettered. This Court can always in suitable cases set right any order or decision of the High Court refusing to take action for companytempt against the alleged companytemner, if the larger interests of administration of justice so require. It is, therefore. clear that the order made by the Full Bench of the Orissa High Court in the present case rejecting the motion made by the appellant and refusing to initiate a proceeding for companytempt against the Chief Justice and other judges was number appealable under section 19, sub-section 1 . We may point out that in the present case it is unnecessary to companysider whether an appeal under section 19, subsection 1 is companyfined only to a case where the High Court after initiating a proceeding for companytempt finds the alleged companytemner guilty and punishes him for companytempt as companytended by the learned Additional Solicitor General or it extends also to a case where after initiating a proceeding for companytempt, the High Court finds that the alleged companytemner is number guilty of companytempt and exonerates him, or even if he is found guilty of companytempt, declines to punish him. A question may well arise whether in the latter case the Advocate General or any other person who has, with the companysent in writing of the Advocate General, moved the High Court can appeal as of right against the order or decision of the High Court. That question does number arise in the present case and we need number, therefore, express, any opinion upon it, though we may point out that in England a right of appeal is given to a disappointed applicant under section 13, subsections 1 and 2 of the Administration of Justice Act, 1960. We are, therefore, of the view that the preliminary objection raised by the respondent is well founded and the appellant is number entitled to maintain the present appeal under section-19, sub-section 1 .

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1991 of 1971. From the Judgment and, Order dated the 29th March, 1971, of the Bombay High Court and Bombay in Appeal No. 87 of 1970. M. Tarkunde and Rameshwar Nath for the appellant K.S. Ramamurthy and B.R. Agarwal for the respondent. The Judgment of the Court was delivered by RAY, C. J.-This is an appeal by certificate from the judgment dated 29th March, 1971 of the High Court of Bombay. The appellant filed this suit on 2 September, 1964 in the High Court of Bombay and claimed six months salary in lieu of numberice and gratuity for 16 years of service. In the year 1965 the appellant asked for discovery by the respondent of documents relating to pension scheme for foreign employees. The application for discovery was dismissed in the month of November, 1965. On 16 December, 1969 the appellant took out a Chamber Summons for amendment of the plaint. The proposed amendments were twofold. The first set of amendment related to averments in support of the claim for gratuity which had already been alleged in the plaint. The second set of amendment related to averments in support of a claim for Rs. 850 per month by way of pension as and from 1 February, 1964 during the life time of the appellant. By an order dated 19 January, 1970 the appellant was allowed to amend the plaint in respect of the claim for gratuity. The appellants proposed amendment in support of the claim for pension was refused. By summons dated 27 April, 1970 the appellant sought an amendment of. the plaint claiming Rs. 68,000 as damages in relation to his right to pension. By an order dated 6 July, 1970 the appellant was allowed to amend the plaint as prayed for. The respondent preferred an appeal against the order dated 6 July, 1970. The High Court by judgment dated 29 March, 1971 allowed the appeal and set aside the order dated 6 July, 1970 allowing the amendment. The appellant repeated the companytentions which had been advanced before the High Court. First, it was said that numberappeal companyld lie against an order of amendment because it was number a judgment within the meaning of clause 15 of the Letters Patent. Secondly, it was said that an order allowing the amendment was a discretionary cider. Therefore, the appellate companyrt should number have interfered with the discretion. Counsel for the appellant submitted that judgment means a decision finally adjudicating the rights between the parties. It was emphasised that a judgment would be a decision on substantive rights of parties. Amendment was submitted to be a procedural right. Counsel for the appellant relied on the decision in Dayabhai v. Murrugappa Chettiar I. L. R. 13 Rang. 457 and Manohar v. Baliram I.L.R. 1952 Nag. 471 in support of the proposition that judgment means and is a decree in a suit by which the rights of the parties in the suit are determined. The locus classics is the decision of the High Court of Calcutta in Justice of the Peace for Calcutta v. Oriental Gas Company 8 Bengal L.R. 433 where Sir Richard Couch, C. J. said We think that judgment means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined. This Court in Asrumati Debi v. Kumar Rupendra Deb Raikot Ors. 1953 S.C.R. 1159 dealt with the question as to whether an order of transfer of a suit filed in the Jalpaiguri Court to the High Court to be tried in its Extraordinary Original Civil Jurisdiction was a judgment within the meaning of clause 15 of the Letters Patent. it was held that an order for transfer of a suit is number a judgment within the meaning of clause 15 of the Letters Patent as it neither affects the merits of the companytroversy between the parties in the suit itself number terminates or disposes of the suit on any ground. This Court in Asrumati Debis case supra said that a judgment within the meaning of clause 15 of the Letters Patent would have to satisfy two tests. First, the judgment must be the final pronouncement which puts an end to the proceeding so far as the companyrt dealing with it is companycerned. Second, the judgment must involve the determination of some right or liability though it may number be necessary that there must be a decision on the merits. In this companytext this Court referred to observation of the Full Bench of the High Court of Madras in Tuljaram v. Alagappa I.L.R. 35 Mad. 1. The test formulated by the Madras decision is number the form of the adjudication but its effect on the suit or proceeding in which it is made. The Madras High Court said if the effect is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is companycerned, or if its effect, if it is number companyplied with, is to put an end to the suit or proceeding, the adjudication is a judgment. It may be stated here that the Madras High Court spoke of judgment on an application in a suit. The decision of the Madras High Court in Tuljarams case supra was on an order for transfer of a suit under clause 13 of the Letters Patent. This Court also numbericed the view expressed by the Madras High Court in Tuljarams case supra that adjudication on an application, which is numberhing more than a step towards obtaining a final adjudication in the suit, is number a judgment within the meaning of the Letters Patent. In Asrumati Debis case supra this Court numbericed the argument advanced that if an order refusing to rescind leave to sue granted under clause 12 of the Letters Patent was a judgment under clause 15 of the Letters Patent there was numberdifference in principle between an order of that description and an order transferring the suit under clause 13 of the Letters Patent. This Court did number express any opinion excepting observing that if leave under clause 12 of the Letters Patent was rescinded, the suit would companye to an end and if an order was made refusing to rescind the leave the result would be on a vital point adverse to the defendant and it would go to the root of the suit and become final and decisive against the defendant so far as the Court making the order was companycerned. In finding out whether any decision is a judgment within the meaning of clause 15 of the Letters Patent each case must be looked into, in order to find out as to whether there is a decision determining the right or liability of the parties affecting the merits of the companytroversy between the parties. It is in that light that this Court in Asrumati Debis case supra described the order refusing to rescind leave to be within the category of a judgment as laid down in the Calcutta cases though numberfinal opinion was expressed as to the propriety of that view. The present appeal companycerns an application for amendment of the plaint. The suit was filed in the year 1964. The application for amendment of the plaint in regard to damages for the right to pension was made in the year 1970. An amendment, if allowed, would relate to the date of the institution of the suit. The respondent companytended before the trial Court entertaining the application for amendment of the plaint that the amendment should number be allowed inter alia on the ground that the alleged claim was barred by limitation in 1970. The High Court in the present case relied on the decision of the High Court at Calcutta in M.B. Sarkar Sons v. Powell Co. A.I.R. 1956 Cal. 630. In that case an amendment was allowed on Chambers Summons substituting in place of the original defendant which was described as a firm a defendant companyverted into a companypany in that name. The companypany so proposed to be substituted companyplained that the amendment took away from it a valuable right which had accrued to it by efflux of time, and, therefore, the amendment should number be allowed. The companytention of the defendant was number accepted by the learned Chamber Judge. The High Court on appeal set aside the order. It was number held to be a case of mis-description of the defendant. A mis-description of a party impleaded can arise when the party really intended to be impleaded had always been the same and such intention appeared clearly from the body of the plaint in spite of the inaccurate mis-description in the cause title. In such a case, it would number be adding a new party or substituting a new party for the original one, but perfecting the identity of the party originally impleaded clearing or rectifying the inaccurate description. When the same person, whether an individual or a legal entity, remains the defendant but only the name is altered, it would be a case of mis-description. Where a new legal entity is substituted, it was held in the B. Sarkar case supra that substitution of a companypany for a firm would be a change of a substantial character affecting the right of a party. The effect of the amendment in the M. B. Sarkar case supra was to substitute a new party for the party originally impleaded and the companysequence was to take away from the new party so substituted his defence of limitation that a suit brought on the date of the amendment would be barred by time. Chakravartti, C.J. in the M. B. Sirkar case supra said that an order for amendment of the plaint there decided a vital question companycerning the merits of the case and the rights of the newly impleaded party and therefore became a judgment within the meaning of clause 15 of the Letters Patent. The right to claim that an introduction of a cause of action by amendment is barred by limitation is founded on immunity from a liability. A right is an averment of entitlement arising out of legal rules. A legal right may be defined as an advantage or benefit companyferred upon a person by a rule of law. Immunity in short is numberliability. It is an immunity from the legal power of some other person. The companyrelative of immunity is disability. Disability means the absence of power. The appellant in the present case because of the limitation of the cause of action has numberpower to render the respondent liable for the alleged claim. The respondent has acquired by reason of limitation immunity from any liability. The views of the High Courts at Calcutta and Madras with regard to the meaning of judgment are with respect preferred to the meaning of judgment given by the Rangoon and Nagpur High Courts. We are in agreement with the view expressed by the High Court at Calcutta in the M. B. Sirkar case supra as to when an order on an application for amendment can become a judgment with in the meaning of clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise farther companytentions in the suit, but it is number decided whether the companytentions are right. Such an amendment does numberhing more than regulate the procedure applicable to the suit. it does number decide any question which touches the merits of the companytroversy between the parties. Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial companyrt is companycerned. In finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the companyrt. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability. The appellant made an application in December, 1969 for amendment of the plaint to claim pension. Those amendments were disallowed by the learned Chamber Judge. Four months thereafter the appellant sought to amend the plaint by adding certain paragraphs and those amendments were in relation to the appellants alleged claim for pension. The appellant submitted that the second application for amendment in regard to the claim for a mortised amount of damages in relation to pension was number the same as the first application. It was said on behalf of the appellant that if the learned Judge allowed the application the appellate companyrt should number have interfered with the discretionary order. The amendment order is number purely of discretion. Even with regard to discretionary orders the appellate companyrt can interfere where the order is insupportable in law or is unjust. The High Court companysidered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment. In exceptional cases an amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the companyrt found that companysideration of lapse of time is out weighed by the special circumstances of the case. See Charan Das v. Amir Khan 47 I.A. 255 . The High Court rightly found that there were numberspecial circumstances to entitle the appellant to introduce by amendments such claim. For these reasons, the judgment of the High Court is upheld. The appeal is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2370 of 1969 Appeal from the judgement and order dated the 22nd May, 1969 of the Allahabad High Court in Spl. Appeal No. 343 of 1968. Civil Appeal No 583 of 1971 Appeal from the Judgement order dated the 28th October, 1970 .of the Allahabad High Court in First Appeal No. 82 of 1970. V. Gupte, J. P. Goyal and S. M. Jain, for the appellants in both, the appeals K. Garg, S. C. Aggarwal, S. S. Bhatnagar and V. J. Francis, for the respondent in C. A. No. 583/71 Dixit and O. P. Rana, for the respondent Nos. 1,3 and 4. Civil Appeal No. 2370 of 1969 The Judgment of the Court was delivered by MATHEW J. The appellants filed a petition under Article 226 of the Constitution before the High Court of Allahabad praying that the order passed by the State Government on October 20, 1967, allowing a revision filed by the respondent be quashed and possession of the premises in question be given to them under s. 7-A of the U. P. Temporary Control of Rent and Eviction Act, 1947 hereinafter ,called the Act . The original owner of the premises was one Ram Swaroop Gupta. He leased the premises to M s Pioneer Exhibitors and Distributors Limited. They used the premises for exhibiting cinema. That lease terminated by efflux of time on June 30, 1952. Gupta, thereafter, leased the premises by a deed dated October 13, 1952 for a period of 10 years to Ram Agyan Singh, respondent No. 2. But there was numberorder allotting the accommodation to him under S. 7 2 of the Act. Respondent No. 2 also used the premises for exhibiting cinematography films. Disputes having arisen between the parties, Gupta filed suits for recovery of rent as well as for ejectment against respondent No. 2. The appellants purchased the premises in question from Ram Swaroop Gupta by a sale deed dated March, 26, 1962. Thereafter they filed an application under s. 7 of the Act read with rule 6 made under the Act for release of the accommodation in their favour. On December 3, 1965, the Additional District Magis- trate allowed the application and permitted the appellants to take possession of the premises. That was on the basis that the premises were in illegal occupation of respondent No. 2. The representation against this order filed by respondent No. 2 to the State Government was rejected on January 10, 1966 on the ground that there was numberprovision for any interference by Government with the order. On December 4, 1965, the appellants filed an application for eviction of respondent No. 2 under s. 7-A of the Act. On June 18, 1966, the Additional District Magistrate directed issue of numberice under clause 2 of s. 7-A, why respondent No. 2 should number be evicted. Thereafter, the Additional District Magistrate passed the order for eviction. Respondent No. 2 went up in revision against the order to the Additional Commissioner. He companyfirmed the cider of the Additional District Magistrate. Respondent No. 2, thereafter, filed an application for revision under s. 7-F of the Act before the State Government against the order. The State Government allowed that application on October 20, 1967 holding that respondent No. 2 was number liable to be evicted from the premises. On January 20, 1968, the State Government companymunicated to the parties a summary of the reasons on the basis of which the order had been passed. That in effect said that the respondent was running a cinema under a licence in the premises from 1952, that the District Magistrate, when he granted the licence, was satisfied that respondent No. 2 was in lawful occupation and that, in these circumstances, he was entitled to the benefit of the proviso to s. 7-A 1 of the Act and was number liable to be evicted from the premises. It was to quash this order that the appellants filed the writ petition before the High Court. A learned Single Judge of the Court quashed the order. Res- pondent No. 2 filed an appeal against the order. The division Bench reversed the order of the learned Single Judge. It is against this order that this appeal has been filed on the basis of a certificate granted under Article 133 1 b of the Constitution. The division Bench was of the view that the learned Single Judge was number justified in interfering with the order passed by the State Government udder s. 7-F of the Act inasmuch as the order of the State Government did number suffer from any infirmity either on the ground that it had numberjurisdiction to pass the order or for the reason that there was an error of law apparent on the face of the record. The material provision in s. 7-A of the Act provides S. 7-A. District Magistrates power to take action against unauthorised occupation- 1 Where in pursuance of the order of the District Magistrate under sub-section 2 of Section 7 the vacancy of any accommodation is required to be reported and is number reported, or where an order requiring any accommodation to be let or number to be let has been duly passed under sub-section 2 of Section 7 and the District Magistrate believes or has reason to believe that any person has in companytravention of the said order, occupied the accommodation or any part thereof, he may call upon the, person in occupation to show cause, within a time to be fixed by him, why he should number be evicted therefrom Provided that numberorder under this section shall be passed if the District Magistrate is satisfied that there has been undue delay or it is otherwise inexpedient to-do so The proviso to sub-section 1 of s. 7-A is companyched in wide language. The dictionary meaning of the word inexpedient is Not expedient disadvantageous in the circumstances unadvisable, impolitic. The circumstances that companyld be taken into companysideration to decide whether it is expedient or inexpedient to order an eviction under the section are number mentioned in the proviso. A great deal of discretion must,therefore, be vested in the District Magistrate and in the State Government when disposing a revision from an order passed by the District Magistrate as several factors would enter the making of the verdict whether it is inexpedient to pass an order of ,eviction under the section. In this case, the State Government has taken into account two reasons for exercising its discretion under the proviso in favour of respondent No. 2 1 that respondent No. 2 was in possession from 1953 onwards and was companyducting a cinema in the premises after obtaining a licence from the District Magistrate under the P. Cinema Regulation Act 2 that the District Magistrate when granting the licence to companyduct the cinema must have been satisfied that the respondent was in lawful occupation of the premises. In other words, what in substance the State Government said was, that respondent No. 2 has been using the premises for companyducting cinema from 1953 on the basis of his possession of the premises and that it would be inexpedient to evict him at this stage. We cannot say that the circumstances taken into account are irrelevant for the exercise of the discretion. Mr. Gupte, appearing for the appellants, said that when the Additional District Magistrate passed the order for release on the basis that the appellants require the premises bona fide for their personal occupation, the State Government, in the exercise of its revisional jurisdiction under s. 7-F against the order of eviction under s. 7-A ,should number have nullified the effect of the order of release by exercising its discretion under the proviso to s. 7-A against the appellants. He also said that the State Government did number even refer to the order for release which would show that it made numberassessment of the hardship to the landlords. The fact that an order for release was passed by the Additional District Magistrate on the basis that the premises were bona fide required by the appellants for their personal occupation did number preclude him, when he was moved by the appellants to evict respondent number 2 from exercising his discretion under the proviso to s. 7-A. For it is at that stage that the respondent will have the opportunity to urge the circumstances which make it inexpedient to evict him. In other words, the only relevant question at the time when the order See Shorter oxford English Dictionary, Illustrated, VoI. 1, 3rd ed., 1964 , p. 997. of release was passed was whether the appellants required the premises bona fide for their occupation.The companytroversy was limited at that stage to that question. The circumstances which would make the passing of an order of evictioninexpedient under s.7-A companyld number have been urged at that time by respondent No. 2. So, the inference that the State Government was number aware of the order for release on the ground that the appellants required the promises for their personal occupation companyld number be made from the fact that the State Government found that it was inexpedient to order the eviction of the second respondent in the exercise of its discretion under the proviso to s. 7-A when disposing of a revision. We are number satisfied that the order of the State Government was vitiated by any error of law apparent on the face of the record. As already stated, the companysiderations which weighed with the State Government in rejecting the application, namely, the hardship to respondent No. 2 who was companyducting a cinema in the premises from 1953 cannot be said to be irrelevant. As the order of the State Government did number suffer from any error of law apparent on the face of the record, the learned Single Judge was number justified in quashing the order and the Division Bench rightly set aside the order of the learned Single Judge and allowed the appeal. We dismiss the appeal but, in the circumstances, make numberorder as to companyts. Civil Appeal No. 583 of 1971 In this appeal, by certificate, we are companycerned with the question whether the suit filed by the appellants for recovery of Possession of the premises which is the subject matter of Civil Appeal NO. 2370 of 1969, on the basis that the tenancy created by Ram Swaroop Gupta, the predecessor-in-interest of the appellants, in favour of Ram Agyan Singh, the respondent, had expired and, therefore, the appellants were entitled to recover possession of the same, was maintainable in law in view of the fact that it was instituted without obtaining the permission of the District Magistrate under s. 3 1 of the U. P. Temporary Control of Rent and Eviction Act, 1947 hereinafter called the Act . The trial companyrt held that although the respondent was a tenant against whom the suit cannot be filed without the previous permission as visualised by s. 3 of the Act, yet he cannot claim the benefit of s. 3 on account of clause 20 of the lease deed and decreed the suit. On appeal by the respondent, the High Court reversed the decree, holding that the suit was number maintainable in view of s. 3, and dismissed the suit. It is from this decree that this appeal has been filed. The two questions which arise in this appeal are 1 whether the High Court was right in holding that s. 3 was applicable and, therefore, the suit was number maintainable and 2 whether clause 20 of the lease deed was a bar to the respondent from claiming that the provisions of s. 3 were applicable. Section 3 1 insofar as it is material, provides, Restriction on eviction-- 1 Subject to any order passed under sub-section 3 numbersuit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds- The lease deed in question was executed after the companymencement of the Act and the respondent did number obtain an allotment under S. 7 2 of the Act in his favour from the District Magistrate. It was, therefore, companytended on behalf of the appellants that the respondent was number a tenant within the meaning of that term in s. 3 as the lease was created in violation of the provision of s. 7 2 . In Udho Dass v. Prem Prakash 1 a Full Bench of the Allahabad High Court took the view that a lease made in violation of the provisions of s. 7 2 would be valid between the parties and would create the relationship of landlord and tenant between them although it might number bind the authorities companycerned. In the light of this ruling the companyrectness of which we see numberreason to doubt-we think that the respondent was a tenant. The respondent had been paying the rent to Ram Swaroop Gupta and to the appellants after the sale by him to the appellants. Tenant is defined under s. 2 g of the Act as follows 2 g Tenant means the person by whom rent is, or but for a companytract express or implied, would be payable for any accommodation. Now, the landlord and the tenant cannot, by their agreement, bind the District Magistrate. In spite of the lease, the District Magistrate may treat the accommodation as vacant and evict therefrom the tenant who is in occupation of the accommodation without an allotment order. This is his statutory obligation. But the appellants would be estopped from denying that the respondent is a tenant. The Act makes a distinction between a tenant by virtue of an allotment order and a tenant otherwise than by virtue of an allotment order. In most of the sections of the Act the word tenant alone is used. If the word tenant in s. 3 is companystrued as tenant under an allotment order, then the tenants who have been occupying an accommodation without an allotment order will be deprived of several material privileges companyferred upon them by the Act. Having regard to the definition clause and the scheme of the Act, we are of opinion that the respondent is a tenant under s. 3 even though EC is occupying the accommodation without an allotment order,. It follows that the respondent would get the protection under S. 3 and that the appellants suit was, therefore, liable to be dismissed as it was found that it was instituted without the permission of the District Magistrate. 1 1963 A.L.J. 406. We number turn to the other question, viz., whether under clause 20 of the lease deed, the respondent was precluded from companytending, that the suit was number maintainable even though it was instituted without the permission of the District Magistrate. Clause 20 of the deed provides That this agreement of lease has been made between the parties with the knowledge of the existing Rent Control and Eviction Act. The parties do hereby agree and declare that numberparty will ever claim the benefit of the said Acts and that the provisions of the said Acts have been agreed by mutual companysent to be inapplicable to this deed. The question for companysideration is whether this clause is illegal. Clause 20 companytains two provisions. The first provision is that the parties will never claim the benefit of the Act. The second provision is that the provisions of the Act will be inapplicable to the lease deed. The High Court has taken the view that clause 20 is illegal, and therefore, the respondent was number precluded from companytending that- the suit was number maintainable. The Act was passed inter- alia to prevent the eviction of tenants from their accommodations. The language of s. 3 1 is imperative and it prohibits the institution of the suit without the permission, If any landlord institutes a suit for eviction of the tenant without the permission of the District Magistrate, he companymits an offence and is punishable Linder s. 15 of the Act. The object of s. 3 is to give protection to a tenant from eviction from an accommodation. The policy of the Act seems to be that a responsible authority like the District Magistrate should companysider the claim of the landlord and the needs of the tenant before granting permission. There was alarming scarcity of accommodation. The object of legislature in enacting the law was to protect tenants from greedy and grasping landlords, and from their resorting to companyrt for eviction of tenants without reasonable grounds. Under s. 23 of the Indian Contract Act, 1872, an agreement is void if it defeats any provision of law S. 23. The companysideration or object of an agreement is lawful, unless-- it is forbidden by law or is of such a nature, that, if permitted, it would defeat the provisions of any law, or is fraudulent or involves or implies injury to the person or property of another or the Court regards it Lis immoral, or opposed to public policy. In each of these cases, the companysideration or object of an agreement is said to be unlawful. Every agreement of which the object or companysideration is unlawful is void. Mr. Gupte, appearing for the appellants, referred to the decision of this Court in Lachoo Mal v. Radhey Shyam 1 and said that 1 1971 3 S.C.R.693. M185 Sup. CI/75 it was open Lo the respondent to waive the benefit of the provision of s. 3 as it was enacted for the benefit of tenants and that numberquestion of public policy is involved. In that case this Court was companysidering the question whether it was open to a landlord to waive the benefit of a provision enacted for the benefit of landlords under the Rent Control Act. This Court said that if a provision is enacted for the benefit of a person or class of persons, there was numberhing which precludes him or them from companytracting to waive the benefit, provided that numberquestion of public policy was involved. If the object of a statute is number one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the companyditions prescribed by the statute are number companysidered as being indispensable. This rule is expressed by the maxim of law, quilibet potest renuntiare juri pro se introducto. As a general rule, the companyditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the companyrt jurisdiction. But if it appears that the statutory companyditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that numberpublic interests are involved, such companyditions will number be companysidered as indispensable, and either party may waive them without affecting the jurisdiction of the companyrt 1 Maxwell states the rule of law as follows Another maxim which sanctions the number- observance of a statutory provision is that culibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Where in an Act there is numberexpress prohibition against companytracting out of it, it is necessary to companysider whether the Act is one which is intended to deal with private rights only or whether it is an Act which is intended, as a matter of public policy, o have a more extensive operation 2 . So, the question is, whether s. 3 was enacted only for the benefit of tenants or whether there is a public policy underlying It which precludes a tenant from waiving its benefit. There can be numberdoubt that the provision has been enacted for protecting one set of men from another set of men, the one from their situation and companydition are liable to be oppressed and imposed upon. Necessitous men are number free men. In the Nineteenth-Century the doctrines of laissex faire capitalism were accepted as part of the natural order of things and the doctrine was reinforced by the idea of the early utilitarians that to achieve social justice, it would suffice to produce formal equality before the See Craies on Statute Law, 7th ad,. pp. 269-270. See Interpretation of Statutes, 11th ed., 1962 , pp. 375-376. law. These views were reflected in companytemporary legal thought by the idea that freedom of companytract was the supreme article of public policy, a numberion which ignored utterly those cases where there was numbergenuine equality of bargaining power as for example between master and servant or between landlord and tenant. 1 There can be numberdoubt about the policy of the law, namely, the protection of a weaker class in the companymunity from harassment of frivolous suits. But the question is there a public policy behind it which precludes a tenant from waiving it? The expression public policy has air entirely different meaning from policy of the law and one much more extensiVe 2 . Nevertheless, the term public policy is used by the House of Lords itself apparently as synonymous with the policy of the law or the policy of a statute see Hollinishead v. Hazleton 3 . Yet it is clearly so used without intent to repudiate or disregard the distinction so clearly drawn in Egerton v. Brownlow. It seems clear that the companyception of public policy is number only number quite distinct from that of the policy of law but has in fact always been so except in some exceptional instances of companyfusion which have had numberSubstantial effect on the general companyrse of authority 4 . The Courts have often repeated Mr. Justice Burrroughs metaphor about public policy being an unruly horse. Some judges appear to have thought it more like a tiger and have refused to mount it at all, perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balaams ass which would carry its rider numberhere. But numbere, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the companymunity. There is numberhing remarkable in this because the topic itself is so elusive 5 . Public Policy has been defined by Winfield as a principle of judicial legislation or interpretation founded on the current needs of the companymunity 5 . Now, this would show that the interests of the whole public must be taken into account but it leads in practice to the paradox that in many cases what seems to be in companytemplation is the interest of one section only of the public, and a small section at that. The explanation of the paradex is that The companyrts must certainly weigh the interests of the whole companymunity as well as the interests of a companysiderable section of it, such as tenants, for instances as a class as in this case. If the decision is in their favour, it means numbermore than that there is numberhing in their companyduct which is prejudicial to the nation as a whole.- Nor is the benefit of the whole companymunity always a mere tacit companysideration. The companyrts may have to strike. a See Dennts Lloyd, Public Policy 1953 , pp. 136-137. See Eserton v. Brownlow, 4 H.L.C. p. 105. 3 1916 1 A.C. 428. 4 see W.S.M. Knight, Public Policy in English Law, 38, Law Quarterly Rev., 207, at pp. 217-218. 5 see Percy H. Winfield, Public Policy in English Common Law. Harvard Law Rev. 76. balance in express terms between companymunity interests and rectorial interests. So, here we are companycerned with the general freedom of companytract which everyone possesses as against the principle that this freedom shall number be used to subject a class, to the harassment of suits without valid or reasonable grounds. Though there is companysiderable support in judicial dicta for the view that companyrts cannot create new heads of public policy, 1 there is also numberlack of judicial authority for the view that the categories of heads of public policy are number closed and that there remains a broad field within which companyrts can apply a variable numberion of policy as a principle of judicial legislation or inter predation founded on the current needs of the companymunity 2 . Public policy does number remain static in any given companymunity. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time. If it is variable, if it depends on the welfare of the companymunity at any given time, how are the companyrts to ascertain it ? The judges are more to be trusted as interpreters of the law than as expounders of public policy. However, there is numberalternative under our system but to vest this power with judges. The difficulty of discovering what public policy is at any given moment certainly does number absolve the judges from the duty of doing so. In companyducting an enquiry, as already stated, judges are number bide-bound by precedent. The judges must look beyond the narrow field of past precedents, though this stilleaves open the question, a which direction. They must cast their gaze. The judges are to base their decision on the opinions of men of the world, as distinguished from opinions based on legal learning. In other words, the judges will have to look beycnd the jurisprudence and that in so doing, they must companysult number their own personal standards or predilections but those of the dominant opinion at a given moment, or what has been termed customary morality. The judgemust companysider the social companysequences of the rules propounded, especially in the light of the factual evidence available as to its probable results. of companyrse, it is number to be expected that men of the world are to be subpoenaed as expert witnesses in the trial of every action raising a question of public policy. It is number open to the judges to make a sort of referendum or hear evidence or companyduct an inquiry as to the prevailing moral companycept. Such an extended extra, judicial enquiry is wholly outside the tradition of companyrts where the tendency is to trust the judge to be a typical representative of his day and generation. Our law relies, on the implied insight of the judge on such matters. It is the judges themselves, assisted by the bar, who here representthe highest companymon factor of public sentiment and intelligence 3 . No doubt, there is numberassurance that judges See Gherulal Parakh v. Mahadeodas Maiya ors. 1959 Supp. 2, SCR. 406,440. See Dennis Lloyd, Public Policy 1953 , pp. 112-113. 3 see Percy H. Winfield, Public Policy in English Common Law, 42 Harward Law Rev. 76 and also, Dennis Lloyd, Public- Policy 1953 , pp. 124-125. will interpret the mortes of their day more wisely and truly than other men. But this is beside the point. The point is rather that this powermust be lodged somewhere and under our Constitution and laws, It has been lodged in the judges and if they have to fulfil their function as judges, it companyld hardly be lodged elsewhere 1 . We think that s. 3 is based on public policy. As we said, it is intended to protect a weaker section of the companymunity with a view to ultimately protecting the interest of the companymunity in general by creating equality of bargaining power. Although the ection is primarily intended for the protection of tenants only, that protection is based on public policy. The respondent companyld number have waived the benefit of the provision. The language of the section as already stated, is prohibitive in character. It precludes a companyrt from entertaining the suit. We think the High Court was right in its companyclusion.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 275 of 1970. From the Judgment and Order dated the 6th June 1969 of the Mysore High Court at Bangalore, in Writ Petition No. 3244 of 1968 S. Ramamurthy, R. A. Gagrat and B. R. Agarwal for the appellants. V. Gupte and M. Veerappa, for the respondents. The Judgment of the Court was delivered by RAY., C.J.-This is an appeal by certificate against the judgment dated 6 June, 1969 of the High Court at Mysore. The appellant was the owner of several acres of land at Bangalore. The appellant developed an agricultural and horticultural Estate on that land. In the year 1967 there was a proposal to acquire the aforesaid property of the appellant. The land acquisition proceedings companymenced. Possession of the property was taken in the month of April, 1967. The numberification under section 4 of the Land Acqui- sition Act was made in the month of May, 1967. A declaration under section 6 of the Land Acquisition Act was made on 1 July, 1967. In the month of August, 1967 the appellant preferred claims. The claim for companypensation preferred by the appellant was for Rs. 18,83,650. In the month of September, 1967 the Government paid a sum of 6,50,000/- as an installment. On 30 August, 1968 the Government wrote to the Divisional Commissioner that the Government approved the award for the total of Rs. 6,57,870- 15 in respect of lands measuring 86 acres 2 gunthas. The appellant made an application under Article 226 of the Constitution inter alia for an order that the proviso to section 11 and section 15-A of the Mysore Land Acquisition Act 17 of 1961 hereinafter referred to as the 1961 Act be struck down and for further order that a writ of prohibition be issued to the Deputy Commissioner number to follow the instructions given by the Government in their approval letter dated 30 August, 1968. The appellant also asked for a writ of mandamus directing the Land Acquisition Officer to maintain their own valuation expressed in the draft award dated 24 July, 1968 for the sum of Rs. 13,00,000/-. The High Court held that the proviso to section 11 of the 1961 Act is valid. The reason given by the High Court is that the Deputy Commissioner is an agent of the State Government and the companypensation fixed in the award is an offer made on behalf of the Government. The reason for the proviso to section 11 of the 1961 Act is to eliminate rare cases of Land Acquisition officers being influenced by extraneous companysiderations in determining the amount of companypensation in excess of the real market value. Counsel for the appellant companytended that the proviso to section 11 of the 1961 Act is unconstitutional. Section 11 of the 1961 Act deals with enquiry and award by Collector. Section 11 of the 1961 Act states that the Deputy Commissioner shall enquire into objections which any person interested has stated pursuant to a numberice given under section 9 to the measurements made under section 8, and into the, value of the land at the date of the publication of the numberification under section 4 sub-section 1 , and into the respective interests of the persons claiming the companypensation. Section 11 of the 1961 Act further provides that the Deputy Commissioner shall make an award under his hand of i tile true area of the land ii the companypensations which in his opinion should be allowed for the land and ii the apportionment of the said companypensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or number they have respectively appeared before him. Section 15-A of the 1961 states that the State Government may at any time before an award is made by the Deputy Commissioner under section 11 call for and examine the record of any order passed by the Deputy Commissioner of any inquiry or proceedings of the Deputy Commissioner for the purpose of satisfying itself as to the legality or propriety of any order passed and as to the regularity of such proceedings. If, in any case, it shall appear to the State Government that any order or proceedings so called for should be modified, annulled or reversed, it may pass such order thereon as it deems fit. The proviso to section 1 1 of the 1961 Act is that numbersuch award shall be made by the Deputy Commissioner, without the previous approval of the State Government or such officer as the State Government may appoint in this behalf who in the case of an award made by an officer below the rank of the Deputy Commissioner of a District may be the Deputy Commissioner of the District. Section 15-A of the 1961 Act is in aid of the proviso to section 11 of the 1961 Act. Counsel for the appellant companytended that the proviso to section 11 of the 1961 Act offended Article 31 2 of the Constitution. The Land Acquisition Act, 1894 is protected under Article 31 5 of the Constitution. The proviso came into existence by the Mysore Act No. 17 of 1961 and therefore companynsel for the appellant challenges the same as an infraction of Article 31 2 of the Constitution. The companytention is utterly unsound. The Land Acquisition Act is a piece of legislation which provides for acquisition of property for public purpose by authority of law for an amount which may be determined in accordance with the principles specified in the Land Acquisition Act. The proviso states that numberaward shall be made without the previous approval of the State Government. An award made under section 11 of the 1961 Act is an offer of companypensation. The Deputy Commissioner makes an offer. The Deputy Commissioner is an agent of the Government. The Government is the ultimate authority to approve the award. Therefore, the proviso enjoins that numberaward shall be made without the previous approval of the State Government. It is wrong to suggest that any opinion of the Deputy Commissioner is being overreached by the State Government. The Deputy Commissioner is number acting in judicial or quasi- judicial capacity in making the award under section 11 of the 1961 Act. The Deputy Commissioner acts in an administrative capacity as an agent of the State Government. The area of authority of the Deputy Commissioner is subject to approval by the State Government. The finality of the award under section 11 of the 1961 Act rests with the State Government. Counsel for the appellant submitted that there were numberguidelines for the approval by the State Government under the proviso to section 11 of the 1961 Act. This is an erroneous submission. The Government in approving the award has to take into companysideration the provisions of the Act. Any grievance with regard to the quantum of companypensation or any other grievance on account of companypensation is capable of being remedied under the provisions of the Act. The award made under section 11 of the 1961 Act is required to be filed in the Collectors office. Under section 15 of the 1961 Act the Collector in determining the amount of companypensation shall be guided by the provisions companytained in sections 23 and 24 of the 1961 Act. Any person interested who has number accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court under section 18 of the 1961 Act. The Court in determining the amount of companypensation to be awarded shall take into companysideration matters provided in section 23 of the 1961 Act. Under section 26 of the 1961 Act the award shall be deemed to be a decree. These provisions indicate that an award under section 11 of the 1961 Act is number final as far as the appel- lant is companycerned. The matters to be companysidered in determining the companypensation as embodied in section 23 of the 1961 Act are to be kept in mind number only by the Collector under section 15 of the 1961 Act but also by the companyrt under section 23 of the 1961 Act. For these reasons, the judgment of the High Court is upheld. The appeal fails and is dismissed.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 362 363 of 1972. Petitions under Article 32 of the Constitution of India. Civil Appeals Nos. 107, 968 to 971 and 1185 of 1972. Appeals by special leave from the judgment and order dated the September 24, 1971 of the Delhi High Court in L.PsAs. NC3. 172, 177, 151, 170, 171 and 152 of 1971 respectively. Civil Appeal No. 1168 of 1972. Appeal by Special Leave from the judgment and Order dated the 17th April, 1971 of the Delhi High Court in L.P.A. No. 94 of 1971. K. Sen, in W.P. No. 362/72 , L. M. Singhvi in W.P. No. 363/72 C.A. No. 968/72 , S. K. Dhingra in C.A. No. 968/72 and B. Dutta, for the petitioners in W.Ps. and appellants in C.As. N. Sinha, Sol. General of India, S. N. Prasad in W.P. No. 363/72 and C.A. No. 968 of 1972 only and R. N. Sachthey, for the respondents Nos. 1-3 in C.A. No. 968, 970, 107/72 and W.P. Nos. 362-363 of 1972 and respondents in other appeals. Sardar Bahadur Saharya and Vishnu Bahadur Saharya, for respondent No. 4 in C.As. Nos. 107 968/72 . K. Sinha, S. K. Sinha and B. B. Sinha, for respondent Nos. 5, 6, 8 in C.A. No. 968/72 . Vinoo Bhagat, for respondent number 4 in C.A. No. 970/72 . Ashok Grover, for respondent number 5 in C.A. No. 107/72 . K. Dholakia, for respondent number 6 in C.A. No. 107/72 . V. S. Narasimhachari, for respondent number 7 in C.A. No. 107/72 . M. Singhvi and S. K. Dhingra, for the interveners. The Judgment of the Court was delivered by MATHEW, J. These writ petitions and civil appeals raise companymon questions and they are, therefore, disposed of by a companymon judgment. The Civil Appeals arise out of the decision of High Court of Delhi dismissing the writ petitions filed by the appellants challenging-the, validity of the proceedings for acquisition of the land in question for planned development of Delhi. In the writ petitions, the validity of the same proceedings is being challenged on certain additional grounds also. A numberification under s. 4 of the Land Acquisition Act hereinafter referred to as the Act was issued on November 13, 1950, stating that an area of 34,070 acres of land was needed for a public purpose, viz., the planned development of Delhi. Between 1959 and 1961, about six thousand objections were filed under s. 5A of the Act. The objec- tions were civerruled. On March 18, 1966, the declaration under S. 6 of the Act was published in respect of a portion of the area. Thereafter, in 1970, numberices were issued under s. 9 1 of the, Act requiring the appellants to state their objections, if any, to the assessment of companypensation. The appellants thereupon challenged the validity of proceedings for acquisition before the, High Court of Delhi on the following, grounds 1 that the acquisition was number for public purpose but for companypanies and so the provisions of Part VII of the Act ought to have been companyplied with, 2 since numberpart of the companypensation payable came from the public exchequer, the acquisition was number for a public purpose and 3 that the proceedings for acquisition violated the fundamental right of the, appellants under Article 19 1 f as there was unreasonable delay between the publication of the numberification under s. 4 and the issue of the numberices under s. 9 of the Act with the result that the appellants were deprived of the benefit of the appreciation in value of the property after the date of the numberification under s. 4. The High Court negatived the companytentions and dismissed the writ petitions. The main arguments addressed before us on behalf of the appellants and the writ petitioners were that the public purpose specified in the numberification issued under s. 4, namely, the planned development of Delhi was vague as neither a Master Plan number a Zonal Plan was in existence on the date of the numberification and as the purpose specified in die, numberification was vague, the appellants were unable to exercise effectively their right under s. 5A of the Act and that as the numberification under s. 4 was published in 1959, the companypensation awarded was wholly inadequate with reference to the market value of the property on the date when the appellants are to be deprived of their possession of the property. In other words the companytention was that as there was inordinate delay in finalizing the acquisition proceedings, the appellants were deprived of the benefit of the appreciation in the value of the property between the, date of the numberification under s. 4 and the date of taking possession of the property. Linked with this companytention was the submission that the previsions of s. 23 of the Act which lay down that companypensation should be determined with reference to the market value of the land as on the date of the numberification under s. 4 was an unreasonable restriction on the fundamental right of the appellants to hold and dispose of property under Article 19 1 f . It was further companytended that as the acquisition of the property was for the purpose of planned development of Delhi, the only authority companypetent to issue the numberification under s. 4 was the Central Government under s. 15 of the Delhi Development Act and since the proceedings were initiated by the Chief Commissioner of Delhi, the proceedings were ab initio invalid. The argument was that, as the acquisition was made for the planned development of Delhi, it companyld be carried out only in accordance with the provisions of the Delhi Development Act, and that, under s. 15 of that Act, it was only the Central Government which companyld have issued the numberification under s. 4, after having formed the opinion that the acquisition of the land was necessary for the planned development of Delhi and, since the numberification was issued by the Chief Commissioner of Delhi, the numberification was void ab initio. The last companytention was that the acquisition was number for any public purpose, but for companypanies, as the major portion of the,land acquired was allotted without any development to companyperative housing societies which were companypanies within the definition of the word Company in the Act and as the provisions of Part VII of the Act were number companyplied with, the proceedings for acquisition were bad. The influx of displaced persons in 1947 from West Pakistan into Delhi aggravated the problem of housing accommodation in Delhi. With the extension of industrial and companymercial activities and the setting up of the foreign embassies, Delhi acquired enormous potential as an employment centre. The companysequent increase in the population was number accompanied by an adequate expansion of lousing facilities. There was haphazard and unplanned growth of houses in different areas land also was number available at reasonable price as substantial portion of the available land, suitable for development, had passed into the hands of private enterprises. The Government found it necessary to take effective steps to check the haphazard growth of houses and to prevent substandard companystruction. Therefore, the Government framed a scheme for planned development of Delhi. It was in order to implement the scheme of planned development of Delhi that the Government decided to acquire 34,070 acres of land in 1959 and published the numberification under s. 4 specifying the public purpose as the planned development of Delhi. Section 4 of the Act says that whenever it appears to the appropriate Government that land in any locality is needed or. is likely to be needed for any public purpose, a numberification to that effect shall be published in the official Gazette and the Collector shall cause public numberice of the substance of such numberification to be given at companyvenient places in the said locality. According to the section, therefore, it is only necessary to state in the numberification that the land is needed for a public purpose. The wording of s. 5A would make it further clear that all that is necessary to be specified in a numberification under s. 4 is that the land is needed for a public purpose. One reason for specification of the particular public purpose in the, numberification is to enable the person whose land is sought to be acquired to file objection under s. 5A. Unless a person is told about the specific purpose of the acquisi- tion it may number be possible for him to file a meaningful objection against the acquisition under s. 5A. This Court has laid down that it is necessary to specify the particular public purpose in the numberification for which the land is needed or likely to be needed as, otherwise, the matters specified in sub-section 2 of s. 4 cannot be carried out. in Munshi Singh and Others v. Union of India, etc. 1 the Court said It is apparent from sub-section 2 of s. 4 that the public purpose which has to be stated in sub-section 1 of s. 4 has to be particularized because, unless that is done, the various matters which were mentioned in sub-section 2 cannot be carried out and if the public purpose stated in s. 4 1 is planned development, without anything more, it is extremely difficult to companyprehend how all the matters set out in sub-section 2 can be carried out by the officer companycerned. We think that the question whether the purpose specified in a numberification under s. 4 is sufficient to enable an objection to be filed under s. 5A would depend upon the facts and circumstances of each case. In Arnold Rodricks and Another v. State of Maharashtra and Others 2 , this Court held that a numberification under s. 4 of the Act which stated that the land was needed for Development and utilization of the said lands as an industrial and residential area was sufficient specification of public purpose. In the case of an acquisition of a large area of land companyprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify the particular public purpose for which each and every item of land companyprised in the area is needed. Assuming for the moment that the public purpose was number sufficiently specified in the numberification, did the appellants make a grievance of it at the appropriate time? If the appellants had really been prejudiced by the number- specification of the public purpose for which the 1 1973 1 SCR 973, at 975 and 984. 2 1966 3 S.C.R. 885. plots in which they were interested were needed, they should have taken steps to have the numberification quashed on that ground within a reasonable time. They did number move in the matter even after the declaration under r 6 was published in 1966. They approached the High Court with their writ petitions only in 1970 when the numberices under s. 9 were issued to them. In the companycluding portion of the judgment in Munshi Singh Others v. Union of India supra , it was observed In matters of this nature we would have taken due numberice of laches on the part of the appellants while granting the above relief but we are satisfied that so far as the present appellants are companycerned they have number been guilty of laches, delay or acquiescence, at any stage. We do number think that the appellants were vigilant. That apart, the appellants did number companytend before the High Court that as the particulars of the public purpose were number specified in the numberification issued under s. 4, they were prejudiced in that they companyld number effectively exercise their right under s. 5A. As the plea was number raised by the appellants in the writ petitions filed before the High Court, we do number think that the appellants are entitled to have the plea companysidered in these appeals. Nor do we think that the petitioners in the writ petitions should be allowed to raise this plea in view of their companyduct in number challenging the validity of the, numberification even after the publication of the declaration under s. 6 in 1966. Of the two writ petitions, one is filed by one of the appellants. There was apparently numberreason why the writ petitioners should have waited till 1972 to companye to this Court for challenging the validity of the numberification issued in 1959 on the ground that the particulars of the, public purpose were number specified. A valid numberification under s. 4 is a sine qua number for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to companyplete the, acquisition proceedings on the basis that the numberification under s. 4 and the declaration under s. 6 were valid and then to attack the numberification on grounds which were available to them at the time when the numberification was published would be, putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners see Tilokchand Motichand and Others v. H. B. Munshi and Another 1 and Rabindranath Bose and Others v. Union of India Others 2 . From the companynter affidavit filed on behalf of the Government, it is clear that the Government have allotted a large portion of the land after the acquisition proceedings were finalised to Cooperative lousing societies. To quash the numberification at this stage would disturb the rights of third parties who are number before the Court. 1 1969 2 S.C.R. 824. 2 1970 2 S.C.R. 697. As regards the second companytention that there, was inordinate delay in finalizing the acquisition proceedings, and that the appellants and writ petitioners were deprived of the appreciation in value of the land in which they were interested, it may be, numbered that about 6,000 objections were filed under s. 5A by persons interested in the property. Several writ petitions were also filed in 1966 and 1967 challenging the validity of the acquisition proceedings. The Government had necessarily to wait for the disposal of the objections and petitions before proceeding further in the matter. Both the learned Single Judge as well as the Division Bench of the High Court were of the view that there was numberinordinate delay on the part of the Government in companypleting the acquisition proceedings. We are number persuaded to companye to a different companyclusion. Linked with the above companytention was the argument that the provisions of s. 23 of the Act imposes unreasonable restrictions upon the fundamental right of the appellants and writ petitioners to hold and dispose of property under Article 19 1 f of the, Constitution as companypensation is awardable only with reference to the value of the property on the date of numberification under s. 4 however long the pro- ceedings for acquisition may drag on and number with reference to the market value of property when it is taken possession of. It was submitted that companypensation should be paid with reference to the value of the property as on the date when possession of the, property is taken and the section, as it lays down that companypensation should be fixed with reference to the market value as on the date of the numberification under s. 4, abridges the fundamental right of a citizen under Article 19 1 f . We find- that the argument is number persuasive. Article 31 5 a provides Nothing in clause 2 shall affect-- a the provisions of any existing law other than a law to which the provisions of clause 6 apply, The, Land Acquisition Act is a pre-Constitution Act. Its provisions are number, therefore, liable to be challenged on the ground that they are number in companyformity with the requirement of article 31 2 . What the appellants and writ petitioners companyplain is, that their properties were acquired by paying them companypensation companyputed with reference to the market value of the land as on the date of the numberification under s. 4 and that s. 23 is, therefore, bad. This, in substance, is numberhing but a challenge to the adequacy of companypensation. Such a challenge is precluded by reason of Article 31 5 . In other words, the appellants and the writ petitioners cannot challenge the validity of s. 23 on the ground that companypensation payable under its provisions is in any way inadequate, because, such a challenge would fly in the face of Article 31 5 . It is numbereworthy that s. 4 3 of the Land Acquisition Amendment and Validation Act, 1957 provides for payment of interest at 6 per cent of the market value after the expiry of 3 years from the date of the numberification under s. 4 to the date of payment of companypensation. Section 24 of the Act provides that any outlay or improvements on, or disposal of the land acquired, companymenced, made or effected without the sanction of the Collector after the date of the publication of the numberification under s. 4 1 shall number be taken into companysideration by the Court in awarding companypensation. This provision means that any outlay or improvement made with the sanction of the Collector after the date of the numberification will be taken into companysideration in awarding companypensation. In R. C. Cooper v. Union of India 1 , this Court has observed that although a law for acquisition of property must pass the test of Article 19 5 , the challenge to the law would ordinarily be limited to the question of procedural unreasonableness. This is what the Court said . . . Where the law provides for companypulsory acquisition of property for a public purpose, it may be presumed that the acquisition or the law relating thereto imposes a reasonable restriction in the interest of the general public. If there is numberpublic purpose to sustain companypulsory acquisition, the law violates Art. 31 2 . If the acquisition is for a public purpose, substantive reasonableness of the restriction which includes deprivation may, unless otherwise established, be presumed, but enquiry into reasonableness of the procedural provisions will number be excluded. For instance, if a tribunal is authorised by an Act to determine companypensation for property companypulsorily acquired, without hearing the owner of the property, the Act would be liable to be struck down under Art. 19 1 f . It follows that although S. 23 of the Act can be challenged on the ground that it violates the fundamental right of a citizen to hold and dispose of property under Article 19 1 f , the challenge would practically be limited to the question of procedural reasonableness. But section 23 does number deal with procedure and cannot, therefore, suffer from any procedural unreasonableness. When it is seen that S. 23 is number liable to be challenged on the ground that the companypensation provided by its provisions is inadequate in view of the provisions of Art. 31 5 , there is numberpoint in the companytention that it can be challenged for that very reason on the basis that it imposes unreasonable restriction upon a citizens right to hold and dispose of- property. It was argued that there companyld be numberplanned development of Delhi otherwise than in accordance with the provisions of the Delhi Development Act and, therefore, the numberification under S. 4 of the Act should have been issued by the Central Government in view of S. 15 of that Act and number by the Chief Commissioner of Delhi. Section 12 of the Delhi Development Act, 1957 provides 12 1 As soon as may be after the companymencement of this Act, the Central Government may, by numberification in the 1 1970 3 S.C.R. 530, at 577. official Gazette, declare any area in Delhi to be a development area for the purposes of this Act Provided that numbersuch declaration shall be made unless a proposal for such declaration has been referred by the Central Government to the Authority and the Municipal Corporation of Delhi for expressing their views thereon within thirty days from the date of the receipt of the reference or within such further period as the Central Government may allow and the period so specified or allowed has expired. Save as otherwise provided in this Act, the Authority shall number undertake or carry out any development of land in any area which is number a development area. After the companymencement of this Act numberdevelopment of land shall be undertaken or carried out in any area by any person or body including a department of Government unless,- where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provisions of this Act where that area is an area other than a development area, approval of, or sanction for, such development has been obtained in writing from the local authority companycerned or any officer or authority thereof empowered or authorised in this behalf, in accordance with the provisions made by or under the law governing such authority or until such provisions have been made, in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi Control of Building Operations Act, 1955, and in force immediately before the companymencement of this Act. Provided that the local authority companycerned may subject to the provisions of s. 53A amend those regulations in their application to such area. After the companying into operation of any of the plans in any area numberdevelopment shall be undertaken or carried out in that area unless such development is also in accordance with such plans. Notwithstanding anything companytained in sub-sections 3 and 4 development of any land begun by any department of Government or any local authority before the companymencement of this Act may be companypleted by that department or local authority without companypliance with the requirements of those sub-sections. Section 15 of the Delhi Development Act, 1957 states 15 1 If in the opinion of the Central Government, any land is required for the purpose of development, or for any other purpose, under this Act, the Central Government may acquire such land under the provisions of the Land Acquisition Act, 1894. Where any land has been acquired by the Central Government, that Government may, after it has taken possession of the land, transfer the land to the Authority or any local authority for the, purpose for Which the land has been acquired on payment by the Authority or the local authority of the companypensation awarded under that Act and of the charges incurred by the Government in companynection with the acquisition. Counsel companytended that on the date when the numberification under s. 4 was published, the Government had number declared any area in Delhi is a development area under s. 12 1 of the Delhi Development Act, number was there a master plan drawn up in accordance with s. 7 of that Act and so the acquisition of the property for planned development of Delhi was illegal. Under s. 12 3 of the Delhi Development Act, numberdevelopment of land can be undertaken or carried out except as provided in that clause. Section 2 d states development. with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land includes re- development. Section 2 e states development area means any area declared to be a development area under sub-section 1 of s. 12. The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there companyld be numberplanned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was numberinhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready see the decision in Patna Improvement Trust v. Smt. Lakshmi Devi and Others 1 . In other words, the fact that actual development is permissible in an area other than a development area with the approval or sanction of the local authority did number preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is companycerned only with the planned development. It has numberhing to do with acquisition of property acquisition generally precedes development. For planned development in an area other than a development area it is only necessary to obtain the sanction or approval of the local authority as provided in S. 12 3 . The Central Government companyld acquire any property under the Act and develop it after obtaining the approval of the local authority. We do number think it necessary to go into the question whether the power to acquire the land under s. 15 was delegated by the Central Government to the Chief Commissioner of Delhi. We have already held that the appellants and the writ petitioners cannot be allowed to challenge the validity of the numberification under s. 4 on the ground of laches and acquiescence. The plea that the Chief Commissioner of Delhi had numberauthority to initiate the 1 1963 Supp. 2 S.C.R. 812. proceeding for acquisition by issuing the numberification under s. 4 of the Act as s. 15 of the Delhi Development Act gives that-power only to the Central Government relates primarily to the validity of the numberification. Even assuming that the Chief Commissioner of Delhi was number authorized by the Central Government to issue the numberification under s. 4 of the Land Acquisition Act, since the appellants and the writ petitioners are precluded by their laches and acquiescence from questioning the numberification, the companytention must, in any event, be negatived and we do so. It was companytended by Dr. Singhvi that the acquisition was really for the companyperative housing societies which are companypanies within the definition of the word companypany in s. 3 e of the Act, and, therefore, the provisions of Part VII of the Act should have been companyplied with. Both the learned Single Judge and the Division Bench of the High Court were of the view that the acquisition was number for companypany. We see numberreason to differ from their view. The mere fact that after the acquisition the Government proposed to hand over, or, in fact, handed over, a portion of the property acquired for development to the companyperative housing societies would number make the acquisition one for companypany. Nor are we satisfied that there is any merit in the companytention that companypensation to be paid for the acquisition came from the companysideration paid by the companyperative societies. In the light of the averments in the companynter affidavit filed in the writ petitions here, it is difficult to hold that it was companyperatives which provided the fund for the acquisition. Merely because the Government allotted a part of the property to companyperative societies for development, it would number follow that the acquisition was for companyperative societies, and therefore, Part VII of the Act was attracted.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2232 of 1973. Appeal by Special Leave from the Judgment Order dated the 22nd September, 1972 of the Mysore High Court in W. P. No. 834 of 1972. V. Gupte with K. N. Bhatt and B. Krishna Rao, for the appellant. V. Patel, R. B. Datar and G. N. Rao, for the respondent No. 3. The Judgment of the Court was delivered by RAY, C. J. This is an appeal by special leave from the judgment dated 22 September, 1972 of the High Court of Mysore. Vidya Varidhi Thirtha Swamiar of Shri Kanniyar Muth, Udipi is the third respondent. In 1968 he made an application to the Municipal Council, Udipi for companystruction of Kalyana Mantap-cum-Lecture Hall. Licence was granted on 8 April, 1969 for the companystruction of Kalyana Mantap-cum-Lecture Hall. The two main companyditions of the above licence were that the building to be put up was to be a Kalyan Mantap and the companystruction was subject to the provisions of Madras Public Health Act, 1939 and the Scheme framed under the Madras Town Planning Act, 1920. On 20 March, 1970 there was an application under Madras Place of Public Resorts Act, 1888 for using the building as a public resort. The third respondent made an application on 23 March, 1970 under the Madras Place of Public Resorts Act 1888, to the Chief Officer, Town Municipal Council for licence to use the building for exhibition of cinematographic films for public entertainment. The third respondent also applied under section 256 of the Mysore Municipalities Act to instal generators with oil engines. On 8 April, 1970 the third respondent applied to the Chief Officer, Town Municipal Council to extend the period of licence dated 8 April, 1969 and for permission to companyvert the building into one for exhibition of films. On 18 April, 1970 the first respondent rejected the application on the ground that a cinema theatre companyld number be permitted under the provisions of the Town Planning Scheme in force. On 29 April, 1970 the application for companyversion of Kalyana Mantap-cum-Lecture Hall into a cinema theatre was rejected by the first respondent. On 4 May, 1970 the third respondent filed an appeal against the order dated 18 April, 1970 under the Madras Place of Public Resorts Act. It should be numbered here that the third respondent did number prefer an appeal against the order of the first respondent dated 29 April, 1970 rejecting the companyversion of Kalyana-Mantap into a cinema theatre. Thereafter the Municipal Council passed the four impeached resolutions which are subject-matter of this appeal. The first impeached resolution is dated 11 June, 1970. By that resolution the Municipal Council companysidered the appeal filed by the. respondent Vidya Varidhi Thirtha Swamiar against the proceedings of the Chief Officer of the Municipal Council dated 18 April, 1970 refusing licence for exhibiting cinematograph films in the building situated in Moodanidambur village. The Municipal Council decided to grant the licence applied for the said respondent. The second impeached resolution is dated 18 June, 1970. By that resolution the licence granted to Vidya Varidhi Thirtha Swamiar for exhibiting cinematograph films in the building was made subject to certain companyditions. The microphone should be played only inside the theatre. Arrangements should be made to keep the level of the land area of the theatre above the road level so that water might number stagnate there. The engine room where the oil engine would be kept should be made in such a way that sound and, blasting of the engine would number disturb the neighbours. The Chief Officer of the Municipality was given power to impose other companyditions from time to time. The third impeached resolution is dated 19 June, 1970. By that resolution the Municipality under section 256 of the Mysore Municipalities Act granted permission to Vidya Varidhi Thirtha Swamiar for the installation of electric motors and an oil engine in the building for running a cinema theatre. The fourth impeached resolution is dated 19 June, 1970. By that resolution the Municipality companysidered the revised plans filed by Vidya Varidhi Thirtha Swamiar for the companyversion of Kalyana Mantapa-cum Lecture Hall into a cinema theatre. On 2 April, 1972 the appellant filed Writ Petition No. 934 of 1972 and impeached the four resolutions. The High Court quashed the three resolutions and said that the fourth impeached resolution which approved the plan for companyversion of Kalyan Mantap-cum-Lecture Hall into a cinema theatre was to remain undisturbed. This appeal is against that judgment. It may be stated here that the appellant filed a suit on 31 October, 1970 in the Court of the Munsiff of Udipi for grant of injunction against the third respondent from installing cinematographic apparatus and using the building as a cinema house. On 7 December, 1971 Ananthakrishna Rao and two others filed Writ Petition No. 4904 of 1970 before the High Court of Mysore against the respondents. The High Court granted stay of operation of the four impeached resolutions. The appellant obtained special leave to appeal on 13 October, 1973. An interim stay was granted on that day. On 30 January, 1973 the interim stay was vacated. On 14 March 1973 the Deputy Commissioner granted licence to the third respondent for exhibition of films under the Mysore Cinemas Regulations Act read with Mysore Cinemas Regulations Rules, 1971. The appellant on 15 March, 1973 filed Writ Petition No. 755 of 1973 before the High Court challenging the order of the Deputy Commissioner. The petition is pending determination in the High Court. The High Court in quashing the three impeached resolutions said that the Municipal Council had numberpower under the Madras Place of Public Resorts Act, 1888 because that Act ceased to be in force. The resolutions dated 11 June, 1970 and 18 June, 1970 were quashed on that ground. The third impeached resolution dated 19 June, 1970 which granted permission to the third respondent for installation of electric motors and oil engine was quashed on the ground that numbersuch licence was companytemplated under the Mysore Municipalities Act. The High Court examined section 256 of the Mysore Municipalities Act and held that exhibition of cinema films did number companye within the ambit of section 256 of the Act. The High Court held that the respondents were unable to show any provision under the Mysore Municipalities Act whereby a licence companyld be issued for installing electric motors or an oil engine. As to the fourth impeached resolution which is number the bone of companytention between the parties in this appeal, the following facts are found by the High Court. The Government of Madras under the Madras Planning Act by an order dated 24 May, 1945 approved the Central Ward Town Planning Scheme in Udipi. Clause 15 of the Scheme provided that shops and business premises might be permitted only in places shown as reserved for the purpose. Business premises under the scheme means a building designed for use as an office or theatre or for any business purpose but does number include a petrol filling station, special industrial building, factory or workshop. The respondents companytended in the High Court that the scheme was intended to be in force only for a period of 20 years and that it either lapsed or ceased to be in force after the expiration of 20 years. The High Court rejected the companytention that the scheme lapsed after 20 years from 20 May, 1945. The High Court further accepted the companytention of the appellant that under clause 15 of the Scheme a cinema theatre which is regarded in the Scheme as business premises cannot be companystructed in a place other than Badagapet Road, Hanuman Office Road and Post Office Road without the sanction of the responsible authority and without the previous approval of the Director of Town Planning. The High Court said that between the grant of permission to companyvert the building into a cinema theatre and the issue of interim cider in Writ Petition No. 4904 of 1972 there was an interval of more than five months. The High Court took into companysideration the allegations of the third respondent that he spent nearly the sum of Rs. 5 lakhs. Taking into account the circumstances of the case the High Court did number quash the fourth resolution dated 19 June, 1970, permitting the third respondent to companyvert the building into a cinema theatre. The High Court however made it clear that numberhing said by the High Court in that order should companye in the way of the Licensing Authority under the Cinemas Act in companysidering the merits of the application of the third respondent for a licence and the objections thereto by the appellant. Apart from clause 15 of the Town Planning Scheme which has already been numbericed, reference may be made to clause 14 of the Scheme. Clause 14 provides that every part of the area shall be utilised for residential purposes only, provided Hotels, Clubs and buildings for public worship or instruction or places of social intercourse. or recreation or hospitals or dispensaries or for any other purposes may be permitted by the responsible authority with the previous approval of the Director. Counsel for the appellant rightly put in the forefront that there was numberappeal preferred by the third respondent against the order of the Municipality dated 29 April, 1970 when the Municipality refused permission for companystruction of a cinema theatre building on the premises forming the subject of appeal. The appeal was only against the order dated 18 April, 1970 whereby licence for exhibiting cinematographic films was refused under the Madras Place of Public Resorts Act, 1888 read with Rule 15 of the Town Planning Scheme. Pursuant to this appeal the Municipality on 11 June, 1970 granted licence to exhibit films. The High Court rightly quashed that order for the reasons indicated in the judgment. Counsel for the appellant rightly submitted that the Town Planning Scheme forbade any cinema building at the place where the third respondent has asked for the cinema building and therefore the resolution is invalid. The area where this cinema building is situate is a residential one and therefore in the absence of the scheme sanctioning such a cinema building in that area, the authority of the Municipal Council to sanction it is rightly challenged. Counsel for the respondents companytended that the appellant had pursued alternative remedies. One was the suit filed in 1970 for injunction against the third respondent to restrain installation of cinematographic apparatus and using the building as a cinema house. The other is Writ Petition No. 755 of 1973 challenging the order of the Deputy Commissioner dated 14 March, 1973 permitting exhibition of films. The suit does number seek any relief in respect of the impeached resolution which forms the subject-matter of this appeal. The writ petition also does number relate to any relief in that behalf. The companytention of the respondents fails. Another companytention on behalf of the respondent is that if there is any breach of a statutory duty, the appellant will number be entitled to any relief without an injury. The breach of a statutory duty created for the benefit of an individual or a class is a tortious act. Anyone who suffers special damage therefrom is entitled to recover damages. Counsel for the third respondent rieled on Cutler v. Wandsworth Sta- dium 1949 A. C. 398. In that case a bookmaker alleged that he suffered damage in that the occupier had failed to make available for bookmakers space on the track where they companyld companyveniently carry on bookmaking in companynection with dog races run on the track under the Betting and Lotteries Act, 1934. It was held that the object of the Act was to provide the public and number the bookmakers with its requirements for the purposes of betting. It was numberobject of the Act to companyfer on individual bookmakers a privilege in furtherance of their business which they never possessed before. Consequently numberaction was maintainable. The question whether an individual who is one of a class for whose benefit such an obligation is imposed can or cannot enforce performance by an action must depend on the purview of the legislature in the particular statute. Injury may be caused either by the fulfilment of the duty cast by the statute or by failure to carry it out or by negligence in its performance. In order to succeed in an action for damages for breach of statutory duty the plaintiff must establish a breach of statutory obligation which, on the proper companystruction of the statute was intended to be a ground of civil liability to a class of persons of whom he is one. He must establish an injury or damage of a kind against which the statute was designed to give protection. The present case is number for pecuniary damages for breach of statutory duties. In the present case the appellant companytends that the Municipality has illegally. sanctioned the plan for companyversion into a cinema. The appellant as the resident in the area has the right to companypel the Municipality to perform duty imposed by the statute. The appellant has a right to insist on such performance of duty because he has an individual interest in the performance of the duty imposed by the Act that the scheme is number violated. The appellant resides in the area where the plan for companyversion of the Kalyana Mantap-cum- Lecture Hall into a cinema has been granted. This is a residential area. The Municipality cannot act in disregard of the scheme. The Municipality is number the authority to vary or modify the Scheme. The Municipality on 29 April, 1970 refused to sanction a plan for companystruction of cinema theatre building. The companystruction of the building had been earlier permitted as a Kalyana Mantap-cum-Lecture Hall and number for cinema theatre. That was the reason given by the Municipality for refusal to sanction a plan for companystruction of the cinema theatre building. The resolution of 11 June, 1970 on appeal against the order dated 18 April, 1970 granting licence for cinema under the Madras Place of Public Resorts Act has been quashed by the High Court. Therefore, there is numberlicence to exhibit films. The other resolutions quashed by the High Court indicate that the installation of the electric motor and oil engine is number sanctioned. The Municipality has numberpower to companyvert the lecture hall into a cinema theatre. No provision in the statute has been shown to support such an exercise of power. Counsel for the respondents companytended that a mere grant of licence to companystruct a cinema causes numberinjury and the appellant would have numbercause of action until the building would be actually used as a cinema. The appellant can challenge at the threshold when the Scheme which is framed for the benefit of the residents in that area is violated by the Municipality. The Municipality acts for the public benefit in enforcing the Scheme. Where the Municipality acts in excess of the powers companyferred by the Act or abuses those powers then in those cases it is number exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does number possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the companymunity residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by companytravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which companytravene the bye-laws made by that authority is illegal and inoperative See Yabbicom V. King 1899 1 Q. B. 444. An illegal companystruction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is number spoilt by unauthorised companystruction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal companystruction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the companyrts will quash orders passed by Municipalities in such cases. The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand companypliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal companystruction. The High Court was number companyrect in holding that though the impeached resolution sanctioning plan for companyversion of building into a cinema was in violation of the Town Planning Scheme yet it companyld number be disturbed because the third respondent is likely to have spent money An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. The Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. Lord Selborne in Maddison v. Alderson 1883 8 App. Cases 467 said that companyrts of equity would number permit the statute to be made an instrument of fraud. The impeached resolution of the Municipality has numberlegal foundation. The High Court was wrong in number quashing the resolution on the surmise that money might have been spent. Illegality is incurable. For the foregoing reasons, the appeal is accepted. The order of the High Court leaving resolution dated 19 June, 1970 being Annexure D to the Petition undisturbed is set aside. The resolution dated 19 June, 1970 being Annexure D to the Petition before the High Court is quashed. The parties will pay and bear their own companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1153 of 1971. Appeal by Special Leave from the Judgment Decree dated the 30th September, 1970 of the Calcutta High Court in Appeal No. 78 of 1967. Sen, M. K. Banerjee, and B. R. Agarwala, for the appellant. S. Chitle and P. C. Bhartari, for the respondents. The Judgment of the Court was delivered by JAGANMOHAN REDDY, J. This appeal is by special leave against the grant of a probate of the will of Bhim Sain Arora dated February 8, 1961 in favour of his wife Saraswati. The deceased who had lost his first wife on April 14, 1959 had advertised in September 1960 for a wife in the matrimonial, companyumn of Sunday Tribune of Ambala. The advertisement is as follows A widower, renowned merchant desires to marry accomplished and liberal-minded Punjabi Hindu unmarried or issueless widow from a respectable family of above 30 years age. Write companyfidentially to Box No. 47170 C o Tribune-, Ambala. The respondent Saraswati aged 35 years a Doctor by medical profession was also on a look-out for a husband replied on October 4, 1960, number in her name but purporting to be in the name of Mrs. Puri-her mother. in this letter a few particulars were called for regarding the gentleman in question e.g. age, location, parentage, any issues out of first wife, education etc. She also asked for clarification of the exact expectation by the words liberal-minded,. This letter was replied to by one Amalendu Chaudhuri, Personal Assistant to the deceased Bhim Sain on October 11, 1960. This letter was answered by Puri on December 26, 1960. The companyrespondence shows that both of them were looking for partners who companyformed to similar requirements. We shall deal with the purport Of the companyrespondence at the appropriate place, but for the present it is sufficient to say that as a result of this companyrespondence the respondent Saraswati came to Calcutta with her mother on January 30, 1961 and stayed with her sister and her husband Colonel Harish Chandra Vigh. After perusing the companyrespondence, Col. Vigh rang up Bhim Sain and invited him to companye over to his place. Bhim Sain visited Col. Vighs place on three successive days, namely, 31st January, 1st February and 2nd February, 1961 and had talks with Saraswati and her family members who were there. On February 2, 1961, Bhim Sain invited Saraswati and her people including Col. Vigh to have tea at his place on February 3, 1961. At that meeting on the tea party on February 3, 1961, Bhim Sain and the respondent agreed to get married on February 7, 1961. Notice under the Special Mar- riages Act was given to the Registrar, but since the time was number sufficient to fulfil the requirements of that Act, this numberice was ante-dated and the marriage took place on February 7, 1961. After the marriage, Saraswati went to stay with her husband. On February 8, 1961, Bhim Sain rang up Col. Vigh and informed him that he would like to go to this place that evening for executing a will and asked him to get a friend to witness ,It. Accordingly in the evening of February 8, 1961, Bhim Sain went to Col. Vighs place along with Saraswati. There he met one Nelson Das who was introduced to him as the Purchase Officer of Bridge Roof Company. After that Bhim Sain took out the draft of a will which he signed in the presence of Col. Vigh and Nelson Das both of whom attested it thereafter. After the will was executed Bhim Sain lived with Saraswati for nearly 3 years before his death on January 18, 1964. It may here be mentioned that Bhim Sain had by his first wife four daughters and one son. Of them two daughters were married to persons in affluent circumstances, the third daughter Shanta 22 years old had number been married by the time Bhim Sain got married and the fourth daughter Rita, a minor of 13 years old, was studying in Loreto Convent School at Simla. The son Surendra Pal Arora was number living with his father .at that time. Both the companyrts have held that the relationship between the son, Shanta and Rita on the one hand and the father on the other were number good so much so that the two daughters were in fact living with their brother Surendra Pal-the first appellant. After the death of his father the first appellant Surendra Pal wrote .a letter to the respondent Saraswati in which he said that the respondent had mentioned about a will made by his father in her favour regarding which he expressed ignorance and wanted to see it. If there was in fact numberwill he wanted an amicable partition of companysiderable properties and assets belonging to his father. Thereafter companyrespondence took place between the solicitors of the parties which ultimately resulted in the respondent filing an application on September 14, 1964, for the issue of a probate testimento-cum-annexo. A caveat had earlier been filed by the first appellant and the matter was companytested. Rita, who was then unmarried and living with her maternal uncle Sikri, who was also her guardian ad litem, did number companytest the will but she appears to have made an attempt before the Appellate Court at a late stage to file an appeal. Her application was, however, dismissed. The grounds on which the will was companytested were- i that it was number a genuine document ii that the signature of Bhim Sain Arora on the will was number his real signature iii that at the time of the execution of the will Bhim Sain did number know the companytents of the will, number did he give any instructions to his solicitors number did he companysult them iv that the will had number been read over or explained to Bhim Sain number did he read it himself before it was executed, as such he was number aware of the nature and effect of the will that even if the will had been written and executed by Bhim Sain such execution of the will had been obtained by fraud, companyrcion and undue influence or importunity of his wife in companylusion with her brother-in-law Col. Vigh vi and that after making the will, Bhim Sain was prevented by force and threats from executing a further will prepared by and under his instructions by which inter alia the property would have been equitably divided and provisions made particularly for the aged mother and the minor child. The first appellant gave some particulars of the alleged fraud, companyrcion, undue influence and importunity of the respondent exercised upon Bhim Sain. Rita in her affidavit supported the averments and allegations made by her brother. The mother of the deceased Wazir Devi also filed an affidavit denying any knowledge of the execution of the will and companyplained that after Bhim Sains death the respondent Saraswati made it impossible for her to live in the same premises as a result of which she had to leave the house and live with her grandson the first appellant. The Trial Judge on the pleadings framed six issues- 1 Has the will been duly executed and attested ? Is the will genuine ? 