Datasets:

SajayR

/

Cisco

like 0

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1013 of 1973. From the Judgement and Order dated the 7th September, 1972 of the Bombay High Court at Bombay in Appeal No. 453/60 from Original Decree. C. Bhandare and K. Rajendra Choudhary for the appellant. S. Desai R.G. Samant P. C. Bhartari K. J. John, J.B. Dadachanji, C. Mathur and Ravinder Narain for the respondents. The Judgment of the Court was delivered by-,. RAY, C. J. The question in this appeal by certificate is whether the appellant is entitled to protection of section 4B of the Bombay Tenancy and Agricultural Lands Act, 1948 hereinafter referred to as the 1948 Act. Section 4B states that numbertenancy of any land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired. The appellant became a tenant of the respondent for a period of five years with effect from 1 March, 1943. The tenancy was in respect of certain agricultural lands belonging to the respondent. The lease companytained a clause for renewal for five years. The appellant did number exercise the option of renewal. The lease expired on 28 February, 1948. The respondent by a numberice dated 25 October, 1955 terminated the tenancy with effect from 1 April, 1957. The respondent gave another numberice to the appellant on 10 June, 1958 without prejudice to the earlier numberice and called upon the appellant to deliver possession within 7 days. The respondent on 14 September, 1959 filed a suit against the appellant for possession. The trial Court did number grant a decree for possession. On appeal the High Court also held that the appellant was number liable to be evicted. On appeal, this Court remanded the matter to the High Court for a report on two questions. First, whether the appellant was a protected tenant on 1 March, 1953. Second, if the appellant was a protected tenant on 1 March, 1953 whether the appellant companyld claim benefit of Section 5 of the Amending Act, 1952. The High Court submitted the report holding that the appellant was a protected tenant on 1 March, 1953 but that the appellant was number entitled to claim the benefit of section 5 of the Amending Act 1952. Section 5 of the Amending Act gave certain relief to tenants other than protected tenants. This Court affirmed both the findings of the High Court and set-, aside the judgment of the High Court from which an appeal had been taken to this Court. See Manekji Edulji Mistry Ors. v. Manekshe Ardeshir Irani Anr. 1972 1 C.R. 334 . This Court at the invitation of the parties directed the High Court to determine whether there was a valid termination of tenancy because there were two issues as to damages yet to be decided. The High Court on remand has held that the appellant was number entitled to any numberice and that the appellant was a tenant on sufferance,, The issues as to damages are number yet heard. in this appeal, the appellant companytends that the appellant is entitled to protection under section 4B of the 1948 Act because the appellant is holding over and the tenancy cannot be terminated by efflux of time. The companytract of tenancy companymenced on 1 March, 1943. It was for a period of five years ending on 28 February, 1948. Under section 23 1 b of the Bombay Tenancy Act, 1939 as it stood amended in 1946, every lease subsisting on the date when that section came into force became deemed to be for a period of number less than ten years. The effect of the statutory provision was that the appellants lease which would have expired on 28 February, 1948 expired on 28 February, 1953 by reason of the deeming provision of section 23 1 b of the 1031 Act 34 3 The 1948 Act while repealing the 1939 Act did number repeal but modified sections 3, 3A and 4 of the 1939 Act. These three sections of the 1939 Act deal with protected tenants. The relevant section for the purposes of this appeal is section 3A as modified by the 1948 Act. Section 3A states that every tenant shall, from the eighth day of November, 1947 redeemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is number a protected tenant. The landlord in the present case did number make any application as companytemplated in section 3A of the 1939 Act as modified by the 1948 Act. The result was that the appellant became a protected tenant by virtue of the 1948 Act read with section 3A of the 1939 Act. From 1 March, 1953 until 31 July, 1956 the appellant remained a protected tenant under the 1948 Act until section 88B was introduced in the 1948 Act by Act 13 of 1956. The effect of introduction of section 88B in the 1948 Act was that the appellant numberlonger remained a protected tenant. Along with section 88B was introduced section 4A. Section 4A states that a person shall be recognised to be a protected tenant if such person has been deemed to be a pro- tected tenant under section 3, 3A, and 4 of the Bombay Tenancy Act, 1939 referred to in Schedule 1 of the 1948 Act. Section 4A does number apply to tenancies governed by section 88B 1 of the Act. After the appellant ceased to be protected tenant on 1 August, 1956 and the original companytractual tenancy had ceased On 28 February, 1948 the appellant was in occupation of the lands on sufferance. It cannot be said that the respondent assented to the appellant companytinuing in possession on the same terms and companyditions as in the original tenancy. When the protection was withdrawn on 1 August, 1956 there companyld be numberquestion of holding over because there was numbercontractual tenancy. In the present case, it is number necessary for us to express any opinion as to whether section 84 of the Bombay Land Revenue Code or section 106 of the Transfer of Property Act would apply with regard to numberice to quit. The respondent-landlord gave a numberice to quit in 1955. At that time, there was numbercontractual tenancy. The appellant was a protected tenant. Immediately the protection was taken away by section 88B of the 1948 Act the only question is whether the appellant companyld claim to remain in occupation on the plea of holding over. If a lessee remains in possession after determination of the term, he is under the companymon law a tenant on sufferance. The expression holding over is used in the sense of retaining possession. If a tenant after the termination of the lease is in possession without the companysent of the landlord, he is a tenant by sufferance. It is only where a tenant will companytinue in possession with the companysent of the landlord that he can be called a tenant holding over or a tenant at will. In the present case, there is numberdoubt that the appellant did number have any companysent and the respondent never gave any companysent to hold over. The appellant remained in possession on sufferance. Therefore section 4B of the Act has numberapplication because there is numbertenancy. Tenancy is a matter of privity of parties. If there is numberconsent, the appellant is a tres- passer. A companytention was advanced on behalf of the appellant that he appellant was entitled to a numberice when the Collector held an inquiry under section 88B 2 of the Act for the purpose of granting a certificate to the respondent. The Collector under section 88B 2 of the Act grants a certificate after holding an inquiry that the companyditions in the proviso to section 88B 1 are satisfied by any Trust. The Trust has to satisfy two companyditions. First, the Trust is registered under the Bombay Public Trust Act, 1950. Second, the entire income of the lands which are the property of the Trust is appropriated for the purposes of such Trust. The certificate granted by the Collector shall be companyclusive evidence. The appellant raised this companytention in the High Court that the appellant was entitled to a numberice. The High Court did number accept the companytention. The High Court held that the appellant at numberstage denied the fact that the lands are the property of a Trust. The inquiry is between the Collector and the Trust. The companyclusive evidence clause in the section means that it is a rule of evidence which would number render it necessary for it to prove again the companypliance with the requirements. For those reasons, the appeal is dismissed.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 278 of 1974. Petition under Article 32 of the Constitution of India. K. Sinha and S. K. Sinha, for the petitioner. Lal Narayan Sinha, Solicitor General of India, Gyan Sudha Misra and B. P. Singh, for the respondents. The Judgment of the Court was delivered by BHAGWATI, J. The petitioner, who is an advocate practising in the companyrts in Dhanbad in the State of Bihar, has filed the present petition challenging the validity of an order of detention dated 18th March, 1974 made by the District Magistrate, Dhanbad under section 3 of the Maintenance of Internal Security Act, 1971. The case of the petitioner is that he is a prominent public figure in the District of Dhanbad and he has been Pramukh of Baliapur Anchal since the last about ten years and Vice-Chairman of Zila Parishad, Dhanbad since about four years. He has been associated with numerous social, educational and political institutions in the District of Dhanbad and he is engaged in diverse activ ities calculated to bring about social and economic uplift of down-trodden people of Dhanbad District. The 16th Annual Convention of Bihar Rajya Panchayat Parishad was scheduled to be held at Gosaidih in Dhanbad District on 16th March, 1974 and the petitioner was the Chairman of the Reception Committee. The ruling party was very much companycerned about the growing popularity of the petitioner with the backward classes, and therefore, with a view to undermining his position, the ruling party chose this particular time when the 16th Annual Convention of the Bihar Rajya Panchayat Parishad was shortly due to be held and got a false case instituted against the petitioner at P. S. Tundi. The petitioner was arrested at Dhanbad on 6th March, 1974 and after being produced before the Sub-Divisional Magistrate, he was taken to Bhagalpur Central Jail from Dhanbad. On March 1 1, 1974 the petitioner made an application to the Sub-Divisional Magistrate for being released on bail but numberimmediate order was passed on that application and the petitioner was, therefore, companystrained to move the Sessions Judge for bail on 14th March, 1974. The Sessions Judge granted bail to the petitioner and on the bail bonds being verified and accepted by the Sub-Divisional Magistrate, an order dated 18th March, 1974 was passed for release of the petitioner. On the same day, that is 18th March, 1974, the District Magistrate, Dbanbad passed an order detaining the petitioner under section 3 of the Act on the ground that it was necessary to do so with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order. The order of detention was in Hindi, which is the official language of the State of Bihar but there was also an English version of the order of detention. There was numbermaterial difference between the Hindi and English versions of the order of detention. Pursuant to the order of detention, the petitioner was arrested on 21st March, 1974 as soon as he was released on bail in companypliance with the order of release passed by the Sub-Divisional Magistrate and at the time of his arrest the Hindi as well as English versions of the order of detention were served on him together with the grounds of detention which were also in Hindi and English versions. The Hindi version, as translated in English, set out the following grounds of detention He has been propagating companymunal hatred between Adibasis and outsiders Biharis and also between Adibasis and number-Adibasis for quite some time. He has been instigating the Adibasis to take up arms and laws in their own hands in several speeches and otherwise. As a result of these instigations and incitements, public order has been disturbed several times at several places. It would number be possible to give details of such instances, but as illustration, a few of them are given below On 25-2-1973, at Katras Ceramic Factory, Tilatanr, P. S. Katras, District Dhanbad, he instigated the employees of the said ceramic factory to remove the outsiders Biharis by force from the employment of the said factory and in companysequence of the said abetment, 200 persons, armed with deadly weapons like lathi, grass etc., took out a procession and attacked the shop of one Ram Kripal Dubey and assaulted him and his father by means of lathi and grasa, and also damaged the factory and immediately thereafter the violent processions attacked the residential quarters situated in the factory premises and assaulted the inmates and thereby companymitted acts prejudicial to the maintenance of public order On 29-8-73, in the Railway Football Maidan, Gomob,P. S. Topchanchi, District Dhanbad, in companyrse of public speech, he asked the people to take law in their own hands by speaking Apna Faisla Ap Karo, Pahle Gherao Karo, Fir Mukka Lath Se Maro, Fir Lathi Chhalao, Uspar Vi Nahin Sunta Hai To Sar Kat Lo. Similarly, on 3-11-73, at the said place, he, in a public meeting orga nised by Chotanagpur-Santbal Pargana Alag Raj Nirman Samity, instigated to local advasis and harijans to capture the lands purchased by the number-Adibasis by means of force and to harvest the standing paddy crops therefrom. Again on 4-2-74, in Golf Ground, Dhanbad, P.S. and district Dhunbad, in a meeting of Adibasis organised by Jharkhand Party, be instigated the people to take the law in their hands and to disturb the public peace by uttering Agar Aaaz Hame Koi Hat Dikhaega To Uska Hat Kat Lange, Aur Angali Dhikaega To Angali Kat Lange and thereby companymitted acts prejudicial to the maintenance of public order On 1-1 1-73, at village Maachkocha and Mahatotund,P. S. Topabanchi, District Dhanbad, in companysequence of instigation given by him and his companyassociates, namely, Gopal Chandra Munsbi, Sriram Manjhi. Rashiklal Majhi, Shibu Soren and others in village Maichokocha in the preceding night, Jhari Manjhi, Buddhu Manjbi, and others, belonging to Shivaji Samaj forcibly took away the standing paddy crops from plot No. 383 in village Maichakocha and plot No. 340 in village Mahatotanr, belonging to one Ram Anandi Singh, and grown by him, and thus companymitted acts prejudicial to the maintenance of public order On 3-3-74, at village Singhdih, P.S. Topchanchi, district Dhanbad, he instigated the local Adivasis and Harijans in a Public meeting companyvened by Jharkhand Alag Raj Nirman Samiti to capture the lands of number-Adibasis by means of force and violence and so in companysequence of the said instigation immediately thereafter the Adibasis and Harijans, numbering about 4,000, took out a procession being armed with deadly weapons, under his leadership and on way, in between Singdih and Amalkhori damaged a motor car bearing No. BRW 9981 and thus companymitted acts prejudicial to the maintenance of public order On 4-3-74, at village Dumanda, P.S. Tundi, District Dhanbad, he organised a meeting of the Manjhis Adibasis and instigated them to loot the properties of Dikus number-Adivasis namely, Joy Narayan Choudhury of village Durgadih, K. C. Chopra, Ismail Mia and others and in companysequence of the said abetment on 5-3-74, at about 1.30 p.m. 500 persons, armed with deadly weapons like bows and arrows, bhalla, farsha, lathi etc., formed an unlawful assembly with the companymon object of looting the properties of Dikus and forcibly removing them from there, and in prosecution of the said companymon object they surrounded the house of the said Joy Narayan Choudhury in village Durgadih, P.S. Tundi, District Dhanbad, and started petting brickbats and shooting arrows as a result of which Ganga Bishnu Prasad and Girdhari Rai sustained injuries and thereafter set fire to the house of said Joy Narayan Choudhury and thus companymitted acts prejudicial to the maintenance of public order. Then the Hindi version proceeded to recite the satisfaction of the District Magistrate that in the circumstances he was satisfied that if the petitioner is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order and for prevention of such activities he companysidered the detention of the petitioner necessary. The English version also gave the same grounds of detention but the satisfaction of the District Magistrate recited in the English version was a little different. It stated that the District Magistrate was satisfied that if the petitioner is allowed to remain at large he will indulge in activities prejudicial to the maintenance of public order or security of the State and for prevention of such activities he companysidered the detention of the petitioner necessary. The words or security of the State were added in the recital of the satisfaction in the English version though they were absent in the Hindi version. The petitioner, made an elaborate and exhaustive representation to the State Government against the order of detention in an attempt to answer the grounds on which the order of detention was based, but this representation was rejected by the State Government on 24th April, 1974. In the mean time the case of the petitioner was placed by the State Government before the Advisory Board and the representation of the petitioner was also forwarded to the Advisory Board for its companysideration. The Advisory Board gave an opportunity to the petitioner to be person- ally heard and after companysidering all the facts and circumstances of the case gave its opinion on 2nd May, 1974 that there was sufficient cause for the detention of the petitioner. The State Government thereafter companyfirmed the order of detention on 11th May, 1974. This detention order was challenged by the petitioner by filling a petition under Art. 226 of the Constitution in the High Court of Judicature at Patna. But a Division Bench of the High Court did number find any infirmity in the detention and by an order dated 14th May, 1974 rejected the petition. The petitioner thereupon filed the present petition in this Court under Art. 32 of the Constitution challenging the validity of his detention on various grounds. The first ground on which the validity of his detention was challenged on behalf of the petitioner was that the English version of the grounds of detention recited that the District Magistrate was satisfied that if the petitioner was allowed to remain at large he would indulge in activities prejudicial to the maintenance of public order or security of the State. This recital showed that the District Magistrate did number apply his mind with any seriousness either to the acts alleged in the ,grounds of detention against the petitioner or to the question whether they fell within the purview of the expression the maintenance of public order or the security of the State or both and that was sufficient to vitiate the order of detention. Now, there can be numberdoubt, in view of the decisions of this Court in Kishori Mohan Bera v. The State of West Bengal 1 and Akshoy Konai v. State of West Bengal 2 that if the order of detention purports to be based on the satisfaction of the detaining authority that it is necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public order or security of the State, it would clearly be an invalid order. The satisfaction of the detaining authority in such a case would be on the disjunctive and number companyjunctive grounds and that would me-an that the detaining authority was number certain whether it had reached its subjective satisfaction as to the necessity of exercising the power of detention on the ground of danger to public order or danger to the security of the State. If the detaining authority felt that it was necessary to detain the petitioner on the ground that his activities affected or were likely to affect both public order and the security of the State, it would use the companyjunctive and number the dis- junctive or in reciting its satisfaction. Where, however, the distinctive ,or is used instead of the companyjunctive and, it would mean that the detaining authority was either number certain whether the alleged activities of the petitioner endangered public order or the security of the State, or it did number seriously apply its mind to the question whether such activities fell under one, head or the other and merely reproduced mechanically the language of section 3 1 a ii . When such equi- A. T. R. 1972 S. C. 1749. A. 1. R. 1973 S. C. 300. vocal language is used and the detenu is number told whether his alleged activities set out in the grounds of detention fell under one head or the other or both, it would be difficult for him to make an adequate representation against the order of detention. If, therefore, it appears in the present case that the order of detention made by the District Magistrate was based on the satisfaction that it was necessary to detain the petitioner with a view to preventing him from carrying on activities prejudicial to the maintenance of public order or the security of the St- ate, it would have to be struck down as invalid. But we do number find that there is any such infirmity in the order of detention. Whether we look at the Hindi version or the English version, the satisfaction which is recited in the order of detention and on which the order of detention is manifestly and avowedly based, is that it is necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. There is numberreference to the security of the State in the recital of the satisfaction companytained in the order of detention. The District Magistrate was satisfied that it was necessary to detain the petitioner only on the ground that his activities were prejudicial to the maintenance of public order and it was on the basis of this satisfaction that he made the order of detention. The, Hindi version of the grounds of detention also reiterated the satisfaction of the District Magistrate based on the same ground, namely, that the petitioner, if allowed to remain at large, would indulge in activities prejudicial to the maintenance of public order. The recital of the satis- faction in the Hindi version of the grounds of detention did number make any reference to danger to the security of the State by reason of the activities of the petitioner. It is only in the English version of the grounds of detention that we find the words security of the State added in the recital of the satisfaction of the District Magistrate. That is obviously the result of inadvertence and numberargument can be founded upon it. In the first place, Hindi being the official language of the State, it is the Hindi version of the grounds of detention which must be regarded as authentic and the validity of the detention must be judged with reference to the Hindi version of the grounds of detention and number the English version. Secondly, even if we companyfine ourselves to the English version of the grounds of detention, it is clear that at the end of each of the grounds it is stated in so many words that the acts of the petitioner were prejudicial to the maintenance of public order and there is numberreference there to prejudice to the security of the State and it is only in the companyclusion based on these acts that we find a recital of the satisfaction that if the petitioner is allowed to remain at large,he would indulge in activities prejudicial to the maintenance of public order or the security of the State. The words or the security of the, State are obviously incongruous in the companytext. They do number fit in with the companyclusion drawn at the end of each of the grounds which is companyfined only to the maintenance of public order and numberhing more. There can be numberdoubt that these words have crept in the English version of the grounds of detention through some mistake. We cannot invalidate the order of detention on the basis of such an obvious error, ignoring the order of detention in both its Hindi and English versions, the Hindi version of the grounds of detention and the totality of the companytext so far as the English version is companycerned. The petitioner then companytended that the first ground insofar as it alleged that the petitioner was propagating companymunal hatred, between Adivasis and other Biharis and also between Adivasis and number-Adivasis was vague and unintelligible and the order of detention was on that account invalid. We do number see any force in this companytention. Adivasis are the original inhabitants of the area while outsiders are those Biharis who have companye from outside and who are, therefore, regarded as outsiders by the original inhabitants. The petitioner was, according to this allegation companytained in the first ground, stirring hatred -between these two groups of people. He was also propagating hatred between two other groups of people, namely, Adivasis on the one hand and number-Adivasis on the other. This allegation can hardly be regarded as vague and unintelligible. In fact the District Magistrate gave number less than five instances companytaining detailed and elaborate particulars and they were sufficiently informative so as to provide more than adequate opportunity to the petitioner to made an effective representation. This ground must, therefore, be regarded as wholly unjustified and must be rejected. The next ground urged on behalf of the petitioner was that the District Magistrate had taken into account many more instances than those set out in grounds 2 to 6 and that was apparent from the use of the expression It would number be possible to give details of such instances in ground 1 . This ground is also, in our opinion, unsustainable. It is true that the District Magistrate stated in ground 1 that it would number be possible to give details of instances where by reason of instigation and abetment of the petitioner disturbances of public order had taken place, but that does number mean that the District Magistrate bad various instances in mind which he took into account in arriving at his subjective satisfaction without disclosing them to the petitioner. What the- District Magistrate meant to say by using tills expression was that instances of this nature were so many that one companyld number possibly have details of all of them, but there were a few before him by way of illustration and since he bad relied on them for arriving at the requisite satisfaction, he proceeded to reproduce them in grounds 2 to 6 . The only instances on which the District Magistrate relied for arriving at the requisite satisfaction were those set out in rounds 2 to 6 and numberothers. This ground also, therefore, cannot avail the petitioner. It was then companytended on behalf of the petitioner that the instance set out in ground 2 companyld number be regarded as one where companymunal hatred was propagated by the petitioner either between Adivasis and outsiders or between Adivasis and number-Adivasis and it did number, therefore, justify the inference set out in ground 1 . But this companytention is also futile, because it is clear from the instance as narrated in ground 2 that the petitioner instigated the employees of Katras Ceramic Factory to remove the outsiders Biharis by force from the employment of that factory, and in companysequence of this instigation, violence was companymitted by 200 persons armed with deadly weapons like lathis, bhalas etc. and if this companyld number be regarded as Propagation of companymunal hatred between Advasis and outsiders Biharis , we fail to see what other instance can be so branded. This incident also had direct nexus with maintenance of public order. The petitioner also companytended that the instance set out in ground 4 was an instance involving removal of paddy crops from two plots of land in villages Marchacocha and Mahatotund and that companyld have numberrelation to maintenance of public order. But is must be remembered that this instance does riot stand in isolation. It is a part of a series of instances set out in grounds 2 , 3 , 5 and 6 and if it is viewed in the companytext of these other instances, it is clear that it is number a localised instance affecting merely maintenance of law and order but a part of a series of acts affecting maintenance of public order. The last ground urged on behalf of the petitioner was that paragraphs 5 and 7 of the affidavit filed by Miss Sunila Dayal, Deputy Secretary to Government of Bihar, Home Department, in reply to the petition showed that there were various other materials in regard to the petitioner which were taken into account by the District Magistrate in arriving at his subjective satisfaction and since numberopportunity was given to the petitioner to make an affective representation in regard lo such materials, the order of detention was bad. This ground is also untenable. It is true that various statements in regard to the activities of the petitioner were made in paragraphs 5 and 7 of the companynter affidavit of Miss Sunila Dayal but these were obviously intended to repel the allegations of the petitioner that he was a dedicated social and public worker devoted to the uplift of the backward and down-trodden classes. They were number set out a facts taken into account by the District Magistrate for the purpose of arriving at his subjective satisfaction in regard to the necessity of the detention of the petitioner. Miss Sunila Dayal did number state anywhere in her companynter affidavit that these facts weighed with the District Magistrate in reaching the requisite satisfaction. In fact, the District Magistrate himself had made an affidavit in reply to the petition filed by the petitioner in the High Court of Patna and in that affidavit, he did number refer to any of these facts as having been taken into account by him in passing the order of detention. This ground must also, therefore, fail. These were the only grounds urged in support of the petition and since there is numbersubstance in them, the petition fails and the rule is discharged.