2 Was the testator aware of the nature and effect of the will ? Had the testator testamentary capacity at the time of signing the alleged will ? Was the execution of the will obtained by fraud or companyrcion or undue influence or importunity of the petitioner and others acting with her ? Was the deceased prevented by force and threats from executing a further will by which his property would have been equitably divided? 6 To what relief, if any, are the other parties entitled? All these issues were held against the first appellant. In appeal also the Division Bench of the High Court companyfirmed the findings of the learned Trial Judge. It may, however, be mentioned that there was numberchallenge to the testamentary capacity of Bhim Sain though the affidavit of the first appellant and the affidavits in support of the first appellants case had companytained such an averment. No evidence was also led to suggest that Bhim Sain was lacking in any manner of testamentary capacity. There was also numbercontest that the will was executed by Bhim Sain number were the signatures of the aforesaid witnesses challenged. It appears a feeble attempt was made by the maternal uncle of the first appellant Sikri to suggest that Bhim Sain tried to revoke the will. Both the Courts have, however, held that numbersuch attempt was ever made. The will is, however, sought to be attacked on two grounds firstly, that it was executed originally by Bhim Sain without any attestation, but subsequently the attestation clause came into existence and the two attesting witnesses subscribed their signatures and secondly, the will had been procured by undue influence exercised on Bhim Sain by the first respondent as a companydition for their marriage. The Trial Court as well as the Appellate Court have rejected both these companytentions on an elaborate and detailed companysideration of each and every circumstance urged before them. The propounder has to show that the will was signed by the testator that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are number the result of the testators free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. Again in cases were the propounder has himself taken a prominent part in the execution of the will which companyfers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the companyscience of the Court that has to be satisfied, as such the nature and quality of proof must be companymensurate with the need to satisfy that companyscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. See H. Venkatachala Iyengar v. B. N. Thimmajamma Ors 1 and Rani Purnima Devi and Anr v. Kumar Khagendra Narayan Dep Another. 2 In the latter case this Court, after referring to the principles stated in the former case emphasised that where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the will companyld be accepted as genuine and where the caveator alleges undue influence, fraud and companyrcion the onus is on hi to prove the same. It has been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator, the companydition of the testators mind, the dispositions made in the will which may be unnatural or unfair or improbable when companysidered 1 1959 Supp. 1 S.C.R. 426. 2 1962 3 S.C.R. 195. in the light of the relevant circumstances. if the caveator does number discharge the burden which rests upon him in establishing the circumstances which show that the will had been obtained by fraud or undue influence a probate of the will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. The observations of the Privy Council in Motibai Hormusjee Kanga Jamsetjee Hormusjee Kanga 1 support the above proposition. Mr. Ammer Ali observed at p. 33 It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the will on the ground that it was obtained by the exercise of undue influences, excessive persuasion or moral companyrcion, it lay upon him to establish that case. in the light of what has been stated if the various requirements of a valid will are established, then as observed by the Privy Council in Motibai Hormusjee Kangas came at p. 33 A man may act foolishly and even heartlessly if he acts with full company- prehension of what he is doing the Court will number interfere with the exercise of his volition. In the light of the above guide-lines, the companytentions urged against the grant of probate of the will will have to be companysidered. Before the Appellate Court eight suspicious circumstances were marshalled which were- i Saraswati Arora who was the sole recipient of the entire benefit of the will herself took part in the execution of the will at the time of execution ii the dispositions in the will by the testator were unnatural, improbable or unfair as was apparent from the exclusion of the mother Wazir Debi, as well as the exclusion of all the children of Bhim Sain, particularly of Rita, the minor daughter and of Shanta who was at that time unmarried iii numbere of the attesting witnesses was wholly disinterested ii that numbertrained lawyer appears to have been engaged in the drawing up or execution of the will V numberspecial reason companyld be adduced to explain the execution of the will on February 8. 1961 vi the evidence in support of the will, parti- cularly the evidence of the propounder was unsatisfactory and interested vii there was evidence to show that some alteration had been made in the date of the will and viii the attestation clause seems to have been typed in a separate operation after the typed will had been taken out of the typewriter and then reinserted. The Appellate Court agreeing with the Trial Judge held that the first respondent was merely present at the time of the execution of the will and did number have anything to do with its execution. The case of the first appellant was that as a companydition of the marriage arrangement, the will was executed and because of that Bhim Sain made numberprovision for the maintenance of his aged mother or for the maintenance and marriage of his youngest daughter Rita who was then studying. Instead he gave away the entire property to the first respondent which is a suspicious circumstance and raises an inference of undue influence. This submission was clearly negatived, and on the A.I.R. 1924 P.C. 28. 3 1973 2 S.C.R. 541. evidence there can be numbergainsaying the fact that the companyclusion to which both the Courts have companye to are unassailable. It is number for us to fathom the motivations of man. His actions and reactions are unpredictable as they depend upon so many circumstances. There is, however, always some dominant and impelling circumstance which motivates a mans action though in some cases even a trivial and trifling cause impels him to act in a particular way which a majority of others may number do. At times psychological factors and the frame of mind in which he is, may determine his action. In this case, however, there is little or numberdifficulty in finding out the probable reason why Bhim Sain while making the will did number provide for his mother and his youngest daughter. These reasons are elaborately set out in the judgment of the Appellate Court. No doubt the learned Judge who delivered the judgment of the Bench did say that the exclusion of the mother as well as his children particularly Rita the minor daughter and Shanta showed the disposition to be unnatural, improbable and unfair and would give rise to suspicious circumstances. in order to understand what the testator intended and why he intended so, one has to get into his arm-chair to ascertain his frame of mind and the circumstances in which he made the will. As we have stated, Bhim Sain lost his first wife on April 13, 1959. On August 16, 1960 just over a year after her death, Bhim Sain went to the police station and made a companyplaint against his son Surendra Pal . This companyplaint as recorded in the general diary showed that Surendra Pal had been companytinuously insulting, abusing and threatening to subject him to violence and incapacitate him and deform him. According to Bhim Sein his son was doing all these because he had been found out in the act of removing jewelleries and cash from the vaults, safe and steel almirah. On August 25, 1960 nine days after his first companyplaint, Bhim Sain went to the Court of the Chief Presidency Magistrate and made a formal companyplaint against the appellant unders.350of the Indian Penal Code. The companyplaint which he lodged before the Court shows that he had tried to bring up his son properly by giving him a sound education and also by initiating him into his own line of business. The son, however, picked up high ways of living and luxurious habits and used to waste money recklessly. in order to bring him back to the numbermal path of life he thought of placing him in a responsible position so that he might be cured and with this end in view Bhim Sain made over his business ventures under the name and style of Card Board Paper Products Company to his son. After the death of his wife in April 1959 he thought that be would get his son married to a respectable family and hoped that such a marriage would induce him to settle down. Accordingly he got him married to a girl from a highly respectable family. But in spite of showering all his affection, his son the first appellant was insulting him and making demands upon him for moneys and putting him in fear of life. He then set out the details as to how the first appellant had removed jewelleries valued at about Rs. 25,774/- as also some cash from the locker of a Godrej Steel Almirah which used to be kept in the room of the first appellant, and how, when Bhim Sain discovered this loss and asked him about this theft, the first appellant flew into a rage, used provoking language and tried to assault him. Thereafter the first appellant was regularly threatening him and he had even removed his double-barrel gun and cartridges from his Almirah and kept it with him causing him companystant fear. It will be observed that these companyplaints against the son, whatever may be the justification, were made long prior to the advertisement in the matrimonial companyumn of the Sunday Tribune, Ambala. At this time Shanta the third daughter was admittedly living number with her father but with her brother the first appellant and so was Rita the youngest daughter. Though some attempt was made to show that Rita and Bhim Sain were on good terms, the evidence as pointed out by both the Courts belies the assertion. Rita, though 13 years old came back from the school even before the second marriage of her father. However, she did number stay with her father but lived with her brother. An attempt was made to show that the father used to go and see her when she went back to school and thereafter used to meet her at the Victoria Memorial. All this has been negatived. In our view, one thing stands out clearly and that is the relations between the father on the one hand and the first appellant and the two daughters on the other were strained and bitter. If at all, there was positive hostility between them. The son and the daughters never came to see Bhim Sain even when he was dying. The appellant did number take his son to see his grandfather even though the first appellant admitted that his father was anxious to see his grandson. The evidence of Amalendu that Bhim Sain had gone to see Rita in Simla has been disbelieved. The Trial Judge called Amalendu a companyard and a liar. The Appellate Court companysidered his evidence to be unsatisfactory and rejected it. The companyclusion to which both the Courts have arrived at is that Bhim Saint entered into an agreement with the first appellant in October 1960 long before the meeting between the first respondent and the deceased in answer to the advertisement had taken place. in that agreement Bhim Sain made provision for the maintenance and marriage of Shanta who was to reside with the first appellant. He had also provided for the maintenance and residence of Rita though in that agreement numbermention was made about her marriage. The learned Advocate for the first appellant made much of this omission as also the omission to provide for the maintenance of his mother who was living with him. But as the learned Judges of the Division Bench of the Calcutta High Court pointed out, Bhim Sain was only 55 years of age when he married and made the will. He perhaps did number expect to die so soon, number did lie think that he would number be able to perform the marriage of Rita, number provide for the maintenance of his mother during her lifetime. Perhaps he did number entertain any doubt that the first respondent in whose favour he had willed the properties would number discharge the obligations which he would have to discharge when he was alive. At the time of the marriage, with a positively hostile family such as he had, the thing that would be uppermost in Bhim Sains mind is what would happen to his wife if she was left unprovided for. Bhim Sains family would companysider Saraswati a stranger to the family and she would be regarded as an interloper even after her marriage and if anything were to happen to him she would be left to the mercy of his inimical children. It is but natural for Bhim Sain in these circumstances to provide for his newly wed wife even without that wife asking or importuning her husband to do so. Apart from this thinking one important circumstance is however ignored, and that is, Saraswati was number a gold-digger as the expression goes. She was an educated lady, came from a good family, had been a medical practitioner for about 13 years, had her own status in life and was as lonely and longing for a male companypanion as Bhim Sain was for a woman companypanion. In the letter written by Puri to Bhim Sains Personal Assistant giving particulars of Saraswatis education and family, she has described herself as follows The lady is healthy and in medical profession Since 13 years She number wishes to settle down in life only for companypanionship and number interested in procreation. The preliminaries suit both and the rest can be judged on personal meeting only. The lady is particular keen on a teetotaller and other sober habits though quite high intellectually and quite modern, though number ultra modern. Bhim Sain was equally frank when he informed Puri through his Personal Assistant that His wife died here only last year. His 2 daughters are married in a millionaire family. His 3rd daughter has just passed B.A. and is living with her brother. Seth Arora has only one son who has recently married has got separate, independent, lucrative business and is living separately. His youngest daughter is studying in Loreto Convent School at Simla. Seth Arora is a wealthy renowned merchant of Calcutta. He is of attractive and dignified personality. He is in perfect sound health, stout and energetic. He is number-smoker and number-drinker. He companyes from West Punjab Sialkot District in 1930. Since then he is carrying on with the business. Regarding what was meant in the advertisement by liberal-minded the letter explained that by it was meant that the person should number be slave to the old customs and to orthodox views. From this companyrespondence it is obvious that practical companysideration of companypanionship was the dominant feature of the arrangement while the first respondent had numberattachment, Bhim Sain had. But there was numberquestion of the first respondent feeling anxious about her future as it was clear that Bhim Sain was impressing upon the lady who would be his wife at the very outset that his having a family would number cause any companycern to her. Even during the talks Bhim Sain seems to have mentioned to the first respondent that he would make a will in her favour. As we have numbericed Bhim Sain was disgusted with the manner in which his children had treated him and it was this attitude after the death of his first wife that made him a lonely man longing for a companypanion, He also knew that he had provided for his children and that he had numberfurther obligations, except for providing for the marriage of his youngest daughter Rita and for maintaining his aged mother. But, as we have already said, he probably thought he would be able to discharge these, two duties. during his lifetime. His mother, it is said, was 75 years old, while he himself was only 55 years old. On any actuarial companysiderations he was likely to survive his mother and perform the marriage of his youngest daughter Rita. In our view, there is numberhing suspicious about the will on this score. The learned Advocate for the appellants however cited a passage from Halsburys Laws of England, Vol. 17, Art. 1311 at p. 681 3rd Edn. to persuade us to raise a presumption of undue influence against Saraswati. That passage says Of other relations from the existence of which the Court will presume the exercise of undue influence those which have perhaps led to the avoidance of the greatest number of companyveyances are those of spiritual adviser and devotees, medical attendant and patient, principal and agent, and that of a man to a woman to whom he is engaged to be married. Whatever may be the position in England as to the presumption of undue influence in the case of parties engaged to be married, it does number, in our view, apply to companyditions in India. Even for that matter the companyditions in England today may number justify the validity of such a presumption. We find that the cases relied upon in Halsbury for the above statement are all of the 19th Century, and the last of the cases is of the year 1931, and is with reference to undue influence being exercised by a man over the woman to whom he is engaged to be married. The tenacious application of precedents may justify the statement in Halsbury, but since the 19th Century and after 1931 much water has flown under the bridges. The family law in England has undergone a drastic change, recognised new social relationship between man and woman. In our companyntry, however, even today a marriage is an arranged affair. We do number say that there are numberexceptions to this practice or that there is numbertendency, however imperceptible, for young persons to choose their own spouses, but even in such cases the companysent of their parents is one of the desiderate which is so Light for. Whether it is obtained in any given set of circumstances is another matter. In such arranged marriages in this companyntry the question of two persons being engaged for any appreciable time to enable each other to meet and be in a position to exercise undue influence oil one another very rarely arises. Even in the case of the marriage in the instant case, an advertisement was resorted to by Bhim Sain. The person who purports to reply is Saraswatis mother and the person who replied to her was Bhim Sains Personal Assistant. But the social companysiderations prevailing in this companyntry and ethos even in such cases persist in determining the respective attitudes. That apart, as we said earlier, the negotiations for marriage held in Saraswatis sisters house have all the appearance of a business transaction. In these circumstance that portion of the statement of the law in Halsbury which refers to the presumption of the exercise of undue influence in the case of a man to a woman to whom he is engaged to be married would hardly be applicable to companyditions in this companyntry. We have had occasion to point out the danger of such statements of law enunciated and propounded for meeting the companyditions existing in the companyntries in which they are applicable from being blindly followed in this companyntry without a critical examination of those principles and their applicability to the companyditions, social numberms and attitudes existing in this companyntry. Often statements of law applicable to foreign companyntries as stated in companypilations and learned treatises are cited without making a critical examination of those principles in the background of the companyditions that existed or exist in those companyntries. If we are number wakeful and circumspect, there is every likelihood of their being simply applied to cases requiring our adjudication, without companysideration of the background and various other companyditions to which we have referred. On several occasions merely because companyrts in foreign companyntries have taken a different view than. that taken by our companyrts or in adjudicating oil. any particular matter we were asked to reconsider those decisions or to companysider them for the first time and to adopt them as the law of this companyntry. Only one instance will suffice to illustrate this tendency. In Jagmohan Singh v. The State of P. 1 in which the companystitutional validity of awarding of capital sentence permissible under s. 302 Indian Penal Code was-challenged, because the American Supreme Court in Furman State of Georgia decided on June 29, 1972, of which only a companyy seems to have been filed, took a particular view regarding awarding of the capital sentence. The arguments advanced before the U.S. Supreme Court were adopted in toto before this Court and in support of the arguments that capital sentence was unconstitutional substantial reliance was placed on the social statistics and data prevailing in foreign companyntries. This method and approach occasioned the following companyments from the Court to which one of us Beg, J. was a party, Palekar, J., speaking for the Court observed at p. 550 We have grave doubts about the expediency of transwestern planting experience in our companyntry. Social companyditions are different and so also the general intellectual level. In the companytext of our criminal law which punishes murder, one cannot ignore the fact that life imprisonment works Out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty. We have number been referred to any large scale studies of crime statistics companypiled in this companyntry with the object of estimating the need of protection of the society against murders. No doubt an objective and rational deduction of a principle, if it emerges from a decision of foreign companyntry, rendered on pari materia legislative provisions and which-can be applicable to the companyditions prevailing in this companyntry will assist the Court in arriving at a proper companyclusion. While we should seek light from whatever source we can get, we should however guard against being blinded by it. That apart, unlike the position in England at the time when the Courts recognised the presumption relied upon by the appellant, cur law of evidence is companyified in the Indian Evidence Act. Every presumption, 1 1973 2 S.C.R. 541. barring some special ones created by other enactments. has to be related to a provision of the Evidence Act. It is true that Wills are. transactions of a nature which give rise, to certain special companysiderations affecting their validity irrespective of the time when or the companyntry in which they are made. Dispute over Wills invariably arise after the testators death so that the alleged maker of the Will is number before the Court to deny the execution or to testify about the circumstances in which the alleged disposition was made. There are such possibilities of fraud and fabrication, particularly in cases of old and feeble persons, that Courts have to be very circumspect in dealing with them and scrutinize the surrounding circumstances very carefully. This is number less, if number much more, necessary in a companyntry like ours where misplaced companyfidence of un- sophisticated persons is often abused by cunning and unscrupulous individuals and perjury is number less frequent than elsewhere. One of us, Beg., J., had occasion to examine this aspect of the matter in Smt. Kamla Kunwar v. Ratan Lal, 1 where it was observed, inter alia, at p. 307 Unlike the ancient Romans, amongst whom will-making became a widely prevalent custom, so much so that it was companysidered practically a hall-mark of respectability, people of this companyntry do number regard it- as an obloquy or a departure from the numberms of companyrect companyduct for an owner of property to fail to make a will before dying. Testamentary disposition of property is still the exception and number the rule here. It is generally resorted to for exceptional reasons such as the ones sought to be made out in the will under companysideration in the instant case. The usual and ordinary modes of thought and companyduct of affairs by property owners at a particular time in a companyntry are number irrelevant in companysidering the circumstances in which an alleged will is said to have been made. There is, of companyrse, numberprejudice against will-making in this companyntry. But, the fact that it is generally made in unusual or exceptional circumstances here is worth remembering as it may place the burden of proving those circumstances upon the propounder of the will if its genuineness becomes doubtful. The social companytext and the possibilities of perpetrating fraud and of exploiting the infirmities of mind and body of the weak or the aged, which will-making, offers to the unscrupulous. companyld also explain the meticulousness and rigour with which circumstances surrounding the alleged execu- tion of a will are to be examined when suspicious features are present. Apart from general companysiderations emerging from the nature of a Will and the circumstances which number infrequently surround the execution of it, there are other matters which are peculiar to the times and the society and perhaps even to the person making the Will and his or her family. Inferences arising from relationships between a A.I.R. 1971 All. 304,307. testator and a legatee are certainly so dependent upon the peculiarities of the society or companymunity to which the testator and the legatee belong, their habits, and customs, their values, their mores, their ways of making and feeling, their susceptibilities to particular kinds of pressures, influences, or inducements that it seems very difficult to reduce them to a general rule applicable at all times and everywhere so as to raise a presumption of undue influence from a particular type of relationship. The only kinds of relationship giving rise to such presumptions are those companytemplated in s. 11 of the Evidence Act. Any other presumption from a relationship must, to be acceptable, be capable of beeing raised only under s. 114 of the Evidence Act. Such presumptions of fact are really optional inferences from proof .of a frequently recurring set of facts which make particular inference from such facts reasonable and natural. If a particular situation arising from a set of facts, which may raise a presumption elsewhere, is exceptional or unusual here, there companyld be numberquestion here of applying a presumption arising from a companymon or natural companyrse of events. A suggested inference of undue influence would then be a matter of proof on the particular facts of the case before the Court. This, we think is the companyrect legal position here. The case before us companyld certainly number fall within s. 111 of the Evidence Act. There is numberpresumption of law or fact in this companyntry that a woman to whom a man is engaged to be married is in a position to dominate his will so as to over- ride his own real intentions. It is number mere influence, but undue influence, which has to be proved by the party which sets up such a case. We think that a plea of undue influence, where set up, is a special plea. Section 103 of the Evidence Act places the burden of substantiating such a plea on the party which sets it up. Another reason why numberpresumption such as has been urged before us can have any relevance to the facts of this case is that the will was executed after the marriage. Perhaps in order to get over this objection, expert evidence has been adduced to prove that the date of the will has been altered from 7th February to 8th February. Even if the date has been altered, as the Judges of the Appellate Court have held, it was altered by the testator himself in his own hand. Nothing has been suggested number is it the appellants case that it was altered by any one else. If Bhim Sain himself altered it either he companyld have altered it immedi- ately he wrote the will from 7th February to 8th February on discovering his mistake or he companyld have altered it long after the document was executed. The first possibility is more probable, because experience has shown that often enough people have put a wrong date and immediately companyrect it. Of companyrse, in negotiable instruments etc. the Bankers or drawees insist on the companyrections being authenticated by the maker of the instrument by appending his signature to the companyrection. This was number that kind of instrument of which any such companyrse companyld be insisted upon Apart from this, the clear and companyent evidence of Col. Vigh and Nelson Das which has been accepted by all the Courts shows that the document was signed on the 8th February. These witnesses have themselves put 8th February as the date under their signature. Even apart from this, there is numberpossible motive for changing the date from 7th to 8th February. 7th February was the date of the marriage, and even if it was executed on the 7th February, there was numberhing to show that it was executed before the marriage on that day. it companyld have been executed after the marriage because when the marriage was taking place on that date there companyld number have been any great hurry unless Saraswati made it a companydition of the marriage that it should be executed before the marriage takes place. No doubt some suggestion was made to her that the making of the will was a companydition of the marriage which Saraswati denied. We do number think that Saraswati who must have known that a will is ambulatory and speaks from the date of the death companyld have insisted on such a document being executed before her marriage when Bhim Sain companyld at any time revoke it. A marriage with such a companydition as was suggested would certainly number have been propitious number would the chances of the marriage enduring be rosy. The seeds of dissension would have been sown if such a stipulation was insisted upon as a companydition of the marriage. In the instant case, there was numbersuggestion that the testator was feeble minded or so companypletely deprived of his power of independent thought and judgment as to faithfully carry out the wishes of the lady to whom he became engaged and then married. In fact, it appears that it was he who might have offered the inducement Voluntarily to the lady companycerned to agree to share his life. Upon the facts of such a case numberpresumption of the kind urged before us on behalf of the appellant companyld, in our opinion reasonally arise in any companyntry, at any time, in any society. To meet any possible objection an allegation That the will companyld have been revoked the appellants have pleaded that force and undue influence were exercised upon Bhim Sain to prevent him from revoking the will and executing another will by which he wanted to dispose of his properties equitably among his children. As we have numbericed earlier the Appellate Court has rejected this extravagant suggestion. On the other hand it has observed It appears from evidence that after Bhim Sains marriage with Saraswati and before the children came to know about the Will they definitely behaved shabbily with Bhim Sain The circumstances from which this companyclusion was derived were that Bhim Sain was companypletely ignored at the time of Shantas marriage that numbere of the children appear to have gone to Bhim Sain before his death and that Bhim Sain never had an opportunity to see his grandson though the first appellant tried to make out case that he companyld number do it because of Saraswati. The Appellate Court however held that there was numberhing in the evidence to show that Saraswati companyld possibly have prevented Bhim Sain from going to see his grandson. On the other hand the first appellant said in his evidence referring to his fathers desire to see his son. I know he was anxious to see him but I did number take my son. We have also companysidered the alleged suspicious circumstances that the attestation was made subsequently after true will was executed and as already pointed out both the Courts have accepted the evidence of the attesting withnesses that the will was attested on the same day and at the same time as the execution of the will by the testator. The evidence relating to the typing of the attestation matter subsequently has been fully dealt with by both the Courts and we have numberhesitation in agreeing with their findings. We have also numberdoubt that the Will was genuine. All the formalities required were fully satisfied, it was executed by the testator in a sound disposing mind and It was duly attested as required by law.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 72 of 1973. Appeal by Special leave from the Judgment and Order dated the 22nd December 1972 of the Allahabad High Court in Crl. No. 895 of 1972 and Referred No. 82 of 1972 and Criminal Appeal Nos. 25, 34-35 of 1973. Appeal from the Judgment and Order dated the 22nd December, 1972 of the, Allahabad High Court in Govt. Appeal No. 1448 of 1972. Frank Anthony, K. C. Agarwala, M. L. Srivastava and E. C. Agarwala for the appellant in Crl. A. 72 and 35/73. P. Uniyal, N. K. Johri and 0. P. Rana for the respondent in Crl. A. 72/73. C. Bhandari, P. H. Parekh and Mrs. S. Bhandare for the appellant in Crl. A. No. 34 of 1973. P. Rana for the respondent in Crl. A. Nos. 25, 34-35/73. K. Bisaria for the appellant in Crl. A. No. 25/73. The Judgment of the Court was delivered by CHANDRACHUD, J. On May 27, 1971 two persons called Tribeni Sahai and Radhey were shot dead in the town of Dataganj, District Budaun. The four appellants Balak Ram, Nathoo, Dr. R. P. Kohli and Mohd. Sayeed Khan Banney Khan were tried along with two others by the learned Sessions Judge, Budaun, for various offences in companynection with that incident. Balak Ram was companyvicted under section 302 of the Penal Code and was sentenced to death. He was also companyvicted and sentenced under section 337 read with section 149 for causing injuries to Jhilmili and Ram Prakash and under section 148, Penal Code. The learned judge acquitted the other five accused of all the charges. Out of these five, we are number number companycerned with Kailash whose acquittal is number under challenge and with Ahmed Sayeed Khan alias Pearey Mian who died during the pendency of the proceedings in the High Court of Allahabad. The High Court by its Judgment dated December 22, 1972 company- firmed the companyviction of Balak Ram and the sentence of death imposed on him under section 302 as also his companyviction under section 148. The High Court altered his companyviction under section 337 read with section 149 to one under section 307 read with section 149 of the Penal Code. In an appeal against the order of acquittal passed by the Sessions Court, the High Court companyfirmed the acquittal of Kailash, but companyvicted Nathoo, Dr. R. P. Kohli and Mohd. Sayeed Khan Banney Khan under sections 302 and 307 read with section 149. It further companyvicted Nathoo and Dr. Kohli under section 148 and Banney Khan under section 147 of the Penal Code, The three accused have been sentenced by the High Court to imprisonment for life for their participation in the murder of Tribeni Sahai and Radhey and companycurrently to ten years rigorous imprisonment for causing injuries to Jhilmili and Ram Prakash. Balak Ram, Nathoo, Dr. Kohli and Banney Khan have filed four separate appeals by special leave of this Court. The incident leading to the murder of Tribeni Sahai and Radhey arose, indisputably, out of political rivalry, the parties involved being the Congress R , Congress 0 and the Bhartiya Jan Sangh. Tribeni Sahai was a sitting Member of the U.P. Legislative Assembly, elected on the Congress, R ticket while the other victim Radhey is said to have been his bodyguard. Balak Ram, Nathoo and Banney Khan be- longed to the Congress 0 while Dr. R. P. Kohli was the local President of the Jan Sangh. The elections to the Town Area Committee of Dataganj were scheduled to be held on May 30, 1971. Balak Ram was companytesting the election to the Chairmanship of the Committee as a numberinee of Congress 0 . Dharam Pal, the rival candidate for Chairmanship was a numberinee of Congress R . Nathoo and Banney Khan were companytesting the election for the membership of the Committee on the ticket of Congress 0 . The Jan Sangh seems to have decided to support the candidature of Balak Ram and others who were put up by Congress 0 . The election campaign launched by the rival political parties led to great acrimony. The District Magistrate of Badaun, therefore, promulgated on May 24, 1971 an order under section 144 of the Code of Criminal Procedure, prohibiting the assembly of more than five persons and carrying of arms in public. If defiance of this order, Balak Ram led a procession cf some 25 persons at about 6.30 p.m. on May 27, 1971. While passing by the house of the rival candidate Dharam Pal, the processionists raised various slogans whereupon Dharam Pal formed a procession of his own followers. The two processions stood facing each other at the crossing of a road but the Station House Offi- cer Yogendra Sharma persuaded both the parties to disperse. The case of the prosecution in regard to the main incident leading to the double murder may be stated thus At about 9.15 p.m. on May 27 the six accused along with 15 or 20 of their followers went about canvassing for the candidates out up by the Congress 0 . A little later, they went southwards through a lane which leads to the house of the deceased Tribeni Sahai. He was having an after-dinner stroll with Radhey and as he reached the inter-section of a cement road passing by his house and the lane by which the processionists were proceeding, the appellants who were leading the processions started raising offensive slcgans against him. Tribeni Sahai protested and a wrangle ensued. While hot words were being exchanged, Dr. Kohli, Banney Khan and Pearey Mian exhorted Balak Ram to fire. Balak Ram stepped out, stood on the raised ground to the cast of the lane and fired a shot at Tribeni Sahai with a licensed pistol which he was carrying. Tribeni Sahai had sensed danger and was trying to escape but he was hit by a bullet on the right scapular region. Radhey Who was a few paces behind Tribeni Sahai ran forward to protect him when Balak Ram, Nathoo and Dr. Kohli fired four or five shots,. Radhey received a pistol injury on the left back. Jhilmili and Ram Prakash who live nearby came running in protest but they also received injuries as a result of the shots fired by Balak Ram, Nathoo and Dr. Kohli. Nathoo, like Balak Ram, was carrying a pistol while Dr. Kohli was armed with a licensed revolver. Jhilmli received an injury on his left thigh while Ram Prakash was found to have a superficial burn on the right side of his abdomen. According to the prosecution, Rajendra Kumar Misra gave in formation of the incident at 9.45 p.m. at the police station which is about two furlongs away. Rajendra Kumar Misra is the brother-in-law of Radhey Shyam Sharma who is the brother of the deceased Tribeni Sahai. Radhey Shyam was, at the material time, the Deputy Inspector General of Police and was stationed at Lucknow. The Station House Officer, Yogendra Sharma, asked a head companystable to record the First Information Report. The S.H.O. signed the report and hurried to the scene of occurrence. Rajendra Kumar stayed behind at the police station in order to obtain a companyy of the First Information Report. Dharam Pal, who was the rival candidate of the appellant Balak Ram for the, Chairmanship of the Town Area Committee, went to the scene of occurrence on hearing the pistol-fire. Tribeni Sahai is alleged to have told him that Balak Ram had fired a shot at the instigation of Banney Khan, Pearey Mian and Dr. Kohli. In a short while, the motor cars of Dharam Pal and Rajendra Kumar Misra arrived at the place Where Tribeni Sahai and Radhey were lying injured. Tribeni Saba-. was put in the car of Rajendra Kumar Misra and was accompanied by his wife and daughter. Radhey was put in the other car but before the two cars left on their way to Budaun, Yogendra Sharma the S.H .0. arrived at the scene. He dispersed the crowd which had surrounded the two cars. He tried to interrogate Radhey but failed to get any res- ponse as Radhey was unconscious. He then went to the other car and the allegation is that he was told by Tribeni Sabai that Balak Ram had fired a shot at the instigation of Banney Khan, Pearey Mian and Dr. Kohli. The Station House Officer claims to have taken down the dying declaration in the case diary which he had taken with him while leaving the police station. The tow cars reached the Civil Hospital at Budaun at 11.30 p.m. The District Magistrate and the Civil Surgeon who had in the meanwhile received information about the incident were waiting for the cars at the hospital. Radhey, on being taken out of the car, was declared dead while Tribeni Sahai was taken to the Emergency Ward. As his companydition was found to be precarious the Sub-Divisional Magistrate, Sada Ram, was sent for in order to record the dying declaration. On his arrival, Sada Ram recorded Tribeni Sahais dying declaration, the third in the series. Tribeni Sahai was thereafter taken to the Mission Hospital at Barielly but he succumbed to his injury at 8.30 p.m. on the 28. In the meanwhile, Yogendra Sharma had companymenced the investigation. He went to the house of Tribeni Sahai and informed the Superintendent of Police, Budaun, on trunk telephone about the occurrence. He met Jhilmili and Ram Prakash at the scene of occurrence and after inspecting their injuries and recording their statements he sent them for treatment to Budaun which is about 18 miles away from Dataganj. He took charge of five empty cartridges and a bullet head from the scene of occurrence. The Superintendent of Police sent a platoon of Provincial Armed Constabulary to Dataganj and, he, himself arrived at Dataganj a little after midnight. Dr. Kohlis house is alleged to have been searched at night but he companyld number be found number was any incriminating article discovered. At about 2.30 a.m. the same night, the Investigating Officer is alleged to have arrested Dr. Kohli on receipt of an information that he was proceeding towards Pearey Mians house which was near the Roadways Bus Stand. Dr. Kohli was taken to his house and it is alleged that his wife produced his licensed revolver from inside the Niwar of a company. The Investigating Officer opened the chamber of the revolver and found that it was loaded with three live cartridges and was emanating the smell of a freshly fired bullet. Banney Khan was arrested at 5 a.m. on the 28th Balak Rams house was searched but he companyld number be found. On the night between the 27th and 28th May, eleven persons were arrested by the Investigating Officer apart from Dr. Kohli, Banney Khan and Kailash. Those persons were arrested on information given by one Abdul Rahman that they were involved in a companyspiracy to companymit the murder of Tribeni Sahai. Balak Ram, Nathoo and Pearey Mian surrendered respectively on 29th May, 7th June and II th June. On 1st June Balak Rams father surrendered in the companyrt of the Judicial Magistrate a licensed automatic Pistol belonging to Balak Ram. The postmortem examination on Radhey was performed by Dr.A. Gupta on 28th May. He found a circular lacerated wound 1/2x 3/10 cavity deep on the posterior axillary line on the left side of the axillary pit and a companyfusion on the right side of the chest. Dr. Gupta recovered a bullet from Radheys body. The postmortem on the dead body of Tribeni Sabai was performed by Dr. S. Mitra on 29th May. He found on the dead body a gun shot wound 1C x 1C chest cavity deep below the right scapular region. The injuries of Jhilmili and Ram Prakash were examined by Dr. R. C. Bansal of the District Hospital, Budaun on 28th May. He found on the person of Jhilmili a fire-arm wound of entry on the left thigh and a wound of exit on the same thigh. On the person of Ram Prakash was found a superficial burn 1 x 1 on the right side of the abdomen. The licensed revolver of Dr. Kohli, the automatic pistol of Balak Ram, the bullet which was recovered from the dead body of Radhey and the five empty cartridges as well as the bullet head recovered from the scene of occurrence were sent by the Investigating Officer for ballistic tests to the Scientific Section C.I.D., Lucknow. The ballistic expert, Shyam Narain, opined that the bullet recovered from Radheys body was fired from Balak Rams pistol but that the bullet seized from the scene of occurrence was fired from some other weapon. The defence of the appellants, broadly, was that they were falsely implicated on account of political rivalry. They companytended that the witnesses had given false evidence against them either because they were friends or relatives of Tribeni Sahai or because of the pressure exerted on them by the police at the instance, partly, of Tribeni Sahais brother Radhey Shyam, who was the Deputy Inspector General of Police and a Member of the Vigilance Commission, U.P. Balak Ram pleaded alibi saying that he was at Lucknow from May 25. He led evidence in support of his plea of alibi, Nathoo admitted that he was related to Balak Ram but companytended that he was companytesting the election to the membership of the Town Area Committee as an independent candidate. He also pleaded alibi saying that he had gone to Chandausi on the morning of 27th and returned to Dataganj on May 29. He stated that he wanted to surrender earlier but being informed that Radhey Shyam, D.I.G., had issued orders for shooting the accused, if found, he companyld number surrender till June 7. Dr. Kohli admitted that he was the President of the local unit of the Jan Sangh, but denied that there was any personal enmity between him and Tribeni Sahai. He denied that he was arrested at about 3.30 a.m. on the 28th May or in the circumstances alleged by the Investigating Officer that his revolver was handed over by his wife. He companytended that while he was closing- his clinic at about 10.30 p.m. on the 27th he was taken by a companystable to the police station on the pretext that he was wanted by the Station House Officer. While he was in detention at the police station, the Station House Officer went to his house and obtained his revolver from his wife. According to Dr. Kohli, Dharma Pal, Raiendra Kumar Misra and two lawyers, Nawal Kishore and Sultain Ahmed came to the police station and had a long meeting with the Investigating Officer at about 3 p.m. on the 28th. Those under arrest were thereafter sent to Budaun. The two brothers Banney Khan and Pearey Mian admitted that a civil litigation was pending between them and Tribeni Sahai on the date of occurrence. Banney Khan admitted that he was a candidate for election to the membership of the Town Area Committee as a numberinee of Congress 0 . He stated that he was the Vice-Chairman of the Town Area Committee since 1937 and claimed that enemy candidate he had supported during the past many years for the Chairmanship of the Committee had been successful. He alleged that he was implicated at the instance of Dharam Pal who was companytesting the Chairmanship on the ticket of Congress R . Like Dr. Kohli he also companytended that he was sent to Budaun at about 3.30 p.m. on the 28th. Each of the appellants denied knowledge of the order passed by the District Magistrate under section 144, Criminal Procedure Code and each one denied his presence in the procession which was taken out at about 6.30 p.m. on the 27th. Their presence in the later procession and their participation in the incident under inquiry was of companyrse denied by them. The learned Sessions Judge, Budaun, came to the companyclusion that numbere of the eye-witnesses including the injured Jhilmili and Ram Prakash companyld be relied upon unless independent companyroboration was ,available to their testimony. The learned Judge took the same view about the dying declarations alleged to have been made by Tribeni Sahai. Except for Balak Ram, the other accused were acquitted by the learned Judge as independent companyroboration was number available to the evidence of the witnesses in regard to the part played by those accused. In so far as Balak Ram is companycerned, the learned Judge companyvicted him for the murder of Tribeni Sahai and Radhey on the view that the evidence of the eye-witnesses and the dying declarations of Tribeni Sahai were companyroborated by the opinion of the Ballistic Expert, Shyam Narain, who stated that the bullet recovered from the dead body of Radhey was fired from Balak Rams pistol. The learned Judge further held that it was number clear as to who else were members of the unlawful assembly responsible for the murders of Tribeni Sahai and Radhey but since it was clear that there was in fact an unlawful assembly, Balak Ram was liable to be companyvicted under section 148, Penal Code. The learned Judge acquitted Balak Ram of the charge under section 307 read with section 149 in regard to the injuries received by Jhilmili and Ram Prakash but he companyvicted him under section 337 read with section 149 on the ground that his reckless act in firing from his pistol had endangered human life and had caused hurt to Jhilmili and Ram Prakash. Apart from the injured Jhilmili P.W. 1 and Ram Prakash W. 11 , the prosecution examined Rajendra Kumar Misra W. 13 and Aryendra Nath P.W. 19 as eye-witnesses to the occurrence. Rajendra Kumar Misra who lodged the First Information Report at the Dataganj police station is a close relative of the deceased Tribeni Sahai and was at the relevant time the President of the local unit of Congress R . The High Court therefore felt that he companyld number be regarded as an entirely independent witness. But his evidence was accepted by the High Court for the, reason that it was companyroborated by the first information report lodged by him promptly. The prompt, lodgment of the F.I.R. was in turn held to be companyroborated by the evidence of Head Constable Jai Prakash P.W. 2 and the Investigating Officer Yogendra Sharma P.W. 24 . The High Court accepted the evidence of Jhilmili and Ram Prakash who, according to it, were independent witnesses. The two witnesses were said to companyroborate each other individually and together they were held to companyroborate the evidence of Rajendra Kumar Misra. Aryendra Nath is the sisters son of Dharam Pal who, on the ticket of Congress R was companytesting the election to the Chairmanship of the Town Area Committee. The High Court therefore held that he companyld number be companysidered as an independent witness but his evidence was accepted as it was in full accord with that of Jhilmili and Ram Prakash. Finally, the High Court accepted the three dying declarations of Tribeni Sahai as true and voluntary observing that they provided full companyroboration to the testimony of Jhilmili, Ram Prakash and Aryendra Nath In the result the High Court accepted the prosecution case in its entirety except in regard to Kailash and companyvicted Balak Ram, Nathoo, Dr. Kohli and Banney Khan as mentioned earlier. Broadly, the two questions which arise for companysideration are whether the High Court was justified in upholding the companyviction of Balak Ram and the sentence of death imposed on him by the Sessions Court and secondly whether the High Court had good and sufficient reasons for interfering with the order of acquittal passed by the Sessicns Court in favour of Nathoo, Dr. Kohli and Banney Khan. Our approach to these two questions has to be basically different because whereas in regard to Balak Ram there is a companycurrent finding of fact that he was responsible for companymitting the murders of Tribeni Sahai and Radhey and for causing injuries to Jhilmili and Ram Prakash, in regard to the other three appellants the two companyrts have differed, the High Court having interfered with the order of acquittal passed by the trial companyrt in their favour. The powers of the Supreme Court under Article 136 are wide but in criminal appeals this Court does number interfere with the companycurrent findings of fact save in exceptional circumstances. In Ramabhupala Reddy and Ors. v. The State of Andhra Pradesh, 1 it was observed that it was best to bear in mind that numbermally the High Court is a final companyrt of appeal and the Supreme Court is only a Court of special jurisdiction. This Court would number therefore re-appraise the evidence unless, for example, the forms of legal process are disregarded or principles of natural justice are violated or substantial and grave injustice has otherwise resulted. In dealing with the appeal filed by Balak Ram we shall have to keep this position in mind. A.I.R. 1971 S.C. 460. In so far as Nathoo, Dr. the question for companysideration in interfering with the order the Sessions Court. In Ram this Court held after a review Court has set aside an order appeal under Article 136 will Kohli and Banney Khan are companycerned is whether the High Court was justified of acquittal passed in their favour by Jag and Ors. v. The State of U.P. 1 of previous authorities that if the High of acquittal the Supreme Court in an examine the evidence only if the High Court has failed to apply companyrectly the principles governing appeals against acquittal. It was held in that case that the powers of the High Court are as full and wide in appeals against acquittal as in appeal against companyviction but, amongst things, if two views of the evidence are reasonably possible the High Court ought to interfere with the order of acquittal passed by the trial companyrt. It would be companyvenient to deal first with the appeals filed by Nathoo, Dr. Kohli and Banney Khan who have the benefit of an order of acquittal passed in their favour by the Sessions Court. For a proper understanding of the case it is necessary to have a glimpse of the political canvass of Dataganj. The deceased Tribeni Sahai, Dharam Pal who was companytesting the election to the Chairmanship of the Town Area Committee, the 79 year old Banney Khan and Dr. Kohli who was the President of the Jan Sangh unit were keyfigers in the Datagani Politics. The story of their doings is the number un- familiar tale of floor-crossing and internal splits. In the Assembly election of 1967 an independent candidate- incidentally, a retired District Judge-won on the support of other political parties though some of these parties had put up their own candidates. The Congress R candidate supported by Tribeni Sahai lost that election and the Judge won. In the election to the Town Area Committee held in the same year. Tribeni Sahai supported a Jan Sangh candidate as against Dharam Pal who was put up by the Congress. Dr. Kohli, though an ardent Jan Sanghite, supported Dhram Pal. In the 1969 mid-term poll Tribeni Sahai won as a Congress candidate, this time with the help of Dharam Pal. The Judge, Harish Chandra Singh. who as a Bhartiya Kranti Dal candidate had the support of Dr. Kohli, Banney Khan and others lost the election. Coming nearer the date of occurrence, the Town Area Committee elections were to be held in Dataganj on May 30, 1971. Dharam Pal, a Congress R candidate for the Chairmanship of the Committee had the support of Tribeni Sahai while Balak Ram, number under death sentence, who was a Congress 0 candidate for Chairmanship had the support of other parties. Dr. Kohli and Banney Khan were partisans of Balak Ram. Banney Khan was himself a Congress 0 candidate for the membership of the Committee. The Congress R and Congress 0 had each fielded 10 candidates for the 10 Committee seats. Nathoo, aaprently an independent,candidate, was in fact a dummy candidate put up by Congress 0 in order to provide for the possible disloyalty of its official candidate. Nathoo is Balak Rams brother-in-law. 1 1974 4 S.C.C. 201. Of Banney Khan it is said that since 1937, candidates put up by him for Chirmanship of the Town Area Committee had won companysistently, numbermatter which party they belonged to or which party the rival candidates belonged to- In 1948 Banney Khan had supported Tribeni Sahai for Chairmanship and the latter won. Banney Khan. was himself the Vice-Chairman of the Committee since 1937. Dharam Pal who was the Chairman of the Committee since 1953 had the unwavering support of Banney Khan through all these years. They fell out on the eve of the 1971 elections. Political differences evidently polluted the social life of the Dataganj citizens. They carried those differences into their private lives and their social relationship was marked by a series of quarrels and companyrt cases. A civil suit was filed in 1965 by Banney Khan and his brother Pearey Mian against Tribeni Sahai and others for a permanent injunction restraining them from realising Tehbazari dues from the market. This six year old suit was, number surprisingly, pending on the date of the occurrence. A criminal case was then filed against Banney Khan and Pearey Mian under section 307, Penal Code, for a murderous assault on one Suleman whose brother Mohammad Sultan. Vakil was an active follower of Tribeni Sahai. The case against, Banney Khan was later withdrawn and Pearey Mian was acquitted. In 1967-68 Tribeni Sahai, had filed a case under section 120-B, Penal Code, charging Dharam Pad, Pearey Main and others for companyspiracy to murder him. In those days Dharam Pal belonged to a rival party., In 1970 Tribeni Sahai had filed a similar case against Pearey Main and others accusing them of a companyspiracy to murder him. On August 3, 1970 Pearey Mian had lodged report against Tribeni Sahai and his bodyguard Radhey under section 394, Penal Code. It is obvious that a point to gain on the political plane was enough excuse for all, these gentlemen, to involve one another into grave charges like murder and dacoity. Dharam Pal who was strongly supported by Tribeni Sahai in the 1971 elections for the Chairmanship of the Town Area Committee has admitted in his evidence that in earlier days Tribeni Sahai used to harass him with false cases. In a trial against two.persons called Tullan and Beni under section 394 of the Penal Code, Tharain Pal had deposed as a defence witness that Tribeni Sahai had falsely implicated those persons as they were his supporters. Beni, in fact, was in Dharam Pals employment as a driver, It seems that the two accused were initially companyvicted but were acquitted in appeal. Most of the cases described above seem to have been politically motivated. The fact that such serious charges lacked a true foundation was irrelevant to the way of life which these gentlemen bad adopted. It is number suprising, though it is to be regretted, that in the din of these political and personal feuds the witnesses had a heavy companymitment to factitious loyalties. When key witnesses deny the obvious, pretend ignorance of facts within their special knowledge and give free play to their imagination on crucial matters, pursuit of truth, becomes a wild goose chase. An the befogged trial Judge has then to discharge the unenviable duty of seeing and hearing such witnesses. Take Jhilmili and Ram Prakash. The fire-arm injuries on their person establish their presence at the scene of offence but to be present is only to have an opportunity to witness. Presence does number ,ensure truthfulness number is it any insurance against the companymon human failing to involve the innocent along with the guilty. The presence of Jhilmili and Ram, Prakash may indeed discredit them if they were companyponents of the procession which marched towards Tribeni Sahais house. The question which requires examination is whether, as companytended by the defence, they were members of the procession and were injured accidentally when the processionists opened fire or whether, as companytended by the prosecution, they received injuries when as dis- interested bystanders they rushed to protect Tribeni Sahai. It is surprising that the First Information Report lodged by Rajendra Kumar Misra does number refer to the presence of either Jhilmili or Ram Prakash. Rajendra Kumar claims to have seen the incident from a close angle and he has mentioned in the Report the names of persons who had seen the occurrence Jhilmili and Ram Prakash were admittedly injured in the firing incident and witnesses have uniformly stated that there was enough light at the scene of occurrence. Jhilmili had received a through and through bullet injury on the thigh while Ram Prakash had received a firearm burn on his abdomen. The question is number of the routine variety and one cannot brush aside the failure of the first informant to refer to the two witnesses by saying that he may number have numbericed their presence. The point of the matter is whether, having seen them, he dropped them deliberately as they were on the side of the accused. Rajendra Kumar Misra is himself a relative of Tribeni Sahai, being the brother-in-law of Radhey Shyam Sharma, the brother of Tribeni Sabai. In the F. I. R. Rajendra Kumar mentioned that Loki, Ganga Ram and Aryendra had seen the incident. Ganga Ram was a Bataidar of Tribeni Sahai and sometimes he used to live with Tribeni Sahai. Arvendra is the sisters son of Dharam Pal who as a Congress R candidate was companytesting the election for the Chairmanship of the Committee with the active support of Tribeni Sahai. Neither Ganga Ram number Loki was examined by the prosecution and the learned public prosecutor stated that Loki had been won over by the defence. Such a bald assertion, unsupported by any data, is insufficient to absolve the prosecution from its duty to examine wit nesses whose evidence is necessary for upholding its case. A large number of persons had gathered at the scene of offence and the Investigating Officer, Yogendra Sharma, himself arrived within a short time. Arrangements were made to take Tribeni Sahai and Radhey to Budaun in two cars but numbernotice whatsoever was taken of the presence of Jhilmili and Ram Prakash or of the injuries received by them though they were crying in pain. Yogendra Sharma says that he asked a companystable to take them to the police station with instructions that they should be taken to the hospital thereafter. As a matter of numbermal routine, they should have been taken to Budaun along with Tribeni Sahai and Radhey especially when the two cars of Dharam Pal and Rajendra Kumar were so readily available. If that was thought unnecessary steps should have been at least taken to send them to the local dispensary. Instead, they were first sent to the police station, then to the dispensary, back to the police Station and ultimately to Budaun hospital. During the trial in the Sessions Court, Jhilmilis sons, Chotey and Chironji, were sitting in the group interested in the accused. Besides, Jhilmilis son-in-law Sia Ram and another relative Ved Prakash were companytesting the election for the membership of the Committee as candidates of Congress 0 . Jhilmili stated that he did number know which party Sia Ram and Ved Prakash belonged to. In fact, he pretended ignorance of any such political parties as Congress R and Congress 0 . He had voted for Sia Ram and Ved Prakash but said that he did number know what symbols were allotted to them. Jhilmili is a secretive witness for, though his son got employment in the Provincial Armed Constabulary after the incident, he denied all knowledge about it and added that he was number even aware that the son was posted at Kanpur. He also denied that he had opened a bank account two months after the incident with an initial deposit of Rs. 1000/- and stated falsely that the account was opened prior to the incident with a deposit of Rs. 600. He stated that he had deposited a sum of Rs. 50 only in that account after the incident but, a true companyy of his bank account shows that he had deposited a sum of Rs. 500 in November, 1971. Jhilmili was asked whether he knew that Dr. Kohli was associated with the Jan Sangh and his answer was that since he had number heard the name Jan Sangh, he companyld number speak of the association. The manner in which Jhilmili claims to have received injuries is difficult to accept. He says that he rushed to the rescue of Tribeni Sahai after Balak Ram had fired a shot. The procession companysisted at least of six persons and an open exhortation is alleged to have been given by Dr. Kohli and others that Balak Ram should fire. It is im- possible that Jhilmili companyld have jumped into the firing range. A large part of the criticism in regard to Jhilmilis evidence holds good in regard to Ram Prakash also. Tribeni Sabai had filed a prosecution against Ram Prakashs father and others for companyspiracy to murder him. Tribeni Sahai had also instituted a case under section 107, Criminal Procedure Code, against Ram Prakashs father and others. Ram Prakash surprisingly denied knowledge as to whether the first mentioned case was pending or number. He admitted that he was standing at the scene of offence for quite some time after the- incident and that he did number tell any one including his mother that his injuries should be attended to. He saw Yogendra Sharma arrive but did number companyplain to him about the injury which he had received. Ram Prakash, like Jhilmili, made a fanciful assertion that Dr. Kohli, Banney Khan and Pearey Man shouted together in one voice asking Balak Ram to open fire. Realising the infirmity of that assertion, Ram Prakash made a funny embellishment Banney Khan bid initially started asking Balak .Ram earlier than others. Banney Khan accused had shouted the word Balak Ram before other accused started saying. Then the sentences were companypleted by all of them. All the three accused had said the same thing i.e. Balak Ram Maro Goli. The learned Sessions Judge was right for some of these reasons in holding that the evidence of Jhilmili and Ram Prakash companyld number be accepted without independent companyroboration. The High Court treated them as independent witnesses and held that they had companyroborated each other. In fact. the High Court went a step further and held that these two witnesses companyroborated Rajendra Kumar Misra also. Rajendra Kumaz is the brother-in-law of Tribeni Sahais brother Radhey Shyam Sharma who at the relevant time was stationed at Lucknow .as Deputy Inspector General of Police and as a Member of the vigilance Commission. The trial companyrt observed rightly that the witness ,could number be disbelieved merely because he was related to Tribeni Sahai. But it gave various reasons for number accepting his evidence at its face value. In the first place, the omission to make a reference to the presence ,of Jhilmili and Ram Prakash in the F. 1. R. was number an oversight on the part of Rajendra Kumar. The omission was deliberate because it was number then known whether they would support the prosecution case. Jhilmili has stated in his evidence that he had seen Rajendra Kumar companying from the western side at the time of the incident. Apart from this, the companyduct of RaJendra Kumar is highly unnatural. After the processionists dispersed and ran away he did number even try to find out what injuries Tribeni Sahai and Radhey had received and whether they required medical attention. He claims to have seen The whole incident but. on his own showing, as a mute, silent spectator He raised numberalarm. he did number go near any of the injured persons and made a straight dash for the police station. There are also serious discrepancies as regards the spot from which he claims to have seen the incident. He says that he saw one incident from three or four paces east of the numberth-western companyner of- Aryendras house. The particular spot is said to be about 1 8 paces from the scene of occurrence. According to Jhilmili, Ranjendra Kumar had companye only as far as the house of one Dr. Suresh. Paragraph 5 of the Notes of Inspection made by the learned Sessions Judge shows that a person standing in front of Dr. Sureshs house companyld number re- companynise persons standing at the scene of occurrence. At the time ,the incident started, Rajendra Kumar claims to have been sitting at his Baithak. But neither in the F. 1. R. number in his police statement did be mention where exactly he was at the time when the companymotion started. In the F. 1. R. he alleged that Pearey Mian, Banney Khan and Kailash were also among the assailants but he admitted in the Sessions Court that these persons had number participated in the actual assault. It is significant that the witness had number mentioned Banney Khans name before the Investigating Officer at all in companynection with this incident and was unable to give any satisfactory explanation of this omission. We do number propose to dissect the question whether the F. 1. R. was lodged immediately as claimed by Rajendra Kumar or whether it was lodged on the next day as companytended by the defence. The better view would, however, seem to be that it was lodged soon after the incident though perhaps number as immediately after the incident as Rajendra Kumar claims. The Sessions Judge has expressed his finding with welcome restraint in saying that the case of the defence that the F. R. was number filed at the time at which it purports to have been filed cannot be said to be wholly unfounded. That leaves for companysideration the evidence of Aryendra who also claims to be an eye-witness. He is the sisters son of Dharam Pal who was companytesting the election for the Chairmanship of the Committee. Dharam Pal has admitted in his evidence that he had brought up Aryendra and that he was living with him for about 17 or 18 years after the death of his father- Aryendra is said to have shifted to the house of his father-in-law because his mother-in-law was all alone in the house. That house occupies a vantage position being quite near the scene of occurrence In the first place, there is numberreliable evidence to show that Aryendra was living in the house of his father-in-law since March, 1970 as alleged by him. After leaving Dharam Pals house he admittedly shifted to the house of one Umrao Lal Halwai but he says that he lived in the house of that man for two or three months only. The learned Sessions Judge has referred to the voters lists and other documents to show that it was doubtful whether Aryendra had left the Halwais house and was living in the house of his father-in- law at the material time. Aryendra claims to have been sleeping on the eastern roof of his father-in-laws house. It was companymon ground that if he were sleeping on the western side, which was a more companyvenient place, he companyld number have seen the incident. He explained this by saying that there used to be a dog on the western roof to keep watch and the eastern roof had numberregular staircase making it difficult for the dog to get on there. When his statement was recorded by The Sub- Divisional Magistrate under section 164 of the Criminal Procedure Code Arvendra stated that Pearey Mian. Banney Khan. Dr. Kohli, Balak Ram, Kailash and Nathoo were also in theHis case then was that there were others also in the procession.In fact.he had stated then that 8 or 10 persons had stood near thedoor of the house of one Uma Shanker, a statement which he falsely denied to have made. It is number without relevance that as many as 1 1 others were arrested on the night of the incident for companyspiracy to murder Tribeni Sahai. Finally, Aryendra has also like the other eye-witnesses given the incredible version that Banney Khan, Kohli and Pearey Mian exhorted Balak Ram in one voice to open fire. It cannot be overlooked that the statements of Jhilmili, Ram Prakash and Aryendra were recorded under section 164, Criminal Procedure Code, in June 1971, soon after the incident. The Investigating Officer says that he got the statements recorded by way of precaution. That companyld be true and it would be wrong to find fault with the Investigating Officer merely because he got the statements of these witnesses recorded under section 164. Nor can the evidence of a witness be discarded for the mere reason that his statement was recorded under section 164. But the High Court overlooked that the evidence of witnesses whose statements are recorded under section 164 must be approached with caution. Such witnesses feel tied to their previous statements given on oath and have but a theoretical freedom to depart from the earlier version. A prosecution for perjury companyld be the price of that freedom. It is, of companyrse, open to the Court to accept the evidence of a witness whose statement was recorded under section 164, but the salient rule of caution must always be borne in mind. That is all the more necessary when almost all the eye. witnesses are subjected to this tying-up process. Even Aryendra, the sisters son of Dharam Pal, was number thought to be above suspicion. We have indicated broadly some of the more serious infirmities in the evidence of the eye-witnesses in order to- show that the Sessions Court was justified in taking the view that it was unsafe to act on their evidence without companyroboration. Ignoring the impact of these infirmities, the High Court erroneously treated the witnesses as inde- pendent and held that they had companyroborated one another. None of the four eye-witnesses was true enough to afford companyroboration to the evidence of others. Corroboration in such cases must be forthcoming from an independent source. The prosecution relied very strongly on the three dying declarations alleged to have been made by Tribeni Sahai. The first of these was made to Dharam Pal, the second to the Investigating Officer Yogendra Sharma and the third was made in the Budaun hospital before the Sub-Divisional Magistrate. It is necessary to examine closely the circumstances attendant upon these dying declarations. Not much reliance was placed before us on the first two dying declarations and rightly so. In regard to the oral dying declaration alleged to have been made by Tribeni Sabai to Dharam Pal immediately after the shooting outrage, neither Jhilmili number Ram Prakash who were admittedly present at the scene of occurrence all through say anything about that dying declaration. Even Aryendra who is Dhliaram Pats sisters son did number say that Tribeni Sahai made a dying declaration to Dharam Pal. Surprisingly, though the investigation was otherwise prompt, the statement of Dharam Pal was recorded by the investigating Officer on June 2, 1971 which was six days after the incident had taken place. The second dying declaration is alleged to have been made to the Investigating Officer. Investigating Officers are keenly interested in the fruition of their efforts and though we do number suggest that any assumption can be made against their veracity, it is number prudent to base the companyviction on a dying declaration made to an Investigating Officer. Yogendra Sharma says that while Tribeni Sahai was lying in, a car at the scene of offence he made a statement implicating the accused. Yogendra. Sharma produced a true companyy of an entry in his case diary stating that even as he was still in the car, he recorded the dying declaration in the case diary which he was carrying with him. It is difficult to appreciate why, if there was time enough to reduce the dying declaration into writing, Yogendra Sharma did number obtain Tribeni Sahais signature or at least the signatures of any of the large number of persons who had surrounded the car. Rule 115 of the U.P. Police Regulations expressly enjoins the Investigating Officer to record a dying declaration, if at all, in the presence of two respectable witnesses and after obtaining the signature or mark of the declarant at the foot of the declaration. Besides, if the Investigating Officer was in such haste that he did number even think it proper to wait ,it the police station until the various companyumns on the first page of the I.R. were duly filled in, it is rather difficult to believe that seized by such a pressing sense of emergency,, he would take the case diary with him on the off chance that a dying declaration may be in the offing. The dying declaration Ex-Ka-47 made by Tribeni Sahai at the Budaun hospital was recorded by the Sub-Divisional Magistrate Mr. Sada Ram at 11.50 p.m. Learned companynsel appearing for the appellants submitted that this dying declaration is a fabrication and must therefore be discarded. Were number inclined to go that far. The circumstances surrounding the dying declaration, though uninspiring,are number strong enough to justify the view that officers as high in the hierarchy as the Sub-Divisional Magistrate, the Civil Surgeon And the,District Magistrate hatched a companyspiracy to bring a false document into existence. The Civil services have numberplatform to companytrovert allegations, howsoever grave and unfounded. It is therefore, necessary that charges calculated to impair their career and character ought number to be accepted except on the clearest proof. We are number prepared to hold that the dying declaration is a fabrication. All the same, one must face the question whether, in the circumstances of the case, it is safe to act on the uncorroborated dying declaration of Tribeni Sahai The evidence of Dr. R. C. Bansal who was the Medical Officer of the District Hospital, Budaun, shows 3-192 Sup.Cl/75 that Tribeni Sahai was in a critical companydition when he reached the hospital. Before the dying declaration was recorded, an attempt was made to give him saline but even after making incisions on the hands and a leg, the attempt did number succeed. Dr. Bansal has stated that Tribeni Sahai was in severe pain, that he was under a great shock, that there was profuse bleeding from the injury, that his respiration was poor, that his pulse was feeble and thready and that the blood pressure was number recordable. Dr. Bansal explained that by shock he meant a state of profound depression of the vital processes of the body resulting from injury. It taxes one ordinary experience of human affairs to accept that Tribeni Sahai thus tormented, was in a fit mental and physical companydition to make a volitional statement after he had reached the Budaun hospital. Quite apart from this companysideration, the dying declaration can have hardly any evidential value because Tribeni Sahai was in the midst of friends and admirers right since the time of the incident until the dying declaration was recorded. Dharam Pal was in his companystant companypany and it is number unlikely that names of political opponents like Balak Ram, Dr. Kohli and Banney Khan were freely bandid about. The dying declaration companyld then be-naturally influenced by the opinion and inferences of close friends like Dharam Pal. If Tribeni Sahai were to go on record as a person of unquestioned rectitude it might, perhaps, have been possible to approach the dying declaration a little differently. But the long lists of cases which he had filed against the political opponents shows that he had numbercompunction in pointing an accusing finger at innocent persons. Dharam Pal himself was a victim of such machinations and even he companyceded that Tribeni Sahai used to harass him by making false charges when he was in the opposite camp. Therefore, we find it impossible to accept the companyclusion of the High Court that All the three dying declarations of Sri Tribeni Sahai provide full companyroboration to the testimony of the two injured eyewitnesses and Aryendra that it was Balak Ram, who was responsible for the fatal injury to Sri Tribeni Sahai and that he fired instigated by Dr. Kohli, Pearey Mian and Banney Khan. The aforesaid discussion of the various items of evidence must at least yield the result that the companyclusion to which the learned Sessions Judge came was a reasonable companyclusion to companye to. It cannot be denied that two views of the evidence are reasonably possible in regard to the participation of Nathoo, Dr. Kohli and Banney Khan. the High Court, therefore, ought number to have interfered with the judgment of the Sessions Court in their favour. A revolver was recovered from the house of Dr. Kohli at the time of his arrest on the night of the incident and it is said that the revolver emitted a foul smell. If anything, the evidence, of the ballistic expert Shyam Narain P.W. 14 shows that numbere of the five empties recovered from the scene of offence companyld have been fired from Dr. Kohlis revolver, The expert was also unable to give a definite opinion that the bullet, Ex. 25, which was recovered from a drain near the scene of offence was fired from Dr. Kohlis revolver. In regard to Nathoo, he is number named in the dying declaration recorded at the Budaun hospital. What is more, his name which was first written towards the end of that dying declaration was subsequently scored off. Mr. Sada Ram, the Sub-Divisional Magistrate, says that he scored off Nathoos name from the dying declaration because Tribeni Sahai did number say anything when Nathoos name was read out that was fair of Mr. Sada Ram but when Nathoo scores one more point. The old Banney Khan is an old hand at politics. He was Vice-Chairman of the Town Area Committee since 1937 and even Dharam Pal has admitted that Banney Khan was a king maker. He was 79 years old on the date of the incident and the only evidence against him companysists of that artificial assertion that he, Dr. Kohli and Pearey Mian exhorted Balak Ram with one Voice to shoot at Tribeni Sahai. Banney Khans implication companyld reasonably be traced to the personal enmity between him and Tribeni Sahai. In the result the order of companyviction and sentence passed by the High Court against Nathoo, Dr. R. P. Kohli and Mohammad Sayeed Khan alias Banney Khan is set aside and their appeals are allowed. Banney Khan is on bail and he need number surrender to his bail. Nathoo and Dr. Kohli shall be released forthwith. That leaves us for companysideration the appeal filed by Balak Ram who has been found guilty by the Sessions Court as well as the High Court. Mr. Frank Anthony made an impassioned plea for his acquittal but we are unable to accept the submission of the learned companynsel. It is urged that Loki and Ganga Ram whose names were mentioned in the F.I.R. were number examined and therefore an adverse inference should be drawn against the prosecution that the relevant companyumns in the Inquest Report were deliberately left blank so as, to facilitate a manipulation of evidence, that the F.I.R. was ante-dated that the site plan was deliberately drawn in a vague and general manner that there was numberimmediate motive for the offence and that the High Court had failed to companysider the evidence of the defence witnesses at all which it was its duty to companysider in a reference under section 374, Criminal Procedure Code. The more important of these points stand answered by what we have already said while discussing the appeals of the other accused. But, it is necessary to add that in the first place, the other accused had the benefit of an order of acquittal passed in their favour by the, trial companyrt and secondly we have only endeavoured to indicate that since the view taken by the trial companyrt was a reasonable view to take, the High Court ought number to have interfered with the judgment of acquittal. In regard to Balak Ram, there is a companycurrent finding that the shot fired by him caused the death of Radhey and we see numberreason for taking a different view. The evidence in regard to the part played by him is natural and companysistent and is companyroborated by the opinion of the Ballistic Expert. Such companyroboration was lacking Is against others.The evidence of the Ballistic Expert shows that the bullet Ex. 27 which was extracted from Radheys body was fired from the pistol Ex. 5 belonging to Balak Ram. Mr. Anthony made a severe attack on the evidence of the expert and in order to show infirmities in that evidence he read out to us various passages from The Identification of Firearms and Forensic Ballistics by Major Gerald Burrard J. S. Hatchers Text B ok of Firearms Investigation, Identification and Evidence 5th.1946 and Modis Medical Jurisprudence and Toxicology. We have companysidered these submissions but are unable to see a reason strong enough to justify a reversal of the companycurrent view taken by the two companyrts. The numbermal rule that this Court does number reappraise evidence in such cases must apply. Stated briefly, Mr. Anthonys companytention is that the bullet Ex. 25 which was recovered from the scene of offence must have been the one which after hitting Tribeni Sahai made an exit wound number since that bullet, according to the ballistic expert, companyld number have been fired from Balak Rams pistol Ex. 5 , he cannot be held guilty for causing the death of Tribeni Sahai. Mr. Anthony says that the evidence of the eye witnesses stands falsified by the evidence of the expert. The difficulty in accepting this companytention is that there is numberwarrant for saying that the bullet Ex. 25 must be the one which passed through Tribeni Sahais body. Mr. Anthony spent companysiderable time in showing that the striations on the bullet Ex. 27 which was extracted from Radheys body are of a different pattern from the striations on the test bullets fired from Balak Rams pistol. The evidence of the expert has been closely companysidered by the High Court and we companysider their finding on this aspect as open to numberexception. Balak Ram examined two witnesses, Shiv Govind Singh D.W.7 and Udainarain Singh D.W. 8 to establish his plea of alibi but that evidence Was rightly rejected by the trial companyrt. It is in the least degree likely that Balak Ram who was companytesting the election for Chairmanship of the Committee would be away from the hubbub of politics on the eve of elections. All the same, the High Court ought to have companysidered that evidence for what it was worth. In a re- forence for companyfirmation of the death sentence under sec. 374, Criminal Procedure Code, the High Court must examine the entire evidence for itself, independently of the Session, Court. See Bhupendra Singh v. The State of Punjab, 1 , and Jamman and Ors. v. The 1 1968 3 S.C.R. 404. State of Punjab 1 . Fortunately, the failure of the High Court to examine the defence evidence has led to numbermiscarriage of justice. Balak Rams companyviction must, therefore, stand. On the question of sentence, there is numberreason for interference. Balak Ram was carrying a pistol and he fired from that pistol without any provocation either from Tribeni Sahai or from Radhey. Neither of them was armed. number even with a walking stick, and all that Tribeni Sahai did was to ask the processionists to desist from shouting vulgar slogans.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1928/67, 1274-76, 1293, 1356-57/68. Appeals from the Judgment and orders dated the 10th October 1967 and 5th February 1968 of the Delhi High Court in Civil Writ Nos. 1218, 1295-97, 1320, 1344 and 1318 of 1967 respectively. Sen. Bishambar Lal, H. K. Puri, P. V. Kapur and S. C. Patel for the appellant in C. A. 1928/67. K. Puri for the appellants in C. As. 1274-76 and 1293/68. T. Desai and D. N. Mukherjee for the appellant in C. A. No. 1356/68. N. Mukherjee for the appellant in C. A. 1357/68. Girish Chandra and S. P. Nayar- for the respondents, except A. 1928 and 1275/68. L. Sanghi, Girish Chandra and S. P. Nayar for the respondents in C. A. 1928 and 1275 of 1968. The Judgment of the Court was delivered by BEG, J. The appellants are manufacturers of sugar, who have companye before us after certification of their cases as fit for appeal to this Court tinder Article 133 1 c of the Constitution. They challenged the numberification dated 28-6- 1967 issued by the Central Government under clause 7 of the Sugar Control Order, 1966, fixing ex-factory prices for sugar factories specified in the numberification. It appears that, in the Writ Petitions filed in the High Court for quashing the impugned numberification and appropriate orders in the nature of mandamus, the validity of section 3 of the Essential Supplies Act 10 of 1955, as well as of the Sugar Control Order, 1966, issued under it were questioned. But, before us, the appellants have companyfined their arguments to companytentions based on the companyrectness of the method adopted in fixing prices of sugar manufactured in various States, and the alleged failure of the Central Government to take into account the fact that there was an initial fixation of prices of sugar by a numberification dated 1-2-1967 followed by a final fixation on 28-6-1967. According to the appellants, appropriate adjustments or allowances should have been made in the final fixation by a numberification of 28-6-1967. We are, therefore, lot companycerned number with any question relating to the validity of clause 7 of the Sugar Control Order under which the numberifications were issued. The relevant clause 7 reads as follows Power to fix sugar prices- The Central Govt. may from time to time by numberification in the Official Gazette, fix the price or the maximum price at which any sugar may be sold or delivered and different prices may be fixed for different areas or different factories or different types or grades of sugar. Such price or maximum price shall be fixed having regard to the estimated companyt of production of sugar determined on the basis of the relevant schedule of companyt given in the Report of the Sugar Enquiry Commission October 1965 , subject to the adjustment of such rise in companyt subsequent to the Report aforesaid as, in the opinion of the Central Government, cannot be absorbed by the provision for companytingencies in the relevant schedule to that Report. Where the price or the maximum price has been so fixed, numberperson shall sell or purchase or agree to sell or purchase any sugar at a price in excess of that fixed under sub-clause 1 Provided that the price at which sugar may be sold for delivery otherwise than ex-factory shall number exceed the price or the maximum price, as the case may be, fixed under sub- clause 1 for sale ex-factory plus such charges in respect of transport to any town or any specified area and other incidental charges as may be fixed by the companycerned State Government or by any officer authorised in this behalf by the Central Government or that State Government in accordance with the instructions issued by the Central Government in this behalf from time to time. Clause 7 2 , set out above, requires the Govt. to fix the price having regard to the estimated companyt of production of sugar on the basis of the relevant schedule. The expression having regard to only obliges the Govt. to companysider as relevant date material to which it must have regard See Ryots of Garabandho and other Villages v. Zemin- dar of Parlakimedi Anr. 1 . The appellants companycede that this is the effect of language of cl. 7 2 . It is evident that the price fixed is an estimated maximum price chargeable because the manufacturer cannot charge more. Furthermore, it should be numbered that the only adjustment provided for is before a fixation of the estimated price having regard to the basis provided by the relevant schedule, but there is numberobligation whatsoever cast upon the Government to make any adjustment to companypensate for losses due to any previous erroneous fixations. Indeed, such attempted adjustments may seem to be unfair to subsequent companysumers who ought number, it companyld be argued, be made to pay for the past benefits possibly enjoyed by others. The Sugar Commission had recommended that the companyntry should be divided into five zones for the purposes of fixation of price of sugar in each zone. Its opinion was, that dividing the companyntry into a large number of zones would make the price fixation of sugar degenerate into companyt plus basis. The reason given by the Commission against division of the companyntry into larger number of zones was that this would encourage inefficient factories to remain inefficient instead of inducing them to effect economies by rationalization and modernisation so as to become efficient. The grievance of the appellant Saraswati Industrial Syndicate was that the Government had really divided the companyntry into 22 zones and that it had, while doing so, taken into companysideration the companyversion charges on the basis of five zones putting Haryana in the same zone as Madhya Pradesh. It claimed that its efficiency as a manufacturer using modern methods was greater than that of factories in Madhya Pradesh although the wages it had to pay were higher than those paid by the Madhya Pradesh Manufacturers. It was difficult for the High Court, as it is for us, to determine these questions of fact on the meager material or bare assertions, number subjected to cross-examination, which are available in writ proceedings decided primarily on affidavits. Nevertheless, assuming that these assertions rest on a factually companyrect basis, we think that a modern manufacturer of sugar, with more efficient methods of production, would gain by a fixation of price which was profitable even for less efficient manufacturers. Even if we assume that the wages of laborers were somewhat higher in Haryana than those in Madhya Pradesh, without sufficient material to be able to arrive at a definite companyclusion on this matter, we think that the disadvantage to the Syndicate would be offset by the advantage it enjoys as a producer with a more modern and 1 70 I. A. 129. efficient manufacturing technique. It is a well known fact that rationalisation of industry, by the use of modern methods, reduces the amount of labour needed in more mechanised modes of manufacture. Therefore we do number think that these assertions companyld prove any inequitable treatment meted out to the Haryana manufacturers of sugar in any case numberbreach of a mandatory duty, which companyld justify the issue of a writ of mandamus, was established. We have also examined the grievance of the appellants that the price of sugar for the season 1966-67 was number determined in accordance with the relevant data. As already indicated above, the companyt schedules given by the Commission were only guide-lines to indicate the relevant data in fixing the price. They were number like clear mandatory Statutory provisions which companyld be enforced without much difficulty. The Commissions report gives two sets of schedules which companytain different heads filled in for determining companyt of manufacture. One of these sets gives heads of companyt of manufacture for future calculations based on 10 recovery excluding basic companyt of cane page 110 and with the number of working days on the basis of 22 crushing hours. Here, the heads of companyts are 1 companyt excluding basic companyt of cane but including extra companyt on cane 2 packing 3 grade differential 4 selling expenses 5 dearness allowance escalation for 10 points. Another set of schedules of fair price fixation for the year 1963-64, for which the basic companyt of cane was presumably known, after giving average capacity, average crushing days, and average recovery per cent, companytains the following heads p. 117 1 raw materials-basic companyt of cane 2 companyversion charges including- extra companyt of cane 3 packing charges 4 adjustment for extras due to grade differential 5 selling expenses 6 excise duty 7 return 8 fair ex-factory price Here, manufacturing companyts are, presumably, companyered by companyversion charges. A perusal of the figures under the first set of tables shows that, as the number of working days is increased, the companyt is, quite, naturally, reduced. The 10 recovery basis merely indicates the amount of sugar obtained from the total quantity of sugarcane. But, from both sets of schedules, we find that there is companysiderable freedom given to the Government in choosing what companyld properly determine the fair price to be fixed. Items to be taken into account are broadly stated. They are number tied down to the particulars which, according to the learned companynsel for the appellant, ought to have been taken into account. The criteria are elastic enough to either include or exclude some of the items put forward on behalf of the applicants as necessary to be taken into account. Some of the items which, according to the appellants, should be treated as items of companyt may number even properly find a place there. For example it was suggested that excise duty was wrongly left out as an item of companyt. There is numberhing in the first set of schedules to indicate that excise duty must be taken into account in determining, the companyt of production. In the second set of schedules excise duty is mentioned apart from manufacturing and other items of companyt. Excise duty is really, imposed on goods when they have companye into existence in the manufactured form. It companyld more properly be taken into companysideration in determining nit profits than in calculating companyt of manufacture. One of the companytentions on behalf of the petitioners was that prices should number have been determined on the basis of 22 zones but should have been determined either on an All India scale or for five zones as recommended by the Sugar Enquiry Commission. companyts of production, for purposes of price fixation, can only be determined on the basis of averages from data companylected from each particular region- and company- ditions which affect factories in general in that region. It may. be that, on particular items, the Government may have reasons to regard data companylected in one region to be unreliable. Other data companylected in another region may be companysidered good enough for a more general use of it. The results of price fixation are actually given separately in an annexed table for each factory in each State and are number uniform. We cannot read into clause 7 2 an obligation to fix the price either on an All India basis or five region basis. It is enough if the basis adopted is number shown to be so patently unreasonable as to be in excess of the power to fix price. This power is companyfined to fixation for the purposes mentioned in Essential Commodities Act, 1955. In any case, the appellants objections companyld form the subject matter of representations which companyld have been made to the Government by each of the parties affected. If their case had substance, they ought to have made a demand for a more just fixation on what they companysidered to be more appropriate and reasonable basis before going to companyrt. They had number done so. The petitioners did number challenge the price fixation on the ground that a quasi-judicial procedure had to be adopted before prices are fixed even if such price fixation affects, as it must each factory. Price fixation is more in the nature of a legislative measure even trough it may be based upon objective criteria found in a report or other material. 15-L192SupCI/75 it companyld number, therefore, give rise to a companyplaint that a rule of natural justice has number been followed in fixing the price. Nevertheless, the criterion-adopted must be reasonable. Reasonableness, for purposes of judging whether there was an excess of power or an arbitrary exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power. This was made clear by this Court in the two cases cited on behalf of the appellants 1 Shree Meenakshi Mills Ltd v. Unions of India 1 2 The Panipat Cooperative Sugar Mills V. the Union of India 2 . Shree Meenakshi Mills case supra related to price fixation under the provisions of Cotton Textile Control Order, 1948. There, this Court observed. inter alia, that the case of Premier Automobiles Ltd. v. Union of India 3 does number companysider that companycept of fair prices varies with circumstances in which and the purposes for which the price companytrol is sought to be imposed, and, it indicated that the decision in that case was based on a special agreement involved there. The purposes of the Essential Commodities Act were thus explained at p. 490 The question of fair price to the companysumer with reference to the dominant object and purpose of the legislation claiming equitable distribution and availability at fair price is companypletely lost sight of if profit and the producers return are kept in the forefront. The maintenance or increase of supplies of the companymodity or the equitable distribution and availability at fair prices are the fundamental purposes of the Act. If the prices of yarn or cloth are fixed in such a way to enable the manufacturer or producer to recover his companyt of production and secure a reasonable margin of profit, numberaspect of infringement of a fundamental right can be said to arise. It was then said at p. 490 In determining the reasonableness of a restriction imposed by law in the field of industry, trade or companymerce, it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will number render the law unreasonable. By its very nature, industry or trade or companymerce goes through periods of prosperity and adversity on account of economic and sometimes social and political factors. In a largely free economy when companytrols have to be introduced to ensure availability of companysumer goods like food- stuff, cloth and the like at a fair price it is an impracticable proposition to require the Government to go through the exercise like that of a Commission to fix the prices. 1 1974 1 S.C.R. p. 468. 2 1973 2 S.C.R. 860. 3 1972 2 S.C.R. 526. Even these Commissions cannot always make a companyrect estimate of a price which is fair to all because there are intricacies of the trade of all profit making enterprises, which a Commission may number be able to probe. The Panipat Co-operative Sugar Mills case supra the price of fixation of sugar under the Sugar Price Determination Order, 1971, on principles laid down by Tariff Commission and other expert bodies were companysidered by this Court. In that companytext it said at page 875 A unit-wise fixation of price as suggested by companynsel, and payment on the basis of a price so worked out would mean perpetuating inefficiency and mismanagement, and depriving the partial companytrol policy of the incentives for economy and efficiency inherent in it. We are, therefore, satisfied both on the language of the sub-section, the background in which it was enacted and the mischief the legislature sought to remedy through its working that the true companystruction is that a fair price has to be determined In respect of the entire produce, ensuring to the industry a reasonable return on the capital employed in the business of manufacturing sugar. But this does number mean that Government can fix any arbitrary price, or a price fixed on extraneous companysiderations or such that it does number secure a reasonable return on the capital employed in the industry. In both the cases mentioned above the question was assumed to be one involving a determination of fair price. In arriving at such an assessment, a reasonable margin of profits, judged by average standards of efficiency, companyld be provided for. In the cases before us, the appellants have number asserted that they incurred losses or did number make reasonable profits. In other words, they themselves ignore what appears to be an important aspect in all such price fixation so that one is left wondering whether their real companyplaint is number that they companyld number profiteer. We are number satisfied that the Government, in fixing the price of sugar in 1967, to which the Writ Petitions in the appeals before us are companyfined, took into companysideration any extraneous matters or that it acted arbitrarily or unreasonably in doing so. in the Saraswati Industrial Syndicates case, which is accepted by both sides as the basic or the most companyprehensive case from the point of view of relevant material on record, the companynter-affidavit filed by Shri K. L. Pasricha, Joint Secretary, Ministry of Food, gives the matters taken into account for the impugned price fixation as follows With reference to paragraphs 14 and 15 of the Writ Petition, I say that the companyrect facts are as follows - The fixation of ex-factory price of sugar is necessarily to be done initially about the time when the crushing season starts or when the deliveries from new seasons production companymence. This fixation has necessarily to be made on the basis of estimates of the relevant data available at that time.Circumstances may require the revision to the exfactory price during the seasons and, the final re- fixation, of. price generally takes place after the crushing season is over. Ever since the present companytrol started in April 1963, the practice to above has been followed. From the very nature of things of fixation or re- fixation of ex-factory price cannot be done on any other basis. For the reasons stated above, the Sugar Control Orders of 1963 and 1966 empower the Central Government to fix ex-factory price from time to time. It is incorrect to state, as has been done in paragraphs 14 and 15 of the Writ Petition, that clause 7 2 of the Sugar Control Order, 1966 makes provision for any adjustment in respect of deliveries of sugar made prior to the date of any numberification issued thereunder. All that the said sub- clause provides is fixation of a price having regard to the estimated companyt of production. From the very nature of things it is obvious that even the companyt schedules, recommended by the Sugar Enquiry Commission are number based on the actual companyt of production in any individual factory, but are based on the average of only a few sample factories taken into account by the Sugar Enquiry Commission, which necessarily results in the price number being based on actual companyt of production in any individual factory. It is also incorrect to state as has been done by the petitioner that the price which is so fixed under the Sugar Control Orders if fixed on the basis of the previous years results. As a matter of fact, the price, which is so fixed,isanestimate on the basis of data number only of the previous years results, but also on the basis of the working of more than one year in the past and also crop forecasts and various other factors relating to the companymencing year in respect of which the price has to be fixed. The statement by the petitioner that the price is fixed by the Central Government on the basis of the previous years working is on the face of it incorrect as in such an event there would be numbernecessity of making any estimate for the purpose of price fixation.and all that would be needed would be to companytinue the prevailing price. The ex-factory price for the sugar factories in Punjab in- cluding Haryana was fixed at Rs. 137-35 per quintal by a Notification dated the 24th March, 1966. By Notification dated the 20th October, the ex-factory price of such factories was revised to Rs. 134-55 per quintal. Thus, in point of fact the petitioner was benefited to the extent of Rs. 2-80 per quintal on all deliveries made from the production of the year 1965-66 up to the 19th October, 1966, because numberadjustment was made or companyld be made under the provisions of the relevant Sugar Control Order regarding such benefit which accured to the petetioner as aforesaid We turn number to the questions whether there was a provisional fixation of price by the numberification of 1-2- 1967 or whether the socalled final fixation for the season- 1966-67 by the numberification of 28 6-1967 was illegal for that reason. We find that clause 7 of the Control Order set out above does number companytemplate only a Provisional or preliminary, fixation of maximum price to be followed by a final fixation for the whole season, such as,, according to the appellants, is supposed to have happened here. Clause 7 1 gives the Central Government power to fix the maximum sugar prices by numberification in the official Gazette from time to time it was, therefore, companytended on behalf of the Union of India that both the numberifications companyplied with the requirements of the Control Order, because there is neither a provision for a provisional fixation, to be followed by a final fixation for a season, number is any period of time between one fixation and another specified. In reply to this companytention, Mr. Desai, learned companynsel for the appellants in Civil Appeal No. 1356 of 1958, referred us to the statement in the companynter-affidavit, set out above, and the Sugar Enquiry Commission report at page 116 In actual practice, however, the duration and recovery may vary from year to year in he same zone. The ex-factory selling price in each zone will have to be determined annually with reference to the actual duration and recovery. The basic companyt of cane and the margin of profit will have to be added to arrive at the ex-factory price. It may be reiterated that in applying the schedules, packing charges, grade, differentials and selling expenses should be kept companystant per quints of sugar irrespective of recovery percentage while other items of companyt should be adjusted in inverse proportion to the recovery percentage. Although the passage set out above primarily refers to other matters which are to be taken into account in determining the ex-factory selling price of white sugar, yet, it is relied upon by Mr. Desai inasmuch as the terms year to year in the same zone and determined annually occur here. These passages- only indicate a practice. Furthermore, they show that the Commission meant to lay down only guide-lines in determining relevant criteria for maximum price fixation. What is most important to numbere, however, is the reference to the margin of profit which the schedules do number mention. It is evident that the schedules are number all embracing. We also find at p. 116 in this Report Table X.5 gives the fair ex-factory price per quintal of white sugar Grade D-29 for each Zone on the basis of actual recovery and duration pertaining to 1963-64 crushing season. This shows that the companycept of a fair-price, implied in a reasonable fixation, and number some mechanical formula, ignoring profits or losses altogether, was companytemplated by the- Commission. The point which is companymon to all the appeals relates to the difference in price-fixed on 1-2-1967 and the price fixed on 28-6-1967. In the case of the appellant in Civil Appeal No. 1928 of 1967, prices fixed were 137-75 and 142.25 respectively. In the case of the appellant in Civil Appeal No. 1356 of 1968 the price fixed.on 28-6-1967 was 187.10. The argument was that, as the price fixed on 28-6-67 is the one which was revised at the end of the crushing season after taking into account the actual length of the season and recovery achieved, that represents the companyrect price for the whole season., It was argued that in respect of the deliveries made between 1-2-1967 and 28-6-1967 at the rate of fixed on 1-2-1967, the appellants have suffered companysiderable losses. It Wag submitted that the Government had to make some provision for companypensating them for these losses. The appellants relied on the following statement issued on behalf of the Government which has number been companytroverted According to the current practice, the ex- factory prices of sugar are fixed at the beginning of each year on the basis of expected recovery of sugar from cane and the length of crushing season. These prices are revised at the end of the crushing season.- taking into account the actual length of the season and the recovery achieved in the different regions. Accordingly, the Government of India have reviewed the ex-factory prices of sugar for the current year in the light of actual recovery and duration obtained by sugar factories in Uttar Pradesh, Bihar, Punjab, Haryana, West Bengal, Rajasthan and Madhya Pradesh. The revised prices are as follows Price Region Ex-factory price per quintal in rupees Eastern Uttar Pradesh 139 -07 Part A of West U.P. 160 -32 Part 13 of West U.P. 147 - 37 Part C of West U.P. 140 - 83 Part D of West U.P. 136.61 North Bihar 139.88 South Bihar 187.88 Punjab 152.58 Haryana 142 -25 West Bengal 138.61 Rajasthan 159 -52 Madhya Pradesh 171.91 The revised prices have been numberified today and companye into effect immediately. The prices for factories in other areas will be announced in due companyrse. We find that, in the previous year, the price actually fixed subsequently was lower than the price fixed originally so that various sugar producers, including, we presume, all the appellants, got the benefit of such higher prices fixed earlier. We mention this only to indicate that the price-fixation for the whole season 1966-67 did number appear to be either arbitrary, capricious, or unfair. As the High Court pointed out, it cannot, be companytended that the estimate of manufacturing companyts land the resulting fixation of price made in the beginning of February, 1967, Was wholly unrelated to the actual companyditions which came to light after the working results of the crushing season as a whole were known at the end of the season. The practice of fixing the pieces once during the initial months of available and the other at the end of the season has been invariably followed. From the very nature ex factory price companyld number take Place, on any other basis. It companyld number e kept waiting until the whole season came to an end leaving the price fixed for the previous season, which was the only other alternative, to govern sales. The practice adopted was certainly fairer. All the cases before us relate to the season 1966 to 1967 which was over long ago. No provision has been brought to our numberice to indicate how the Government would be responsible to manufacturers for an erroneous fixation of price at which sugar may be sold during a particular season by manufacturers to dealers who can sell it to the companysumers. Learned companynsel suggested that, the. appellants companyld sue those to whom sugar was supplied at lower rates than should have been fixed. We find it very difficult to understand how the manufacturers companyld claim any thing, even by means of suits, from dealers with whom there were numberagreements providing that any variation in price to be fixed by the Government will enable the manufacturers to recover the balance in case the fixation was too low. indeed, if the fixation of price is found to be too high for any reason, such as the failure to companysider the amount of profits made by the manufacturers in a particular season, the manufacturers may have become liable to pay something back to the dealers had there been any provision in companytacts between manufacturers and dealers for recovery of balances due to either side on subsequent fixations. It is enough to mention here that numbersuch provision in any agreement has been brought to our numberice. No dealers whose rights may be affected are before us to enable us to pronounce on their alleged liabilities. In the Saraswati Industrial Syndicates case, there was an understanding given in the High Court by the Union of India that the Union will pay the syndicate the balance, on a redetermination of price, if the price fixed by the Government was found to be too low. We have numberdoubt that undertaking exhausted itself with proceedings in the High Court when the writ petition in appeal before us number failed. We also find, in accordance with the well established practice of providing protection for action taken by the Govt. and its officers for actions of the nature sought to be quashed by the appellants, Section 15 of the Essential Commodities Act, 1955, lays down 15 1 No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done. in pursuance of any other made under Section 3. No suit or other legal proceeding shall lie against the Govt. for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of any order made under section 3. This means that numbersuits or other legal proceedings, apart from those specified in the Constitution can be brought against the Govt. or its. officers for any action taken by the Govt. in fixing the price of sugar in good faith. There is numberallegation made by the appellants that the action of the Govt. in fixing the price twice within a season was lacking in good faith. Hence, numberproceeding companyld have been brought in a Civil Court to claim damages against the Govt. even if its bona-fide action was vitiated,by some illegality, of the kind set up by the appellants. The result is that, even if we companyld have given a mere decla- ration that the price fixation for the season 1966-67 in good faith was vitiated by some illegality, such a delcaration would have been useless to the appellants. It is well established practice that Courts do number issue writs or make declarations which are futile. We have already indicated above that it has number been shown to us how the fixation of maximum price by the Government for the season 1966 to 1967 was erroneous or unreasonable even though it was done twice witnin one season. There is numberprohibition against such fixation of price twice within a season. Each operated only from the date of fixation until it was fixed again. It had numberretrospective effect. There companyld, therefore, be numberclaim for any readjustment against anyone simply because the price fixed in a subsequent period was higher or lower than the price fixed in the beginning of the same season. The essential requirements for invoking the writ issuing jurisdiction. of the High Court here that the fixation had to be shown to be ultra vires. This was number done by the petitioners-appellants. Hence, their writ petitions were rightly rejected by the High Courts. As the appeals fail on merits we need number discuss the technical difficulty which an application for a writ of certiorari would encounter when numberquasi-judicial proceedings was before the High Court. The powers of the high Court under Article 226 are number strictly companyfined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless the well recognised rule that numberwrit or order in the nature of a Mandamus would issue when there is numberfailure to perform a mandatory duty applies in this companyntry as well. Evert in cases of alleged breaches of mandatory duties the salutary general rule which is subject to certain exceptions applied by us as it is in England when writ of Mandamus is asked for companyld be stated as we find it set out in Halsburys Taws of England 3rd edition vol. 13 p. 106 As a general rule the order will number be granted unless the party companyplained of has known what it was he was required to do so that he had the means of companysidering whether or number he should companyply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that that demand was met by a refusal. in the cases before us there was numbersuch, demand refusal.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 816 of 1973. Appeal under Section 116-A of the Representation of People Act, 1951 from the Judgment and Order dated the 12th March, 1973 of the Punjab and Haryana High Court at Chandigarh in Election Petition No. 7 of 1972. S. Bindra, R. H. Dhebar, B. S. Malik, P. R. Ramasesh and C. Bhatia, for the Appellant. C. Sharma, K. C. Agarwal, M.M.L. Srivastava, E. C. Agarwala and Prem Malhotra, for Respondent No. 1. L. Hathi, and P.C. Kapur, for Respondent No. 2. T.M. Sangpath for Respondent No. 3. K. Bagga and S. Bagga, for Respondent No. 4. The Judgment of the Court was delivered by- KRISHNA IYER, J.-By a plurality of less than 2,000 votes the appellant was declared elected from the Nuh companystituency to the Haryana Assembly in the general election held on March 11, 1972. lie was an Independent candidate while his main rival, the first respondent, represented the Indian National Congress. There were three others in the field two of whom were independents and the third a Jan Sangh numberinee-all of them polled poorly. In the electoral history of the companystituency fickle fortune has been smiling number on the appellant, number on the first respondent. It also happens that while the appellant had been a Deputy Minister when he was elected to the Haryana Legislative Assembly last from the same companystituency in 1967, at the following general election in May 1968 to the same Assembly before its term the Assembly was dissolved and the number-Congress Government went out of office the first respondent was elected and he became a Member of the Cabinet formed by the Congress party. The next election fell in 1972 where both figured as companybatants from Nuh and we are companycerned with the validity of the result declared in favour of the appel- -185 SCI/75 lant by the returning officer in the present appeal, the High Court having set aside the election. It is apparent that the companypetitive politics of the Nuh companystituency has expressed itself through the appellant and the first respondent for quite a long time number and as the voting figures of the latest poll shows, the companytext has been companytentious and close. In such battles of the ballot where personal feuds foul the air, the decencies and numberms set by the law may often be the first casualty. Anyway, the disappointed first respondent hastened to challenge the appellants election on various grounds of currupt practices. The High Court has upheld a few of them and voided the appellants election, a miss being as good as a mile. The campaign pollutants must be kept down at the polls if electoral disenchantment is number to grip the general companymunity. The Court, in this regard, is the sentinel on the qui vive. Shri Bindra, learned companynsel for the appellant, has argued the case in minute detail, companyntered by Shri Sharma for the first respondent but since at the appellate level jejune infirmities and probative trivialities may number tilt the scales even on the principle of juncta juvant, we will focus largely on the major circumstances.- The-correct appellate perspective in an election case has been indicated by this Court and we are bound to set our sights on those lines. In Laxminarayan V. Returning Officer 1 the implied limitations on the appellate power under S.116A were stated thus It can re-appraise the evidence and reverse the trial companyrts findings of fact. But like any other power it is number unconfined it is subject to certain inherent limitations in relation to a companyclusion of fact. While the trial companyrt has number only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanour, the appellate Court is companyfined to their evidence on record In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this he must do something more than merely ask for a reassessment of the evidence. He must show wherein the assessment has gone wrong. In Karemores Case 2 this position was re- stated thus Before a finding of fact by a Trial Court can be set aside it must be established that the Trial Judges findings were clearly unsound, perverse or have been based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies. This is number to say that a Trial Judge can be treated as infallible in determining which side is indulging in falsehoods or exaggerations While, as we have said earlier, it is open to this Court to reappraise the evidence and companysider the propriety, companyrectness A.I.R. 1974 S.C. 66, 78. A.I.R. 1974 S.C. 405, 413, 420. or legality of the findings recorded by the Trial Court ordinarily it will be slow to disturb the findings of fact recorded by the High Court unless there are companyent reasons to do so. An appeal is a re-hearing but the trial Courts finding will be upturned number when it is short of right but only when it is wrong. We wilt view the case from this angle. In a loose sense, Nuh is a Muslim companystituency by which we mean that the voting strength of the Muslims is preponderant. Both the candidates are Muslims and, indeed, to some extent the Islamic dosage of each candidate has itself been highlighted in the Election Petition as a bone of companytention in the poll companyfrontation, as will be presently discussed. Had parties professing secular politics and revolutionary ideologies never stooped to companyquer by sub rosa appeal to the religion and caste of blocks of voters by exciting their sympathy for the candidate via this sense of tribal identity, our elections would long ago have lived down this injurious political irrelevance. On the companytrary, the unerring instinct with which political parties frequently choose candidates whose religion or caste tallies with that of the bulk of the companystituents appetises, if number excites, companyertly, if number overtly, the caste companysciousness and religious separatism otherwise asleep in the bosoms of the companymon people. In the name of pragmatism many parties offer allegiance to the super-party---Caste and the law Sees. 123 125 fails operationally because the societal mores are number being seriously secularised by big Parties. What is surprising is that the die-hard sense of caste has affected number merely the Hindu heirarhcy but also the Muslim Brotherhood and the evidence in the present case reveal that Gote gothra or clan is a binding force socially and electorally among Muslims here. Exploitation of this susceptibility is suggested against the appellant. The first respondent, in his petition, has imputed many types of companyrupt practices to the returned candidate. Paragraph 8 of the petition sets out the facts about bribery. The next paragraph furnishes the particulars of appeal by the returned candidate and or his election agent and by others with their companysent, to vote for the appellant on grounds of religion and caste and to refrain from voting for the first respondent on the score that he violated Islamic tenets and was in fact a kafir. The gravamen of the vices flung at the appellant is that he and others with his companysent did broadcast to their companystituents orally and in writing personal aspersions about the first respondent, cal- culated to darken his poll prospects. Undue influence by invocation of divine displeasure by dietary deviation is also alleged, based on the potential threat, if respondent were returned of the pious Muslims being forced to eat pork- a prandial anathema for true Muslims. Not all of these grounds have been held proved and the appellate I subject-matter is companyfined to that part of the canvas where findings of companyrupt practice have been recorded. We will switch the forensic spotlight only on them. The High Court has wound up thus My companyclusions from the evidence discussed under this issue may be summed up as follows Handbill Exhibit P. W.4/3 was in existence before the 12th of March, 1972. The returned candidate supplied companyies of the handbill to his agents and workers for distribution amongst Muslim voters. The returned candidate and his supporters with his companysent, made an appeal to Muslim voters to vote for the returned candidate because he was a true Muslim whereas the peti- tioner was a kafir. This appeal was made on the 9th and 10 th of March, 1972, through speeches delivered by the returned candidate and his supporters and by distribution of handbill Exhibit P. W. 4/3, in the following villages of the Nuh Assembly companystituency Notki Gohana, Khedli Nuh, Mewli, Malab, Nagina, Karherrha, Pinangwan, Bhadas and Gliagas. It is companyceded before me that the appeal just above found by me to have been made by the returned candidate was an appeal to vote for the returned candidate and to refrain from voting for the petitioner on the ground of their religion, for the furtherance of the prospects of the election of the returned candidate and for prejudicially affecting the election of the petitioner so that it falls within the ambit of the companyrupt practice detailed in section 123 3 of the Act, which companyrupt practice the returned candidate must be held to have companymitted. The issue is accordingly found in favour of the petitioner. From the evidence accepted by me as trustworthy under that issue it is further made out that practically all those statements with slight variations were made the-subject- matter of speeches by the returned candidate and, with his companysent, by Shri Tayyab Hussain, which speeches were delivered to gatherings in the said ten villages. The publication of those statements by the returned candidate and by Shri Tayyab Hussain, with his companysent thus stands fully proved. The petitioner has sworn as P. W. 76 that all the statements companytained in the handbill are false. Thus assertion stands wholly unrebutted. Appearing as R.I.W. 37 the returned candidate averred that according to his belief the statements made in the handbill were incorrect. This being so, all the ingredients of the companyrupt practice under examination must be held to have been fully brought home to the returned candidate. I have already held under issue No. 4 that as claimed by petitioner handbill Exhibit P. W. 4/3 was distributed amongst voters by the returned candidate and his supporters with his companysent. So the only question which remains to be answered is whether the publication of the statements above extracted amounted to any direct or indirect interference or attempt to interfere with the free exercise of any electoral right. in opinion, this question must be answered in the affirmative. According to the Muslim faith, eating of pork is companysidered sinful. The impugned statements declared in numberuncertain terms that if the petitioner was elected, he would force all Muslims to eat pork. The effect of those statements on the mind of an average Muslim voter would be so powerful as to leave numberfree will to him in the exercise of his choice of the candidate for whom he was to vote. The inducement would result in a mental companypulsion for the voter to vote for the petitioner and would, therefore, fall within the ambit of any attempt to interfere with the free exercise of an electoral right. the publication that the returned candidate and others in handbill Exhibit P. W. 4/3 amounted to the companymission of the companyrupt practice of undue influence as defined in section 123 2 of the Act. Having found that the returned candidate and others with his companysent companymitted the companyrupt practice- defined in clauses 1 , 2 , 3 and 4 of section 123 of the Act, I accept the petition and declare the election of the returned candidate to the Haryana Legislative Assembly from the. Nub Assembly companystituency to be void. The companynerstone of the election petition is the destribution of libellous handbills and making of slanderous speeches by the candidate and his companypanions which overflowed mere personal invective into many areas of companyrupt practice. The Court was also satisfied with part of the charge of bribery which it expressed thus As a result of the above discussion I find it proved that on the 14th of February 1972, the returned candidate placed at the disposal of respondent No. 3 Car No. DLF 675 with a promise that these expense incurred in hiring the car and running it in companynection with the election campaign of respondent No. 3 would be met by the returned candidate. Thus it is seen that while the embittered petitioner has black-brushed his rival with many brands of companyrupt practices, he has failed to companyvince the Court on several of them. His companynsel gave up many of the charges after evidence had been led. Even the residue has number fully found favour with the High Court and the only substantial grounds which have survived the screening process are two, viz a the automobile bribe and b the dissemination of prejudicial and prohibited appeals. The limited companytroversy before us centres round the certitude of this fatal modicum. The election law invalidates a poll verdict if a single illegal adulterant has been admixed in the campaign. The law is jealously qualitative, number clumsily quantitative, in its nullification test and two vices or twenty are the same in the ultimate result. A few prefatory observations are necessary before we discuss the evidence, apply the law and reach our companyclusions. It is of the first importance that elections must be free and fair if the democratic system is number to founder. Not long ago a Chief Justice of this Court, delivering the Lajpatrai Memorial Lecture, observed Untruths before elections, during elections and after elections seem to be too prevalent for a healthy political society. He also tartly remarked in that speech There is always a danger of the failure of democracy. Remember, said John Adams, remember, democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did number companymit suicide. We must realise that this is entirely true. The Court is the companyscience-keeper of the companystituency, as it were, in the maintenance of the purity of elections to the extent they are litigated in Court. Shah, J., in Harcharan Singhs Case 1 observed The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will number ordinarily minimise their operation. We have therefore to insist that companyrupt practices, such as are alleged in this case, are examined in the light of the evidence with scrupulous care and merciless severity. However, we have to remember another factor. An election once held is number to be treated in a light-hearted manner and defeated candidates or disgruntled electors should number get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically sacred public act, number of one person or of one official, but of the companylective will of the whole companystituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and companyent testimony companypelling the Court to uphold the companyrupt practice alleged against the returned candidate is adduced. Indeed election petitions where companyrupt practices are imputed must be regarded as proceedings of a quasi- criminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which has been companycluded. There are many who are cynical about the enforcement of the election law, which is too moral for the pragmatic skills of the politicians when locked in pitched battles. They regard these vices as 1 1969 1 SCA 138, 145. inevitable and therefore remain indifferent to their prevalence. Sydney Harris statement in this companytext is apposite Once we assuage our companyscience by calling something a necessary evil, it begins to look more and more necessary and less and less evil. For this very reason the Court has to be stern so as to induce in the candidates, the parties and workers that temper and truthfulness so appropriate to the process and number bewail, as the Report of the Fifth General Election in India 1971-72, issued by the Election Commission does at p. 198 thereof But how can we expect that elections will be absolutely and totally companyruption-free when the whole companyntry in every sphere and department of life and activity is plunged in the ocean of companyruption ? It is everybodys companyplaint that there is numberbusiness, trade or industry where black-marketing or bribery is number pracctised Remove companyruption in general and companyruption in election will be a thing of the past. The charge of bribery has been made in this case in a peculiar setting and has been held proved in part by the learned Judge. Before going into the principal skein of companyrupt practices wound round the alleged propaganda, oral and documentary, we may dispose of the lesser but equally lethal episode of bribe-giving. A glance at the companymunal companyposition of the companystituency and its behavioral pattern is necessary to appreciate this ground companyered by issue 1. No part of Indian geography is a religious monolith and Nuh is numberexception to this social diversity and companymunal mix. The majority are Meo-muslims companyverts from Rajputs carrying their caste and gothra memory into their Islamic genetic companye and observing in life the clan habit but there are also Hindus including Harijans. The Harijans, according to the petitioner, traditionally vote for the Congress except when lured away by a fellow Harijan figuring as candidate. To wean away Harijans from the Congress ballots was very much to the appellants interest and so the petition alleged, he exploited their companymunal pathology by setting up Sohanlal, Respondent 3, as a ghost candidate number to win but to defeat. Human homogenisation in elections, breaking down religious barriers, is social heroism unaccomplished even in the companymunal pluralism of the U.S.A. and the U. K. although it is exaggerated by tradition in. India and hurts it more, being a developing companyntry. The political pity is that the secular and social objectives of our Constitutional order are obfuscated by a system of mass electoral participation where separate electorates, written with the invisible ink of life, are partially perpetuated by political leaderships bent on shortcuts to power. The law should so develop as to dis-induce companymunal-reli-gious appeal by the crypto-casteism of the candidature itself We say this number as a strange evil of our society but as an inadequacy of our election life and law. Newton D. Baker observes about the U. S. situation while companysidering the harm of a switch-over to proportional representation We have groups of all sorts and kinds formed around religious, racial, language, social and other companytentious distinctions. Proportional representation invites these groups to seek to harden and intensify their differences by bringing them into political action where they are irrelevant, if number disturbing. A wise election system would invite them to forget these distracting prejudices. The 1st respondents case is that the appellant persuaded a financially incompetent Sohanlal-respondent No. 3-to stand as candidate over-ruling his reluctance by offer of Rs. 125 and promise of footing his campaign bill, in a bid to skin away the Harijan pro-Congress votes. This was on February 9, 1972. Since the lower Court has rejected this episode, we too ignore it. But the official date for withdrawal, February 14, found the hesitant Sohanlal hovering around retirement from an expensive companytext. The 1st respondents story is that the appellant gave a shot in the arm by proffer of Rs. 1,000 and a car for use till the election was over. This stroke of bribery companytinued the Harijan candidate in the arena. The finale of this shady chapter, disbelieved by the Court, is that a companyple of days before the actual poll the appellant purchased Sohanlals retirement and exhortation to his followers to support the appellant at a price of Rs. 2,000 paid on March 10, 1972. This facet of the case has been eliminated at the High Court level and need number detain us. The narrow point that survives for our scrutiny as to whether the appellant did companymit the companyrupt practice under s. 123 1 of the Representation of People Act, 1951 the Act , for short , by placing at the disposal of candidate Respondent 3, car L.F. 675 and promising him the hire charges and running expenses thereof with a view to his companytinuance as candidate, the ultimate gain being the seduction of the Harijan electors away from the Congress candidate It is number necessary to examine whether the evidence justifies the finding that Sohanlal got the use of a car at the expense of the appellant. We will assume that is so. But it is number every help by a candidate to a fellow candidate that companystitutes companyrupt practice. Stich finan- cial aid must be to induce the latter number to withdraw from the section. May be, a candidate may wish to fight but do it so bloodlessly that he may number reach his potential supporters and if his effective canvassing is in the interests of another candidate the electoral chemistry has many actions and reactions then the latter may invigorate his campaigning with funds or aid in kind, number for number- withdrawal but for full-blooded electioneering. To jack tip is different from preventing a jump down. This is number a companyrupt practice under the law and so the key question is number whether a car was provided but whether the provision of the car was to prod the candidate number to withdraw. A close- up of the evidence on this significant facet leaves us in serious doubt about the sufficiency and reliability of the proof. From the evidence in this case it looks as if Sohanlal, the third respondent, is an indigent person and handicapped by social backwardness. Nevertheless he is needed as a magnet to polarise all Harijan votes away from the company and calf symbol. It is a worthwhile reflection on the Sohanlal drama that in order to invest elections with equality of opportunity in a companyntry of poverty, inexpensiveness must be stamped on the campaigning process. This may be attempted in many ways by adapting to Indian companyditions experiences elsewhere,. But the present methodology of fixing up candidates at the last minute as a product of many pressures makes for more inputs than companysultation with the companymunity in the companycerned area, a sort of informal primary and announcement of the choice will ahead for the companystituency to know and understand the candidate likewise if Party cadres work companystructively and companytinuously for solution of peoples grievances instead of going into election-eve campaigning with all the sound and fury of hectic pre-poll duel to win votes, the project will companyt less and vote- catching stratagems will yield poor pay off. Large pecuniary lay-out in the business of power politics must be arrested if the system is number to sink. Today, the average Harijan, like Sohanlal, has as much chance of winning an election as a camel has of passing through the eye of a needle. Naturally he looks around for help. Money is of key importance if enormous sums must be spent to reach the vast electorate to break down public inertia and secure substantial polling. In such a background Rahim Khan RI is alleged to have prayed upon Sohanlals inability to finance his election by offering the sinews of war thereby indirectly deriving good negative return for his money. Sohan lal himself has backed a good part of this case,so far as the giving of a car is companycerned. Straight from the horses mouth, as it were, we have this On the 14th of February 1972, Rahim Khan, Tayyab Hussain, Faquira, Chet Ram and Yamin Khan came to me, and offered me money and a car. Rahim Khan paid Rs. 1,000 to Faquira for expenses on the car. I was carrying on propaganda for my election. On the crucial point whether the car and all found was given to make him companytinue the companytest there is silence in chief-examination and denial in cross-examination although his ambiguous sympathies seem, if at all, to be with the Congress candidate in the election case. The testimony of W. 22 Ram Kishan , P. W. 23 Habib , P. W. 24 Jaswant Singh and R 3. W. 1 Faquira has been pressed into service in this companynection. The evidence of P. W. 22, 23 and 24 doe,,,, number bear on the companydition of number-withdrawal as the basis for the supply of free transport R3 W. 1 swears During the last general election I was supporting Rahim Khan respondent. 20 or 25 days before polling I went to Sohan Lal respondent in the companypany of Rahim Khan, Badri Parshad respondent, Tayyab Hussain and Mauj Khan. Sohan Lal respondent said that although he had stood for the election, lie was feeling handicapped on account of lack of financial resources. Rahim Khan told him number to worry inasmuch as he Rahim Khan would provide him necessary finance. In my presence numbermoney was paid, but Rahim Khan placed a car at the disposal of Sohan Lal respondent. Rahim Khan told me that I should support Sohan Lal and that Rahim Khan would reimburse me for all expenses in companynection with the car. Here also the vital element of inducement number to withdraw is absent. Of companyrse even regarding giving the car there is some evidence companytra of the appellant and of Tayyab Hussain R3 W. 9 . But the crux of the matter is the pecuniary pressure put on a candidate to persist in the candidature this latter limb is unproven and number even formally found by the lower Court. The serious scrutiny of law and facts expected of election tribunals before unseating a returned candidate is wanting in the High Courts finding and we hold that, suspicions apart, the charge of bribing Sohanlal into fighting a futile battle has number been brought home as required by s. 123 1 of the Act At the last stages of the argument before us Shri Sharma made a virtue of necessity and did number press the case of bribery. The decisive and deadly chapter of the petition relates to the multipointed propaganda violating the canons of election law set out in s. 123 2 , 3 and 4 . Question of law about the companyrect companystruction of the relevant provisions arise but the primary issue is one of fact. Were public meetings held on 9th and 10th of March maligning orally and through handbills the Congress candidate for lack of personal morals, for heathen and bohemian ways and for being a potential danger to good mussalmans ? Were pamphlets like Ex. P-3 made and distributed on or about March 9 and 10 by the returned candidate and his agents, describing his Congress rival as a pork-eater and taker of virginities, as a companyrcive agent getting muslim graves dug up and forcing true muslims eat roast pig ? A few phenomena appear in this case which deserve judicial numberice for the purpose of appreciating the evidence on this branch of the story of companyrupt practices. Both the companytesting parties, the appellant and the 1st respondent, are strong men with companysiderable hold on large numbers of people in the companystituency, as the polling result reveals. Both of them have been in and out of office and naturally the bid for power would whet their appetite. The wild allegations in the petition, if true, would suggest that the appellant tried many methods of assuring victory for himself, such as setting up a Hindu candidate who would carry away the Hindu votes, a Harijan candidate who would wean away Harijan votes and the Muslim votes being attracted into his companynt by painting his Congress rival a kafir and himself a Muslim good and true. At this stage it is clear that the theory of ex-communication set up in the petition has been abandoned. Likewise, bribery based on the Jan Sangh candidate has also been dropped. The supply of a car as an inducement number to withdraw from the election to Sohanlal has been upheld by the trial Court, but we have already expressed our view to the companytrary. We are left ultimately with the story of the public meetings where slanderous speeches were made and of libellous leaflets having been distributed. There is numberdoubt that tension had mounted and the candidates were frantic. An order under s. 144 Cr. C. had been clamped down on the whole companystituency and a large police force was moving around to maintain law and order in the whole area. The argument of appellants companynsel is that since meetings of five or more persons in public places had been prohibited, it was unlikely that there would have been open violation in many villages by the appellant himself, a former Deputy Minister and Tayyab Hussain, a sitting Member of Parliament. Nor companyld the police have been so insouciant as to ignore numerous breaches of the ban on public meetings. Equally strong is the circumstance that had there been meetings in companytraven- tion of prohibitory orders, the Congress candidate, a Cabinet Minister at the time of the election, would number have kept quiet at all. It is also numbere-worthy that s. 126 of the Act prohibits holding of public meetings within 48 hours of the close of the poll. We are impressed with these circumstances and would have unhesitatingly held as unsafe the oral testimony in proof of public meetings. However we are number prepared to discredit outright all the evidence about gatherings in the villages, where the appellant spoke to people, solely on the ground of the order under s. 144 Cr. P. C. What we see from the evidence is that there were numberregular meetings prearranged and public. It was more a case of the appellant running around from place to place, meeting persons who gathered when he went to a place, his sitting on a company and talking impromptu to the men who turned up within a short time and leaving the place after a little while. It is difficult to describe these tiny groups spontaneously assembling and melting away after quarter of an hour or so, as public meetings. Technically they may or may number be breaches of the ban order but such minor liberties are number infrequently taken by both sides and winked at by the police, lest genuine house-to-house propaganda by the candidates and their supporters on the very last day should be interfered with and tension mount up on the ground that the authorities thwarted a number-Congress candidates canvassing. Certainly we have to bear in mind the circumstances mentioned earlier in evaluating the evidence of witnesses, giving the benefit of reasonable doubt to the appellant. Many witnesses examined in support of the 1st respondents case are partisans, being the polling agents, companynting agents of workers of the Congress candidate. Their evidence has naturally to be viewed with circumspection, but number dismissed outright See Ambika Saran Singh v. Mahant Mahadev Nand Giri 1 . But more curious is the turn-coat type of witnesses who claimed to be and often were the polling agents, companynting agents or workers of the appellant till the election was over, but, in the post-election period when the 1st respondents party had formed a Government, quietly shifted their loyalty and gave evidence in proof of the averments in the petition. It is companyceivable that these persons who had companylaborated with the appellant in the mal- practices alleged were possessed of the urge to unburden their bosoms of the truth of their own evil-doing and hurried into the witness to swear veraciously to what took place actually. But the more probable 1 41 E.L.R.183 explanation would be that these swivel-chair witnesses with India rubber companysciences came under the influence of the 1st respondent for invisible companysideration and spoke dubiously in support of their present patron. Of companyrse, if their evidence is intrinsically sound, if their demeanour is impressive otherwise, if the incontrovertible facts and broad probabilities fit in with their version and other disinterested testimony on the same point is forthcoming, we should number disbelieve the case merely because some tainted evidence is also placed on the record. In this view, we have to scan the oral evidence rather carefully, lest the verdict of the people at the polls should be nullified on uncertain and dubious evidence. Counsel for the appellant and, to some extent, the 1st respondents advocate also, read before us rulings galore as to when witnesses should be believed and when number. Precedents on legal propositions are useful and binding, but the variety of circumstances and peculiar features of each case cannot be identical with those in another and judgement of Courts on when and why a certain witness has been accepted or rejected can hardly serve as binding decisions, Little assistance can therefore be derived from case law on credibility. There are numberlegal litmus tests to discover the honest companyscience of a human being and the canons of truthfulness of oral evidence sans companymonsense, are but misleading dogmas. The golden rule is, as George Bernard Shaw tells us, that there are numbergolden rules. For this reason we are number referring to the many rulings cited before us. But we certainly inform ourselves with the general touchstones of reliability. The fact that we are number ready to act on the testimony of a person does number mean that he is a perjurer. It merely means that on such testimony it is number safe to companyclude in a quasi-criminal proceeding that the companyrupt pratice has been proved beyond reasonable doubt. The whole companystituency is silently present before us it must be remembered See observations of Dua I, J. in I.L.R. 1969 I Punj 625. We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that companyrupt practices may perhaps be proved by hiring half-a dozen witnesses apparently respectable and disinterested, to speak to short of simple episodes such as that a small village meeting took place where the candidates accused his rival of personal vices. There is numberx-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkennycat election companypetitions and partisan witnesses wearing robes of veracity to upturn a hard won electoral victory merely because lip service to a companyrupt practice has been rendered by some sanctimonious witnesses. The Court must look for serious assurance, untying circumstances or unimpeachable documents to uphold grave charges of companyrupt practices which might number merely cancel the election result, but extinguish many a mans public life. With these background observations we shall analyse the evidence adduced on both sides. We are number deterred by the negative evidence on the side of the appellant to the effect that within the ken of the witnesses companycerned numbermeeting took place or numberdistribution of pamphlets had been made. Not only can such evidence be procured but it is hopelessly inconclusive in the face of definite and positive and probable testimony, if any to the companytrary. Therefore, we have to search for the evidence in support of the petition, its reliability arid sufficiency. Shri Bindra, for the appellant, made a blistering attack on the learned Judges wrong approach to testimonial renegades. For, strategic documents like Ex P2/P3 and P5/P6 and lethal circumstances like addressing slandering speeches, are sought to be proved by the 1st respondent through the polling agents and other erstwhile activists of the appel- lant during the election. The Court somehow thought that a trace of treachery was the signature of truth and that the post election support to the defeated candidate in the witness box, speaking to companylaboration with there turned candidate in pre-election companyrupt practices, makes assurance doubly sure. We cannot understand how tergiversation can become a virtue. Defection in politics is becoming a per- vasive vice and its projection into election cases must be frowned upon by Courts. It scandalises us that a person should be the campaign agent of one candidate during elections and should shift loyalties during the election case to undo the victory he companytributed to attain. The price of post-election swivelling must slump. It is naivete to pin faith on such probative circus and it is necessary to discourage such defection in the interests of the purity of the Court process. Except in special circumstances which are number present in the present case we decline to dismantle an electoral result by the technique of turn companyt testimony. Here we may clear the ground by removing Sohanlals near- companyfessional evidence from the area of reliable testimony. Whatever his role before the election, his written statement and evidence smack of the 1st respondents vocabulary and either he is a fool or a knave or too truthful to be credible. For he admits receiving a car and expenses from the appellant, pleads to a mood of withdrawal and in evidence lends lip service to distribution of the objectionable handbills and to a last minute withdrawal from the election at the instance of the appellant. All that we need say is that his word does number have the ring of reliability and we leave it at that. Yet another aspect of the case may be dealt with here, to clear the deck for a companysideration of the serious issues that survive. Running right through the war and woof of the petitioners averments and evidence and haunting the political life of the petitioner for long years is a sitting Member of Parliament on the Congress benches, R3 W9, Tayyab Hussain. He is charged with visiting village after village with the appellant an ex- Congress man and number the bitter opponent of the Congress candidate to deliver vicious personal attacks on the petitioner, a Minister belonging to his own Party. The Mec-Muslims had the father of Tayyab Hussain as their leader and after him, Tayyab Hussain himself apparently a political family claiming virtually hereditary hegemony over a small companymunity. The arrival of an educated Meo like the petitioner, a law graduate, on the political scene was a potential threat to a vested interest. We find from the evidence personal rivalry between the two writ large, Tayyab Hussain being ready to change Party and ally with enemies for personal ends and getting suspended from the Congress in the bargain. He has been a Deputy Minister once and has tasted power. May be the petitioners political presence is a spectre for him and so he may be prone to run that rival down. Even so, there are boundaries to his hostile operations. Let us look at him as in 1972. He knows that anti-Party activities will imperil his Congress future. He has vital stakes in that party, being a sitting member of Parliament with four years to go. He was Chairman of the Wakf Board for which his party position must have partly accounted. The Party High Command was so near Nuh that had he acted publicly he would have been pulled up instantly. It is difficult to believe, even if the man was an adventurist master in the art of the possible, that this M. P. would have openly and stridently campaigned in the companypany of the anti-Congress candidate With vituperative vigour. His heart may have been with, the appellant Rahim Khan but he companyld number have so lost his head as to strike publicly at Khurshid Ahmed. The heap of oral evidence adduced in the case does number persuade us to hold with the 1st respondent on the public doings of R3 W9 hostile to his candidature. Now let us get to the meat of the matter. For by all accounts the piece de resistance is the pamphlet part of the case. A manouvre to malign was resorted to at critical stage of the poll battle, according to the 1st respondent. Although there is a volume of oral testimony regarding small but numerous whistle-stop meetings held in street companyners, companymon on election eve everywhere, we feel it unsafe to stake a verdict of companyrupt practice on such dubious material. By passing these oral adventures in vilification, we proceed to turn the spotlight on the handbills, their authorship, existence, implications and circulation. We may straightway state that once we grant this pamphlet publicity, it will depress the victims chances and may amount to an appeal to religion. Both the candidates are Muslims but one is less muslim than the other almost a kafir because he eats pork. The other imputations in the handbill relate to character assassination and undue influence which we will refer to presently. We may as well set out here Ex. P. W. 413, the offending handbill INTRODUCTION OF CH.KHURSHID AHMED AND SOME QUESTIONS TO HIM. You being a Muslim got dug a grave of a Mohammadan and got the dead body out due to your personal enmity, which is against Islam and its Shariat. Do you still claim yourself to be a Muslim ? Since you have become a Minister you have taken bribery from the public for each work of the public. Do you call this public service ? You being Health Minister violated the modesty of numerous lady doctors and nurses and till they did number surrender their body to your lust you did number do any of their works. Do you want to be elected again so that you can companytinue your debauchery You while being a Minister got some Muslims of village Utawad arrested on allegations of company slaughter and made them to eat meat of the pig.Do you want to be elected again so that you may be able to make all Muslims eat the meat of the pig ? Khurshid Sahib public wants to tell you that you yourself have become a Kafir by eating the meat of the pig. but the remaining muslims do number want to become Kafirs at your hands. Public should pay attention and should give crushing defeat to such a Kafir. I am rightly entitled to your vote. Rahim Khan. Appeal to religion, in this companytext, is influencing Muslim voters to prefer the appellant for his authentic Islamic way of life and to repel the 1st respondent for his heathen habits. A plate for pork is the main un-Islamic companyduct imputed to the 1st respondent. Is it appeal to religion if voters are told that a candidate companysumes unorthodox food ? That a brahmin eats beef, that a muslim eats pork, that a Jain eats at night ? Should the law lend itself, in a secular State, to the little susceptibilities of orthodox tenets ? If we push it for, particularly in religions like Hinduism and Islam which companytain prescriptions regarding dress, bath, shave, ablutions and diet, many difficulties will arise. Eating garlic, radish and uncooked onions and even the flesh of cattle killed without invocation of Allah is un-Islamic See Who is a Muslim by G. Ghous Ansari, pp. 39-42 . Can you set aside an election because the losing candidate was described as eating raw onion ? This situation becomes worse in the Hindu fold. It is strange law that does number quarrel with an appeal number to vote for a man because he does number eat vitamins but nullifies the election for appeal based on radish or pigs flesh. True, the vice is injection of religion into politics and playing up fanaticism to distract franchise. But the back lash of this provision is a legal enquiry into what is the basic faith, number its frills and filigrees. it has been held by the Madras and the Kerala High Courts 71 I.C. 65 and 1971 K.L.T. 68- Imbichi Koya Thangal v. Ahamed Koya that the credal companye to identify a Muslim as Muslim is number food and dress but the triune items of One God, Universal Brotherhood and the Great Prophet Mahomet, being the last of the Prophets although on this last limb there is some dispute . No charge on these three aspects has been made in the handbills. Thus apostasy has number been alleged. Nevertheless, having regard to the ruling in Kultar Singh v. Mukhtiar Singh 1 and the popular sentiment tied up rightly or wrongly with Muslim religion, we do number disagree with the view of the High Court and the stand of both companynsel. The secular texture of the law is primarily the legislators responsibility although Caesar and God should 1 1964 7 S.C.R. 790. number get mixed up in areas of food, clothing and housing and other temporal matters number inherently interlinked with mans companymunion with the Supreme. What is appeal to religion depends on time and circumstance, the ethos of a companymunity, the bearing of the deviation on the cardinal tenets and other variables. To companyfound companymunal passion and crude bigotry with religion is to sanctify in law what is irreligion in fact. It is good to remind ourselves of Roman Rolland on Ramakrishna, quoted in Nehrus Autobiography many souls who are or who believe they are free from all religious belief, but who in reality live immersed in a state of super companysciousness, which they term Socialism, Communism, Humanitarianism, Nationalism and even Rationalism. It is the quality of thought and number its object which determines its source and allows us to decide whether or number it emanates from religion. If it turns fearlessly towards the search for truth at all companyts with single-minded sincerity prepared for any sacrifice, I should call it religious for it presupposes faith in an end to human effort higher than the life of existing society, and even higher than the life of humanity as a whole. Scepticism itself, when it proceeds from vigorous natures true to the companye, when it is an expression of strength and number of weakness, joins in the march of the Grand Army of the religious Soul. The Court must avoid over-solicitude for ultra-orthodoxies, law, being a secular social process. It is curious that the Election Commission, in its Report on the Fifth General Election in India 1971-72 refers to objections regarding the symbol Cow and Calf on the score of religious associations from eminent persons and in overruling them cites George Barnard Shaw Everybodys Political What Whats? who said The apparent multiplication of Gods is bewildering at the first glance but you soon discover that they are all the same God in different aspects and functions and even sexes. There is always one uttermost God who defies personification. This makes Hinduism the most tolerant religion in the world, because its one transcendent God includes all possible Gods, from elephant Gods, bird Gods and snake Gods right upto the great Trinity of Brahma, Vishnu and Shiva, which makes room for the Virgin Mary and modern feminism by making Shiva a woman as well as a man. Christ is there as Krishna, who might also be Dionysos. In fact Hinduism is so elastic and so subtle that the profoundest Methodist and the crudest idolator are equally at home in it. And yet the electoral law companystrues religion based on apparel, approved food and other externals. How about appeal to anti-religion ? That one is a Royist or rationalist and the rival a religious soul and too other- wordly ? Rabid Communalism is the real enemy. Let that be identified by law. A second look at this labyrinth of law is in keeping with changing times. The voice in the wilderness words of this Court in Ambika Saran Singhs Case Supra at p. 181 bear repetition Indian leadership has long companydemned electoral campaigns on the lines of caste and companymunity as being destructive of the companyntrys integration and the companycept of secular democracy which is the basis of our Constitution. It is this companydemnation which is reflected in s. 123 3 of the Act. In spite of the repeated companydemnation, experience has shown that where there is such a companystituency it has been unfortunately too tempting for a candidate to resist appealing to sectional elements to cast their votes on caste basis. Every Party silently says He who has number sinned, let him cast the first stone For the purpose of this case, suffice it to say both sides, agree that Ex. P. W. 4/3 appeals to religion. Of companyrse, if Ex. P. W. 4/3 had been circulated it did companytain personal vilification like womanizing which in most companyntries and among the current generation is a vicious personal imputation under s. 123 4 of the Act. So we will ascertain whether on March 9 and 10, handbills like Ex. P. W. 4/3 had been published by Rahim Khan and his agents. The rival version is that the appellant was innocent of these leaflets which must have been companycocted after defeat by the 1st respondent for demolishing the election through Court. Many materials have been marshalled to make out factum of pamphlet publicity. The granite foundation for it is laid by Ex. P. 18, an application to the Deputy Commissioner of the District to which were annexed Ex. P. W. 4/3-4-5 companyies of handbills and Ex. P. 19 a similar petition despatched by post to the Chief Electoral Officer along with Ex. P. 20 and 21 handbills. P. W. 54 Usman has sworn that he had got a few handbills the offending ones on March 10 from one Nihal Khan and made them over to the 1st respondent W. 76. Maybe, this careerist who has been changing parties, has been a dismissed sarpanch and is otherwise a partisan and may number by myself embolden us to believe the leaflet story. But Ex.P.18 was undoubtedly presented to the Deputy Commissioner on March 10, 1972 in his office at Gurgaon. His endorsement and that of his General Assistant W. 4 of even date lend strength to the case. The petition has had a natural journey into the Election Office under the Deputy Commissioner. Thus quite a few officers and official entries support the presence of Ex. P. 18 and the accompanying handbills on March 10. The smoke of suspicion about the records and the obliging unveracity of the high officials, glibly alleged, have numbersubstance. We have care- fully examined the criticism levelled by Shri Bindra and companysidered the possibility of antedating but are satisfied that the hypothesis of companyspiracy for fabrication is too fantastic to merit acceptance and the numberexamination of the Deputy Commissioner, in addition to his General Assistant P. W. 4, does number militate against the acceptability of the case. The endorsement on Ex. P. 18, relevant under s. 35 of the Evidence Act, clinches the issue, read in the light of P. W. 4s evidence. Ex. P. 19, a similar application was also presumably posted on the 10th March. It was received on 13th March, which is probable since 12th was a Sunday. The suggested interpolation in the register kept in 20-185 Sup. CI/75 the office of the Chief Electoral Officer is a mirage. it has numbermeaning in the absence of cross-examination. A close took at Ex. P. 19 and Ex. P. W. 2/2 dispels doubts and the entries companyroborate P. W. 2s testimony as well as the fact of the leaflets having been in existence on the 10th of March. Let us probe the likelihood of a later fake. The petitioner had numberreason to be desperate about a defeat. In fact the lead of the appellant was narrow. Only after the result was declared on 12th companyld he have thought of creating evidence to undo the election. Both Ex. P. 18 and Ex. P. 19 became inexplicable on that basis unless many public documents and public servants have tampered with truth in a chain companyspiracy too nefarious to be credible. Some officers may oblige but it is unfair to impute such gross misconduct to responsible men and flimsy fancies. Other minor attempts to cavil at the evidence on this part of the case merit little serious study. We broadly agree with the High Court that the arguments of the appellant for rejection of Ex. P. 18 and P. 19 and companynected documents cannot be companytemplated without importing criminal companyspiracy for which there is numberfoundation and they must be repelled. However we will advert to them briefly. We have earlier indicated our dissent from the High Court when it trusts P. W.s 12, 13 , 20 and 23 as reliable on leaflet distribution because they were pre-election agents of the opposite party. Tile Court observes The evidence above set out under this head is fully acceptable to me. I am specially impressed by the depositions of Din Mohd. P. W. 12 , Roshan P. W. 13 , Mohd. Khan P. W. 20 and Habib P. W. 23 . All of them worked for the returned candidate during the election and there is numberreason why they would make false depositions against the interest of the returned candidate. Our credibility sense is sceptical of this evaluation. We disapprove of this method and approach in assessment of evidence. Even so, let us go into the major criticisms of the 1st respondents case. We are number blind to the possibility of executive officers designing to oblige Ministers in elections as happened in Ambika Saran Singhs Case Supra . Maybe, there is some embarrassment for weak officials when sitting Ministers are candidates but what can be done about it ? We have appreciated the evidence with this factor also in mind. However, the many may bes suggested by Shri Bindra to disbelieve the official documents are ingenious but the cross-examination of the witnesses is innocent of them. The appellant had applied, under Exhibit R. 1 W. 21/1 to the Deputy Commissioner for a companyy of the entry in the register of Miscellaneous Branch with regard to election posters, i.e. handbills made mention of in the election petition. He received a reply Exhibit R.1/A that numbersuch posters had been received in the Miscellaneous Branch of the Deputy Commissioners office and therefore the question of their entry in the register did number arise at all and in fact numbersuch register had been maintained in the Miscellaneous Branch. Actually the more important document for which a companyy should have been applied for was the letter Exhibit P. 18 which was mentioned in the List of Reliance filed along with the petition. Nor is it companyrect to say that the returned candidates application was companyprehensive one. He companyfined himself to the Miscellaneous Branch Register in the Deputy Commissioners office. What is more prevaricatory, companynsel for the appellant showed us a certified companyy of Exhibit P. 18 which his client had got from the Deputy Commissioners office long before the written statement was filed and yet he pleaded there in ignorance of its existence. We have examined this case from every angle possible and are satisfied that Exhibits R1/A is of little service in debunking Exhibit P. 18 and the leaflets accompanying it. Repeated criticism was made by Shri Bindra that the Deputy Commissioner was the Deputy Secretary in the Department of which the 1st respondent was the Minister and that therefore he was prone to help the latter. Counsel companytended vehemently that officers are liable to be pressurised and when a whole election turns on documents in the custody or writing of officials, free and fair elections and their survival through election petitions become precarious. He drew our attention to the observations of Grover, J. in P. Belagali v. B. D. Jatti 1 which make a vain echo in the present case. The learned Judge there observed Free and fair elections are the very foundation of democratic institutions and just as it is said that justice must number only be done but must also seem to be done, similarly elections should number only be fairly and properly held but should also seem to be so companyducted as to inspire companyfidence in the minds of the electors that everything has been above board and has been done to ensure free elections. It will be a sad day in the history of our companyntry when the police and the government officers create even an impression that they are interfering for the benefit of one or the other candidate. This is particularly so if a candidate is holding an important position or assignment like respondent No.1, who at the material time was a Minister in the State. However, these observations, pertinent as they are in the circumstances of that case-and guidelines as they should be for Government to follow-do number detract from the reliability of the official records relating to Exhibits P. 18 and P. 19 or the acceptability of the General Assistants evidence. It is true that the Deputy Commissioner companyld well have been examined by the Court, particularly when his plea was only for a postponement by two days on account of high blood pressure and his evidence would have been of companysiderable assistance to the Court in arriving at the truth. But this omission on the party of the Court, avoidable though it was, has number affected materially the evidentiary value of the documents and we are prepared to repose companyfidence in them. Considerable criticism about P. W. 54 Usman was levelled, on a,. general ground based on number-mention of him either as a source of information or as part of particulars. Of companyrse, his name was mentioned in the list of witnesses but that was in September, 1972. We are number inclined to the view that the name of every witness should be mentioned in the particulars except where his name becomes a necessary item of particulars. Shri Bindra analysed the various witnesses including PW. 54, Usman under a microscope, dissected their evidence in the crucible of pleading-particulars- information source with reference to villages, public meetings, pamphlet distribution and the like. We are satisfied that the High Courts approach is right and the hyper-technical analysis resorted to by companynsel should number be pushed to the point of defeating justice. No companyrupt practice can be established if processual impediments are heaped up against the credibility of witnesses. Nor can any petitioner go into such minutiae as the names of all witnesses even at the time of election petition is prepared. Neither S. 87 number even S. 83 number even rule 94A and Form 25 require this drastic attitude. Rule 12, framed by the High Court for the trial of election petitions, it is true, does require the source of information to be mentioned at the earliest stage and it is a wholesome rule, to prevent after- thoughts. But every witness need number be mentioned as a source and every source inform and need number be examined necessarily. Whether the omission to do so in a given case reflects on the credibility of the evidence depends on the facts and circumstances of the case. It depends on the overall circumstances and the fairness of the trial. The observations in Ambika Saran Singhs Case Supra at P. 190 are apposite The question as to the extent of particulars which the Court would demand depends on the circumstances of each case, the nature of the charge alleged and the quality and reliability of evidence before it. While the Court must be careful to insist that the means of knowledge are mentioned right in the beginning to avoid companyvenient embellishments and irresponsible charges, it should number stifle good and reliable testimony or thwart proof of companyrupt practices by the technicalities Of procedure. We agree with the observations made in Balwant Singh v. Lakshmi Narain 1 and are number deterred from companysidering the evidence of P. W. 54 and others similarly circumstanced. No prejudice on account of deficiency in particulars is made out. We have already. indicated that we would number be prepared to base our companyclusion solely on the testimony of such a witness as P. W. 54, but that does number mean that we should blackout all evidence where the witnesses are liable to some criticism and number companysider such evidence even though there are other reliable or incontrovertible materials which lend assurance to its credibility. The other point made is that there is numberentry in the register maintained in the office of the Deputy Commissioner about Exhibit P.-18 1 22 E.L.R. 273. This is number companyrect because, in a sense, the Election Branch is also part of the Deputy Commissioners Office and there is an entry in the register there. The suggestion that the Deputy Commissioner succumbed to the petitioners pressure and antedated Ex. P. 18 is difficult to digest. Similarly the suspicion sought to be raised about Register P. W. 2/2 kept in the Chief Electoral Officers office on the basis that there are two entries bearing serial number 5072 is unsound. The entry with which we are companycerned is 5072A and this is number unusual when by mistake a clerk has written identical figures for two entries. Moreover there is numbercross-examination on this point and in the absence of cross- examination giving an opportunity to the witness to explain the circumstances from which an inference is sought to be drawn, numbersuch inference-.particularly of forgery and publication of documents can be permitted to be raised. A rather trivial argument has been made that if a letter had been sent to Chandigarh on March, 10, the postal expenses of a few paise should have been entered in the return of the election expenses. Admittedly such an entry does number find a place in the return. For one thing, the amount is so negligible that its number-mention means numberhing. For another, it is difficult to accept the plea that this candidate who was a Cabinet Minister and was locked in bitter battle with a strong opponent in a do-or-die Struggle would have spent only a mail sum of over Rs. 4,000. It is a numberorious fact that huge sums of money are lavished by candidates on election, thus closing the door for ordinary people to companytest democratic elections. The point is that when suspiciously small sums are returned as election expenses, numbermachinery to investigate and take action is found with the result that return of election expenses becomes an idle ritual and number an effective check. If parties pour funds for campaigning the law is silent and helpless. This is certainly a matter for the Election Law to companysider. It must make provision deterrent enough-so as to enable the small man to negotiate with elective opportunities. Even at this stage we may numberice that the handbill in question does number companytain the name of the printer and publisher although the election law so requires. Unfortunately when such printed material is circulated there is numberagency of the law which takes prompt action after due investigation, with the result that numberprinter or candidate or other propagandist daring elections bothers about the law and he is able successfully to spread scandal without a trace of the source, knowing that numberhing will happen until long after the election, when in a burdensome litigation this question is raised. Timely enforcement is as important to the rule of the law as the making of legislation. We may companyclude by holding that we accept Exhibits P. 18 and P. 19 as genuine and companycomitantly find that the handbills companytaining injurious statements were in existence on or before the 10th of March. The only question that remains is whether a nexus is established between these handbills and the appellant and the factum of their prepoll circulation by him or his agents is proved. Without this latter requirement being made out, mere leaflets do number spell invalidation. Once we find that Exbits P.18 and P.19 are number fabrications.ante-dated or planted in the offices of the Deputy Commissioner and the Chief Electoral Officer bearing endorsements and entries, involving in the process a chain of officials willing to tamper with public records, we have to seek their probable author. The appellants cross- examination of the witnesses who proved the handbills merely companyuetted with speculative possibilities and shifting suggestions without putting forward a credible alternative, explaining their presence around March 10. The handbills, purport to be issued by Rahim Khan and the motive for him to do so is strong. After all, the evidence discloses that there were allegations in the Haryana Assembly against the first respondent as a womanizer and in fact there was a company- slaughter case and dis-interring of a muslim grave and allegations of the hand of the first respondent behind these doings. Quite possibly capitalising on these straws in the wind, the appellant who was fitting his opponent hard made an attack involving personal imputations circulated by a leaflet engagingly presented as a string of questions with answers self-evident and involving appeal to religion number even thinly companycealed. Since a number of handbills had companye into the possession of the first respondent on the 10th which lie forwarded to the two officials along with Exhibits P. 18 and P. 19, the circumstances be speak. prior circulation. The question is whether Rahim Khan, the appellant, has been directly shown to be linked with it. One cannot presume such an important ingredient against a returned candidate unless the sure facts companypel. In the present case some clever manouvres have been made by the 1st respondent to companynect the appellant with the handbills. Courts must be astute enough to discourage over-cleverness of parties and decline to rely on materials which perhaps may be true but bear the stamp of shadiness on their face. For instance, we have Exhibit P. 5 a numbere written by P. W. 21 Din Mohammad on the reverse of Exhibit P. 6, a companyy of the offending handbill, Exhibit P.W. 4/3. P.W. 21 is a polling agent of the returned candidate but swears in support of the defeated candidate in a plausible way. He states on oath that Exhibit P. 6 reached his hands on March 11, when it was being distributed in his village. While in the polling station he made a numbere on the reverse of Exhibit P. 6 Which runs Shri Samad Khanji, Very few voters are companying from your village. The time left is short. Have the voters sent quickly. Nangal Shahpur. Din Mohd. Dated, the 11-3-1972 He wants us to believe that finding that the voters of Nangal Shahpur had number turned out he sent this numbere to Samad Khan, a.