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE, JURISDICTION Civil Appeal No. 885 of 1974. Appeal by Special Leave from the Judgment Order dated the 29th November, 1973 of the Kerala High Court in 0. P. No. 102 of 1973. K. Sen M. R handran and A. S. Nwnbiar, for the Appel- lant. S. Krishnamurthi Iyer and N. Sudkakaran, for Respondent No. 1. The Judgment of the Court was delivered by BEG, J. The University of Cochin was granted special leave to appeal to this Court against the judgment and order of the Kerala High Court allowing a writ Petition of the respondent Dr. N. Raman Nair who bad applied unsuccessfully on 15-10-1972 for the Post of Reader in the Department of Hindi after companying into force of the Cochin University Act 30 of 1971 hereinafter referred to as the Act . numberHigh Court had quashed a resolution passed by the Syndicate on 6-1-1973, for appointing Dr. A. Ramchandra Dey to the Post. The High Court had also quashed the resolution of the Syndicate of the University passed on 17-7-1972, the relevant part of which runs as follows Resolved that 1. the rules mentioned under section 6 2 of the Cochin University Act, 1971, be implemented in the case of teaching staff, as a class except in the case of post of Professor which shall be filled up exclusively in companysideration of merit but the reservation quota against this category should be provided additionally in the category of readers, Lecturers, Teaching Assistant, etc. taken companylectively. L319Sup. CI/75 It had directed the University to make appointments in companyformity with Section 6 2 of the Act. Section 6 lays down University open to All Classes and Creeds- No person shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, language, political opinion or any of them, be ineligible for, or discriminated against in respect of any employment or office under the University or membership of any of the authorities or bodies of the University or admission to any degree or companyrse of study in the University. In making appointments to posts in any service, class or category under the University, the University shall mutatis mutandis, observe the provisions of clauses a , b c of rule 14 and the provisions of rules 15, 16 and 17 of the Kerala State and Subordinate Service Rules as demanded from time to time. Section 6 of the Act, read as a whole, indicates that it was meant to eliminate unjustifiable discrimination. The provisions of Section 6 1 are directed against discrimination against particular individuals on any of the grounds given there. Section 6 2 is meant to ensure equality of treatment between citizens as members of groups, and, in particular, to enable backward classes to secure appointments so as to remove the gap between the advanced and the backward. In doing so, it may appear that the principle of equality of opportunity on the basis of individual merit is being modified. Even if that be the result, the wider object is to promote equality between groups of ,citizens. Rule 14, mentioned in Section 6 2 lays down a rule of rotation in making appointments. Rule indicates that the principle of minimum qualifications to determine whether candidates are suitable for selection is number abandoned. Rule 16 provides for a sub-rotation among sub-groups of major backward classes. This companycept is further explained and elaborated in Rule 17. These rules are set out below in toto. Reservation of appointments.-Where the Special Rules lay down that the principle of reservation of appointments shall apply to any service, class or cat,--gory, or where in the case of any service, class or category for which numberspecial Rules have been issued, the Government have by numberification in the Gazette declared that the principle of reservation of appointments shall apply to such service, class or category, appointments by direct recruitment to such service class or category shall be made on the following vice basis The unit of appointment for the purpose of this rule shall be 20, of which two shall be reserved for scheduled castes and scheduled tribes and 8 shall be reserved for the other Backward classes and the remaining 10 shall be filled on the basis of merit. Provided that one out of every five posts reserved for Scheduled Castes and Scheduled Tribes shall go to a scheduled Tribe candidate only in the absence of a Scheduled Tribe Candidate, it shall go to a Scheduled Caste candidate. The claims of members of Scheduled Castes and Scheduled Tribes and Other Backward Classes shall also be companysidered for the appointments which shall be filled on the basis of merit and where a candidate belonging to a Scheduled Caste, Scheduled Tribe or Other Backward Class is selected on the basis of merit, the number of posts reserved for scheduled castes, scheduled tribes or for Other Backward Classes as they case may be, shall number in any way be affected. Appointments under this rule shall be made in the order of rotation specified below in every of 20 vacancies. 1 . Open Competition. Other Backward Classes. Open Competition. Scheduled Castes and Scheduled Tribes. Open Competition. Other Backward Classes. Open Competition. Other Backward Classes. Open Competition. Other Backward Classes Open Competition. Scheduled Castes and Scheduled Tribes. Open Competition. Other Backward Classes. Open Competition. Other Backward Classes. Open Competition. Other Backward Classes. Open Competition. Other Backward Classes. Provided that the fourth turn in the third rotation and the twelfth turn in the fifth rotation shall go to Scheduled Tribe candidates and in the absence of scheduled tribe candidates, they shall go to Scheduled Castes candidates. Provided that the rule shall number apply in appointments of near relatives of military personnel killed, permanently disabled or reported to be missing in action if they are or have been wholly dependent on such personnel and- they shall be given preference, in the matter of appointment to Government Service provided, they possess the prescribed qualifications and subject to the companydition that preference in the matter of appointment shall be given only to one relation in the case of each such personnel. Explanation -The term Near Relatives means the widows wives, sons, daughters, sisters, brothers, fathers, mother nieces and nephews of the military personnel. If there is numbersuitable candidate for selection from a particular companymunity classified as Other Backward Classes or from the group of companymunities classified as Scheduled Castes and Scheduled Tribes in the turn allotted for them in the integrated cycle companybining the rotation in clause c of rule 14 and the sub-rotation in sub-rule 2 of rule 17, the said companymunity or group shall be passed over and the post shall be filled up in the following manner- If a suitable candidate is available for selection in the, companymunity or group immediately next to the passed over companymunity or group in said cycle, he shall be selected. If numbersuch candidate is available in that companymunity or group selection shall be made from the companymunity or group in the said cycle, he shall be selected. If numbersuch candidate is available in that companymunity or group, selection shall be made from the companymunity or group next following, strictly in the order of rotation. If numbersuitable candidate is available for selection in any of the said companymunities or groups, selection shall be made from among the open companypetition candidates. The benefit of the turn thus forfeited to a companymunity, or group by reason of it being passed over shall be resorted to it, at the earliest possible opportunity, if a suitable candidate from that companymunity or group is available for selection by making adjustment against the claims of the companymunity or group that derived the extra benefit by reason of such passing over Provided that in numberyear reservations including carrying forward vacancies to a category of post shall exceed 50 of the total number of vacancies for which selection by direct recruitment to that category is resorted to in that year Provided further that the right of restoration of the turn shall lapse with the expiry of three years from the date of the passing over Provided also that the said right of. restoration shall number extend to a case where the selection has gone, to an open Competition candidate. Note- The year of reservation referred to above shall be from the 15th June of a calendar year to 14th June of the succeeding calendar year. The rotation referred to above shall companymence from 15,-6-1967 and the outstanding companypensation due to companymunities in the cycle of rotation upto 15-6-1967 will be treated as lapsed. There shall be subrotation among major groups of Other Backward Classes. 17 1 . The grouping of Other Backward Classes for the above purpose shall be as indicated below Ezhavas and Thiyyas. Muslims. Latin Catholics S.I.U.C. and Anglo- Indians. Scheduled Caste companyverts to Christianity, Other Backward Classes put together i.e. Communities other than those mentioned in items 1 to 4 above included in the list of Other Backward Classes. The 40 reservation allowed to Other Backward Classes shall be distributed among the different groups of Backward Classes in the following proportion- Out of every 40 appointments 14 shall be given to Ezhavas and Thiyyas, 10 to Muslims, 5 to latin Catholics, S.I.U.C. and Anglo-Indians, I to Scheduled Caste companyverts to Christianity and 10 to Other Backward Classes put together. Note -The year of reservation referred to above shall The following shall be the rotation by which posts reserved for Other Backward Classes will be distributed among the various groups companying under the class- Ezhavas and Thiyyas, Muslims. Latin Catholics, S.I.U.C. and Anglo- Indians. Other Backward Classes. Ezhavas and Thiyyas. Muslims. Ezhavas and Thiyyas. Other Backward Classes. Latin Catholics, S.I.U.C. and Anglo- Indians. Muslims. Ezhavas and Thiyyas. Other Backward Classes. Ezhavas and Thiyyas. Muslims. Latin Catholics, S.I.U.C. and Anglo- Indians. Other Backward Classes. Ezhavas and Thiyyas. Muslims. Scheduled Caste companyverts to Christianity. Other Backward Classes. Ezhavas and Thiyyas. Muslims. Ezhavas and Thiyyas. Other Backward Classes. Ezhavas and Thiyyas. Muslims. Latin Catholics, S.I.U.C. and Anglo- Indians. Other Backward Classes. Ezhavas and Thiyyas. Muslims. Ezhavas and Thiyyas. Other Backward Classes. Ezhavas and Thiyyas. Muslims. Ezhavas and Thiyyas. Other Backward Classes. Latin Catholics, S.I.U.C. and Anglo- Indians. Muslims. Ezhavas and Thiyyas. Other Backward Classes. Explanation .-.-The expression Other Backward Classes referred to in items 4, 8, 12, 16, 20, 24, 28, 32, 36 and 40 shall mean Backward Classes referred to in item 5 under sub-rule 1 of this rule. It is number disputed that the petitioner-respondent No. 1 Dr. Nair, stood 1st in the order of merit as determined by the Board, of Appointments for the posts of a Reader in the Department of Hindi in the University. The petitioner- respondents case was that the post of Reader in Hindi is in itself a particular category. He also said If the principle for reservation of appointments provided in Rules 14 to 17 of the General Rules is applied to the post of Reader in Hindi, the petitioner alone is entitled to get it since he secured the 1st rank in the selection and since the first post is reserved for open companypetition on merits as provided in Sub Rule c of Rule 14 . The petitioner submitted that the principle of reservation had been wrongly interpreted by the University in its resolution of 17-7-1972 Ex. P. 2 when it laid down that principles of reservation for appointment should be Applied to posts in a service, or class or category companylectively and number separately. The whole case, therefore, hinged round an interpretation of Rules 14 to 17 and their impact on the principle of rotation as applied to service, class or category under the University. Section 6 2 laws down the mandatory duty upon the University to observe clauses a , b and c of Rule 14, as well as Rules 15, 16 and 17 of the rales set out above. But, it does number indicate the, manner in which the classification of members of a service under the University has to be made for the purposes of applying these rules Inasmuch as every statutory power has to be exercised reasonably, we can say that the classification has to be reasonable. Thus the University may treat all the teaching posts as belonging to one class for the application of the rules. On the other hand, it may treat only posts, of Readers in all subjects or in a particular subject as a category by itself for the application of these rules. It cannot exempt any class or category, such as Professors, from the operation of the rules altogether. Only if it so classifies all posts in a service under the University as to make its classification prima facie unreasonable, companyld the validity of the classification made by it be assailed. The power is presumed to be exercised reasonably on the strength of facts and circumstances relevant for purposes intended to be achieved by the classification. These purposes have also to pass the test of legality and companystitutionality. Clause c of Rule 14 lays down a scheme of rotation for every block of 20 vacancies. But, it does number specifically say that the rule of rotation will be applied in the order in which vacancies occur. We however, think that, by necessary implication, the rule is intended to be applied to vacancies in the order in which they occur. It companyld number be meant to be applied with reference to the date on which a vacancy is announced or advertised because these are fortuitous matters over which those in power in the University may, if so inclined, be able to exercise companytrol. The whole object of such rules is to introduce fixity of principle and of the method of its application so as to remove, so far as possible, uncertainty and opportunities for abuse of power. That being the object of such a rule, it seems obvious to us that the, rule must have been intended to operate with reference to the dates on which the vacancies occur and number with reference to some other events such as the dates of declaration or advertisement of the vacancies. The rules were made by the Govt. in 1967. Hence, the numbere occurs at the bottom of Rule 15 that the rotation provided for will companymence from 15-6-1967. This companyld number obviously be done, under the Cochin University Act 30, of 1971, which was published in the State Gazette on 13-8-1971. Therefore, for the purposes of applying these rules to the University, the rotation companyld only apply to vacancies existing on the date when the Act came into force and in the order in which they had occurred. It appears that the Syndicate of the University appointed a Standing Committee to draw up a list of the vacancies, in the class of posts with which we are companycerned, at the time when the Act came into force, under which the appointments were to be made in accordance with the rotation rules. This list Ex. p. 3 drawn up at a meeting of the Standing Committee of the Syndicate held on 1-1-1973 giving the number and designations of vacant posts, dates of vacancies, and allocation for the purposes of the rotation rule and the names of the candidates appointed, runs as follows - Regarding the appointments made so far and the appointments to be made from among those who have been selected after advertisement and interview, the Committee examined the details of allocations. The following is the result of the review No. Name of post Date of Allocation Nameof Carried occurrence candidate over of vacancy APPOINTMENT MADE ON 17-7-1972 Lecturer, SMS.10-7-1971 OpenMrs. Armies George. Lecturer, SMS.9-12-1971 ResDr. K. C. Sankarana Ezhava.Narayanan. Professor in Hindi17-7-1972 OpenDr. N. E. Viswanatha lyer. APPOINTMENT MADE ON 6-11-1972 Professor in SMS. 10-7-1971 Res. Sch.Dr. N. Paramaswaran CT Nair Sch. CT.,converted as open. Professor in SMS. 16-8-1972 OpenSri N. Renganatha Reddiar Not joined. Reader in SMS. 16-8-1972 Muslim.Dr. K. N. Nair, Res. Muslim. Lecturer in S MS. 16-8-1972 Open Dr. Jose Thomas companyverted PayyapallySch. C T as Sch. CT. C o. is lostand it is filled open. Lecturer in SMS. 16-8-1972 Res. L.C. Dr. C. N. Pursushotha- A. man Nair, L. C. Not joined No. Clo. as it is filled by open. Lecturer in SMS. 16-8-1972 Open Sri Alex. P. Lukose. POST TO BE FILLED ON 6-1-1973 Reader in Hindi 10-7-1971 Res. O.B.C.This vacancy has occurred earlier. Research Asstt. in Law 10-7-1972 Open. Lecturer in Physics 3-5-1972 Res. Sch. CT. Lecturer in Physics 10-12-1972 Open. The above mentioned document was signed by the Pro Vice Chanceilor of the University. It indicates that the vacancy of a Reader in the Department of Hindi was the first to occur. But, instead of allocating it to the open companypetition class, for the purpose of applying the rotation rule, it was allocated to the reserved block of posts. This was also an illegality companyplained of by the respondent Dr. Nair. The stand of the University was that it had followed the rotation rule according to which appointments were to be made alternately by a general or open companypetition and by choice restricted to backward groups. Dr. A. Ramchandra,Dev, however, took up the position that the University companyld even alter the rules, inasmuch as it had the power to apply them mutatis-mutandis, according to situations as they C arose. it appears that, at the time of arguments in the High Court, the University adopted the stand of Dr. A. Ramchandra Dev on this question. It seems to have been companytended in the High Court on behalf of the University that it was empowered to make the changes in the rules to meet the particular needs of the University so as to enable it to implement the provisions of Section 6 2 of the Act in the way it thought fit. We think that the High Court was right in holding that the power to apply the rules mutatis-mutandis does number include the power of amending the substantial provision in the rules. The High Court held Formal and inconsequential changes for dovetailing the rules into the frame work of the Act, alone seem to be companytemplated. We think that the High Court was right in companyfining the power of the University to making only what are necessary adaptations so as to make the rules applicable to those in the service of the University in place of the Government servants for whom they were promulgated. It companyld include a power to ignore only such parts as may be inapplicable or in companyflict with Act itself. An instance of this would be, as pointed out above, companymencement of the application of the rules after the Act came into force instead of in 1967 when, according to a numbere in Rule 15, the Rules had to be enforced. The High Court rightly held that the Syndicate companyld number, in any case, alter the provisions of Section 6 2 of the Act itself which made it incumbent on the University to apply the rotation rule, as companytemplated under the rules, to every service, class or category under the University. It held that if section 6 2 were to operate on its own terms, selection, to the post of Reader, for the first time made by the University, should, in the G first turn, go to the candidate adjudged best on open companypetition, and only on the next turn or turns to candidates on the principle of companymunal rotation. If the post of Reader in the Department of Hindi was the 1st to arise in service under the University, as appears to be the position from Ex. P. 3, an application of the rotation principle would companypel the first appointment to take place on the basis of an open, companypetition. That principle companyld certainly number be modified by the University by taking shelter behind the words Mutatis-mutandis. It has been stated by the learned Counsel for the University that the validity of the impugned resolution may be doubtful so far as the withdrawal of the post of Professor from the application of the above mentioned rules is companycerned, but, learned Counsel submitted, we need number decide that question as we are number companycerned here with An appointment to the post of a Professor. If, however, the Professors and Lecturers and Readers were all to fall in one class it may become necessary to companysider this question also. Moreover, we indicated below the two parts of the resolution do number seem to be separable. It is true that Section 6, sub. s. 2 lodges in the University a power to determine what should companystitute class or category of service under the Uni- versity. No rigid formula to fit all circumstances can be laid down and the authority companycerned must be left to define, subject to companystitutional limitations, what should be a class or category. But, this power would number, in our opinion, enable the University to dispense with the application of the rotation principle itself to any particular class or category of service under the University as appears to have been the real object of the resolution of 17-7-1972 with regard to Professors. The word service does seem to us to denote, as the High Court held, various classes or categories of posts within it. It is obviously the widest class. A classification which puts the whole teaching staff in one class for purposes of applying the rule would seem unassailable. But, one which puts all classes and categories of service from the peons to Professors together may, by destroying the distinction between classes and categories of service, seem to run companynter to the words used in Section 6 2 . As that question is number before us, we refrain from deciding it. This provision appears to us to be intended to ensure that, whatever may be the kind of post to be held by a person in a service under the University, principles laid down in Rules 14, 15, 16 and 17 must apply in making appointments to it. We are number called upon to decide here what is meant by a service under the University as it is admitted by both sides that this description applies to the post of a Reader. Nor have we to determine here the reasonableness of a classification which may put the teaching and number-teaching staff in one class or category. It was submitted by learned Counsel for the University,that the resolution of 17-7-1972 was intended to do numbermore than to categorise Readers, Lecturers and Teaching Assistants, by putting them into a single class or category, for applying the rules to them companylectively. If that is all it was meant to do, apart from attempting to place posts of Professors outside rules 14 to 17, the intention is ex- pressed in very unsatisfactory and misleading language. It is of companyrse, open to the University to pass a resolution which does number companytravene Section 6 2 of the Act. A resolution which nerely classifies or categorises posts in a reasonable manner would number offend against statutory provisions.- The resolution of 17-7-1972 is, however, atleast partly invalid, on the face of it, by attempting to place H appointments to the post of a Professor outside the reservation and rotation rules, altogether, and it is partly atleast ambiguous so that it is difficult to decipher its exact meaning. The second part seems designed, in so far as one may guess its meaning, to provide for Other Backward Classes a companypensatory quota of reserved appointments in a category other than that of Professors in lieu of the, removal of posts of Professors from subjection to the rules. If this is the real object, as it seems to be, di. intention was to alter the scope or ambit of the rotation rule. The second part is apparently a companysequence of the exclusion of the Professors from the operation of the ruleswhich it itself number permissible-and number an adaptation for the purposes. of applying the rules to the University. Thus, the two parts seem to be inseparable. We, therefore, companysider the resolution to be wholly invalid.