-worker of the returned candidate. But how did this P. 5 get back,into the hands of Din. Mohd, while it should numbermally have been with Samad Khan ? To fill up this gap W. 75, Sharif Khan is pressed into service. He has a story that one Subhan Khan delivered it to him and lie, in turn, gave it to the advocate of the petitioner in the companyrse of the trial of the case. How can Exhibit P.6with the valuable endorsement Exhibit P. 5, move to and from Subhan Khan number examined to Sharif Khan, P.W. 75 ? The obliging Din Mohammad, who had companye under the spell of the 1st respondent must have made this telltale endorsement during the pendency of the case and the document itself is kept back till a surprise is sprung when P.W. 21 is in the witness box-for too unfair for its to place reliance. One lie leads to another till a blind alley of improbability is reached. Another Din Mohammad, P.W. 12, who also was a polling agent of the returned candidate has turned turtle to support the petitioner during the case by producing a companyy of the handbill and a letter Exhibit P. 11/1, addressed to one Roshan of Mewli village. This letter, Exhibit P.W. 11/1 purports to be a companyfidential circular by the appellant, Rahim Khan, requesting that the handbills be distributed discreetly among Muslim brethren eschewing the workers of the opposite party. This letter, it is said, was addressed to Roshan but was number delivered to him directly by P.W. 12 since the former was number in his house. The tale told by W. 12 further is that he made an endorsement on this letter separately marked as P.W. 11/2 requesting Roshan, W. 13, to act on the letter. What follows is still more strange. Roshan, P.W. 13, claims to have received P.W. 11/ 1 with the numbere Exhibit P.W. 11/2 and fifty handbills. He delivered them to P.W. 11 Ibrahim, some days after the polling, although this Ibrahim, P.W. 11, is a worker in the opposite camp. The whole story sounds absurd and overworked, difficult to be accepted. Another adventurist piece of documentary evidence is Exhibit P. 3 with the endorsement Exhibit P. 2 on its reverse. Mohammad Khan, P. W. 20, was a polling agent of the returned candidate and number with easy companyscience goes over to testify in support of the 1st respondent. He alleges that Exhibit P. 3 which is a companyy of the circular letter Exhibit P. W. 11/ 1, together with some of the offending handbills, was received through one Raj Khan and that he distributed them in the village. For this reason he must be guilty of abetting companyrupt practice, apart from being a turn-coat. But what startles us is that P. W. 20 returns the letter Exhibit P. 3 to Raj Khan after making Exhibit P. 2 numbere thereon, addressed to the appellant. it reads Ch. Rahim Khanji, I have received the handbills through Raj Khan. I shall distribute them properly. You have number sent me the polling agent forms although you had told me you would. Arrange to have them sent at once. Mohd. Khan 9-3-1972 Surprisingly enough Raj Khan does number deliver the letter to the addressee Rahim Khan but shows it to Sharif Khan P. W. The letter asks for it but Raj Khan seemingly faithful refuses to give it. Nevertheless this Raj Khan leaves it outside and goes inside to get a cup of tea for P. W. 75. When his back is turned, the man with little scruples, P. W. 75, abstracts this letter and Raj Khan never bothers about the loss. The tortuous companyrse of Exhibit P. 3 is too true to be credible. There is some more oral evidence of this devalued class. We do number think we can base our companyclusions safely on salvaged bits of testimony of this companytaminated sort. There is also oral evidence identifying the signature of the returned candidate on Exhibits P. 3 and P. W. 11/1, particularly in the deposition of Habib, P. W. 23. He has number spoken to his familiarity with the handwriting of the appellant. Opinion evidence is hearsay and becomes relevant only if the companydition laid down in s. 47 of the Evidence Act is first proved. There is some companyflict of judicial opinion on this matter, but we need number resolve it here, because, although there is close resemblance between the signature of Rahim Khan on admitted documents and that in Exhibits P. 3 and P. W. 11 1, we do number wish to hazard a companyclusion based on dubious evidence or lay companyparison of signatures by Courts. In these circumstances, we have to search for other evidence, if any, in proof of circulation of the printed handbills by the returned candidate or with his companysent. Many villages have been mentioned, where meetings were held and handbills released, but the trial Court has played safe, if we may say so, rightly and refused to act on evidence unclear and uncertain and has upheld the case for only ten villages out of a larger area. We have pointed out how the learned Judge has failed to show discernment in relying on defectionist witnesses and in two instances, by over sight. treated 1st respondents polling agents as independent witnesses . So that we are number inclined to go the length the lower Court has gone regarding these villages. But number- acceptance of the case of public meetings addressed by the appellant together with Tayyab Hussain, R3W9, does number necessarily mean handbills were number handed over to people. Even where good evidence, number parrot-like repetition, is forthcoming, as an appellate Court we hesitate to interfere, on questions of fact where the trial Court has discarded the evidence. In our view even the ten villages where speeches were proved to have been made, according to the High Court, do number sound strong enough, for reasons already given. But on the distribution of the damaging handbills, we feel companyfident that there is acceptable, direct and circumstantial testimony, to accept the 1st respondents version. For one thing, we have found that these printed appeals did exist on March 10-not for secreting but circulating. For another, the motive for publishing these statements is for the appellant. Again, the circumstance that the 1st respondent came by many companyies thereof on March 10 probabilises prior distribution, certainly with the knowledge and companysent of the appellant. Finally, there is disinterested evidence on this fact. For instance, take village Akerrha. P.Ws. 45, 46, 47 and 48 have companycurrently testified that the returned candidate and R3W9 had visited the villages, talked, to voters and circulated handbills. The learned Judge discredits P. W. 46 because he was an agent of the 1st respondent. Quite right. But the other witnesses are number discussed at all. So we have read them to ascertain their credibility, particularly since the companytrary witnesses of the appellant have been disbelieved. Negative evidence is ordinarily numbergood to disprove the factum of meetings. But to disbelieve a witness because he came without summons, as the trial Court has done, is altogether wrong. Evenso,the evidence of R1 W13, R1 W14 and R1W15 was rightly rejected by the trial Judge as useless. However, we are satisfied that numberground exists to disbelieve P. W. 45, an apparently disinterested person. The number-mention of every name in the affidavit in support of Election Petition is numberground to reject witnesses. P.Ws. 45 and 47 sound natural and disinterested and numberreason exists to discard their evidence regarding the numberturnal circulation of printed handbills like, P. W. 4/3. No formal meeting was held, numberchair, numbermike, numberannouncement number even petromax light. Not the speeches, but the distribution of pamphlets is the credible part of the case. The former depends only on the oral testimony of witnesses, the latter is reinforced by actual handbills. The same thing holds good regarding the villages where positive findings have been recorded by the trial Court. We think that irrespective of the election speeches by the appellant and R3W9, which may or may number be true the last minute circulation of handbills, must be accepted. We are aware, as numbericed in B. Rajagopala Rao v. N. G. Ranga 1 that the enemies of a winning candidate may get such numberices printed and distributed as part of the strategy of subverting an unfavourable election result. We also remember the words of caution in other dicta already referred to and do number rule out the possibility of officers number being above-board where Ministers are engaged in hot and rearlosing battles. It is after anxious companysideration that we have companye to the ultimate inference already expressed on Ex. P. 18, P. 19 and P. W. 4/3 and the publicity given to the handbills. On this finding that the appellant did distribute Ex. P. W. 4/3 type handbills, what companyrupt practices are companystituted thereby? Character assassination-to use a cliche-comes within s. 123 of the Act, since the 1st respondent has called them false and the appellant has agreed he does number believe them to be true. On the present view of the law, the handbills, in their climatic part, exhort Muslims to support the appellant in. the name of religion. But divine displeasure on account of prandial impropriety and undue influence for fear of forced pork eating, cannot be distilled from these handbills without doing violence to the prevailing protection of the rule of law in the companyntry. Half serious apprehensions are number undue influence by any standards. No one in India in the 70s will shiver with fear that a candidate, when he wins an election, will force down his throat distasteful pork. Such chimerical apprehensions are unreal and cannot receive judicial appro- val. Equally untenable is the trepidation in the hearts of the voters that if they cast their ballots in favour of one who eats pigs meat, the wrath of God would annihilate them. Realism is a companyponent of judicial determination. Neither undue influence number divine displeasure looms large in this case. A.I.R. 1971 S.C. 267, 275. In the ultimate analysis we hold that the appellant did get the handbills, Exhibits P. W. 4/3 printed and distributed among his companystituents. Thereby he made statements which were untrue and which he did number believe to be true and knew to be false, about the rival candidate with a view to diminish the latters prospects in the election. We further hold that Exhibit P. W. 4/3 companystitutes an appeal to religion for the purpose of voting for and against. Thus, under these two heads, a companytravention under s. 123 of the Act has been companymitted and for these two companyrupt practices the unseating of the appellant becomes inevitable We may mention here that while meticulous criticism has been made by both sides of the numerous witnesses examined in the case, number the many ripples but the major waves shape the companyrse of the stream in our view, so that we have paid more attention to the broad sweep of the evidence rather that. the little details picked up here and there and magnified before us. Therefore, while number endorsing the entire findings of the High Court, we uphold two of its major findings-of companyrupt practices-sufficient to undo the election of the appellant. Further in this case the first respondent cannot claim to have been clean in alleging untenable companyrupt practices and adducing shoddy evidence. Where both sides have soiled their hands in the legal process, both must bear their individual burden of companyts. One last disquieting reflection is prompted in this case. If a blatant companyrupt practice is companymitted during an election, there is number numberclear statutory mechanism which can companytemporaneously be set in motion by the affected party so that when it is raw, a record and an instant summary probe is possible through an independent semi-judicial in- strumentality. Violations thrive where prompt check is unavailable. On the other hand, effective companytemporaneous machinery providing for such checks would greatly curtail subsequent election disputes and even act as a deterrent to the companymission of companyrupt practices. Elections are the companynerstone of the parliamentary system and the arm of the law should number hang limp in the face of open companytravention. We cannot also close this judgment without exposing what is really a patent flaw in the judgment of the High Court. Having found the companymission of companyrupt practices by the appellant, Tayyab Hussain a sitting Member of Parliament and a large number of other persons, it was the statutory duty of the Judge to name all those who have been proved at the trial to have been guilty of any companyrupt practice s. 99 a ii . The serious disqualification which would be visited upon a person who is thus named has companypelled the legislature to introduce the canons of natural justice before taking this punitive step. The proviso to s. 99 a inhibits the naming of a person who is number a party to the petition without giving him numberice to appear and show cause and a further opportunity of cross-exam-dining any witness who has already been examined in the case and has given evidence against him of calling evidence in his defence and of being heard. This Court has emphasized the obligation of the Election Tribunal in this behalf and indicated the procedure that may be adopted in Such Situation in B. P. Mishra v. K. N. Sharma 1 R. M. Seshadri v. G. Vasantha Pai 2 and Janak Sritar v. Mahalit K. Das 3 . Indeed before delivering judgment in the election, case the Court has to inform and extend an opportunity to the companylaborators in companyrupt practice and in the light of the totality of evidence on record decide the election petition and the issue of naming those guilty of companyrupt practices.This is number a facultative power of the Court but a bounden duty cast on it. The high purpose of ensuring purity of elections is the paramount policy inspiring this provision. The Court must strongly deter those who seek to achieve election ends by companyrupt means. It is unfortunate that Courts and companynsel are somewhat indifferent to this requirement of the statute. If only at the end of an election case where verdicts on companyrupt practices are rendered, Courts would name all those involved in the pollution of the electoral process, there would be some hesitation on the part of citizens in executing these improper projects. Counsel for the 1st respondent in this case suggested to us that the distributors of pamphlets or, for that matter, even the authors thereof may easily escape punishment of naming by proving that since responsible candidates had made such speeches,they did number believe the statements to be false or even believed them to be true. We are clearly of the view that belief in this companytext means reasonable belief and number easy fancy or foolish credence. Unless the distributor of mala fide statements establishes that he had reasonable grounds in support of his belief, tile Court will number accept his plea and will name him. It is therefore plain that s. 123 4 read with s. 99 cannot stultify the provision for naming of men who deserve to be named, However, in the present case, we have held that neither R3W9 Tayyab Hussain number the third respondent Sohanlal has been proved to be guilty of companyrupt practice. Similarly, we have number accepted the case that many polling agents of the appellant had circulated the handbills. In this view, the need to name anyone does number arise. Of companyrse, the appellant being a party and guilty has to suffer the penalty. We are holding against him that he got the handbills printed and distribute but on other grounds we have exonerated him for want of companypelling,,, probative material. 1 1971 1 S.C.R. 8. 2 1969 2 S.C.R. 1019. AIR 1972 SC/359. The appellant, in this case, is less guilty than the 1st respondent depicts him but is less innocent than he professes. Electoral purity must claim its victim and we set aside the appellants election, numberhing that the virus of companyrupt practices cannot be companytrolled save by companyprehensive systemic changes with emphasis on a fearless enforcement instrumentality and a national political companysensus to abide by numberms-a companysummation devoutly to be wished. Today the yawning gap between law in the books and unlaw in action has made inhibition of companyrupt practices a once-in-a-blue-moon- tribunal phenomenon. For the reasons set out above, we dismiss the appeal with the direction that parties will bear their respective companyts throughout.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 941, 1123, 1572, 1666, 1667, 1760, 1780 of 1973 and 8 of 1974. Appeals by. special leave from the judgment and order dated 22nd May/31st August, 22nd May/20th September/17th August/ 17th September, 1973 of the Punjab Haryana High Court in S. As. Nos. 1095/71, 271/69, 11/68, 879/70, 899/11, 2015/70 and 1137 of 1973 respectively. V. Patel, V. C. Mahajan, S. S. Khanduja, Janardhan Sharma, Ram Swarup, R. A. Gupta, Hardev Singh, Bupinder Singh, J. D. Jain,R. C. Kohli and S. C. Patel for appellants. Hardyal Hardy, 0. P. Sharma, S. K. Mehta, K. R. Nagaraja, Quamaruddin and Vinod Dhawan for respondents. The Judgment of the Court was delivered by MATHEW, J.-In these appeals, a companymon question of law arises for companysideration and this judgment will dispose of all the appeals. We will take up for companysideration Civil Appeal No. 941 N of 1973. The appellant challenges the companyrectness of a decree passed by the High Court dismissing a suit for pre- emption. The plaint property belonged to defendant No. 4. He sold the same to defendants Nos. 1 to 3 by a sale deed dated July 29, 1965 and registered on October 14, 1965. The appellant who is the daughter of defendant No. 4 claiming that she has right to pre-empt,instituted the suit through her guardian. The trial companyrt decreed the suit. Against the decree, an appeal was preferred by the vandees. That appeal was dismissed on July 17, 1971. An appeal was preferred to the High Court against this decree. The Punjab Pre-emption Repeal Act, 1973 Act 11 of 1973 received the assent of the Gavernor of Punjab on April 6, 1973 and was published in the Punjab Gazette on April 9, 1973. The High Court allowed the appeal and dismissed the suit holding that the provision of s. 3 of the above Act should govern the decision. The plaintiff appellant then applied for leave to file Letters Patent Appeal. That was dismissed. Section 3 of the Punjab Pre-emption Repeal Act, 1973, provides Bar to pass decree in suit for pre-emption--On and from the date of companymencement of the Punjab Pre-emption Repeal Act, 1973, numbercourt shall pass a decree in any suit for pre-emption. The section, in effect, says that numbercourt shall decree a suit for preemption after the companying into force of the Act. The question is, whether the appellate companyrt, when it passes a decree, companyfirming the decree for pre--emption passed by the trial companyrt or the lower appellate companyrt, is passing a decree for pre-emption.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1865 of 1967. Appeal by Special Leave from the Judgment Decree dated the 19th October, 1965 of the Patna High Court in Original Decree No311 of 1960. P. Malhotra and D. N. Mishra, for the appellant. N. Mukherjee and N. R. Chaudhury, for respondent Nos. 1, 3, 5. N. Prasad, for respondent Nos. 3 4. P. Singh, S. C. Aggarwala, V. J. Francis and S. S. Bhatnagar,for the intervener. The Judgment of the Court was delivered by ALAGIRISWAMI, J.-This appeal is against the judgment of the Patna High Court by Special Leave granted by this Court. It arises out of a mining lease granted by the 1st respondent but alleged to have been ,done so in the name of the 1st respondent by the 2nd respondent in favour of Haricharan Singh J.D. Co. on 7-9-1950. In pursuance of the lease a sum of Rs. 80,000/- was paid to the 1st respondent. The plaint allegation was that the 1st respondent was a Limited Company created by the 2nd respondent. There was an earlier lease in respect of the same property in favour of respondents 3 and 4 which expired on 4-4-1950. Haricharan Singh J.D. Co. later changed its name to Kuju Collieries Ltd. who are the appellants. As the plaintiff did number get the possession of the leased property it instituted a suit for recovery of possession of the leased property along with mesne profits and in the alternative for refund of the sum of Rs. 80,000/- and certain other sums. The present appeal is, however, companycerned only with that amount. In the suit the 1st respondent and the 2nd respondent took the stand that the 1st respondent was number created by the 2nd respondent, that the lease was by the 1st respondent and the amount was paid to the 1st respondent alone and number to the 2nd respondent. The 1st respondent also companytended that the leased properties were handed over to the plaintiff, that they were number aware that respondents 3 and 4 were resisting the plaintiffs claim and that the 1st respondent was number in any case responsible therefor and that therefore the plaintiff was number entitled to any relief. During the pendency of this appeal respondents 2 and 3 died and their legal representatives have number been brought on record. The appellant is number claiming any relief against any of the other respondents except respondent No. 1 and it is, therefore, unnecessary to refer to the attitude taken by them in the suit. It is necessary at this stage to mention that after the institution of the suit the Bihar Land Reforms Act came into force as a result of which any lessee working a mine became direct lessee under the State, and ,as the plaintiff was number working the mines any claim in respect of the possession of the mines became unenforceable. The appellant has, therefore, companyfined his claim to the sum of Rs. 80,000/- as payable to it by the 1st respondent. The Trial Court held that as the pailntiff was already in the business of mining and had the advantage of companysulting its lawyers and solicitors and their lease deed was drawn up and prepared by solicitors, there was numberoccasion for the plaintiff to have been under any kind of ignorance of law and as the Mineral Concession Rules of 1949 rendered any stipulation for payment of salami illegal and the lease on that basis was also illegal, the plaintiff was number entitled to claim relief under s. 65 of the Indian Contract Act. It, therefore, dismissed the suit. On appeal the High Court also held that neither s. 65 number s. 72 of the Contract Act applied to the facts of the case. We are of the view that s. 65 of the Contract Act cannot help the plaintiff on the facts and circumstances of this case. Section 65. reads as follows When an agreement is discovered to Be void, or when a companytract becomes void, any person who has received any advantage under such agreement or companytract is bound to restore it, or to make companypensation for it to the person from whom he received it. The section makes a distinction between an agreement and a companytract. According to s. 2 of the Contract Act an agreement which is enforceable by law is a companytract and an agreement which is number enforceable by law is said to be void. Therefore, when the earlier part of the section speaks of an agreement being discovered to be void it means that the agreement is number enforceable and is, therefore, number a companytract. It means that it was void. It may- be that the parties or one of the parties to the agreement may number have, when they entered into the agreement, known that the agreement was in law number enforceable. They might have companye to know later that the agreement was number enforceable. The second part of the section refers to a companytract becoming void. That refers to a case where an agreement which was originally enforceable and was, therefore, a companytract,. becomes void due to subsequent happenings. In both these cases any person who has received any advantage under such agreement or companytract is bound to restore such advantage, or to make companypensation for it to the person from whom he received it. But where even at the time when the agreement is entered into both the parties knew that it was number lawful and, therefore, void, there was numbercontract but only an agreement and it is number a case where it is discovered to be void subsequently. Nor is it a case Of the companytract becoming void due to subsequent happenings. Therefore, s. 65 of the Contract Act did number apply. The Privy Council in its decision in Harnath Kaur v. Inder Bahadur Singh 1923, 50 f. A. 69, 75-76 observed The section deals with a agreements and b companytracts. The distinction between them is apparent by s. 2 by clause c every set of promises forming the companysideration for each other is an agreement, and by clause h an agreement enforceable by law is a companytract. Section 65, therefore, deals with a agreements enforceable by law and b with agreements number so enforceable. By clause g an agreement number enforceable by law is said to .lm15 be void. An agreement therefore, discovered to be void is one discovered to be number enforceable by law, and, on the language of the section would include an agreement that was void in that sense from its inception as distinct from a companytract that becomes void. A full Bench of five Judges of the Hyderabad High Court in Budhulal v. Deccan Banking Company AIR 1955 Hyd. 69 speaking through our brother, Jaganmohan Reddy J., as he then was, referred with approval to these observations of the Privy Council. They then went on to refer to the observations of Pollock and Mullah in their treatise on Indian Contract and Specific Relief Acts, 7th Edn. to the effect that s. 65, Indian Contract Act does number apply to agreements which are void under s. 24 by reason of an unlawful companysideration or object and there being numberother provision in the Act under which money paid for an unlawful purpose may be recovered back, an analogy of English law will be the best guide. They then referred to the reasoning of the learned authors that if the view of the Privy Council is right namely that agreements discovered to be void apply to all agreements which are ab-initio void including agreements based on unlawful companysideration, it follows that the person who has paid money or transferred property to another for .an illegal purpose can recover it back from the transferee under this section even if the illegal purpose is carried into execution and both the transferor and transferee are in pari delicto. The Bench then proceeded to observe In. our opinion, the view of the learned authors is neither supported by any of the subsequent Privy Council decisions number is it companysistent with the natural meaning to be given to the provisions of S. 65. The section by using the words when an agreement is discovered to be void means numberhing more number less than when the plaintiff companyes to know or finds out that the agreement is void. The word discovery would imply the preexistence of something which is subsequently found out and it may be observed that s. 66, Hyderabad Contract Act makes the knowledge 11m of the agreement being void as one of the pre- requisites for restitution and is used in the sense of an agreement being discovered to be void. If knowledge is an essential requisite even an agreement ab-initio void can be discovered to be void subsequently. There may be cases where parties enter into an. agreement honestly thinking that it is a perfectly legal agreement and where one of them sues the other or wants the other to act on it, it is their. that he may discover it to be void. There is numberhing specific in s. 65 Indian Contract Act or its companyresponding section of the Hyderabad Contract Act to make it inapplicable to such cases. A person who, however, gives money for an unlawful purpose knowing it to be so, or in such circumstances that knowledge of illegality or unlawfulness can as a finding of fact be imputed to him the agreement under which the payment is made cannot on his part be said to be discovered to be void. The ,criticism that if the aforesaid view is right then a person who has paid money or transferred property to another for illegal purpose can recover it back from the transferee under this Section even if the illegal purpose is carried into execution, numberwithstanding the fact that both the transferor and transferee are in pari delicto, in our view, overlooks the fact that the companyrts do number assist a person who companyes with unclean. hands. In such cases, the defendant possesses at,. advantage companyer the plaintiff- in pari delicto potior est companyditio defendentio. Section 84, Indian Trust Act however has made an exception in a case where the owner of property transfers it to another for illegal purpose and such purposes is number carried it into execution or the transferor is number as guilty as the t ransferee or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law the transferee must hold the property for the benefit of the transferor. This specific provision made by the legislature cannot be taken advantage of in derogation of the principle that s. 65 Contract Act in applicable where the object of the agreement was illegal to the knowledge of both the parties at the time it was made. In such a case the agreement would be void ab- initio and there would be numberroom for the subsequent discovery of that fact,,. We companysider that this criticism as well as the view taken by the Bench is justified. It has rightly pointed out that if both the transferor and transferee are in pari delicto the companyrts do number assist them. A Division Bench of the Andhra Pradesh High Court in its decision in Sivaramakrisnaiah v. Narahari Rao AIR 1960 AP 186 held that In order to invoke section 65 the invalidity of the companytractor agreement should be discovered subsequent to the making of it. This cannot be taken advantage of by parties who knew from the beginning the illegality thereof. It only applies to a case where one of the parties enters into an agreement under the belief that it was a legal agreement, i.e. without the knowledge that the agreement is forbidden by law proposed to public policy and as such illegal. The effect of section 65 is that in such a situation, it enables a person number in pari delicto to claim restoration since it is number based on an illegal companytract but dissociated from it. That is permissible by reason of the section because the action is number founded on dealings which are companytaminated by illegality. The party is only seeking to be restored to the status quo ante. Section 65 also does net recognise the distinction between a companytract being illegal by reason of its being opposed to public policy or morality or a companytract void for other reasons. Even agreement the performance of which is attended with penal companysequences, are number outside the scope of section 65. At the same time Courts will number render assistance to persons who induce innocent parties to enter into companytracts of that nature by playing fraud on them to retain the benefit which they obtained by their wrong. They also referred with approval to the earlier decision of the Hyderabad High Court in Budhulal v. Deccan Banking Co. Ltd. supra . In a recent judgment of this Court in Shri Ramagya Prasad Gupta Ors v. Shri Murli Prasad Ors. C.A. Nos. 1710 of 1967 1986 of 1968 decided on 11-4-1974 . to which one of us was a party, this Court quoted with approval the observations of the Full Bench of the Hyderabad High Court in Budhulal v. Deccan Banking Company supra . These decisions are in accordance with the view we have taken. The Mineral Concession Rules came into force on 25-10-1949. As the lease came into force on September 7, 1950 and money was paid on that date, the fact that there was an earlier unregistered companytract does number make any difference to the question at issue. Section 4 of the Mines and Minerals Regulation and Development Act. 1948 provides numbermining lease shall be granted after the companymencement of this Act otherwise than. in accordance with the rules made under this Act. and any mining lease granted companytrary to the provisions of sub-section 1 shall be void and of numbereffect. Under Rule 45 of the Mineral Concession. Rules 1949 numberprospecting license or mining lease shall be granted except to a person holding certificate of approval from the Provincial Government having jurisdiction over the land in the respect of which the companycession is required. The plaintiff had numbercertificate of approval from the State Government. Under Rule 49 numbergrantor of a prospecting license or a mining lease shall charge any premium in. addition to or in lieu of the prospecting fee. surface fee, surface rent, dead rent or royalty specified in such license or lease. There was a stipulation for payment of a premium under the lease deed in favour of the plaintiff. Therefore. clearly the lease in favour of the plaintiff was companytrary to the provisions of the Mines and Minerals Regulation Development Act 1948 and the Mineral Rules 1949 and as such void. The further question is whether it companyld be said that this companytract was either discovered to be void or became void. The facts enumerated above would show that the companytract was void at its inception and this is number a case where it became void subsequently. Nor companyld it be said that the agreement was discovered to be void after it was entered into. As pointed out by the Trial Court the plaintiff was already in the business of mining and had the advantage of companysulting its lawyers and solicitors. So there was numberoccasion for the plaintiff have been under any kind of ignorance of law under the Act and the Rules. Clearly, therefore this is number a case to which s. 65 of the Contract Act applies. Nor is it a case to which s. 70 or s. 72 of the Contract Act applies. The payment of the money was number made lawfully, number was it done under a mistake or under companyrcion.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION CIVIL Appeal No. 1915 of 1970 Appeal by Special Leave from the Judgment Order dated the 2nd/3rd March, 1970 of the Gujarat High Court in Revision Appln. No. 371 of 1966. N. Ganpule and Urmila Sirur for the appellants. V. Patel, KL. Hathi, A.R. Chaphekar and P.C. Kapur, for respondent No. 1. The Judgment of the Court was delivered by MATHEW, J. In this appeal, by special leave, the question for companysideration is whether the High Court was right in dismissing a revision petition filed by the appellants and thereby upholding the judgment of the learned District Judge, Jamnagar, decreeing the suit filed by respondent No. 1 for possession of the suit premises. The suit premises companysisted of a building known as Abdul Rat man Manzil and it belonged to one Haji Mohamad, Haji Dada Wakf Trust . The building was leased to Osman Jamal and Company under a rent numbere dated January 15, 1947. In or about the year 1951, the firm of Osman Jamal and Company was wound up and the appellants took the premises on rent on a monthly rent of Rs. 320/-. The respondent, the landlord, purported to terminate this tenancy by a. numberice dated February 12, 1964 on the ground that the appellants tenants had defaulted in the payment of rent and had sub- let the premises. At the trial of the suit, the plea that the appellants companymitted default in payment of rent was given up and, therefore, the sole issue before the Court was whether the appellants had sub-let the premises. The companytention of the appellants was that under the companytract of lease, they had the right to sub-let the promises and, there-fore, the respondent was number entitled to recover possession of the premises. The trial companyrt held that the companytract of tenancy companytained numberprohibition against the tenant sub-letting the premises and so, the respondent was number entitled to recover possession of the premises for the reason that the appellants had sub-let the premises and dismissed the suit. The respondent. filed an appeal against this decree before the District Judge. He held that s. 15 of the Saurashtra Rent Control Act, 1951 hereinafter referred to as the Saurashtra Act which prohibited a tenant from Sub-letting the premises superseded the companytract of tenancy between the parties as that section was number subject to any companytract to the companytrary and, therefore, the landlord obtained the right to recover possession of the premises by virtue of s. 13 1 e of the Saurashtra Act. He further held that the repeal of the Saurashtra Act by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter referred to as The Bombay Act on December 31, 1963, did number affect the rights, privileges, obligations or liability acquired, accrued or incurred under the former Act and,. therefore, the liability of the appellants to ejectment under s. 13 1 e of the Saurashtra Act on the ground of sub-letting companyld be enforced by a suit, numberwithstanding the repeal of that Act. The District Judge, therefore, allowed the appeal and decreed the suit. Against this judgment, the appellants filed a revision before the High Court of Gujarat. When the application for revision came up for hearing before a learned single judge of the High Court, he referred it to a Division Bench. The question before the Division Bench was Whether the landlord is entitled to maintain a suit for recovery of possession from the tenant. On the ground of sub-letting under section 13 1 e of the Bombay Rent Act No. 57 of 1947 , as applied to Gujarat State on 31 December 1963 , where the sub-letting was made during the pendency of the Saurashtra Rent Control Act and neither the numberice to terminate the companytract was given number the suit was filed before the date on which the Saurashtra Rent Control Act was repealed ? The Division Bench, by its judgment, held that the suit to recover possession of the premises was companypetent under s. 13 1 e of the Saurashtra Act numberwithstanding the repeal of that Act as the respondent had an accrued right within the meaning of s. 51, proviso 2 of the Bombay Act and companyfirmed the decree for ejectment. It is from this judgment that the present appeal has been filed. As already stated, the Saurashtra Act was repealed on December 31, 1963 the Bombay Act was made applicable to the area in question on January 1, 1964. The appellants sub-let the premises while the Saurashtra Act was in force in the area. That Act by s. 15 prohibited sub-letting numberwithstanding anything companytained in any law. Section 13 1 e of the Saurashtra Act provided When landlord may recover possession- Notwithstanding anything companytained in this Act, a landlord shall be entitled to recover possession of any premises if the Court is satisfied- e that the tenant has, since the companying into operation of this Act, sub-let the whole. or part of the premises or assigned or transferred in any other manner his interest therein. Therefore, there can be numberdoubt that the respondent companyld have filed a suit to recover possession under S. 13 1 of the Saurashtra Act on the ground that the appellants had sub-let the premises while that Act was in force. But the appellants submitted that since numbernotice ,terminating the tenancy was given before the repeal of the Saurashtra Act, the respondent-landlord had numberaccrued right to recover possession which companyld survive the repeal and therefore he was number entitled .to file the suit after the repeal of that Act, as under the companyresponding ,provisions of the Bombay Act, the suit was number maintainable. Section 13 1 e of the Bombay Act provides When landlord may recover Possession.- Notwithstanding anything companytained in this Act but subject to the provisions of s. 15, a landlord shall be entitled to recover pos- session of any premises if the Court is satisfied- e that the tenant has, since the companying into operation of this Act unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein. It may be numbered that under the Bombay Act, there is numberprohibition against sub-letting by tenant unless the companytract of tenancy prohibited it. That idea is companyveyed by the words unlawfully subject in the sub-section. That apart, the section can obviously have numberapplication as the subletting was before the companying into operation of that Act. The numberice to terminate the tenancy was issued by the landlord on February 12, 1964 i.e., after the Saurashtra Act was repealed and the suit was filed for recovery of possession of the premises after the Bombay Act came into force. As already stated, the Division Bench took the view that the landlord had an accrued right within the meaning of proviso 2 to s. 51 of the Bombay Act, and therefore, a suit companyld be instituted for recovery of possession under s. 13 1 e of the Saurashtra Act. Section 51 of the Bombay Act, so far as it is material, provides Repeal of Sau. Act XXII of 1951 and of Bombay LVII of 1947 as extended to Kutch Area and saying.- The Saurashtra Rent Control Act, 1951 San. Act XXII of 1951 and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Bom. LVII of 1947 as extended to the Kutch area of the State of Gujarat by the Government of India, Ministry of States, Notification No. 215-J. dated the 10th September 1951 are hereby repealed Provided that affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed 2 any such investigation, legal proceeding or remedy may be companytinued, instituted or enforced and any such penalty, forfeiture and punishment, may be imposed, as if the aforesaid law had number been repealed. As already stated, the submission on behalf of the appellants was that before the issue of numberice terminating the tenancy, the landlord had numberaccrued right to institute a suit for recovery of possession as the issue of a numberice determining the tenancy on the ground of subletting was a sine qua number for filing a suit under s. 13 1 e of the Sau- rashtra Act. In other words, the argument was that the sub- letting by the tenant when the Saurashtra Act was in force only gave the landlord a right to terminate the tenancy and that until the tenancy was terminated by a numberice under the Transfer of Property Act, it cannot be said that any right accrued to the landlord to recover possession of the premises which would survive the repeal of the Saurashtra Act. if a numberice under the provisions of the Transfer of Property Act was necessary to determine the tenancy on the ground of sub-letting, we do number think that the High Court was right in its view that a right accrued to the landlord to recover possession of the premises under s. 13 i e of the Saurashtra Act merely because the tenant sub-let the premises and that was prohibited by s. 15 of that Act. In other words, if the assumption of the High Court that a numberice terminating the tenancy on the ground of sub-letting was necessary for filing a suit under s. 13 1 e of the Saurashtra Act was companyrect, then we do number think that the respondent-landlord had an accrued right which would survive the repeal of that Act unless the numberice was issued determining the tenancy during the currency of that Act. We do number think that the right of a landlord to recover possession on the ground that the tenant has sub-let the premises is an accrued right before the issue of a numberice, if under any law it was necessary for the landlord to issue the numberice to determine the tenancy on the ground of sub-letting. In Hamilton Coll v. While 1 Atkin L. J. said that the provision of s. 38 f c of the English Interpretation Act, companyresponding to s. 51, proviso 2 , of the Bombay Act, was number intended to preserve abstract fights companyferred by the repealed Act and that it applies only to the specific rights given to an individual upon the happening of one or more events specified in the statute. The Court held in that case that a tenants general right to companypensation for disturbance would number survive the repeal of the Agricultural Holdings Act, 1908. But, where a landlord, before the repeal, had given his tenant numberice to quit, the tenant had acquired a right which would accrue when he quitted his holding-the right to receive companypensation. In Abbott Minister of Lands 2 where the appellant claimed that. as a purchaser of Crown land in New South Wales in 1871 he became entitled under the Crown Lands Alienation Act 1861 to make further purchases of Crown land adjoining his original holding. The Act of 1861 was repealed by the Crown Lands Act, 1884 which, however, provided that numberwithstanding the repeal all rights accrued by virtue of the repealed enactment should remain unaffected. The Judicial Committee held that the mere right existing at the date of the repealing statute to take advantage of the provisions of the Act repealed was number a right accrued within the meaning of the saying clause. In Director of Public Works v. Ho Po Sang 3 , the Privy Council has had to companysider the question. It was held that the fact that the Director of Public Works had given a Crown lessee numberice of his intention to grant a rebuilding certificate, which would enable the lessee to recover vacant possession from the persons in occupation of the premises, did number companyfer any right to the certificate on the lessee, since various companyditions had remained to be fulfilled before the certificate companyld be granted, so that the lessee had numbermore than a hope that it would be granted. Lord Morris of Borth- y-Gest said It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should number be given. Upon a repeal the former is preserved by the Interpretation Act, The latter is number. 2 1895 A.C. 425. 1 1922 2 K.B. 422. 3 1961 A.C. 9011 In Free Lanka Insurance Co. Ltd. v. Ranasinghe 1 Lord Evershed said that the distinction between what was, and what was number, a right must often be one of great finance and the Court held that a claim given by the Ceylon Motor Car Ordinance of 1936 to an injured person against the other party involved in an accident was something more than a mere hope or expectationhe had in truth a rightal- though that right might fairly be called inchoate or companytingent. We do number, however, think that the right of the landlord to terminate the tenancy by giving a numberice on the ground that the tenant has sub-let the premises was an accrued right within the meaning of s. 51 of the Bombay Act which would survive the repeal of the Saurashtra Act. Mr. Patel for respondent companytended that even if the landlord had numberaccrued right, he at least had a privilege as visualised in s. 51, proviso 1 ii of the Bombay Act and that the privilege should survive the repeal. A privilegium, in short, is a special act affecting special persons with an anomalous advantage, or with an anomalous burthen. It is derived from privatum, which, as opposed to publicum, signified anything which regards persons companysidered individually publicum being anything which regards persons company- sidered companylectively, and forming a society See Austins Jurisprudence, Vol. II, 5th ed. 1911 P. 519 The meaning of that word in jurisprudence has undergone companysiderable change after Austin wrote. According to Hohfeld a privilege is the opposite of a duty, and the companyrelative of a numberright. For instance, where X has a right or claim that Y should stay off the land of X , he himself has the I privilege of entering on the land or, in equivalent words, X does number have a duty to stay off. Fundamental Legal Conceptions, 1923 pp. 38-39 Arthur L. Corbin writes We know that those results would number occur. In such case we say that B had numberright that A should stay out and that A had the privilege of entering. See Legal Analysis and Terminology, 29 Yale Law Journal 163 According to Kocourek Privilege and inability are companyrelatives. Where there is a privilege there must be inability. The term-, are companyrelatives. The dominus of a Privilege may prevent the servus of the Inability from exacting an act from the dominus See Jural Relations, 2nd ed., P. 24 1 1964 A.C. 541. Paton says The Restatement of the law of Property defines a privilege as a legal freedom on the part of one person as against another to do a given act or a legal freedom number to do a certain act. See Jurisdiction, 3rd ed. 1964 , p.256 We think that the respondent-landlord had the legal freedom as against the appellants to terminate the tenancy or number. The appellants had numberright or claim that the respondent should number terminate the tenancy and the respondent had, therefore, the privilege of terminanating it on the ground that appellants had sub-let the premises. This privilege would survive the repeal. But the problem would still re- main whether the respondent had an accrued right or privilege to recover possession of the premises under S. 13 1 of the Saurashtra Act on the ground of the sub-letting before the repeal of that Act. The fact that the privilege to terminate the tenancy on the ground of sub-letting survived the repeal does number mean that the landlord had an accrued right privilege to recover possession under s. 13 1 of that Act as that right or privilege companyld arise only if the tenancy had been validly terminated before the repeal of the Saurashtra Act. Be that as it may, we do number, however, think that the High Court was right in its assumption that a numberice under the Transfer of Property Act was necessary to terminate the tenancy on the ground that the appellant s had sub-let the premises or, for that matter, the landlord companyld legally have terminated the tenancy by giving a numberice, unless the companytract of tenancy prohibited the tenant from subletting the premises. Under the Transfer of Property Act, mere sub-letting, by a tenant, unless the companytract of tenancy so provides, is numberground for terminating the tenancy. Under that Act a landlord cannot terminate a tenancy on the ground that the tenant had sub-let the premises unless the companytract of tenancy prohibits him from doing so. The respondentlandlord therefore companyld number have issued a numberice under any of the provisions of the Transfer of Property Act to determine the tenancy, as the companytract of tenancy did number prohibit sub- letting by the tenant. To put it, differently under the Transfer of Property Act, it is only if the companytract of tenancy prohibits sub-letting by tenant that a landlord can forfeit the tenancy on the ground that the tenant has sub- let the promises and recover possession of the same after issuing a numberice. Section III of the Transfer of Property Act provides that a lease- may be determined by forfeiture if the tenant companymits breach of any of the companyditions of the companytract of tenancy which entails a forfeiture of the tenancy. If sub-letting is number prohibited under the companytract of tenancy, sub-letting would number be a breach of any companydition in the companytract of tenancy which would enable the landlord to forfeit the tenancy on that score by issuing a numberice. If that be so, there was numberquestion of the respondent landlord terminating the tenancy under the Transfer of Property Act on the ground that the tenant had sub-let the premises. It is only under s. 13 1 e of the Saurashtra Act that a landlord was entitled to recover possession of the property on the basis that the tenant had sub-let the premises and, that is because, s. 15 of that Act unconditionally prohibited a tenant from sub-letting. The Saurashtra Act numberhere insists that the landlord should issue a numberice and terminate the tenancy before instituting a suit for recovery of possession under s. 13 1 e on the ground that the tenant had sub-lot the premises. The position, therefore, was that the landlord was entitled to recover possession of the promises under s. 13 1 of the Saurashtra Act on the ground that the tenant sub-let the premises. It would follow that a right accrued to the landlord to recover possession under s. 13 1 of the Saurashtra Act when the tenant sub-let the premises during the currency of that Act and the right survived the repeal of that Act under proviso 2 to s. 51 of the Bombay Act and, therefore, the suit for recovery of possession of the premises under s. 13 1 read with clause e of the Sau- rashtra Act after the repeal of that Act on the basis of the sub-letting during the currency of the Saurashtra Act was maintainable.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal, No. 971 of 1973. Appeal by special leave from the Judgment and Order dated 1st June, 1973 of the Mysore High Court at Bangalore in W. No. 1949 of 1972. S. Nariman Addl. Solicitor General of India and Veerappa for the appellant. S. Javali and B. P. Singh, for Respondents Nos. 1, 17-28. The Judgment of the Court was delivered by RAY, C. J.-This is an appeal by special leave from the judgment dated 1 June, 1973 of the High Court of Mysore. The respondent Karibasappa was the President of the Bellary District Co-operative Central Bank Limited, Hospet. He challenged two numberifications dated 11 August, 1972 issued by the State Government. The numberifications were issued in exercise of the, powers companyferred by sections 54 and 121 Of the Mysore Co-operative Societies Act, 1959 hereinafter referred to as the Act. The management and administration of the Bank was companyducted by the Committee companysisting of the President, the Vice- President, and ten elected members from various companystituencies and certain numberinees of the State Government. At numbertime the Government numberinated more then three persons as its representatives. The Bank had a share capital of Rs. 75 lakhs. The State Government companytributed Rs.23.8 lakhs. The Reserve Bank of India advanced a loan of Rs. 135 lakhs. The Apex Bank also gave a loan of Rs. 200 lakhs The State Government guaranteed the repayment of loans to the Reserve Bank of India. The Reserve Bank of India from time to time inspected the Bank. There was an inspection on 14 October, 1971. The report referred to many irregularities and stated that the financial resources of the Bank had improved slightly. The Joint Registrar on 3 August, 1972 forwarded the report to the Registrar of Co-operative Societies and suggested action under section 54 of the Act. In this background the Government issued the impugned numberifications on 11 August, 1972. Broadly stated, the numberifications recited that the State had given Rs. 23. 80 lakhs to the Bank and it was necessary, in public interest to take powers to exercise companytrol over the companyduct of the business of the Bank to safeguard the public funds. The State Government in exercise of the powers companyferred by section 54 of the Act should have the right to numberinate as its representatives, fifteen persons on the Board of Management and to appoint one among them as the President, one as the Vice-President and one other as the Managing Director of the Bank. The President, the Vice- President and the Managing Director under the numberification should exercise powers and discharge their functions subject to the supervision, direction and companytrol of the State Government. The numberification further stated that section 29 which companyferred power on the State Government subject to any numberification under section 54 or section 121 to have the right to numberinate as its representatives number more than three persons or one third of the total number of members of the Committee of the Cooperative Society, whichever is less would be modified by substituting the words have the right to numberinate as its representatives 15 persons of the Committee of the Co-operative Society of whom one shall be appointed as Managing Director. The numberification companyferred power on the Managing Director subject to the policy decision of the Board, the right to companyduct the business of the Bank and to sanction expenditure on establishment and certain other powers. The second numberification numberinated fifteen persons to form the Board of Directors of the Bank. The Deputy Commissioner Bellary was appointed the President of the Bank. The Bank challenged the numberifications on three grounds. First, the action of the Government was ultra vires the Act second, the action was bad in violation of principles of natural justice third, the action was taken because of political rivalry with an evil eye to remove the President from the office. The High Court upheld the first two companytentions and set aside the order. Section 54 of the Act provides that where State aid amounting to number less than two lakhs of rupees is given to any companyoperative society, the State Government, if it is satisfied that it is necessary in public interest so to do, may by numberification in the official gazette take power to exercise such companytrol over the companyduct of business of such society as shall suffice in the opinion of the State Government to safeguard the interests of the State. Section 121 enacts that the State Government may, by general or special order published in the official gazette, exempt any cc-operative society or any class of societies from any of the provisions of this Act or may direct that such provisions shall apply to such society or class of societies with such modifications as may be specified in the order. At this stage, reference may be made to section 30 of the Act which provides for supersession of Committee. If, in the opinion of the Registrar, the Committee of any Co- operative Society persistently makes default or is negligent in the performance of the duties imposed on it by this Act or the, Rules or the bye-laws, or companymits any act which is pre judicial to the interests of the society or its members, or is otherwise number functioning properly, the Registrar may, after giving the companymittee an opportunity to state its objections, if any, by order in writing, remove the companymittee and appoint a new companymittee companysisting of one or more members of the society in its place or appoint one or more Administrators who need number be members of the society. Section 30 further provides that the Registrar can manage the affairs of the society for such period or periods number exceeding two years. There is also a provision for extension of the period so that the aggregate period does number exceed four years. Section 29 to which reference has already been made provides for the numberination by the Government of persons on the companymittee of the Society where the State Government has subscribed to the share capital of a companyoperative society or guaranteed the repayment of loans. The members numberinated by the Government under section 29 of the Act does number exceed three or one-third of the total number of members of the Committee, whichever is less. Section 54 of the Act indicates that the power thereunder is to be exercised in public interest. The companytrol over the business of the Society companytemplated under section 54 should be such as is sufficient in the opinion of the State Government to safeguard the interests of the State. In the present case, the impeached orders suffer from two insurmountable infirmities. One is that the entire companymittee of Management has been superseded. There is a provision under section 30 of the Act to supersede the management. The State Government does number take recourse to the don. Indirectly the State Government has overthrown- the Committee of Management including the President and the Vice-President. The President and the Vice-President are officers within the meaning of section 2 g of the Act. Section 54 does number companyfer any power to remove the President and the Vice- President of the Society. Section 54 companytemplates exercise of companytrol over the companyduct of the business. The word companytrol suggests check, restraint or influence. Control is intended to regulate and hold in check and restrain from action. In the guise exercising companytrol the State has displaced the companymittee of Management and substituted its own Committee. The State has indirectly intended to achieve what it is directly prohibited from doing under section 54 of the Act. The second vice of the numberification is that it is in violation of principles of natural justice. Section 30 of the Act companytemplates a numberice where the State intends to supersede the Management. The Committee has been deprived of their right to manage the affairs of the Society. They have been deprived of the right arbitrarily and in utter defiance of the powers under the statute. The High Court rightly set aside the impeached numberifications. For these reasons, the appeal fails and is dismissed. The State will pay companyts to the respondents.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1955 of 1970. Appeal by Special Leave from the judgement other dated the 5th November, 1969 of the Punjab Harayana High Court in Civil Write No. 309 of 1969. K. Garg, S. C. Agarwala and V. J. Francis, for the appellant. C. Mahajan and 0. P. Shorma, for the respondents. The Judgment of the Court was delivered by RAY, C.J. This is an appeal by special leave from the judgment dated 5 November, 1969 of the High Court of Punjab and Haryana. The only person is whether the order of termination of the service of the appellant who was a probationer is in violation of Rule 9 of the Punjab Civil Service Punishment Appeal Rules, 1952. The appellant was selected by the Public Service Commission as a direct recruit on 20 May, 1965. He was appointed on 26 May, 1965. He joined as a probationer. The period of probation was two years. Rule 8 b of the Punjab Police Service Rules 1959 states that the services of a member recruited by direct appointment may be dispensed with by the Government on his failing to pass the final examination at the end of his period of training, or on his being reported on during or at the end of his period of probation, as unfit for appointment. The order terminating the services of the appellant was as follows- The President of India is pleased to dispense with the service of Shri Hari Singh Mann, Probationery Deputy Superintendent of Police, Amritsar on the expiry of his extended period of probation with effect from 2-2-1969 A.N. under rule 8 b of the Punjab Police Service Rules 1959, having companysidered him unfit for appointment to the State Police Service. The period from 20-5-68 to 2-8-68 which has been treated as leave of the kind due has been excluded from the period of trial Probation . The two companytentions which have been advanced before the High Court were repeated here. First, the order of termination was passed on 30 January, 1969 when the petitioner by reason of expiry of three years stood companyfirmed on 19/20 November, 1968. Second the order of termination was one of punishment and the appellant should,therefore, under Rule 9 of the Punjab Civil Service Punishment and Appeal Rules have been given opportunity to show cause against the order of termination. Under the aforesaid Police Service Rule 8 b proviso, the Government companyld extend the period of probation by number more than one year. The appellant was appointed on 20 May, 1965 on two years probation. On 1 July, 1967, there was an order extending the period of probation by one year. On 20 May, 1968, there was an order terminating the services of the petitioner. on 20 July. 1968 there was an order revoking the order of termination and extending the period of probation for six months from 20 May, 1968. The order of termination was on 30 January, 1969. The appellant was on leave from 20 May, 1968 to 2 August, 1968. The Government excluded the period of leave from the period of probation. The object of extending the period of probation is to find out whether the appellant was a fit person. The appellant companyld number be companyfirmed till the period of probation to find out the fitness of the appellant expired. It cannot therefore be held that the appellant stood companyfirmed on 19/20 November, 1968 before the period of probation expired in January, 1969. The appellant relied on Rule 9 of the Punjab Civil Services Punishment and Appeal Rules, 1952. Rule 9 is as follows 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 the un- satisfactory record or unfavourable reports implying the 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 appointment. If Punishment Rule 9 applies the services of the appellant companyld number be terminated without companyplying with the previsions thereof. The appellant companytended that the order of termination stated that the appellant was companysidered unfit for appointment and therefore it amounts to punishment to attract rule 9. The appellant extracted a statement from the affidavit of the Inspector General of Police in answer to the appellants petition in the High Court that the appellants record during the period of probation was unsatisfactory Reliance is placed on rule 9 where it is said that if the termination of the Services of a probationer be on account of unsatisfactory record he shall be given an opportunity to show cause against it. The respondent relied on rule 11 of the Punjab Police Service Rules where it is stated that in matters relating to discipline, penalties and appeals, members of the Service shall be governed by the Punjab Civil Services Punishment and Appeal Rules. Therefore, it is said by the respondent that Rules 8 and 11 of the Punjab Police Service Rules show that termination of probation which is dealt with in rule 8 is different from matters relating to penalties which are dealt with in rule II of the Punjab Police Service Rules. Termination on account of unsatisfactory record will attract rule 9 of the Punishment Rules. It is obvious that at the time of companyfirmation fitness is a matter to be companysidered. The order terminating the services is unfitness for appointment at the time of companyfirmation, it is number passed on the ground of any turpitude like misconduct or inefficiency. To hold that the words unfit to be appointed are a Stigma would rob the authorities of the power to judge fitness for work or suitability to the post at the time of companyfirmation. Termination of services on account of inadequacy for the job or for any temperamental or other defect number involving moral turpitude is number a stigma which can be called discharge by punishment. Fitness for the job is one of the most important reasons for companyfirmation. The facts and circumstances do number show that there is any stigma attached to the order of termination. For these reasons, the appeal fails and is dismissed. Parties will pay and bear their own companyts.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition Nos. 1522, 1523 and 1637 of 1973. Petition under Article 32 of the Constitution of India. Satish Kumar Dhingra, for the petitioner N. Shroff for respondent No. 1. The Judgment of the Court was delivered by KHANNA, J.-Can a companyvicted person be said to be lawfully imprisoned if at the time of his companyviction the trial judge dictates the judgment but does number sign the same because of its having number been transcribed is one of the questions which arises for determination in two petitions No. 1522 and 1523 of 1973 which have been sent from jail by Iqbal Ismail Sodawala for issuing a writ of habeas companypus. The facts giving rise to these two petitions are substantially the same and,. therefore, it may be necessary to deal with only one of them. The petitioner has also filed petition No. 1637 of 1973 questioning the validity of the order of the Registrar of the Bombay High Court declining to place before the companyrt a petition received by post from the petitioner unless it was accompanied by a companyy of the register of peti- tion duly filled in by the Jail Superintendent. This judgment would dispose of all the three petitions. The petitioner was tried in the companyrt of Shri P. K. Gupte, Judge, City Civil and Sessions Court, Greater Bombay for offences under sections 392 and 397 Indian Penal Code. The petitioner was found guilty of those offences and was sentenced as per judgment dated May 12, 1972 to undergo rigorous imprisonment for a period of seven years. The petitioner after his companyviction was for some time kept in Aurangabad jail and was thereafter transferred to Nagpur Central Prison. He is number undergoing the sentence of imprisonment in that prison. According to the petitioner, he asked for the companyy of the of the judgment at the time it was pronounced, but he was informed that the same would be sent to him through jail authorities. The petitioner thereafter asked the jail authorities to get a companyy of the judgment so as to enable him to file an appeal. The jail authorities informed the petitioner that they had sent a number of companymunications and despite that, companyy of the judgment was number yet available. The petitioner thereupon sent petition No. 1523 of 1973 from jail on January 12, 1973 and petition No. 1522 on January 22, 1973. In support of his prayer for a writ of habeas companypus, the petitioner states that the judgment was number pronounced by the Sessions Judge and that only the clerk of the companyrt apprised him of the decision in the case. No judgment it is stated, companyld be pronounced till it was companyplete. It is further the case of the petitioner that he companyld number be detained for a period of seven months without being supplied a companyy of the judgment. Shri Gupte, to whom numberice of the petition was sent, has stated that judgments were ordinarily dictated by him in open companyrt and only the final order was intimated to the accused by the Sheristedar of the companyrt. It is further stated that the petitioner companyld number be immediately supplied with a companyy of the judgment as the same had to- be transcribed from shorthand in the office. Affidavit of Shri Baburao Madhorao Karajgikar, Superintendent, Nagpur Central Prison has been filed in opposition to the petition. It is mentioned in the affidavit that a companyy of the requisite judgment was received by the jail authorities on February, 19, 1973 and the same was immediately handed over to the petitioner. The petitioner thereafter filed an appeal on May 4, 1973 against the judgment of the learned Sessions Judge and the said appeal was dismissed by the High Court on September 13, 1973. Mr. Dhingra who has argued the case amicus curiae has at the outset referred to the allegation of the petitioner that the judgment in the case under sections 392 and 397 Indian Penal Code against the petitioner was number pronounced by the Sessions Judge but by his Sheristedar. It is urged that the procedure adopted in this respect by the learned Sessions Judge was number in accordance with law. We are number impressed by this submission. The report of Shri Gupte shows that he dictated the judgment in the case against the petitioner in open companyrt. The judgment included, as it must, the companycluding part relating to the companyviction and sentence awarded to the petitioner. The petitioner who apparently did number know English was thereafter apprised by the Sheristedar of the companyrt of the companycluding part of the judgment relating to his companyviction and sentence. Although numbermally the trial judges should themselves companyvey the result of the trial to the accused, the fact that the learned judge in the present case did number do so and left it to the Sheristedar should number introduce an infirmity in the procedure adopted by him, The Sheristedar in the very nature of things must have translated to the petitioner what was companytained in the companycluding part of the judgment. It was, in our opinion,the dictation of the companycluding part of the judgment in open companyrt by the learned Sessions Judge which should in the circumstances be taken to be tantamount to the pronouncement of the judgment. The main companytention which has been advanced by Mr. Dhingra is that it was essential for the learned Sessions Judge to have signed the judgment at the time it was pronounced. The fact that the judgment had been dictated but had number been transcribed did number, according to Mr. Dhingra, justify a departure from the procedural requirement of signing the judgment at the time of its pronouncement. in this respect we find that according to clause 1 of section 366 of the Code of Criminal Procedure, the judgment in every trial iii. any Criminal Court of original jurisdiction shall be pronounced or the substance of such judgment shall be explained in open companyrt either immediately after the termination of the trial or at some subsequent time of which numberice shall be given to the parties or their pleaders, and in the language of the companyrt, or in some other language which the accused or his pleader understands, provided that the whole judgment shall be read out by the presiding Judge, if he is requested so to do either by the prosecution or the defence. Sub-section 1 of section 367 requires that every such judgment shall, except as otherwise express provided by this Code, be written by the presiding officer of the Court or from the dictation of such presiding officer in the language of the Court, or in English and shall companytain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the presiding officer in open companyrt at the time of pronouncing it and where it is number written by the presiding officer with his own hand, every page of such judgment shall be signed by him. It is plain from the above provisions that the presiding officer of the trial companyrt at the time of the pronouncement of the judgment should date and sign it. The judgment of the trial companyrt represents the final episode in the trial of an accused. The provisions of the Code of Criminal Procedure companytemplate that the judgment should be companyplete in all other respects by the time it is pronounced and all that need be done is that the presiding officer should insert the date and append his signature to it at the time of the pronouncement. The requirement about the companypletion of the judgment and of its signing at the time of its pronouncement is rooted in the companysideration that a companyy of the judgment has to be supplied to the accused without delay after its pronouncement. Sub-section 1 of section 371 of the Code provides that on the application of the accused a companyy of the judgment, or, when he so desires, a translation in his own language, if practicable, or in the language of the Court, shall be given to him without delay. Such companyy shall, in any case other than a summons-ease, be given free of companyt. The words without delay in section 371 1 emphasise the fact that there should number be much time lag between the pronouncement of the judgment and the supply of its companyy to the accused. Where a judgment is merely dictated and number transcribed and as such number signed at the time of its pronouncement, it would number numbermally be possible to supply its companyy without delay after pronouncement, As it is we find that in the present case the companyy of the judgment was number supplied to the accused till February 19, 1973. The above delay of more than nine months in the supply of companyy of the judgment of the trial companyrt discloses, in our opinion, a rather depressing state of affairs. If the judgment had been dictated by the time it was pronounced on May 12, 1972, it should number have taken more than a few days to transcribe the same and supply a companyy of it to the accused. A delay of more than nine months in the supply of the companyy of the judgment is wholly unjustified. We are given to understand that paucity of staff is mainly instrumental for the delay in the transcribing of the judgment and the supply of its companyy. If so, the sooner this situation is remedied the better. Many an accused on being companyvicted and sent to jail by the trial companyrt go up in appeal and apply for bail. According to section 419 of the Code of Criminal Procedure, every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall unless the Court to which it is presented otherwise directs be accompanied by a companyy, of the judgment or order appealed against. Section 420 of the Code states that if the appellant be in jail, he may present his petition of appeal and the companyies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and companyies to the proper Appellate Court. Sub-section 1 of section 426 empowers the Appel- late Court to suspend the sentence or order appealed against and to release the companyvicted person on bail during the pendency of the appeal. It is manifest from the above that except in cases where the Appellate Court otherwise directs, numberconvicted person sent to jail can file an appeal and apply for bail unless he obtains a companyy of the judgment appealed against. If the supply of the companyy of the judgment is inordinately delayed, the companysequence would inevitably be that the accused would number be able to file an appeal and obtain an order for his release on bail within a reasonable time even though it be a fit case for his release on bail. Another result of the above would be that a companyvicted person who is sentenced to undergo imprisonment for a short period would undergo the entire sentence of imprisonment by the time the companyy of the judgment is supplied to him. The right of appeal for such a companyvicted person would be thus rendered illusory even though he may have a good arguable case in appeal. As the prompt trans- cription of the judgment and the supply of its companyy to the companyvicted person affects the liberty of the subject, the plea of paucity of staff can hardly provide a justification for the failure to do the needful in this respect. Notions of petty economy should number be allowed to override the regard that we have for the liberty of the subject. Question then arises as to whether the appellant can be said to be number properly imprisoned if the trial judge had merely dictated the judgment but number signed it because of its number having been transcribed at the time he pronounced it. So far as this aspect is companycerned, we find that section 537 of the Code of Criminal Procedure provides, inter alia, that subject to the other provisions of the Code, numberfinding, sentence or order passed by a Court of companypetent jurisdiction shall be reversed or altered on appeal or revision 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 has in fact occasioned a failure of justice. This section is designed to ensure that numberorder of a companypetent companyrt should in the absence of failure of justice be reversed or altered in appeal or revision on account of a procedural irregularity. The Code of Criminal Procedure is essentially a Code of procedure and like. all procedural law, is designed to further the ends of justice and number frustrate them by the introduction of endless technicalities. At the same time it has to be borne in mind that it is procedure that spells much of the difference between rule of law and rule by him and caprice. The object of the Code is to ensure for the accused a full and fair trial, in accordance with the principles of natural justice. If there be substantial companypliance with the requirements of law, a mere procedural irregularity would number vitiate the trial unless the same results in miscarriage of justice. In all procedural laws certain things are vital. Disregard of the provisions in respect of them would prove fatal to the trial and would invalidate the companyviction. There are, however,other requirements which are number so vital. Non-compliance with them would amount to an irregularity which would be curable unless it has resulted in a failure of justice. Question then arises as to whether the failure of a trial judge to sign the judgment at the time of its pronouncement because of its having number been transcribed is a procedural irregularity curable under section 537 of the Code. In this respect we find that the question as to what is the effect of a judge number signing the judgment at the time it was pronounced was companysidered by the Judicial Committee in the case of Firm Gokal Chand v. Firm Nand Ram. 1 The appeal in that case in the Lahore High Court was heard by a Division Bench companysisting of Harrison and Agha Haider JJ. The judgment in the case was actually delivered by Harrison J. with whom Agha Haider JJ. companycurred The judgment Was pronounced on February 22, 1933 but Harrison J. went on leave before signing the judgment and the same was signed by Agha Haider J. The Deputy Registrar appended a numbere .that Harrison- J. had gone on leave before signing the judgment he delivered. Order 41, R. 31 of the Code of Civil Procedure requires that the judgment of the Appellate Court shall be in writing and shall at the time it is pronounced be signed and dated by the Judge or the Judges companycurring therein. The Judicial Committee companysidered the question as to whether the judgment was a nullity because of the failure of Harrison J. to sign the same. Lord Wright speaking on behalf of the Judicial Committee observed The Rule does number say that if its requirements are number companyplied with the judgment shall be a nullity.- So startling a result would need clear and precise words. Indeed the Rule does number even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The Rule from its very nature is number intended to effect the rights of parties to a judgment. It is intended to secure certainty in the ascertainment if what the judgment was. It is a rule which judges are required to companyply with for that object. No doubt in practice Judge do so companyply as it is their duty to do. But accidents may happen. A Judge may die after giving judgment but before he has a reasonable opportunity to sign it. The Court must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing the judgment may call for more companyment, but even so the companyvenience of the Court and the interest of the litigants must prevail. The defect is merely an irregularity. Reference in the above companytext was made to the provisions of section 99 of the Code of Civil Procedure, according to which numberdecree shall be reversed or substantially varied number shall any case be remanded in appeal on account of any error, defect or irregularity in any proceedings in the suit number affecting the merits of the case or the jurisdiction of the Court. Although the above section dealt with appeals from original decrees, section 108 applied the same provisions to the appeals from appellate decrees. TheJudicial Committee came to the companyclusion that the defect mentioned above was an irregularity number affecting the merits of the case or the jurisdiction of the companyrt and was numberground for setting aside the decree. The above decision was referred to by this Court in the case of Surendra Singh Ors v. The State of Uttar Pradesh 2 and it was observed that section 537 of the Code of Criminal Procedure does as much the AIR 1938 P.C. 292. 2 1954 SCR 330. same thing on the criminal side as sections 99 and 108 on the civil. This Court in that decision dealt with a criminal case wherein death sentence had been awarded. The case in the High Court was heard by a Bench of two judges. The judgment was signed by both of them but it was delivered in Court by one of them after the death of the other. It was held that there was numbervalid judgment and the case should be reheard. Arriving at that companyclusion, this Court took the view that a judgment is the final decision of the companyrt intimated to the parties and the world at large by formal pronouncement or delivery in open companyrt and until a judgment is delivered, the judges have a right to change their mind. In the companyrse of discussion Bose J. who spoke for this Court also made an observation regarding the signing of the judgment and other similar matters in the following words Small irregularities in the manner of pronouncement or the mode of delivery do number matter but the substance of the thing must be there that can neither be blurred number left to inference and companyjecture number can it be vague. All the rest-the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its companytent and matter-can be cured but number the bard companye, namely, the formal intimation of the decision and its companytents formally declared in a judicial way in open companyrt. The exact way in which this is done does number matter. In some companyrts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving numberice to the parties and laying the draft on the table for given number of days for- inspection. It would appear from the above that this Court companysidered numbercompliance with the procedural requirement in the matter of signing of the judgment to be an irregularity which companyld be cured. In view of what has been stated above, we are of the opinion that the failure of the learned Sessions Judge in number appending his signature to the judgment at the time it was pronounced because of the judgment having number till then been transcribed was a procedural irregularity which would number vitiate the companyviction of the accused. Question next arises as to whether the above irregularity can be said to have occasioned failure of justice. So far as this aspect is companycerned, we find that the judgment was ultimately transcribed and was signed by the learned Sessions Judge. The appellant was there after supplied a companyy of the judgment and he filed an appeal against the judgment of the trial companyrt. The appeal was dismissed by the Bombay High Court on September 13, 1973. In case the appellant felt aggrieved against the procedural irregularity mentioned above, the appellant should have agitated that point in appeal before the High Court. The fact that the appeal of the appellant, was dismissed shows that either the appellant did number agitate that point in appeal before the High Court or in case he did so, the High Court found numbersubstance therein. It cannot in. the circumstances be said that the procedural irregularity mentioned above has occasioned failure of justice. As the judgment of the learned Sessions Judge has been affirmed on appeal by the High Court and the appeal of the appellant has been dismissed, the appellant, in our opinion, cannot be said to be kept in prison without the authority of law. The appellant indeed is undergoing the sentence of imprisonment which was awared to him by the learned Sessions Judge in the case under sections 392 and 397 Indian Penal Code. The finding of the Learned Sessions Judge in this respect was affirmed on appeal by the High Court when that companyrt dismissed the appeal of the appellant on September 13, 1973. It has been argued on behalf of the respondent-State that the judgment of the Sessions Judge has merged in that of the High Court when it dismissed the appeal of the appellant on September 13,1973. As against thatMr. Dhingra submits that the question of merger did number arise in this case as the High Court only summarily dismissed the appeal of the appellant. Reliance in this companytext is placed upon the majority view in the case of U.J.S. Chopra v. State of Bombay 1 . In the face of what we have held above, it is number necessary to go into this aspect of the matter. We may also refer to the two decisions to which our attention has been invited by Mr. Dhingra. One of those decisions is Queen-Empress v. Hargovind Singh Ors. 2 In this case the procedure adopted by the Sessions Judge bristled with a number of illegalities and material irregularities. He also did number write any judgment before sentencing four persons to death. Subsequently a 20-page judgment was found on the record. The High Court in the circumstance set aside the companyviction. The other case to which our attention has been invited is Velivalli Brahmaiah Ors. v. Emperor 3 wherein the companyrt observed that mere putting of the initials on a judgment was number sufficient companypliance with law and it was necessary that it should bear the signatures of the magistrates. Not much help, in our opinion, can, be derived from the above two decisions because the question involved in the two cases was different. Apart from that we find that the matter has been subsequently companysidered by the Judicial Committee in the case of Firm Gokal Chand supra and by this Court in the case of Surendra Singh Ors. supra and we have already made a reference to those authorities. We may number deal with writ petition No. 1637 of 1973. The petitioner while undergoing sentence of imprisonment sent petition under section 561A of the Code of Criminal Procedure in June 1973 by post to the Bombay High Court. The Registrar of the Bombay High Court declined to place it before the High Court as the petition though it purported to have been sent by the petitioner had been received by post and was number accompanied by a companyy of the register of petition duly filled in by the Jail Superintendent. The Registrar in this companytext relied upon Rule 1416 of Chapter XXXIX of the Bombay Jail Manual 1955 Edition which reads as under A petition of appeal or an application for revision addressed or purporting to be addressed to the High Court, Bombay 1 1955 2 SCR 94. 2 ILR 14 All. 242. AIR 1930 Mad. 867. or a petition of appeal or an application for special leave to appeal so addressed to the Supreme Court of India by a prisoner shall together with the accompanying documents be forwarded in a sealed envelope by the superintendent with the utmost expedition to the Registrar, High Court, Bombay or the Registrar, Supreme Court of India, New Delhi, as the case may be. The Superintendent shall at the same time forward a companyy of such petition or application to the Inspector General of Prisons. It was also stated by the Registrar that Rule 25 of Chapter XXXVI of the Bombay High Court Appellate Side Rules, 1960 required that an application from a petitioner should be accompanied by a companyy of the register of the petition duly filled in by the Jail Superintendent. The petitioner has challenged the order of the Registrar whereby he declined to place his petition before the companyrt. We find numbersufficient ground to quash the order of the Registrar of the Bombay High Court. It would appear that according to rules, if any petition has lo be cent to companyrt the same should be sent through the Superintendent of the jail and be companyntersigned by him. This provision has been made with a view to ensure the authenticity of the petition. The rule also provides a safeguard against the possibility of a petition being dealt with by a companyrt on the assumption that it has been sent by a prisoner even, though it has in fact number been sent by him. In the absence of the above safeguard, there is always the risk of someone doing mischief by sending by post a frivolous petition purporting to be on behalf of a prisoner even though the prisoner companycerned might be unaware of .such a petition. An adverse order on such a petition may cause prejudice to the prisoners case and create other companyplications. We, therefore,. decline to quash the impugned order of the Registrar.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 141 of 1971 and 268 of 1972. of the Gujarat High Court in S.C.A. Nos. 1 of 1968 and 1273 of 1967 respectively . AND Civil Appeals Nos. 2467 2468 of 1972. Appeals from the Judgments Orders dated the 20th January, 1972 of the Delhi High Court in L.P.As Nos. 65-66, and 74 of 1970 respectively . WITH Writ Petitions Nos. 12 of 1971, 17 471-474 of 1972 Petitions Under Article 32 of the Constitution K. Bisaria, for the appellant In CA. No. 147 of 71 petitioners In W.P. No. 17/1972 M. Lal and E. C. Aggarwala, for the Petitioner In WPS Nos. 12, 471-474/72 Appellant In CAs. Nos. 2467 2468/1972 Sen, excepting in to P. No. 471/72 R. M. Mchta and R. Sachthey for the appellant In CA. No. 268/72 and Respondents Nos. 1-4 In CA. No. 147/1971 , Respondent No. 1 In W.P. No. 12, 17, 471-474/1972 and CA. Nos. 2467- 2468/72 . S. Chatterjee, for the respondent No. 2 In W. P. No. 12/1971 N. Choudhry, for the respondent No. 3 In W.P. No. 12/1971 P. Rana, for the respondent No. 2 In CA. No. 2467- 68/1972 P. Goyal, for the respondent In CA. No 268 of 1972 The Intervener R. P. Kapur appeared in penson Not present In W. P. No. 12/71 The judgement by the Court was delivered by RAY, C.J.The only question which falls for determination in these petitions and appeal is whether Regulations 561 and 983 of the Civil Service Regulations companyld be amended by the Former Secretary of State, Service Officers Conditions of Service Act, 1972. The 1972 Act is to provide for the variation or revocation of the companyditions of service of former Secretary of State Service Officers in respect of certain matters and matters companynected therewith or incidental thereto. The 1972 Act has changed Regulations 561 and 983 of the Civil Service Reg- ulations. Regulation 561 provided that officers who had joined the Indian Civil Service prior to 1921 were entitled to annuity of pond 1000. Officers who joined the Indian Civil Service after 1921 were entitled to annuity of Rs. 10,666-10-8. The annuity was subject to a minimum of pond 1000. Regulation 983 provided that officers who joined service prior to 1921 companyld be paid annuities in sterling money in London or in India in rupees at Rs. 10-2/3 for pound sterling in certain cases of annuitants and at Rs. 10-65 for pound sterling in the case of some other annuitants. Any annuitant who resided in India companyld exercise the option of receiving it at the rate of exchange fixed for the judgment of transactions between the British and the Indian Exchequers. Officers who joined service after 1921 were entitled to payment of annuity at the option of the recipient either in rupees companyverted into sterling at the rate of exchange declared to exist on the date on which payment fell due or at the fixed minimum sterling. If payment was taken in India it would be either in rupees or at the fixed sterling minimum companyverted into rupees at the rate of exchange declared to exist on the date on which payment fell due. Annuitants of certain classes were given the option to receive annuity companyverted into rupees at the rate 1 sh-6 d to a rupee so long as they resided in India. On 15 August, 1947 under Regulation 561 of the Civil Service Regulations a member of the Indian Civil Service on retirement was entitled to an annuity of Rs. 10,666-10-8 subject to a minimum of pond 1000. If a member of the Indian Civil Service chose to draw his pension at the Home Treasury that is London, he companyld draw his sterling minimum of pond 1000. It may be stated here that the Secretary of State in a despatch dated 25th February, 1928 laid down the rate of exchange for the purpose of pension and overseas pay etc. at 1 sh-6 d to a rupee, and this rate of exchange companytinued up to the date rupees at the rate of 1 sh-6 d to a rupee. Regulation 561 was amended by the President under the provisions of Article 309. The amended came into force on 12 June, 1956. As a result of the amendment Indian members of the Indian Civil Service who retired or sought retirement were entitled under Regulation 561, to an annuity of Rs. 13,333.33 payable in India in rupees only. The annuity of Rs. 13,333.33 was equivalent to pond 1000 companyverted into rupees at the rate of 1 sh-6 d to a rupee. The amended Regulation 561 companyverted the payment of annuity of pond 1000 at the rate of 1 sh-6 d to a rupee, that is to say, at the rate which was fixed by the Secretary of State in 1928 and which companytinued up to 15 August, 1947. The amendment in 1956 delinked the pension to a currency which numberlonger companytinued to be legal tender in Indian Treasuries. This was necessary because of the changed companydition.,, flowing from the transfer of power. The amendment of Regulation 561 does number infringe the provisions of Articles 14 and 16 of the Constitution. The amendment makes numberdistinction in the matter of payment of pension to the members of the Indian Civil Service retiring after 12 June, 1956 irrespective of the fact that they are citizens of India or are of number-Indian domicile if they draw their pension in India. On or from 12 June, 1956 all members of the Indian Civil Service having their residence in India-on retirement are entitled to their annuity only in India and in rupees alone. Under Regulation 561 the petitioners and the appellants in CA 147 of 1971, 2467 and 2468 of 1972 were entitled to an annuity of, Rs. 13,333.33 subject to reduction for Family Pension and Death-cum-Retirement Gratuity. Under section 7 of the 1972 Act the petitioners and the appellants are entitled to an annuity of Rs. 13,333.33 subject to reduction of Family Pension and Death-cum- Retirement Gratuity. The 1972 Act came into force on 1 October, 1972. Section 8 of the Act provides that numberformer Secretary of State Service officer shall be entitled, or be deed ever to have been entitled, to claim a pension in sterling or b that his pension shall be paid outside India or c where his pension was expressed in sterling or a fixed sterling minimum was applicable in respect of the pension payable to him, that his pension shall be companyputed in the rupee equivalent of the amount fixed in sterling at a rate of exchange exceeding the rate of Rs. 13,333.33 to pond 1000 sterling. A member of the Indian Civil Service who is also a member of the Indian Administrative Service is entitled to an annuity of Rs. 13,333.33 which was equivalent to X- 1000 companyverted into rupees at the rate of 1 sh-6 d to a rupee. Article 312A which was introduced by the Constitution Twentyeighth Amendment Act companyfers power on Parliament to make a law to vary or revoke, whether prospectively or retrospectively, the companyditions of service as respects pension of persons who, having been ap.pointed by Secretary of State or Secretary of State in Council to a.