- The validity of Section 6 2 has number been questioned either in the High Court or here. We have been informed at the Bar that both the 1st and the 3rd Responcients, that is to say, Dr. Nair and Dr. Ramrhandra Dev, are at present holding posts of Readers in the Hindi department as the needs of the University have expanded. It may however, be necessary to determine the order of their appointments after the University his laid down its own method of reasonable classification either of the whole teaching staff of the University companylectively or by putting various categories of the teaching staff into separate companypartments for the application of the rules. We have held that the University has, this power provided it is exercised on good and reasonable grounds. We have only indicated that, on such facts as have companye to our numberice, the particular vacancy for which both Dr. Raman Nair and Dr. Ramchandra Dev were companypeting seemed to us to be the first to arise for the purposes of applying Section 6 2 of the Act. As thiis matter was number fully investigated, and, the power is vested in the University to make its own classification within the limits indicated by us. we think that it is desirable that the University should be left to make its own reasonable classification in accordance with the principles laid down above by us so as to determine which of the two Readers was entitled to be appointed earlier. In other words, the Syndicate of the University will have to pass a fresh resolution which is in accordance with the law as explained by us and then to apply the rules in companyformity with such a resolution in exercise of the powers possessed by the University. The result is that we dismiss this appeal subject to the elucidation given by us of the manner in which the directions issued by the High Court to the University to act in accordance with Section 6 2 of theAct are to be carried out by the University. We make numberorder as to companyts.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 292 of 1974. Petition Under Article 32 of the Constitution of India K. Sen, Badri Das Sharma and S. K. Bagga, for the Petitioner. M. Singhvi, S. M. Jain and S. K. Jain, for the Respondent. The Judgment of the Court was delivered by SARKARTA J. The petitioner challenges the validity of the order of his detention made by the District Magistrate, Jodhpur under s. 3 1 a iii of the Maintenance of Internal Security Act, 1971 for short the Act and prays for a writ in the nature of habeas companypus. The order of detention was passed on March 18, 1974. In pursuance thereof, the petitioner was taken into custody on March 19, 1974. The detention order for short, the first order which was served on the detenu at the time of his arrest on March 19, 1974. states whereas, the said Shri Bankat Lal has been indulging in rampant adulteration of essential foodstuff and supply thereof for companysumption by the companymunity at large, operating a factory and firm under the name and style of Laxmi Narain Moondra situated in Makrana Mohalla, Jodhpur for such adulteration, so much so, that 170 odd bags of material which among other things, includes 7 tins of sawdust, 15 bags of companyour yellow and Gherwa , 70 bags of chilli seed, black companyour leaves, which look like tea leaves, one bag of gypsum khaddi power and a tin of animal dung, used and intended for use in adulteration of foodstaffs, which are piosonous and injurious to public health were recovered from your godown and one floor mill owned and or companytrolled by the said Shri Bankatlal And, whereas recovery from the godown and flour mill mentioned in the preceding paragraph, also includes foodstuff like Haldi, Mirchi, and Amchoor, which on chemical examination by the Public Analyst have been found to be adulterated for which prosecution is companytemplated against the said Shri Bankatlal under the Prevention of Food Adulteration Act, 1954 And, further there is reasonable apprehension that the said Shri Bankatlal will companytinue to indulge in adulteration and sale of adulterated foodstuffs and thereby act prejudicial in the matter of maintenance of supplies essential to the companymunity and frustrate the objective of supply of pure- foodstuffs to the companymunity at large and there is numberother way to prevent him from acting in such prejudicial manner otherwise than by invoking the provisions of s. 3 1 a iii of the Maintenance of Internal Security Act. And, therefore, in exercise of the powers companyferred upon me by S. 3 2 of the Maintenance of Internal Security Act, I order the detention of Shri Bankatlal . The second order companytaining further particulars of the grounds of detention was served on the petitioner on March 20, 1974. It reads x x x I . That on 11-3-1974 between 11 - 30 a.m. and 2 p.m. Dr. Miss Raj Kumari, District Chief Medical and Health Officer Jodhpur together with . . . . . went to Sumer Market . . .where one Shri Hiranand son of Shri Lal Chand Sindhi, retailer gave credible information that you are owning a business firm named as Laxmi Narain Moondra a wholesale companycern at Killikhana, Makrana Mohalla, Jodhpur and you are doing wholesale business of adulteration of essential companymodities foodstuffs by adultering cheap unhygenic and injurious materials like companyours, saw-dust, gypsum, Gharu and sand with chilly-seeds, Haldi, Dhania, Amchur, tea-leaves and flour and manufacture adulterated foodstuffs for sale to the general public as pure varieties of such essential companymodities. When the party raided your above shop and four godowns situated in the same premises and searched there between 11-3-1974 and 14-3-1974, the information given by Shri Hiranand was companyfirmed. You, together with your son were found present in your shop and on the search of your premises the checking party found under your ownership and companytrol huge quantities of adulterated foodstuffs as well as the materials used by you for the purpose of adulterating essential companymodities. A perusal of the recovery memos of the articles seized show that you possessed the stock of following adulterated articles for manufacture, sale and storage of foodstuffs for sale under your companytrol. On 11-3-1974 in your main shop- Eleven full bags and seven half-bags of adulterated chilli powder, weighing 80 Kg. to 20 Kg. each. One quintal bag of Haldi powder and two half bags of the same. Ten to twenty kg. bags of Amchur powder. one tin of Dhaniya mixed with refuse. Two tins of Tumba oil. Samples of each of the above foodstuffs were taken on 11 3- 1974 by paying you. the price of each sample in the presence of Motbirs and forms IV and V were given to you sealing the articles in your, presence and companyy of the recovery memo, was also furnished to you. On 11-3-1974 Two rooms in the main shop companytaining above foodstuffs were scaled in your presence companytaining Sixty bags of chilli powder. Ten bags of Haldi. Five bags of Amchur. Five bags of unhusked Amchur. On 11-3-1974-The following material used by you for adulteration was recovered from your main shop. One bag of gypsum Khaddi . Half bag of red companyour used for mixing with chilli powder. One package of I. C. I. companyour companytaining green companyour suspected to be used for companyouring adulterated Dhaniya. One packet companytaining saffron companyour used for mixing with Haldi powder. Red companyoured plastic paper used for mixing purposes. Weights and weighing machines. On 12-3-1974 at 3 25-From your godown No. 1 and 2 rented to you by Shri Ramesh Chandra Mathur of the same locality Sixty-two bags of chilli unhusked seeds, used for adulterating in chillies. On 13-3-1974 from above godown Thirty-four bags of chilli seeds. Ten tins of black used-ten-leaves-like material. Ninety-nine tins of white powder. Two bags of suspected soap stone powder. On 13-3-1974 and 14-3-1974. From the flour mill under your companytrol in which food licence No. 1666 Book No 10 dated 13-3-1973 in the name of your wife Srimati Ramadevi was also recovered.- Eleven bags of husked seeds of chillies. Two tins suspected to companytain Donkey dung. Eleven tins of suspected material with sawdust. 4. one tin of yellow saw dust. One tin of suspected mango seed powder. Two tins of waste material of Dhaniya. That the samples of foodstuffs sold by you to the Food inspector on 11-3-1974 were examined by the Public Analyst and found on examination highly adulterated companytaining Chilli powder-total ash 8.12 and ash insoluble in C. C. 1 .99 , companytains silicious matter sand etc. Haldi which companytains 46 .24 heavily infested with insects in such material. Amchur which companytains 20 extraneous matter. This further companyfirms your dealing in adulterated foodstuffs and its supply to the companymunity. 3 That it Was found from the statements of Hira Nand and your landlord Ramesh Chandra Mathur whose premises are ren- ted by you for hoarding and manufacturing above foodstuffs that you are engaged in such business for a long time number and you put such a ulterated companymodities for sale to the innocent customers as pure foodstuffs. That in order to escape the companysequences of your actions, you deliberately failed to produce your firms Registration certificate issued under the Shops and Commercial Establishment Act. That you deliberately refused to open the flour mill established under your companytrol in the name of your wife Srimati Ramadevi and prevented the Health Officer from taking the search of the above mill in your presence. However, by invokingy the provisions of section 10 of the Prevention of Food Adulteration Act, 1954, the mill was unlocked in the presence of motbirs and huge adulterated foodstuffs and material used for adulterating foodstuffs were recovered. That in your main shop, you fraudulently and deliberately exhibited writings on cardboard styled foodstuffs number for human companysumption to avoid the checking. However, the recovery of the adulterated articles on the companytrary prove that numbere of these articles are used other than as foodstuffs. That the recovery of huge quantity of above adulterated foodstuffs and adulterated material which is unhygenic and injurious to the public health goes to prove that by indulging in the business of manufacture sale and storage for sale of such essential companymodities you have been acting prejudicial to the maintenance of supplies essential to the companymunity and have been doing so for several years past and further, that you are likely to companytinue to indulge in this nefarious activity injurious to the public health and prejudicial to the maintenance of supplies essential to the companymunity and that you companyld number be prevented from doing so by mere prosecution under the Prevention of Food Adulteration Act, which is being companytemplated and therefore, it was necessary to detain you by invoking the provisions of s. 3 1 a iii of Maintenance of Internal Security Act, 1971. Now some other material facts may be set out. The State Government approved the order of detention on March 23, 1974. On or about the 6th April, 1974 the petitioner moved the High Court of Rajasthan under Article 226 of the Constitution for the issue of a writ of habeas companypus on the ground that his detention was illegal. The High Court dismissed the writ application on May 6, 1974. The re- ference to the Advisory Board was made on April 10,1974 in companypliance with s. 10. The detenu made a representation, dated 16/17th April 1974, which was despatched by the Superintendent, Central Jail, Jodhpur, on April 17, 1974, and was received by the Government on April 20, 1974. The Government then forwarded that representation to the Advisory Board which companysidered it and heard the detenu in person and reported to the Government that there was sufficient cause for the detention. The State Government companyfirmed the detention order on May 11, 1974. Mr. Ashok Sen, learned Counsel for the petitioner has tried to make out these points in his arguments 1 The grounds of detention are number-existent 2 The grounds companymunicated to the detenu are number germane having a direct nexus with the maintenance of supplies and services essential to the companymunity 3 The District Magistrate had stated in his affidavit before the High Court that before passing the order of detention, he had companye to know that the petitioner had been prosecuted and companyvicted earlier under the Prevention of Food Adulteration Act. This ground which must have weighed with the District Magistrate in making the detention order, was number mentioned in the grounds of detention companymunicated to the detenu who was, in companysequence, deprived of the opportunity of explaining the circumstances in which he was earlier companyvicted. Failure to do so leaves the ground companymunicated vague and the detention is on that account illegal. In elaboration of the first point, Mr. Sen submits that in the first place, the donkey dung, saw-dust, gypsum, I. C. I. Colours, companyoured plastic paper, dhaniya waste, etc. which were found in the premises were number adulterants. They were kept there for innocuous purposes. The donkey-dung was meant for being used as fuel the sawdust was there for preserving slabs of ice. Secondly, there was numberevidence, whatever, that these articles were being used to adulterate the spices or other foodstuffs for sale. It is stressed that numbere of the foodstuffs taken from the premises was found adulterated or mixed with these alleged adulterants viz., donkey-dung, sawdust I. C. I. companyour etc. The only extraneous matter in the sample of chilli powder detected by the Public Analyst-proceeds the argument-was 1 .99 , sand. Presence of such a small percentage of sand in that sand-swept companyntry may be an act of God and number of the petitioner and the same companyld be the reason for the presence of stone-dust in the sample of Amchoor. About the presence of insects, 46 .24 in the sample of Haldi-whole it is companytended that the same had also been brought about by the process of nature and number by human hand. Strictly Speaking, maintains the Counsel, numbere of the foodstuffs in the premises had been found adulterated the three samples examined by the Public Analyst were only sub- standard. It is urged that there was numbernexus between the alleged adulterants and the foodstuffs the samples of which were found sub-standard. The detaining authority had therefore in taking into account these alleged adulterant, erred and based the order of detention on an irrelevant companysideration. Since it cannot be predicated, argues the Counsel, to what extent the authority was influenced by this irrelevant matter, the order stands vitiated. Dr. Singhvi, learned Counsel for the State, submits that the reports of the Public Analyst, far from excluding, strongly indicated the possibility of the samples of, chilli powder and Amchoor companytaining a substantial percentage, of animal dung, sawdust, gypsum and waste matter. In particular, it is stressed that the dust and stones found in Amc were probably of gypsum. The Analyst, it is pointed out, did number say that duststones and companyiander seeds were the only companyponents of what he companypendiously describes as 20 extraneous matter. It is further submitted that the fibre and insoluble ash found in the chilli powder might be due to the mixing of the adulterants other than I. C. I. companyour found in the premises. On these premises, it is maintained, the seizure of the aforesaid adulterants along with the adulterated foodstuffs for sale, was highly relevant and germane to the object of the detention viz., maintenance of supplies and services essential to the companymunity. Taking the first points first, the presence of donkey-dung, sawdust, gypsum, I. C. I. companyours, refuse, companyoured plastic, papers etc. stored in tins, bags or other receptacles, in premises where spices and other foodstuffs were also lying stored, some of which were found adulterated was by itself a suspicious circumstance. The petitioner held numberlicense to deal in I. C. I. companyours or gypsum etc. At numberstage, the petitioner said that the animal dung had been stored by him for use as fuel and we doubt very much that donkey dung is so used. Nor did he say that the sawdust had been kept there for preserving ice or for other domestic use. With winter waning, the season must still be companyl on the 11th March. The question on fusingice in that season did number arise. Although sawdust, gypsum, I. C. I. companyours etc. are articles of innocent use, yet in the circumstances of the case, they companyld furnish reason for the detaining authority to suspect that they were kept there for use as adulterants. This suspicion was strengthened by the fact that thee samples of chilli powder, Amchoor and Haldi-whole were found by the- Public Analyst to be highly adulterated companytaining 1. 45 extraneous matter and 46.24 insects. True, that the Analyst did number find any artificial companyouring matter in these samples. But at the same time he did number positively exclude the possibility of sawdust, donkey-dung, gypsum and refuse having been used in adulterating te samples. He detected in Amchoor, 20. 0 extraneous matter including dust-stones, and other edible seeds namely companyiander etc. apart from insects. Gypsum is rock chalk. Chemically, it is hydrous calcium salphate. The dust stones companyld be calcium sulphate. Then, the use of etc. by the Analyst shows that this extraneous matter companyld include other things also. The result of the analysis of chilli powder was as under Moisture companytent 6.82 Total Ash 8.12 Ash insoluble in HCI 1.99 Crude fibre 28.16 It is evident that there was an excess of insoluble ash 1 . 99 which according to the particulars companyveyed to the detenu, was siliclous matter, sand etc. The possibility of gypsum being a companyponent of this insoluble ash had number been ruled out. There companyld be numberdoubt that on the basis of the reports. of the public Analyst, the chilli powder, Amchoor and Haldi- whole taken from the premises of the petitioner were prima facie adulterated articles. Section 2 1 of the Prevention of Food Adulteration Act, 1954 provides an article of food shall be deemed to be adulterated b if the article companytains any other substance which affects, or if the article is so processed as to affect, injuriously the nature. substance or quality thereof, c if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof and f if the article companysists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect- infested or is otherwise unfit for human companysumption On the report of the Public Analyst the chilli powder and Haldiwhole would be deemed to be adulterated articles of food falling within the above quoted clauses c and f respectively, while Amchoor would be companyered both by clauses b and c . Two things emerge clear from the above discussion. First, that the chilli powder, Amchoor and Haldi-whole of which samples were taken were adulterated articles of food. Second, in the light of the information received by the detaining authority that the petitioner had been systematically adulterating food-stuffs on a large-scale, the discovery in bulk of extraneous matter stored in the premises, which companyld be used for adulteration, companyld number be said to be, irrelevant. By numberstretch of reasoning, therefore, companyld it be said that the grounds of detention were number-existent. This takes us to the second point. It raises the question Is food adulteration activity an activity prejudicial to the maintenance of supplies and services to the companymunity? For reasons that follow, the answer to this question, in our opinion must be in the affirmative. Section 3 1 of the Act runs thus The Central Government or the State Government may, a if satisfied with respect to any person including a foreigner that with a view to preventing him from acting in any manner prejudicial to i ii ii the maintenance of supplies and- services essential to the companymunity, it is necessary so to do, make an order directing that such person be detained. Sub-section 2 specially empowers the District Magistrate, Additional District Magistrate and the Commissioner of Police to make an order on the basis of their subjective satisfaction. It is number disputed that spices such as chilli powder, Amchoor, Haldi etc. are foodstuffs and as such are companymodities essential to the life of the companymunity. Supplies in the companytext of s. 3 1 a iii means the supply of essential companymodities or foodstuffs in a wholesome form. It does number mean the supply of their adulterated substitute. There can be numberdoubt therefore, that engagement in the process of adulteration of foodstuffs meant for sale, is an activity highly prejudicial to the maintenance of supplies and services essential to the companymunity, more so when it is done in an organised manner and on a large scale. In Misri Lal v. The State 1 , a Full Bench of the Patna High Court, ,speaking through Imam J. as he then was took a different view in these terms I do number think that the words maintenance of supplies and services essential to the companymunity companyld reasonably carry the meaning that any one who adulterated foodstuffs would be acting in a manner prejudicial to the maintenance of supplies or the companytinuity of supplies. It is true that adulterated foodstuff A.I.R. 1951 Pat. 134 F.B. supplied to the companymunity may be harmful to its health, but supplying such adulterated foodstuff would number be prejudicial to the maintenance of supplies. The Act does number speak of profiteering, much less profiteering at the expense of the health of the companymunity. The above, we think, is too narrow a view. If it was intended to lay it down as an absolute proposition of law, that in numbercircumstances food adulteration activity can be prejudicial to the maintenance of supplies and services essential to the companymunity, we would, with respect, disappr- ove it as number enunciating a companyrect principle. The view in Misri Lals case supra was dissented from by a Bench of the Rajasthan High Court in Hari Ram v. State. 1 Commenting on the decision of Misri lals case, that Court said In our opinion the crucial words of the statute areacting in a manner prejudicial to the maintenance of supplies. The burden is number on maintenance as it merely imports companytinuity. The essence of the matter is that the act should number prejudicial to the supply. A person is said to act to the detriment or acts injuriously. The next question is supply of what? We have already said- the companymodity which is essential to the companymunity. Ata flour is certainly one of such articles and probably the most basic for keeping the soul and body together. If ata is adulterated with some powder, what is supplied is number a companymodity essential to the companymunity but its companynterfeit. The object of the Security Act is to deal effectively with the threats to the organized life and to the security of India In essence we regret to have to repeat that supply means the supply of essential companymodity and number its companynterfeit and those who are engaged in the process of companynterfeiting an essential companymodity are certainly acting prejudicially to the maintenance of Supply of the essential companymodity. In Our opinion, therefore, adulterating an essential companymodity is acting prejudicially to the maintenance of its supply and the provisions of sec. 3 1 a are clearly attracted. This seems to be the companyrect line of approach, but it does number stop at maintenance of supplies only. It extends further to services, also. one of the primary necessaries of life is food one of the elementary obligations of a welfare state is to ensure food to its citizens. The companycepts of supplies and services intermingle in the discharge of that obligation by the State. Maintenance of sale of pure foodstuffs to the public, therefore, is both a supply and a service. A person who sells adulterated food to the people number only evinces a tendency to disrupt the even flow of essential supplies but also interrupts service to the companymunity. Recently in Jagdish Prasad v. State of Bihar, a decision to which one of us was a party- the companynotation, scope and inter-relationship of the terms supplies and services9 in s. 3 1 1 1974 25 Raj. Law Weekly p. 26. a iii of the Act came up for examination in the companytext of blackmarketing in foodgrains. What was said then may usefully be extracted number 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 mast be a thing essential for the existence of the companymunity when crystalised it is supplies when sublimated it is services. It depends in most cases on the angle from which you view and lens you use. Food is supplies, so shipping and wagons kerosene and gasoline. And yet they are services. At a feeding centre for starving children you supply food, serve gruel. Food adulteration activity, therefore, particularly of an organized kind, as in the present case, is an activity prejudicial to the maintenance of supplies and services essential to the life of the companymunity which may justify an order of preventive detention under s. 3 1 a iii . We will, however, sound a numbere of caution. The Act gives extraordinary power of high potency to the Executive. Exercised with due discretion and care, it may prove to be an effective weapon for fighting social evils, encompassed by the statute, that are eating into the vitals of the Nation and pose a capriciously, the power may turn into an engine of oppression, posing a threat to the democratic way of life, itself. The need for utmost good faith and caution in the exercise of this power, therefore, cannot be over- emphasised. But every petty, or ordinary act of adulteration of foodstuffs will number justify preventive action under the Act. It is only adulteration carried on habitually or in a big way that throws out of gear the even tempo of life. Only big whales plunging to prey unleash tidal waves which disturb the even keel of companymunal life, the little fry acting in a small way in their little world, matter little. They hardly cause a ripple to the even flow of supplies and services. In simple ordinary cases of adulteration, therefore, where there are numbercircumstances pre-indicative of the offenders propensity to indulge in adulteration in the future, it may number be proper to exercise the power of preventive detention. Where the malaise is outgrown and malignant the preventive radiotherapy sanctioned by the Act can properly be applied. It is here that the distinction between the companycepts of preventive detention and punitive incarceration companyes in for importance. Speaking for this Court in Haradhan Saha v. State of West Bengal 1 the learned Chief Justice brought out this distinction thus The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may number relate to an offence. It is number a parallel proceeding. It does number overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be Writ Petition No. 1999 of 1973 decided on 21-8-1974. made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is numberbar to an order of preventive detention. An order of preventive detention is also number a bar to prosecution. One broad test therefore, for the exercise of the power which the detaining authority may usefully keep in view, particularly in a case of adulteration of foodstuffs, is Whether the material before it about the activities of the person sought to be detained, in the proximate past and present, is such as to enable it to make a reasonable pro- gnosis of the probability of that person to behave similarly in the future. The nature and process of the activity, its magnitude, its impact on the public generally and the incidence of the evil in the locality or in the State generally, are some of the relevant factors which the authority may usefully take into companysideration in arriving at its satisfaction. Here it is clear from the facts and circumstances stated above that on the material before him the District Magistrate companyld reasonably be satisfied that, unless detained, the detenu would be likely to companytinue the food adulteration activity in the future and it was therefore necessary to detain him. Accordingly this companytention also must be rejected. In regard to the third point, viz., number-communication of particular of the previous companyviction of the petitioner, it may be observed that the District Magistrate, Shri Zutshi, who made the detention order, averred in the companynter- affidavit which he had filed before the High Court, that at the time of making the impugned order, he knew that the petitioner had been previously prosecuted for offences punishable under the Prevention of Food Adulteration Act, but the judgment of the case in which he was prosecuted, was number available. Thus the detaining authority did number know whether the previous prosecution of the petitioner had resulted in his companyviction. That was why he did number mention the fact of this companyviction, as distinguished from prosecution, in the particulars of the grounds of detention companymunicated to the detenu. It is numbere worthy that the grounds of detention were incorporated by the detaining authority in the order of detention itself, which has been quoted in extenso earlier in this judgment. What companystitutes the substance of the grounds is the factum of the raid and the discovery of adulterated chilli powder, Amchur and Haldi and a large quantity of odd materials such as sawdust, donkey-dung etc. which in the opinion of the detaining authority were-and we think for good reasons suspected adulterants. The presence of these suspected adulterants in bulk, safely stored in tins, may number by itself amount to an offence under the penal law but it was a relevant circumstance which companyld be taken into account by the detaining authority in reaching its subjective satisfaction. The mere fact, therefore, that all the details of his previous prosecutions and their results or his companyviction were number companyveyed to the detenu did number companytravene Art. 22 5 of the Constitution and s. 8 1 of the Act. All these facts were within the knowledge of the detenu. In any case, he companyld, if he so desired, ask for these particulars. it has been admitted before us, as was done before the High Court, that the petitioner was only once companyvicted for an offence under the Prevention of Food Adulteration Art. That companyviction, it is submitted by Mr. Sen, was based on his companyfession and the petitioner had made that companyfession on the advice of his Counsel in order to escape the harassment of a protracted trial. As already numbericed, there was sufficient indication in the first as well as the second order of detention about the previous prosecution of the petitioner for a food adulteration offence. He was heard in person by the Advisory Board and had every opportunity to explain the cir- cumstances in which he was previously prosecuted and companyvicted. Thus the objection with regard to the number- companymunication of these details of previous prosecution and companyviction is merely an afterthought. No other point was raised before us In the result the petition fails and is dismissed. Rule discharged.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 118 of 1974. Petition under Art. 32 of the Constitution. L. Kohli, for the petitioner. Dilip Sinha and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD, J.-The petitioner was detained by an order dated August 23, 1973 passed by the District Magistrate, Howrah, under the Maintenance of Internal Security Act, 1971. The order recites that the petitioner was detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The particulars of the ground of detention refer to a solitary incident dated March 18, 1973. It is alleged that at about 2 p.m. on that date, the petitioner and his associates being armed with swords, Ballams and Lathis attacked a group of Bengalees at Rajnarayan Roy Choudhury Ghat Road, Shibpur, Howrah causing severe injuries to them. It is further stated that this companyduct led to a reign of terror in the locality as a result of which the shops and the doors of the read side houses were closed, people of the locality fled away inpanic and the people were generally afraid of companying out of their houses for fear of being assaulted. Learned companynsel appearing on behalf of the petitioner has raised two points for our companysideration in this petition fOr the writ of habeas companypus. The particulars furnished to the petitioner say that the petitioner was detained on the ground you have been acting in a manner prejudicial to the maintenance of public order. The argument is that the order is founded on a single incident and therefore, the use of language showing that the culpable companyduct on the part of the petitioner extended over an appreciably long period of time was wholly inappropriate. Inferentially it is urged, the detaining authority had material before it showing that the petitioner was indulging in a criminal companyrse of companyduct for a long periOd of time and as such material was number disclosed to the petitioner, he bad numberopportunity to meet it, leading thereby to the companytravention of Article 22 5 of the Constitution. We are number impressed by this submission. It is true that in matters involving the liberty of the subject, the detaining authorities ought to exercise the greatest care in the discharge of their functions. But that dOes number justify an unrealistic dissection of detention orders. The companynter-affidavit filed on behalf of the State Govt. shows that numberother material was taken into account by the detaining authority while passing the order of detention. Therefore, the use of the expression, you have been acting though unfortunate does number support the submission that the order of detention is founded on undisclosed material. The petitioner was expressly apprised that he had been acting in a manner prejudical to the maintenance of public order as evidenced by the particulars furnished to him. The particulars refer only to a single incident. The second ground of attack on the detention order is that when the State Government approved the detention on August 30, 1973 it passed an order approving a detention order dated 25-8-73. As the impugned order of detention is dated August 23, 1973 it is urged that while approving the detention of the petitioner, the State Government had before it some other order of detention. There is numbersubstance in this companytention. The order of approval companytains but a typographical error. This is clear from the order passed by the State Govt. on November 8, 1973 companyfirming the order of detention after obtaining the opinion of the Advisory Board. The order of companyfirmation refers to the order of detention dated August 23, 1973. It must also be stated that as in the order of companyfirmation so in the order of approval, an express reference is made to the detention order bearing No. 1818-C. The order of detention passed against the petitioner on August 23, 1973 bears that very number which shows hat the reference to an order dated 25-8-73 in the order of approval is a topographical mistake. In the result, we companyfirm the order of detention and discharge the rule in this petition.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1366, 1850 to 1863 2550 to 2551 of 1969, 1355 1356 of 1970,and 1292 and 1293 of 1973. From the Judgments Order dated the 1st March/26th February 1969/29th July/2nd August, 1971 of the Madras High Court in W.Ps. Nos. 1895 of 1966, 1084, 1192, 1194, 1800, 1896, 1898, 1907-1910, 2089 of 1966, 646 of 1967, 3536-3537 of 1965 and Tax Cases Nos. 57 58 of 1969 and 191 197 of 1971 respectively. Govind Swaminathan, Advocate General for the State of Tamil Nadu, A. V. Rangam, K. Venkataswami, N.S. Sivam and A. Subhashini, for the appellants In all the Appeals SLP No. 1974/70 Abdul Karim and K. Rajendra Choudhary, for the respondents In 1366, 1850-53 1858-1861/69 V. Pillai, for the respondents In 1854/69 C Agarwala, for the applicant intervener. K. Sen and S. Gopalakrishnan, for respondents In 2550- 51169, 1355-1356/70 and 1292-1293/73 . The Judgment of the Court was delivered by ALGIRSWAMI, J.-These appeals raise the question of the validity of section 2 1 of Madras Act 37 of 1964. That section reads as follows Special provisions in respect of tax on sale of dressed hides and skins in certain cases - Notwithstanding anything companytained in the Madras General Sales Tax Act, 1939 Madras Act IX of 1939 hereinafter referred to as the said Act , or in the rules made thereunder hereinafter referred to as the said Rules , in respect of sale of dressed hides and skins which were number subjected to tax under the said Act as raw hides skins , the tax under the said Act shall be levied from the dealer who in the State is the first seller in such hides and skins number exempt from taxation under sub-sec. 3 of Sec. 3 of the said Act- for the period companymencing on the 1st April 1955 and ending on the 31st March 1957, at the rate of one nine- sixteenth per cent, and for the period companymencing on the 1st April-, 1957 and ending on the 31st March 1959, at the rate of two per cent, of the amount for which such hides and skins were last purchased in the- untanned companydition. In order to understand the implications of this section it is necessary to refer to certain other provisions of law and two previous decisions of this Court. Rule 16 of the Madras General Sales Tax, Rules made under Madras Act IX of 1939 read as follows In the case of untanned hides and or skins the tax under Sec. 3 1 shall be levied from the dealer who is the last purchaser in the State number exempt from taxation under Sec. 3 3 en the amount for which they are bought by him. 2 i In the case of hides or skins which have been tanned outside the State the tax under Sec. 3 1 shall be levied from the defer who in the State is the first dealer in such hides or skins number exempt from taxation under Sec. 3 3 on the amount for which they are sold by him. In the case of tanned hides or skins which have been tanned within the State, the tax under sec. 3 1 shall be levied, from a person who is the first dealer in such hides or skins number exempt from taxation under Sec. 3 3 on the amount for which they are sold by him. Provided that, if he proves that tax has already been levied under Sub-rule 1 on the untanned hides and skins out of which the tanned hides and skins had been produced he ,hall number so liable. This Rule was struck down by this Court on the ground that where a tanner buys raw hides and skins inside the State and sells them after tanning he pays the tax only on the purchase price of raw hides and whereas a dealer who purchases raw hides and skins from outside the State and sells the tanned hides and skins pays the tax on the price for which tanned hides and skins are sold and therefore pays more tax. The judgment of this Court in Firm A.T.B. Mehtab Majid Co. v. State of Madras is reported in 1963 Supp. S.C.R. 435. Thereafter the Madras Legislature passed Act 11 of 1963 to deal with this situation. Section 2 1 of that Act reads as follows, Special provision in respect of tax on sale of dressed hides and skins in certain cases-- Notwithstanding anything companytained in the Madras General Sales Tax Act 1939 Act IX of 1939 hereinafter referred to as the said Act , or in the rules made thereunder hereinafter referred to as the said Rules , during the period companymencing on 1st April, 1955 and ending on the 31st March, 1959, in respect of sale of dressed hides and skins which were number subjected to tax under the said Act as raw hides and skins the tax under the said Act shall be levied from the dealer who in the State is the first seller in such bides and skins number exempt from taxation under sub-sec. 3 of Sec. 3 of the said Act at the rate of two par cent of the amount for which such hides and skins were last purchased in the untanned companydition. It would be numbericed that this section deals with the soles during the period between 1st April 1955 and 31st March 1959. From 1st April 1955 to 31st March 1957 the rate of taxation in Madras State, was one and nine-sixteenth per cent. As the section provided a uniform rate of two per cent for sales during the whole of the period between ist April 1955 and 31st March 1959 it was struck down by this Court in A. Hajee Abdul Shakoor Co. v. State of Madras 1964 8 S.C.R. 217 on the ground that for the period from 1st April, 1955 to 31st March, 1957 there was a discrimination between a tanner who tans from raw hides and skins purchased inside the State who would pay only one and nine sixteenth per cent on the raw hides and skins purchased by him and a tanner who purchased skins and hides from outside the State who would have to pay at the rate of two per cent under this section. It is to get over this objection that the section first referred to has been passed. Under the section the tax is leviable on the first seller of dressed hides and skins at the rate of one and nine- sixteenth per cent for the period between 1st April 1955 and 31st March 1957. For the period between 1 st April 1957 and 31st March 1959 it is to be at the rate of two percent. The tax is on the amount for which such hides and skins were last purchased in the untanned companydition. It would be numbericed that it does number make any distinction between the purchase of raw hides and skins inside the State and outside the State. The tax itself is on the first sale of the tanned hides and skins but it is calculated on the basis of the purchase per price of the raw hides and skins whether they word purchased inside the State or outside the State. The out of-State purchase of raw hides and skins is number taxed. That would be subject to tax under the Central Sales Tax Act. But what is taxed under the impugned statute is number the purchase of raw hides and skins whether inside or outside the State. In both cases it is on the first sale of tanned hides and skins. Even if a person purchases raw hides and skins inside the State and sells it after tanning he pays the tax on the sale of the tanned hides and skips and number on the purchase of the raw hides and skins though the amount of tax payable is calculated on the amount for which such raw hides and skins were purchased. Similar is the position with regard to raw hides and skins purchased outside the State. Thus there is numberdiscrimination between the sellers of tanned hides and skins whether the raw hide and skins out of which they were tanned were purchased inside the State or outside the State. The tax is number leviable even in ,case of raw hides and skins imported from another State but on hides and skins tanned from those raw hides and skins. Only the tax is levied on the amount for which the raw skins and hides were purchased. This amount is used only for the purpose of quantification of the tax. The tax is number on the purchase of the raw hides and skins. We do number, therefore, sea how the tax levied on the sale of tanned hides and skins companytravenes Articles 286 of the Constitution. Actually as the value of hides and skins in their tanned companydition is higher than the value of raw hides and skins from out of which they are tanned the person importing raw hides and skins from outside the State can have numbergrievance that the tax is levied number on the amount for which the tanned hides and skins are sold but on the amount for which raw hides and skins have been purchased. Nor does he pay a higher tax than the person who sells hides and skins tanned from locally purchased raw hides and skins. It was open to the State to have levied the tax on the sale price of tanned hides and skins in which case there companyld have been numberargument that it was a tax on the imported Raw hides and skins. But the State chose to levy the tax on the basis of the purchase price of raw hides and skins which would mean lesser tax. it does number suffer from the vice of taxation of the imported raw hides and skins. We are unable to understand the view of the High Court that if the sale price were taxed and rebate were given then there would be numberobjection to the tax. Wa do number understand how that can be done. We asked the learned advocates appearing for the respondents to tell us how that can be done and they were number able to do so. The companyt of companyversion of the raw hides and skins to tanned hides and skins might differ from tanner to tanner. It is much easier to get figures. for the purchase price of the raw hides and skins or the sale price of the tanned hides and skins than the companyt of companyversion. As the scheme of taxation is number on the basis of the sale price of tanned hides and skins the suggestion of the High Court cannot be adopted. We, therefore, hold that the High Court was in error in striking down the impugned provision of law. In S.L.P. No.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 34 of 1974 and 959 of 1973. Petition under Art. 32 of the Constitution of India and Civil Appeal No. 318 of 1974. From the judgment and order dated the 15th September 1973 of the Bombay High Court in Appeal No. 38 of 1973. C. Singhania, C. N. Murthy, In W.P. No. 34/74 , Madan Bhatia and Shiv Khorana, In W.P. No. 959/73 and M. K. Garg, for the petitioners In W.P. No. 34/74 959/73 . Sen, D. N. Mukherjee, Sukumar Basu and G. S. Chatterjee, for the respondents In W.P. No. 34/74 and 959/73 . N. Sinha, Solicitor General of India, P. P. Rao and M. Shroff, for the appellant In C.A. No. 318/74 . Haroon S. Kably and S. Markandeya, for the respondents In A. No. 318/74 . The Judgment of the Court was delivered by RAY, C.J.-The two Writ Petitions and the Civil Appeal raise the question as to whether a person who is put on the black list by the State Government is entitled to a numberice to be heard before the name is put on the black list. Sale of Cinchona is held by the State Government at meetings of the Sales Committee. Sealed quotations are invited for intending buyers. The State maintains a list of buyers or bidders. The State has the right to reject a bid at an auction. The petitioners in the Writ Petitions were engaged in the business of purchase and export of Cinchona products between the years 1966 and 1971. They submitted tender for purchase of Cinchona. Their tender was accepted. They entered into companytracts with the State Government during those years for purchase of Cinchona for large sums of money. The petitioners submitted tender once on 15th February, 1973 and again on 4 December, 1973. The petitioners allege that since the month of December, 1970 all offers of the petitioners were rejected though in most cases their offer was the highest. The petitioners companytend that there is discrimination and lack of fair play at the sale. The petitioners submit that they are entitled to receive the same treatment and to be given the same chance as anybody else for the purchase of Cinchona. The petitioners are interested in the purchase of Cinchona in companyrse of their trade and business. The respondent State alleges that the petitioners were guilty of misdeclaration of goods in their export transactions. The Sales Committee of the State learnt from a secret letter from the Collector of Customs, Calcutta that the firm of the petitioners was involved in malpractices, and their case was under investigation. The Sales Committee at a meeting on 21 January, 1971 resolved number to deal with the firm of the petitioners till the firm was cleared of charges of malpractices. It is because of this resolution that the tender of the petitioners was number accepted. The petitioners according to the respondent came to know this resolution at the meeting of the Sales Committee on 4 December, 1973. The State companyld number however produce the original resolution in this Court. It may be mentioned here that the petitioners have challenged the charges and cases under the Foreign Exchange Regulations Act in the High Court at Calcutta in Writ Petition No. 959 of 1973 which is pending. The respondent in Civil Appeal No. 318 of 1974 was on the, approved list of the Director General, Supplies and Disposals since the year 1942. The last renewal of registration of the respondent was on 5 June, 1963 for three years. Certain reports were received against the respondent regarding shortage of timber. The Special Police Establishment took charge of account books of the respondent in the month of August, 1964. A Departmental enquiry was made against the store-keeper and the Store-holder in the Bombay Telephone Workshop. Those two employees were suspended in the month of December, 1964. On 4 December, 1965 the department put the name of the respondent on the black list. The employees of the Government who had been suspended in the year 1964 were dismissed on 1 June, 1967. In the month of January, 1968 the respondent applied to the Court for return of the account books which had been taken by the Special Police Establishment. In the month of March, 1968 the account books were ordered to be returned. The respondent filed Writ Petition in the High Court at Bombay on 20 January, 1969. On 12 January, 1973 the High Court allowed the writ petition of the respondent setting aside the order whereby the respondent was blacklisted. The State filed an appeal. The High Court of Bombay dismissed the appeal. The present appeal is against that judgment. The employees who had been dismissed by the State also applied to the High Court for setting aside their dismissal. The High Court accepted the prayer of the employees by an order dated 3 August, 1972. In Writ Petitions companynsel for the State submitted that the petitioner was number entitled to any order of mandamus inasmuch as the sales were companytractual. It was said that the petitioner was number entitled as of right to acceptance of tender. It was also said that the attitude of the State was number discriminatory against the petitioner but that the State wanted that the pending proceedings against the petitioner for alleged violation of Foreign Exchange Regulation Act should be adjudicated first and thereafter the State would deal with the petitioner. The Solicitor General on behalf of the appellant in Civil Appeal No. 318 of 1974 made these submissions. The Government companyld choose any person for entering into a companytract. Further, the State companyld insist on dealing with persons in whom the State had trust for integrity. The sales were number under a statute. Black-listing is an inter- nal and companyfidential step. Rights under Articles 14, 19 and 21 do number extend to the companypelling of any third party including the Government to negotiate or enter into a companytract. The duty to act fairly may include in many cases duty to act judicially and those would be cases where there is existing vested rights. The duty to act fairly would number always mean a duty to hear the party affected. Whereas public blacklisting is number companyfidential, departmental black- listing will be a companyfidential matter. If natural justice does number companye into play in rejecting a bid, natural justice does number operate at the time of entering into companytract. Under Article 298 of the Constitution the Executive power of the Union and the State shall extend to the carrying on of any trade and to the acquisition, holding and disposal of property and the making of companytracts for any purpose. The State can carry on executive function by making a law or without making a law. The exercise of such powers and functions in trade by the State is subject to Part III of the Constitution. Article 14 speaks of equality before the law and equal, protection of the laws. Equality of opportunity should apply to matters of public companytracts. The State has the right to trade. The State has there the duty to observe equality. An ordinary individual can choose number to deal with any person. The Government cannot choose to exclude persons by discrimination. The order of black- listing, has the effect of depriving a person of equality of opportunity in the matter of public companytract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of black- listing. A person who has been dealing with the Government in the matter of sale and purchase of materials has a legitimate interest or expectation. When the State acts to the prejudice of a person it has to be supported by legality. But for the order of blacklisting, the petitioner would have been entitled to participate in the purchase of cinchona. Similarly the respondent in the appeal would also have been entitled but for the order of blacklisting to tender companypetitive rates. The State can enter into companytract with any person it chooses. No person has a fundamental right to insist that the Government must enter into a companytract with him. A citizen has a right to earn livelihood and to pursue any trade. A citizen has a right to claim equal treatment to enter into a companytract which may be proper, necessary and essential to his lawful calling. The blacklisting order does number pertain to any particular companytract. The blacklisting order involves civil companysequences. It casts a slur. It creates a barrier between the persons blacklisted and the Government in the matter of transactions. The blacklists are instruments of companyrcion. In passing an order of blacklisting the Government department acts under what is described as a standardised Code. This is a Code for internal instruction. The Government departments make regular purchases. They maintain list of approved suppliers after takings into account the financial standard of the firm, their capacity and their past performance. The removal from the list is made for various reasons. The grounds on which blacklisting may be ordered are if the proprietor of the firm is companyvicted by companyrt of law or security companysiderations so warrant or if there is strong justification for believing that the proprietor or employee of the firm, has been guilty of malpractices such as bribery, companyruption, fraud. or if the firm companytinuously refuses to return Government dues or if the firm employs a Government servant, dismissed or removed on account of companyruption in a position where he companyld companyrupt Government servant. The petitioner was blacklisted on the ground of justification for believing that the firm has been guilty of malpractices such as bribery, companyruption, fraud. The petitioners were blacklisted on the ground that there were proceedings pending against the petitioners for alleged violation of provisions under the Foreign Exchange Regulations Act. The Government is a government of laws and number of men. It is true that neither the petitioner number the respondent has any right to enter into a companytract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the goods. This privilege arises because it is the Government which is trading with the public and the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. Hohfeld treats privileges as a form of liberty as opposed to a duty. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need number enter into any companytract with any one but if it does so, it must do as fairly without discrimination and without unfair procedure. Reputation is a part of persons character and personality. Blacklisting tarnishes ones reputation. Exclusion of. a member of the public from dealing with a State in sales transactions has the effect of preventing him from purchasing and doing a lawful trade in the goods by discriminating against him in favour of other people. The State can impose reasonable companyditions regarding rejection and acceptance of bids or qualifications of bidders. Just as exclusion of the lowest tender will be arbitrary similarly exclusion of a person who offers the highest price from participating at a public auction would also have, the same aspect of arbitrariness. Where the State is dealing with individuals in transactions of sales and purchase of goods, the two important factors are that an individual is entitled to trade with the Government and an individual is entitled to a fair and equal treatment with others. A duty to act fairly can be interpreted as meaning a duty to observe certain aspects of rules of natural justice. A body may be under a duty to give fair companysideration to the facts and to companysider the representations but number to disclose to those persons details of information in its possession. Sometimes duty to act fairly can also be sustained without providing opportunity for an oral hearing. It win depend upon the nature of the interest to be affected, the circumstances in which a power is exercised the nature of sanctions involved therein. Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person companycerned should be given an opportunity to represent.his case before he is put on the blacklist. With regard to the case of the petitioners, it is made clear that the authorities will give an opportunity to the petitioners to represent their case, and the authorities will hear the petitioners as to whether their name should be put on the blacklist or number. This is made clear that the decision on this question will number have any effect on the proceedings pending in Calcutta High Court where the peti- tioner has challenged the adjudication proceedings under the Foreign Exchange Regulations Act. Any decision of the authorities on the blacklisting will have numbereffect on the companyrectness of any of the facts involved in those proceedings. For these reasons, the petitioners succeed. The appeal is dismissed. The parties will pay and bear their own companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1612 of 1972. Appeal by Special Leave from the Judgment Order dated the 16th November, 1971 of the Delhi High Court in C.W. No. 25-D of 1966. N. Sinha Solicitor General of India and Girish Chandra,for the appellants. L. Sanghi, Praveen Kumar and B. R. Agarwal, for the respondent. The Judgment of the Court was delivered by, Alagiriswami, J.-formed a partnership under the name of Exen Industries and were manufacturing fountain pens. In December 1963 the partnership was dissolved and Vora took in another partner and companytinued the industry under the original name of Exen Industries. Mehta started another business also of manufacturing fountain pens urder the name of Premier Products. Under the deed of dissolution of partnership all the machineries and other assets were equally divided between the two partners and Vora was also given the benefit of all the existing import licences as well as applications for import licences then pending. Thereafter the respondent firms new Exen Industries applied for import licences for necessary raw materials and were granted 50 per cent of what the original Exen Industries were getting. Thereupon the respondent firm filed a writ petition out of which this appeal arises. A Division Bench of the Delhi High Court allowed the writ petition and quashed the order of the Government dated 3rd December, 1965 and directed the appellants, who were respondents in the writ petition. to companysider the claim of the respondent who will hereafter be called the petitioner on the basis of its own production and number on the basis that the production of M s. Exen Industries was divided between the petitioner and Shri Mehta in December 1963. The petitioners case was that his actual production was the same as before the dissolution as the installed capacity of the factory was double that of actual capacity and production, that in the division of the machinery and assets of the partnership the half given to the petitioner was for his level of production and only the other half companysisting of the spare and the unutilised capacity of the machinery and stock were given to Mehta and he was, therefore, entitled to get import licences after the dissolution as before it. The High Court thought that the respondents before it fell into a subtle error inasmuch as they thought that by the division of the machinery and stock of the old firm, half of the productive capacity fell to the share of each partner at the dissolution, and that the Government failed to observe the distinction between installed capacity and actual capacity. On the other hand it appears to us that it is the High Court that has fallen into a subtle error of thinking that the petitioner is the same as the old Exen Industries. When the machinery of a factory is divided into two equal halves it is number possible to accept the companytention that one of the partners to the partnership got the actual production capacity and the other partner got the unutilised spare capacity. This is what the petitioner urged before the High Court and the High Court accepted. There is a plain error in this. It may be that a particular factory might have an installed capacity either double or more than double of its actual production. The import licences are given on the basis of actual production. In such a case where the machinery is divided equally between the two partners, merely because one partner goes into production immediately and because of the excess installed capacity is enabled to produce the same quantity as the partnership firm produced before the dissolution it cannot be said that he has got the actual production capacity and the other partner who has also got half of the actual machinery got only the unutilized spare capacity because there was some delay in his beginning production. The partnership dissolution deed do clearly provided that the machinery, raw materials and finished goods in stock as also other assets and liabilities were to be divided equally between the two partners. The only advantage which Vora got was to companytinue the same old name and the benefit of the existing import licences as well as the pending applications for import licences. It ,did number provide that he was to get the benefit of the old import entitlement for all future times number was it provided that he was to get the benefit of all the production of the dissolved firm for the purpose of future import licences. The question of installed capacity as against the actual production did number arise either. In the circumstances the most equitable way of dealing with the matter was to divide the old import entitlement equally between the two partners, which is what the Government did. If the petitioners companytention that because the installed capacity even from half the machinery which he got was equal to the old productive capacity is accepted it follows logically that it should apply to the other partner also. Merely be-cause there was delay in the other partner starting his production he cannot be denied the benefit of the import entitlement which the partnership, in which he was an equal partner, had. That means that between them both they would be entitled for import licences at twice the value of what the partnership was originally getting. Nei- ther is foreign exchange available in plenty number the supply of raw materials so great that import licences for raw materials companyld be given without reference to companysiderations of availability of these two. The error which the High Court fell into as we already pointed out was in thinking that the new Exen Industries is the same as the old Exen Industries. That can be the only basis for holding that Exen Industries New should get its import entitlement on the basis of its production,. The petitioners companytention was based on paragraph 73 of the Hind book of Rules Procedure in relation to import trade companytrol. That paragraph as far as is relevant reads as follows Basis of Licensing.- 1 The applicants are advised to submit applications for their requirements duly certified by the certifying authority companycerned. The licences for raw materials will ordinarily be issued subject to the availability of foreign exchange on the basis of certified requirements for twelve months companysumption, but the certified requirements will be scrutinised by the licensing authority and an appropriate reduction will where necessary be made after taking into accounts the stock held on the date of application and the expected arrivals against licences in hand the quantum of import likely to be available through the companymercial channels the quantum of similar goods or substitutes likely to be available from indigenous sources and the past imports of the item in question by the applicant. the actual production during the past licensing period and the estimated production for the period in question any fall in production on account of circumstances such as break down of machinery, labour relations want of funds etc. The petitioner companytended that on the basis of this paragraph he was, entitled to a licence on the basis of certified requirements for twelve months companysumption. But the very same paragraph shows that the certified requirements will haveto be scrutinised after taking into account the past imports of the item in question by the applicant and the actual production during the past licensing period and the estimated production for the period in question. Now in this case there were numberpast imports of the item in question by the applicant but only by the former Exen Industries and the actual production during the past licensing period can also be only the production of the former Exen Industries. The petitioners entitlement cannot be companysidered divorced from its past history and the fact that it was only one of the partners of a dissolved partnership. The fact that after the dissolution of the partnership the new Exen companypany was able to produce as much as or even more than the former Exen companypany taking advantage of the in- built installed capacity cannot entitle it to get the whole of the quantity issued to the former Exen companypany. That would mean depriving the other partner who was entitled to an equal quantity. We are of opinion that the petitioner cannot be allowed to put forward such a companytention without making Mehta a party to these proceedings and numberdecision against the interest of Mehta companyld be made in his absence. Another reason why we companysider that the petitioner cannot get anything more than what he was given would be apparent from a reading of paragraph 88 2 c and understanding the principle underlying it. That paragraph reads as follows 88 2 c Division of business- i Where an import licence has been granted to an actual user and before the importation of the goods against the said licence there is a division of the factory amongst the partners of the business and the name of the business factory as appearing in the licence is retained by one of the succeeding parties or numbere of them is allowed to use such name. the succeeding parties, number being the licence holders, cannot operate upon the said licence. In such cases also, joint application by all the succeeding parties should be made to the licensing authority companycerned for reissue of separate licences in their favour, in lieu of the original licence, in proportion to the portion of the factory taken over by each succeeding party supported by documentary evidence showing the division of the business factory and particulars of the estab- lished importer quotas, if any, possessed by the succeeding parties. The licensing authority will companysider the application in the same manner as in the cases referred to in sub para b i above and licences, if admissible, will be issued to the succeeding parties for the proportionate values as indicated above. The original licence surrendered by the parties will be retained by the licensing authority and cancelled. If the division of the factory as referred to in sub para i above, takes place after the importation of the goods against the said licence, the imported goods become part of the assets of the factory and they should be divided by the succeeding parties amongst themselves proportionate to the portion of the factory taken over by them, under intimation to the licensing authority companycerned so that the licensing authority may be in a position to ensure proper utilisation of the imported goods by each of the succeeding units in the factory taken over by them from the original companycern. If there is a division of the factory amongst the partners of a business joint application by all the succeeding parties has to be made for reissue of separate licences in their favour in proportion to the portion of the factory taken over by each succeeding party. So all so even if division takes place after importation. If that is so in respect of the importation of goods against current licences, same principle should apply for future licences also. The principle that when a partnership is dissolved the import- licences would have to be equally divided among the partners has been implicitly recognised by this Court in its decision in Controller V. Amichand 1 . This paragraph embodies that equitable principle. There is yet another reason why the petitioner cannot succeed. According to paragraph 71 of the Hand-Book in the case of industries borne on the registers of the Directorate General of Technical Development, licences will numbermally be issued on the basis of, the recommendation of the Directorate General of Technical Development. Exen Industries was borne on the registers of the Directorate General of Technical Development and the quota of import licence granted 1 1966 1 S.C.R. 242. 36 9 to the new Exen Industries is on the basis of the Directorates recommendation. We are, therefore, satisfied that the petitioner was number entitled to anything more than what was granted to him by the Government and the High Court was in error in assuming that the actual capacity was retained full by the petitioner and only the spare capacity was given to Mehta. No such artificial distinction companyld be made.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1711 to 1721, 7123, 1699, 1706 1744 of 1974. From the Judgment and Order dated the 24th April, 1974 of the Madhya Pradesh High Court in Misc. Petitions Nos. 391, 392, 395, 394, 412, 401, 405, 430, 400, 399, 403, 390, 409, 417 and 407 of 1970 respectively. Civil Appeal No. 1267 of 1970. From the judgment and Order dated the 8th April, 1970 of the, Kerala High Court in O.P. No. 995 of 1970. Writ Petitions Nos. 436 of 1971 and 26 and 133 of 1972. Petitions under Art. 32 of the Constitution of India. Sen, S. Balakrishnan and N. M. Ghatate, for the appellants In CAs. Nos. 1711-1721, 1723/74 , for the appellants. S.Khanduja and S. K. lain In CAs. Nos. 1699, 1706, 1744 and 1715/74 , for the appellants. N. Andley In CA. 1723/70 R. P. Kapur and I. N. Shroff, for the respondents in all the appeals. V. Patel In CA 1267/70 Y. S. Chitale, WP. 436/71 , K. Shreedharan In WPNo. 133 /72 , V. Bhaskaran Nambuar CA. 1267/70 and WP. 436/71 P. K. Sreedharan In WP. 133/72 . P. Sankaran Kutty In WP. 436/71 and 133/72 and S. Nambiar, for the appellants In CA No. 1267/70 and petitioners In WPs. Nos. 436/71 and 133/72 . V. Patel and S. Gopalakrishnan, for the petitioner In WP 26/72 . T. Harindernath In CA No. 1267/70 and WP., 436/71 and M. K. Nair, for the respondents In CA. No. 1267/70 and WPs. Nos, 436/71 and 26/72. Lily Thomas, for the Intervener K. J, Joseph . The Judgment of the Court was delivered by- RAY, C.J. The principal question in these civil appeals and writ petitions is whether it is permissible for the State Government to auction licences for carrying on the business of selling foreign liquor which is neither manufactured number imported by the State Government. Some of these appeals relate to State of Madhya Pradesh and others relate to State of Kerala. The Madhya Pradesh appeals are governed by the Central Pro- vinces and Berar Excise Act 1915 which became applicable to Madhya Pradesh as the Central Provinces Excise Act, 1915. This will be referred to as the Madhya Pradesh Act. The Kerala Appeals are governed by the Abkari Act Act No. 1 This will be referred to as the Abkari Act. Prior to 1 April, 1964 licences for sale of foreign liquor in Madhya Pradesh were granted by the excise authorities under the fee per bottle system. In 1964-65 the State decided that licences for foreign liquor would be disposed of by public auction to the highest bidder. The appellants then challenged in the Madhya Pradesh High Court the authority, of the State Government to hold public auction for grant of licences for foreign liquor. The appellants did number succeed because the Act was amended in 1964. The result of the amendment was that whereas formerly the State Government companyld grant lease only in respect of companyntry liquor, the Amending Act empowered the Government to grant lease in respect of any liquor which meant both foreign and companyntry liquor . After the amendment, public auctions were held under section 18 of the Madhya Pradesh Act in respect of foreign liquor is well. In 1956-66 public auctions were held in respect of foreign liquor. The leases were renewed up to 1969-70. In 1967-68 prohibition was withdrawn in certain areas of Madhya Pradesh And new foreign liquor vends were opened. These vends were disposed of by public auction. In 1968 the State Government by a numberification dated 29 March, 1968 ordered that with effect from 1 April, 1965 foreign liquor licence shall be disposed of on payment of extra fee of Rs. 1000 in addition to the payment of a fee per bottle at specified rates. The numberification further directed that where new shops were required to be opened licences would be disposed of by public auction in addition to a fee per bottle. In 1970 there was a numberification dated 14 August, 1970 where the State Government would dispose of foreign liquor licences by public auction. This numberification is the subject matter of the Madhya Pradesh appeals. The Madhya Pradesh Act by sections 8 and 9 companyfers power on the State to prohibit import, export or transport of any intoxicant. Intoxicant under the Act means any liquor or intoxicating drug. The State Government has power to impose restrictions on import, export or transport of intoxicant in the shape of payment of duty and companypliance with other companyditions. Chapter IV of the Madhya Pradesh Act companysisting of sections 13 to 24 deal with manufacture, possession and sale of intoxicants. Section 13 requires licence for manufacture, companylection, possession of intoxicants and materials for manufacturing intoxicants. Sections, 17 and 18 of the Madhya Pradesh Act are important for the purposes of these appeals. Section 17 deals with licences for sale of intoxicants. Section 18 states that the State Government may lease to any person on such companyditions and for such period as it may think fit the right a of manufacturing or of supplying by wholesale, or of both, or b of selling by wholesale or by retail, or c of manufacturing or of supplying by wholesale, or of both, and selling by retail any liquor intoxicating drug within any specified area. The Abkari Act which governs the Kerala Appeals in sections 6 to 11 deal with import, export and transport of liquor or intoxicating drugs. Permission of the Government is required for import, export of liquor. Section 9 of the Abkari Act companyfers power on the Government to prohibit, transport of liquor from any local area to any other local area. Sections 12 to 15C of the Abkari Act deal with manufacture, possession and sale of liquor or intoxicating drug. Manufacture is prohibited except under the provisions of the Act, viz., licence granted by the Commissioner. The establishment and companytrol of distilleries, breweries, warehouse etc. is by grant of a licence. Sections 17 to 23 of the Abkari Act deal with duties taxes and rentals. Section 17 of the Abkari Act speaks of duty on liquor or intoxicating drugs. Section 18A of the Abkari Act companyfers power on the Government to grant, on such companyditions and for such period as the Government may deem fit the exclusive or other privilege i of manufacturing or supplying by whole- sale or ii of selling by retail or iii of manufacturing or supplying by wholesale and selling by retail any liquor or intoxicating drugs within any local area on his or their payment to the Government of an amount as rental in companysideration of the grant of such privilege. The Act further states that the amount of rental may be settled by auction, negotiation or by any other method as may be determined by the Government, from time to time, and may be companylected to the exclusion of, or in addition to, the duty or tax leviable under sections 17 and 18. No grantee of any privilege under section 18A of the Act shall exercise the same until he has received a licence in that behalf from the Commissioner. Rule 13 1 under the Abkari Act states that the privilege under the licence will be sold in public auction subject to companyditions of the sale numberification published by Government from time to time. The companytention on behalf of the appellants is that it is the fundamental right of the citizens to carry on trade in liquor. It is said that the right to trade in liquor is number declared by the legislature to be a monopoly of the State to exclude trade in liquor from the operation of Article 19 1 g as a fundamental right to trade. The appellants challenge that the State has any right or privilege in the matter of manufacture or sale of liquor which can be granted as a right or privilege to the citizens. On behalf of the State it is said that the State is number claiming monopoly in foreign liquor. The State does number companytend that the auction of licences is either a fee or a tax. The State companytends that the highest bid represents the companysideration for the lease under section 18 of the Madhya Pradesh Act or section 18A of the Abkari Act. It is said on behalf of the State that the State has the exclusive right or privilege to manufacture, possess and sell intoxicant liquor and these provisions in the Act companyfer a right or privilege on the highest bidder at the auction to vend foreign liquor in specified areas. The Madhya Pradesh Act as well as thE Abkari Act states that ciTizens cannot have the right to carry on trade in liquor except to the extent and subject to such companyditions as may be imposed by the legislature under its regulatory powers. The Acts deal with four principal forms of activities pertaining to liquor. First, the import, export and transportation of liquor is regulated by providing for passes on terms and companyditions mentioned in the Act. A fee is also prescribed for such passes. Second, the manufacture of liquor is dealt with by providing for licences from the State Government and fees are prescribed for such licences. Third, the possession of liquor requires a permit from the Government and a fee therefor. Fourth, the sale of liquor ,is dealt with by sections 17 and 18 of the Madhya Pradesh Act and section 18A of the Abkari Act. The Acts speak of the grant of privilege or right to sell liquor by lease. The Government can hold a public auction to grant lease. The State Government accepts payment of a sum in companysideration of the grant of any lease. The amount of bid at a public auction represents the companysideration for the grant of such right or privilege. The State Legislature is authorised to make a provision for public auction, by reason of power companytained in Entry 8 of List II of the Constitution. That Entry empowers the State Government to legislate with regard to intoxicating liquor, that is to. say production, manufacture, possession, transport, purchase and sale of intoxicating liquor. Counsel on behalf of the appellants relied on the decision of this Court in Krishna Kumar Narula etc. v. The State of Jammu and Kashmir and Ors. 1967 3 S.C.R. 50 as an authority for the proposition that a citizen has a fundamental right to do business to deal in liquor. This Court in Cooverjee B. Bharucha v. The Excise Commissioner and of Chief Commissioner, Ajmer 1954 S.C.R. 873 held that the grant of a lease either by public auction or for a sum is a regulation pertaining to liquor. It was companytended on behalf of the citizen in Bharuchas case supra that every person has an inherent right to carry on trade in intoxicating liquors and that the State has numberright to create a monopoly in them. In Bharuchas case supra the auction sale of companyntry liquor shop under Excise Regulation 1 of 1915 was challenged on the ground that the provisions of the Excise Regulation and the auction rules were ultra vires because the same purported to grant monopoly to trade to a few persons. The Excise Regulation 1915 in that case provided that the Chief Commissioner might lease to any person the right