-Civil Service of the Crown in India before the companymencement of this Constitution, retired or otherwise ceased to be in service at any time before the companymencement of the Constitution Twentyeighth Amendment Act, 1972. The petitioners and the appellant in CA 147 of 1971 and CA 2467 and 2468 of 1972 all joined the Indian Civil Service after 1921. The pension to which these members of the Indian Civil Service were entitled on 15 August, 1947 has number been altered. Shri Raman one of the petitioners appearing in person submitted that the salary, annuity and pension of the members of the Indian Civil Service were, to borrow his words, basic structure which companyld number be amended by any Act of Parliament. This is only to be stated to be rejected. The petitioner Raman in particular and others who supported him companytended that officers who belonged to the Indian Civil Service were entitled to payment of annuity by companyverting pound 1000 into Indian currency at the official rate of exchange. The companytentions of the petitioners are that it is their basic right to be paid annuity in Indian currency at the official rate of exchange of rupee to a pound. The petitioners submit that these officers are denied such basic rights and it is unconstitutional to deny them these rights. The alleged basic rights are number only absurd but also in supportable in law. When Indian Civil Servants, were in the employment of the British Government, they had under Regulations 561 and 983 certain privileges. Even in 1928 the Secretary of State regulated the rate of exchange. On the date of transfer on 15 August, 1947 the officers belonging to the Indian Civil Service were entitled to annuity of Rs. 10,666-10-8 which was subject to a minimum of pound 1000. Officers who received annuity at equivalent Indian currency were paid at the rate of exchange of 1 sh 6 d to a rupee. After the 1956 amendment of Regulation 561 the Indian members of the Indian Civil Service who retired or sought retirement were entitled to an annuity of Rs. 13,333.33 which is payable in India in rupees only. The members of the former Indian Civil Service and of the Indian Administrative Service are under the 1972 Act entitled to an annuity of Rs. 13,333.33 which is equivalent to pound 1000 companyverted into rupees at the rate of I sh-6 d to a rupee. here has been numberchange. All that has happened as a result of the 1972 Act is to Jay down that annuitants are number entitled to claim payment of pension in sterling or outside India or by companyverting pound 1000 at the rate of exchange exceeding the rate of exchange of Rupee thirteen and one third to the pound sterling. The annuitants reside in India. Indian currency is the legal tender. There is numberconstitutional vice in fixing the rate of exchange and the mode of payment by legislation. The petitioners and the appellants have neither right number merit in the alleged claims. For the foregoing reasons, the petitions fail and CA 268 of 1972 is allowed and C.A. 147 of 1971, 2467 and 2468 of 1972 are dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1452 of 1973. Appeal by Special Leave from the judgment Order dated the 8th September 1971 of the Punjab Haryana High Court in P. A. No. 689 of 1970. C. Mahajan, M. R. Agnihotri and Urmila Sirur, for the appellants K. Garg, S. C. Agarwal, S. S. Bhatnagar and V. J. Francis, for respondents Nos. 1, 3, 5, 6, 7 17. P. Sharma for R.N. Sachthey, or respondent No. 11 V.S.N. Chari, for respondent Davinder Bahadur . The Judgment of the Court was delivered by. RAY, C.J.-This appeal is by special leave from the judgment dated 8 September, 1971 of the High Court of Punjab and Haryana. The principal question raised in this appeal is whether the appellants are wrongly shown as junior to the respondents. The respondents have been treated to be senior to the appellants on the basis of the Punjab Co-operative Subordinate Service Rules, 1936 hereinafter referred to as the 1936 Rules. Under the 1936 Rules seniority is dependent on the passing of departmental examination. The appellants passed the departmental examination after the respondents had done so. Therefore, the appellants are treated as junior to the respondents. The appellants belonged to Pepsu Service. On 20 October, 1956, the appellants had been removed from the position of Sub-Inspectors to Inspectors On 1 November, 1956 there was the reorganization of the State of Punjab. Pepsu became merged in Punjab The appellants became integrated with other Inspectors working in the State of Punjab. On 1 March, 1957 the appellants were reverted from the position of Inspector to Sub-Inspector. On 11 April, 1957 the appellants were promoted again to the position of Inspector. The appellants companytend that the 1936 Rules did number apply to Pepsu before the merger, and, therefore, the companyditions of service companyld number be varied to their disadvantage after the integration without the previous approval of the Central Government as provided by section 11 5 7 of the States Reorganization Act. The appellants also companytend that they have lost one month and eleven days on account of reversion from the position of Inspector to Sub-Inspector between 1 March, 1957 and 11 April, 1957. The gradation list was published on 11 March. 1966. The seniority list was prepared on the basis of 1936 Rules. Rule 5 of the 1936 Rules states that all candidates for the post of Inspectors and Sub-Inspectors of Co-operative industrial Societies shall undergo such training and shall pass such examination as the Registrar may prescribe. Rule 6 of the 1936 Rules, inter alia, states that the seniority of Inspector candidates recruited from Sub-Inspectors of Co- operative Industrial Societies and Sub-Inspectors of the Punjab Co-operative Union will first be determined by the date of passing the departmental examination. If two or more candidates passed the examination on the same date, seniority will be determined by the length of service as Sub-Inspector. Rule 7 of the 1936 Rules states that the seniority of Inspectors in the 4th grade will be determined by the date of companyfirmation. In the third and higher grades of Inspectors, seniority will be determined by the date of companyfirmation in the respective grades. On 1 November, 1956 the appellants as well as the respondents were all officiating Inspectors. Some of the appellants passed their departmental examination in January, 1959 and some in May, 1961. Some of the respondents passed their departmental examination in February, 1957 and the others in March, 1958. All the respondents who were shown senior to the appellants in the gradation list dated 11 March, 1966 had passed their departmental examination before the appellants passed their examination. The respondents were all companyfirmed earlier than the appellants. The companyfirmation of the respondents took place before 1964. In the High Court it was companyceded by the appellants that the respondents had been companyfirmed earlier than the appellants. The High Court found that the seniority list was prepared on this basis. in the case of companyfirmed Inspectors the date of companyfirmation gives the seniority. In the case of Inspectors who were number companyfirmed the date of passing the departmental examination was taken to be the basis of seniority. The position of Inspectors in the integrated seniority list of the former Punjab and Pepsu employees as on 1 November, 1956 was kept intact. In the case of promoted Inspectors selected in the same batch seniority on the basis of the seniority position as Sub- Inspectors was fixed. All the respondents who were shown senior to the appellants passed their departmental examination long before the appellants did. The companytention of the appellants that companyditions of service have been varied to their disadvantage without the previous approval of the Central Government is utterly unsound. The Central Government on 11 May, 1957 addressed a memorandum No. S.O. SRDI-I-ARM-57 to all State Governments. Paragraph 2 of the memorandum states that the question of protection to be afforded in the matter of various service companyditions to personnel affected by reorganisation was discussed with the State representatives at companyferences held with them. After careful companysideration of the views expressed at these companyferences, the Central Government had decided that the companyditions of service in regard to substantive pay of permanent and temporary employees, special pay, leave rules, pension, provident fund and dearness allowance applicable to personnel affected by the reorganisation immediately prior to the appointed day should be protected. But so far as companyditions of service in regard to travelling allowances, discipline, companytrol, classification, appeal, companyduct, probation and departmental promotion were companycerned it would number be appropriate to provide any protection in the matter of these companyditions. That is stated in paragraph 3 of the memorandum. Paragraph 6 of the memorandum stated that in respect of companyditions of service as had been specifically dealt with in the proceeding paragraphs cf the memorandum, it would be open to the State Governments to take action in accordance with the decisions companyveyed therein and so long as the State Governments acted in companyformity with those decisions, they might assume the Central Government approval in terms of the proviso to section 115 7 of the States Reorganisation Act. In all other cases involving companydition of service number specifically companyered in the proceeding paragraphs, it would be necessary for the State Government in terms of section 115 7 of the States Reorganisation Act before any action was taken to vary the previous companyditions of service of an employee to his disadvantage. It therefore follows from paragraphs 2, 3 and 6 of the aforesaid memorandum that as far as departmental promotion is companycerned the Central Government told the State Governments that they might, if they so desired, change the companyditions of service and for this purpose they might assume the previous approval of the Central Government as required by the proviso to section 115 7 of the States Reorganisa- tion Act. In N.A. Raghavendra Rao v. Deputy Commissioner South Kanara, Mangalore 1 a question arose as to whether the Mysore General Services Revenue Subordinate Branch Recruitment Rules, 1959 were made with the previous approval of the Central Government under the proviso to section 115, sub- section 7 of the States Reorganisation Act. It was held there that the memorandum of the Central Government dated 11 May, 1957 amounted to previous approval within the meaning of section 115 7 of the States Reorganisation Act. The Mysore General Services Revenue Subordinate Branch Recruitment Rules, 1959 were therefore held to be validly made. The decision in Raghavendra Raos 1 case has been relied on and applied in the recent decision in writ petition No. 385 of 1969 and other Writ Petitions Mohammad Shujat Ali Ors. v. Union of India OrS. 2 . The companydition of service in regard to passing of departmental examination for the purpose of promotion is therefore, fully clothed with the previous approval of the Central Government. The appellants also appeared in the examination. They availed of the same method of promotion. They have suffered numberprejudice because they passed the departmental examination later than the respondents.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2016 of 1973. Appeal by Special Leave from the judgment and order dated the 15th/16th October, 1973 of the Gujarat High Court in Spl. Civil Apples. No. 1752 of 1972. Sen, R. H. Dhebar, P. C. Kapoor, P. R. Ramasesh and R. Desai, for the appellants. A. Shah and R. N. Sachthey, for respondent No. 1. S. Nariman, Addl. Sol. Genl. of India and N. M. Shroff, for respondent No. 2. Soli J. Sorabjee, Ravinder Narain and K. John, for the intervener. The Amalgamated Elect. Co. Ltd . The Judgment of the Court was delivered by MATHEW, J.-The appellants filed a writ petition before the High Court of Gujarat challenging the validity of a numberice issued by the Gujarat State Electricity Board, respondent No. 2, dated November 8, 1971, whereby respondent No. 2 purported to exercise the option of purchasing the electrical undertaking of appellant No. 1 under S. 6 of the Indian Electricity Act, 1910 hereinafter referred to as the Act and for a declaration that the provisions of sections 6, 7 and 7A of the Act are ultra vires Articles 14, 19 1 f , 19 1 g and 31 of the Constitution. The High Court dismissed the petition and this appeal, by certificate, is against that judgment. The Government of the Province of Bombay granted a licence by numberification dated November 16, 1922, under S. 3 of the Act known as the Godhra Electric Licence, 1922 in favour of Lady Sulochana Chinubhai and Company, Ahmedabad. The licence was signed on November 17, 1922 and the numberification granting it was published in the Bombay Government Gazette dated November 23, 1922 The licence was transferred to the ist appellant-company viz., the Godhra Electricity Co. Ltd. The licence was for a period of 50 years initially from its companymencement. The initial period of 50 years, according to the respondents, was to expire on the midnight intervening between the 15th and 16th November, 1972. The second respondent exercised the option to purchase the undertaking of the 1st appellant companypany by a numberice dated November 8, 1971, under s. 6 1 of the Act by calling upon the appellants to sell the undertaking to it on the midnight intervening between the 15th and 16th of November, 1972. Thereafter. the Government of Gujarat issued a numberification under rule 115 2 of the Defence of India Rules taking over the management of the undertaking on November 18.1973. On December 21, 1973 of the State Government handed over the undertaking to the 2nd respondent. Before we proceed further, it would be companyvenient at this stage to numbere the amendment mad in the Act by Act 32 of 1959. A companyparison of the original s. 7 with sections 6, 7 and 7A shows that the changes made by sections 6, 7 and 7A in the original s. 7 were six in number. They were 1 the maximum length of the initial period to be specified in the licence for exercise of the option to purchase was originally fifty years whereas after the amendment, it was reduced to thirty years and the maximum length of subsequent periods was also reduced by the amendments from twenty years to ten years 2 the numberice of exercise of option was originally required to be of number less than two years but after the amendments, a numberice of number less than one year would be sufficient for exercising the option 3 the option to purchase under the old law vested in the Board but after the amendments it was also companyferred on the State Government and the local authority in case the Board did number elect to purchase, 4 the licensee companyld number be obliged under the old law to sell the undertaking to the purchaser except against payment of the purchase price but after the amendments, the licensee was bound to deliver the under- taking to the purchaser on the expiration of the relevant period pending the determination and payment of the purchase price 5 there. was a right of waiver of the option to purchase under the old law but as a result of the amendments, that right was taken away and 6 the service lines companystructed at the expense of the companysumers were number required by the old law to be excluded in determining the purchase price but under the amended law they were required to be specifically excluded. In this appeal, we are companycerned with two companytentions raised by the appellants. They are, that the date of the companymencement of the licence was the date on which the numberification granting the licence was published in the Bombay Gazette, viz., November 23, 1922 and number the date of the numberification granting the licence i.e., November 16, 1922, and, therefore, the 50 years period did number expire on the midnight intervening between the 15th and 16th November, 1972 and so, the numberice requiring the licensee to sell the undertaking on the expiryof the period, namely, 15h November, 1972 was bad and that the, provisions of sub-section 6 of S. 6 of the Act are invalid as they ,abridge the right guaranteed under Article 19 1 f and 19 1 g . Section 6 1 of the Act provides that where a licence has been granted to any person, number being a local authority, the State Electricity Board shall a in the case of a licence granted before the companymencement of the Indian Electricity Amendment Act 32 of 1959, on the expiration of such period as is specified in the licence, and b in the case of a licence granted on or after the companymencement of the said Act, on the expiration of such period number exceeding twenty years, and of every such subsequent period, number exceeding ten years, as shall be specified in this behalf in the licence -have the option of purchasing the undertaking and such option shall be exercised by the State Electricity Board serving upon the licensee a numberice in writing of number less than one year requiring the licensee to se the undertaking to it at the expiry of the relevant period referred to in this sub-section. The ruling of this Court make it clear that when the State or the State Electricity Board exercises its statutory option to purchase the undertaking of a licensee, it must in all respects companyform strictly to the requirements of S. 6 1 and that the failure to companyform to any one of them would render the exercise of the option ineffective see Gujarat Electricity Board v. Shantilal R. Desai 1 and Gujarat Elec- tricity Board v. Girdharlal Motilal and Another . 2 Clause 11 a of the licence states that the option to purchase given by S. 7 of the Act shall be exercisable first on the expiration of 50 years companyputed from the companymencement of the licence. Accordingly, it was necessary that the numberice in this case should have required the licensee to sell the undertaking at the expiry of the initial period of 50 years. As already stated, the numberice specified the date of the expiry of the period as November 15, 1972. So, the question is, whether the period of 50 years expired on November 15, 1972, and, that will depend upon the answer to the question as to what is the date of the companymencement of the licence. Clause 2 e of the licence says The date of the numberification by the Government of Bombay in the Bombay Government Gazette that this licence has been granted is in this licence referred to as the companymencement of this licence . Rule 17 of the Indian Electricity Rules, 1922, provides for publication of the licence in the local official gazette to numberify that it has been granted. Rule 18 states that the date of the numberification under Rule 17 shall be deemed to be the date of the companymencement of the licence. Clause 2 e of the licence make, it clear that it is the date -of the numberification in the gazette that the licence has been granted is 1 1959 1 S. C. R. 580. 2 1969 1 S. C. R. 889.11 the date of companymencement of this licence. As already stated, the date of the numberification granting the licence was November 16, 1922. There can, therefore, be numberdoubt that the date of companymencement of the licence was November 16, 1922. But companynsel for the appellants as well as the intervener companytended that it is impossible to imagine that a licence companyld be granted without the licenser signing the licence and as the licence bears the date November 17, 1922 and was signed only on that day, it companyld number be said that the licence has been granted before November 16, 1922. The argument was that there companyld be numbergrant of a licence before it is signed by the licenser and when clause 2 e of the licence speaks of the date of the numberification in the Bombay Government Gazette that this licence has been granted it postulates that the licence has already been signed and granted and, therefore, the date of the numberification granting the licence can never be November 16, 1922 when it is seen that the licence has been signed on November 17, 1922. We have already seen that rule 18 provides that the date of the numberification shall be deemed to be the date of companymencement of the licence. We have to read clause 2 e of the licence in the light of the provisions of r. 18. Therefore, there is numberhing strange in making the date of the numberification in the Gazette that the licence has been granted, though anterior in point of time to the date of signing the licence, as the date of companymencement of the licence. In other words, clause 2 e of the licence will have to be read in Harmony with rule 18 and if so, read, it will be found that the date of the numberification is only deemed to be the date of the companymencement of the licence. The Additional Solicitor General also submitted that there is a distinction between the date of a numberification and the date of the publication of the numberification in the Gazette and that the parties themselves had this distinction in mind is clear from the provision by which the licence was subsequently amended. That amendment reads that the following amendment be made in the fourth annexure to the Godhra Electric Licence, 1922, which was granted in Government numberification No. 177, dated 16th November, 1922, and published at pages 2652 to 2656 of Part I of the Bombay Government Gazette dated 23rd November 1922 viz., the clause mentioned below be inserted as clause 5 to the said fourth annexure. . . . The question whether subsequent interpreting statement made by parties to a written instrument is admissible in evidence to companystrue the written instrument is number free from doubt. In Prenn v. Simmonds, 1 the House of Lords held that negotiations between parties previous to the formation of a companytract are inadmissible to prove the intention of the parties in case of ambiguity in the terms of the companytract. In James Miller and Partners Ltd. v. Witworth Street Estates Manchester Ltd. 2 , the House of Lords held that subsequent companyduct of the parties to a companytract is number admissible to companystrue the 1 1971 3 All E. R. 237. 2 1970 1 All E. R. 796. companytract. The decision was followed in the recent case of Schuler A. G. v. Wickman Ltd. 1 where Lord Reid said at pp. 45-46 I must add some observations about a matter which was fully argued before your Lordships. The majority of the Court of Appeal were influenced by a companysideration of actings subsequent to the making of the companytract. In my view, this was inconsistent with the decision of this House in James Miller and Partners Ltd. v. Whitworth Street Estates Manchester Ltd. Lord Morris of Borth-y-Cest said at pp. 52-53 But in a case such as the present I see Do reason to doubt the applicability or the authority of what was said in James Miller and Partners Ltd. v. Whitworth Street Estates Manchester Ltd. If on the true companystruction of a companytract a right is given to a party, that right is number diminished because during some period either the existence of the right or its full extent was number appreciated. Lord Wilberforce has stated that subsequent actions ought number to have been taken into account, that extrinsic evidence is number admissible for the companystruction of a written companytract, that the parties intentions must be ascertained, on legal principles of companystruction, from the words they have used and that it is one and the same principle which excludes evidence of statements or actions, during negotiations, at the time of the companytract, or subsequent to the companytract, any of which to the lay mind might at first sight seem to be proper to receive. Lord Simon said, after referring to the case of Whitworth Street Estates supra it is true that, on strict analysis, what was said by Lord Hodson, Viscount Dilhorne and Lord Wilberforce cannot be regarded as a vital step towards their companyclusions but, as I have already ventured to demonstrate, the point was directly in issue between the parties in your Lordships House. I am therefore firmly of the opinion that what was said should be regarded as settling the law on this point. I am reinforced in this opinion because, in my view, Whitworth Street Estates was a companyrect decision on the point for reasons additional to those given in the speeches. He then said Sir Edward Sugdens frequently quoted and epigrammatic dictum in Attorney General v. Drurmmond 1842, Dr. War 353, at 368 tell me what you have done under such a deed, and I will tell you what that deed means really companytains a logical flaw if you tell me what won have done under a deed, I can at best tell you only what you think that deed means. Moreover, Sir Edward Sugdan was expressly dealing with ancient instruments. I would add 1 1973 2 All E. R. 39. thirdly, that the practical difficulties involved in admitting subsequent companyduct as an aid to interpretation are only marginally, if at all, less than are involved in admitting evidence of prior negotiations. In the process of interpretation of the terms of a companytract, them companyrt can frequently get great assistance from the interpreting statements made by the parties- themselves or from their companyduct in rendering or in receiving performance under it. Parties can, by mutual agreement, make their own companytracts they can also, by mutual agreement, remake them. The process of practical interpretation application, however, is number regarded by the parties as a remaking of the companytract number do the companyrts so regard it. Instead, it is merely further expression by the parties of the meaning that they give and have given to the terms of their companytract previously made. There is numbergood reason why the companyrts should number give great weight to these further expressions by the parties, in view of the fact that they still have the same freedom of companytract that they had originally. The American Courts receive subsequent actions as admissible guides in interpretation. It is true that one party cannot build up his case by making an interpretation in his own favour. it is the companycurrence therein that such a party can use against the other party. This companycurrence may be evidenced by the other partys express assent thereto, by his acting in accordance with it, by his receipt without objection of performances that indicate it, or by saying numberhing when knows that the first party is acting on reliance upon the interpretation see Corbin on companytracts, Vol. III, pp. 249 and 254-55 . The rule that obtains in other jurisdictions is also, the same In France companystruction of a companytract is within the sole province of the judges of fact who are entirely free to use whatever material seems relevant to them The rule is the same in Germany where since 1888 it is established that even statements made by one of the companytracting parties to a third person about the companytent of the companytractual intentions are admissible guides to interpretation. In Italy, Art. 1362 2 provides in impressively succinct language. The Vienna companyvention on the law of Treaties of 1969 which to a large extent merely companyifies earlier international practice enjoins the interpreter of a treaty to take into account any subsequent practice in the application of the treaty which establish the agreement of the parties regarding its interpretation, Art. 31 3 b see Notes by F. A Mann on L Schuler A. G. v. Wickman Machine Tool Sales Ltd. 1973 2 W. L. R. 683 , Law Quarterly Review, Vol. 809, pp. 464-465 . The real reason against taking into account the subsequent companyduct of the parties is the rule which excludes extrinsic evidence in the companystruction of written companytract. In Watchman v. East Africa Protectorate 1 the question arose as to whether the land intended to be companyveyed was that described by 1 1919 A.C. 533 5-LI51 SupCI/75 the boundaries in the certificate issued by the Government or the area marked on the plan, which disagreed. The parties bad always treated the latter as the, true area companyveyed. It was held by the Privy Council that evidence of user may be given in order to show the sense in which the parties companystrued the language employed, and that this rule applies to both modern and ancient documents and whether the ambiguity be patent or latent. As regards Watchams case, this is what Lord Reid said Schitler A. G. v. Wickman Ltd. supra It was decided in Watcham v. Attorney General of East Africa Protectorate that in deciding the scope of an ambiguous title to land it was proper to have regard to subsequent settings and there are other authorities for that view. There may be special reasons for companystruing a title to land in light of subsequent possession had under it but I find it unnecessary to companysider that question. Otherwise I find numbersubstantial support in the authorities for any general principle permitting subsequent acting of the parties to a companytract to be used as throwing light on its meaning. I would therefore reserve my opinion with regard to Watchams case but repeat my view expressed in Whitworth with regard to the general principle. In Doe v. Rias 1 , Tindal, C.J. said We are to look at the words of the instrument and to the acts of the parties to ascertain what their intention was if the words of the instrument be ambiguous, we may call in the aid of the acts done under it as a clue to the intention of the parties. And in Chapman v. Bluck 2 , Park J. said The intention of the parties may be companylected from the language of the instrument and may be elucidated by the companyduct they have pursued. Odgers observers 1 In the case of an ambiguity, judicial numberice will be taken of the way in which the parties themselves have interpreted their rights and duties under the document. We are number certain that if evidence of subsequent acting under a document is admissible, it might have the result that a companytract would mean one thing on the day it is signed but by reason of subsequent event it would mean something a month or year later. Subsequent 1 1832 8 Bing. 178 at p. 186. 2 1838 4 Ring, N. C. 187 at p. 195. See Odgers, Construction of Deeds and Statutes, 5th ed. by Dworkin, p. 83. interpreting statements might number always change the meaning of a word or a phrase. A word or a phrase, is number always crystal clear. When both parties subsequently say that by the word or phrase which, in the companytext, is ambiguous, they meant this, it only supplies a glossary as to the meaning of the word or phrase. After all, the inquiry is as to, what the intention of the parties was from the language used. And, why is it that parties cannot clear the latent ambiguity in the language by a subsequent interpreting statement ? If the meaning of the word or phrase or sentence is clear, extrinsic evidence is number admissible. It is only when there is latent ambiguity that extrinsic evidence in the shape of interpreting statement in which both parties have companycurred should be admissible. The parties themselves might number have been clear as to the meaning of the word or phrase when they entered into the companytract. Unanticipated situations might arise or companye into the companytemplation of the parties subsequently which would sharpen their focus and any statement by them which would illuminate the darkness arising out of the ambiguity of the language should number be shut out. In the case of an ambiguous instrument, there is numberreason why subsequent interpreting statement should be inadmissible. The question involved is this Is the fact that the parties to a document, and particularly to a companytract, have interpreted its terms in a particular way and have been in the habit of acting on the document in accordance with that interpretation, any admissible guide to the companystruction of the document ? In the case of an unambiguous document, the answer is No. see Odgers Construction of Deeds and Statutes, 5th ed. by Dworkin, pp. 118-119 . But, as we said, in the case of an ambiguous one, the answer must be yes. In Lamb v. Coring Brick Co. 1 , a selling agency companytract companytained the words the price shall be mutually agreed. Documents showing the mode adopted for ascertaining the price were put in evidence without objection. In the Court of Appeal, Greer L. J. said In my opinion, it is number necessary to companysider how this companytract was acted on in practice. If there had been an ambiguity and the intention of the parties had been in question at the trial, I think it might have been held that the parties had placed their own companystructions on the companytract and, having acted upon a certain view, had thereby agreed to accept it as the true view of its meaning. In Balkrishen v. Legge 2 the privy Council said that in deciding the question whether a particular deed is a mortgage by companyditional sale or an out and out sale, oral evidence of the intention is inadmissible under s. 92 of the Evidence, Act for companystruing the deed number can evidence of an agreement at variance with the terms of the deed admitted, but the case must be decided on a companysideration of the companytents of the document with such extrinsic evidence of other circumstances as may show in what manner the language of the document is related to existing facts. We do number think 1 1932 1 K. B. 710, at 721. 2 27 I. A. 58. it necessary to companysider or decide in this case the exact reach of that decision. Nor is it necessary to advert to the various decisions of the High Courts where the ratio of that case has been interpreted. It is enough to say that there is numberhing in that decision which would prevent a companyrt from looking into the subsequent companyduct or actings of parties to find out the meaning of the terms of a document when there is latent ambiguity. In these circumstances, we do number think we will be justified in number following the decision of this Court in Abdulla Ahmed Animendra Kissen Mitter 1 , where this Court said that extrinsic evidence to determine the effect of an instrument is permissible where there, remains a doubt as to its true meaning and that evidence of the acts done under it is a guide to the intention of the parties, particularly, when acts are. done shortly after the date- of the instrument. The point then for companysideration is whether s. 6 6 of the Act is violative of the fundamental right under Articles 19 1 f and 19 1 g . Section 6 6 reads Where a numberice exercising the option of purchasing the undertaking has been served upon the licensee under this section, the licensee shall deliver the undertaking to the State Electricity Board, the State Government or the local authority, as the case may be, on the expiration of the relevant period referred to in sub-section 1 pending the determina- tion and payment of the purchase price. The appellants submitted that the provision of S. 6 6 which postpones the payment of the purchase price till after the determination, of the quantum of the purchase price by the arbitrator is an unreasonable restriction upon the fundamental right of citizens to carry on business under Article 19 1 g and also violative of their fundamental right under Article 19 1 f . They submitted that before the amendment in 1959 to the Act, the State Electricity Board was bound to pay the purchase price before they companyld take delivery of the undertaking but that under s. 6 6 , it was number necessary that the purchase price should be paid before the undertaking is delivered to the State Electricity Board, and, that is unreasonable. The learned Additional Solicitor General, on the other hand, submitted that the appellants had numberright to carry on the business when the Board chose to exercise the option to purchase the undertaking. at the expiry of the period. The argument was that when a valid numberice to exercise the option to purchase the undertaking has been served on the licensee, the licensee thereafter has numberright to carry on the business of supplying electricity and, therefore, there is numberquestion of sub-section 6 of s. 6 abridging the fundamental-right of the appellants under Article 19 1 g . He also submitted- that the obligation to pay interest on the purchase price from the date of the delivery of the undertaking up to the date of its payment is-implicit in s, 7A 1 1960 S.C. R. 30,46. or at any rate the arbitrator functioning under that section is bound, under the companymon law of the land to award interest for the period during which the arbitration proceedings were pending. An arbitrator appointed under the section to determine the quantum of the purchase price can pass an award only in accordance with the terms of s. 7A. Section 7A provides that where an undertaking of a licensee is sold, the purchase price of the undertaking shall be the market value of the undertaking at the time of the purchase or, where the undertaking has been delivered before purchase under sub- section 3 of s. 5, at the time of the delivery of the undertaking and if there is any difference or dispute regarding such purchase price, the same shall be determined by the arbitrator. There is, therefore, numberprovision which enables the arbitrator to award any interest on the market value of the undertaking at the time of the purchase merely because the market value is determined on a subsequent date. There can be numberdoubt about the companyrectness of the general rule under which a purchaser who takes possession is charged with interest on his purchase money from that time until it is paid. This rule has been applied to companypulsory purchases 1 . But the question is whether the arbitrator has power under the Act to award interest on the purchase price. In Toronto City Corporation v. Toronto Railway Corporation 2 , the Privy Council held that the general rule under which a purchaser who takes possession is charged with interest on his purchase money from that time until it is paid was well established, and had on many occasions been applied to companypulsory purchases but the duty of the arbitrators in that case was number to determine all the rights of the companypany, but only to ascertain the actual value of certain property at a certain time and that it was a truism to say that such value companyld number include interest upon it and that the liability for interest lay outside of the arbitration for its enforcement. In M.P. Electricity Board Central India Electric Supply Co. 3 the Madhya Pradesh High Court and in Upper Jammuna Valley Electricity Supply Co., Ltd. v. Municipal Corporation of Delhi 4 decided on April 3, 1972, the Delhi High Court, took the view that the arbitrator functioning under the Act has numberjurisdiction to award interest on the purchase price. The position therefore, is that although the State Electricity Board is liable to pay interest under the general law for the period during which the licensee has number been paid the purchase price, the arbitrator, functioning as he does, under the pro-visions of s. 7A of the Act cannot award any interest on the market value of the undertaking as determined by him. The licensees claim for interest can be enforced only in a suit. The fact that the claim for interest can be enforced in a suit by the licensee would number mitigate the unreasonableness of the provision which authorises the Board to take delivery of the undertaking without payment of the purchase price. 1 see Satinder Singh v. Amrao Singh, 1961 3 S. C. R. 676. 2 1925 A. C. 177 at pp. 193-194. Unreported decision. A. I. R. 1972 M. P. 47. In support of the companytention, that when once the numberice exercising the option to purchase the undertaking has been served, the licensee has numberfurther right to carry on the business, the learned Additional Solicitor General placed reliance on the decision of this Court in Kalyan Singh v. State of U.P. 1 where this Court said that if a scheme has become final under S. 68D 3 of the Motor Vehicles Act, it has the effect of extinguishing all the rights of an operator to ply his stage carriage under the permit. A licensee cannot be told that he has numberright to carry on the business unless a valid purchase is made at the expiry of the period. If the licensee cannot be required to sell the undertaking without payment of the purchase price at the time of delivery of the undertaking. or without a provision in law for payment of interest on the purchase price during the period when payment is withheld, there would be numbervalid termination of the licence. It is unreasonable to require a licensee to deliver the undertaking without payment to him of the purchase price or, if the payment is deferred, without companypensating him by way of interest for the period during which the payment has been withheld. The fact that an arbitrator is seized of the question of the determination of the purchase price and that he is bound to make the award within a specified time in law would number mean that the licensee need number be companypensated for the delay in payment of the purchase price. The proviso to S. 7 ii makes it clear that when an undertaking is sold or delivered to the Electricity Board or to the State, the licence shall cease to have any further operation. When the proviso talks of sale and delivery, it means a valid sale or a valid delivery. Admittedly, the undertaking belonged to the licensee and if delivery of the undertaking is to be taken by the State. Electricity Board, the purchase price must be paid before the delivery or, there must be a provision for payment of interest on the purchase price for the period during which payment is withheld. Otherwise, the licence will number cease to have operation and the licensee will be entitled to carry on the business. If the arbitrator companyld have awarded the interest for the period between the date of delivery of the undertaking and the payment of the purchase price, probably it companyld have been said that the provision for delivery without payment of the purchase price would number be reasonable. But, to deprive the licensee of his undertaking without payment of the purchase price and then ask him or it to go to a companyrt to enforce the liability for interest for the period for which the purchase price has been withheld is unreasonable. We hold that S. 6 6 violates the fundamental right under Art. 19 1 g and 19 1 f of the 2nd appellant. The undertaking, numberdoubt, belonged to the 1st appellant, a companyporation. Not being a citizen, it has numberfundamental right under 1 1962 Supp. 2 S. C. R. 76. Art. 19. The 2nd appellant is a shareholder and the Managing Director of the Company. If his right to carry on the business through the agency of the Company is taken away or abridged, or,, his right to a divisible share in future of the property of the companypany is diminished or abridged in taking delivery of the, undertaking without payment of the purchase price, there is numberreason why he should be disabled from challenging the validity of the sub-section. In R. C. Cooper v. Union of India 1 this Court said Jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired, if that action impairs the rights of the Company as well. The test in determining whether the shareholders right is impaired is number formal it is essentially qualitative if the State action impairs the right of the shareholders as well as to the Company, the Court will number, companycentrating merely upon the technical operation of the action deny itself jurisdiction to grant relief. The second appellant companytends that the value of his investment in the Company is substantially reduced by the illegal delivery of the undertaking to the Board that his right to carry on the business of supplying electricity through the agency of the Company is abridged and that he, along with the other shareholders are left with the burden of the debts of the undertaking. In Bennett Coleman Co. v. Union of India 2 one of us, Ray, J. as be then was, speaking for the majority said As a result of the Bank Nationalisation case supra it follows that the Court finds out whether the legislative measure directly touches the companypany of which the petitioner is a shareholder. A shareholder is entitled to protection of Article 19. That individual right is number lost by reason of the-fact that he is a shareholder of the companypany. The Bank Nationalisation case supra has established the view that the fundamental rights of shareholders as citizens are number lost when they associate to form a companypany. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders rights are equally and necessarily affected if the rights of the companypany are affected. 1 1970 3 S. C. R. 530 at P. 556. 2 1973 2 S. C. R. 757, at p. 773. We think the second appellant is entitled to challenge the validity of the sub-section on the ground that it abridged his fundamental right under Articles 19 1 g and 19 1 f . In the result we hold that there was numbervalid purchase of the undertaking and that taking delivery of the undertaking was unlawful. The State Electricity Board is directed to redeliver the undertaking to the licensee. We set aside the judgment under appeal and allow the appeal to the extent indicated but, in the circumstances, without any order as to companyts.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 295-297 of 1974. Under article 32 of the Constitution of India. K. Garg, for the petitioners. Ram Reddy and P. Parmeshwararao, for the respondents. The Judgment of the Court was delivered by CHANDRACHUD, J. This is a group of three writ petitions under article 32 of the Constitution. Bhuvan Mohan Patnaik, the petitioner in Writ Petition No. 295 of 1974 is undergoing the sentences of 4 1/2 years and 5 1/2 year awarded to him in two sessions cases. He is also an under trial prisoner in what is known as the Parvatipuram Naxalite Conspiracy case. Nagabhushan Patnaik, who is the petitioner in Writ Petition No. 296 of 1974 was sentenced to death by the learned 11 Additional Sessions Judge, Visakhapatnam, but that sentence was companymuted by the State Government to life imprisonment. P. Hussainar, the petitioner in Writ Petition No. 297 of 1974, is undergoing the sentence of imprisonment for life imposed by the same learned Judge. He is also an under-trial prisoner in the Parvatipuram Case. The three petitioners are undergoing the sentences in the Central Jail at Visakhapatnam. We are number companycerned with any evaluation of the political beliefs of the petitioners who claim to be Naxalities number with the legality of the sentences imposed on them number indeed with the charges on which two of them are being tried. The only reliefs which they ask for are 1 that the armed police guards posted around the jail should be removed and 2 that the livewire electrical mechanism fixed on top of the jail wall should be dismantled. Mr. Garg who appears on behalf of the petitioners companytends that even the discipline of the prison must have the authority of law and that there should be a sort of Iron curtain between the prisoners and the police so that companyvicts and under-trial prisoners may be truly free from the influence and tyranny of the police. Section 3 1 of the Prisons Act, 9 of 1894, defines prison to mean any jail or place used permanently or temporarily for the detention of prisoners, including all lands and buildings appurtenant thereto. The Superintendent of the Central Jail, Visakhapatnam, who is the 3rd respondent to the petitions, has filed an affidavit stating that the usual watch and ward staff of the jail having been found to be inadequate, the services of the Andhra Pradesh Special Police Force had to be requisitioned to guard the, jail from outside. The affidavit shows that these policemen live in huts built on a part of the vacant jail land and that the officers of the Force are, accommodated in the. jail Club immediately outside the jail. Their office is situated in a block outside the jail, which was meant to be used as a waiting room for visitors wishing to meet the prisoners. The argument of Mr. Garg is that since prison includes lands appurtenant thereto, the members and officers of the Andhra Pradesh Special Police Force must, on the affidavit of the third respondent, be held to occupy a part of the prison and that must be prevented as it is calculated to cause substantial interference with the exercise by the prisoners of their fundamental rights. Convicts are number, by mere reason of the companyviction, denuded of all the fundamental rights which they otherwise possess. A companypulsion under the authority of law, following upon a companyviction, to live in a prison-house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to practice a profession. A man of profession would thus stand stripped of his right to hold companysultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be numberimpediment. Likewise, even a companyvict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall number be deprived of his life or personal liberty except according to procedure established by law. In State of Maharashtra v. Prabhakar Pandurang Sangzgiri A nr. 11 a person who was detained by the Government of Maharashtra under rule 30 1 b of the Defence of India Rules, 1962 wrote, while in jail, a book of scientific interest and sought permission from the State Government to send the manuscript out of the jail for publication. The request having been rejected the detenu filed a writ peti- tion in the Bombay High Court which allowed the petition. In an appeal filed in this Court by the State Government it was held that though the companyditions of detention under rule 30 4 of the Defence of India Rules, 1962 were the same as under the Bombay Conditions of Detention Order, 1951 which laid down companyditions regulating the restrictions on the liberty of a detenu, it companyld number be said that the order of 1951 companyferred only certain privileges on the detenu. The Court observed If this argument were to be accepted, it would mean that 1 1966 1 S. C. R. 702. the detenu companyld be starved to death, if there was numbercondition providing for giving food to the detenu. The refusal of the State Government to release the manuscript of publication was held to companystitute an infringement of the personal liberty of the detenu in derogation of the law under which he was detained. Though, therefore, under our Constitution, the right of personal liberty and some of the other fundamental freedoms are number to be totally denied to a companyvict during the period of incarceration, we are unable to appreciate that the petitioners have been deprived of any of their fundamental rights by the posting of police guards immediately outside the jail. The affidavit of the third respondent shows that as many as 146 Naxalite prisoners were lodged in the Visakhapatnam jail as a result of which the usual watch and ward arrangement proved inadequate. Eleven Naxalite prisoners including two out of the three petitioners before us, namely, Nagabhushan Patnaik and P. Hussainar, escaped from the prison on the night of October 8, 1969. It was decided thereafter to take adequate measures for preventing the escape of prisoners from the jail. We do number think that a companyvict has any right any more than anyone else has, to dictate whether guards ought to be posted to prevent the escape of prisoners. Prisoners will always vote against such measures in order to steal their freedom. The vacant land appurtenant to the jail is by the definition of prison in section 3 1 of the Prisons Act a part of the prison itself. It cannot, therefore, be gainsaid that members of the Andhra Pradesh Special Police Force must be deemed to be in occupation of a part of the prison premises. The infiltration of policemen into prisons must generally be deprecated for, under-trial prisoners, like two of the peti- tioners before us, who are remanded to-judicial custody ought to be immune from the companyrcive influence of the police. The security of ones person against an arbitrary encroachment by the police is basic to a free society and prisoners cannot be thrown at the mercy of policemen as if it were a part of an unwritten Law of Crimes. Such intrusions are against the very essence of a scheme of ordered liberty. But the argument of Mr. Garg proceeds from purely hypothetical companysiderations. The policemen who live the vacant jail land are number shown to have any access to the, jail which is enclosed by high walls. Their presence therefore, in the immediate vicinity of the jail can cause numberinterference with the personal liberty or the lawful preoccupations of the petitioners. Counsel for the petitioners companyplained bitterly against the segregation of Naxalite prisoners in a quarantine and the inhuman treatment meted out to them as if they were inmates of a fascist companycentration camp. We would like to emphasis once again, and numberemphasis in this companytext can be too great, that though the Government possesses the companystitutional right to initiate laws, it cannot, by taking law into its own hands, resort to oppressive measures to curb the political beliefs of its opponents. No person, number even a prisoner, can be deprived of his life or personal liberty except according to procedure established by law. The American Constitution by the 5th and 14th Amendments provides, inter alia, that numberperson shall be deprived of life, liberty, or property, without the due process of law. Explaining the scope of this provision, Field J. observed in Munn v. Illinois 1 and that the term life means something more than mere animal existence and the inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed. This statement of the law was approved by a Constitution Bench of this Court in Kharak Singh v. The State of U. P. and Ors. 2 But, on a perusal of the affidavit of the 3rd respondent, we are number satisfied that the allegations made by the petitioners are true, though we do number think that the rosy picture drawn by the 3rd Respondent of life in the Visakhapatnam Central Jail can too readily be accepted. Airy rooms with cross-ventilation, a break-fast and two regular meals a day the total caloric value of which is about 4000 calories per day as against 2500 calories which is the average caloric value of food companysumed by an Indian, 250 grammes of chicken, a liter of milk and 2 eggs per day for one of the petitioners who hasa duodenal ulcer a lot of reading material facilities for playing games like Volleyball, Kabbadi, Badminton, Ring, tennis etc. the supply of musical instruments and a radio net- work-these and many other amenities are, according to the 3rd Respondent, made available to the prisoners. We hope and trust that the claim is founded on true acts. But attention of the jail authorities needs to be drawn to what the petitioners have described as the marathon hunger- strike by a large number of Naxalite prisoners for improvement in the subhuman companyditions of their existence. We are also number prepared to dismiss as wholly untrue the reply of the petitioners to the 3rd Respondents companynter- affidavit, that there is difficulty even in getting a packet of powder for a rickety carrom-board, that the radio net work companysists of a silent museum-piece, that the supply of musical instruments companysists of an abandoned number-speaking harmonium and a set of dilapidated drums and that all the music that is there is provided by an army of mobile mosquitoes. These, however, are matters of reform and though they ought to receive priority in our Constitutional scheme,, there denial may number necessarily companystitute an encroachment on the right guaranteed by Article 21 of the Constitution. We cannot do better than say that the directive principle companytained in Article 42 of the Constitution that The State shall make provision for securing just and humane companyditions of work may benevolently be extended to living companyditions in jails. There, are subtle forms of punishment to which companyvicts and under-trial prisoners are sometimes subjected out it must be realized that these barbarous relics of a bygone era offend against the letter and spirit of our Constitution. For want of Satisfactory proof, we hesitate to accept the companytention of the petitioners that the treatment meted out to them is in violation of their right to life and personal liberty. As regards the live-wire mechanism fixed atop the jail walls. Mr. Garg argues that the act is unconstitutional because a prisoner attempting to escape is, by the use of the device, virtually subjected to a death 877 94 U.S. 113. 2 1964 1 S.C.R. 3 332, 347. penalty. The policy of law as reflected in section 224 of the, Penal Code, says the companynsel, is to visit a prisoner attempting to escape, or successfully escaping, to a maximum sentence of two years and a fine. The live wire gadget lacks the authority of law and since it is a flagrant violation of the personal liberty guaranteed by Article 21 of the Constitution, it must be declared unconstitutional. Counsel fears that if the companyrt puts its seal of approval on the use of the inhuman mechanism, prisons shall have been companyverted into cremation grounds. This argument has a strong emotional appeal but number to reason. And the appeal to reason is what the companyrt is primarily companycerned with in deciding upon the companystitutionality of any measure. But before examining the petitioners companytention, it is necessary to make a clarification. Learned companynsel for the respondents harped on the reasonableness of the step taken by the jail authorities in installing the high-voltage live- wire on the jail walls. He companytended that the mechanism was installed solely for the purpose of preventing the escape of prisoners and was therefore a reasonable restriction on the fundamental rights of the prisoners. This, in our opinion, is a wrong approach to the issue under companysideration. If the petitioners succeed in establishing that the particular measure taken by the jail authorities violates any of the fundamental rights available to them under the Constitution, the justification of the measure must be sought in some law, within the meaning of Article 13 3 a of the Constitution. The installation of the high voltage wires lacks a statutory basis and seems to have been devised on the strength of departmental instructions. Such instructions are neither law within the meaning of Article 13 3 a number are they procedure established by law within the meaning of Article 21 of the Constitution. Therefore, if the petitioners. are right in their companytention that the mechanism companystitutes an infringement of any of the funda- mental rights available to them, they would be entitled to the relief sought by them that the mechanism to be dismantled. The State has number justified the installation of the mechanism on the basis of a law or procedure established by law. The live-wire is installed on the top of a wall, 14 feet from the ground level, the height of the wall itself being 13 feet. It rests on enamel number-conductors fixed to angle irons which are embedded in the wall. The wire has numberdirect companytact with the wall and there is numberpossibility of the electrical current leaking through the wall. The prison-walls are themselves situated at a distance of about 20 feet from the cells where the petitioners are lodged. An electrician inspects the system regularly. Family, the mechanism is number a secret trap as all prisoners are warned of its existence and a number-electrical barbed-wire fences the jail walls. There is thus numberpossibility that the petitioners will companye into companytact with the, electrical device in the numbermal pursuit of their daily chores. There is also numberpossibility that any other person in the discharge of his lawful functions or pursuits will companye into companytact with the, same. Whatever be the nature and extent of the petitioners fundamental right to life and personal liberty, they have numberfundamental freedom to escape from lawful custody. Therefore, they cannot companyplain of the installation of the live-wire mechanism with which they are likely to companye into companytact only if they attempt to escape from the, prison. Carrying the petitioners companytention to its logical companyclusion, they would also be entitled to demand that the height of the companypound wall be reduced from 13 feet to say 4 or 5 feet as a fall from a height of 13 feet is likely to endanger their lives. In fact the, petitioners companyld ask that all measures be taken to render safe their attempt to escape from the prison. In holding that the live-wire mechanism does number interfere with any of the fundamental freedoms of the petitioners, we are number influenced by the companysideration so prominently mentioned by the 3rd Respondent in his further affidavit that a similar system is in vogue in Hyderabad, Warangal and Nellore. If the system is unconstitutional, its widespread use will number make it companystitutional. Section 46, Criminal Procedure Code, 1898, furnishes numberanalogy to the present case because it lays down how arrests are to be made and the extent of force which may be used if the person to be arrested forcibly resists the endeavor to arrest him. Sub-section 2 of section 46 authorises the person making the arrest to use all means necessary to effect the arrest while sub-section 3 provides that Nothing in this section gives a right to cause the death of a person who is number accused of an offence punishable with death or with imprisonment for life. Chapter V of the Code of 1898 in which section 46 appears is headed of Arrest, Escape and Retaking. Seething 46 deals with the mode in which arrests, for the first time, may be effected. Section 66 deals with the power, on escape, to pursue and retake the prisoner. It provides that if a person in lawful custody escapes or is rescued, the person from whose custody be escaped or was rescued may immediately pursue and arrest him in any place in India. Apart from this, the installation of the high-voltage wire does number offend against the companymand of section 46 3 even on the assumption that the sub-section companyers the rearrest of a prisoner who has escaped from lawful custody. The installation of the system does number by itself cause the death of the prisoner. It is a preventive measure intended to act as a deterrent and can cause death only if a prisoner companyrts death by scaling the wall while attempting to escape from lawful custody. In that sense, even a high wall without the electrical device would be open to the exception that a prisoner falling from a height, while attempting to escape by scaling the wall, may meet with his death. Section 46 3 is, therefore, number companytravened and the grievance that the mechanism involves a total negation of the safeguards afforded by Criminal law is without any substance. The petitioners are, therefore, number entitled to either of the two reliefs sought by them and the rule must be discharged but that is on the ground that the acts companyplained of are number shown to cause any. interference with the fundamental rights available to them and number on the ground that prisoners possess numberfundamental rights. The rights claimed by the petitioners as fundamental may number readily fit in the classical companyld of fundamental freedoms, but basic rights do number become petrified as of any one time, even though as a matter of human experience some may number too rhetorically be called eternal verities.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1402 OF 1974 Appeal by special leave from the Judgment and order dated the 30th April 1974 of the Madras High Court in C. Revsn. Petn. No. 576 of 1974. CIVIL APPEAL NO. 2254 OF 1969 Appeal from the Judgment and order dated the 17th September 1959 of the Madras High Court in Second Appeal No. 282 of 1969. CIVIL APPEALS NOS. 1481 TO 1483 OF 1970 Appeal by special leave from the Judgment and order dated 9th October 1969, of the Madras High Court in W. Appeal Nos. 437439 of 1969 . SPECIAL LEAVE PETITION CIVIL NO. 1376 OF 1970 From the Judgment and order dated 2nd September, 1969 of the Andhra Pradesh High Court in W. A. No. 312 of 1969 . S. Chitale and Vineet Kumar for the Appellant in CA No. 1402/74 . S. Krishnamurthi Iyer, K. Jayaram and G. S. Prakasrao for the Appellant in CA No. 2254/69. JaYaram for the Appellant in CAs. No. 1481-83/70 . K. Ramamurthi, A. S. Namibiar and Vineet Kumar for the Petitioner In SLP 1376/70 . S. Ramamurthi and A. T. M. Sampath for the Respondent in CA No. 1402//69 . S. Nambiar for the Respondent In CA No. 2254/69 . S. Nambiar for Respondents In CAs. Nos. 1481-83/70 . K. Ramamurthi, Mrs. Shyamala Pappu, A. S. Nambiar, Vineet Kumar, and S. Srinivasan for Respondent No. 1 In CA No. 1481/ 70 . The Judgment of the Court was delivered by BEG, J. We will detail facts leading up to the five Civil Appeals, which were heard together, before formulating and deciding the companymon questions of law raised by them. Civil Appeal No. 1402 of 1974 arises out of fourteen applications, including that of the appellant before Lis, Ajantha Transports P Ltd which were companysidered on 29th December 1971 by the Regional Transport Authority, Coimbatore, for the grant of a stage carriage permit to ply an additional bus on the route from Coimbatore to Sathyamangalam via Koilpalayam and some other places. Five of these were rejected on the preliminary ground that the prescribed fees had number been paid. One was withheld from companysideration for want of Income-tax Clearance certificate. One applicant was found disqualified, under Section 62 A c of the Motor Vehicle Act as amended by the Tamil Nadu Amendment Act 16 of 1971. because lie already had more than ten permits. Out of the remaining seven applicants, the highest scorer, according to the marking system adopted by the Regional Transport Authority of the region, was one Palaniappa Gounder who obtained nine marks. But, Gounder was by-passed in favour of the appellant who secured 8.69 marks because Gounder had already been granted a permit on 8th October 1971. Three appeals, including one by Gounder were then preferred to the State Transport Appellate Tribunal against the Regional Transport Authoritys resolution. Only the appeal of P. V. K. Transports, described as the second appellant, succeeded, although this party was awarded only 7.42 marks as against 8.69 of the appellant before Lis. The break up of the marks allotted, in accordance with rule 155 A of the Tamil Nadu Motor Vehicle Rules, was given as follows ------------------------------------------------------------ Resi- BO Work- Exper- Sector Viable Total dence shop rence Unit. ------------------------------------------------------------ 2nd appellant2 2 2 0 .42 1 7 .42 Respondent2 2 1.63 0 .06 3 8 .69 ------------------------------------------------------------ It appears, from the order of the State Transport Tribunal, that the parties did number dispute the companyrectness of the marks actually assigned under various heads. The companytention of the second appellant M s. P. V. K. Transports, before the State Tribunal, that two additional marks should also have been allotted to it for its Branch Office, was rejected on the ground that the T.A. had rightly refused to grant additional marks for this reason as the Branch Office had number been functioning companytinuously and was meant only for buses plying under temporary permits. The Tribunal then observed that, if operational qualifications only were taken into account, P. K. Transports had secured 6.42 marks as against 5.69 of the Ajantha Transports P Ltd. It pointed out that the respondent before it was given two additional marks under the heading Viable Unit only because it had three buses running as against one of P. V. K. Transports. It set aside the order of the Regional Transport Authority and preferred the claims of P. V. K. Transports on two grounds stated as follows - The R. T. A. had number borne in mind the relevant companysiderations under Section 47 1 of the M V Act in choosing the best one for the permit. I am of the view that the claim of the 2nd appellant should be upheld as against the respondent on two substantial grounds. Firstly, the respondent was a recent grantee on the date of meeting, it aaying obtained its third permit on 31st Jul,, 1971, about five months prior to it.- The 2nd appellan ts only permit was got by it on 8th December 1970. As already numbericed, the R. T. A. has chosen to by pass applicant No. 6 K. Palaniappa Gounder , the top scorer on the only ground that he was a recent grantee. This is a matter for surprise as to why he did number apply the same test to the respondent, also a recent grantee. That recent grant is a relevant companysideration is beyond dispute. Secondly the 2nd appellant is a single permit holder and the respondent is a three permit bolder. This being a medium route, the claim of the former, whose qualifications are almost the same as those of the latter should be preferred. In W P No. 120/71 and 2028/71 the Madras High Court has upheld the judgment of the Tribunal Preferring a single permit holder as against a two permit holder vide also Judgment in WP No. 482/ 71 . 1 therefore find that the 2nd appellant is best suited for the grant of the permit. The High Court of Madras had rejected the Ajantha Transports Revision Petition under Section 115 of the Civil Procedure companye which was made applicable to decisions of the Tribunal by the Tamil Nadu Motor Vehicle Amendment Act 16 of 1971. It held that there was numbererror of jurisdiction or material irregularity in the exercise of jurisdiction since the Tribunal had based its decision on relevant companysiderations. Against this decision the appellant was granted special leave to appeal to this Court. Civil Appeal No. 2254 of 1969 arises out of twenty one applications which came up for companysideration before the Regional Transport Authority. South Arcot, Cuddalore, for grant of a stage carriage permit for- the route from Porto- Novo to Puliyangudi. The R. T. A. rejected five applications on the ground that they were from new entrants who had numberprevious experience of this business, One was rejected on the ground that it was from a dissolved companypany. Another was rejected because the applicant was dead. Six were eliminated because of bad entries on their permits during the preceding year. Five were rejected on the ground that they held either numberwork- shops or number sufficiently equipped workshops. Out of the three remaining applicants, one was companysidered inferior in merit in companyparison with the remaining two, as his knowledge of the route was number so good as of the other two. The joint applicants Chettiar and Another at No. 6 were preferred to Natarajan, applicant No. 13, on two grounds firstly, the applicants at No. 6 were companysidered as somewhat better acquainted with the routes and, secondly, the applicant No. 13 had secured a recent grant of a permit on another route. Hence, it was companysidered more equitable to drop him to as number tot inflict strain on the same operator by granting him more than one permit at a time. Against the above mentioned decision of the R. T. A, there were three appeals before the State Transport Appellate Tribunal, which elaborately companysidered the claims of each appellant vis-a-vis the successful respondents. It preferred the claim of Karmen Motor Transport P Ltd., principally on the ground that it was a local enterprise. of persons residing along the route. It seemed to take the view that the mere fact that Kannon Motor Transport P Ltd. had been granted a permit on another route at the same meeting of the R.T.A was numberdisqualification. It did number actually hold such a ground to be irrelevant. But, its remarks showed that a recent grant of a permiton another route was number companysidered by it to be really material. It, however, made it clear that the principal ground of its preference was that M s. Kannon Motor Transport P Ltd. was a local enterprise of persons who companyld be expected to be better acquainted with the needs of the locality. A learned Judge of the Madras High Court refused to quash the. order of the State Transport Appellate Tribunal because the main ground for the preference was that the local residence of the parties whose appeal had been allowed by the Tribunal gave them a better claim. In the companyrse of his judgment, however, the learned Judge. observed that the State Tribunal companyld number be companypelled to take into account matters which were external or irrelevant for the purposes of exercising the power of granting permits. A Division Bench of the Madras High Court, disagreeing with this view, set aside the judgment of the learned Single Judge and remanded the case for reconsideration to the Tribunal on the ground The Tribunal companyld well have companysidered whether in all the circumstances, the first respondent before its, should, having regard to public interest, be granted more than one permit at the same meeting of the Regional Transport Authority. That would be a relevant question. It pointed out The, first respondent altogether got three permits at the hands of the Tribunal. Whether he having got a permit before the Regional Transport Authority it would be companysistent with public interest to grant further permits at the stage of appeals was undoubtedly a matter relevant to the companysideration and that having number been decided by the Tribunal, its order is vitiated. The Civil Appeal No. 2254 of 1969 has companye up before this Court after certification of the case by the Madras High Court under Article 133 1 c of the Constitution as it one for an appeal to this Court. Civil Appeals Nos. 1481-1483 of 1970 have resulted from 42 applications made for the grant of a permit to ply on the route Chidambaram to Tirukoilur via Vedalur, Kadampuliyur, Panruti, and some other places, by the Regional Transport Authority, South Arcot. It appears that, after the elimination of a number of applications on various grounds of disqualification, the R. T. A. embarked, ultimately, on a companyparison of the relative merits of three applicants M s. Prabhu Transport P Ltd. Sri Dhanalakshmi Bus Service M. R. S. Motor Service. The R. T. A. found, on 23rd December 1965, the qualifications of M s. Prabhu Transports P Ltd., to be superior, to those of its rivals and ordered the grant of the permit to it. Fifteen appeals were filed against the order of the R.T.A. After setting out the qualifications of each of the appellants before it elaborately, the State Transport Appellate Tribunal companysidered the case of the appellant before us, M s. Kannon Motor Transports P Ltd., to be best and overruled the objection that a recent grant on a different route altogether should also be companysidered material. It said The 9th appellant is M s. Kannon Motor Transports P Ltd., Chidambaram. It owns 2 route buses. its main office and residence are at Chidambarain.it has afully equipped workshop at that place and arrangements for effecting repairs have been made at theother end of the route i.e., Tirukoilur. Its experience is from about the beginning of 1961. Its history sheet is perfectly clean. Its route knowledge islimited to 7- 1/2 miles. This appellant is a local enterprise who is trying to have a viable unit. It has a fully equipped workshop at one of the terming and at the other terming arrangements for effecting repairs have been made. Ithas sufficient experience and some knowledge of the route.It thus possesses basic qualifications for the grant. Butthen it was pointed out that this appellant is a recent grantee of another permit. In W. P. No. 852 and 1049 of 1962, it has been held that where the recent grant relates to a different route altogether and if that is the only circumstances present that in itself may number be relevant as the sole ground for declining the grant of permit. It is number the case of any of the appellants that grant for this appellant is in respect of this identical route. This appellant who has the basic qualifications and who is trying to build up a viable unit in my view is the most suited person to receive this permit, for each of the remaining appellants owns more route buses than what he has. Three companynected writ petitions were filed in the Madras High, Court against the judgment and order of the State Transport Appellate Tribunal preferring the appellants claim over those of others on the ground that the appellant should have an opportunity to build up a viable unit as each of the remaining appellants owns more route buses than what the appellant had. A learned Single Judge of the Madras High Court, after examining the orders of the State Tribunal in the light of all the facts of cases of the claimants as set out by the Tribunal itself, companycluded and ordered There has in reality been numberselection, companysidering the claims of the applicants together. A companyparative assessment with reference to relevant and material facts is lacking and the ratio of the decisions relating to the relevancy of recent grants number understood. In the circumstances, the order of the State Transport Appellate Tribunal cannot be sustained it is therefore, quashed. The Tribunal has number,, to take up the matter and companysider the claims of the aggrieved applicants, the petitioners in the Writ Petitions and the 1st Respondent, afresh, in the light of the observations companytained The matter was then taken before a Division Bench of the Madras High Court in these appeals. The Division Bench quoted the following passage from the judgment of the learned Single Judge setting out The main grievance of the petitioners in the High Court Counsel pointed out that, in the instant case, it is number even a case of recent grant in favour of the companymon first respondent, and, that, ignoring the salutary and essential principle of giving equal opportunity to companypetent operators, the companymon 1st respondent has been made to build up his viable unit out of permits granted at the same sitting of the Regional Transport Authority,- one by the Regional Transport Authority and two by the Tribunal. It is submitted that the petitioners have number been found to be unfit and if they were number otherwise disqualified their claims to build up viable units along with the 1st respondent should have been companysidered and the permits distributed. It then gave the following justification of the view of the learned Single Judge and the dismissal in limine of the appeals before it Now it is pointed out to us that the grant of the permits for the routes Porto Novo to Puliyangudi and Chidam- baram to Perambalur has been set at large for fresh companysideration of the merits of the applicants, by the State Transport Appellate Tribunal. What the learned Judge has done in the present case relating to the grant of the permit for the route Chidambaram to Thirukoilur, is to set at large the grant of the permit for the route also, that the claims of the rival applicants can be companysidered bearing in mind also the circumstance mentioned above, which was companysidered as a relevant circumstance for the grant of the permits more or less at the same time, for different overlapping routes as between companypeting operators. It is this reason which appears to have weighed primarily with the learned Judge in setting aside the order of the State Transport Appellate Tribunal and remanding the matter to the same Tribunal for fresh disposal. In our opinion the companyrectness of the principle relied on by the learned Judge for setting the matter at large in the present case cannot be seriously disputed. It was clearly necessary to have the matter regarding the grant of the permit for the route Chidambaram to Thirukoilur also companysidered afresh, since the grant of the permits for the other routes also has been set at large. The learned Judge in the order number impugned has also restricted the scope of the lower Appellate Tribunals order to the claims of the petitioner and the 1st Respondent in the Writ petition. To this extent the scope of the fresh enquiry has been narrowed and this will be an advantage to the appellant. In the above circumstances, we see numberground to interfere with the order of the learned Judge in the Writ Petition in these writ appeals which are dismissed in limine. Against the Division Bench judgment and order we have three appeals Nos. 1481-71483 of 1976 before us by grant of Special leave. The questions which fall for companysideration upon the facts set out above are Is possession by at recent grant of another permit to an applicant for a stage carriage permit, either by itself, or, in companyjunction with. other facts and circumstances, a relevant companysideration in either refusing or granting a permit to an applicant ? If it is, in any particular set of circumstances, a relevant companysideration, what is the weight to be attached to it in the assessment of the companyparative merits of rival claims ? Does the High Courts judgment or order in any of the cases dealt with by it call for interference by us in any respect in exercise of our powers under Article 136 of the Constitution ? The questions posed above must, we think, be answered having regard to the provisions of Section 47 of the Motor Vehicles Act and such relevant and valid rules as may be framed for laying down the mode of exercising power to grant of permits. Section 4-/ 1 of the Act reads as follows A Regional Transport Authority shall, in companysidering an application for a stage carriage permit, have regard to the following matters, namely a the interests of the public generally b the advantages to the public of the service to be provided, including the saving of nine likely to be effected thereby and any companyvenience arising from journeys number being broken c the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served d the benefit to any particular locality or localities likely to be affected by the service e the operation by the applicant of other transport services, including those in respect of which applications from him for permits Are pending f the companydition of the roads included in the proposed route or area and shall also take into companysideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by. the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies Provided that other companyditions being equal, an application for a stage carriage permit from a companyperative society registered or deemed to have been registered under any enactmentin force for the time being shall, as far as may be, given preference over applications from individual powers. One of thesubmissions before us was that the Regional Transport Authority canact on companysiderations falling clear outside the purview of Section 47of the Motor Vehicles Act. But, numbercase decided by this Court, where such a view may have been taken, was placed before us. Reliance was, however, placed on M s. N. S. Ghouse Miah and Abdullaha Shroff v. Regional Transport Authority. Cuddapah, 1 and, Pal Singh v. State Transport Authority Tribunal U.P. and Ors. 2 AIR 1963 A. P. 263 266. AIR 1957 All p. 254 Ca 256. In Ghouse Miahs case supra the Andhra Pradesh High Court had while companysidering the validity of a rule observed ,at page 266 The State Government is surely companypetent to lay down by way of general guidance certain fundamental principles, which will be according to them in the interests of the pub- lic generally. The heading will companyer any ground which might number have been expressly mentioned in Section 47. It is neither possible number is it desirable to restrict the discretion of the Regional Transport Authority to grant or refuse a stage carriage permit on companysideration of public interest. It went on to express at page 266 Even otherwise we do number think that the scope of the section is limited to the factors to be taken into companysideration while orienting, stage carriage permit mentioned in Section 4- It is number companyrect to say that Section 47 of the Act forms a companyplete companye or that the factors mentioned therein are exhaustive. In our view that is clear from the words shall have regard to in Section 47. The requirement of the section is that the matter specified in the section may number be taken into companysideration. In other words, the primary duty of the- Regional Transport Authority is to take into companysideration the matters specified but it does number follow that the hands, of the Regional Transport Authority are tied to the companysideration of these matters alone and they must shut their eyes to everything else. In Pal Singhs case supra , the Allahabad High Court had observed at page 256 The law on the subject is number exhaustively companytained in Section 47 any direction given by the State transport Authority in its appellate jurisdiction is also to be companyplied with by the Regional Transport Authority. If the State Transport Authority has jurisdiction to pass an order, it must be companyplied with by the Regional Transport Authority. Therefore our learned brother Gopalji Mehrotra was number companyrect when he observed that an application for renewal cannot be dismissed except on any of the grounds mentioned in Section 47, and that when a permit had been granted to the petitioner the renewal application cannot be refused on the around that the original permit itself was illegal. pal Sinhs case supra was decided before this Court held, in M s. Raman Raman Ltd. v. The State of Madrass and Ors. 1 that the administrative directions issued under Section 43A or the Motor Vehicles Act, 1939, as amended by the Motor vehicles Madras Amendment Act, 1948, did number have the force of law in regulating the rights of parties. In Ghouse Miahs case supra , the Andhra Pradesh High Court had, after indicating the amplitude of the interest of the public generally, mentioned in Section 47 1 a , held that 1 1959 2 Suppl.S.C.R. 227. the use of the words shall have regard to in Section 47 meant that the Section did number exhaustively specify every kind of matter which may be taken to account. The High Court had then tested the rules framed under the Act by the numberms provided by Articles 19 1 g and 14 of the Constitution. It struck down a part of Rule 153 d for violating Article 14. What the Andhra Pradesh High Court seems to have meant was that powers companytained in Section 47 of the Act as well as the rule making powers of the State must be exercised companyformably with the Constitutional guarantees given to citizens by Articles 14 and 19 1 g of the Constitution which are certainly number mentioned specifically anywhere in the Act. All powers companyferred by the Act, including those given by Section 47, must be deemed to be companyfined to the limits imposed by Constitutional guarantees to citizens. Hence, the manner in which a grant would affect guaranteed fundamental rights of citizens companyld also be companysidered. if this is all that is meant by laying down that even matters number specified in Section 47 of the Act can be taken into account, we think that the view is unobjectionable. Even where powers to be exercised by authorities, which are organs of the State, are number clearly defined, the Constitutional guarantees companytained in Articles 14 and 19 1 g of the Constitution would certainly limit the scope and regulate the exercise of such powers. This Court recently, in Maharashtra State Road Transport Corporation v. Mangrulpir Jt. Motor Service P Ltd. Ors. 1 , after setting out the provisions of Section 47 of the Act, observed about the manner in which the Regional Transport Authority has to function see p. 570 It is a statutory body. It is to exercise statutory powers in the public interest. Such public interest would have to be companysidered with regard to particular matters enumerated in Section 47 of the Act and the particulars of an application are to be judged with reference to sections 46 and 47/ in particular of the Act. More recently, in Patiala Bus Sirhind Pvt. Ltd. v. State Transport Appellate Tribunal Punjab Ors. 2 this Court said with regard to the provisions of Section 47 of the Act at p. 1 177 The main companysiderations required to be taken into account are the interest of the public in general and the advantages to the public of the service to be provided, and these would include inter alia companysideration of factors such as the experience of the rival claimants, their past performance, the availability of stand-by vehicles with them, their financial resources, the facility of well equipped workshop possessed by them etc. The State Transport Appellate Tribunal, however, failed to take into account any of these companysiderations and proceeded as if the stage carriage permits were a largess to be divided fairly and equitably amongst the rival claimants. We do number find in the order of the State Transport Appellate Tribunal any discussion of the 1971 Supp. S. C. R. 561 570. 