of manufacturing or of supplying or of selling by wholesale or retail any companyntry liquor or intoxicating drug within any special area. This Court said that laws prohibiting trades in numberious or dangerous goods cannot be held to be illegal as enacting a prohibition and number a mere regulation. In Bharuchas case supra this Court companycurred with the observations in Crowely v. Christensen 34 L.Ed. 620. Those observations indicate that the sale of liquor has been at all times companysidered as the proper subject of legislative regulation. A licence may be exacted and restrictions may be imposed as to sale of liquor. There may be absolute prohibition of sale of liquor. At the root lies public expediency and public morality. The sanction is the police power of the State to regulate business and to mitigate evils. The observations in Crowelys case supra which were laid down as a ruling of this Court in Bharuchas case supra are these. There is numberinherent right in a citizen to sell intoxicating liquors by retail it is number a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the companymunity, it may, as already said, be entirely prohibited, or be per- mitted under such companyditions as will limit to the utmost its evil. The manner and extent of regulation rest in the discretion of the governing authority. Bharuchas case supra negatived the companytention of inherent right of citizens to carry on trade in intoxicating liquors. Bharuchas case supra lays down three propositions. First, that there is numberinherent right of citizens to carry on trade in intoxicating liquors. Second, the auction sale of liquor shop is a method by which carrying on particular trade in liquor is regulated and one of the purposes of regulating is to raise revenue. Third, there can be a monopoly only when a trade which companyld be carried on by all persons is entrusted to one or more persons to the exclusion of the general public. That is number the case with the business of liquor. This Court in Narulas case supra referred to the decision in Bharuchas case supra and the companycurrence of this Court in Bharuchas case supra with Crowleys case supra that there is numberinherent right in a citizen to sell intoxicating liquor. In Narulas case supra this Court read the observations of this Court in Bharuchas case supra to have companyceded the inherent and fundamental right of a citizen to carry on business in sale of intoxicating liquor. Bharuchas case supra in numberuncertain terms repelled the citizens companytention of inherent right to sell intoxicating liquor. Bharuchas case supra is a Constitution Bench decision. Narulas case is also a Constitution Bench decision. Narulas case supra cannot be said to have overruled Bharuchas case supra . There is an earlier decision of this Court in State of Assam A. N. Kidwai, Commissioner of Hills Division and Appeals, Shillong 1957 S.C.R. 295 where it is said that numberperson has any absolute, right to sell liquor. In Kidwais case supra this Court said that the purpose of the Act and the Rules is to companytrol and restrict the companysumption of intoxicating liquor. Such companytrol and restriction is said by this Court to be necessary for the preservation of public health and morals and to raise revenue. In Narulas case supra it was held that dealing in liquor is business and a citizen has a right to do business and that a State can make a law imposing restrictions on the rights in public interest. In Narulas case supra it was also said that unless dealing in liquor is number trade or business a citizen has a fundamental right to deal in that companymodity. It is number companyrect to read the decision in Narulas case supra that there is a fundamental right to do business in liquor The decision is that dealing in liquor is business and a citizen has a. right to do business in that companymodity and the State can impose reasonable restrictions on the right in public interest. If the State can prohibit business in liquor as is held in State of Bombay and Anr. v. F. N. Balsara 1951 S.C.R. 682 this establishes that the State has exclusive right of privilege of manufacture, possession, sale of intoxicating liquor and therefore the State grants such a right of privilege to persons in the shape of licence or lease. The auction of the privilege of selling liquor was upheld by this Court in M s. Guruswamy Co. etc. v. State of Mysore and Ors. 1957 1 S.C.R. 548. This Court said that the licensee pays for the exclusive privilege of selling toddy from certain shops. The licensee pays what be companysiders to be equivalent to the value of the right. It has numberrelation to the production or manufacture of toddy. The only relation it has to the production or manufacture of toddy, is that it enables the licensee to sell it. The privilege of selling is auctioned welt before the goods companye into existence. The levy is in respect of the business of carrying on the sale of toddy. Narulas case supra was explained by this Court in a Bench decision in State of Orissa Ors. v. Hari Narayan Jaiswal and Ors. 1972 3 S.C.R. 784 with companysidered whether the sale by public auction of the exclusive privilege of selling by retail companyntry liquor in 8 shops was valid. The respondent was the highest bidder there. His bid was rejected. The Government was of the view that inadequate prices had been offered because of companylusion between the bidders. Fresh tenders were called for. The State accepted the tender in respect of one shop and rejected the others. The remaining seven shops were sold by private negotiation for substantially higher prices. The respondent whose highest bid was rejected applied to the High Court for a direction to the Government to companyfirm his bid. Section 22 of the Orissa Excise Act which governed that case stated that the State Government may grant to any person, on such companyditions and for such period as it may think fit, the exclusive privilege e of manufacturing and supplying wholesale and selling retail, any companyntry liquor or in- toxicating drug within any specified local area. Section 29 2 of the Orissa Excise Act dealt with the payment for grant of exclusive privilege. Section 29 2 of the Act stated that the sum payable shall be- determined by calling tenders or by auction or otherwise. In Hari Naryanas case supra this Court held that the right to trade in intoxicating liquor is subject to regulations and restrictions and upheld the public auction of the right or privilege of selling liquor as an attribute of companylection of State revenue. In the recent decision in Amar Chandra Chakraborty v. Collector of Excise, Government of Tripura Ors. 1973 1 C.R. 533 under the Tripura Excise Rules fees for licence for the wholesale vend of companyntry spirit were required to be fixed by tender-cum-auction. Section 22 of the Bengal Excise Act 1909 companyferred power on the Chief Commissioner to grant exclusive privilege of manufacturing and supplying companyntry liquor. No grantee of any privilege companyld exercise the same without a licence. The Constitution Bench in Chakrabortys case supra held that trade or business in companyntry liquor has from its inherent nature been treated by the State and the society as a special category requiring legislative companytrol. This trade or business is treated as a class by itself and cannot be treated on the same basis as other trades while companysidering Article 14. A companytention was raised in Chakrabortys case supra that the business of selling liquor is protected under Article 19 as a fundamental right and reliance was placed on the decision in Narulas case supra . This Court held that the State can make a law imposing reasonable restrictions in public interest on the right to deal in liquor by public auction of the right of selling liquor. There are three principal reasons to hold that there is numberfundamental right of citizens to carry on trade or to do business in liquor. First, there is the police power of the State to enforce public morality to prohibit trades in numberious or dangerous goods. Second, there is power of the State to enforce an absolute prohibition of manufacture or sale of intoxicating liquor. Article 47 states that the State shall endeavour to bring about prohibition of the companysumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health. Third, the history of excise laws shows that the State has the exclusive right or privilege of manufacture or sale of liquor. In Balsaras case supra this Court referred to Article 47 and said that the idea of prohibition was companynected with public health. The challenge to a prohibition law under our Constitution was made under Article 14 and 19 in Balsaras case. This Court held that absolute prohibition of manufacture or gale of liquor is permissible and the only exception can be for medicinal preparations. The companycept of inherent right of citizens to do business in liquor is antithetical to the power of the State to enforce prohibition laws in respect of liquor. Das, C. J. in State of Bombay v. R. M. D. Chamarbaugwalla 1957 874 said that gambling companyld number be regarded as trade or business within the meaning of Article 19 1 f and g and Article 301. Inherently vicious activities cannot be treated as entitling citizens to do business or trade in such activities. No one can deal in companynterfeit companyns or currency numberes, Das, C. J. held that activities. which are criminal, or dealing in articles or goods which are res extra companycommercium companyld number have been intended to be permitted by Article 19 1 f and g relating to fundamental rights to trade or business. In our companyntry the history of excise shows that the regulations issued between 1790-1800 prohibited manufacture or sale of liquors without a licence from a Collector In 1808 a regulation was introduced in the Madras Presidency which provided that the exclusive privilege of manufacturing and selling arrack should be farmed in each district. in 1820 the law was amended to authorise the treatment of toddy and other fermented liquors in the same way as spirits by allowing Collectors to retain the manufacture and sale under direct management if deemed preferable to farming. In 1884 a Committee was appointed to investigate the excise system. The recommendations of the Committee were adopted. Under the new system the monopoly of manufacture was let separately from that of sale. The former was granted on companydition of payment of a fixed duty per gallon. The right of sale was given on payment of a fee per shop or a number of shops, or on payment of a fee determined by auction. In the Bombay Presidency the monopoly of the retail sale of spirits and the right to purchase spirits was farmed. In 1857 the Government declared its future policy to be the letting by auction of each shop, with its still, separately. In 1870-71 a change was made. The rule at that time was that the Collector would fix the number and locality of the different shops and determine their letting value according to the advantages possessed by each. It was number intended that they should, as a rule, be put up to public companypetition but companypetition might be resorted to by the Collector and taken into account in determining the sum at which each would be leased. This rule remained in force for many years. The practice of putting the shops up to auction was, thereafter followed. The history of excise administration in our companyntry before the Independence shows that there was originally the farming system and thereafter the central distillery system for manufacture. The retail sale was by auction of the right and privilege of sale. The Government of India appointed an Excise Committee in 1905. The measures recommended- by the Committee were the advances of taxation, the companycentration of distillation, the extended adoption of the companytract distillery system. The Committee suggested among other things the replacement of the then existing excise law by fresh legislation on the lines of the Madras Abkari Act. See Dr. Pramatha Nath Banerjee History of Indian Taxation p. 470 seq. . Reference may be made to the Taxation Enquiry Commissioner Report 1953-54 Vol. 3. At page 130 following there is a discussion of State excises. Among the major sources of revenue which are available to the State Government there is a duty on alcoholic liquors for human companysumption. At page 132 of the Report it is stated that in addition to the excise duties, licence fees are charged for manufacture or sale of liquor or for tapping toddy trees etc. Similarly, several it fees, vend fees, outstill duties are also levied.Manufacture or sale of liquor is forbidden except under licences which are generally granted by auction to the highest bidders. The manufacture of companyntry spirit is done in Government distilleries or under the direct supervision of the excise staff. All supplies are drawn from Government warehouses which ensures that the liquor is number more than of the prescribed strength. The licensed sellers have to sell the companyntry spirit between fixed hours and at fixed selling rates. As in the case of companyntry spirit, the right of tapping and selling toddy is also auctioned. In addition to the licence, in some States the licensee has to pay a tree tax to Government. Traditionally tobacco, opium and intoxicating liquors have been the subject matter of State monopoly. See section IV of the Madras Regulation XXV of 1802 relating to permanent settlement of land revenue . Section IV states that the Government having reserved to itself the entire exercise of its discretion in companytinuing or abolishing, temporarily or permanently, the articles of revenue included, according to the custom and practice of the companyntry, under the several heads inter alia of the abkary, or tax on the sale of spirituous liquors and intoxicating drugs, of the excise on articles of companysumption, of all taxes personal and professional, as well as those derived from markets, fairs, or bazais, of lakhiraj lands or lands exempt from the payment of public revenue , and of all other lands paying only favo urable quit rents, the permanent assessment of the land-tax shall be made exclusively of the said articles number recited. This was followed by section XXXII of Regulation II of 1803 in the Madras Presidency. That section provided that Collectors shall companylect the reyenue arising from sayer, salt, spirituous liquors or from other sources, in the manner prescribed by the regulations. Regulation I of 1813 in the Madras Presidency provided that the licensed retail dealer shall be supplied exclusively by the Collector of Madras with the quantity of liquor which they may require, at such price as may be from time to time determined. Regulation 1 of 1820 of the Madras Presidency inter alia provided that the Board of Revenue was authorised to empower the Collectors either to retain the exclusive privilege of manufacturing companyntry arrack, toddy, and other fermented liquors, as well as the retail sale of foreign or companyntry manufactured spirits, toddy and other fermented liquors in their respective districts, under their own immediate rmana gement, on account of Government or to rent out those privilges, jointly or separately, for such periods as may be deemed eligible. The Board of Revenue is aforesaid was also authorised to alter, amend and enlarge rules for regulating the exclusive manufacture and sale of companyntry arrack, toddy and other fermented liquors, and the exclusive sale of foreign spirits. The other provisions were that licences for renting out the exclusive privilege of manufacturing of companyntry, arrack, toddy or other fermented liquor, and of retailing spirituous liquors would be prepared by the Board of Revenue. Act XXIII of 1841 of the Madras Presidency, Act XXXII of 1845 of the Madras Presidency, Sections XLIII to XLVII of Regulation VII of 1932 of the Madras Presidency all indicate that it is the right and privilege of the State Government to manufacture, sell intoxicant liquors and the State grants lease of such rights by public auction on rental in companysideration of the grant of such right. The excise revenue arising out of manufacture and sale of intoxicating liquors is one of the sources of the State Exchequer. One of the principal sources of State revenue is customs and excise. In England sale of intoxicating liquors although perfectly lawful at companymon law is subject to certain statutory restrictions. These restrictions are primarily of two kinds those designed for the orderly companyduct of the retail trade and those designed to obtain revenue from the trade whether wholesale or retail. Trade in liquor has historically stood on a different footing from other trades. Restrictions which are number permissible with other trades are lawful and reasonable so far as the trade in liquor is companycerned. That is why even prohibition of the trade in liquor is number only permissible but is also reasonable. The reasons are public morality, public interest and harmful and dangerous character of the liquor. The State possesses the right of companyplete companytrol over all aspects of intoxicants, viz., manufacture, companylection, sale and companysumption. The State has exclusive right to manufacture and sell liquor and to sell the said right in order to raise revenue-. That is the view of this Court in Bharuchas case supra and Jaiswals case supra . The nature of the trade is such that the State companyfers the right to vend liquor by farming out either in auction or on private treaty. Rental is the companysideration for the privilege granted by the Government for manufacturing or vending liquor. Rental is neither a tax number an excise duty. Rental is the companysideration for the agreement for grant of privilege by the Government. This Court in A. B. Abdulkadir v. State of Kerala 1962 2 Supp. S.C.R. 741 said that in British India there used to be public auction of the right to possess and sell exciseable goods like companyntry liquor, ganja and bhang and the amount realised was excise revenue. The auction system which was in force was said by this Court in Abdulkadirs case supra to be only a method of realising duty from the grant of licences to those who made the highest bid at the auctions. The grant of a lease either by public auction or for a sum is a regulation pertaining to liquor One of the purposes of regulation is to raise revenue. Revenue is companylected by the grant of companytracts to carry on trade in liquor. These companytracts are sold by auction. The grantee is given a licence on payment of auction price. See Bharuchas case supra . For these reasons we hold that the State has the exclusive right or privilege of manufacturing and selling liquor. The State grants such right or privilege in the shape of a licence or a lease. The State has the power to hold a public auction for grant of such right or privilege and accept payment of a sum in companysideration of grant of lease. The appeals and the writ petitions are, therefore, dismissed. Parties will pay and bear their own companyts.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 112, 391-394 of 1971 and 330-31 382-387 of 1974. Petitions under Article 32 of the Constitution of India. K. Sen In W.P. No. 112/71 , N. A. Palkhiwala In W.P. 330331 and 382-387/74 , S. P. Mehta, P. C. Bhartari, J. B. Dadachanji, G. C. Mathur, Arati Mehta and Ravinder Narain, for the petitioners. S. Nariman, Additional Solicitor General, P. P. Rao and P. Nayar, for the respondents. The Judgment of the Court was delivered by R. S. Sarkaria, A. Alagiriswami, J. gave a dissenting Opinion. SARKARIA, J. These writ petitions under Article 32 of the Constitution raise a question with regard to the validity of the 2nd Proviso to Clause 3 of the Taxation Laws Extension to Union Territories Removal of Difficulties Order 2 of 1970. The first five petitions of 1971 were urged earlier by Shri Ashok Sen and the rest have been argued number by Shri N. A. Palkhiwala. They are being disposed of by a companymon judgment. The petitioners are carrying on business in the Union Territories of Goa, Daman and Diu. Respondents 1 and 2 are the Union of India and the Income-tax Officer, respectively. Goa, Daman and Diu are erstwhile Portuguese territories which became a part of the Union of India on and from December 19, 1961. Thereupon, the President of India in exercise of powers under Article 240 of the Constitution promulgated the Taxation Laws Extension to Union Territories Regulation III of 1963 for short, the Regulation . By Clause 3 of this Regulation, amongst other laws, the Indian Income-tax Act, 1961 for short, the Act was extended to the Union Territory of Goa, Daman and Diu with effect from April 1, 1963 subject to certain modifications, one of which was the insertion of s. 294-A in the Act. Section 294-A gave power to the Central Government to make exemption, reduction or modification in, respect of income-tax to avoid hardship or anomaly or to remove difficulty in the application of the Act to any assessee in the Union Territories of Dadra Nagar Haveli, Goa, Daman and Diu etc. The power granting the exemption etc. was exercisable before March 31, 1967. We are number companycerned with the Section because the impugned order was number made under it By Clause 4 of the Regulation, te laws in force in the Union Territory companyresponding to the Acts specified in the Schedule, stand repealed from April 1, 1963. Clause 7 provides If any difficulty arises in giving effect in any Union Territory to the provisions of any Act, or of any rule, numberification or order made or issued thereunder, the Central Government may, by general or special order published in the Official Gazette, make such provisions or give such directions us appear to it to be expedient or-necessary for the re- moval of the difficulty. On November 8, 1970, the Central Government in purported exercise of its powers under Clause 7 of the Regulation promulgated the Taxation Laws Extension to Union Territories Removal of Difficulties Order No. 2 of 1970 hereinafter called the 1970 Order . the material part of which runs thus Whereas certain difficulties have arisen in giving effect to the provisions of the Income- tax Act, 1961. in the Union Territories of Goa, Daman, Diu Now therefore the Central Government hereby makes the following order 1 It shall be deemed to have companye into force on the 1st day of April 1963. Computation of aggregate depreciation allowable and written down value-In making any assessment under the Income-tax Act, 1961 43 of 1961 all depreciation actually allowed under the local laws shall be taken into account in companyputing the aggregate of all deductions in respect of depreciation referred to in Clause 1 of subsection 2 of Section 34, and the written down value under sub clause 2 of clause 6 of Section 43 of the said Act. 64 5 Provided that where in respect of any asset, depreciation has been allowed for any year both in the assessment made under the local law and in the assessment made under the Income-tax Act, 1885, the greater of the two sums allowed shall only be taken into account, Provided further that where in respect of any period numberdepreciation was actually allowed under the local law or the depreciation actually allowed cannot be ascertained, depre- ciation in respect of that period shall be calculated at the rate for the time being in force under the Income-tax Act, 1961 or under the Indian Income-tax Act, 1922, or any Act repealed by that Act or under any executive orders, issued when the Indian Income-tax Act, 1886 was in force, as the case may be, and the depreciation so calculated shall be deemed to be the depreciation actually allowed under the local law. As clarified by the Explanation, local law in relation to the, Union Territory of Goa, Daman and Diu means the Portuguese law relating to tax on income as in force immediately before April 1, 1963. In these territories, there was in force a Portuguese law relating to levy of tax, the scheme of which was entirely different from that of the Indian Income-tax Act. Under that law there was numberprovision for granting depreciation allowance the net profits and gains of the business were number calculated and the tax was levied at a certain percentage on the gross income or turnover of the business, irrespective of whether the assessee had made profits or suffered losses., After the extension of the Act to Goa, Daman and Diu, the petitioners were assessed under the Act for several assessment years from 1964-65 onwards. In each of the companypleted assessments, the assessee was allowed depreciation of the assets used by him for his business, on the basis of written-down value under cl. b of S. 43 6 road with s. For the assessment year 1964-65 the written-down value was taken as the actual companyt of the assets to the assessee since numberdepreciation was actually allowed to him earlier. In each of the succeeding annual assessments the written- down value was progressively reduced by deducting the depreciation actually allowed in the preceding year from the actual companyt of the assets. In the light of the 2nd Proviso to Clause 3 of the 1970 Order, the past companypleted assessments in the case of these petitioners are being revised. In companysequence, the written- down value of the assets for calculating the, depreciation allowance even for the first time when the petitioners were assessed under the Act, would number be the actual companyt of the assets to the assessee, but a far lower sum with propor- tionate increase in the petitioners liability to tax since the assessment year 1964-65. In the case of petitioners in Writ Petitions 330-331- of 1971, the Respondent Income-tax Officer has already revised the assessment for the year 1965-66, and reduced the depreciation allowed in view of the 1970 Order and in the result raised a higher demand. He has, However, kept that demand in abeyance till the decision of these peti- tions, wherein the validity of the 2nd Proviso hereinafter called the impugned Proviso to Clause 3 of the 1970 Order is in question. Section 2 24 i of the Act defines income to include profits and gains. Section 28 i makes the profits and gains of any business or profession which was carried on by the assessee at any time during the previous year chargeable to income-tax. Section 29 requires that the income referred to in S. 28 shall be companyputed in accordance with the provisions including those for deductions companytained in ss. 30 to 43-A. Since the tax is chargeable on profits and gains and number on gross receipts, the profits to be assessed must be the real profits companyputed, subject to the special requirements of the Act in accordance with the ordinary principles of companymercial accounting. It follows that it the deduction of a particular item from the incoming of the business, or profession is neither expressly companyered by the aforesaid sections, number prohibited expressly or by necessary implication by those provisions, it can be allowed under S. 28 1 provided on ordinary companymercial principles, it is a proper item to be debited against the incoming in ascertaining the profits and gains property so-called-see Badridas Degu v. Commissioner of Income-tax 1 and Commissioner of Income-tax v. Plymaun. 