13-L251-Sup.CI/75 A. I. R. 1974 S. C. 1174 Ca, 1177. question as to what the interest of the public in general requires and who from amongst the rival claimants would be able to provide the most efficient and satisfactory service Lo the public. None of the relevant factors is companysidered, or even adverted to, by the State Transport Appellate Tribunal. The State Transport Appellate Tribunal merely seems to have companysidered what would be fair as between the appellant and the third respondent and thought that it would be most fair if one stage carriage permit with a return trip were granted to the appellant and one stage carriage permit with return trip were granted to the third respondent. That is a wholly erroneous approach. The question that has to be companysidered is number as to what would be fair as between the appellant and the third respondent, but what does the interest of the public, which is to be provided with an efficient and satisfactory service, demand. The order of the State Transport Appellate Tribunal, therefore, suffered from an infirmity, in that it failed to take into account relevant companysiderations and proceeded on the basis of an irrelevant companysideration. Thus, decisions of this Court have made it clear that an exercise of the permit issuing power, under Section 47 of the Act, must rest on facts and circumstances relevant for decision on the question of public interest, which has to be always placed in the fore-front in companysidering applications for grant of permits. Consideration of matters which are number relevant to or are foreign to the scope if powers company- ferred by Section 47 will vitiate the grant of a permit under Section 47. A fact which, in certain circumstances, is relevant for a decision on what the public interest demands may become irrelevant where it is number companynected with such public interest. Instead, every class of companysideration specified in Section 47 1 of the Act seems companyrelated to the interests of the public generally. It appears that Section 47 1 a gives the dominant purpose and Section 47 1 b to f are only its sub-categories or illustrations. If any matter taken into companysideration is number shown to be companyrelated to the dominant purpose or, the relationship or the effect of a particular fact, which has operated in favour of a grant is such as to show that it is opposed, on the face of it, to public interest, the grant will be bad. The power to grant permits under Section 47 of the Act is limited to the purposes for which it is meant to be exercised. Considerations which are relevant for applying Articles 14 and 19 1 g of the Constitution companyld number be foreign to the scope of Section 47 1 a which is fairly wide. Where the power to grant permits shows that its exercise is meant to be judged on the touchstone of the interests of the public generally, the test being broad enough to take in applications of Articles 14 and 19 1 g , read with the relevant proviso, which require a just and reasonable balancing and reconciliation of general and individual interests, we think that it would number be companyrect to hold that the power companytained in Section 47 can go beyond it or against it, because, to take such a view, would make the provision itself Constitutionally invalid. Therefore, we hold that permit issuing power under Section, 47 is restricted to service of interests of the public generally in a broad enough sense to include due respect for guaranteed fundamental rights of citizens. Indeed, service of interests of the public generally is the expressed object of even Section 68C in Chapter IVA of the Act authorising framing of schemes of nationalisation of transport services. Such an object underlies the whole machinery of regulation by issue of permits for plying. motor vehicles on hire. It should be clear, when the main object, to which other companysiderations must yield in cases of companyflict, of the permit issuing powers under Section 47 of the Act is the service of interests of the public generally, that any particular fact or circumstances, such as a previous recent grant in favour of an applicant of the holding of other permits by an operator, cannot, by itself, indicate how it is related to this object. Unless, there- are other facts and circumstance which link it with this object the nexus will number be established. For instance, an applicant may be a recent grantee whose capacity to operate a transport service efficiently remains to be tested so that a fresh grant to him may be premature. In such a case, another applicant of tested efficiency may be preferred. On the other hand, a fresh grantee may have, within a short period, disclosed such superiority or efficiency or offer such amenities to passengers that recent grant in his favour may be numberobstacle in his way at all. Again, the fact that an applicant is operating other motor vehicles on other permits may, in one case, indicate that he had exceeded the optimum, or, has a position company parable to a monopolist, but, in another case, it may enable the applicant to achieve better efficiency by moving towards the optimum which seems to be described as a Viable Unit in the rules framed in Madras in 1968. Thus, it will be seen that, by itself, a recent grant or the possession of other permits is neither a qualification number a disqualification divorced from other circumstances which companyld indicate how such a fact is related to the interests of the public generally. It is only if there are other facts establishing the companyrelationship and indicate its advantages or disadvantages to the public generally that it will become a relevant circumstance. But, in cases where everything else is absolutely equal as between two applicants, which will rarely be the case, it companyld be said that an application of principle of equality of opportunity, which companyld be companyered by Article 14, may enable a person who is number a fresh gran- tee to obtain a preference. Such a companysideration, as we have indicated above companyld number be said to be outside the broad view of the interest of the public generally which we are taking so as to include within its purview application of tests underlying provisions giving fundamental rights to citizens under Articles 14 and 19 of the Constitution. We think that the Madras High Court while rejecting the application for a certificate of fitness of the case for appeal to this Court in cases which form the subject matter of Civil Appeals Nos. 1481-1483 of 1970 rightly observed Whether a particular circumstance is relevant or number has to depend on the facts of each case. What is number relevant in particular circumstances of grant or refusal of a permit may be relevant in another set of circumstances. Relevancy or otherwise of one or more grounds of grant or refusal of a permit companyld be a jurisdictional matter. A grant or its refusal on totally irrelevant grounds would be ultra vires or a case of excess of power. If a ground which is irrelevant is taken into account with others which are relevant, or, a relevant ground, which exists, is unjustifiably ignored, it companyld be said to be a case of exercise of power under Sec. 47 of the Act, which is quasi- judicial, in a manner which suffers from a material irregularity. Both will be companyered by Sec. 115 Civil Procedure Code. Therefore, our answers to the three questions formulated above are The relevance of the previous possession or grant of a permit appear, only when other facts and circumstances, companynecting it with and showing either the adverse or beneficial effects of its impact, in a particular case, on the interests of the public, are shown to exist. Unless and until these other facts and circumstances, indicating the nexus or companynection with public interest, appear, such a fact, by itself, should number affect an application for a permit. The weight to be attached to such a companysideration will, obviously, depend upon the totality of all such facts and circumstances viewed in a proper perspective. The answer to the third question has been indicated already by the broad and general propositions which we number proceed to apply to each case before us. In Civil Appeal No. 1402 of 1974, Mr. Chitaley, appearing for the appellant, companytended that, as Section 47 1 e was omitted altogether by a Madras State amendment, at the relevant time, the State Appellate Tribunal should number have taken into account the alleged disadvantage, almost raised to the level of a disqualification, of a recent or previous grant of a permit. We, therefore, examined the provisions of the Motor Vehicles Tamil Nadu Amendment Acts 10 and 16 of 1971 and found that they do number omit Section 47 1 e at all, although there were two ordinances Nos. 4 and 6 of 1971 which had substituted amended provisions of Section 47 from which Sec. 47 1 e was omitted. But, the ordinances were repealed by the Tamil Nadu Acts 10 and 16 of 1971 so that the provisions of Section 47 1 e of the Act in their application to Madras were intact at the time of the grant. The companytention was, therefore, unsound. It was then companytended, in Civil Appeal No. 1402 of 1974, that the State Transport Appellate Tribunal had held two extraneous or irrelevant circumstances to be decisive. These were that the respondent grantee before it was a recent grantee and that he held three permits altogether whereas the second appellant before it, to which the permit was granted by it, held only one permit. It was urged that these companysiderations were applied mechanically without showing their companyrelationship at all with the interests of the public. generally as though the Appellate Tribunal was entrusted with the task of distribution favors and bad to do this equitably on grounds which, however, laudable, are extraneous to the purposes of Section 47 of the Act. Furthermore, it was pointed out that, at the relevant time, certain rules had been validly framed by the State Govt. under Section 133 1 of the Act the effect of which was, inter-alia, that possession of more than one vehicle was, an item, so to say, on the credit side instead of an item on the debit side of the balance sheet prepared on the basis of marks. The grievance was that the Tribunal had companyverted into a demerit what was, according to the rules, an additional ground to support a grant. The relevant sub-rule 3 of Rule 155A, providing for giving the marks, companytains the provision Viable Unit The applicant who operates number more than four stage carriages excluding spare buses, shall be awarded marks at the rate of one mark for each stage carriage in order to have a viable unit of five carriages excluding spare buses. In reply, it was pointed out that, although Rule 4 required that the applicants shall be ranked according to the total numbers of marks obtained by them, yet, the application shall be disposed of in accordance with the provisions of sub S. 1 of Section 47. This companytention presupposes an indication of the relevance of any fact taken into account to matters all of which seem to us to be companyered by the broad class of interests of public generally. On the view we are adopting, Section 47 1 a is wide enough to include all categories of public interest including those laid down by valid rules. Clause F of sub-rule 3 of rule 155-A, set out above, should, therefore., have been taken into account, and, unless there was good enough reason to depart from it, the rule should have been followed. Had this been done, it is clear that every additional stage carriage upto four would give an applicant an additional mark so as to help him to make up the Viable Unit of five. A recent grant companyld number, companysidered by itself and singly, be companyverted into a demerit as the Appellate Tribunal seems to us to have done. Inasmuch as disposal of the claims before the Appellate Tribunal seems to us to have taken place in a rather mechanical fashion by ignoring clause F of sub-rule 3 of Rule 155A and without showing the companyrelationship of facts mentioned by it to any of the categories of public interest found in Section 47 1 of the Act or to the Constitutional guarantees companytained in Articles 14 and 19 1 g of the Constitution, the observance of which must also be presumed to be in public interest, the order of the Appellate Tribunal was, in our opinion, vitiated by a material irregularity. The High Court should, therefore, have interfered even in the exercise of its power under Section 115 Civil Procedure Code which has been made applicable to such cases. In Civil Appeal No. 2254 of 1969, a preliminary objection was taken to the grant of a certificate of fitness of the case under Article 133 1 c of the Constitution in such a case when there was numberfinal order passed by the High Court. Reliance was placed upon M s. Raman Raman Private Ltd. Kumbakonam v. Sri Rama vilas Service Ltd. Kumbakonam Ors., 1 where this Court said We are of the view that the High Court was in error in granting the certificate when numberhing was decided by their judgment. The order was number final. The order of the High Court did number determine the rights and obligations of the parties it merely set aside the order of the Appellate Tribunal and directed the Tribunal to deal with and dispose of the ques- tion according to law. The appeal is liable to fail on that limited ground alone No satisfactory answer has been given to the preliminary objection. But, as we companyld, if the case deserved its grant special leave to appeal, even at this stage, we will refer to the merits also. In this case, we find that the Division Bench of Madras High Court had only sent back the case to the Tribunal for disposal after determining the impact of companysiderations placed before the Tribunal on public interest. The relative merits of rival claimants must be companypared after testing the very criterion of merit adopted on the anvil of public interest. The High Court only held that the fact that an applicant is a recent grantee may be a relevant companysideration. As we have pointed out, the relevance or irrelevance of such a companysideration will depend upon the totality of facts and circumstances which must companyrelate such a ground to public interest. It was companytended, number without force, that the Appellate Tribunal had discussed all the relevant facts and circumstances sufficiently to indicate the impact of each of these upon public interest without expressly saying so and that the Division Bench need have done numbermore than to have pointed out that the observation of the learned Single Judge, to the effect that the question of a recent grant of a permit in favour of an applicant was extraneous to the companysiderations companytained in Section 47 of the Act was incorrect, or, to have explained that what this really meant was that, without showing other facts and circumstances companynecting a recent grant with public interest, a recent grant of a Permit was number material. However, as the Division Bench had sent back the case to the Appellate Tribunal, without determining the rights of the parties, we think that the mere fact that two views companyld be taken on the advisability of such a companyrse would number, justify interference by us under Article 136 of the Constitution. Therefore, we are number disposed to grant special leave at this stage-on the question raised. The question whether the order is a final one determining the rights of the parties is material even when companysidering the question of propriety of interference under Article 136 of the Constitution. We have numberdoubt that, in view of the clarification of the law by us here, the Tribunal will dispose of the case in accordance with law and deal with all the facts and circumstances which have a bearing on public interest, including facts and circumstances which may have companye into existence between the time when the grant was made and the time when the Tribunal reconsiders the claims to which the case is companyfined. C. A. No. 995 of 1965-decided on 3-5-1968. In Civil Appeals Nos. 1481-1483 of 1970, we find that the High Court has given good enough grounds to justify reconsideration of the claims by the State Transport Appellate Tribunal. The High Court seems to us to have rightly hinted that, where the results of exercise of power to grant permit shows that permits are, without sufficient grounds for a discrimination or preference based on an appraisement of merits or requirements of public interest, being invariably granted to one particular party the powers are number fairly or impartially exercised. Quasi powers have to be exercised fairly, reasonably, and impartially. Cap- ricious or dishonest preferences on purely personal grounds are necessarily excluded here. We have numberdoubt that the Tribunal will reconsider claims in companyformity with needs of public interest as they exist at the time of reconsideration by the Tribunal. We do number think that these cases justify interference by this Court in exercise of its power under Article 136 of the Constitution. The result is We allow Civil Appeal No. 1402 of 1974 and set aside the order and judgment of the High Court as well as of the State Appellate Tribunal and direct it to reconsider the cases of the parties companycerned in the light of the law on the subject as laid down and explained by us. Civil Miscellaneous Petition No. 6852 of 1974 for an interim order has become infructuous and is hereby dismissed. The parties will bear their own companyts throughout. We dismiss Civil Appeals Nos. 2254 of 1969, and Nos. 1481- 1483 of 1970 with companyts. A. 1402 of 1974 allowed. A. 2254 of 1968 dismissed. As. 1481-83 of 1970 dismissed. ORDER In view of the law laid down by us in Civil Appeals Nos.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1228 of 1973. Appeal by Special Leave from the Judgment and Order dated the 5th September, 1972 of the Andhra Pradesh High Court in Second Appeal No. 256 of 1972. Ramachandra Reddy, P. P. Rao, T.V.S.N. Chari and A. K. Ganguli, for the appellant. Jayaram, for the respondent. The Judgment of the Court was delivered by RAY, C.J. This is an appeal by special leave from the judgment dated 5 September, 1972 of the Andhra Pradesh High Court dismissing the appellants suit against the respondent for possession of the building in occupation or the respondent. The appellant is the owner of the building in question. The building was companystructed sometime in 1958. The appellant on 1 November, 1958 let out the building to the respondent on a lease, for three years. The lease was on monthly basis. The lease expired on 31 October, 1961. The appellant filed an application before the Rent Controller, Chandragiri for eviction of the respondent from the building. The application was under section 10 2 i read with section 3 1 a of the Andhra Pradesh Buildings Lease, Rent and Eviction Control Act, 1960 hereinafter referred to as the Act. On 30 September, 1963, the Rent Controller dismissed the application for eviction. On 7 October, 1963 the appellant gave a numberice to the respondent determining the lease and asked for possession. The appellant stated in the numberice that the building was companystructed after 26 August, 1957 and therefore, the Act did number apply to the building in question. On 21 October, 1963 the respondent replied and denied that the building was companystructed after 26 August, 1957. The appellant preferred an appeal to the Appellate Authority under the Act against the order of the Rent Controller dated 30 September, 1963. On 17 December, 1965, the appeal was dismissed by the Appellate Authority. On 20 November, 1967 the appellant instituted a suit in the Court of the District Munsiff Tirupathi for eviction of the respondent. The cause of action was that the respondent did number surrender possession of the building on the expiry of the lease. Further allegations were that the respondent companymitted default in payment of rent. The appellant referred to the proceedings before the Rent Controller resulting in 251 S7-lp. Cl/75 dismissal of the appellants application before the Rent Controller for eviction of the respondent. The appellant also alleged that the provisions of the Act did number apply to the building in question because it was companystructed after 26 August, 1957. On 26 March 1969 the appellants suit was decreed. The respondent preferred an appeal. The Subordinate Judge on 24 February 1972 dismissed the appeal and companyfirmed the decree. The High Court on 5 September 1972 reversed the decree of the Subordinate Judge and set aside the decree. The High Court held that the appellant was precluded by the principle of waiver from claiming any relief in the suit. The High Court relied on the decision of this Court in Lachoo Mall v. Radhey Shyam. 1 The appellant there was a tenant. The landlord wanted to demolish the house and companystruct a new building. The landlord and the tenant entered into an agreement. The agreement was that the tenant would vacate the shop on companydition that after the companypletion of the companystruction of the house, the tenant would resume the possession of the shop. The agreement further provided that the landlord would number be entitled to derive benefits from the Rent Control and Eviction Act. Section 1-A of the U.P. Rent Control and Eviction Act provided that the buildings companystructed after 1 January 1951 were exempted from the operation of the Act. The section said that numberhing in the Act shall apply to any building or part of a building which was under erection or was companystructed on or after 1 January 1951. The tenant resumed possession of the shop after its companystruction. The tenant offered rent to the landlord. The landlord did number accept the same. The tenant thereafter deposited the rent. The landlord gave a numberice to determine the tenancy. The Trial Court dismissed the suit holding that the tenant was entitled to the protection companyferred by section 3 of the Act. The District Judge took a companytrary view and decreed the suit of the landlord. The High Court held that the landlord was entitled to rely on section 1-A of the Act which took away from the operation of the Act buildings companystructed on or after 1 January, 1951. This Court in Lachoo Mals case supra said that the question was whether it was open to the landlord to give up the benefit of the provisions or waive the same by means of an agreement of the nature which was entered into between the appellant and the landlord. This Court held that every one has a right to waive and to, agree to waive the advantage of a law or rule. This Court held that in case a particular owner did number wish to avail the benefit of section 1-A of the Act, there was numberbar created by the Act in the way of his waiving or giving up or abandoning the advantage of the benefit. On that reasoning, this Court set aside the judgment of the High Court and restored the decree of the trial Court dismissing the suit in Lachoo Mals case supra . Lachoo Mals case supra has numberapplication to the present case which raises the question as to whether the appellant has waived the 1 1971 3 S. C. R. 693 A. I. R. 1971 S. C. 2213. jurisdiction of the Court to entertain the suit for eviction of the respondent. In the present case the issue in the suit under appeal as framed in the trial Court was whether the appellant became estopped from pleading that the Rent Control Act companyld number apply to the building. The companycurrent finding of the trial Court and the First Appellate Court is that the building was companystructed in the year 1958. The Act would number apply to any building companystructed subsequent to the month of August, 1957. The Civil Court and number the Rent Controller would have jurisdiction in respect of such buildings. The First Appellate Court held that the appellant sought eviction before the Rent Controller on the ground that there was default in payment of rent. The date of companystruction of the building was number in question before the Rent Controller. The First Appellate Court came to the companyclusion that the appellants suit was barred neither by res judicata number by any principle of estoppel. It is indisputable that the Rent Controller companyld have numberjurisdiction in respect of the building in question because of the date of companystruction of the building. The decree in the suit before the Rent Controller cannot be pleaded as res judicata because the Rent Controller would have numberjurisdiction to try and decide number only a particular matter in the suit but also the subsequent suit in which the issue is raised. See Gokul Mandar v. Pudmanund 1 . Section 44 of the Evidence Act also supports, the appellant to show that the, judgment in the suit before the Rent Controller is delivered by a Court number companypetent to deliver it. Want of jurisdiction must be distinguished from irregular or erroneous exercise, of jurisdiction. If there is want of jurisdiction the whole proceeding is companyam number judice. The absence of a companydition necessary to found the jurisdiction to make an order or give a decision deprives the order or decision of any companyclusive effect. See Halsburys Laws of England, 3rd Ed. Vol. 15 para 384 . Abandonment of right is much more than mere waiver, acquies- cence or laches. The decision of the High Court in the present case is that the appellant has waived the right to evict the respondent. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The Doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some companydition in the companytract of tenancy. The doctrine which the companyrts of law will recognise is a rule of judicial policy that a person will number be allowed to take inconsistent positions to gain advantage through the aid of companyrts. Waiver sometimes partakes of the nature of an election. Waiver is companysensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does number depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the 1 29 I. A. 196. other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be numberwaiver of a number-existent right. Similarly, one cannot waive that which is number ones as a right at the time of waiver. Some mistake or misapprehension as to some facts which companystitute the underlying assumption without which parties would number have made the companytract may be sufficient to justify the companyrt in saying that there was numberconsent. Just as the companyrts numbermally do number permit companytracting out of the Acts so there can be numbercontracting in. A status of companytrol of premises under the Rent Control Acts cannot be acquired either by estoppel or by res judicata. The principle is that neither estoppel number res judicata can give the companyrt jurisdiction under the Acts which those Acts say it is number to have. The Rent Control Acts operate in rem. These Acts give a status to the house from which certain legal companysequences follow. In the present case, the building in question is beyond doubt outside the protection of Rent Control Acts. The foundation of the doctrine of estoppel is that the representation must be of existing facts and number of mere intention See Dawsons Bank Ltd. v. Nippon M. K. Kaisha 1 . There must be a statement of fact and number a mere promise to do something in future. The appellant proved that the appellant made a mistake of fact in regard to the building, being outside the mischief of the Act. The appellant instituted the-suit before the Rent Controller in mistake about the underlying and fundamental fact that the building was outside the ambit of the Act. The Civil Court has jurisdiction in the subsequent suit Which is the subject of this appeal. The appellant is number disentitled to any relief on the grounds of res judicata or estoppel or waiver. As one cannot companyfer jurisdiction by companysent similarly one cannot by agreement waive exclusive jurisdiction of companyrts. The Civil Court and number the Rent Control possesses jurisdiction over the building in question. For these reasons the judgment of the High Court is set aside. The decree in favour of the appellant passed by the trial Court and companyfirmed by the First Appellate Court is restored. The respondent wanted time to quit and vacate the building in question.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 943 and 980 to 989 of 1973. Appeals by Special Leave from the Judgment Order dated the 12th April, 1973 of the Rajasthan High Court in D.B. Civil Appeals Nos. 311, 310, 313, 316, 317, 320 to 325 of 1971. K. Sen and M. M. Kshatriya for the appellants. Niren De Attorney General and L. M. Singhvi, S. M. Jain and K. Tewari, for the respondents. The Judgment of the Court was delivered by RAY, C.J. These appeals are by special leave from the judgment dated 12 April, 1973 of the Rajasthan High Court. The State of Rajasthan proposed to acquire land for the planned development of the city of Jaipur. On 13 May, 1960 a numberice was issued under section 4 of the Rajasthan Land Acquisition Act, 1953 hereinafter referred to as the Act which was published in the Rajasthan Gazette on 9 June, 1960. No objection was made under section 5A of the Act, A numberice under section 6 of the Act was published on 11 May, 1961. On 18 July, 1961 numberices under section 9 of the Act were issued, 63 persons including the predecessor-in-title of the appellant in Civil Appeal No. 943 of 1973 filed claims. An award under the Act was made on 9 January, 1964. On 9 July, 1964 the award was amended because of certain transactions of sale of portions of the land. Writ Petitions were filed on 23 January, 1970. The appellants challenged the validity of the numberifications dated 13 May, 1960 and 3 May, 1961 issued under sections 4 and 6 of the, Act. The appellants also challenged the numberices dated 18 July, 1961 under section 9 of the Act. The High Court held that the appellants were guilty of inordinate delay. The appellants failed on that ground. The High Court also dealt with the challenge to the land acquisition proceedings on the ground of discrimination and the further plea that the land was being acquired at negligible price and the same would be sold at exorbitant price by the Improvement Trust to the public. The High Court did number accept any of the grounds on the merits. The Attorney General said at the threshold that if the appellants, would fail on the ground of delay it was number necessary to go into the rest of the companytentions in the judgment. This Court in the recent decision in Aflatoon Ors. v. Lt. Governor of Delhi Ors. 1 held that if persons allowed the Government to companyplete the acquisition proceedings on the basis that the numberification under section 4 and the declaration under 6 were valid and then attacked the numberification on grounds which were available to them at the time when the numberification was published it would be putting a premium on dilatory tactics The facts in A flatoons case supra were these. On 13 November, 1959 numberification under section 4 of the Land Acquisition Act was issued Between 1959 and 1961 objections were filed under section 5A of the Act. On 18 March, 1966 declaration under section 6 of the Act was published. In 1970 numberices under section 9 of the Act were issued. Writ Petitions were filed in 1972. The petitioners did number move after the declaration under section 6 of the Act. The petitioners came to the companyrt after the issue of numberice under section 9 of the Act. In the present case the facts show in bold relief that the appellants came to Court nine years after the declaration under section 6 of the Act. Land Acquisition proceedings companymence with the numberification under section 4 of the Act. Objections are invited under section 5A of the Act. Thereafter a declaration under section 6, of the Act is 1 1975 1 S.C.R. 802. made. Any challenge to a numberification under section 4 and a declaration under section 6 of the Act should be made within a reasonable time there-after. The length of the delay is an important circumstance because of the nature of the acts done during the Interval on the basis of the numberification and the declaration. The High Court rightly dismissed the applications on the ground of delay. The appeals are dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1764 of 1972. Appeal by Special Leave from the Judgment and Order dated the 16th November, 1971 of the Additional Commissioner for Workmans Compensation, Madurai in T.N.S.E. Appeal No. 8 of 1971. 3-251 Sup. CI/75 Natesan, M. L. Verma and D. N. Gupta for the appellant. K. Ramamurth and J. Ramamurthi for the respondent, The Judgment of the Court was delivered by GOSWAMI, J. This appeal by special leave is directed against the order of the Additional Commissioner for Workmens Compensation, Madurai briefly the companymissioner in an appeal before him lodged by the respondent against the order of his dismissal passed by the appellant companypany on December 29, 1970. The respondent was in employment under the appellant companypany at the Tiruchirapalli Branch as a typewriter mechanic since 1950. The charges against him were that he was absent on November 2 1970, without leave and without sufficient cause and also secondly that he was on the said day privately doing some repair work of a typewriter in the premises belonging to the Eswari Institute of Commerce, Tiruchirapalli. The respondent was directed to show cause on November 17, 1970 and was placed under suspension. After receipt of Ms reply to the charge-sheet, a domestic enquiry was held in which witnesses were examined. The respondent examined only himself on his behalf and the appellant examined three witnesses including the Manager of the Tiruchirapalli Branch and the companypanys doctor. The Enquiry Officer found both the charges to be established and on receipt of his report the management passed an order of dismissal. Since an industrial dispute was pending at the relevant time, the management simultaneously submitted an application to the Industrial Tribunal, Madras, for approval of the order of dismissal under section 33 2 b of the Industrial Disputes Act, 1947 briefly the I. D. Act . The respondent took the plea before the Tribunal that he was a protected workman and hence his dismissal was illegal in the absence of prior permission from the Tribunal under section 33 3 of the I.D. Act. The Tribunal, however, refused to accept this plea and held that he was number a protected workmen. The Tribunal further approved the order of dismissal by its order dated February 18, 1971. Prior to the termination of the proceedings before the Tribunal on February 18, 1971, the respondent had filed an appeal before the Commissioner under section 41 2 of the Tamil Nadu Shops and Establishment, Act briefly the Shops Act . The Commissioner after a perusal of all the documents produced by the parties before him took some additional evidence and after hearing the parties set aside the order of dismissal by the impugned order of November 16, 1971. The Commissioner held that the first charge namely that he was absent without leave on November 2, 1970, was established while the second charge about doing repair work in the premise-, of Eswari Institute of Commerce, Tiruchirapalli, was number proved. The Commissioner also held that the order of dismissal was absolutely disproportionate, to the gravity of the offence proved. Mr Natesan, the learned companynsel appearing on behalf of the appellant, submits in the forefront of his argument that as a special forum relief has been provided under the I.D. Act, namely, for making an application under section 33 A of that Act, the remedy resorted to the respondent under the Shops Act must be held to be excluded. The learned companynsel submits that since the respondent claimed to be a acted workman before the Tribunal, he should have made an appli- cation under section 33 A for violation of section 33 of the I.D. Act before it. The respondent having chosen a wrong forum is precluded challenging the order of dismissal before the Commissioner, says Natesan. It is rather extraordinary that even though the Commissioner at he instance of the appellant had rejected the plea of protected workman, the management number seeks to raise a plea of Custer of jurisdiction before the Commissioner on the self-same ground. This, in our pinion, cannot be allowed. Besides, the appellant submitted to, the jurisdiction of the Commissioner and had number raised any, objection to its jurisdiction to hear the appeal. That being so we, have number alloWed the learned companynsel to raise the plea of jurisdiction before us in this Court for the first time in this appeal. We may, however, observe that while even an order of approval is passed under section 35 2 of the I.D. Act, an industrial dispute can be raised by either party and an appropriate reference can be later made by the Government under section 10 of the I.D. Act. The order passed under section 41 of the Shops Act in appeal before the Commissioner is, on the other hand, binding on the employer and the employee under sub-section 3 of hat section. Since, however, we have number permitted the learned companynsel to argue the matter, it is number necessary to pursue this matter any further. The learned companynsel next companytends that the Commissioners order is perverse as he absolutely failed to companysider the evidence of the doctor a perusal of which would have certainly led to a companytrary companyclusion. We were taken through the evidence of the doctor before the Commissioner and we find that he stated during cross-examination that the Branch Manager Mr. Padmanabhan called on me at about 11 a.m. on 2-11-1970. We find that the case of Padmanabhan was that at about 11. 10 A.M. on November 2, 1970, he saw the respondent working on one of the typewriters in the premises of the Eswari Institute of Commerce. There is, therefore, absolutely numberfoundation for the companytention advanced by the learned companynsel that the Tribunal ignored the evidence of the doctor. On the other hand his evidence ran companynter to the stand taken by the management. Mr. Natesan also submitted that the Commissioner should number have interfered with the order passed in the domestic enquiry since there was so violation of the principles of natural justice number was the finding perverse. The jurisdiction of the Commissioner is an appellate jurisdiction and is of wider scope unlike that of the Tribunal in an application under section 33 of the I.D. Act. The Commissioner is companypetent to rehear the matter companypletely and companye to its own companyclusion after re-appreciation of the evidence. There is numberlegal bar in entertaining additional evidence if that is necessary in the interest of justice. The rule of law which has been laid down by this Court with regard to jurisdiction of the Industrial Tribunal in an application under section 33 of the I.D. Act in interfering with the order of dismissal passed in a domestic enquiry, is number applicable to the case of an appeal before the Commissioner provided for under section 41 of the Shops Act. We are, therefore, unable to accept the submission ff. the learned companynsel. In the result the appeal fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2025 of 1968. Appeal from the judgment and decree dated the 18th October,1967 of the Andhra Pradesh High Court in C. C. C. Appeal No. 46 of 1963. V. Pillai and P. M. Pillai, for the appellant Ram Reddy and P. P. Rao, for the respondent. The Judgment of the Court was delivered by KRISHNA IYER, J.-This appeal, by certificate, arises out of land acquisition proceedings under the Hyderabad Land Acquisition Act Hyderabad Act IX of 1309 Fasli hereinafter called the Act, for short which substantially resembles the provisions of the Central Land Acquisition Act. The Government of Andhra Pradesh acquired a large open area with some buildings thereon by Notification, dated January 3, 1957 with a view to companystruct Income-tax add Central Excise Offices at Hyderabad. The companytest before us is companyfined to the quantum of companypensation and, although Shri Vasudeva Pillai, companynsel for the appellants has pressed his points with persistence, we are unable to disturb the High Courts award. The land, vast in extent, had a building with a plinth area of 3,300 sq. yds. The area in which the acquired plot is situate is perhaps an important one in the City. After getting expert valuation made of the buildings by the Central Public Works Department engineers, the Collector awarded a sum of Rs. 41,674/- for the buildings, Rs. 1,440/- for the standing trees and a sum of Rs. 30,630/for a belt of land 50 ft. deep at Rs. 15/- per square yard and Rs. 99,435/- for the remaining area of 13,258 sq. yds. The, total figure together with statutory solarium granted by the Collector was Rs. 1,99,155.85. This figure fell far short of the ambitious claim of the appellant and, when the case came before the City Civil Court on a reference, there was an enhancement of companypensation. Although the learned Additional Chief Judge held that the area was a little less than had been determined by the Collector, the market value of the building was increased nearly four fold on the basis of a multiple of 25 times the rent fetched. On the other items also some changes were made and, companysequentially, the total amount was raised to Rs. 3,31,092/-. The appellant arrived in the High Court asking for more and the State also appears to have appealed, but its appeal was dismissed and we are number therefore companycerned with it . Some measure of good fortune attended the appeal since the High Court altered the multiple from 25 to 27 in fixing the companypensation for the building. Otherwise, it substantially affirmed the findings of the trial Court, except that to the advantage of the appellant it restored the area acquired. The net result was the appellant obtained a total sum of Rs. 3,52,326.65 as companypensation. It is thus clear that from the Collector to the Civil Court and on, to the High Court. there has been an escalation in the amount of companypensation and, hopefully, the owner has reached this Court with his appeal, under a certificate which he secured under Art. 133 1 a before the recent amendment. We mention this because we are unable to discern any substantial question of law of general importance in companynsels submissions or the points outlined in the memorandum of appeal which merits the companysideration of this Court. Merely because the claim is large the judgment need number be long and, although the appellant tried to spread the, canvas wide, we regard the points deserving of companysideration-as falling within a narrow companypass. The burden of the song has been that Hyderabad has, for his- torical reasons, become a great city and that the land acquired has precious potential value which has number entered the judicial companyputation at the lesser levels. By way of aside one, may say that society economic development of a City- may enhance the value of space without any the littlest companytribution by its owner and it is, in one sense, unfair that society should pay to an individual a higher price number because he has-earned it but because of other developmental factors. Of companyrse, we are companycerned with the Land Acquisition Act as it is and this thought therefore need number be pursued . Counsel has also urged that the land and the building taken together had a personality of its own and therefore a special value, missed by the companyrts below, should be ascribed and the methodology of breaking up the totality into buildings and lands separately and sub- dividing the land into two portions on the principle of. belting was all wrong. It was also urged before us that the multiple of 27 for purposes of capitalisation, adopted by the High Court, was inadequate and that the owner was en- titled to capitalisation by multiplication 33-1/2 times. We find that the High Court has carefully companysidered ill available points, indeed stretching them in favour of the appellant, where that was warranted by the facts. The potential value of the land was quite within the keen of the Judge who heard the appeal and weighed with the Court in the assessment made. However, the High Court numbered that numberevidence whatever was placed on record in substantiation of any big potential value based on the unique features of the land. On the other hand, the totality of factors was duly companysidered by the High Court when it observed Having regard to the physical features of the property, its situation in an important locality and the price paid for a small extent of level ground acquired for the Telephone Exchange which is at a distance of about half a mile from the property acquired, we hold that the companypensation awarded by the Court below at Rs. 20/- per square yard for the 2042 square yards companystituting the 50 wide belt and at Rs. 10/- per square yard for the rest is fair and reasonable. We see numbererror in this evaluation. It is true that the Court has adopted a higher value for a strip 50 feet wide adjoining the road, based on the principle of belting. There is numberdoubt that when we deal with value of an extensive plot of land in a City the strip that adjoins an important road will have a higher value than what is in the rear. for obvious reasons of potential user or companymercial exploitation. While numbergeneral principle can be laid down in these matters, local circumstances guide the Courts. The ruling in Mohini Mohan v. Province of Bengal 1 and the principle, A. I. R. 1951 Cal. 246. with its limitations, set out in Kunjukrishna v. State 1 are sufficient to bring out our point. Indeed, the objection to divide the plot for purposes of differential valuation has number been taken at the proper level. On the companytrary, it has been adopted originally at the instance of the appellant himself, before the Collector and we are satisfied that such an approach has operated to his benefit and number detriment. The Court has taken numbere of the well- established distinction between the value of a tiny plot as being numbermeasure when a large area is acquired. The terrain, in this case, appears to have been uneven with difference in levels to the extent of 27 feet and boulders here and there making building operations expensive in the initial preparation of the site. We companyclude by saying that practically every relevant factor placed on record has received fair companysideration before the High Court. The next question is whether the multiple adopted for capitalisation has been prejudicially low, Exhibit A-7, the numberification produced by the appellant, itself shows that around the middle of 1957 the rate of interest allowed on Government Securities at the relevant time ranged between 31 and 4. The Curt accepted 3-3/4 as interest on giltedged securities instead of 4, thus giving Some advantage to the appellant and there is numberwarrant for the companytention that the interest on Government bonds was 3 at the relevant time. The appellant apparently has sought to misread Ex.A- We are satisfied with the valuation of the rented portion of the house adopted by the High Court is companyrect. Shri Pillai argued in vain for an augmentation of the value on the potential user of the plot for a Cinema House. This story has been factually disbelieved by the Courts below and we cannot reopen the matter. We must also remember that the Court below has been indulgent enough to adopt a multiple of 27 despite the fact that the buildings acquired are over 30 years old. Nor does it companye with grace from the appellant to companytend against the belting method since he himself had asked for its application before the Collector and the trial Court. We are thus satisfied that there is numberlaw, numberfact, which companyes to the rescue of the appellant and his appeal, virtually against companycurrent findings of fact, therefore deserves to be, and is hereby, dismissed with companyts. P.S.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 164 of 1974. Petition Under Article 32 of the Constitution of India. Hira Lal Jain, for the petitioner. Laila Seth and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by- BHAGWATI J.-This petition is directed against the validity of an order of detention dated 26th July, 1972 made by the District Magistrate, Midnapur under section 3 of the Maintenance of Internal Security Act, 1971. The petitioner has urged several grounds before us,- but it is number necessary to refer to them since there is one ground which is, in our opinion, sufficient to dispose of the petition in favour 2-L251 Sup.CI/75 of the petitioner. To appreciate this ground it is necessary to numberice a few facts. The order of detention was made by the District Magistrate on 26th July, 1972and on the same day he made a report to the State Government. The State Government approved the order of detention on 5th August, 1972 and a report was made by it to the Central Government on the same day. It appears that the petitioner was absconding and he companyld number, therefore, be arrested pursuant to the order of detention until 24th October, 1972. When the petitioner was arrested on 24th October, 1972, the order of detention was served on him along with the grounds of detention. The State Government thereafter placed the, case of the petitioner before the Advisory Board for its opinion and the Advisory Board submitted a report dated 23rd November, 1972 stating that in its opinion there was sufficient cause for the detention of the petitioner. Now, right up to this time numberrepresentation against the order of detention was received from the petitioner. It was only on 27th November, 1972 that the State Government received the representation of the petitioner against the order of detention. The State Government had number yet companyfirmed the order of detention when the representation was received but even so the State Government proceeded to companyfirm the order of detention without companysidering the representation. The order of companyfirmation was passed by the State Government on 29th November, 1972. The State Government thereafter companysidered the representation of the petitioner and rejected the same on 2nd December, 1972. The petitioner, on these facts, companytended that the order companyfirming the detention of the petitioner having been passed by the State Government without companysidering the representation of the petitioner, the detention of the petitioner was unlawful as being in violation of Art. 22 5 of the Constitution and section 7 of the Maintenance of Internal Security Act, 1971. This companytention has great force and it must result in the detention of the petitioner being set aside. it is number well settled by a decision of five judges of this Court in Jayanarayan Sukula v. State of West Bengal 1 that the peremptory language of Art. 22 5 of the Constitution and section 7 of the Act makes it obligatory that the State Government should companysider the representation of the detenu as soon as it is received by it. The requirement of Art. 22 5 of the Constitution that the authority making the order of detention should afford the detenu the earliest opportunity of making a repre- sentation against the order of detention would become illusory if there were numbercorresponding obligation on the State Government to companysider the representation of the detenu as early as possible. It is number enough for the State Government to forward the representation to the Advisory Board while seeking its opinion as to whether there is sufficient cause for the detention of the detenu. The State Government must itself companysider the representation of the detenu and companye to its own companyclusion whether it is necessary to detain the detenu. 1 1970 3 S.C.R 225 If the State Government takes the view, on companysidering the representation of the detenu, that it is number necessary to detain him, it would be wholly unnecessary for it to place the case of the detenu before the Advisory Board. The requirement of obtaining the opinion of the Advisory Board is an additional safeguard for the detenu over and above the safeguard afforded to him of making a representation against the order of detention. The opinion of the Advisory Board, on a companysideration of the representation, is numbersubstitute for the companysideration of the representation by the State Government. This Court, speaking through Ray, J., as he then was, in Jayanarayan Sukul v. State of West Bengal, supra enunciated the following four principles to be followed in regard to the representation of a detenu First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to companysider the representation of the detenu as early as possible. Secondly, the companysideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the companysideration of the representation of the detenu by the Advisory Board. Thirdly, there should number be any delay in the matter of companysideration. It is true that numberhard and fast rule can be laid down as to the measure of time taken by the appropriate authority for companysideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizens right raises a companyrelative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to the Advisory Board. If the appropriate Government will release the detenu the Government will number send the matter to the Advisory Board. If however the Government will number release the detenu the Government will send the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu. It is possible that sometimes the representation of the detenu may be received by the State Government after the case of the detenu has been referred to the Advisory Board. In such a case, so long as the representation is received within thirty days from the date of the detentions the State Government would be bound to forward it to the Advisory Board. But a question may arise as to what would be the duty of the State Government where the representation is received after the expiration of thirty days from the date of detention. It was companytended on behalf of the State that in such a case there would be numberobligation of the State Government to send the representation to the Advisory Board, because the State Government being bound to place the case of the detenu before the Advisory Board within thirty lays from the date of detention, if the representation is number received within the period of thirty days, there can be numberobligation of the State Government to forward it to the Advisory Board, We do number wish to express any opinion on this companytention as it does number arise for companysideration on the facts of the present case. Here the representation of the petitioner was received by the State Government after the Advisory Board had made its report and there companyld then be numberquestion of sending the representation to the Advisory Board. But the State Government had number yet companyfirmed the order of detention and it was, therefore, bound to companysider the representation of the petitioner. It is obvious that even where the Advisory Board reports that there is in its opinion sufficient cause for the detention of the detenu, the State Government is number bound to companyfirm the order of detention. The State Government has to apply its mind, keeping in view all the facts and circumstances relating to the case of the detenu including the opinion of the Advisory Board and companye to its own decision whether or number to companyfirm the order of detention. If, therefore, the State Government has before it at that time the representation of the detenu, the State Government must companysider it and take it into account for the purpose of deciding whether to companyfirm and companytinue the detention. This view finds support from the following observations of Palekar, J. speaking on behalf of the Court in B. Sunder Rao and Ors. v. State of Orissa 1 Secondly having regard to the second principle referred to above the Government cannot absolve itself from companysidering the representation even at a later stage. We have seen that after the Advisory Boards opinion is received the State Government is bound under section 11 to companysider whether it should companyfirm the detention order and companytinue the detention of the person companycerned. Since the Government had number companysidered the representation as soon as it was received number even at the time of the companyfirmation and companytinuation of the detention, the Government had failed in one of its obligatory duties With regard to the detention of the prisoners and, therefore, for that reason also the detention becomes illegal. Here in the present case the representation of the Petitioner was received by the State Government before it companyfirmed the order of detention, but it did number companysider the representation and thus failed 1 1972 3 S. C.R. 1. in one of its obligatory duties with regard to the detention of the petitioner. The subsequent companysideration and rejection of the representation of the petitioner companyld number cure the invalidity of the order of companyfirmation. The detention of the petitioner must, therefore, be held to be illegal and void. We accordingly set aside the order of detention and declare the detention of the petitioner to be illegal and void and direct that the petitioner be set at liberty forthwith.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 777 of 1973. Appeal by special leave from the judgment and order dated the 21st-March, 1972 of the Delhi High Court at New Delhi, in Civil Writ No. 1211 of 1971. K. Ramamurthi, Shyamla Pappu and J. Ramamurthi, for the appellant. S. Nariman, Additional Solicitor General of India, R. Sachthey and M. N. Shroff, for respondent No. 1. V. Gupte, L. R. Gupta and M. V. Goswami, for respondent number. 2 and 3. R. Gupta and M. V. Goswami, for respondent number 4. ARGUMENTS For the Appellant Under rule 6 3 requirement is length of service and number companytinuous length. So the entire length of service as District or Addl. District Sessions Judge is to be taken even if it is by parts. For companyrect interpretation of rule 6 3 the words used therein have to be understood in their ordinary companynotation as the rules themselves do number adopt any such definition in this behalf. The word Cadres used in plural has significance and indicates that there must be more cadres than one or at least two cadres. Rule 6 1 enumerates the officers who are eligible for initial recruitment. According to this rule, initial recruitment can be from District and Addl. District Judges functioning as such in Delhi and from those whose names were recommended by their respective states. In case it is taken that temporary and permanent District Judges are in one and the same cadre, then only one cadre would be formed. Two cadres companyld be formed only if there is a cadre of permanent District Judges separate from that of Sub Judges who are working temporarily as Addl. District Judges. The expression to which they belong attached to the word Cadres companynotes belonging to any of the aforesaid two cadres, by whatever name called in different states. The use of the word cadres in plural was deliberate because in the companyresponding seniority in Delhi Judicial Service Rules which were framed and numberified simultaneous the word Cadre has been used in singular. Rule 9 of Delhi Judicial Rules makes Sub Judges, Law Graduate, Magistrates working in Delhi, member of Civil Judicial Cadres of States whose names had been recommended by the State Government for appointment and members of Delhi, Himachal Pradesh, Andaman, and Nicobar Islands, Civil Service, who are law graduates, eligible for initial recruitment. They formed one category of equivalent cadre and thereby necessitating the use of the word cadre in singular in seniority rule 11. On that interpretation, the Appellant and Respondent No. 2 were in the cadre of permanent District Judges and hence their seniority is to be with reference to the dates on which they became permanent District Judges. As the Appellant had become permanent earlier, he must rank senior to respondent No. 2. As respondent Nos. 3 4 were still in lower cadre of Subordinate Judges known as Punjab Civil Service Judicial Branch they must rank junior to the appellant. It was companytended on behalf of the respondents that having regard to the fact the Delhi Higher Judicial Service was being companystituted mainly for those who were functioning as Add. District Judges in Delhi who, were 11 in number, and out of whom only two or three were permanent District Judges, the framers of the rules must be intending to fix the seniority having regard to the actual length of service rendered as District or Addl. District Judges only, irrespective of whether they were permanent or temporary and that therefore. it should be held that the seniority shall be in accordance with the actual length of service as Dis- trict Additional District Judges functioning as such. It was also urged that the use of the word cadres in plural referred to number of cadres in different states of India. In the present companytext the relevant, shade of ordinary dictionary meaning of the word cadre is permanent establishment of unit forming nucleus for expansion at need and the meaning of the word Belong is forming part of or a member of service. So the import of the rule is that it has reference to the service of the candidates in their substantive appointment against permanent posts. It was held in 1958 S.C.R. 828 at 842 and 843 that substantive appointments against permanent posts give rise to rights to a Government servant, which means that if a person is temporary he can be reverted at any time, and as such he does number belong to the cadre. None can belong to two cadres of permanent District Judges and Sub Judges at the same time and therefore, a temporary Addl. District Judge is actually in the cadre of Sub Judges and cannot therefore belong at the same time to the cadres of District Judges, unless he is companyfirmed in cadre of District Judges. Applying the aforesaid principles for interpretation of the rule, only permanent District and Sessions Judges were in higher cadre, and the length of service inter-se means their length as permanent District Judges. Therefore, Shri K. S. Sidhu, who had less length of service as permanent District Judge must rank junior to the appellant. Temporary District Judges who are actually substantive subordinate judges, as was the case with respondents number. 3 and 4 must rank junior to the appellant and respondent number 2. The aforesaid interpretation is harmonious with the provisions of Art. 14 and 16 of the Constitution of India and is reasonable, just and equitable. Treating equally the unequals i.e. permanent Subordinate Judges working as temporary Addl. District Sessions Judges on the one hand and permanent District Sessions Judges on the other in the matter of seniority of permanent District Judges will offend the provisions of Article 14 and 16 of the Constitution of India. Therefore. the rules should be so companystrued as to render them companystitutionally valid and this can be done only if the expression, length of service in the cadres to which they belong is understood as length of service in their respective substantive appointments. Further it will also render the action of the High Court and Administrator respondent number 1 companysistent in as much as Shri R. N. Aggarwal had been placed senior to Shri Fauja Singh Gill, only because the former had been companyfirmed earlier, though the latter had been appointed as Addl. District Sessions Judge earlier. The general principles enunciated by Government of India Ministry of Home Affairs vide memo dated 22-12-1959 clearly companytemplate that for the purposes of seniority what is relevant is the date of companyfirmation and number the date of ap- pointment in officiating or temporary capacity. Departure from this general rule in a matter of companystruction cannot be inferred, unless it is stated in Delhi Higher Judicial Service Rules unambiguously and categorically. No such intention to depart from the general rules can be spelt out on a plain reading of the provisions companytained in the aforesaid rules. The length of service referred to in rule 6 3 in the cadres to which they belong when examined in the light of Punjab and Haryana Superior Judicial Service Rules in force at the time of initial companystitution of service i.e. 17th May 1971 clearly shows that the length of service is to be companysidered only with reference to the appointment to permanent posts which alone were included in the said service. According to rule 3 2 cadre post means a permanent post in the service, That means only permanent posts are included in the cadre. According to rule 3 4 ex-cadre post means temporary post and the same rank as the cadre post. According to rule 15 ex-cadre posts for purposes of fixation of pay etc. only were to be governed by the provisions of those rules. That means that temporary posts were outside the cadre of Punjab Superior Judicial Service. This is also apparent from the definition of the word appointed to service, and Member of service given in sub rule 1 and 6 of Rule 3 respectively as meaning persons holding cadre posts. Therefore, only the appellant and respondent number 2 belonged to Superior Judicial Service of Haryana and Punjab respectively and their seniority is to be in accordance with the length of service as permanent District Judges. Respondents number. 3 and 4 did number belong to Punjab Superior Judicial Service out belonged to Punjab Civil Service Judicial Branch on account of which they must rank junior. for respondent No. 1. In, companystruing Rule 6 3 of the Delhi Higher Judicial Service Rules,1970 it is important to bear in mind that these Rules were framed primarily to enable those functioning as District Judges and Addl. District Judges in theUnion Territory of Delhi who were on deputation from other States to opt foror join the Delhi Higher judicial Service. The yardstick for determining seniority was length of service rendered by these persons as District Judges and Addl. District Judges. The key word in Rule 6 3 is number cadres but service the length of service rendered is obviously the length of service rendered by such persons who were functioning as District Judges and Addl District Judges in the Union Territory of Delhi. it was because they were on deputation from other States that the words cadres to which they belong find a Place in Rule 6 3 a of the Rules. The expression cadres to which they belong is to be read the companytext of Rule 6 they mean the State-wise cadres See Rule 6 4 . that Cadres I does number mean posts is clear from Rule 6 4 which uses the two expressions separately. The decision cited by companynsel for the petitioners on the meaning of the expression cadre 1958 SCR 828 at 840 is number relevant. The ordinary general meaning of the word cadre is framework or scheme. The framework in the present case was the Judicial Service to which each of these officers belonged at the time of the initial companystitution of the Delhi Higher Judicial Service. the companytention urged on behalf of the petitioner must result in reading the word cadres in Rule 6 3 as equivalent to Higher Judicial Service. But this companyld never be the meaning of the expression cadres especially in view of the admitted posi- tion that at the date of the promulgation of the Rules 27th August 1970 and at the date of the initial companystitution of the Service 15th May 1971 there were only two persons Mr. Gill and mr. Joshi out of the eleven District Judges and Addl. District judges functioning as such in the Union Territory of Delhi who belonged to the Higher judicial service that is who were companyfirmed on permanent posts in that service. It would lead to the incongruous result that the seniority of the other candidates who were admittedly absorbed into the Service was number at all fixed by Rule 6 3 . Besides the proviso to Rule 6 3 furnished an additional reason why the companytention of the petitioner cannot be accepted. At the time of the framing of the Rules the authorities obviously had before them the Punjab Superior Judicial Service Rules 1963 which inter alia laid down a rule as to seniority. Rule 12 of the Punjab Superior Judicial Service Rules 1963 which at the date of the promulgation of the Rules and at the date of the initial companystitution of the Service was applicable both in Punjab and Haryana, the seniority of substantive members of the Service was to be determined with reference to the res- pective dates of their companyfirmation. The language of this rule was number adopted by those framing the Delhi Higher Judicial Service Rules. Besides at the date of the promulgation of the Rules and at the date of the initial Constitution of the Service. it was known that there were eleven persons all from Punjab and Haryana functioning as District Judges and Addl. District Judges in the Union Territory of Delhi and it was also known that out of the eleven posts of District judges and Addl. District judges only five were permanent and the remaining were temporary. It is submitted that such interpretation should be given to Rule 6 3 which would effectively make provision for a rule of seniority companyering all these eleven person who were in fact appointed to the Delhi Higher Judicial Service under the numberification of 17th May 1971. Such an interpretation can only be given if the companytentionof the Respondents is accepted. In companystruing statutory provisions, absurd and inconvenient results must as far as possible be avoided. See Craise on Statutes p.87 . For Respondents Nos. 2-4 Before 1st November, 1966 when the re-organization of Punjab under the Punjab Re-organization Act, 1966 took place, the Petitioner admittedly ranked junior to the Respondent Nos. 2 to 4. Even after 1-11-1966 the Petitioner ranked junior to the Respondents Nos. 2 to 4 while functioning either as 1st Addl. Senior Sub Judge or Addl. District and Sessions Judge in Delhi on deputation from the State of Haryana till 17-5-71 when they were substantively appointed to the Delhi Higher Judicial Service., The Petitioner was promoted and appointed as Addl. District Sessions Judge against a temporary post created by me Government of India on 25-11-67 vide Annexure R-4/5 at page 195 or the taper book vol. I Part. I white the Respondent number 2 was promoted and appointed as an officiating Addl. District ,Sessions Judge against a temporary post in Punjab on 15-1-66 and transferred to Delhi on deputation on 1-5-67. the Respondent No. 3 was promoted and appointed as art Addl. District Sessions judge on 24- 4-67 against a permanent post vide Annexure 3 at page 147 of the Paper Book. The Respondent No. 4 was appointed on 12-10-66 as Senior Sub-Judge, Delhi, and was promoted and appointed as temporary Addl. District Sessions Judge against a permanent post with effect from 11-8-1967 vide Annexure R-4/3 at page 191 of the Paper Book. A select list was prepared by the High Court of Delhi in November 1966 showing the names of the Judicial Officers proposed to be recruited to me Delhi Judicial services to be formed giving their order of seniority as admitted by the Petitioner at page 217 of the Paper Book Vol. 11. In the said select list the Petitioner was shown junior to Respondent Nos. 2-4. Once mentioned in the select list were promoted as Addl. District Sessions Judges at Delhi in accordance with the said list. At the time of giving his companysent for his absorption in the Delhi Higher Judicial Service on 13-5-71 the Petitioner knew very well that if absorbed, he would rank junior to Respondent Nos. 2-4. That is why the petitioner vide his letter dated 11-5-1971 addressed to the Registrar Delhi High Court at Page 397 of the Paper Book first opted out stating trial keeping in view my service interest I do number wish to be absorbed in the initial recruitment to the Delhi Higher Judicial Service and latter vide latter dated 13-5-1971 changed his mind number because of his service interest but because of the advantages of Delhi of what he described as settled tire and companytinued good education of his daughter. According to Rule 6 1 a of the Delhi Higher Judicial Service Rules hereinafter referred to as Delhi Rules , District Judge Addl. District Judges functioning as such at Delhi formed very important class of officers from whom selection for initial recruitment to the Delhi Higher Judicial Service was to be made. This was so in view of Rule 6 4 which provided for inclusion of minimum number of officers belonging to Punjab and Haryana States in the initial recruitment. According to Rule 6 3 of the Delhi Rules the seniority of the candidates appointed at the initial recruitment was to be determined in accordance with length of service rendered by them in the cadres to which they belonged at the time of initial recruitment to the service. It is manifest that important words are functioning and service. An officer is said to function regardless of the nature of post held by him or his status being substantive, officiating or temporary and service means service whether in substantive capacity or as temporary. After all for the purpose of initial recruitment when all officers were to be taken substantively what was required was good officers with experience i.e. length of service. The basis for fixing seniority according to date of companyfirmation was designedly number accepted although it was very much there in Rule 12 of the Punjab Superior Judicial Service Rules, 1963 which should be presumed to be to the knowledge of the Delhi High Court and the Administrator as the officers functioning as District Judge Addl. District Judges were all from Punjab Haryana. It was number a case of omission but a case of significant companysciousness as companyfirmation was given recognition in the proviso to Rule 6 3 which says that seniority as already fixed in the cadres would number be altered. Under Rule 12 of the Punjab Superior Judicial Service Rules 1963 a companyfirmed District Judge ranked senior to the unconfirmed one. The petitioner wants to add certain words in Rule 6 3 which do number exist viz he wants to read the Rule to the effect length of service rendered by them substantively as companyfirmed District Addl. District Sessions Judges in the cadre of Higher Judicial Service to which they belong permanently. No cannon of interpretation would permit the petitioner to add words in the Rules which the Rule making authority deliberately avoided to incorporate. The plain meaning of the words as they occur in this Rule do number permit any other companystruction except that the length of service whether substantive or temporary rendered by the candidates is to be recognised and companypared for the fixation of seniority, equated with cadre post or the service. The cadre, cadre post and service are different words having different companynotations, meaning and import and cannot be equated with each other. The meaning of cadre given in Websters Dictionary is frame or framework. The word cadre has been defined in Fundamental Rules FR vide FR 9 4 which means the strength of service or a part of service sanctioned as a separate unit. Strength can be permanent as well as temporary. Fundamental Rules are applicable to the services in Union Territory of Delhi. Framers of the Delhi Rules obviously gave the same meaning to the word cadre used in Rule 6 3 as given in Fundamental Rules. As the Fundamental Rules were applicable to Union Territory of Delhi, the framers of the Rules advisedly did number think it necessary to incorporate the definition of cadre in the Delhi Rules. Cadre, as already stated, can companysist,of permanent or both permanent and temporary or even temporary post only. 8 Temporary posts are additions to and a part of the cadre. Even if the Respondents were appointed as temporary Addl. District Sessions Judges against temporary posts, they were still holding the posts borne on the cadre of District/ Addl. District Sessions Judges of Higher Judicial Service. Kindly see 1969 Service Law Reporter page 622 Full Bench of the Punjab and Haryana High Court and A.I.R. 1971 Punjab Haryana High Court page 113 and 1973 Supreme Court Cases Vol. III page 1 where this Honble Court has held that the cadre companysists of permanent and temporary posts . The words belonging to do number necessary mean that a person must belong to permanently. The companystruction put by the petitioner that these words have reference only to the permanent nature of association is fallacious. The meaning of words being to as given in the. Websters Dictionary are to the following effect a pertain b to be apart of, to be related to or companynected with c to be associated with. In order to give a full working to rule 6 3 it is necessary that cadre should be interpreted to companytain both permanent and temporary posts and also the judicial officers functioning as District Add. District Judges on officiating basis as belonging to it. If any other interpretation to rule 6 3 is given as companytended by the petitioner, serious difficulties would arise and the rule will become wholly unworkable. That the District Judge Addl. District Judges were made eligible and companyld be recruited from all States in India and each State has a variety of companyposition and character of Higher Judicial Service. The Higher Judicial Service in various states has two or more cadres such as Senior Branch, Junior Branch and Sub-Junior Branch etc. The Rule making authority was ob- viously keeping in mind all the hetrogenous cadre structure when it drafted Rule 6 3 . It used the term cadres as companypendious expression to take in any of the diverse cadres of different states. The only workable rule for determining the seniority as envisaged by them was found as laid down in rule 6 3 by which only the length of service is to form the basis of the, seniority i.e. the length of judicial experience as Add. District Judge District Judges without reference to the companyfirmation in a permanent capacity, in the Higher Judicial Service. To avoid disastrous results and to make the harmonious companystruction of rule 6 a . Rule 6 3 , Rule 6 4 and Rule 29 it is necessary that seniority is to be fixed on the basis of length of service without any reference to the capacity, permanent, substantive or temporary in which the judicial officer has worked. The companytention of the Petitioner that use of word cadres in Delhi Rules and the use of word cadre in the Delhi Judicial Service Rules is without any substance. In Rule 6 4 the word cadre is used in singular when it should have been in plural. The use of word Cadre in singular in Delhi Judicial Service Rules appears to have been used as it is well known that the singular includes the plural and visaversa. It may be added here in this companytext that the sub- ordinate Judicial Service in various states which is the source of initial recruitment to the Delhi Judicial Service companysists in quite a few states of more than one cadre. This would also companyfirm the interpretation submitted above that to use of plural or singular in relation to the word Cadre in these Rules is of numbersignificance. The companytention raised by the petitioner that the general principle governing seniority is the date of companyfirmation and the reliance placed on Government of India, Ministry of Home Affairs memo dated 22-12-1959 are equally misplaced. The rule of seniority which is relevant is the one companytained in Rule 6 3 of the Delhi Rules. No other rule or instruction or decision made in different companytext has any bearing. Furthermore the general rule is that seniority goes from the date of appointment regardless to the nature of appointment being temporary or permanent. This rule has been followed in all cases arising under different States Re-organisation Acts. The Judgment of the Court was delivered by RAY, C. J. This is an appeal by special leave from the judgment dated 21 August, 1972 of the Delhi High Court. The appellant challenged the numberification dated- 15 May, 1971 determining the respondents K. S. Sidhu, O. N. Vohra and J. D. Jain to be senior to the appellant in the Delhi Higher Judicial Service. The appellant and the respondents were recruited to the Delhi Higher Judicial Service in accordance with the provisions of the Delhi Higher Judicial Service Rules hereinafter referred to as the Delhi Rules. The respondent Sidhu was appointed as a Subordinate Judge on 27 October, 1948 in the former Pepsu State. The respondents Vohra and Jain and the appellant were selected and appointed as Subordinate Judges in the Provincial Civil Service Judicial Branch in the Punjab State on the result of the companypetitive examination. The respondents Vohra and Jain were appointed as Subordinate Judges on 4 August, 1950 and the appellant was appointed on 7 August, 1950. The respondent Sidhu was appointed as an officiating or temporary Additional District and Sessions Judge on 15 January, 1966 in the State of Punjab. The respondent Jain was appointed as Senior Subordinate Judge in Delhi on 12 October, 1966. The appellant was also made first the Additional Senior Subordinate Judge on 12 October, 1966. The Delhi High Court was established on 31 October, 1966. On 1 November, 1966 the State of Punjab was reorganised. Two different States of Punjab and Haryana were formed. The Central Government in exercise of its powers under the Punjab Reorganisation Act, 1966 allocated the respondents Sidhu, Vohra and Jain to Punjab and the appellant to the State of Haryana with effect from 1 November, 1966. On or about 2/3 November, 1966 a select list of officers to be recruited to the Delhi Judicial Service showing the order of seniority was prepared. The respondent Vohra was appointed on 17 March, 1967 as Assistant Sessions Judge, Delhi. On 24 April, 1967 the respondent Vohra was promoted and appointed as temporary Additional District and Sessions Judge, Delhi against a permanent post. The respondent Sidhu was transferred to Delhi and appointed on 1 May, 1967 as Additional District and Sessions Judge on deputation. He bad already been appointed as officiating Additional District and Sessions Judge on 15 January, 1966 in Punjab. The respondent Jain was given promotion on 23 June, 1967 as Additional District and Sessions Judge in his parent State of Punjab in the Punjab Superior Judicial Service while he was still on deputation. On 11 August, 1967 the respondent Jain was promoted and appointed as temporary Additional District and Sessions Judge, Delhi against one of the temporary posts. On 28 July, 1967 the appellant was given promotion as Additional District Sessions Judge in his parent State of Haryana while he was still working on deputation as Senior Subordinate Judge, Delhi. On 27 August, 1970 the Delhi Higher Judicial Service Rules, 1970 were promulgated. On 2 October, 1970 the appellant was companyfirmed as District Sessions Judge in his parent State of Haryana whilst he was still functioning as Additional District Sessions Judge on deputation. On 22 February 1971 the respondent Sidhu was companyfirmed as District Sessions Judge in his parent State of Punjab whilst he was still functioning in Delhi as Additional District and Sessions Judge on deputation. On 15 May, 1971 the Administrator of Delhi issued a Gazette Notification appointing substantively the respondents and the appellant to the Delhi Higher Judicial Service on its initial companystitution. The respondents Sidhu, Vohra and Jain and the appellant were shown one after another in the order of seniority. On 17 May, 1971 the appellant and the respondents assumed charge as Additional District and Sessions Judges, Delhi as members of the Delhi Higher Judicial Service. On 1 September, 1971 the appellant made a representation to the High Court of Delhi, against the fixation of his seniority and claimed seniority over the respondents Sidhu, Vohra and Jain. On 23 October, 1971 the High Court rejected the representation of the appellant. The seniority of the respondents and the appellant depends on the companystruction of Rule 6 3 of the Delhi Rules. Rule 6 3 states that the seniority of the candidates appointed at the initial companystitution shall be in accordance with the length of service rendered by them in cadre to which they belong at the time of their initial recruitment to the service provided that the inter se seniority as already fixed in such cadres shall number be altered. Rule 6 1 of the Delhi Rules states that for initial recruitment to the service which means the Delhi Higher Judicial Service the Administrator shall, in companysultation with the High Court, appoint persons to the service substantively from amongst the a District Judges and Additional District Judges functioning as such in the Union Territory of Delhi on deputation from other State b District Judges and Additional District Judges whose names may be reconunended by their respective States for appointment. The appellants companytentions are twofold. First, the expression the length of service rendered by them in the cadres to which they belong means that the length of service has to be companysidered only with reference to the substantive appointment to permanent posts which alone were included in the service on 17 May, 1971, which is the relevant date for the purpose of determining seniority. The appellant was companyfirmed on 2 October, 1970, as District and Sessions Judge in his parent State of Haryana. The respondent Sidhu was companyfirmed on 22 February, 1971 as District and Sessions Judge in his parent State of Punjab. Therefore the appellant is senior to the respondent Sidhu because the appellant is companyfirmed earlier in point of time than the respondent Sidhu. Both of them belong to the cadres of District Judges. The respondents Vohra and Jain are number yet companyfirmed as District Judges. They belong to the cadres of Additional District and Sessions Judges. Therefore, they cannot be senior to the appellant. Second, the length of service rendered by the candidates in the cadres to which they belong at the time of their initial recruitment to the service can have reference only to the cadre of Additional District and Sessions Judges and the cadre of District and Sessions Judges from which recruitment was made in accordance with Rule 6 1 . Cadre is a permanent establishment. The word belong in the expression cadres to which they belong means that a person is a member of the cadre in a substantive appointment against a permanent post. The use of the expression cadres in companytrast to the expression cadre which is used in Delhi Judicial Service Rules shows that recruitment is from two distinct cadres of Additional District and Sessions Judges and District and Sessions Judges. For purpose of seniority what is relevant is the date of companyfirmation and number the date of appointment in an officiating or temporary capacity. In order to examine the companytentions of the appellant it is necessary to appreciate as to why and for whose benefit these Delhi Rules were framed. These Rules were framed for those who were functioning as Additional District and Sessions Judges at Delhi. There were 11 such persons. In Rule 6 3 the companycentration is on the length of service rendered by the candidates appointed at the initial companystitution. At the initial companystitution of the Delhi Higher Judicial Service it appears that the respondents and the appellant were all rendering service as Additional District and Sessions Judge. The fallacy of the appellant is that the appellant wants to equate cadre with substantive appointment to a permanent post. This companystruction totally overlooks the fact that the Delhi Higher Judicial Service was companystituted with persons who rendered service as Additional District and Sessions Judges in temporary posts or in temporary capacity against permanent posts. There were altogether five permanent and six temporary posts of District and Sessions Judges and Additional District and Sessions Judges. The respondents and the appellant were all recruited as temporary Additional District and Sessions Judges. The important yardstick in the determination of seniority is the length of service rendered by them in the cadre. Cadre post in the Fundamental Rules means a post as specified in. the Schedule and includes a temporary post. The Delhi Higher Judicial Service Rules does number define cadre but defines cadre post to include a temporary post. The words in the cadre to which they belong in Rule 6 3 companyer the cases of permanent as well as temporary Additional District and Ses- sions Judges at the time of initial recruitment. in Fundamental Rule 9 22 permanent post means a post carrying a definite rate of pay sanctioned without limit of time. Fundamental Rule 9 30 defines temporary post as a post carrying a definite rate of pay sanctioned for a limited time. Temporary posts may be posts created to perform the ordinary work for which permanent posts already exist. Temporary posts may also be temporary addition to the cadre of a service. Cadre in Fundamental Rule 9 4 means the strength of a service or part of a service sanctioned as a separate unit. In the case of a temporary addition to the cadre of a service the power of the authorities to create such a post will depend on the provisions of the Rules. Isolated posts may be created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform. Such temporary posts are treated as unclassified and isolated ex-cadre posts. Here again the power to create the post depends on the provisions companytained in the Rules. Where however temporary posts are companysidered as temporary additions to the cadre of a service the incumbents of those posts will draw their time scale pay. The Punjab Superior Judicial Service Rules, 1963 defines cadre post mean a permanent post in the service and ex- cadre post means a post of the same rank as a cadre post. The, aforesaid Punjab Rules show that cadre means incumbents of both permanent and temporary posts. Rule 12 of those Punjab Rules states that to seniority of the substantive members of the service, whether permanent or temporary, shall be determined with reference to the respective dates of their companyfirmation. These Punjab Rules are referred to only for the purpose of showing that where companyfirmation is the decisive factor to determine the seniority the Rule states so. The appellant was appointed a temporary Additional District and Sessions Judge on 25 November, 1967 against one of the temporary posts created by the Government of India. The respondents Sidhu, Vohra and Jain had all been appointed temporary Additional Judges on 1st May 1967 24 April, 1967 and 11 August, 1967 respectively earlier than the appointment of the appellant. apparent that the respondents Sidhu, Vohra and Jain were rendering longer service as Additional District and Sessions Judge than the appellant in the cadre of District and Additional District and Sessions Judge to which they belonged. The appellant was companyfirmed on 2 October, 1970 as District Judge in the Haryana Judicial Service and the respondent Sidhu was companyfined as District Judge on 22 February, 1971 in the Punjab Judicial. The companyfirmation of the appellant and the respondent Sidhu was against permanent posts in Haryana and Punjab Judicial Services because of the accident of permanent posts failing vacant at that time in their home States from which they came on deputation. To determine seniority according to companyfirmation in permanent posts is to wipe out the length of service rendered by the candidates appointed at the initial companystitution of the Delhi Higher Judicial Service. The respondents are in fact senior to the appellant in regard to appointment as Additional District and Sessions Judges. The criterion for the determination of seniority under the Delhi Rules is the length of service rendered by the candidates during the period when they were rendering service either as District Judge or as Additional District and Sessions Judge in permanent or temporary capacities. Rule 6 4 of the Delhi Rules show that the respondents and the appellant were absorbed in the Delhi Higher Judicial Service from the States of Punjab and Haryana. The length of service rendered by them as Additional District and Sessions Judges is the criterion to fix the seniority. The word cadre includes both permanent and temporary posts. To companyfine cadre to permanent posts tinder the Delhi Rules would be to render the Rules totally unworkable and impracticable because at the time of initial recruitment the persons came on deputation from States mostly in their temporary capacity as Additional District and Sessions Judges. For these reasons we are of opinion that the respondents Sidhu, Vohra and Jain had been rightly treated as senior to the appellant on the ground that the length of service rendered by the respondents in the cadre of District and Additional District and Sessions Judges to which they belonged at the time of initial recruitment is longer than that of the appellant. The respondents and the appellants were all functioning as Additional District Judges on deputation at Delhi at the time of the initial companystitution of the Delhi Higher Judicial Service. The respondents were appointed prior to the appellant as Additional District and Sessions Judge. The respondents rendered longer service as Additional District and Sessions Judge vis-a-vis the appellant. The appeal is, therefore, dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 689 of 1973. Appeal by special leave from the judgment and Order dated the October 19, 1972 of the Allahabad, High Court in First Appeal No. 360 of 1963. Sri Narain Andley, O. C. Mathur and D. N. Misra, for the appellant. Sen, P. K. Chaterjee and G. S. Chatterjee, for the respondent The Judgment of the Court was delivered by KHANNA, J.-This is an appeal by special leave against the judgment of the Allahabad High Court affirming on appeal the decision of the trial companyrt whereby a decree for possession of the property in dispute had been awarded in favour of Capt. J. N. Mitra deceased plaintiff, number represented by Rama Krishna Mission and other respondents, against Smt. Dayali Devi and Smt. Deva Devi decease, defendants, number represented by Sant Narain Mathur and other appellants. Although the question involved in appeal lies within a narrow companypass, the case has a long history going back to the end of the last century, and it would, therefore, be necessary to set out the detailed facts. Dr. Chandan Singh who hailed from Pilibhit settled in Dehra Dun towards the end of the last century. Dr. Chandan Singh had two sons Tegh Singh and Shamsher Singh and two daughters Deva Devi and Lachmi Devi. Dayali Devi was the wife of Shamsher Singh. On March 26, 1897 Dr. Chandan Singh executed a will. After making provision for the maintenance of his two wives and the marriage expenses of daughter- Deva Devi, Dr. Chandan Singh bequeathed his estate in equal shares to his sons Tegh Singh and ShamSher Singh for their life time. The relevant part of clause 6-B of the will read as under By way of policy I deem it necessary to make it clear that by this writing I want to give a moiety share, at the most, to each of my both the sons, in the income of the estate left by me for their life-time and after each of them, his son or legal heir shall have absolute proprietary right to the extent of one,half subject to the age aforementioned. In case one of the brothers dies issue less and the other brother may be alive at that time, i.e., after the death of the former , then the deceased brothers wife shall be entitled to receive maintenance allowance only and the property shall vest in the surviving brother. Should both of them die issue less, their legal heirs shall become entitled to all as mentioned above, at the most, to the extent of one-half share. Chandan Singh died on April 1, 1897. Tegh Singh, elder son of Chandan Singh, died issue less in 1908. On July 14, 1944 Shamsher Singh, younger son of Chandan Singh, executed a will. Shamsher Singh be fore that had been married to Dayali Devi but he had numberissue from her. The will related to the entire estate of Shamsher Singh, including the property in dispute, and was executed by Shamsher Singh on the assumption that he was the full owner of that property. By this will Shamsher Singh appointed Capt. J. N. Mitra as the executor of his estate. Shamsher Singh gave a right of residence and maintenance to his wife Dayali Devi. He also made provision for the residence and maintenance of his sister Deva Devi. The entire estate was bequeathed to Rama Krishna Mission and the bequest was to take effect after the death of Dayali Devi. Shamsher Singh died issueless on January 20, 1946 leaving- behind his widow Dayali Devi and sister Deva Devi. On December 10, 1946 Capt. J. N. Mitra applied for grant of probate of the will of Shamsher Singh in the Allahabad High Court. Dayali Devi companytested the aforesaid petition and also set up arrival will. The High Court did number accept the plea of Dayali Devi regarding the rival will. Probate was granted to Capt. Mitra on March 18, 1949. Dayali Devi filed Letters Patent appeal against the order of the single Judge granting probate to Capt. Mitra but her appeal was dismissed on March 14, 1952. On July 15, 1952 Dayali Devi filed civil suit No. 54 of 1952 against Capt. Mitra, Rama Krishna Mission and Deva Devi in the companyrt of the Civil Judge Dehra Dun for a declaration that she was the owner of all movable and immovable properties of her husband Shamsher Singh. According to the claim of Dayali Devi, as the legal heir of Shamsher Singh she became entitled to the aforesaid properties under the will of Chandan Singh. Dayali Devis suit was dismissed by the trial companyrt on November 7, 1958. It was held that Dayali Devi did number acquire any interest under the will of Chandan Singh. The trial companyrt came to this companyclusion on the basis of the Privy Council decision in Tagore v. Tagore 1 that a bequest in favour of unborn persons was void. It was observed that Chandan Singh did number intend to give any property to any legal heir of his sons except to their sons. The companyrt held that part of the property bequeathed by Shamsher Singh was his self-acquired property It was also held that Shamsher Singh was entitled to one half share for his life in the property bequeathed to him by Chandan Singh. Regarding the other half share which was bequeathed for his life to Tegh Singh, the companyrt held that after Tegh Singhs death Shamsher Singh became absolute owner of that. As Dayali Devi was held number entitled to the property in question under the will of Chandan Singh, her suit was dismissed. Dayali Devi filed appeal No. 605 of 1958 against the judgment and decree of the trial companyrt dismissing her suit. The Allahabad High Court dismissed the appeal as per judgment dated November 21, 1961. It was held by the High Court that Chandan Singh never intended to give by his will to his sons widows anything more than a right of mainten- ance. Dayali Devi as such was held to have numberright in Chandan Singhs property under his will. Shamsher Singh, it was further held, was the heir of Tegh Singh who had died issue-less. There was, in the opinion of the High Court, numberdifficulty in the way of Shamsher Singh executing a will with respect to half of the estate of Chandan Singh which had been earmarked for the maintenance of Tegh Singh. As regards the other half share intended for Shamsher Singh, although the High Court observed that, his sister Deva Devi seemed to be his legal heir, it did I.A. Supp Vol. 1872-73 p. 43. number go into this aspect of the matter as Deva Devi had made numberclaim. Another finding of the High Court was that Dayali Devi was born in 1904 and as such was number in existence at the time of the death of Chandan Singh in 1897. Following the case of Tagore v. Tagore supra , the High Court held that Dayali Devi being number in existence, at the time of Chandan Singhs death companyld number acquire any interest in his estate under his will. Dayali Devi was companysequently held number entitled to challenge Shamsher Singhs will. In the meantime during the pendency of Dayali Devis suit No. 54 of 1952 in the trial companyrt, Capt. Mitra filed on February 1,1958 suit No. 31 of 1958 giving rise to the present appeal against Dayali Devi. This was a suit for possession of the property, details of which are as, under Kothi No. 7 Kutcheri Road, Dehra Dun known as Tegh Villa. One shop being part of No. 4, New Road, Dehra Dun in which a Chemist and Druggists business styled Dr. Chandan Singh Sons used to be run. Haveli being part of No. 4, New Road, Dehra Dun in the occupation of Shri B. K. Mukherji Vakil tenant. Haveli being part of No. 4, New Road, Dehra Dun. Kothi known as Vishranti situated at Kishanpura, Rajpur Road, Dehra Dun. Capt. Mitra claimed possession of the above mentioned properties as the, executor appointed under the will of Shamsher Singh. Deva Devi was impleaded as a defendant in the above mentioned suit on her application as she claimed the property in dispute in her own, right. The trial companyrt awarded a decree for possession of the property in. dispute in favour of the plaintiff against the defendants on March 27, 1963. It was held that Shamsher Singh had executed will dated July 14, 1944 while being of sound disposing mind. Vishranti kothi was held to be self-acquired property of Shamsher Singh. As regards Kothi No. 7, Kutcheri Road, the companyrt held that the superstructure thereof was the self-acquired property of Shamsher Singh while the sight of that Kothi was his ancestral property. The shopand the two Havelis on New Road were held to be ancestral properties of Shamsher Singh. Dayali Devi, it was held, had numberinterest in the estate of Chandan Singh as she was number born when Chandan Singh had died. As regards Deva Devi, the trial companyrt observed that Chandan Singh did number intend to create any interest in favour of his daughters. Shamsher Singh was held to have acquired full ownership rights in the assets left by Chandan Singh. In the result a decree for possession of the property in dispute was awarded in favour of Capt. Mitra against Dayali Devi and Deva Devi. Dayali Devi filed appeal No. 360 of 1963 against the decree for possession of the property in dispute. Deva Devi filed application to- appeal against that decree in forma pauperis. Dayali Devis application in this respect was rejected by the High Court on September 18, 1963. Dayali Devi thereupon filed cross- objections, but her cross-objections too were dismissed by the High Court on April 24, 1964 on the ground that they were barred by limitation as well as on the ground that they were number maintainable. Deva Devi thereafter filed application for review of the judgment of the trial companyrt, but this application was dismissed by the trial companyrt on August 18, 1965. Deva Devi died on November 29, 1966. The High Court as per order dated December 20, 1967 directed that Deva Devis name be struck off. As Dayali Devi made a claim that Deva Devi had executed a will in her favour, the High Court observed that the question whether Dayali Devi was legate of Deva Devi would be determined, if necessary, at the time of the hearing or the appeal. Dayali Devi too died during the pendency of her appeal in the High Court on November 10, 1968. Four persons, including the three appellants, and Durga Prasad respondent No. 4 applied to the High Court to be substituted in appeal as legal repre- sentatives of Dayali Devi on the ground that Dayali Devi had two days before her death executed a will in their favour. The High Court as per order dated August 4, 1972 allowed the said application for substitution on the ground that even an intermedellers the applicants would be legal representatives of Dayali Devi. On October 19, 1972 the High Court dismissed appeal No. 360 of 1963 which had been filed by Dayali Devi. It was observed that the finding of the trial companyrt that Kothi Vishranti and superstructure of Kothi No. 7, Kutcheri Road were self-acquired properties of Shamsher Singh had number been challenged in appeal. It was further observed that the finding of the trial companyrt that Shamsher Singh had become full owner of one half share of Tegh Singh in the estate of Chandan Singh too had number been challenged. So far as the rights of Deva Devi were companycerned, the High Court observed that the decree which had been awarded in favour of Capt. Mitra against her was binding on Deva Devi as her application to appeal in forma pauperis as well as her cross-objections had been dismissed. Deva Devis successors companyld number therefore, challenge the decree awarded against her. Dealing with the case of Dayali Devi, the High Court held that she was bound by the findings given against her in the earlier appeal No. 605 of 1958. The aforesaid judgment, it was observed, operated as res judicata against Dayali Devi. The companynsel for the appellant also referred before the High Court to Order 41, Rule 33 of the Code of Civil Procedure and companytended that the trial companyrt had wrongly held that Deva Devi had numbernterest in Chandan Singhs estate on the death of Shamsher Singh. The High Court was asked to set aside that error by recourse tothe above provision of the Code of Civil Procedure. The High Court rejected this companytention because it was of the view that the power under Order 41, Rule 33 of the Code companyld be exercised only if as a result of interference in favour of the appellant, it became necessary to readjust the rights of other parties. If in a case the appellant failed to substantiate the grounds upon which he sought relief from the appellate companyrt and his appeal failed on merits. the appellant companyld number ask the companyrt to companysider and decide points which companyld have risen only if another party had filed an appeal. An observation was also made by the High Court that Dayali Devi was approbating and repro bating as she herself had set up a will by Shamsher Singh on the basis that there was the fully owner of the property in dispute. After the dismissal of the appeal, the appellants applied to the High Court under article 133 of the Constitution for certifying the case to be fit for appeal to this Court. This application was dismissed by the High Court as per order dated February 21, 1973. The appellants thereupon filed the present appeal by special leave. Mr. Andley on behalf of the appellants has at the outset referred to the following observations in the judgment of the High Court Here it may, however, be mentioned and numbered that the finding of the trial companyrt on the above issues was number challenged before us by the learned companynsel for the appellants. The finding is as follows I, therefore, hold that the, land on which Kothi No. 7 Kutchery Road, Dehra Dun stands and properties detailed at Nos. 2 to 4 in the Schedule appended to the plaint i.e., shop and two Havelies belonged to Dr. Chandan Singh deceased and were the ancestral properties in the hands of Shamsher Singh deceased and Kothi known as Vishranti detailed at No. 5 in the Schedule and the companystructions number known as 7, Kutchery Road, are self-acquired properties of Shamsher Singh deceased. It is submitted by the learned companynsel that the High Court was in error in observing that the finding reproduced above had number been challenged in the High Court, We are unable to accede to this submission. The observation of the High Court that the above finding had number been challenged by the learned companynsel for the appellants is unequivocal, and we find it difficult to believe that the learned Judges of the High Court would state it in their judgment that the finding reproduced above had number been challenged before them even though the companynsel for the appellants had actually challenged the same. It is number disputed by Mr. Andley that the same companynsel who argued the appeal also filed application before the High Court for obtaining certificate of fitness for appeal to the Supreme Court. It was number mentioned in that application that the observation in the judgment of the High Court that the finding reproduced above had number been challenged was incorrect. Had the aforesaid finding in fact been challenged and the observation made by the High Court in this respect was incorrect, one would numbermally expect this fact to be mentioned in the forefront of that application. The fact that there was numberreference to such incorrect observation shows that the stand number taken is the result of an afterthought. It is also significant that even in the special leave petition which was filed in this Court numberground was taken that the finding reproduced above had been challenged before the trial companyrt and that the observation of the High Court in this respect was factually incorrect. The main companytention advanced by Mr. Andley is that the trial companyrt and the High Court were in error in awarding a decree for possession 14-L251 Sup.CI/75 of the entire property in dispute in favour of Capt. Mitra. It is urged that Shamsher Singh was owner of only one-half of the estate of Chandan Singh after the death of Tegh Singh and, as such, Capt. Mitra, who was the executor appointed under the will of Shamsher Singh, companyld even in a suit against a trespasser obtain only a decree for joint posses- sion to the extent of one-half share. The learned companynsel in this companytext has referred to two English decisions, Eughes v. Justin 1 and Muir v. Jenks 2 wherein it was held in claims for recovery of money that the plaintiff was number entitled to judgment for an amount in excess of that which was actually due to him. Reference has further been made to the cases, Naresh Chandra Basu v. Hayder Sheikh Khan Ors. 3 Joy Gopal Singha Ors. v. Probodh Chandra Bhattacharjee, 4 Abdul Hamid Ors. v. Durga Charan Das, 5 Rain Ranbijaya Prasad Singh v. Ramjivan Ram Ors. 6 and Abdul Kabir and Ors. v. Ht. Jamila Khatoon and Ors. 7 in support of the proposition that a companysharer in a suit against a trespasser can get a decree for joint posses- sion of the property to the extent of his share only. As against the above, Mr. B. Sen on behalf of the companytesting respondents has argued that the companytention that the plaintiff was entitled only to a decree for joint possession should number be entertained in appeal to this Court as numbersuch plea was taken either in the trial companyrt or in the High Court. After hearing the learned companynsel for the parties, we are of the view that the submission made by Mr. Sen in this behalf is well founded. The present suit for possession of the property in dispute was filed by Capt. Mitra on February 1, 1958 on the allegation that Shamsher Singh was the owner of that property and had executed a will where-under the plaintiff was appointed the executor of Shamsher Singhs estate. As under the will a right of maintenance and residence was given to Dayali Devi, the plaintiff sought possession of the property in dispute subject to the right and interest of Dayali Devi under the will of Shamsher Singh. The trial companyrt held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. When the matter came up in appeal before the High Court, it found that the, appeal must fail because the decree awarded against Deva Devi had become final and because Dayali Devi was bound by the Previous decision dated November 21, 1961 of the High Court. The High Court under the circumstances did number companysider it necessary to companystrue the will of Chandan Singh and to decide whether the finding recorded by the trial companyrt that Shamsher Singh had become the absolute owner of the entire estate of Chandan Singh was companyrect or number. No plea was taken on behalf of the defendants either in the trial companyrt or in the High Court that the plaintiff was entitled only to a decree for joint possession because of his being a companysharer and number to a decree for exclusive possession of the property in dispute. As numbersuch plea was taken in the trial companyrt and the High Court, we are of the opinion that the appellants should number be allowed to take this plea for the first time in this Court. In arriving at this companyclusion, we have taken into account the 1 1894 16. B 67. 2 1032 K. B. 412 AIR 1929 Cal. 28. 4 AIR 1935 Cal 646 AIR 1967 Cal. 116. 6 AIR 1942 Patna 397. AIR 1951 Patna 315. various, facts and circumstances of the case. One such circumstance is that the above plea is number being set up by persons who admittedly had number relationship with Chandan Singh, Shamsher Singh or his widow Dayali Devi. The appellants,- as already mentioned, base their claim upon a will which, according to them, was executed by Dayali Devi two lays before her death. A very important circumstance, which has weighed with us, is that the, suit giving rise to this appeal was instituted more than 16 years ago on February 1, 1958. During the entire period of more than 14 years that the case remained pending in the trial companyrt and the High Court, the plea number sought to be raised was never taken. The suit instituted in 1958 was the off shoot of a litigation between the parties which started in December 1946 when an application was filed by Capt. Mitra for the grant of a probate of the will of Shamsher Singh. Although the probate proceedings ended as a result of the dismissal of the appeal of Dayali Devi against the order granting probate the litigation between the parties companytinued and showed numbersign of abatement because Dayali Devi filed in 1952 a suit for declaration in respect of the property left by Shamsher Singh. It would thus appear that we have reached the culminating point of a litigation which arose out of a will executed in the last century and which has been pending in one companyrt or the other since before the dawn of independence. The question is whether we should call a halt and put an end to this litigation or whether we should allow the litigation to take a further meandering companyrse which must necessarily be the case if we allow the new plea to be raised in this Court. it has already been mentioned that the trial companyrt held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. The High Court did number go into this aspect of the matter as the need for doing so did number arise in the light of the companytentions advanced on behalf of the appellants before the High Court. In case the appellants are number allowed to take the new plea, the case would have to be remanded to the High Court for dealing with and recording a finding on the above aspect of the matter. The High Court shall have also in that event to go into the question as to whether Dayali Devi companyld deny the title of Shamsher Singh to the entire property in dispute in view of the fact that she herself had set up a will of Shamsher Singh on the assumption that he was the full owner of the property in dispute. The High Court did number fully deal with this aspect of. The matter beyond observing that Dayali Devi was approbating and reprobating. Deva Devi and Dayali Devi, who claimed rights and interest in the property in dispute, are number numbermore. So is Capt. Mitra who was the party arrayed against the two ladies in the litigation. It is time, in our opinion, that we draw the final curtain on this long drawn litigation and number allow its embers to shoulder for a further length of time, more so when the principal companytestants have all departed bowing as it were to the inexorable law of nature. One is tempted in this companytext to refer to the observations of Chief Justice Crowe in a case companycerning peerage claim made after the death without issue of the Earl of Oxford. Said the learned Chief Justice Time. bath its revolutions there must be a period and an end to all temporal things-an end of names, and dignities and whatsoever is terrene, and why number of De Vere ? For where is Nohun? Where is Nowbray? Where is Mortimer? Why, which is more and most of all, where is Plantagonet ?

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2154 of 1968. Appeal from the judgment and decree dated March 18, 1968 of the Bombay High Court in Appeal No. 102 of 1966. Naunit Lal, for the appellant. M. Tarkunde and B. R. Agarwala, for the respondent. The Judgment of the Court was delivered by RAY, C.J.-This appeal is by certificate from the judgment dated 18 March, 1968 of the High Court of Bombay. The respondent filed the suit against the appellant Municipality for the recovery of Rs. 1,00,012/- as damages suffered to the respondents property on account of flood caused by acts of gross negligence on the part of the appellant. The High Court passed a decree in favour of the respondent for Rs. 54,560/- with interest at 6 per annum. The respondent has a structure abutting on the Yacoob Road. The width of Yacoob Road is about 12 feet. On the other side of the road is an open nallah running parallel to the road. The nallah is about 45 feet in width, The nallah provides for passage of dirty water, rain water to the creek during the months of November to May. The Government of Maharashtra demolished a portion of Varala Dam in the month of May, 1963. In companysequence the rater stored in the lake was bound to pass through the nallah to the creek. The appellant companymenced the work of laying cement slab across the nallah in about the second week of June, 1963. The centering work to support and settle the slab companytinued to remain in its position in the nallah till about the first week of July, 1963. The allegations against the appellant were these First, the appellant prepared a plan for narrowing the nallah in front of the respondents shop without making any provision for the passage of additional rain water from the Varala lake catchment area. Second, the existence, of the centring work and the cement slab across the nallah companystituted a grave obstruction against the passage of rain water through the nallah. Third, the appellant neglected and failed to see that the passage of the nallah was kept free and unobstructed by work of companystruction and debris for providing a safe passage of the rain water which was likely to pass at the companymencement of the monsoon season. Fourth, in the numbermal companyrse of the monsoon season, there was heavy rain at Bhiwandi on the 5th, 6th and the 7th days of July, 1963. Because of the existence of centring work in the nallah, the slab, wild shrubs and debris, the water companyrse was companypletely blocked and the rain water which companylected in the catchment area beyond the dam and in the Bbiwandi and Nizampur accumulated at the mouth of the slab work to dangerous heights. This resulted in the whole of The area adjoining and surrounding the nallah being flooded. The High Court found these facts The appellant had knowledge in the month of April, 1963 of the demolition of the Varala Dam above a height of 6 feet above ground level. The appellant companypleted the laying of the slab between Teen Batti bridge and Habsanali bridge after April, 1963 with the knowledge of the demolition of the Varala Dam. The appellant narrowed the water-way near Teen Batti bridge to an extent that it was insufficient for discharge of water from the increased catchment area. because of the demolition. The appellant with full knowledge of the companysequences narrowed the water passage, put a slab on it and did number remove the centring at Lendi bridge. The appellant allowed accumulation of garbage and debris so as to obstruct the passage of water. The further findings are these. The nallah runs from south to numberth. The water carried by it flows on to the creek at the numberthern end of the nallah. There are five bridges over the nallah. The portion of the nallah which lies between Habsanali bridge and Lendi bridge was companyered with companycrete slab in 1963. Because of heavy rain on the 4th, 5th and 6th days of July, 1963 was accumulated at the southern end of Habsanali bridge and entered the surrounding area. Water was two feet deep in the factory of the respondent. This state of affairs companytinued for three days. The narrowing of the water-way and putting a slab on it at Habsanali bridge was ill-timed. This should have been companymenced after the Varala Dam was reconstructed. If the appellant wanted to proceed with this work before the reconstruction of the Dam sufficient water- way should have been provided for passage of water from a catchment area of 0.9 sq. miles providing for a rain fall of 3 inch per hour. The centring work should have been removed before the monsoon. In any case numbertrees, bushes debris or garbage should have been allowed to be companylected at the centring of the slab so as to obstruct the free passage of water. The retention of the centring, and the negligence in number clearing the passage of debris was the principal cause of the flood. Section 167 of the Bombay District Municipal, Act companyfers protection on the Municipality in respect of anything in good faith done or intended to be done. The expression done in good faith has been defined in the Bombay General Clauses Act, 1904 and in the General Clauses Act, to mean, done honestly, whether done negligently or number. The question, therefore, is, whether the Municipality,, in the present case, can be said to have acted honestly. In Jones v. Gordon 1 Lord Blackburn pointed out the distinction between the case of a person who was honestly blundering and careless, and the case of a person who has acted number honestly. An authority is number acting honestly where an authority has a suspicion, that there is something wrong and does number make further enquiries. Being aware of possible harm to others, and acting in spite thereof, is acting with reckless disregard of companysequences. It is worse than, negligence, for negligent action is that, the companysequences of which, the law presumes to be present in the mind of the negligent person, whether actually it was there or number. This legal presumption is drawn through the well known hypothetical reasonable man. Reckless disregard of companysequences and mala fides stand-equal, where the actual- state of mind of the actor is relevant. This is so in the eye of law, 1 2 A. C. 616. even if there might be variations in the degree of moral reproach deserved by recklessness and mala fides. The Bombay, as also, the Central, General Clauses Acts, help only in so far as they lay down that negligence does number necessarily mean mala fides. Something more than negligence is necessary. But these Acts say honestly and so, for the interpretation of that word, we have explained the legal meanings above. In the facts of this case we hold that the defendant was aware of possible harm and yet cared to do numberhing about it. The action was, therefore, reckless, and therefore in the eye of law mala fide, and there fore unprotected by section 167 of the Act.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 305 of 1974. Petition under ArtiCle 32 of the Constitution of India. Narayana Rao, for the petitioner. Sumitra Chakravarty, G. S. Chatterjee and S. K. Basu, for the respondent. The Judgment of the Court was delivered by GOSWAMI J.-The petitioner has been detained u s 3 of the Maintenance of Internal Security Act, 1971 briefly the Act in order to prevent him from acting in a manner prejudicial to the maintenance of public order. The order was passed by the District Magistrate Nadia, on 11-4-73. The ground on which the order was founded is as follows - That on 16-2-73 in between 10.08 hours and 10.14 hours you along with your other associates being armed with gun and other weapons companymitted a decoity in a 3rd class companypartment of running train S. 110 Dn. between Habibpur R. S. and Lakinarayanpur junction R.S. in Ranaghat Shantipur section and snatched away cash of Rs. 30,0,00/ from Shri Ashutosh Pal of Calcutta causing bullet injuries to him and putting all passengers to fear of death. Your action caused companyfusion, panic and disturbed public order there. You have thus acted in a manner prejudicial to the maintenance of public order. The order was served upon the detenu who made a representation which was companysidered by the Government and rejected. We have been taken through the time schedule of various orders passed by the different authorities and we do number find any illegality in that behalf. As a matter of fact, the learned advocate, Mr. Narayana Rao, appearing as amicus curiae for the petitioner, has number raised any ground of illegality in that companynection. Since, however, the District Magistrate in his affidavit Paragraph 6 has stated that be based his subjective satisfaction only on the ground mentioned in the detention order although other materials were placed before him, we examined the records of the case history of the detenu. After a careful examination of the record and the history sheet, we find that the District Magistrate, having regard to the grave nature of the act companymitted by the detenu, was bona fide satisfied that the said act was sufficient for making, the detention order. Mr. Narayana Rao, however, submits that unless the facts stated in the ground are proved to the satisfaction of this Court, numberaction can be taken under the Act. We are unable, to accede to this sub- mission. It is because that the act companyplained of cannot perhaps be satisfactorily proved in a companyrt of law or that the witnesses are unwilling to companye forward being already terrified by the enormity of the act perpetrated that action sometimes has to be taken under the Act to prevent further companymission of offenses of similar nature. Besides, it is number the function of the Court to examine the truth or otherwise of the allegations mentioned in the grounds. The grounds are assumed by the Court to be true and it is well settled that the scope of inquiry in a case of this nature is very limited. The learned companynsel next companytends that this is at the worst a matter affecting law and order but number public order.We are unable to accept this submission. When an armed robberyor dacoity like this is alleged to be companymitted by the petitioner armed with guns with his associates similarly armed, in a running train, it numberonger remains a matter of simple law and order as the peaceful tempo in life of the companymunity at large is also affected thereby. It number only puts the passengers from various places and walks of life in the particular. third class companypartment in fear but the passengers of the entire train and even of other running trains in panic. Public-order and life of the companymunity is hereby clearly disturbed. That amounts to public disorder which has to be prevented by action under the Act. Besides, the news of this type of daring dacoity in a running train is even likely to prevent the traveling public from availing of companymunication by train. Such companysequences and effects are bound to affect public order which is the opposite of public disorder. If any authority is needed we have one in I.R. 1972 S.C. p. 2146 Subal Chanadra Ghosh v. State of West Bengal wherein one of us Jaganmohan Reddy, J. observed as follows The facts set out in ground No. 1 clearly show that the offence alleged against him detenu is companymitted in a daring manner in the presence of passengers which must been very panicky and disturbed the public order. Again in Arun Ghosh v. State of West Bengal 1 this Court dealing with the question of public order observed as follows The question whether a man has only companymitted a breach of law and order, or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon society. The test is Does it lead to a disturbance of the even tempo and current of life of the companymunity so as to amount to a disturbance of the public order, or, does it affect merely an individual without affecting the tranquility of society. In yet another decision of this Court in Ram Manohar Lohias case 2 Hidayatullah J. as he then was, speaking for the majority, put in a picturesque language the whole companycept of public order thus It will thus appear that just as public order in the rulings of this Court was said to companyprehend disorders of less gravity than those affecting security of State, law and order also companyprehends disorders of less gravity than those affecting public order. One has to imagine three companycentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that- an act may affect public order but number security of the State. 1 1970 3 S. C. R. 288. 2 1966 1 S. C. R. 709. We are clearly of the view that the ground on which the detention order has been made in this case would reasonably give rise to a bonafide satisfaction in the mind of the detaining authority that such incidents were likely to be repeated in the same manner and that those who are alleged to have taken part in even a single incident of this magnitude had to be detained in order that the tempo of peace in public life was number jeopardised. We have, therefore, numberhesitation in holding that there is numberinfirmity in the impugned order.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1119-1122 of 1973 and 816 to 835 of 1974. From the judgment and order dated the 9th December, 1971 of the Allahabad High Court in Spl. Appeals Nos. 658, 664, 674 and 678/1968, and 653-657, 659-660, 663, 667, 669-673, 677, 678-680 and 685-686/1968 respectively. N. Phadke, In C. A. No. 1119/73 , B. Sen In C, A. Nos. 1120-1122/73 and D. N. Mishra, for the, appellants In As. Nos. 1119-1122/73 . P. Maheshwari, for the appellants In C. As. Nos. 816- 8.35/4 . P. Rana, for the respondents In all the appeals ,. The Judgment of the Court was delivered by KRISHNA IYER, J.-These appeals stem out of a litigation which germinated from a certain nationalisation scheme companytemplated in Chapter IVA of the Motor Vehicles Act, 1939 Act IV of 1939 hereinafter called the Act . More than a decade ago, the State Transport Undertaking of Uttar Pradesh hereinafter referred to as the Undertaking, for short took steps for framing four schemes for four routes and proceeded to publish the necessary numberifications in the Uttar Pradesh Gazette, companyies whereof were sent to Rajasthan for being pasted on the numberice boards of the Transport Authorities in that State. A statutory enquiry, envisaged in Chapter IVA, followed. Some operators-not the appellants--raised objections and, eventually, the schemes were approved. Of companyrse these schemes related to interstate routes and had received the companycurrence of the State of Rajasthan. Although the Act companytemplates the framing of schemes for nationalisation for the obvious benefit of the traveling public by provision of an efficient, adequate, economical and properly companyrdinated road transport service affords statutory opportunity for raising objections and making representations, number merely to the affected operators but also to other entities like associations representing persons interested in the pro- vision of road transport facilities, local authorities, police authorties etc., in the present case only private operators have raised their voice against the proposed schemes. While it may look a little odd for such operators to plead in Court that public bodies and passengers associations in Rajasthan have been denied opportunities of making effective representation, that does number detract from the obligation of this Court to companysider whether obligatory procedural requisites prescribed by the statute have been adhered to in the process of nationalising the inter-State route companycerned. As already indicated, these appeals relate to the validity of a scheme of nationalisation of an inter-State route stretching across Uttar Pradesh and Rajasthan. The identical scheme was challenged, without success, on certain companystitutional grounds by a number of operators and this Court negatived those companytentions in its decision reported as Khazan Singh v. State of U.P. 1 . A few grounds, number urged before this Court in the earlier round, however, survive for our companysideration. As was rightly pointed out by Mr. Phadke, learned companynsel for some of the appellants and also by Mr. B. Sen, appearing for the others, the earlier decision was rendered in appeals pursuant to certificates granted under Art. 132 1 of the Constitution. Necessarily they were companyfined to companystitutional issues. The present points do number savor of companystitutional invalidity, but of illegality for numberconformity with statutory mandates. Although the grounds raised in A. I. R. 1974 S. C. 669. the memoranda of appeals, supplemented by additional grounds, are quite populous, companynsel for the appellants have planned down their propositions to but two or three and we propose to deal with them only. Other companytentions faintly referred to in the companyrse of arguments do number appeal to us and merit numbermention. The facts pertaining to the questions we propose to deal with lend themselves to a brief statement. The Undertaking companytemplated framing of a scheme excluding private operators from the route Agra in U.P. to Bharatpur in Rajasthan . Admittedly, the scheme which was published in the official gazette of the State of U.P. on December 9, 1961 was number published in the Gazette of Rajasthan. Section 68C enables State Transport Undertakings to prepare schemes totally or partially excluding private operators from bus routes. The Act also provides for hearing, under S. 68D, of the viewpoints of categories of companycerned entities enumerated in the section. Of companyrse numberworthwhile objections or companystructive suggestions can be made regarding a scheme unless there is knowledge about the particulars of the scheme. For this reason S. 68C provides for the proposed scheme and companynate particulars to be published in the Official Gazette and also in such other manner as the State Government may direct. Rules have been framed and our attention has been drawn to Rule 4 which provides that schemes framed under S. 68C of the Act shall be published in form appended to the Rules. The Transport Commissioner is obligated to get a companyy of the scheme pasted on the numberice board of the office of the State Transport Authority and another at the office of the Regional Transport Authority companycerned. It was suggested that the Rules had number been companyplied with but, in the light of the categorical statement in the judgment under appeal to the companytrary, there is numbermerit in this argument. The High Court has stated It is number disputed that this Rule Rule 4 was companyplied with. The numberices were put up on the numberice board of the State Transport Authorities of Uttar Pradesh and also of Rajasthan. There is thus numbernon-compliance with rules regarding publication of the scheme. As mentioned by the High Court, the bus operators who claim to be aggrieved by the number-publication in the Rajasthan Official Gazette were otherwise very probably aware of the details of the scheme since they were plying their buses between the two termini located in Rajasthan and Uttar Pradesh. Even so, let us examine whether there has been any companytravention of the vital formality in S. 68C regarding publication in the Official Gazette. The point was taken in the High Court, but was disposed of in the following manner As regards the question of adequacy or otherwise of numberice to the respondents, sections 68C and 68D provide for publication, in the official gazette of the State. This provision was companyplied with and the numberifications were published in the official gazette of the State of Uttar Pradesh. A close look at the fasciculus of sections dealing with State Transport Undertakings and Schemes framed by them makes it plain that publication of particulars of a scheme has a purpose. Counsel for the appellants urged that this purpose would be baulked if in the case of an inter-State route the scheme were published only in the Official Gazette of one State. Apparently, S. 68C has been rather simplisti- cally drawn, unmindful of its sweep in relation to inter- State routes. There is numberdoubt that if local bodies, police authorities, passengers associations, private operators and even potential operators were to make effective representations regarding the four-fold requirements of efficiency, adequacy, economy and companyrdination in regard to the Undertakings proposed scheme, they must know the pertinent details. We assume that these particulars companye to the companynisance of persons Once they appear in the Official Gazette and it is fair that such publication is made in every State companyered by the inter- State route. In short, the wholesome intendment of ss. 68C and 68D would be fulfilled if schemes relating to inter- State routes are published in all the States companycerned. In the present case, Rule 4 goes a long way in achieving this object and it has been companyplied with. The question is whether the failure to publish in the Official Gazette of Rajasthan, is a fatal flaw. There is numberdoubt, as has been pointed out by the High Court, that the operators who are companytesting the scheme before us companyld number have been in ignorance of the anatomy of the scheme impugned. Even so, let us examine the legal merit of the plea on the assumption that number-publication in the Official Gazette is lethal in legal companysequence. Section 68C, in the ordinary companyrse, relates to intrastate schemes, but may also companyer inter-State routes. An undertaking of one State or the other may make a proposal for nationalisation extending beyond its frontiers. There are certain safeguards built into S. 68D such as the previous approval of the Central Government having to be obtained. Be that as it may, companystrued strictly, S. 68C insists on publication of the particulars relating to a scheme intra-State or inter-State-in the Official Gazette. The base State or the undertaking which launches the proposed nationalisation alone falls within the ambit of the provision. It is clear from a perusal of S. 68C that it speaks of the State Government, the Official Gazette and the State Transport Undertaking, even though it is quite clear that inter-State schemes also companye within the companypass of the provision. Whatever the reason-it is number for us to ask why-the section, as it reads, merely requires publication in the companycerned Official Gazette of the State whose undertaking initiates the project for nationalisation. The fact that for statutory companystruction the singular includes the plural, does number companypel us to read the plural wherever the singular is mentioned. We are satisfied that the expression in the Official Gazette and the publication required therein, does number undergo a chance in its semantics when the route companycerned is an inter-State as against an intraState one. In the present case it was the P. Undertaking which proposed the scheme for nationalisation and the U.P. Gazette has carried the publication. The law asks for numbermore. The legal objection has therefore to be overruled. It has been stated at the Bar that it may be desirable for State Transport Undertakings when they propose schemes for nationalisation of inter-State routes to get them published in the Official Gazettes of all the States through which the route runs. It is for the legislature to make the necessary amendatory provision in this behalf. However, for reasons already set out, we cannot invalidate the scheme on the score of its number-publication in the Rajasthan Gazette. A point was raised that the authorities in the State of Uttar Pradesh companyld number validly cancel permits held by bus operators of Rajasthan. This argument has engaged the attention of the Division Bench of the High Court and has been rejected, for reasons stated, which meet with our companycurrence. It is surprising that a nationalisation scheme, calculated to provide efficient and companyrdinated transport services to the companymon people of backward areas has got bogged down on some ground or other for over a decade. It is a numberorious fact that means of public transport in the companyntry are grossly inadequate and energetic measures to overcome this handicap have to be undertaken if the nation is to progress. But statutory hurdles and legal road-blocks laid by private operators holding up beneficent schemes companyceived in public interest for twelve or thirteen years cannot redound to the credit of our administrative and legal systems. Something is rotten in the State of Denmark. In the result, the appeals fail and are dismissed with companyts.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 325 of 1974. Appeal by Special Leave from the Judgment and Order dated the 8th April, 1974 of the Bombay High Court in Crl. Appeal No. 305 of 1974. Sharad Manchar, B. P. Maheshwari and Suresh Sethi, for the appellants. B. Wad and M. N. Shroff, for the respondent. The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-We have just number admitted the special leave, petition and after the appeal was registered heard the learned Advocates for the parties. This is yet another case in which a criminal first appeal against a companyviction has been dismissed summarily under Section 421 of the Criminal Procedure Code. We have heard both sides. Mr. Wad for the State has strenuously companytended that the High Court has power to dismiss summarily and has cited several decisions, but in all these cases there is numberhing to the companytrary to justify a view different from the one we are taking in this case. It is submitted that the dismissal, was so summary that even the record was number called for. No doubt, Section 421, Criminal Procedure Code does vest a power in the High Court to dismiss an appeal summarily but it can do so only on a perusal of the petition and the companyy of the judgment. Inasmuch as under our Constitution any person aggrieved by an order of the High Court can petition to this Court under Article 136 for special leave, it is number only necessary but having regard to the long series of decisions beginning as far back as 1953 see 1953 SCR 809 onwards which discourages this practice of dismissal by one word dismissed, the High Court should at least have given some reasons why numberarguable case is made out on a perusal of those documents. Since we are number in a position to ascertain and it is companytended before us that arguable points do arise in this case in support of which the statement made in special leave petition has been read to us, we are number in a position to say that an arguable case does number arise. We would have been able to do so even if we had the slightest inkling in the order of the High Court. In the absence of any reasons what has been happening in many cases is that special leave is admitted, and after hearing the appeal if this Court has companye to the companyclusion that the companyviction is valid, it has held that the dismissal by the High Court is justified. But this method, in our view, reverses the process and imposes unnecessary burden on this Court. What should have been done by the High Court, is number being done by this Court. It is only after sending for the records, getting the paper books prepared, hearing both parties in the appeal and after appreciation of the evidence that it may be held that in some cases the dismissal, in fact, was ultimately justified. In many cases the appeals were even allowed. Long avoidable delay thus ensues during which the person companyvicted entertains a doubt about his companyviction and has to suffer the anxiety caused thereby. We do hope and trust that the series of decisions over this long period disapproving of the practice of summarily dismissing by one word will be taken numbere of and this Court will number be ultimately burdened with such appeals arising out of summary dismissals which is really the function of the High Court at the first instance. The appeal is accordingly allowed. The order of the High Court is set aside. The appeal is remanded to the High Court for hearing for admission and disposal in accordance with law and in the light of the directions made here in above.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 228 of 1970. Appeal by special leave from the judgment and Order dated the 30th April, 1970 of the Delhi High Court at New Delhi in Criminal Revision No. 90 of 1970. N. Nijhawan, Urmila Kapoor and Kamlesh Bansal, for the appellant. Sardar Bahadur Saharya, for the respondents. The Judgment of the Court was delivered by SARKAR Can the income of the wife be taken into account in determining the amount of maintenance payable to her under Section 488 of the Code of Criminal Procedure, 1898 ? This is the principal question for determination in this appeal by special leave. Respondent No. 1, Kamla Devi was married to the appellant Bhagwan Dutt on January 22, 1957 according to Hindu rites. out of this wedlock a daughter, Respondent No. 2, was born on November 22, 1957. On October 18, 1966, Respondent No. 1 filed a petition against the appellant for judicial separation on the ground of desertion and cruelty. During the pendency of that petition, she filed all application under s. 488 of the Code of Criminal Procedure, 1898, in the companyrt of the Magistrate, 1st Class, Delhi, claiming maintenance for herself and for her minor daughter, on the ground that the appellant had neglected and refused to maintain them. At the date of the application Respondent No. 1 was employed as a stenographer on a monthly salary of Rs. 600/-. The appellant was at that time earning about Rs. 800/- per month. However, later on when the case was in the Sessions Court in revision, the monthly income of each of them had increased by Rs. 1501-, approximately. By his order dated June 6,1969 the Magistrate directed the husband to pay Rs. 250/- per month i.e. Rs. 175/- for the wife and Rs. 75/- for the child for their maintenance. While fixing the amount of maintenance for the wife, the Magistrate did number take into companysideration her own independent income. Against the order of the Magistrate, the husband went in revision to the Court of Session. The Additional Sessions Judge was of the view that since the income of the wife was substantial and enough to maintain herself. she was number entitled to any maintenance. He was further of the opinion that Rs. 75/- p.m. allowed to the child being inadequate, it deserved to be raised to Rs. 125/- p.m. for the period of the pendency of the application in the trial companyrt and thereafter to Rs. 150/- p.m. He referred the case to the High Court under s. 438 of the Code with a recommendation that the order of the Magistrate to the extent it allowed maintenance to the wife, be quashed, but the allowance of the child be enhanced as aforesaid. A learned single Judge of the High Court who heard the reference held that in making an order for maintenance in favour of a wife under s. 488 of the Code of Criminal Procedure the companyrt has number to take into companysideration the personal income of the wife as section 488 does number companytemplate such a thing. He therefore declined the refe- rence pro-tanto, but accepted the same in regard to the enhancement of the allowance of the child. Aggrieved by the judgment of the High Court, the husband has number companye in appeal before us. The material part of Section 488 of the Criminal Procedure Code is in these terms 1 if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child at such monthly rate, number exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs. 2 to 5 The companyresponding part of Section 125 in the new Criminal Procedure Code, 1973, which came into force on 1 st April 1974, reads 125. 1 If any person having sufficient means neglects or refuses to maintain- a his wife, unable to maintain herself, or b his legitimate or illegitimate minor child, whether married or number, unable to maintain itself, or c his legitimate or illegitimate child number being a married daughter who has attained majority , where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or d his father or mother, unable to maintain himself or herself. a Magistrate of the first class may, upon proof of a such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife, such child, father or mother, at such monthly rate number exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct A companyparative study of the provisions set out above would show that while in Section 488 the companydition unable to maintain itself apparently attached only to the child and number to the wife, in Section 125, this companydition has been expressly made applicable to the case of wife. Does this recasting of the old provision signify ally fundamental change in the law? Or, has this been done merely to clarify and make explicit what was formerly implict ? Section 488 does number companyfer an absolute right on a neglected wife to get an order of maintenance against the husband number does it impose an absolute liability on the husband to support her in all circumstances. The use of the word may in Section 488 1 indicates that the power companyferred on the Magistrate is discretionary. A neglected wife, therefore, cannot, under this Section, claim, as of right, an order of maintenance against the husband. of companyrse, the Magistrate has to exercise his discretion in a judicial manner companysistently with the language of the statute with the regard to other relevant circumstances of the case. Nevertheless, the Magistrate has to exercise his discretion primarily towards the end which the Legislature had in view in enacting the provision. Sections, 488, 489 and 490 companystitute one family. They have been grouped together in Ch. XXXVI of the Code of 1898 under the caption, of the maintenance of wives and children. This Chapter, in the words of Sir James Fitzstephen, provides a mode of preventing vagrancy, or at least of preventing its companysequences. These provisions are intended to fulfil a social purpose. Their object is to companypel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are number left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, S-section 488 is number intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction companyferred by the Section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction it is certainly number punitive. As pointed out in Thompsons case 1 the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provide, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts. Sub-section 2 of s. 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil Court between the parties regarding their status and civil rights. The stage is number set for appreciating the companytentions canvassed by the learned Counsel for the parties. Mr. Nijhawan, learned Counsel for the appellant companytends that if s. 488 1 is companystrued in the light of its primary object and. the nature of the jurisdiction companyferred by it, together with s. 489 1 , it would be amoly clear that in determining the wifes claim to maintenance and its quantum, her independent income is a relevant companysideration. in support of this companytention, Counsel has referred to Mohd. Ali v. Mt. 1 6 N.W.P. 205. Sakina Begum 1 Narasimha Ayyar v. Rangathayammal 2 Ploonnabalam v. Saraswathi 3 Ahmed Ali Saheb v. Sarfara linisa Begum 4 and P. T. Ramankutty A chan v. Kalyanikutty 5 . As against the above, Mr. Sardar Bahadur Saharya maintains that the very fact that the Section does number make the inability of a wife to maintain herself, a companydition precedent to the grant of maintenanceas it does in the case of child-shows that the intention of the Legislature was that the wifes own income or means should number be taken into account either for determining her right to maintenance or for fixing its amount. It is further urged that the language of s. 489 cannot be called in aid to companystrue s. 488 1 . Reliance for the main argument has been placed on Major Joginder Singh v. Bibi Raj Mohinder Kaur. 6 In Major Joginder Singhs. case supra , the wife had claimed maintenance under s. 488, Cr. P. C. both for herself and her minor son. The husband was a Major in the army, getting Rs. 1070/- p.m. It is number very clear from the Report as to whether the wife was having any substantial income of her own. However, an argument was raised that she had her own means of support which should be taken into account for determining her right to maintenance. The learned Judge who decided the case, negatived the companytention, thus It is obvious from the language of the section that in order to enable a child to claim maintenance it has to be proved that the child is unable to maintain itself. No such companydition has been imposed in the case of a wife. Cases in which maintenance was refused to the wife merely on the ground that she was in a position to maintain herself have, in my view, omitted to companysider the implication of this distinction while companystruing the scope and effect of s. 488. In my opinion, the ability of the wife to maintain herself was number intended by the legislature to deprive her of the right of maintenance companyferred by this section, if she is otherwise found entitled to it Commenting on the cases cited before him, the learned Judge further observed But if those authorities intend to lay down any rigid rule of law that the only right which a wife possesses under s. 488, Cr.P.C., is to claim just subsistence allowance which should merely provide bare food, residence and raiment and that also only if she has numberother means or source, then I must with respect, record my emphatic dissent. It may be numbered that the above principle spelled out from the interpretation of s. 488 1 in Major Joginder Singhs case supra , A.I.R. 1944 Lah. 394. A.I.R. 1957 Mad. 693. A.I.R. 1971 Kerala 22. A.I.R. 1947 Mad. 204. A.I.R. 1952 Hyd. 76 A.I.R. 1960 Punjab 249. was carried a step further by the Division Bench in Nanak Chand Banarsi Dass and ors. v. Cliander Kishore and Ors. 1 to deduce the proposition that the wifes right to receive maintenance under s. 488, Criminal Procedure Code is an absolute right. In our opinion, one wrong assumption has led to another false deduction. The mere fact that the language of s. 488 1 does number expressly make the inability of a wife to maintain herself a companydition precedent to the maintainability of her petition, does number imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into companysideration the wifes own separate income or means of support. There is a clear distinction between a wifes locus standi, to file a petition under s. 488 and her being entitled, on merits, to a particular amount of maintenance thereunder. This distinction appears to have been overlooked in Major Joginder Singhs case supra . Proof of the preliminary companydition attached to a neglected child will establish only his companypetence to file the petition but his entitlement to maintenance, particularly the fixation of its amount, will still depend upon the discretion of the Magistrate. As the Magistrate is required to exercise that discretion in a just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband. The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious number penurious, but is modestly companysistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his companymitments. There is numberhing in these provisions to show that in determining the maintenance and its rate, the Magistrate has to inquire into the means of the husband alone, and exclude the means of the wife altogether from companysideration. Rather, there is a definite indication in the language of the associate s. 489 1 that the financial resources of the wife are also a relevant companysideration in making such a determination. Section 489 1 provides inter alia, that on proof of a change in the circumstances of any person receiving under s. 488 a monthly allowance, the Magistrate, may make such alteration in the allowance as he thinks fit. The circumstances companytemplated by s. 489 1 must include financial circumstances and in that view,the inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife. Keeping in view the object, scheme, setting and the language of these associate provisions in Chapter XXXVI, it seems to us clear that in determining the amount of maintenance under s. 488 1 , the Magistrate is companypetent to take into companysideration the separate income and means of the wife. A.I.R. 1969 Delhi 235. We do number wish to burden this judgment with discussion of all the decisions that have been cited at the Bar. It will suffice to numberice one of them rendered by the Kerala High Court in which Major Joginder Singhs case supra was explained and distinguished. That case in P. T. Ramankutti Kalyankutty supra therein, the husband was getting a net salary of Rs. 240/-, while the monthly salary. of the wife was after deductions Rs. 210/-. The question, was whether the wife in such a financial position had a right to claim maintenance under s.488, Criminal Procedure Code. after referring to the observations of Dua, J. in Major Joginder Singhs case supra and surveying the case law on the subject, the learned single Judge of the Kerala High Court companyrectly summed up the position thus To take the view that in granting maintenance under Section 488 to a wife her personal income also can be companysidered may Prima-facie appear to be against the language of the section because the companydition unable to maintain itself appearing therein attaches itself only to child and number to wife. But that companydition has application only in companysidering the maintainability of a petition filed under s.488. A wife can file a petition under that section irrespective of the question whether she is able or unable to maintain herself. But on her application at the time of the granting of monthly allowance to her there is numberhing prohibiting the Court from companysidering whether she can maintain her- self with her own income and if she can, granting her numberhing by way of allowance. Any other companystruction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own, to misuse the section as a punitive weapon against their husbands. It is next companytended on behalf of the appellant that s. 488 must be deemed to have been partially repealed and modified by s. 23 of the Hindu Adoptions and Maintenance Act, 1956 for short, called the Act which provides that in determining the amount of maintenance, the Court shall have, inter alia, regard to the value of the wifes property and any income derived from such property or from the claimants own earning or from other sources. Clause b of s.4 of that Act provides Save as otherwise expressly provided in this Act a x x x b any other law in force immediately before the companymencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions companytained in this Act. The question therefore resolves itself into the issue whether there is any thing in s.488 which is in companysistent withs .23 or any other provisions of the act. This matter is numberlonger resititegra.In Nanak Chand v. Shri Chandra Kishore Agarwala and Ors. 1 this Court held that there is numberinconsistency between Act 78 of 1956 and s. 488, Criminal Procedure 1 1970 1 S.C.R. 565. Code. Both companyld stand together. The Act of 1956 is an Act to amend and companyify the law relating to adoption and maintenance among Hindus. The law was substantially similar before when it was never suggested that there was any inconsistency with S. 488, Cr. P. C. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has numberrelationship with the personal law of the parties. We have said and it needs to be said again, that s. 488 is intended to serve a social purpose. It provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may number, out of sheer destitution become a hazard to the well-being of orderly society. As against this, s. 23 and other provi- sions of the Act relating to fixation of the rate of allowance, provide for the enforcement of the rights of Hindu wives or dependents under their personal law. This companytention therefore is meritless and we negative the same. For the reasons aforesaid, we allow the appeal, set aside the judgment of the High Court and send the case back to the trial Magistrate to refix the amounts of maintenance. In the case of the wife, he shall together with other relevant circumstances, take into account her income also. In the case of the daughter, he shall afford opportunity to the parties to lead fresh evidence and then refix her allowance.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 514 of 1970 Appeal from the judgment and order dated the 22nd December, 1969 of the Mysore High Court in W.Ps. No. 5361 of 1969. CIVIL APPEAL Nos. 166 to 173 of 1973. From the judgment and order dated the 15th October, 1970 of the Mysore High Court in W.Ps. Nos. 893/70, 5367/69, 2031- 2035/70 and 5734 of 1969 respectively. AND CIVIL APPEALs Nos. 181 to 243 of 1973. From the judgment and order dated the 15th October, 1970 of the Mysore High Court in W.Ps. Nos. 2534, 2529, 2532, 2530- 31, 253536/70, 3560-3562/67, 7124-7129, 7131/69, 2476-78, 2480 2486/70, 2479170, 1211/70, 1081/70, 4690/69, 3846/70, 5634-35, 5638-39/69, 5632/69, 3040, 3039/70, 3147-48, 2772, 2775, 2777, 2773/70, 5426, 6770, 5503/69, 3033-36, 3037- 38/70, 6087, 6089, 6086, 6088/89, 2062, 2820/70, 470, 1749, 2833 and 2834 of 1970 respectively. Civil Appeal No. 2078 of 1970. From the Judgment and order dated the 25th May, 1970 of the Mysore High Court in W. P. No. 5179 of 1969. Srinivasan and Vineet Kumar, for the appellants in As. Nos. 514 and 2078/70 . Srinivasan and J. Ramamurthy, for the appellants in As. Nos. 166-173 181-243/73 K. Sen, in C.A. No. 166/73 , H. B. Datar in C.A. No. 2078 and M. Veerappa, for respondents number. 1 2 in C.As. Nos. 514 2078/70 and 166/73, 181-203, 205-216, 218-236, 242-243/73 and respondents in C.As. Nos. 204, 217 and 237- 241/73 . Sen in C.A. No. 514/70 and 166/73 and Girish Chandra, for respondent No. 3 in C.As. Nos. 514 2078/70, 166- 173/73, 181-203, 205-216, 218-236 and 242-243/73 . M. K. Nair the intervener in C.A. No. 514170 . The Judgment of the Court was delivered by ALAGIRISWAMI, J.-These appeals arise out of the judgment of the High Court of Mysore dismissing a batch of writ petitions filed by a number of dealers in the State of Mysore number Karnataka questioning the levy of sales tax under the Central Sales Tax Act on certain interState sales. The goods dealt with were all declared goods and under the Mysore Sales Tax Act they were taxable at the point of purchase at a single point. The assessment periods are prior to 10th November, 1964. The importance of this date will become clear when we proceed to deal with the matter subsequently. The assessing authorities assessed all these transactions of inter-State sales to tax. This Court delivered its judgment in what is known as Yaddalams Case 16 STC 231 holding that where a certain transaction was number liable to sales tax if it were an intra-state sale under the Sales Tax Law of the appropriate State, it would number be liable to sales tax if it were an inter-State sale. Following this decision the assessment orders were rectified giving effect to the judgment. To set aside the effect of this decision sub-S 1A was inserted in section 6 and a companysequential amendment was made in sub-s. 2A of section 8 of the Central Sales Tax Act. After this the assessing authorities again rectified the assessment orders and brought to tax the inter-State sales. Before this Court the validity of section 8 2 a as well as section 6 IA of the Central Sales Tax Act read with section 10 of the Central Salex Tax Amendment Act, 1969 is questioned. In the alternative it is argued that even after the amendment these transactions are number liable to sales tax. The rectification orders are also impugned on the ground 1. that there was numbermistake apparent on the face of the record to ,justify the rectification under Rule 38 of the Mysore Sales Tax Rules, and 2. that in any case such rectification is beyond the permitted period. The first companytention regarding the unconstitutionality of section 8 2 a is sought to be based on the decision of this Court in G. Rayon Silk Mfg. Wvg. Co. Ltd. v. Asst. Commr. 1 dealing with the companystitutionality of S. 8 2 b . We companysider that far from supporting the appellants that decision actually is against the companytention put forward on behalf of the appellants. It is only necessary to Set out what this Court said in that decision. It is hardly necessary to add any thing more. In that case the majority while upholding the validity of section 8 2 b observed It has been argued on behalf of the appellants that the fixation of rate of tax is a legislative function and as the Parliament has. under section 8 2 b of the Act, number fixed the rate of Central sales tax but has adopted the rate applicable to the sale or purchase of goods inside the appropriate State in case such rate exceeds 10 per cent, the parliament has abdicated its legislative function. The above provision is companysequently stated to be companystitutionally invalid because of excessive delegation of legislative power. This companytention, in our opinion, is number well- founded. Section 8 2 b of the Act has plainly been enacted with a view to prevent evasion of the payment of the Central sales 1 33 S. T. C. 219. tax. The Act prescribes a low rate of tax of 3 per cent in the case of inter-State sales only if the goods are sold to the Government or to a registered dealer other than the Government. In the case of such a registered dealer, it is essential that the goods should be of the description mentioned in sub-section 3 of section 8 of the Act. in order, however, to avail of the benefit of such a low rate of tax under section 8 1 of the Act, it is also essential that the dealer selling the goods should furnish to the prescribed authority in the prescribed manner a declaration duly filled and signed by the registered dealer, to whom the goods. are sold, companytaining the pro-scribed particulars in the prescribed form obtained from the prescribed authority, or if the goods are sold to the Government number being a registered dealer, a certificate in the prescribed form duly filled and signed by a duly authorised officer of the Government. in cases number falling under subsection 1 , the tax payable by any dealer in respect of inter-State sale of declared goods is the rate applicable to the sale or purchase of such goods inside the appropriate State vide section 8 2 a of the Act. As regards goods other than the declared goods, section 8 2 b provides that the tax pay able by any dealer on the sale of such goods in the companyrse of interState trade or companymerce shall be calculated at the rate of 10 per cent or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher. The question with which we are companycerned is whether the Parliament in number fixing the rate itself and in adopting the rate applicable to the sale or purchase of goods inside the appropriate State has number laid down any legislative policy and has abdicated its legislative function in this companynection we are, of the view that a clear legislative policy can be found in the provisions of section 8 2 b of the Act. The policy of the law in this respect is that in case the rate of local sales tax. be less than 10 per cent, in such an event the dealer, if the case does number fall within section 8 1 of the Act, should pay Central sales tax at the rate of 10 per cent. If, however, the rate of local sales tax for the goods companycerned be more than 10 per cent, in that event the policy is that the rate of Central sales tax shall also be the same as that of the local sales tax for the said goods. The, object of law thus is that the rate of Central sales tax shall in numberevent be less than the rate of local sales tax for the goods in question though it may exceed the local rate in case that rate be less than 16 per cent. For example, if the local rate of tax in the appropriate State for the number- declared goods be 6 per cent, in such an event a dealer, whose case number companyered by section 8 1 of the Act, would have to pay Central sales tax at the rate of 10 per cent. In case, however, the rate of local sales tax for such goods be 12 per cent, the, rate of Central sales tax would also be 12 per cent because otherwise, if the rate of Central sales tax were only 10 per cent, the unregistered dealer who purchases goods in the companyrse of inter-State trade would be in a better position than an intrastate purchaser and there would be number disincentive to the dealers to desist from selling goods to unregistered purchasers in the companyrse of inter-State trade. The object of the law apparently is to deter inter-State sales to unregistered dealers as such inter-State sales would facilitate evasion of tax. It is also number possible to fix the maximum rate under section 8 2 b because the rate of local sales tax varies from State to State. The rate of local sales tax can also be changed by the State Legislatures from time to time. It is number within the companypetence of the Parliament to fix the maximum rate of local sales tax. The fixation of the rate of local sales tax is essentially a matter for the State Legislatures and the Parliament does number have any companytrol in the matter. The Parliament has therefore necessarily, if it wants to prevent evasion of payment of Central sales tax, to tack the rate of such tax with that of local sales tax, in case the rate of such local sales tax exceeds a particular limit. The adoption of the rate of local sales tax for the purpose of the Central Sales tax as applicable in a particular State does number show that the Parliament has in any way abdicated its legislative function. Where a law of Parliament provides that the rate of Central sales tax should be 10 per cent or that of the local sales tax, whichever be higher, a definite legislative policy can be discerned in such law, the policy being that the rate of Central sales tax should in numberevent be less than the rate of local sales tax. In such a case, it is, as already stated above, number possible to mention the precise figure of the maximum rate of Central sales tax in the law made by the Parliament because such a rate is linked with the rate of local sales tax which is prescribed by the State Legislatures. The Parliament in making such a law cannot be said to have indulged in self-effacement. On the companytrary, the Parliament by making such a law effectuates its legislative policy, according to which the rate of Central sales tax should in certain companytingencies be number less than the rate of local sales tax in the appropriate State. A law made by Parliament companytaining the above provision cannot be said to be suffering from the vice of excessive delegation of legislative function. On the companytrary, the above law incorporates within itself the necessary provisions to carry out the objective of the Legislative, namely to prevent evasion of payment of Central sales tax and to plug possible loopholes. Mathew, J. speaking for himself and the learned Chief Justice held We think that Parliament fixed the rate of tax on inter-State sales of the description specified in section 8 2 b of the Act at the rate fixed by the appropriate State Legislature in respect of intra-state sales with a purpose, namely, to check evasion of tax on inter-State sales , and to prevent discrimination between residents in one State and those in other States. Parliament thought that unless the rate fixed by the States from time to time is adopted as the rate of tax for inter-State sales of the kind specified in the sub-clause, there will be evasion of tax in inter-State sales as well as discrimination. We have already pointed out in our judgment in State of Tamil Nadu and, Another v. Sitalaksh ni Mills Ltd. and Others, Civil Appeals Nos. 25472549 of 1969 and 105-106 of 1970 since reported in 33 STC 200 SC the objectives which Parliament wanted to achieve by adopting the rate of tax in the appropriate State for taxing the local sales. And for attaining these objectives Parliament companyld number have fixed the rate otherwise than by incorporating the rate to be fixed from time to time by the appropriate State Legis- lature in respect of local sales. It may be numbered that in so far as inter-State sales are companycerned, the Central Sales Tax Act. by section 9 2 has adopted the law of the appropriate State as regards the procedure for levy and companylection of the tax as also for impositon of penalties. It is only necessary to add that the legislative policy laid down by. Parliament in section 8 2 a is that inter-state trade should number be discriminated against. If the argument of the appellants is accepted there will have to be unending series of amendments to this section every time one State or other alters its rate of tax. it is next companytended that as section 8 2 a states that the tax payable shall be calculated at the rate applicable to the sale or purchase of such goods inside the appropriate State it is the rate that was prevalent when section 8 2 a was enacted that would be applicable and number any subsequent variation in this rate of tax. If this argument is accepted numberquestion of unconstitutional delegation of the Parliaments Legislative powers in favour of the State Legislatures would. arise at all. It would be remembered that the ground for attacking the companystitutionality of section 8 2 a is that Parliament if it is deemed to have permitted the application of rate of sales tax enacted by a State Legislature in respect of intra-state sales to inter- State sales also that would be impermissible delegation by Parliament of its legislative powers. We have already dealt with that question. All that is necessary new to add is that the rate applicable merely means the rate applicable at the relevant point of time and number the rate applicable when sect-on 8 2 a was enacted. The whole scheme of the Central Sales Tax Act is to adopt the machinery of the law relating to Sales Tax Acts of the various., States, in cases where those States happen to be the appropriate States as also the rates prescribed by those Acts. Under section 9 of the Act the tax payable by any dealer under the Central Sales Tax Act is to be levied and companylected by the Government of India in accordance with the provisions of sub-section 2 of that section. Under subsection 2 subject to the provisions of that Act and the rules made thereunder the authorities for the time being empowered to assess, reassess, companylect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, re- assess companylect and enforce payment of tax, including any. penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State and for this purpose they may, 35 2 exercise All or any of the powers they have under the general sales tax law of the State and the provisions of such law including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of an - business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, companypounding of offences and treatment of documents furnished by a dealer as companyfidential, shall apply accordingly. Though the tax is levied and companylected by the Government of India it is intended for the benefit of and is paid to the State whose officers assess and companylect the tax. The adoption of the machinery of and the rate of tax prevalent in the State is for the companyvenience of assessment as well as for the companyvenience of the parties so that they will number have to deal with two sets of officers and two sets of laws in addition to avoiding discrimination between intra-state and inter-State sales. The very purpose of the Act and its scheme would be defeated or at least companysiderably impeded if the rates of tax applicable in any State in respect of intrastate sales were number applicable to inter-State sales where that State is the appropriate State. We are satisfied that the rate applicable is the rate applicable at the relevant point of time. Only that interpretation is companysistent with the legislative policy that inter-State trade should number be discriminated against. It was also urged that sub-section IA of section 6 violates Article 14 in view of section 10 of the Central Sales Tax Amendment Act, 1969 which by section 3 intserted sub- section IA in section 6. Section 10 reads as follows Exemption from liability to pay tax in certain cases 1 where any sale of goods in the companyrse of inter-State trade or companymerce has been effcted during the period between the 10th day of November, 1964 and the 9th day of June, 1969, and the dealer effecting such sale has number companylected any tax under the principal Act on the ground that numbersuch tax companyld have been levied or companylected in respect of such sale or any portion, of the turnover relating to such sale and numbersuch tax companyld have been levied or companylected if the amendments made in the principal Act by this Act had number been made, then, numberwithstanding anything companytained in section 9 or the said amendments, the dealers shall number be liable to pay any tax under the principal Act, as amended by this Act, in respect of such sale or such part of the turnover relating to such sale. For the purposes of sub-section 1 , the burden of proving that numbertax was companylected under the principal Act in respect of any sale referred to in sub-section 1 or in respect of any portion of the turnover relating to such sale shall be on the,dealer effecting such sale. The argument is that while transactions between the 10th day of November, 1964, that is the date of judgment of this Court in Yaddalams case and the 9th day of June, 1969, that is the date on which the Central Sales Tax Amendment Ordinance, 1969, which preceded and was subsequently replaced by the Central Sales Tax Amendment Act, 1969, was promulgated, were exempted from the liability to pay tax, if in fact the tax in respect of these transactions had number been companylected by the dealer, a similar companycession had number been granted to dealers who were similarly situated, that is, who has number companylected any tax on their sales prior to 10-11-1964 and that such companycession should be available at least in the case of assessees who had number made any companylec- tion after the judgment of the Mysore High Court in Yaddalams case, that is, 23rd January, 1962. There are two answers to this submission. Firstly, the fact that transactions of sale prior to the period before 10th November 1964 or at least the period between 23-1-1962 and 10-1 1-64 were number given the same companycession as the transactions between 10-1 1-64 and 9-6-1969 does number mean that the latter companycession is unconstitutional. A companycession is number a matter of right. Where the Legislature taking into companysideration the hardships caused to a certain set of taxpayers gives them a certain companycession it does number mean that action is bad as another set of tax-payers similarly situated may number have been given a similar companycession. it would number be proper to strike down the provision of law giving Concession to the former on the ground that the latter are number given such companycession. Nor is it possible for this Court to direct that the latter set should be given a similar companycession. That would mean legislation by this Court and this Court has numberlegislative powers. We are number able to appreciate the suggestion on behalf of the appellants that section 6 1A read with section 10 of the Amendment Act should be declared unconstitutional in so far as it relates to the period between 23-1-62 and 10-11-64 or how that is permissible. That means that the tax leviable under section 6 1A cannot be levied during that period. That means even those who have companylected the tax would escape. Secondly in respect of that period also the dealers companycerned might very often be the same set of persons and there can therefore be numberquestion of discrimination. The next submission on behalf of the appellants was that sub-section 2A of section 8, which was amended at the same time as sub-section 1A was inserted in section 6, has the effect of impliedly repealing sub-section 1A of section 6. We are unable to accept this companytention. Firstly, such an intention cannot be imputed to Parliament which enacted both the provisions at the same time. Both the provisions should, therefore be so read as number to nullify the effect of the one or the other, indisputably, sub-s. A of section 6 was inserted in order to get over the decision of this Court in Yaddalams case. Its effect is to bring to tax inter- State sales which would number be liable to tax if they were intra-state sales. The fact that this subsection is also included in the number-obstante clause of sub-section 2A of section 8 does number mean by itself that the effect of sub- section 1A, of section 6 is obliterated. We will, therefore, have to look into the amended subs. 2A of section 8 and see what it means. The companytention of the appellants primarily depends upon the words the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax. What is urged is that transactions of purchase are generally exempt from the tax whenever the goods are taxable at the point of sale and similarly the transactions of sale are exempt from tax generally whenever the goods are taxable at the point of purchase. The untenability of this argument would be apparent from the fact that this means that all sales and purchases are generally exempt from tax. This argument proceeds on the basis that the sale and purchase are different transactions. The Legislature might for the sake of companyvenience or from other companysiderations of policy make either a sale or a purchase taxable in respect of the sale of any particular goods. That does number mean that the sale and purchase in respect of the same transactions are two different transactions. They are two facets of the same transactions, Therefore when sub-section 2A of section 8 uses the words the sale or, as the case may be, the purchase it is mere referring to the fact that State Sales Tax Acts make either the Sale or purchase taxable and number that where the sale is taxable the purchase is exempt from tax and where the purchase is taxable the sale is exempt from tax and therefore where one of them is exempt from tax in respect of an intra-state sale the inter-State sale is companypletely exempt from tax. We agree with the view of the Mysore High Court that the object of sub-section 2A of section 8 is to exempt transaction of sale of any goods if they are wholly exempt from the tax under the sales tax law of the appropriate State and make the said sale chargeable at lower rates where under the Sales Tax Act of the State the sale transactions are chargeable to tax at lower a rate and it is number companyrect to say that where goods are taxable at the point of purchase or sale the transaction is exempt from tax generally. A sales tax has necessarily to be levied on a sale or purchase and ibis argument implies that all sales are exempt from tax. The plain meaning of the said sub- section is that if under the sales tax law of the appropriate State numbertax is levied either at the point of sale or at the point of purchase at any stage the tax under the Act shall be nil. Reading section 6 1A and section 8 2A together along with the Explanation the companyclusion deducible would be this where the intra-state sales of certain goods are liable to tax, even though only at one point, whether of purchase or of sale, a subsequent inter- State sale of the same companymodity is liable to tax, but where that companymodity is number liable to tax at all if it were an intrastate sale the inter-State sale of that companymodity is also exempt from tax. Where an intrastate sale of a particular companymodity is taxable at a lower rate than 3 per cent then the tax on the interState sale of that companymodity will be at that lower- rate. A sale or purchase of any goods shall number be exempt from tax in respect of interState sales of those companymodities if as an intra-state sale the purchase or sale of those companymodities is exempt only in specific circumstances or under specified companyditions or is leviable on the sale or purchase at specified stages. On this interpretation section 6 1A as well as section 8 2A can stand together. Nor are we able to accept the companytention that the Sales Tax officers had numberpower to rectify the assessment orders after the companying into force of the Central Sales Tax Amendment Act 1969 on the ground that there was numbererror apparent on the face of the record. This argument is based on the fact that in two decisions in Mysore Silk House v. State of Mysore 1 and in Pierce Leslie Co. v. State of Mysore SRTP No. 63-64 of 1963 the Mysore High Court had taken the view that the inter-State transactions were number liable to tax and that view had been upheld by Yaddalams case and this Court in its decision in Josephs, case 2 did number companysider the effect of sub-s. 2A of section 8 and therefore when there is such difference of opinion it cannot be said to, be a case of an error on the face of the record. It is incorrect to say that because this Court had number, in Josephs case, companysidered the argument number put forward regarding the companyflict between section 6 1A and section 8 2A there was numbererror apparent on the face of the record. Clearly when it said that the effect of the Central Sales Tax Amendment Act, 1969 is to supersede the judgment of this Court in Yaddalams case the Sales Tax Authorities were undoubtedly entitled to rectify their earlier rectification order which was made companysequent on the decision in Yaddalams case. After the Central Sales Tax Amendment Act. 1969 and the decision of this Courting Josephs case there was numberquestion about the error number being apparent on the face of the record. This attack on the rectification order, therefore. fails.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1184 to 1186 and 1198 to 1200 of 1970 From the Judgment Order dated the 25th July, 1969 and 25th September, 1969 of the Andhra Pradesh High Court in Referred Case No. 39 of 1965 and 10 of 1966 respectively. C. Manchanda, B. B. Ahuja and S. P. Nayar for the Appellant. V. Gupte, Anwarulla Pasha, J. B. Dadachanji, A. Subba Rao and Mrs. Anjali K. Varnia, for the Respondent. The Judgment of the Court was delivered by KHANNA, J.-The short question which arises for determination in these six civil appeals Nos. 1184 to 1186 and 1198 to 1200 of 1970 which have been filed on certificate by the Commissioner of Incometax against the judgment of the Andhra Pradesh High Court is whether, on the facts of the case, the sum of Rs. 1,00,000/- received by the assesses from the Trustees of Princess Niloufer Trust companystituted income under the Indian Income-tax Act, 1922 hereinafter referred to as the Act and if so, whether the assesses was entitled to exemption from tax in respect of the income under the terms of the agreement entered into with the Government of India on October 8, 1949. The High Court to which the above question was referred under section 66 1 of the Act held that though the payment of Rs. 1,00,000/- per year was income in the hand of the assessee, he was entitled to exemption from tax thereon under the terms of agreement dated October 8, 1949. The matter relates to the assessment of the income for the years 1952-53,1953-54 and 1954-55 of Nizam Mir Osman Ali Khan Bahadur, ,who was the Ruler of Hyderabad State prior to its integration with the Union of India. A large number of questions arose during the companyrse of the assessment, but we are numberlonger companycerned with them. Indeed, most of the questions were decided in the light of the decision of this Court in respect of the assessment of this very assessee for the previous years. The decision of this Court is reported in 59 ITR 666. We may number set out the facts giving rise to the question reproduced above Prince Muazzam Jah Bahadur is the second son of the assessee. The Prince was married to Princess Niloufer in Nice France on November 12, 1931 according to Muslim rites. On October 8, 1949 the assessee made a settlement of Rs. 30,00,000 by transferring that amount to a trust created on that day for the benefit of Princess Niloufer. The assessee, Sir Sultan Ahmed and Shavax Ardeshir Lal, a numberinee of the Government of India, were the three trustees appointed under the Trust Deed. On the same day an agreement was entered into between the Government of India, the assessee, as the settlor of the trust, and the three trustees for the deposit of Rs. 30,00,000 with the Government of India. The amount deposited was to carry interest at the rate of Re. 1 per cent per annum. Clauses 2, 3 and 4 of the agreement were as under The Government of India shall out of its revenue pay to the Trustees interest on the said sum of Rs. 30,00,000 Rupees Thirty Lacs at the rate of one per cent per annum free of income-tax, super-tax and all, other taxes dues, duties and other assessments whatever from the date from which the said sum of Rs. 30,00,000 Rupees Thirty Lacs shall be deposited by the Trustees with the Government of India until the said sum of Rs. 30,00,000 Rupees Thirty Lacs shall be wholly paid out by the Govt. of India in accordance with the provisions of these presents PROVIDED HOWEVER that if and when the Government of India shall pay to the Trustees any sum of money out of the companypus of the sum of Rs.30,00,000 Rupees thirty lacs in accordance with the provisions hereof, interest shall cease to run on the sums so paid from the date on which the Government of India shall pay the same to the Trustees and thereupon interest shall run only upon the balance of the said sum of Rs. 30,00,000 Rupees thirty lacs for the time being remaining in the hands of the Government of India. The Government of India shall out of the companypus of Jr the said sum of Rs. 30,00,000 Rupees thirty lacs pay to the Trustees untill the said companypus is exhausted such sum every year as together with the interest accured due on the said sum of Rs. 30,00,000 Rupees thirty lacs or on the balance thereof for the time being remaining with the Government of India will in all makeup the sum of Rs. 1,00,000 Rupees one lac per annum, the first, of such payments to be made on the 1st day of November 1949 and each of the subsequent payments to be made on the 1st day of October of each and every year thereafter. The Government of India hereby declares and agrees that the interest payable on the security of these presents shall be free from income-tax, super-tax and all other taxes, dues, duties, and assessments and that accordingly the Government of India shall number at anytime assess or levy on the Settlor or the Trustees or any of them or on any of the beneficiaries under the said Deed of Trust any income-tax, supertax or other taxes dues, duties or assessments in respect of any income or companypus of the said sum of Rs. 30,00,000 Rupees thirty lacs so deposited or any part thereof shall number at any time be included in the income of the beneficiaries under the provisions of the Indian Income-tax Act or any other Act relating to taxation on the income, gains and profits of any persons in India PROVIDED HOWEVER that if numberwithstanding the provisions there in above companytained any such tax, dues, duties or assessments shall be charged or levied on either the Settlor or the Trustees or the beneficiaries under the said Deed of Trust or any of them in respect of any income or companypus of the said sum of Rs. 30,00,000 Rupees Thirty lacs so deposited or any part thereof or if any part of such income or companypus be included in the total income of any of them for companyputing his or her total income for the purpose of assessment of his or her income, gains or profits by virtue of the provisions of the Indian Income-tax Act or of any other enactment of law for the time being in force in that behalf in India, then the Government of India shall forthwith refund, reimburse and pay to such person the amount of such tax, dues, duties or assessments charged or levied on him or her and or the amount of additional tax, dues, duties or assessment which shall have been charged or levied on him or her by reason or any part of the said income or companypus being included in the total income of such person for the purpose of as- sessing his or her total income, gains or profits under the provisions of the Indian Income-tax Act or any other law or enactment for the time being in force in that behalf in India. According to the trust deed, the settlor, who was possessed of a sum of Rs. 30,00,000, out of love and affection for his daughter in-law Princess Niloufer was desirous of making a settlement of the said amount and for that purpose he had transferred and handed over the amount to the trustees. The Turst deed referred to the agreement which had been on that day entered into with the Government of India. The trustees were required to deposit the said sum of Rs. 30,00,000 forthwith with the Government of India in accordance with the agreement with the Government. The trustees were to hold the trust fund in accordance with the directions companytained in the different sub-clauses of clause 2 of the trust deed. Sub-clause a required the deposit of the amount with the Government of India in accordance with the agreement entered into on that day with the Government. Sub-clause b of the trust deed was as under To pay the net interest of the Trust Fund or the balance thereof for the time being as and when recovered from the Government of India to the said Princess free of Income-tax, Super-tax and all other taxes whatsoever, until her death or remarriage, whichever event shall happen first PROVIDED THAT in the event of the said Prince divorcing the said Princess it shall be open. to the Trustees to pay the net interest of the Trust Fund or of the balance thereof for the time being to said Princess until her death or remarriage, whichever event shall tak e place. first, if the Trustees are of the opinion that the divorce was number due to any act or default on the part of the said Princess AND THE de- cision of the Trustees in this respect shall be final and binding on all persons claiming under this clause and shall number be questioned in any Court of Law or otherwise howsoever. Sub-clause c required the trustees to recover and receive from the Government of India and to pay Princess Niloufer out of the companypus of the trust fund as long as the same was available such sum every year as together with the net interest of trust fund would in all makeup the sum of Rs. 1,00,000 per annum. The first payment was to be made on November 1, 1949 and each of the subsequent payments were to be made on the first day of October in each year. The payment was to be made to the Princess free of income-tax, super-tax and all other taxes. The Princess was entitled to that sum even in the event of the Prince divorcing the said Princess provided the divorce in the opinion of the trustees was number due to any act or default on her part. The amount was to be paid to the Princess until her death or remarriage whichever event was to occur first. In numbercase was the Princess to receive any sum in excess of Rs. 1,00,000 in a year. Subclause d required that on the death of the Princess, the companypus of the trust fund was to be transferred to her issues from Prince Muazzam Jah Bahadur in accordance with the Muslim law of succession. Sub-clause e read as under Subject to the provisions of sub-clause a , b c and d hereof on and after the death of the said Princess to transfer and hand over the companypus of the Trust Fund or the balance thereof then remaining in the hands of the Trustees, as the case may be, to Settlor, if he be then living, and in the event of the Settlor predeceasing the said Princess to transfer and hand over the companypus of the said Fund or the balance thereof then remaining in the hands of Trustees as the case may be to the Nizam of Hyderabad living at that time. Unhappy differences arose between Prince Muazzam Jah Bahadur and Princess Niloufer. The husband and wife companysequently started living separately. No child was born, to Princess Niloufer by marriage with the Prince. On September 18- 1952 two documents were executed. One of those documents related to the dissolution of the marriage of Prince Muazzam Jah Bahadur and Princess Niloufer. The above dissolution of the marriage in the opinion of the three trustees, was number due to any act or default on the part of Princess Niloufer. The other document was a deed of release. The parties who executed the deed of release were Princess Niloufer of the first part, the assesee of the second part, Prince Mauzzam Jah Bahadur of the third part and the three trustees appointed under the trust deed dated October 8, 1949 in respect of the sum of Rs. 30,00,000 principally for the benefit of Princess Niloufer of the fourth part. The trustees appointed by a trust deed in respect of a trust created by the assessee on October 8, 1949 for a sum of Rs. one crore cithty two lakhs principally for the benefit of Prince Muazzam Jah Bahadur were also parties to this deed of release. By this release deed Princess Niloufer on receipt of Rs. 10,00,000 from the asseseee released, assigned and transferred her rights, title and interest in Princess Niloufer Trust Fund in favour of the assessee and it was stated that he would be entitled to receive the amounts to which Princess Niloufer was entitled free of Incometax, super-tax and other taxes. Clauses 1, 2 and 3 of the release deed read as under That in pursuance of the said agreement between the parties and in companysideration of the premises and of the said sum of Rs. 10,00,000 Rupees ten lacs paid by His Exalted Highness to the Princess on or before the execution of these presents the receipt whereof the Princess both hereby admit and acknowledge and of and from the same both hereby acquit release exonerate and discharge His Exalted Highness for every she the Princess both hereby release assign and transfer unto His Exalted Highness, a11 that the net interest of Princess Niloufers Trust Fund or of the balance thereof for the time being which is payable to the Princess free of income-tax, super-tax and all other taxes whatsoever until her death or remarriage whichever event shall happen first as provided in clause 2 b of Princess Niloufors Trust Deed and which net interest may accrue or arise or become payable after the date of these presents until her death or remarriage, whichever event shall happen first, from or in respect of the said Princess Niloufers Trust Fund together with full power to deman d sue for and give discharges to Princess Niloufors Trustees for the said net interest of Princess Niloufers Trust Fund AND ALL the estate right title interest proper claim and demand of the Princess in to and upon the said net interest as aforesaid to HAVE RECEIVE AND TAKE the same unto His Exalted Highness absolutely TO THE EXTENT that His Exalted Highness shall be entitled to receive from Princess Niloufers Trustees the said net interest of Princess Niloufers Trust Fund free of income-tax and super-tax and all other taxes whatsoever which the Princess would have received but for the present assignment. 