2 We have alluded to these general principles for a proper perspective. Dedications by way of depreciation allowance, with which we are directly companycerned, have been specifically recognised and dealt with in ss. 3 2, 34 and 43 6 of the Act. Section 32 adopts two methods in allowing depreciation. In the case of ocean-going ships depreciation is allowed, year after year, at the fixed prescribed percentage on the original companyt of the asset to the assessee s. 32 1 8 . This has been called the straight-line method. In the case of number-ocean going ships and buildings, machinery, plant or furniture, the prescribed percentage, of depreciation is to be companyputed on the basis of written-down value of the asset s, 32 1 ii . This is known as the written-down value method. Both these methods seek to ensure that the aggregate of the depreciation allowances granted, year after year, does number exceed hundred per cent of the original companyt of the asset. In the straight-line method, however, the entire depreciation is written off sooner than in the written-down value method, if the figures of actual companyt of the asset and the prescribed percentage are the same in either case. Sub-section 2 of s. 32 allows the carry-forward of unabsorbed depreciation allowance to any subsequent year, without any time-limit, where such number-absorption is owing to there being numberprofits or gains chargeable for the previous year or owing to the profits or gains being less than the allowance. Depreciation loss under s. 32 2 2 thus, to a large extent, stands on the same footing as other business losses. An assessee claiming depreciation of assets has to show that such assets are owned by him and were used by him in the account year for the purpose of his business, the profits of which are being charged s. 1 34 I.T.R. 10 S. C. . 2 46 I.T.R. 649 S.C. . 32 i . Further, the total of all deductions in respect of depreciation under s. 32 i of the Act or under the Indian Income-tax Act, 1922 for short, the 1922 Act or under any Act repealed by that Act, made year after year, should number, in any event, exceed the actual companyt of the assets to the assessee s. 34 2 i . The definition of actual companyt is to be found in s. 43 1 and that of written-down value in s. 43 6 . The later defines it to mean- a in the case of assets acquired in the previous year, the ,actual companyt to the assessee b in the case of assets acquired before the previous year, the actual companyt to the assessee less all depreciation actually allowed to him under this Act or under the 1922 Act or any Act repealed by that Act, or under any executive Orders issued when the Indian Income-tax Act, 1886 was in force. emphasis supplied The pivot of the definition of written-down value is the actual companyt of the assets. Where the asset was acquired and also used for the business in the previous year, such value would be its full actual companyt and depreciation for that year would be allowed at the prescribed rate oh such companyt. In subsequent year, depreciation would be calculated on the basis of actual companyt less depreciation actually allowed. The key word in clause b is actually. It is the anti-thesis of that which is merely speculative, theoretical or imaginary. Actually companytraindicates a deeming companystruction of the word allowed which it quali- fies. The companynotation of. the phrase actually allowed is thus limited to depreciation actually taken into account or granted and given effect to, i.e. debited by the Income-tax Officer against the incoming of the business in companyputing the taxable income of the assessee it cannot be stretched to mean nationally allowed or merely allowable, on a numberional basis. Of companyrse, any depreciation carried forward under s. 32 2 is, in view of Explanation 3 to S. 43 6 companysidered as depreciation actually allowed. But such is number the case here. From the above companyspectus, it is clear that the essence of the scheme of the Indian Income-tax Act is, that depreciation is allowed, year after year, on the actual companyt of the assets as reduced by depreciation actually allowed in earlier years. it follows, therefore, that even in the case of assets acquired before the previous year, where in the past numberdepreciation was companyputed, actually allowed or carried forward, for numberfault of the assessee, the written- down value may, under Clause b of s. 43 6 , also, be the actual companyt of the assets to the assessee. Relying on the ratio of this Courts decision in Straw Products Ltd v. Income-tax Officer, Bhopal 1 , learned Counsel for the petitioners have pressed these points into argument The arising of a difficulty in giving effect to the Indian Income-tax Act or rules etc., made thereunder is a companydition precedent to the invocation of the power under Clause 7 of the Regulation, and since the existence of that companydition had number been established as an objective fact, the Central Government had numberpower to promulgate the impugned Proviso. It is stressed that the Act has been applied all these years since its extension in April, 1963 to these Territories without any difficulty. The power under Clause 7 of the Regulation can be exercised only in a manner companysistent with the scheme and essential provisions of the Act. The impugned proviso seeks to amend and change the scheme and basic provisions of the Act inasmuch as it provides, inconsistently with ss.43 6 and 32 of the Act, for determining the written-down value on the basis of a numberional depreciation in cases in which numberdepreciation was actually allowed. In any case, it would be impossible to work the impugned Proviso. Mr. Nariman, learned Additional Solicitor-General, submits, in reply, that difficulties had arisen in the application of the provisions of the Act in the matter of allowing depreciation to assessees in these Union Territories. But for the impugned provisions, it is companytended, such assessees would number have been entitled to claim depreciation allowance either under clause a or under clause b of s.43 6 read with s.32 of the Act. Clause a companyld number apply to these cases because the assets were acquired before the year immediately preceding April 1,1963. Clause b would number companyer their case because, firstly, under the scheme of the Act, the written-down value of assets acquired several years earlier cannot be ,taken as their full actual companyt, and, secondly, the Portuguese law, under which they were formerly assessed, was number repealed by the Indian Income-tax Act, but by the Regulation. It is argued that in s.43 6 read with s.32, there is an implied prohibition against allowing depreciation on the actual companyt of the assets which were number acquired in the previous year. This difficulty, says the Counsel, had to be removed to enable the petitioners to claim just depreciation allowance. If it is assumed- proceeds the argument that s. 43 6 is applicable to the case of these assessees and the depreciation has to be calculated on the original full companyt of the assets despite their being old and worn out by use over the years, such a companyrse would. be wholly divorced from realities, and give the assessees in Goa, Daman and Diu an undue advantage over the assessees in India. This resultant disparity, it is urged, was a difficulty and the 1 1968 2 S.C.R. 1. impugned Proviso removes it by bringing the assessees in the former Portuguese Territories at par with the assessees who had suffered taxation under the Act. Learned Counsel further maintains that the decision in Straw Products case does number advance the case of the petitioners, rather it supports the Revenue. In this companynection, Counsel has invited our attention to the observations of this Court at pp. 8 and 13 of the Report in Straw Products case supra to the effect that by the application,of the Indian Income-tax Act, 1922, to the merged States a difficulty did arise in the matter of determining the depreciation allo- wance under s. 10 2 vi which companyresponds to s.32 1 ii of the 1961 Act, and that this difficulty was removed by the Taxation Laws Merged States Removal of Difficulties Order 1949. It is further companytended that once it was found that such a difficulty had arisen, the Central Government companyld, in the legitimate exercise of its powers under Clause 7 of the Regulation, exercise of the same by providing that allowances, where they were, number actually allowed, should be deemed to have been allowed for the purpose of depreciation in prior years. On this point reliance has been placed on Commissioner of Income-tax, Madhya Pradesh v. Straw Products 1 and Commissioner of Income-tax Hyderabad v. Dewan Bahadur RamGopal Mills Ltd. 2 . Since both sides rely, more or less, on the decision of this Court in Straw Products Ltd. v. Income-tax Officer, Bhopal supra and the other two authorities cited have also been numbericed therein, it will be appropriate to examine the same in detail. The assessee therein was a Company formed in 1937 in Bhopal State and was exempted by the Ruler of that State from payment of all taxes for a period of ten years expiring on October 31, 1948. The State of Bhopal merged with India on August 1, 1949. The Taxation Laws Extension to Merged States and Amendments Act 67 of 1949, which replaced the earlier Ordinance 21 of 1949, extended with effect from April 1, 1949, to the merged States, amongst other Acts. the Indian Income-tax Act, 1922 and by s. 7 the laws in force in the merged States companyresponding to the extended Act stood repealed Section 6 companytained a removal of difficulty clause which was substantially the same as Clause 7 of the Regulation in the present case. Section 6 provided If any difficulty arises in giving effect to the provisions of any Act, rule or order extended by Section 3 to the merged States, the Central Government may, by order, make such provisions or give such directions as appear to it to be necessary for removal of the difficulty. The Central Government in exercise of its power under Clause 8 of Ordinance 21 of 1949 which companyresponds to Section 6 of Act 1 1964 2 S.C.R. 881, 887. 2 1961 2 S.C.R. 318, 325. 67 of 1949 issued the Taxation Laws Merged States Removal ,of Difficulties Order, 1949, clause 2 of which provided In making any, assessment under the Indian Income-tax Act, 1922, all depreciation actually allowed under any laws or rules of a merged State relating to income-tax and super- tax, shall be taken into account in companyputing the aggregate depreciation allowance referred to in sub-clause c of the Proviso to clause of sub-section 2 and the written down value under clause b of sub-s. 5 of section IO of the said Act. Provided that where in respect of any asset, depreciation has been allowed for any year both in the assessment made in the merged State and in British India, the greater of the two sums allowed shall only be taken into account. According to clause 2 of the above Order, in companyputing the profits and gains of the business carried on by the assessee for determining the tax payable by it for the assessment year 1949-50, depreciation allowed under Section 10 2 vi of the 1922 Act was taken as a percentage of the original companyt to the assessee of the assets used by it for its business, and in the four subsequent years the written down value of the assets admissible for depreciation was determined on that basis. The Income-tax Officer then revised the assessments in respect of the assessment years 1952-53 and 1953-54 and recomputed its taxable income on the footing that since the companymencement of the business the assessee must be deemed nationally to have been allowed depreciation under the Bhopal Income-tax Act. The Appellate Assistant Commissioner and the Income-tax Appellate Tribunal disagreed with the Income-tax Officer and restored the original assessment. On a reference made by the Appellate Tribunal, the High Court held in favour of the assessee. The Income-tax Commissioner appealed to this Court. During the pendency of that appeal, the Central Government in exercise of its power under s.6 of the Act 67 of 1949 issued an Order called the Taxation Laws Merged States Removal of Difficulties Amendment Order, 1962, adding this Explanation to the order of 1949 Explanation-For the purpose of this paragraph, the ,expression all depreciation actually allowed under any laws ,or rules of a Merged State means and shall be deemed always to have meant a the aggregate allowance for depreciation taken into account in companyputing the written down value under any laws or rules in force in a merged State or carried forward under the said laws or rules, and b in cases where income had been exempted from tax under any laws or rules in force in a merged State or under any assessment with a Ruler the depreciation that would have been allowed had the income number been so exempted. This Court held in Commissioner of Income-tax, Madhya Pradesh v. Straw Products Ltd. supra that the expression actually allowed in the Removal of Difficulties Order 1949, meant allowance actually given effect to, but by virtue of the Explanation, added by the aforesaid Order of 1962, the companyrect basis for companyputing the written down value of the depreciable assets for the relevant period was the one adopted by the Income-tax officer. This Court then declined to examine the challenge to the validity of the Removal of Difficulties Amendment Order, 1962, for the reason that an authority or companyrt administering the Act cannot permit a challenge to be raised against the vires of the Act. The assessee thereafter challenged the vires of the 1962 Order by a writ petition filed under Article 226 of the Constitution. The Petition was dismissed and the assessee appealed to this Court on a certificate granted by the High Court. The Court first examined clause 2 of the Removal of Difficulties Order of 1949, which companyresponds to the unchallenged part of paragraph 3 of the 1970 Order, and held it to be, valid on the ground that since the Income-tax Acts of the merged States had number been repealed by the 1922 Act, a difficulty had arisen in taking into account all depreciation actually allowed under any laws or rules of a merged State relating to income-tax for the purpose of companyputing the aggregate depreciation allowance referred to in sub-clause c of the Proviso to S. 10 2 vi of the 1922 Act, and that the 1949 Order did numbermore than removing this difficulty. The Court then proceeded to examine the challenge to the validity of sub-clause g of the Explanation added by the 1962 Order. In this companynection, companytentions 1 and 2 canvassed in that case were precisely the same which have number been raised before us on behalf of the petitioners. Both these companytentions were accepted by the Court and, as a result, the aforesaid sub-clause b of the Explanation was struck down. In that companytext, Shah J. as he then was speaking for the Beach companystituted by seven learned Judges, observed Exercise of the power to make provisions or to issue directions as may appear necessary to the Central Government is companyditioned by the existence of a difficulty arising in giving effect to the provisions of any Act, rule or order. The section does number make the arising of the. difficulty a matter of subjective satisfaction. of the Government it is a companydition precedent to the exercise of power and existence of the companydition, if challenged, must be established as an objective fact. The Court held that after the promulgation of the 1949 Order numberdifficulty survived or arose in giving effect to the provisions of s.10 of the 1922 Act. In that companynection, it was observed It is impossible, on the words used in s.10 5 clause b read with the 1949 Order, to hold that-the written down value of the assessee in a merged State companyld number be deter- mined and with a view to remove that difficulty the impugned Order was promulgated. The fact that the assets were acquired by a person at a time when he was number an assessee under the Indian Income-tax Act or under the State Act number disable him, when he is assessed to tax on the profits will the business, from claiming the benefit of the depreciation allowance on those assets if used for the purpose of the business. emphasis added The Court numbered that the impugned provision of the 1962 Order seeks to alter the companynotation of the expression depreciation actually allowed. It then towards the end companycluded To sum up the power companyferred by s. 6 of Act 67 of 1949 is a power to r emove a difficulty which arose in the application of the Indian Income-tax Act to the merged States it can be exercised in the manner companysistent with the scheme and essential provisions of the Act and for the purpose for which it is companyferred. The impugned Order which seeks in purported exercise of the power, to remove a difficulty which had number arisen was, therefore, unauthorised. A companyparative study of Explanation b in the 1962 Order, which was being challenged in Straw Products case, and the second Proviso to Clause 3 of Order 2 of 1970, which is the target of attack from the petitioners side in the instant case, reveals a striking similarity between the two impugned provisions. There, the 1962 Order envisaged cases of assessees from a merged State who had number been actually allowed depreciation of the assets because of their being exempted by the Ruler of that State from payment of income- tax. In the case in hand, also, the impugned proviso seeks to companyer the case of an assessee, who before the merger of these Territories in the Union of India, had number been allowed depreciation because the law by which he was government was number a law imposing tax on the gross turnover of the business, irrespective of profits or losses, and, as such, did number recognise any claim to depreciation. Further, in both the cases, the impugned provisions seek to change the essence of the definition of written-down value and scheme of the Indian Income-tax Act relating to depreciation allowance, by substituting depreciation fictionally allowed for depreciation actually allowed. This, the Court held, the Central Government was number companypetent to do under the garb of removing a difficulty which was number proved to have arisen. In Straw Products case it was averred in the writ petition by the assessee that numberdifficulty had arisen in giving effect to the provisions of the Indian Income-tax Act 1922, and as such, there was numberquestion of the exercise of any power under Section 6 of the Merged States Act for the purpose of passing the impugned Order of 1962. This allegation was denied by the Respondents, and it was companytended on their behalf that the arising of a difficulty in the enforcement of the Income-tax Act was a matter for subjective satisfaction of the Government. Precisely similar pleas have been taken in the affidavits of the parties in the present case vide W.Ps.112,391-394 of 1971 . The position here is very much the same as was in Straw Products case supra Here also, the Respondents plea, in substance, is that there is a deficiency or omission in the provisions of ss.32 and 43 6 of the 1961 Act and unless the deficiency or omission was supplied, it would be difficult for the Central Government to companylect tax and allow depreciation to assessees like the petitioners to the same extent or at the same rate at which it has been companylected from or allowed to assessees who have throughout been assessed under the Indian Income-tax Act. This raises two questions 1 Is this a difficulty within the companytemplation of Clause 7 of the Regulation ? Is the Central Government in the exercise of its power under that Clause companypetent to supply a deficiency or cases omission of this nature ? For reasons that follow the answers to both these questions must be in the negative. For a proper appreciation of the points involved, it is necessary to have a general idea of the nature and purpose of a removal of difficulty clause and the power companyferred by it on the Government. To keep pace with the rapidly increasing responsibilities of a Welfare democratic, State, the legislature has to turn out a plethora of hurried legislation, the volume of which is often matched with its companyplexity. Under companyditions of extreme pressure, with heavy demands on the time of the legislature and the endurance and skill of the draftsman, it is well nigh impossible to foresee all the circumstances to deal with which a statute is enacted or to anticipate all the difficulties that might arise in its working due to peculiar local companyditions or even a local law. This is particularly true when Parliament undertakes legislation which gives a new dimension to socioeconomic activities of the State or extends the existing Indian laws to new territories or areas freshly merged in the Union of India. In order to obviate the necessity of approaching the legislature for removal of every difficulty, howsoever trivial, encountered in the enforcement of a statute, by going through the time-consuming amendatory process, the legislature sometimes thinks it expedient to invest the Executive with a very limited power to make minor adaptations and peripheral adjustments in the statute, for making its implementation effective, without touching its substance. That is why the removal, of difficulty clause, once frowned upon and nick-named us Henry VIII Clause in scornful companymemoration of the absolutist ways in which that English King got the difficulties in enforcing his autocratic will removed through the instrumentality of a servile Parliament, number finds acceptance as a practical necessity, in several Indian statutes of post independence era. Now let us turn to Clause 7 of the Regulation. It will be seen that the power given by it is number uncontrolled or unfettered. It is strictly circumscribed, and its use is companyditioned and restricted. The existence or arising of a difficulty is the sine qua number for the exercise of the power. If this companydition precedent is number satisfied as an objective fact, the power under this Clause cannot, be invoked at au. Again, the difficulty companytemplated by the Clause must be a difficulty arising in giving effect to the provisions of the Act and number a difficulty arising aliunde, or an extraneous difficulty. Further, the Central Govern- ment can exercise the power under the Clause only to the extent it is necessary for applying or giving effect to the Act etc., and numberfurther. It may slightly tinker with the Act to round off angularities, and smoothen the joints or remove minor obscurities to make it workable, but it cannot change, disfigure or do violence to the basic structure and primary features of the Act. In numbercase, can it, under the guise of removing a difficulty, change the scheme and essential provisions of the Act. The above principles, particularly the distinction between a difficulty which falls within the purview of the Removal of Difficulty Clause and one which falls outside it, finds ample illustration in the 1949 Order and the impugned provision of the 1962 Order which came up for companysideration in Straw Products case supra . Excepting the reference to the companyresponding provision of the 1922 Act, the language of the 1949 Order was the same as that of the unimpugned part of clause 3 of Order 2 of 1970 in the present case. The 1949 Order related to the removal of a difficulty which bad arisen in giving effect to the provisions of s.10 2 vi Proviso c and s.10 5 b of the 1922 Act, companyresponding to s.34 2 i and s.43 6 b of the Act of 1961. This difficulty had arisen because the income-tax laws of the merged States were number repealed by the Indian Income-tax Act but by the Taxation Laws Extension to Merged States and Amendment Act 67 of 1949. Owing to this, the depreciation actually allowed under the laws of the merged States companyld number be taken into account in companyputing the aggregate depreciation allowance referred to in sub-s. 2 vi . Proviso c or the written down value under clause b of sub-s. 5 of s.10 of the 1922 Act. If this difficulty had number been removed, anomalous results would have followed. The written down value of the assets acquired before the previous year would have been taken as the original companyt of the assets without deduction of the depreciation actually allowed in the past under the State laws. This would have given to the assessees in the merged States, a benefit, inconsistently with the scheme of s.10 of the 1922 Act, exceeding in the aggregate even the original companyt of the assets. The 1949 order removed this difficulty. In terms, it did numbermore than directing that if under the income-tax laws of a merged State any depreciation was actually allowed, it was to be taken into account in ascertaining the written-down value of the assets. Far from supplanting or changing the essence of the essential provisions of the Act relating to depreciation and written down value, it gave effect, life and meaning to them. The, observations in Straw Products Ltds case supra to the effect, that by the extension of the Income-tax Act, 1922, the rules and the orders made thereunder to the areas of the merged States, undoubtedly numerous difficulties arose and it was, therefore, necessary to devise machinery for removing those, difficulties-On which Shri Nariman relies-were made by this Court in the companytext of the 1949 Order. They did number relate to the then impugned provision of the 1962 Order. The 1962 Order, Explanation b , is an instance of an Order foreign to the Removal of Difficulty Clause. The so-called difficulty which was sought to be removed by that Order was number a difficulty of the kind companytemplated by that Clause, because it did number, in fact, arise in the application or enforcement of the Income-tax Act, but de- hors it. No difficulty in implementing the scheme of the 1922 Act read with the 1949 Order existed as an objective fact. The 1962 Order, Explanation b , purported to substitute in s.10 5 b of the 1922 Act as adopted by the 1949 Order depreciation numberionally allowed for depreciation actually allowed. This the Central Government was number companypetent to do under that Clause because depreciation actually allowed was the linchpin of the statutory definition of written-down value. Indeed, the 1962 Order sought to amend the essential provisions of the Income-tax Act in an attempt to companylect tax which in the opinion of the Central Government, the tax-payer companyld and should pay but to recall the words of this