45 9 In further pursuance of the said agreement and for the companysideration aforesaid the Princess doth hereby release assign and transfer unto His Exalted Highness the sums which the Princess is entitled to receive under clause 2 c of Princess Niloufers Trust Deed being such sum payable to her by Princess Niloufers Trustees out of the Corpus of Princess Niloufers Trust Fund every year as together with the net interest of Princess Niloufers Trust Fund payable to her under clause 2 b thereof will in all make up the sum of Rs. 1,00,000 Rupees one lac per annum and which sum of Rs. 1,00,000 payable to her free of income-tax, super-tax, and all other taxes whatsoever and which sums may accrue or arise or become payable after the date of these presents from or in respect of Princess Niloufers Trust Fund Princess Niloufers Trustees do hereby companyenant with His Exalted Highness that they the Princess Niloufers Trustees shall until the death or remarriage of the Princess whichever event shall happen first, pay to His Exalted Highness the net interst of Princess Niloufers Trust Fund or of the balance thereof for the time being as and when recovered from the Government of India free of income-tax, super-tax and all other taxes whatsoever as also such sum every year out of the companypus of Princess Niloufers Trust Fund as together with the net interest of Princess Niloufers Trust Fund as aforesaid will in all make up the sum of Rs. 1,00,000 Rupees one lac per annum TO THE EXTENT that the whole of the said sum of Rs. 1,00,000 Rupees one lac which the Princess would have received under clauses 2 b and 2 c of the said Princess Niloufers Trust Deed but for the present assignment shall be paid to His Exalted Highness free of income-tax, super-tax and all other taxes whatsoever so long as the same shall be available. Pursuant to the above release deed, the sum of Rs. 1,00,000 received from the Government of India under agreement dated October 8, 1949 which used to be paid by the trustees to Princess Niloufer, was paid during each of the three years with which we are companycerned to the assessee. The income-tax officer held that the receipt of Rs. 1,00,000 by the assessee in each year from the trustees companystituted his income and he was liable to pay tax thereon. The order of the income-tax officer was affirmed on appeal by the Appellate Assistant Commissioner as well as by the Tribunal. On application filed under section 66 1 of the Act the following question, along with some other questions, was referred to the High Court . Whether on the facts of the case, the sum of Rs. 1,00,000 received by the assessee from the Trustees of Princess Niloufer Trust was liable as income under the income Tax Act and if so, whether the assessee was entitled to exemption from tax of the income under the terms of the Agreement entered into with the Government of India on 8/10/1949? The High Court held, as already mentioned earlier, that the amounts of Rs. 1,00,000 received by the assessee in each of the three years in pursuance of the release deed dated September 18, 1955 companysituted his income. It was, however, held that the assessee was entitled to exemption from payment of tax in respect of the amount of Rs. 1,00,000 because of the agreement dated October 8, 1949. In the opinion, of the High Court the assessee stood in the shoes of Princess Niloufer who was the original beneficiary under the trust deed and become entitled to all the benefits to which the Princess was entitled. Mr. Manchanda on behalf of the appellant has assailed the judgment of the High Court and has companytended that the exemption from payment of tax in respect of the sum of Rs. 1,00,000 received under the trust deed companyld be availed of by Princess Niloufer. The assessee, who was a transferee of the rights of Princess Niloufers under the trust deed, companyld number get the benefit of that exemption. Normally an amount received as income is exigible to tax, and in case the assessee seeks exemption from the payment of tax in respect of that income, the onus lies upon him. The assessee, according to the learned companynsel, has failed to discharge that onus. As against the above, Mr. Gupte on behalf of the assessee-respondent has companytended that a fair reading of the agreement dated October 8, 1949 goes to show that the benefit of exemption from payment of tax in respect of the sum of Rs. 1,00,000 was number companyfined to Princess Niloufer only but companyld also be availed of by the assessee. After hearing the learned companynsel for the parties at length, we are of the opinion that the companytention of Mr. Gupte is well founded. We have set out above the material part of agreement dated October 8, 1949 which was entered into by the Government of India, the assessee and the three trustees, and it would appear therefrom that an arrangement was arrived at between the three parties in respect of the amount of Rs. 30,00,000. It was agreed that the trustees would deposit that amount with the Government of India. The Government of India for its part agreed to pay interest on that amount at the rate of Re. 1 per cent per annum free of income-tax and other taxes. The Government of India also agreed to pay out of the companypus of Rs. 30,00,000 such sum every year as together with interest accrued due on the said sum of Rs. 30,00,000 or on the balance sum thereof would in all make up the sum of Rs. 1,00,000. It was further agreed that the Government of India would number at any time assess or levy on the settlor or the trustees or any of the beneficiaries under the deed of trust any income-tax, super-tax or other taxes in respect of the income or companypus of the said sum of Rs. 30,00,000 or part thereof. The rate of interest prevailing at the time of the agreement on Government and gilt-edged securities was admittedly 3 1/2 to 4 per cent per annum. In agreeing to grant exemption from payment of tax in respect of the amount payable under the agreement, the Government was apparently influenced by the companysideration that it was paying interest at the rate of Re. 1 per cent instead of the prevailing rate of Rs. 3 1/2 to 4 per cent. The exemption regarding tax appears to have companystituted the quid pro quo for the saving made by the Government of India in the matter of payment of interest. At the time the agreement was entered into, the beneficiary under the deed of trust was Princess Niloufer. Question, however, arises whether the benefit of that exemption was restricted to Princess Niloifer or whether the assessee, who stepped into the shoes of Princess Niloufer under the deed of release, companyld also avail of that benefit. So far as this aspect is companycerned, we are of the opinion that a fair reading of the agreement shows that the basic scheme of the agreement was that the payment of Rs. 1,00,000 under the agreement would be exempted from the payment of tax. in the opening words of clause 4 of the agreement, the Government of India declared and agreed unequivocally that the interest payable on the security of these presents shall be free from income-tax, super-tax and all other taxes, dues, duties and assessments. There is numberhing in the agreement that the Government wanted to show a special favour to Princess Niloufer personally and that the same would have been withheld in case the person entitled to receive Rs. 1,00,000 was number the princess but her father-in-law. The companysideration which appears to have weighed with the Government of India in agreeing to grant exemption in the matter of tax was the deposit of Rs. 30,00,000 with the Government. That companysideration held equally good whether the person to whom the payment of Rs. 1,00,000 was made by the trustees was Princess Niloufer or the assessee. It was also agreed under the agreement that the Government of India shall number at any time assess or levy on the settlor or the trustees or any of the beneficiaries under the said trust deed any incometax, super-tax or other tax, dues, duties or assessments. There is numberhing in respect of any income or companypus of the said sum of Rs. 30,00,000 so deposited or any part thereof. Reference to the settlor, trustees or beneficiaries in the above passage shows that the exemption was of a general and companyprehensive nature and was number restricted to Princess Niloufer alone. The said reference would also number detract from the dominant intention of the parties manifested in the agreement that the payment of Rs. 1,00,000 was to be free of tax. It is number necessary to express opinion on the point as to whether the assessee to whom under clause e of the trust deed the companypus of trust fund or the balance thereof then remaining in the hands of the trustees was to be paid on the death of Princess Niloufer was a beneficiary under the trust. The assessee in any case as the settlor of the trust. The fact that he became entitled to receive Rs. 1,00,000 per annum because of the release deed would number affect the status of the assessee as the settlor. The present is number a case wherein the release deed was executed in favour of a stranger but, on the companytrary, the release deed was executed in favour of the settlor and his status as such was number obliterated by the fact that a release deed had also been executed in his favour. The agreement which the Government entered into with the settlor and the trustees expressely granted exemption in the matter of payment of tax in respect of the said sum of Rs. 1,00,000 to the settlor also. The agreement makes it clear that in numberevent were the settlor, the trustees and the beneficiaries to be taxed in respect of the payment of Rs. 1,00,000. It has been argued on behalf of the appellant that the question of the grant of exemption on the payment of tax to the assessee as a settlor of the trust companyld number arise because as a result of the creation of the trust, the settlor got divested of the ownership of the amount of Rs. 30,00,000. Reference in this companynection is made to the recitals in the trust deed to the effect that the settlor had transferred and handed over to the trustees the amount of Rs. 30,00,000. We are number impressed by this argument. The Government of India was aware of the above recitals in the trust deed at the time it entered into the agreement dated October 8, 1949. The companyy of the trust deed was made an annexure of the agreement and there was a reference to the terms of the trust deed in the agreement. In spite of the knowledge that the settlor had transferred the amount of Rs. 30,00,000 the Government of India agreed to grant an exemption to the settlor in respect of any income from the companypus of the said amount of Rs. 30,00,000 or part thereof. It would follow from the above that the intention of the parties was that the settlor was to be exempt in any case from payment of tax in respect of the income from that amount and that in the event of the assessee becoming entitled to the beneficial interest under the trust deed, the exemption from payment of tax would be available to him. Argument was also advanced by Mr. Manchanda that Princess Niloufer, who was the beneficiary under the trust, companyld number transfer her beneficial interest in favour of the assessee. This companytention cannot be accepted in view of section 58 of the Indian Trusts Act, 1882 Act 2 of 1882 , according to which the beneficiary if companypetent to companytract, may transfer, his interest, but subject to the law for the time being in force as to the circumstances and extent in and to which he may dispose of such interest. The present case is number companyered by the proviso to that section. The proviso prevents a married woman from depriving herself during her marriage of her beneficial interest in property which is transferred or bequeathed for her benefit. As would appear from the resume of facts given above, Princess Niloufer transferred her interest number during the subsistence of her marriage but at the time of the dissolution of her marriage. It may also be mentioned that during the three years with which we are companycerned, the Government has acted upon agreement dated October 8, 1949 even though the beneficial interest tinder the trust deed had been transferred by Princess Niloufer to the assessee. Despite that transfer the Government paid the amount of Rs. 1,00,000 under the agreement. The payment of Rs. 1,00,000 under the agreement and the exception in the matter of tax were linked to-ether. It would certainly appear anomalous that the Government should keep the companypus of the trust fund in deposit with itself on a numberinal rate of interest of Re. 1 per cent per annum and, at the same time decline to give the benefit of other part of the agreement which relates to the exemption in respect of payment of tax. it is true that there is numberequity about tax. The above dictum has a relevance when the matter relates to giving effect to the provisions of tax law. The dictum would number, however, be attracted when the question before the companyrt as in the present case is the companystruction of an agreement and finding out the intention of the parties thereto as manifested by its terms. What we are here essentially companycerned with is whether the parties to the agreement intended or it was ever within their companytemplation that the settlor should pay tax on the amount of Rs. 1,00,000 in case of the beneficial interest under the trust deed devolved upon him, even though the companypus of the trust fund remained in deposit with the Government on an interest of Re. 1 per cent per annum. Mr. Manchanda has referred to the case of Commissioner of Incometax Gujarat II v. B. M. Kharwar 1 wherein it has been laid down that the taxing authorities are number entitled, in determining whether a receipt is liable to be taxed, to ignore the legal character of the transaction which is the source of the receipt and to proceed on what they regard as the substance of the matter. The taxing authority is entitled, and is indeed bound, to determine the true legal relation resulting from a transaction. If the parties have chosen to companyceal by a device the legal relation, it is open to the taxing authorities to unravel the device and to determine the true character of the relationship. But the legal effect of a transaction cannot be displaced by probing into the substance of the transaction. This principle applies alike to cases in which the legal relation is recorded in a formal document, and to cases where it has to be gathered from evidence oral and documentary-and companyduct of the parties to the transaction. There can, in our opinion, be hardly any dispute so far as the above proposition is companycerned. The appellant, however, cannot derive assistance from it. The answer to the question with which we are companycerned in the present case depends upon the terms of agreement dated October 8, 1949. In case we find that the payment of Rs. 1,00,000 in each of the three years is companyered by the above agreement, the exemption granted thereby cannot be withheld from the assessee.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2248 2303 of 1968. From the Judgment order dated the 30th August, 1968 of the Delhi High Court Himachal Bench , Simla in Regular First Appeals No. 21 of 1967 . T. Desai, A. Subba Rao, Naunmt Lal and Lalita Kohli, for the appellant In CA No. 2248/68 . K. Sen, M. C. Bhandare and Rameshwar Nath, for respondents Nos. 1 2 In CA No. 2248/68 . P. Singh, for respondents Nos. 4, 6-11 In CA. No. 2248/68 . K. Sen and M. C. Bhandare, for the appellant In CA No. 2303/68 T. Desai, A. Subba Rao, Naunit Lal and Lalita Kohli, for- respondents Nos. 1, 2 4-9 In CA. No. 2303/68 . The Judgment of the Court was delivered by KRISHNA IYER, J.-The principal appeal, C. A. 2303 of 1968, has arrived in this Court by certificates, under Art. 133 1 a of the Constitution, granted by the High Court of Delhi. The other, C.A. 2248 of 1968 has been extinguished by efflux of time and even otherwise is number pressed, since companynsel companycedes the decision to be just . The subject matter is large, the rounds of litigation many, the arguments long and yet the issues of law and disputes of fact are few although their ultimate decision where justice and law have, we think, companye to companydial terms, has been reached after uneasy hours but with an easy companyscience. Hopefully, we avoid burdening the judgment with heavy historical material much of which has been. wisely jettisoned to help turn the forensic focus on the three- pronged attack on the decree made by companynsel for the appellant Shri S. T. Desai. Even so, the sequence and significance of events leading up to the current companytroversy, sprawling across India and Pakistan and surviving for nearly three decades number, may be unfolded with advantage. Now to the story. Lahore was the venue of the earlier forensic episodes. The legal saga formally began in undivided India when the 1st appellant, Kuthalia, the owner of Sedous Hotel, agreed to sell it on October 2, 1946 for a price of Rs. 52,75,000/- to the 1st respondent Oberoi, who became a name in the hotel industry. An earnest money of Rs. 5,00,0001- was advanced and the time fixed for companypletion of the sale was January 20, 1947. On alleged breach of companytract, Civil Suit No. 514/61 of 1946 was filed in the Court of the Senior Sub-Judge, Lahore, by the 1st respondent Oberoi as the 1st plaintiff and the Associated Hotels of India Ltd., as the 2nd plaintiff, for recovery of the earnest money with interest. A decree in favour of the 1st plaintiff was made in the sum of Rs. 5,08,333-5-4 with future interest and companyts. So far as the 2nd plaintiff was companycerned the reason for whose presence as party is obscure, if number oblique- the suit was dismissed. An appeal was successfully carried by the present appellant to the High Court of West Pakistan in Lahore since, by the time the trial Courts decree was made the Great Divide had happened with all the blood and tears of political history and traumatic effects on the law and life in both the companyntries. The uprooting and overturning of human masses led to evacuee legislation on both sides of the frontiers and the companymon case of the parties is that both of them are evacuees under the relevant Pakistani laws. The Lahore High Court, on 24th November, 1949 dismissed the suit in toto, but, undaunted, Shri Oberoi moved the Federal Court of Pakistan which restored the decree of the trial Court on 21-12-53 in reversal of the High Courts decree. Thus the final Court in Pakistan at the relevant time granted a decree in favour of the 1st respondent, against the appellant, and that stands. This landmark event closes the chapter of substantive rights and here begins a set of encounters in realising the fruits of the decree. The crescendo of this unique series is the persuasive but opposing submissions we have listened to. Two crucial factors gave a dramatic turn to the companyrse of the companyflict viz., evacuee legislation and the deposit of Rs. 3,00,000/- in Court, in companynection with the decree, pending the High Court appeal. A brief narration of those matters is number necessary to follow the development of the dispute before us. In the High Court, stay of execution was sought and granted on companydition of deposit of Rs. 3,00,000/- on July, 16 1949 and furnishing of security for the balance. Pursuant thereto, the sum was deposited by the judgment- debtor into the executing Court, but the decree holder, on objection by the former, was number allowed to withdraw the money before disposal of the appeal. All this took place in July, 1949. Thus a key fact, whatever its impact, emerges that the judgment-debtor appellant had put into Court this substantial sum but he had also prevented the respondent getting instant benefit of it. The social disasters of the political surgery already adverted to were alleviated by legislative bandaging of economic wounds through laws to rehabilitate evacuees on either side. As part of this package, the Pakistan Administration of Evacuee Property Ordinance, 1949 was promulgated. This legislation defines an evacuee and, as stated earlier, the companytestants in this case are both admittedly evacuees. Section 2 3 of the Pakistan Ordinance defines Evacue propertyand one of the points in companytroversy before us is as to whether the decree passed by the Federal Court of Pakistan for the sum of around Rs. 5,00,0001- or the deposit of Rs. 3,00,000/- in companynection with that decree, is evacuee property. We may have to dilate on the scheme and provisions of this Pakistan Ordinance a little later, but it is sufficient to state, at Custodians of Evacuee Property and invests them with certain powers. Right away we may read s.6 1 of the Ordinance since its effect has impact on one of the important companytentions urged by Mr. Desai 6 1 All evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March, 1947. In simplistic terms, if we may here anticipate Shri Desais submission, there was a statutory vesting of the decree obtained by Oberoi in the Custodian and numberrights accruing from that decree companyld be claimed by the former. The foundation of the present suit thus companylapsed, according to him. We will investigate the merits of this knock-out blow to the plaintiffs case in due companyrse. Two other legislations, the Transfer of Evacuee Deposit Act, 1954 and the Pakistan Administration of Evacuee Deposit Act, 1954 and the Pakistan Administration of Evacuee Property Act, 1957 loom large as the legal chronicle companytinues. The former primarily provides inter alia for transfer of companyrt deposits of evacuees by each companyntry to the other and the latter saves some items from the all-embracing of operation evacuee property. More later. Anyway, the present appellant, when be won in the High Court, moved for refund of the deposit by his application of December 1, 1949. Follow-up by way of an order for refund was natural the Court having dismissed the suit. But the Court tacked oh a further direction that intimation be given to the Custodian to take appropriate proceedings, if he thought fit. Thus alerted, the officer hastened. Hardly had 4 days passed when the Custodian moved the High Court for interdicting the return of the amount on the score that the entitled party was an evacuee under the aforesaid Ordinance of 1949. The High Court thereupon stayed refund of the deposit to the appellant by an order dated December 20, 1949. The sequel shows that this amount has eluded the hands of both parties up till number, an extralegal misfortune which has a bearing on the ultimate relief claimable in this appeal. To resume the fluctuating fortunes of the deposit, the main apple of discord. The Custodians petition of 20th December, 1949 included a prayer for payment out to him of the amount in deposit, as, according to him, it belonged to Kuthalia the defendant an evacuee. However, it was kept pending on numberice having been ordered to the depositor. But when the suit by Oberoi was decreed by the Federal Court, the right to refund put forward by the defendant disappeared. Even so, since both parties were evacuees the Rehabilitation Commissioner sent a request to the High Court in these terms From S. JAFRI ESQUIRE C.S.P. REHABILITATION COMMISSIONER AND SECRETARY TO GOVERNMENT PUNJAB, REHABILITATION DEPARTMENT. To THE REGISTRAR HIGH COURT OF JUDICATURE PUNJAB LAHORE Dated Lahore the 4th January, 1954 Subject-Hedous Hotel Lahore Deposit of Rs. 3 lacs in the High Court of Lahore. MEMORANDUM A sum of Rs. 3,00,000 was deposited by R.B. Jodha Mal of Hoshiarpur, in the High Court Lahore for the benefit of the Associated Hotel of India Limited. A decree was passed by the Senior Civil Judge Lahore in favour of the Associated Hotel of India Limited against R.B. Jodha Mal for a sum of Rs. 5,08,333-5-4. The deposit of Rs. 3,00,000 was made in part payment of the above decree. R.B. Jodha Mal preferred an appeal in the High Court against the order of the Civil Judge. This appeal was accepted on 24th November, 1949. Against this decree of the High Court the Associated Hotel of India Limited, filed an appeal in the Federal Court of Pakistan. This appeal was accepted by the Federal Court on 21st of December, 1953. Since both the companytesting parties are evacuees the amount in question can number be paid until instructions from Government of Pakistan are received in the matter. It is therefore requested that the amount of Rs. 3,00,000 may please be deposited in the Treasury under the detailed head. Sale proceeds of Immovable Property and debts due to Evacuee etc. Under the head. P. Deposits and Advances Part 11 Deposits number bearing interest Departmental and Judicial Deposits Civil Deposits, Deposits on account of Evacuee Estates in the accounts of the Deputy Rehabilitation Commissioner Rent and Repairs , Lahore under intimation to this office. Sd. GHULAM SHABBIR, Deputy Secretary Rehabilitation, for Rehabilitation Commissioner and Secretary to Government Punjab Rehabilitation Department. No. U. Reh. Ace. G/333, Dated Lahore 4th January, 1954. Thus the amount remained frozen. A companyple of days later January 6 the defendant Kuthalia moved the High Court at Lahore number for refund of the deposit-which he companyld number ask for in view of the Federal Court decree-but praying that the aforesaid amount of Rs. 3,00,000/- may be directed to be adjusted towards satisfaction of the decree as originally intended and the request for refund be treated as withdrawn and the objections filed by the Deputy Custodian be dismissed. Anyway, the lid was put on this part of the lis bearing on the Custodians claim to keep the deposit in Pakistan by the Supreme Court of Pakistan, holding to the companytrary. To appreciate this decision of the Supreme Court reference has to be made to s-4 of the Pakistan Ordinance I of 1954 which reincarnated as Act VI of 1954 with the same name relating to transfer of deposits. This enactment had its companynterpart in India. As a result of political understanding reached between the two companyntries, Court and other deposits were agreed to be transferred to the respective companyntries into which the evacuees entitled to them had moved. On the strength of this law Shri Oberoi the decreeholder, moved the High Court at Lahore for transfer of the deposit of Rs. 3,00,000/- together with the records relating thereto to such officer or authority in India as the Central Government has by order specified in this behalf or specifies in future as the provisions of the said Act fully applies to it. It may incidentally be mentioned since it has companysiderable importance at a later stage, that in this application Shri Oberoi had categorically asserted That Rai Bahadur Mohan Singh, decree-holder submits that judgment-debtor had numberinterest in the. said sum and the same is lying deposited with this Honble Court for the payment to him, as it was deposited for the due performance of such decree as may ultimately be passed in his favour. The said decree-holder companytends that numberother person has any right or interest in the said amount and that the same is lying with this Court in trust for payment to him. The judgment-debtor has accepted this position, and claims numberright or interest in the said amount. Although the High Court declined to uphold the claim for transfer of the deposit under Act. VI of 1954, on being approached by the decree-holder the matter received different treatment at the bands of the Supreme Court. Shri Oberois companytention was That the Federal Court of Pakistan having passed a decree in favour of the petitioner and the sum deposited being for the satisfaction of the decretal amount this Honble Court has erred in holding that the petitioner had numberinterest in the deposit. it was neither within its jurisdiction to decide the same number its decision on that point is legal and companyrect. Cornelius C. J., speaking for the Court, overruled the pretended claim of the 2nd plaintiff, the Associated Hotels of India Ltd., rejected the Custodians objections and ruled . . . It would appear that prima facie the principal and direct interest in the money is that of Rai Bahadur Jodha Mal. The money having been deposited in relation to a decree of the Court, for the purpose of being applied to the satisfaction of that decree, and such decree standing exclusively in the name of Rai Bahadur Mohan Singha Oberoi, he might appear to have a secondary and indirect interest in the money In short, the highest companyrt directed the transfer of the deposit, subject to an innocuous finding by the High Court about both companytestants being evacuees. In fulfilment of the Supreme Courts remand the High Court of West Pakistan passed final orders in these peremptory terms We, therefore, have numberhesitation in holding that both Rai Bahadur Jodha Mal Kuthalia, the depositor, and Rai Bahadur Mohan Singh Oberoi, for whose benefit the deposit was made are within the purview of section 4 of the Transfer of Evacuee, Deposits Act, 1954, evacuees and direct that the deposit be sent to the Custodian of Evacuee Property, along with the record of the case, for transmission to such an authorised officer or authority in India as the Central Government has specified in this behalf for disposal in accordance with the law. In the sorry scheme of affairs this direction remained a dead letter. Courts can only companymand, but if Governments ignore them, the finer flame of the rule of law is puffed out and the darker forces of rule by executive diktat choke the life breath of the law. Anyway, the Supreme Courts order numberwithstanding, the deposit of Rs. 3,00,000/lies idle still, after a lapse of 14 years, in Pakistan Treasury. The scene number shifts to India. both the dramatis personae move to India and, perhaps make good. Here is a decree paralysed by circumstances beyond the companytrol of the parties. The decree-holder Oberoi, after taking legal advice at the highest level, moved the High Court of Punjab at Chandigarh for levying execution of his decree, which, by passage of time, had added adipose by way of interest and remained undiminished by the deposit in the Pakistan Court to the credit of the decree. The swollen sum claimed in execution was 10,79,820/4. In doing so he sought the aid of s.4 3 of the Indian independence Legal Proceedings Order, 1947 read with O.XLV, r.15 and s. 15, C.P.C. Many road blocks in the way of the executability of the decree were placed by the judgment debtor but the High Court of Punjab at Chandigarh, assisted by eminent companynsel, elaborately companysidered the many legal questions and dismissed the execution petition. The Court found that the situs of the decree which was property was Lahore and so Oberoi, an evacuee, had been divested of all interest therein, the Pakistan Custodian being the repository of all such rights. The property in the decree being negatived, the present respondent failed. Many other findings hostile to his claim were also rendered by the High Court However, the quietus to this Operation execution was given by the Supreme Court of India where the parties, engaging top legal talent, hopefully reached, obtaining leave under Art. 133 1 a and c of the Constitution. In that appeal the judgment debtor present appellant resisted the proceedings, filing a statement of the case through his advocate Shri Naunit Lal, as required by the Supreme Court Rules This statement has pertinence to the point regarding limitation vis-avis s. 19 of the Limitation Act, to be dealt with later . The Court, after stating the facts of the long litigation, punctuated by the puzzling waves of evacuee legislation, by-passed issues unnecessary to the determination of the case although decided by the High Court and came to the crux of the matter whether this Pakistani decree companyld be straight executed invoking 0.45, r.15, C.P.C. When one gets entangled in the skein of details impertinent to the companye issue, the true problem gets obfuscated. This happened, to an extent, in the High Court. Side-stepping these in essentials, Gajendragadkar J. as he then was speaking for the Court, came to the scope and sweep of the Indian Independence Legal Proceedings Order, cleared the legal companywebs and laid bare the object and ambit of that law in the back-ground of the historic surgery of Indian geography which took place then. The Court companycluded thus The next question which must be companysidered is whether the present suit falls within Section 4 1 at all. The answer to the question must obviously be in the negative. The material allegations made by the appellants in the plaint filed by them in the present suit clearly show that the whole cause of action had accrued within the jurisdiction of the Senior Sub-Judge at Lahore. The original companytract had taken place at Lahore, the property agreed to be sold was situated at Lahore, the earnest amount of Rs. 5,00,0001- was paid by the appellants to the respondent at Lahore the breach of the companytract took place at Lahore, and so under Section 20 c of the Code of Civil Procedure the suit was properly filed in the Court at Lahore and the jurisdiction of the said Court to try the suit was in numbermanner affected by the passing of the Act or the transfer of territory. This position was number and is number disputed. There is, therefore, numberdoubt that the trial Court companyld have proceeded to deal with this suit even if the Order in question had number been passed and so the statutory fiction raised by the provisions of the Order cannot be invoked enforcing a decree passed by the Federal Court in an appeal arising from such a suit. In our opinion, therefore, the High Court was in error in holding that the provisions of Section 4 applied to the- decree sought to be executed by the appellants. The view, though in reversal of the High Courts holding, did number effect the ultimate outcome. For the Court ruled that the executiorn of the foreign decree, as if it were one of the Supreme Court of India, was misconceived. In other words, the forum for enforcement and the process for getting relief viz., a suit under s. 9 and 13 of the C.P.C. in the companypetent Court of original jurisdiction companyld number be circumvented or short-circuited by resort to the exceptional methodo logy indicated in s. 4 1 or 3 of the Indian Independence Legal Proceedings Order. This extinguished the fires of companytroversy regarding executability but ignited the current original suit. Shri Oberoi, discomfited in execution, was driven to filing a regular suit for recovery of the decree amount based on the foreign judgment in his favour and indeed success attended his efforts, since the trial Court and the High Court made shortshrift of all the pleas to number-suit him. It is this defeat on all points that has escalated the appellants litigation to the top judicial deck, this Court, urging his triple opposition to the plaintiffs decree. Shri Desais submissions logically and sequentially, were three. Firstly, the decree of the Federal Court of Pakistan, which was the foundation of the present action, had vested automatically in the Custodian under the Pakistan Ordinance of 1949 and, therefore, the 7-255Sup.CI/75 plaintiff Oberoi had numberright to recover on the basis of the foreign judgment. Absent locus standi or cause of action, his suit was bound to fail and therefore the appeal was bound to be allowed on that initial ground alone. His second submission was that the six-year period available under Art. 117 of the Indian Limitation Act for a suit upon a foreign decree had long ago expired, reckoned from the date when the Federal Court of Pakistan granted the present plaintiff a decree. By simple arithmetic he is right but the plaintiff has sought to salvage his action from the clutches of limitation by reliance on ss. 14 and 19 of the Indian Limitation Act. In the facts and circumstances of the present case, Shri Desai repels this rescue operation as a misapplication of the relevant provisions. The last, yet to our mind the most meaningful, point urged by the appellant, was that although a decree for Rs. 5,00,0001- had been awarded by the Pakistan Court in favour of the present plaintiff, a sum of Rs. 3,00,000/- had already been deposited to the credit of that decree in the Lahore Court and had been actually adjusted towards the decree, with the result that the worst companying to the worst only a sum of Rs. 2,00,000/- together with subsequent interest companyld be claimed by the plaintiff, in law and justice. The equities between the parties were a companyponent of the branch of jurisprudance bearing on execution of foreign decrees. We proceed to examine the soundness of these three companytentions in the order set out above. Locus Standi Ordinarily, a suit on fact of a foreign decree is sustainable and s. 13C.P.C.,sets out the limitations on the amplitude of the right. This proposition is number disputed but what Shri Desai argues is that the decree being evacuee property under the Pakistan Ordinance, it has already vested in the Custodian by statutory Operation, so much so the plaintiff has long ago ceased to be decree-holder. May be other limited remedies, to get relief as an evacuee who has lost large properties, may be available to Oberoi under other enactments in both companyntries but qua holder of a foreign decree he cannot bring a suit to recover the debt-an infirmity affecting the root of his right. The plaintiffs answer is simple and sufficient and deflates the defendants resistance, based on evacuee legislation. A foreign judgment is enforceable by a suit upon the judgment which creates In obligation between the parties. Indeed, it shall be companyclusive as to any matter thereby directly adjudicated upon between the same parties subject to the exceptions enumerated in s. 13 C.P.C. None of these nullifying clauses being attracted, prima facie the foreign judgment on which the plaintiff founds his present action is unassailable. Certainly, the judgment of the Pakistan Court was in favour of the plaintiff and, being companyclusive under s. 13, the defendant companyld number be heard to urge to the companytrary. Even so, let us analyses the evacuee law based bar, to see if it has substance. To appreciate the merit of this argument, it is necessary, as earlier pointed out, to follow the provisions of the evacuee legislation in Pakistan. The Ordinance of 1949 defines evacuee s. 2 2 and both the parties herein fall squarely within that definition. The second question then is whether the decree, which is the source of the pla- intiffs rights, is evacuee property as defined in s. 2 3 of the 1949 Ordinance or is Property as defined in s.2 5 thereof. If it is, s. 6 of the said Ordinance will operate to divest the plaintiff of his ownership of the decrce and vest it in the Custodian, numberwithstanding any other law to the companytrary s.4 of the Ordinance is an over-riding provision . The first point that falls for decision therefore is to decide whether the decree of Shri Oberoi is evacuee property. Assuming for a moment that it is-and at the first Rush it is-an argument which neutralises this companytention is urged by the other side, based on the Pakistan Administration. of Evacuee .Property Act, 1957 12/58 . There is hardly any doubt that the parties are evacuees within the meaning of this Act also. Even so, the Pakistan Administration of Evacuee Property Act, 1957 XII of 1958 carves out a category of evacuee property out of the Custodians companytrol. Does this decree thus escape the net? Yes, it it has number been treated as evacuee property. For, although all evacuee property vests in the Custodian by force of s. 7 of this Act s. 3 1 is of strategic signi- ficance and reads- Property number to be treated as evacuee property on or after 1st January, 1957. Notwithstanding anything companytained in this Act, number ? person or property number treated as evacuee or as evacuee property immediately before the first day of January, 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. x x x x Certainly, the judgment debtor is an evacuee and the Custodian has treated him as such in companyrt proceedings. But has that decree been treated as evacuee property ? The answer is an easy negative. The Custodian never demanded any right qua decree holder number as stepping into the shoes of Shri Oberoi. Thus, whichever way we view the matter the appellant must fail in this branch of his case. It is pregnant with meaning that the Custodian did number seek to get himself impleaded as a companyappellent in the Federal Court of Pakistan and at numbertier of the long-drawn out litigation in Pakistan did the defendant companytend that the plaintiff Oberoi was numberlonger entitled to sue for the amount and that the Custodian alone had such right if at all. Bar of Limitation The slow flow of the plaintiffs rights along the stream of statutory limitation would have numbermally been stilled into a final freeze, for the prescribed life span of six years under Art. 1 17 of the Limitation Act had admittedly run out. The rescue raft on which Shri Oberoi clutched O survival of his right to sue was S. 19 and his life-belt, as it were, was s. 14. The facts and law are fairly clear their rival interpretations by companynsel n-verticle s diverged so much that the encounter generated at the bar as much heat as light-inevitable, May be, in an adversary system. Be that as it may, we will scrutinise the case urged by the plaintiff to attract these rejuvinatory and exclusionary provisions. Courts must as far as is reasonably permissible put a liberal companystruction on documents to save, number to scuttle, when faced with a plea of limitation to number-suit an otherwise good claim. Section 19, to help renew limitation., requires, as rightly stressed by Shri Desai, an intention to own a subsisting liability by the debtor to the particular creditor. Mere chronicles of litigations and recitals of documentary events, it is argued, cannot be regarded as acknowledgement if the whole drift of the writing is a denial of the plaintiffs claim. But, in the view we take of the applicability of s. 14, a further probe into or pronouncement on the legal labyrinths of s. 19 and the rulings cited in that companynection need number detain us. Suffice it to say that we do number express any opinion on the issue including an advocates authority to acknowledge liability in the companyrse of a Statement of the Case. It all depends on the circumstances of each case. Section 14, which neatly fits in, is simple in its ingredients, to the extent we are called upon to companysider. It is a sine qua number of a claim unders.14 that the earlier proceeding is prosecuted in good faith. It is beyond cavil that before launching on execution of the Pakistani decree Shri Oberoi had taken advice from two leading Indian lawyers and set about the job diligently. Bonafides is thus writ large in his companyduct. The companytroversy is that the defect of number-executability of the foreign decree by virtue of the Governor Cienerals order does number savour of a jurisdictional or like error but ,of a mere misconstruction of law. We need number labour the obvious that here the prosecution of the execution proceedings was repelled because and only because the institution of such proceeding on the ,execution side was without jurisdiction. Normally, a money claim due under a foreign decree can be enforced on the original side by a suit under ss. 9, 13 and 26, C.P.C. in the appropriate Court and the executing companyrt has numberjurisdiction to straightway levy execution under 0.21, c.p.c. An exception is provided in this regard by the Governor Generals Order and a special forum viz, the High Court is indicated when the decree to be executed is of the Supreme Court of Pakistan. All this pertains to jurisdiction and in the Associated Hotels case this Court negatived executability solely on grounds jurisdictional or quasi-jurisdictional. Section, 14 thus companyes to the rescue of the defendant in this suit. Certainly, Section 14 is wide enough to companyer periods companyered by execution proceedings See 1959 SCR 817 at 818 . After all, s. 47 itself companytemplates transmigration of souls as it we re of execution petition and suits. The substantial identity of the subject matter of the lis is a pragmatic test. Moreover, the defects that will attract the provision are number merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance legal or factual, which inhibits entertainment or companysideration by the Court of the dispute on the merits, companyes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right see 1971 2 SCR 397 at 401 . In the Associated Hotels case i.e. the very lis in its earlier round on the execution side this Court pointed out 1961 1 SCR 259 at 272 that the question was one of initial jurisdiction of the Court to entertain the proceedings. Thus in this very matter, the obstacle was jurisdictional and the exclusionary operation of s. 14 of the Limitation Act was attracted. Equitable Adjustment The last ditch battle fought by the appellant relates to the deposit of Rs. 3,00,000/- which, if deducted from the date of payment into Court from the amount decreed a huge scaling down of the figure will be the result. While Shri Desai staked his case on equitable companysiderations which must be applied while executing foreign decrees, Shri Ashok Sen wondered what legal principle companyld sanction such inroad into sums legitimately due. While Shri Desais two earlier defences are easily vulnerable, we think his plea on equity, in a less extreme form, is impregnable. What is truth said jesting Pilate in Jesus trial and would number stay for an answer. We choose to pause and answer that Truth is Law cast in the companypassionate mould of justice and equity being one of its facets. Shri Sens strenuous submission summed up fairly is that undefined rules of equity are unruly horses and in India legal rights cannot be chased out by nebulous numberions of good companyscience labelled equity. In a sense, he is right but to deny equitable jurisdiction for companyrts to promote justice is too late and too tall a jurisprudential proposition in any system. For, equity is number anti-law but a moral dimension of law rather, it is the grace and companyscience of living law acting only interstitially. The quintessence of this companycept may be stated thus All great systems or jurisprudence have a mitigating principle or set of principles, by the application of which substantial justice may be attained in particular cases wherein the prescribed or customary forms or ordinary law seem to be inadequate. From the point of view of general jurisprudelice, equify is the name which is given to this feature or aspect of law in general. 1 Certainly when law speaks in positive terms, equity may number. be, invoked against it but while applying the law the Court can and must American Jurisprudence 2nd Edn. Vol. 27 p. 516. ameliorate unwitting rigours inflicted by legalisms, where there is room for play, by the use of equity. After all, equity is the humanist weapon in the Courts armoury, whereby broad justice may be harmonised with harsh law, based, of companyrse, on established principles. In the present case, certain sympathetic circumstances stand out indubitably and the benign interference sought by the appellant is spelt out of these facts. What are they ? The judgment debtor did apply for stay of execution and, on the direction of the High Court, did deposit rupees three lakhs on July 16, 1949 to be companyrect, out of it Rs. 50,000/- was paid in only on 16th August , number in discharge of but as security for the decree pending the first appeal. We cannot blink at the fact that but for supervening political upheavals and eventual disregard of the Courts order by the Pakistan Government the judgment creditor would have withdrawn this sum. But partially to antidote the effect of this factor must be remembered the opposition of the debtor to the creditor drawing the money from Court in July 1949 when the 1949 Ordinance vesting evacuee property in the Custodian had number been promulgated. And since the appeal was allowed by the High Court and the suit dismissed, the deposit ceased to be security for the decree, although factually the money did number leave the custodia legis. Shri Oberois decree was re-born, as it were, only when the Federal Court allowed his appeal on December 21, 1953. Till then he had only a potential right to claim the money. Now, a close-up of the post-decretal happenings with special reference to the companyduct of either party bears on the companyscience of the situation. Neither party was blameworthy and indeed both were agreed at a stage that the deposit should go in satisfaction of the decree affirmed by the final companyrt. The judgment was delivered on December 21, 1953. Most probably the Christmas vacation intervened and soon after the reopening- January 6, 1954 the judgment debtor rushed to the Lahore High Court with the request that his application for withdrawal of deposit filed 4 years back be dismissed as withdrawn and it be adjusted towards the decree. It is therefore respectfully prayed companycluded the petitioner, that the aforesaid. amount of Rs. 3,00,000/- may be directed to be adjusted toward satisfaction of the decree as originally intended and the request for refund be treated as withdrawn and the objections filed by the Deputy Custodian be dismissed. in this application he stated that the amount was deposited towards partial satisfaction of the decree as a companydition for stay of execution Let us look at the decree- holders stance. On March 31, 1954 he hopefully moved the High Court at Lahore for transfer of the deposit to India on the strength of s.4 of the Transfer of Deposit Ordinance later enacted as Act VII of 1954 . True, his final success in the Supreme Court proved a Dead Sea fruit, the judicial order having been ignored by the Government but the fact remains that he averred in his application of March 31, 1954, in harmony with the position taken up by the judgment debtor. That on 6th January 1954 Rai Bahadur Jodha MalKuthalia filed an application praying that the sum of Rs. 3,00,000/- which he had deposited in this Honble Court on 15th/16th July, 1949, in pursuance of the order passed by this Court on 27th April 1949 for the due performance of decree as may ultimately be binding upon him be paid to Rai Bahadur Mohan Singh oberoi decree-holder towards partial satisfaction of the decree and that his application, dated 15th December, 1949, for refund of the said amount be treated as withdrawn and companysequently the objection and the review application of the Custodian dated the 20th December 1949 be dismissed. That Rai Bahadur Mohan Singh, decree-holder submits that judgment-debtor has numberinterest in the said sum and the same is lying deposited with this,Honable Court for payment to him, as it was deposited for the due performance of such decree as may ultimately be passed in his favour. The said decree- holder companytends that numberother person has any right or interest in the said amount and that the same is lying with this Court in trust for payment to him. The judgment-debtor has accepted this position and claims numberright or interest in the said amount. That the said decree-holder further companytends that in view of the Ordinance No. 1 of 1954Transfer of Evacuee Deposits Ordinance 1954 and subsequent enactment of the said Ordinance into an Act of the legislature to the same effect, this Honble Court is requested to transfer the deposits of Rs. 3,00,000 along with the records relating thereto to such officer or authority in India as the Central Government has by order, specified in this behalf or specifies in future as the provision of the said Act fully applies to it. In the alternative the said decree-holder further prays that if for some reasons, this Honble Court decides that the said deposits cannot be transferred to India under the provisions of the said Act, it be held that the Custodian of Evacuee Property is number entitled to the same and it be paid to the said decree-holder at Lahore. Without being too literal or legalistic, it is clear that tile decree-holder had laid claim to the sum to the exclusion, number only of the Custodian but also of the judgment-debtor. He should have got the money, but did number. But all that the appellant companyld do to help Sri oberoi obtain the deposit he did. Taking a pragmatic view of the justice of the case, the Court has to see who should bear the loss in these circumstances. Should the decree-holder be eligible for his pound of flesh since he had number got a paise towards his legal dues? Should the judgment-debtor be directed to pay Rs. 3,00,000/- twice over even after both sides had, in the Pakistan Court, represented that the decree-holder alone was entitled to the deposit and that it be disbursed to him? The High Court at Lahore highlighted this attitude of the parties thus The position taken up by R. B. Jodha Mat Kuthalia is that this deposit stands adjusted towards the satisfaction of the decree of rupees five lacs.The position taken up by R.B. Mohan Singh Oberoi is that neither the judgment-debtor number any other person except himself has any right or interest in the deposit. The position of both R. B. Jodha Mal and R. Mohan Singh is that the amount stands adjusted and vests in the decree- holder and for the purpose of the application for transfer of deposit we will assume that it does so vest. The Supreme Court of Pakistan viewed the matter slightly differently and observed Certain facts stand out clearly. Since the money was deposited under the orders of the Court by Rai Bahadur Jodha Mal, and there being numberorder of the Court regarding the disposal of this money so as to divest Rai Bahadur Jodha Mat of his ownership thereof, it would appear that prima facie the principal and direct interest in the money is that of Rai Bahadur Jodha Mal. The money having been deposited in relation to P. decree of the Court, for the purpose of being applied to the satisfaction of that decree, and such decree standing exclusively in the name of Rai Bahadur Mohan Singh oberoi, he might appear to have P. secondary and indirect interest in the money. What is loudly obstrusive from this narration is that, although the Court deposit presented to the parties but P. teasing illusion, the Courts and the parties assumed the amount as specially earn marked towards discharge of the decree. Expectantly Shri Oberoi, even after taking legal advice regarding executability of his decree in India, moved the Pakistan Court by petition doted December 11, 1954 asserting rightly That the deposit being for his benefit and he being a numberMuslim and on evacuee, is entitled to claim that the sum be transferred to India. in accordance with Section 4 of Act VI of 1954, and that the words partly interested in the deposit mean parties to the said proceedings or litigations and any other person who on the face of the record can be companysidered to be partly interested in the deposit and therefrom it is companytended that neither it is companytemplated that the Court would invite all claimants or creditors to make claims regarding the deposit a nd would then adjudicate regarding the bona-fides of their claims and order the distribution of the deposit amongst them accordingly, number was enquiry of this nature, companytemplated, as numberprocedure for enquiry of this nature has been provided for in this Section. The Court is merely transmitting authority to transfer the deposit. But as this Point is still to be decided by this Honble Court and as this Honble Court might take a companytrary view to the one stated above, it is submitted that to avoid unnecessary delay, the Court might be pleased to issue such numberices that it companysiders proper to the public or to any other parties it companysiders fit to do so that the matter may be finally adjudicated at the next date of hearing. It is, therefore, prayed that it be ordered accordingly. The fair inference flows from this stream of facts that the judgment debtor had washed his hands off this sum and the decree-holder had clung to it with a quasi-proprietary claim. in such a situation, is it just that if politically paramount but legally extraneous forces blocked the payment to the decree-holder he may still get it although it may be a little luny to hope for it in the near future the hardship should fall on the judgment debtor ? Precedents in profusion were cited on both sides bearing on Court deposits as security for decree amounts and for allied positions. While we will presently refer only to a few of them inhibited by space and relevance, it falls to be mentioned at the threshold, companytrary to the tenor of Shri Sens companytention, that equity jurisprudence is flexible and meets the challenge of new situations without the law. New days may bring the people into new ways of life and give them new outlooks and with those changes there may companye a need for new rules of law 1 But legislation lags. Here steps in equity for, the role of a judge, is to develop the law-and adapt it to the needs of the members of his society See Modern Law Review, Vol. 34,1971-p. 28 . Nor is Shri Sen right when he companytends that his client admittedly number being guilty of any blamable companyduct, therefore, should number be deprived of any part of his decree. Equity is number penalty but justice and event where neither party, as here, is at fault, equitable companysiderations may shape the remedy. Lord Denning spoke of the new equity that was needed 5 Current Legal Problems 1952 p. 1 and Marshall said that the time to write finis to the role of the judiciary in the field of equity had number companye See Law, Justice Equity Essays in tribute to Keeton p. 66 . of companyrse number numberel sentiments but well-settled rules, number the Chancellors foot but standard-sized shoes, serve the judge in these pathless woods. True, as Keeton said 2 an equitable doctrine may prove malleable in the hands of Lord Denning but intractable in the hands of Lord Justice Harman. In short, our equitable jurisdiction is number hide bound by tradition and blinkered by precedent, though trammelled by judicially approved rules of companyscience. With this background we will glance through the decided cases, alive to the fact that they cannot necessarily furnish in every case a clear legal lodestar to steer us sure ashore. In the present case the equity arises largely from the iniquity of a foreign governments refusal,for reasons we cannot guess, to carry out the directions of its municipal companyrts. This uniqueness cannot be missed. Current Legal Problems, 1952 Vol. 5, Stevens Song Ltd., London p.1. Keeton-Sheriden on Equity p. 37, 1969 Edn. Sir Isaac Pitrnan and Sons Ltd. London, Sri Desai drew our attention to Chowthmull Manganmull v. The Calcutta Wheat and Seeds Association 1 Sheo Gholam Sahoo Rahut Hossein 2 Mehar Chand v. Shiv Lal Anr. 3 Kothamasu Venkata Subbayya v. Udatha Pitchayya 4 Ex parte Banner In re Keyworth 5 and Bird v. BarstoW 6 . A few other cases also were cited but since numberhing fresh is companytributed by them reference is number made to them. What are the principles vis-a-vis the problem here ? That a mere security deposit does number become an automatic satisfaction of the decree when the appeal fails is simple enough. But when the judgment debtor has paid into companyrt cash by way of security companyditioned by its being made available to discharge the decree on disposal of the appeal and for means beyond the companytrol or companyduct of the judgment debtor the money is number forthcoming to liquidate the liabilities can he be asked to pay over again ? In Chowthmull Manganmull v. The Calcutta Wheat and Seeds Association Supra , Sanderson C. J. observed at p. 10 1 3 In my judgment the effect of the order was that the money was paid into Court to give security to the plaintiffs that in the event of their succeeding in the appeal they should obtain the fruits of their success. See Bird Barstow 6 . It may be put in other words, viz., that the amount paid into Court was the money of the plaintiff respondents subject to their succeeding in the appeal and thereby showing that the decree in their favour by the learned Judge on the Original Side was companyrect. The words which were used by Lord Justice James in the case of Exparte Banner, in re Keyworth 5 are applicable to this case. The learned Lord Justice said that the effect of the order was that the money which was paid into Court belonged to the party who might be eventually found entitled to the sum. The head numbere in Sheo Gholam Sahoo v. Rahut Hossain supra reads When money or moveable property has been deposited in Court on behalf of a judgment- debtor in lieu of security, for the purpose of staying a sale in execution of a decree pending an appeal against an order directing the sale, which is afterwards Confirmed on appeal, neither the depositor, number the judgment-debtor, can afterwards claim to have such deposit refunded or restored to him, numberwithstanding that the decree holder has omitted to draw it out of Court for more than three years, and that more than three years have elapsed since any proceedings have been taken in execution of the decree, and that the decree for that reason is number incapable of execution. I.L.R. 51 Cal. 1010. 2 I.L.R. 4 Cal. 6. 3 1955 57 P.L.R. 350. 4 A.I.R. 1960 Andhra Pradesh 349, 5 1874 9 Ch. 379. 6 1892 1 Q.B.D. 94, Semble.-When money or moveable property is deposited in Court in such a case as the above, the Court, upon companyfirmation of the order for a sale, holds the deposit in trust for the decree-holder, and is at liberty to realize it and pay the proceeds over to him to the extent of his decree. The equity in favour of an obligor, who has deposited the obligated sum into Court pending proceedings in which he assails his liability, is underscored by these rulings and the principle cannot be different merely because the obligee who ordinarily would have, without reference to the obligor, drawn the money from Court is unable to get it for extra- legal reasons as here. We are of the view that the justice of the case, without crossing the path of any legal provision, warrants our upholding the equity set up by the appellant., Had the decree been executed in the haleyon days in the Lahore Court this deposit would have been credited and adjusted and the freak companysequences of Partition should number disadvantage the judgment debtor. In India the historical and artificial distinction between Equity and Law does number exist and equity itself is enforced as law with all the built-in limitations we have adverted to. To dispel possible misapprehension we declare that the whole deposit and accretions will be drawable only by the decree- holder. Though a formal order of the Lahore Court directing adjustment of the amount towards the decree has number been passed, we direct the whole sum, whether it remain in Pakistan or is eventually transferred to India, belong to and withdrawable only by, the decree-holder, since justice and good companyscience plainly require it. Equitable remedies by companyrts an institutionalised strategy in the myriad situations of companyplex modern societies are an expanding universe, but, for the obvious relief we grant here, numberresort to any theoretical basis is needed. Bearing these canons in mind, we must crystallise the benefit the appellant can justly get. Till the date of the Federal Court decision on December 21, 1953 the decree- holder companyld number draw the deposit. indeed, only when the judgment-debtor agreed in Court proceedings that the sum be treated as pro tanto discharge of the decree and the decree- holder moved the companyrt on that basis companyld the benefit of equitable adjustment arise. This later event was when Shri oberoi applied by C. M. 120 of 1954 to the High Court at Lahore on 31-3-54. So, the decree amount as on that date, inclusive of companyts incurred, will have to be calculated and Rs. 3 lakhs deducted. The balance will, as stipulated in the decree, carry 5 interest from then on. We make it clear that the entire companyts incurred in the suit in India, i. e. in the trial companyrt will also be payable but in regard to the appeals in the Delhi High Court and in this Court the decree-holder will be awarded proportionate companyts. of companyrse, the decree-holder lost in his attempt to execute the foreign decree in India and we leave the companyts of those proceedings well alone. in the light of these directions the executing companyrt will quantify the amount currently recoverable and proceed to levy execution. The appeal is substantially dismissed but is also allowed in part as above indicated. A. 2248 of 1968 is dismissed but numberorder as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1356-1357 of 1974. From the Judgment and Order dated the 26th June, 1974 of the Gjarat High Court in Spl. Civil Appls. Nos. 420 and 411 of 1974. M. Phadke, M. N. Shroff and J. R.Nanawati, for the Appellants In both the appeals . I M. Nanawati, P. H. Parekh, Sunanda Bhandare and Manju Jaitley, for Respondent No. 1 In CA No. 1356/74 . C. Bhandare, P. H. Parekh, Sunanda Bhandare and Manju Jailley, for Respondents Nos. 1 and 9 in CA No. 1357/74 . The Judgment of the Court was delivered by SARKARIA, J.,-The main question that arises in these two appeals direct against the companymon judgment, dated June 26, 1974 of the High Court of Gujarat, is, whether the Notification dated March 31, 1974 for short, the impugned numberification issued by the State Government is invalid on the ground that the companydition precedent to the exercise of the power under s. 303A of the Gujarat Panchayats Act, 1961, for short, the Panchayats Act is number satisfied. The Panchayats Act provided for three-tiers of Panchayats. They were, in the descending order District Panchayats, Taluka Panchayats and Gram Panchayats. The Act provided for indirect election to Taluka Panchayats and partly indirect and partly direct election to the District Panchayats on the basis of Adult franchise Under s.17 2 as amended by Gujarat Act, 8 of 1968, the numbermal term of a panchayat was five years from the date of its first meeting. This term companyld be extended by the State Government by a period number exceeding in aggregate one year. The last election to Taluka Panchayats took place in February 1968 and the Panchayats were companystituted on February 28, 1968 Their term was due to expire on February 28, 1973. Similarly, the five year term of the District Panchayats was due to expire on March 31 1973. By a Resolution dated April 12, 1973, the State Government appointed a high level Committee headed by Jhinabhai Darji to suggest basic reforms in the Panchayati Raj set-up. On the interim recommendation of this Committee the State Government extended the terms of Taluka Panchayats upto August 31, 1973 and those of Distirct Pan chayats upto September 30, 1973. The Jhinabhai Darji Committee submitted its final report on September 30, 1972. Thereupon,the Gujarat Amending Act 9 of 1973 was passed. It came into force on April 23, 1973. This Amending Act made far- reaching changes in the original Act. The indirect elections to the Taluka Panchayats were abolished and provision was made for direct elections to all the Pan- chayats. As it was number possible for administrative reasons to hold elections in accordance with the amended Act, the State Government by an order dated June 21, 1973, extended the term of Taluka Panchayats and District Panchayats till August 31, 1973 and September 30, 1973 respectively. By another Order, dated October 3, 1973, the terms of both these Panchayats were again extended upto February 28, 1973 Thus the power of the State Government to extend the term of the Taluka Panchayats under s. 17 2 of the Act had exhausted itself. In the first week of January, 1974, widespread disturbances broke out in the State of Gujarat. There was public agitation against the State Government demanding its resignation and the dissolution of the Gujarat Assembly. On January 26, 1974, the Governor of Gujarat promulgated Ordinance 1 of 1974. It substituted in sub-s. 2 of s. 17 of the Act the words two years for the words one year. Under the amended provision the Government got the power to extend the term of a Panchayat by two years in the aggregate beyond its numbermal term of five years. As a result of the mounting public agitation, the State Ministry tendered its resignation on February 9, 1974. On the same date, the President of India by a proclamation under Article 356 of the Constitution assumed all the functions of the State Government. By an order dated February 27, 1974, issued under s. 17 2 as amended by Ordinance 1 of 1974, the terms of the Taluka Parchayats and District Pancbayats were again extended upto March 31, 1974. The State Legislature was dissolved on March 15, 1974. Parliament thereafter passed the Gujarat State Legislature Delegation of Powers Act, 11 of 1974 which vested with effect from March 27, 1974 powers of the State Legislature in the President of India. In exercise of his powers under s. 3 of this Act, the President enacted Gujarat Panchayats Amendment Act 8 of 1974 which came into force on March 31, 1974. It inserted s. 303A in the Panchayat Act which provides 303A. 1 Notwithstanding anything companytained in this Act or the rules or by-laws made thereunder, if at any time, the State Government is satisfied that a situation exists by reason of disturbances in the whole or any part of the State of Gujarat, whereby- i It is number possible or expedient to hold elections for the reconstitution of a panchayat on the expiry of its term the State Government may, by numberification in the Official Gazette make a declaration to that effect. A numberification issued under sub- section 1 in relation to any panchayat shall remain in force for such period, number exceeding six months, as may be specified therein Provided that if the State Government is of the opinion that it is necessary so to do, it may, by order and for reasons to be mentioned therein, extend, from time to time, the period so specified, so, however, that the numberification shall number in any case remain in force for more than one year in the aggregate. On the issue of a numberification under subsection 1 in reason to any panchayat,- a all the members of such panchayat shall vacate their office as such members b all the powers and duties of such panchayat shall,, during the period when such numberification is in force, be- 3 34 exercised and performed by such officer of the State Government as it may, by order, specify in that behalf. The State Government shall, before the expiry of the period specified in the numberification issued under sub-section 1 or extended under the proviso to sub-section 2 , as the case may be, take steps for the purpose of reconstituting the panchayat in the manner provided in this Act. Purporting to act under s. 303-A, the Government issued on March 31, 1974, the impugned numberification No KP/74-81 PRN HLC /4-JHI-Whereas the terms of all Taluka and District Panchayats in the State of Gujarat except that of the Dangs District Panchayat expire on 31st March, 1974 And Whereas the Government of Gujarat is satisfied that a situation exists by reason of disturbances in the whole of the State of Gujarat whereby it is number expedient to hold elections for the reconstitution of any of the taluka and district panchayats whose term expires on the aforesaid date Now, therefore. in exercise of the powers companyferred by Section 303A of the Gujarat Panchayats Act 1961 Guj. VI of 1962 , the Government of Gujarat hereby- 1 makes a declaration that a situation exists by reason of disturbances in the whole of the State of Gujarat whereby it is number expedient to hold elections for the reconstitution of any of the taluka and district panchayats whose term expires on 31st March, 1974 on the expiry of their term 2 directs that the declaration made as aforesaid shall remain in force for a period of six months and 3 orders that all the powers and duties of each of the taluka and district panchayats whose term expires on 31st March 1974, shall, with effect from the expiry of their term till this numberification is in force, be exercised and performed,- in relation to a taluka over which the taluka panchayatof its term, by the Taluka Development Officer postedunder the taluka panchayat companycerned and in relation to a. district over which the district pan- chayatconcerned had authority immediately before the expiry of its term, by the District Development Officer posted under the district panchayat companycerned. By order and in the name of the Governor of Gujarat B. SHUKLA, Secretary to Government. Two writ petitions under Articles 226 of the Constitution mere filed in the High Court of Gujarat to challenge the aforesaid numberification One of these was filed by the President of Baroda District Panchayat Baroda etc. and the other by the President of Jamnagar District Panchayat and ors. The petitions were heard by a Division Bench which by a companymon judgment accepted the same holding that the impugned numberification was illegal. invalid and bad in law because the companydition precedent to the exercise of the power under s. 303A viz., holding elections for the reconstitution of the Panchayats on the expiry of their terms has number been satisfied. Against that judgment, the State of Gujarat has preferred these appeals on the strength of a certificate granted by the High Court, The High Court held that election within the companytemplation of section 303A 1 is restricted to the process of the actual companyduct of the election, companymencing with the issue of the numberification calling the election and terminating with the declaration of the result of the election. In its view the delimitation of companystituencies or wards, preparation of electoral rolls, and framing of rules for companyducting elec- tions, being stages prior to the election, do number form part of the process. of holding election. With this narrow companystruction of the phrase to hold elections, the High Court approached, the problem thus A reading to s. 303-A makes it clear that the two objective facts are 1 the factum of disturbances in the, State by reason of which a situation exists and 2 holding of elections for reconstitution of panchayats. Both these factors are open to judicial review. The satisfaction of the Government with regard to the existence of a situation by reason of the disturbances or in respect of number-possibility or inexpediency of holding elections is subjective and number open to judicial review, The holding of elections for the reconstitution of Panchayats is an objective fact. The companystitution of the panchayats is number only the objective fact but holding of election thereto is an also objective matter. The State Government has to establish both these points to justify invocation of power under s. 303A and to justify the legality of the impugned numberification. in the, instant case the companydition precedent of holding elections for the reconstitution of the panchayats is number fulfilled. The stage of holding elections for the reconstitution of the panchayats had number reached at the time when the impugned numberification was issued. On that date it was number possible to hold elections because preliminary stages in companynection with elections were number companypleted. Constitution of wards, reservation of seats for women, scheduled caste and scheduled tribes and voters lists were number formed or made or prepared. in absence of all these preliminary matters, the question of holding of elections cannot arise. We are unable to agree with this reasoning. An analysis of s.303A 1 would show that before a declaration referred to in that sub-section can be made, two requirements must be fulfilled 1 existence of a situation by reason of a disturbances in the whole or any part of the State 2 the satisfaction of the State Government relatable to such a situation, that it is number expedient to hold elections for the reconstitution of a panchayat on the expiry of its term. The first requirement is an objective fact and the second is an opinion or inference drawn from that fact. The first requirement, if disputed, must be established objectively as a companydition precedent to the exercise of the power. The second is a matter of subjective satisfaction of the Government and is number justifiable. Once a reasonable nexus between such satisfaction and the facts companystituting the first requirement is shown, the exercise of the power by the Government, number being companyourable or motivated by extraneous companysiderations,is number open to judicial review. Thus the question that companyld be objectively companysidered by the Court in this case was Did a situation arising out of disturbances exist in the State of Gujarat on the date of the impugned numberification ? The fact that there were serious disturbances throughout the State of Gujarat in January and in the first fortnight of March, 1974. has number been seriously disputed by the learned Counsel for the respondents. From the companynter-affidavit filed on behalf of the State, it appears that these disturbances companytinued throughout March, 1974. Shri Satyendra Shah, Joint Secretary to Government of Gujarat has sworn that disturbances on a wide scale occurred in all parts of the State-both in the urban as well as in the rural areas,. resulting in loss of human life and companysiderable damage to property. This ultimately resulted in the resignation of the Ministry on the 9th February 1974 and the issuance by the President of India of a Proclamation under article 356 of the Constitution assuming to himself all the functions of the State Government The disturbances companytinued also in March, 1974. in a further affidavit it is stated that an agitation for dissolution of the Panchayats, whose numbermal terms of office had expired, companytinued even in the last days of March, 1974. An instance of Kutch Panchayat which on account of such agitation, was unable to assemble for the budget meeting at Bhui has been cited. Even Shri Jamnadas Pabri, one of the writ petitioners, who was the President of that Panchayat, was number able to attend his office, on account of these abnormal companyditions in February and March 1974, except for one day. in view of these particulars stated in the companynter-affidavit it is ,clear that the disturbances in the State of Gujarat companytinued throughout March 1974, and even on the date of issue of the impugned numberification the situation in the State was anything but numbermal. Assuming that the disturbances had abated after the dissolution of the State Assembly on March 15, 1974, the abnormal situation in the State, which was the direct product of the disturbances. companytinued to exist throughout March 1974. Sufficient time was therefore, required for the situation to limp back to numbermalcy. It is to be numbered that s. 303A 1 , speaks of the existence of a situation by reason of disturbances. The expression by reason of indicates that the disturbances and the situation must be proximately companynected as cause and effect. The situation envisaged by this sub-section, therefore, may number necessarily be companyterminous with the disturbances. It is sufficient if the situation is the immediate outcome of the disturbances, and it subsists. The situation after such massive and violent disturbances would companytinue to be disturbed for some time even after the-abatement or overt cessation of the disturbances. Mr. Phadke, learned Counsel for the appellant-State companytends that since the satisfaction of the Government as to the inexpediency of holding elections was number a justiciable matter, the giving of a wide or narrow meaning to the phrase to hold elections in s. 303A would number affect the point at issue. The High Court, it is companytended, erred in treating the companypletion of the preliminaries, such as companypilation of electoral rolls and formation of companystituencies, virtually as a companydition precedent to the exercise of the power, though the only companydition precedent laid down by the statute which companyld be tested by objective standards was the existence of the situation created by the disturbances. Mr. Nanawati, learned Counsel for the respondents whose arguments have been adopted by Mr. Bhandare, appearing for respondents 1 and 9 , submitted that the High Court was right in holding that the preliminaries such as delimitation of companystituencies etc. belong to a stage anterior to the companyduct of elections and therefore do number fall within the ambit of the phrase to hold elections. The point pressed into argument, is that s. 303A presupposed that the election machinery was ready and all the preliminary steps for holding the elections, such as companypilation of the voters lists and formation of wards etc., had been companypleted but the process of election had number yet started when disturbances intervened. Since that stage had number yet reached, the power companyld number be exercised. It may be remembered that s. 303A is in the nature of an emergency provision. It was designed to tide over a crisis of unprecedented magnitude. Reasons for the Enactment issued by the Government run as follows- The extended terms of the Taluka and District Panchayats in the State of Gujarat expire on 31st March, 1974. These Panchayats have been functioning for more than one year after the expiry of the in numbermal term of five years. However, the recent disturbances in the State have created an atmosphere which is companygenial neither to the companytinuance of these panchayats for a further period number for holding elections for their reconstitution. It is, therefore, companysidered necessary to entrust the administration of these panchayats temporarily to officers appointed by the State Government The present measure seeks to empower the State Government for carrying on the administration of the affairs of panchayats in certain special circumstances Now it is wall-settled that if the language of a statute is susceptible of two companystructions, the one which fulfils its object is to be preferred to the alternative which frustrates it. This canon is of particular significance while interpreting an emergency measure of the kind before us. in a recent English case Cannon Street Ltd. v. Singer Friedlander Ltd. 1 While companysidering the uncertain language in a statutory instrument made under an Act with the long title An Act to authorise measures to companynter inflation. Meggary J. refused to put on it a companystruction which would make the companyntering of inflation so capricious and easily escapable. In the provision under companysideration the phrase to hold elections can be understood both in a wide and a narrow sense. Its wide companynotation will include all steps such as the delimitation of companystituencies, the companypilation of electoral rolls etc. which are a necessary preliminary to the actual companyduct of elections. in the restricted sense, this phrase would companyer only the actual holding of elections. Again, the word expedient used in this provision, has several shades of meaning. In one dictionary sense, expedient adj. means apt, and suitable to the end in view, practical and efficient politic profitable advisable, fit, proper and suitable to the circumstances of the case. In another shade, it means a device characterised by mere utility rather than principle, companyducive to a special advantage rather than to what is universally right see Websters Now International Dictionary . Since s. 303A has been designed to enable the Government to get over a difficult situation surcharged with dangerous potentialities, the Court must companystrue the aforesaid phrases in keeping with the companytext and object of this provision, in their widest amplitude. Under the provision the Legislature has given to the Government a discretionary power to meet the challenge of an extraordinary situation arising out of the disturbances. The Court therefore would eschew an interpretation which attenuates that power or impair its efficiency. Nor would the Court sit in appeal over the opinion of the State Government as to the inexpediency of holding elections. The statute has made that matter the sole preserve of the Government. All that the Court companyld enquire was, whether the companydition precedent which is an objective fact to the exorcise of this power, existed. By numberstretch of imagination companyld it be said that the power under s. 303 is exercisable only after the companypletion of preparatory steps preliminary to the holding of an election. The statute places numbersuch fetter on the discretion of the Government to the exercise of the power. We, therefore, negative the companytentions canvassed by Mr. Nanawati. Learned Counsel for the respondents next companytended that it has been the positive case of the State that the preliminaries to the holding of elections required substantial time and that was why ordinance 1 of 1974 promulgated on January 25, 1974 had companyferred power on the State Government to extend the terms of District and Taluka Panchayats by one year more with effect from March 31, 1974 and February 25, 1974, respectively. With reference to the first preamble of the impugned numberification, it is companytended, that it shows that the power 1 1974 2 W. L R. 545 Ch. D. was exercised number because of any situation arising out of the disturbances but for an extraneous reason, namely, that the terms of all Taluka and District Panchayats were expiring on the 31st March 1974. In this view of the matter, says the Counsel, the impugned numberification is number relatable to the situation existing by reason of the disturbances. This companytention also is devoid of force. In the first place. the opening paragraph of the impugned numberification is a recital of a fact which companystituted another fact of the situation arising out of the disturbances. Secondly, the real and dominant reason for the exercise of the power is companytained in the 2nd paragraph of the numberification reproduced earlier in the judgment . The circumstances and reasons which weighed with the Government in issuing the impugned numberification have been set out in the companynter- affidavits of the Joint Secretary, Mr. Shah. We have referred to the same earlier. We will however like to point out that although it was stated therein that Government, on being so advised, was of the view that after the 31st March 1974, the Government oil account of the cessation of the operation of Ordinance 1 of 1974, would have numberpower to extend the terms of the Panchayats further, it was pleaded that as the disturbances companytinued also in March 1974, it was felt by the Government that it was number expedient in the then circumstances to hold elections to the Taluka and District Panchayats. In para 60 of the companynter, the Joint Secretary has explained how the efforts made by the Government to hold the elections were thwarted by the supervention of the disturbances. Avers he I deny that numberefforts were at all made to hold elections of the Taluka Panchayats or the District Panchayats before March 31, 1974. in fact the process of holding elections was initiated as early as in August 1973, when the Development Commissioner called for the proposals for the delimitation of companysti- tuencies from the Collectors. The Development Commissioner had also instructed Collectors to companysult talika Panchayats and district Panchayats while formulating the proposals of delimitation of the companystituencies. An Assistant Development Commissioner visited most of the districts to expedite the formu- lation of those proposals. In the meantime, the terms of taluka panchayats and district panchayats was first extended upto 28-21974 and then extended upto 31-3-1974 as set out here above. However, due to widespread disturbances throughout the State of Gujarat, the situation was such that it was number expedi- ent to hold elections for the reconstitution of any of the taluka and district panchayats. In the companynter it is also stated that one of the demands of the agitators was that the terms of the panchayats, who, had served more than their numbermal terms, should number be extended further. That weighed with the Government in deciding that it was number politic in the then prevailing companyditions to extend the terms of the panchayats which on account of the extensions had already been companytinued for an preiod of 7-M255Sup.CI/75 about seven years. The Joint Secretary made this point in the companynter by citing illustration of Baroda Corporation thus The example of Baroda Municipal Corporation where the term of that body was extended for the seventh year and where companyporators held to resign per pressure was also in the mind of the Government. The Government accordingly decided in the overall interest of the State and the Panchayati Raj number to extend the terms of taluka and district panchayats. The averments in Paragraphs 2 and 6C quoted above in the companynter-affidavit of the Joint Secretary between themselves furnish a companyplete answer to the companytention advanced on behalf of the Respondents. The further point canvassed by Mr. Nanawati is that even assuming there were two powers with the Government in a situation where elections companyld number be held, in whatever sense the word election is companystrued, resort to a more drastic and undemocratic provision itself exhibits matice in law. This argument was advanced before the High Court, also, and was negatived. We also do number find any merit in it. The Constitutional validity of the provisions of ss. 303A and s. 17 2 has number been assailed before us. As rightly point out by Mr. Phadke, S. 17 2 and 303A operate in separate fields. Their objects are also different. Whereas the purpose of s. 17 2 is to ensure the companytinuity of the panchayats, the object of s. 303A is to companyfer powers regarding dissolution of panchayats, in the special situation created by the disturbances and to enable the Government to carry on the administration of the affairs of the panchayats through State officers, pending their reconstitution. It has been repeatedly averred in cate- gorical terms in the companynters that the Government exercised its power under s. 303A in view of the peculiar situation arising out of the disturbances. Even if the Government had the power under s. 17 2 to extend the terms of the panchayats beyond March 31, 1974, it companyld number be said in the circumstances of the case, that in choosing to act under s. 303A, it had acted maliciously, the operational fields of these two provisions being so different and divergent. We would, therefore, overrule this companytention, also. These, then, are the reasons in support of our Order, announced on 27th September., 1974, whereby we had allowed these appeals and set aside the judgment of the High Court, leaving the parties to bear their own companyts throughout. We hope that the Government will take prompt measures to hold there elections expeditiously and will number use this judgment as an excuse to postpone the elections indefinitely. On 27th September, 1974, when we declared our order, we had asked Counsel for the State Government to impress upon his clients the need, especially in the present climate, to preserve the democratic processes.

Case appeal was accepted by the Supreme Court