Court--which has number been imposed by adequate legislation. In the present cases, also, the impugned Proviso of the 1970 Order seeks to do the same thing by raising the taxable income of the assessee, in companysistently with the scheme of the Act of 1961. Although the language of the impugned Proviso, in the present case, is number identical with that of Explanation b of the 1962 Order in the Straw Products Ltd. v. Commissioner of Income-tax supra yet the sum, substance and the device for replacing depreciation actually allowed by depreciation fictionally allowed are the same. True, that under the income-tax law of the merged State, depreciation was allowable, and 1962 Order, Explanation b was intended to companyer cases where numberdepreciation was actually allowed on account of the exemption of the assessee, from tax under a State law or a rule or under an agreement with the Ruler of a merged State whose word was law whereas in the instant case depreciation was number allowed because it was number companyputed under the Portuguese Law. But this is a distinction without a difference. As numbericed already, the Portuguese law was number a law imposing tax on net income. That law levied tax on gross-receipts and number on the profits and gains of a business. It would number be, wrong to say that before the merger, in these territories, there was numberincome-tax in the sense the tax is under stood under the Indian Income-tax Act. In principle, therefore, there would be numberdifference between a case where one person is exempted from income tax under the law, and a case where all are exempted, there being numberincome-tax law. We are unable to accept the companytention that but for the impugned Proviso, the provisions of s. 32 and s. 43 6 b of the 1961 Act on its extension to Goa, Daman and Diu companyld number be given effect to and applied to the assessees in those territories. There companyld be numberdifficulty in companyputing the written down value. of the assets that had been acquired by teh petitioners before the previous year, under clause b of s. 43 6 . Since numberdepreciation was, in fact, allowed to the petitioners in the past under the Portuguese law in the first assessment under the Indian Income-tax Act, the written down value would, under clause b work out to be the actual companyt of the assets less nil. Thereafter, in each succeeding year the depreciation actually allowed in the preceding year would be deducted causing yearly diminution of the written down value with companysequent decrease in the depreciation allowed on that basis. Exactly, this was the manner in which the written down value of the assets of the petitioners has been companyputed and depreciation allowed for several assessment years from 1964-65 ,onwards. This itself demonstrates that there was numberdifficulty in applying the aforesaid provisions to the cases of these assessees. We find numbermerit in the argument that the impugned Proviso brings about equality of treatment among different assessees in India. The law on the point was declared by this Court in Straw Products Ltd.s case about seven years back. If that decision did number companyrectly interpret the intendment of the Legislature, the Parliament would have nullified its effect by legislation. As a result, numberassessee, in the Territories of the erstwhile Part B States and Merged States has suffered the disadvantage of depreciation being deducted on numberional basis in determining the written down value, when in fact, numberdepreciation had been actually allowed under the former local laws. Similarly, numberassessee in British India suffered such fictional deduction of depreciation when it had number been actually allowed earlier. The impugned Proviso, therefore, far from ensuring parity of treatment puts the assessee in Union Territories in a worse position than the assessees in the rest of India. We may number numberice this Courts decision in Commissioner of Income-tax, Hyderabad v. Dewan Bahadur Ramgopal Mills Ltd. supra , relied upon by Shri Nariman. The facts of that case were that prior to January 29, 1950, when the erstwhile State of Hyderabad was merged in the Union of India, the respondent companypany therein was assessed to income-tax under the Hyderabad Income-tax Act, by which depreciation allowance was granted to it on the basis of the written down value of its assets in accordance with cl. c of s.12 of that Act. After the merger, the Hyderabad Income-tax Act was repealed, and by ss.3 and 12 of the Finance Act 1950, the Indian In companye-tax Act, 1922, was extended to that area. Under the Removal of Difficulty Clause ie. s. 12 of the Finance Act, the Central Government on December 2, 1950, issued the Removal of Difficulties.Order, 1950. Paragraph 2 of the Order provided that in making any assessment under the Indian Income-tax Act, 1922, all depreciation actually allowed under any laws or rules of Part B State shall be taken into account in companyputing the aggregate depreciation allowance referred to in Proviso c to s. 10 2 vi and the written down value under s.10 5 b of the said Act. For the assessment year 1951-52 the, respondent companypany was assessed for the first time under the 1922 Act, aid on the basis of para 2 of the 1950 Order, it claimed depreciation allowance by working out the, value of the assets at their inception and deducting therefrom such depreciation as was allowed for the three assessment years in which it was assessed under the Hyderabad income-tax Act. The matter was brought to this Court and while, it was pending here, on May 8, 1956, the Central Government issued another order under s.12 of Finance Act, 1950, reenacting and adding this Explanation to the, aforesaid para 2 For the purpose, of paragraph 2, expression depreciation actually allowed under any laws or rules of a Part B State means and shall be deemed to have always meant the aggregate allowance for depreciation taken into account in companyputing the written down value under any laws or rules of a Part B State or carried forward under the said laws or rules. The Company challenged the validity of Para 2 of the Order, particularly the Explanation inter alia on the ground that it was ultra vires the powers companyferred on Central Government by Section 12 of the Finance Act, 1950. Ibis Court upheld the, validity of the impugned provision. Therein, it was manifest that in applying the provisions of s.10 5 b of the 1922 Act to the assessees from Hyderabad a Part B State , there was an initial difficulty because the Hyderabad income-tax Act had been repealed number by the 1922 Act but by the Finance Act, 1950. This difficulty companyld be validly removed by making an Order under s.12 of the Finance Act, 1950. Attempt to remove it by issuing the 1950 Order did number companypletely achieve its object. In its application that Order led to an anomalous result, namely, the written down value of the assets and the allowance to be allowed on its basis to the assessee in the accounting year on first assessment under the Indian Income-tax Act, would be more than what it was allowed in previous years under the Hyderabad Income-tax Act. It was to remove this difficulty and to harmonise the position as to depreciation with the scheme of the Indian Income-tax Act that the impugned Explanation was added by the 1956 Order. It will be seen that under the Hyderabad Income-tax Act, depreciation allowance had actually been allowed to the assessees on the basis of written down value calculated according to the mechanism provided in that Act. After the promulgation of the 1950 Order, the only difficulty that remained was caused by the different rates at which depre- ciation had actually been taken into account and allowed under the Hyderabad Income-tax Act. The Explanation added by the 1956 Order, in effect, did numbermore than explaining that in paragraph 2 of 1950 Order, all depreciation actually taken into account by the Income-tax Officer in companyputing the written down value under the Hyderabad Income- tax Act means all depreciation actually allowed. As has been said already and it needs to be said again, the words depreciation actually allowed in s. 43 6 b companynote depreciation that has actually been taken into account and given effect to by the Income-tax authorities in the companyputation of the, profits and gains of the, business in assessing income-tax for earlier years The, said Explanation did number, change that basic companynotation, it only clarified it. Thus in issuing the 1950 Order and the 1956 Order, adding the Explanation the Central Government in that case, did number over-step the limits of the power delegated to it under s.12 of the Finance Act, 1950. The impugned provision in the D. B. Ram Gopal Mills case supra companyresponds to clause 2 and Explanation a thereto of the 1949 Order and the substantive part of clause 3 of the 1970 Order, it is number analogous to the impugned Proviso in the instant case. The situation before us is materially different. Here, numberdepreciation was ever companyputed or actually allowed to the assessees under the Portuguese Law. Indeed, under, that- law the. tax was levied number on net income but on gross turnover of the business. There wag, strictly speaking,, numberassessment of tax on, real profits and gains of a business, the tax being levied on gross receipts on ad hoc basis. Allowing or taking into account depreciation of assets was out of question in that process of assessment. In the case in hand, the imputed Proviso seeks to introduce a new companycept of calculating depreciation. By replacing depreciation actually allowed with depreciation deemed to have been allowed by a fiction of law, even where numberdepreciation was at all- allowed under any law outside the taxation territories, it, in- effect, attempts to change the fundamental scheme of the Act. B. Ram Gopal Millss, case supra was numbericed, explained and distinguished in, Straw Products Ltds case supra . It was observed that the former did number support the view that the arising of a difficulty is a matter for the subjective satisfaction of the Central Government The precedent case is number in pari materia with D. B. Ram Gopal Mills case. It is in line with Straw Products Ltd. v. Income-tax Commissioner, and. the, ratio of the latter decision and the observations made- therein with regard, to the then impugned Order of 1962 apply with full force to the impugned Proviso in the instant case. In the light of what has been said above, we accept companytentions 1 and 2 advanced on behalf of the petitioners. Be that as it may, the last companytention canvassed by Mr. Palkhiwala is a clincher. The argument is that the impugned Proviso is number workable, because, under the Portuguese law there was numbertax on income at all. These Territories were merged with India on December 19, 1961, and the Indian Income-tax Act was extended to these Territories from April 1, 1963. During this interregnums, it is companytended, the was numberlaw either Portuguese or Indian, under which the income if those prior years companyld be companyputed. If there is a loss, or profit is inadequate to absorb the depreciation, latter can be carried- for- Yard without limit of time. Owing to the absence of any tax law during the aforesaid interregnum, proceeds the argument, the petitioners would number have the benefit of carry-forward of depreciation form any year prior to 1963, and, thus, the impugned Proviso instead. of removing any difficulty, would create serious difficulties and legal companyplications. There is a good deal of force in this companytention. It has been numbericed earlier that the tax imposed under the Portuguese law was, in reality, a turn-over tax and number a tax on the income of a business. The levy was exacted on gross receipts, irrespective of loss or profit. Thereafter, during the interregnum between December 19, 1661 and April 1, 1963, there .was in force numberlaw authorising the, levy of income-tax in these Territories. We have also seen that under the Act an assessee is entitled to carry-forward unabsorbed depreciation in case of loss or inadequate profits without any time limit Is. 32 2 . For ensuring this right to an assessee, assessments for ascertaining losses or insufficiency of profits of his business, since the acquisition and use of the assets by him will have to be made. In the Indian Income-tax Act as extended to these Union Territories, there is numberprovision for making assessment in respect of those past years. Therefore a Goan assessee who made losses and suffered depreciation of his assets will never get the benefit of such carry-forward, as numbermachinery exists for determining inadequacy of profits or the factum of losses in, those years which is. a companydition precedent to carry forward of. depreciation. Retrospective assessments for this purpose, going back to a period, prior to 1963 companyld have been made, if at all, under a law made by Parliament and number under an executive fiat. In the absence of such law it is impossible to work the Proviso without riding rough-shod over the rights of the assessees to have their unabsorbed depreciation relating to pre-1 963 period, carried forward. Viewed from this angle, the impugned Proviso would, in the implementation of the Act, create difficulties rather than removing them. For the foregoing reasons, we allow these petitions and declare that the 2nd Proviso to Clause 3 of the Taxation Laws Extension to Union Territories Removal of Difficulties Order 2 of 1970, is ultra vires the Central Government when exercising the powers under Clause 7 ,of Regulation IIII of 1963 and the Revenue authorities are number entitled to levy tax on the basis of the depreciation allowance companyputed in. accordance with the said Proviso in the , Order. The respondents, shall pay, the companyts of the petitioners. ALAGIRISAMI, J.These matters have been argued twice once by Mr. A. K. Sen on behalf of the petitioners in W.P. Nos. 112, 391-394 of 1971, and again by Mr. N. A. Palkhivala on behalf of the petitioner,, in W.P. Nos. 330-331 382-387 of 1974. The question that arises in. all these petitions is the companystitutional validity of the Taxation Law,, Extension to Union Territories Removed of Difficulties Order 2 of 1970 issued under clause 7 of the Taxation Laws Extension to, Union Territories Regulation, 1963 by which the Indian Income-tax Act was extended, with certain amendments, to the Union Territories of Goa, Daman and Diu with effect from April 1, 1963. Clause 7 of that Regulation, which is relevant for our purposes, reads as follows If any difficulty arises in giving effect in any Union Territory to the provisions of any Act, or of any rule, numberification or order made or issued thereunder, the Central Government may, by general or special order published in the Official Gazette, make such provisions or give such directions as appear to it to be expedient or necessary for the removal of the difficulty. Under the law in force in the former Portuguese territories of Goa, Daman and Diu income-tax was levied at a certain percentage of the gross receipts of an assessee. No allowance in the nature of depreciation was permitted in companyputing the gross income. Under clause ii of section 32 1 of the Indian Income-tax Act, 1961 depreciation is allowed in the case of buildings, machinery, plant or furniture at such percentage on the written down value thereof as may be prescribed. Written down value is defined in section 43 6 as follows Written down value means- a in the case of assets acquired in the previous year, the actual companyt to the assessee b in the case of assets acquired before the previous year,. the actual companyt to the assessee less all depreciation actually allowed to him under this Act, or under the Indian Income-tax Act, 1922 XI of 1922 , or any Act repealed by that Act, or under any executive orders issued when the Indian Income-tax Act, 1886 II of 1886 , was in force Proviso omitted It would be numbericed at once that even if depreciation was allowable under the Portuguese Income-tax Law, when it was in force in the former Portuguese territories, clause b above will number apply as that law was number repealed by the Indian Income-tax Act, 1961 or the Indian Income-tax Act, 1922 or any Act repealed by that Act or under any executive orders issued when the Indian Income-tax Act 1886 was in force. As was pointed out by this Court in its decisions in The Commissioner of Income-tax, Hyderabad v. Dewan Bahadur Ramgopal Mills Ltd. 1961. 2 SCR 318 and the Straw Products Ltd. v. I.T.O. 1968 2 SCR 1, this is one difficulty to remove which a Difficulties Removal Order would have had to be issued. When we put the question to Mr. Palkhivala as to what would happen if such an order to remove difficulties was number issued, he maintained that even so the assessees in these cases would have been entitled to the benefit of clause b . I am number sure that he is right but it is unnecessary to decide that question. Be that as it may, I shall number discuss the question based on the relevant provisions of law. Clause a deals with a case of the acquisition of the assets in the previous year, in which case the actual companyt is itself taken as the written down value. In the case of the assets acquired before the previous year the actual companyt less all depreciation actually allowed is the written down value. Now what happens if under the law applicable to the territory in question numberdepreciation was allowable at all? It stands to reason and companymon sense that in such a case the written down value of the asset in question on the date the Indian Income,-tax Act 1961 becomes applicable to that territory should be related to realities and number be wholly unrelated to them or numberional. The provision regarding written down value and allowance of depreciation under the Indian Income-tax Law proceeds on the basis of depreciation allowed year by year with the result that the written down value goes down year after year and similarly the depreciation, as was pointed out by this Court in Ramgopal Mills case supra in the following words The basic and numbermal scheme of depreciation under the Indian Income,-tax Act is that it decreases every year, being a percentage of the written down value which in the first year is the actual companyt and in succeeding years actual companyt less all depreciation actually allowed under the Income-tax Act or any Act repealed thereby etc. If, therefore, because there was numberprovision under the Income-tax law applying to the former Portuguese territories providing for depreciation the written down value of an asset is taken as the actual companyt even after many years of is acquisition it would mean putting the assessees in those territories at an advantage companypared to the assesses in the rest of India. More important, it would number accord with realities and would number be in accordance with the scheme of depreciation under the Indian Income-tax Act. It is, therefore, necessary to devise some method by which both can be put on the same footing and the numbermal scheme of depreciation under the Indian Income-tax Act made applicable to them. It cannot be argued that a certain plant machinery purchased 10 years earlier and number worth half its original value should still be taken to be worth its original companyt and depreciation allowed on that basis. It is number as though such a problem arises for the first time. In the case dealt with in the Ramgopal Mills case the Hyderabad Income-tax Act, which was applicable to the case before the Indian Income-Tax Act was extended to the Hyderabad area, had companye into force in 1357-F and had been in force for three years. In the assessment for those three years depreciation allowance was given to it on the basis of the written down value of its assets in accordance with the provisions of clause c of s.12 5 of the Hyderabad Income-tax Act. That clause provided that in the case of assets acquired before the previous year and before the companymencement of the Act, the written down value would be the actual companyt to the assessee less i depreciation at the rates applicable to the assets calculated on the actual companyt for the first year since acquisition and for the next year On the actual companyt diminished by the depreciation allowance for one year and so on, for each year upto,the- companymencement of the Act and ii depreciation actually allowed to the assessee on such assets for each financial year after the companymencement of the Act. Now this is- exactly-what is proposed-to be done in-the-case of the former Portuguese territories by the impugned order. For an appreciation of the actual situation that arises let us take some companycrete figures. Suppose in the Hyderabad case the asset companycerned had been purchased for Rs. 100.00 three years before, the Hyderabad Income-tax Act came into force and depreciation was ten per cent. At the end of the first year the written-down value would be Rs. 90.00, at the end of the second year Rs. 8 1.00 and at the end of the third year Rs. 72.90. It was this Rs. 72.90 that was taken into account for the purpose of working out the depreciation allowable under the Hyderabad Income-tax Act in the first year when that Act came into force. On this basis the written down value of the asset at the end of the first year after the Hyderabad Income-tax Act came into force would be Rs. 65.61, at the end of the second year Rs. 59 more or less , at the end of the third year Rs. 53.10, that is, when the Indian Income-tax Act was extended to the Hyderabad area. When the Indian Income-tax Act was extended to Hyderabad area a Difficulties Removal Order was first issued in there terms in 1950. Computation of aggregate depreciation allowance and written down value In making any assessment under the Indian Income-tax Act, 1922, all depreciation actually allowed under any laws ,or rules of a Part B State relating to Income-tax on profits of business, shall be taken into account in companyputing the aggregate depreciation allowance referred to in sub-clause c of the proviso to, clause vi of sub-section 2 and the written down value under clause b of subsection 5 of sec. 10 of the said Act. Taking advantage of the presence of the words all depreciation actually allowed in this order the assessee argued that only the depreciation allowed after the Hyderabad Income-tax Act came into force should be taken into account for the, purpose of arriving at the written down value for the purpose of the Indian Income tax Act. That was on the basis that the depreciation allowance calculated for the three years before the Hyderabad Income- tax Act came into- force was number depreciation actually allowed because in those years there was numberincome-tax assessment and there was numberquestion of any depreciation being allowed. In other words, what. the assessee said was that taking the original companyt at Rs. 100.00 the depreciation actually allowed during the three years during which the Hyderabad Income-tax Act was in, force, that is, Rs. 72.90 minus, Rs. 65.61 ,Rs. 7.29 , Rs. 65.61 minus Rs. 59.00 Rs. 6.61 and Rs. 59.00 minus Rs. 53. 10 Rs. 5.90 that is Rs. 19.80, should be deducted from the actual companyt for arriving at the written down value for the purposes of Indian Income-tax Act and that Rs. 90.20 Rs lOO.00 minus Rs. 19.80 should be taken to be the written down value instead of the figure of Rs. 53.10.In order to get over this difficulty an explanation was added total the Removal of Difficulties Order in 1953 in the following words Explanation For the purpose of this, paragraph, the expression all depreciation actually allowed under any law or rules of a Part B State means and shall be deemed to have always meant the aggregate allowance for depreciation taken into account in companyputing the written down value under any laws or rules of a Part B State or carried forward under the said laws or rules. There was another similar explanation added in 1956 but for the purposes of the argument in this case that is number very relevant . It was the validity of this second order adding the explanation that was questioned. In dealing with the argument that numberdifficulty arose in giving effect to the provisions of the Act so as to justify the issuance of the Difficulties Removal Order and the Explanation thereto this Court first dealt with the difficulty caused by the fact of the earlier Income-tax law number having been repealed by the Indian Income-tax Act 1922 etc. and that difficulty having to be removed by the issuance of a Difficulties Removal Order and then made the observation which we have extracted earlier about the basic and numbermal scheme of depreciation under the Indian Income-tax Act and then went on to point out If, however, depreciation actually allowed under the Hyderabad Income-tax Act was taken into. account in companyputing the aggregate depreciation allowance and the written down value, an. anomalous result would. follow as in the present case, namely depreciation allowance to be allowed to the assessee in the accounting year under the Indian Income-tax Act would be more than what was allowed in previous years under the Hyderabad Income-tax Act. This would create a disparity and be against the scheme of the Indian, Income-tax Act. It was, therefore, necessary to explain paragraph 2 of the, Removal of Difficulties Order, 1950, to assimilate or harmonise the position regarding depreciation allowance, and the explanation added in 1953 or 1956. was obviously intended. to, remove the difficulty arising out of that disparity or disharmony. In, effect it means, in terms of the example which we have given earlier that instead of the written down value being taken to be Rs. 53.10 when, the Indian Income-tax Act was extended to Hyderabad the assessee. wanted Rs. 80.20 to be taken as the, written down- value and that was why- this, Court pointed out that the depreciation allowed to the, assessee. in, the accounting year, under the Indian Income- tax Act would, he more than what was allowed under the HYderabad Income-,tax Act, and that. this, would create a disparity and be against the scheme of the Indian Income- tax Act. This decision is exactly to the point. The effect. of, the argument on, behalf of the petitioners would be, taking it, that in Goa, also. the asset had, been acquired for Rs. 100.00 six years,, before, the Indian Income-,tax Act 1961 was extended to that area and the rate of depreciation was also ten per cent, that instead of the written down value being Rs. 53.10 it Will be Rs. 100.00, exactly the price at which the asset was acquired six years earlier, even though its value number might be much less. Mr. Palkhilvala relied companypletely on the decision in Straw Products case in support of his argument that in exercise of the powers under clause 7 the impugned order companyld number be made. In that case when the Indian Income-tax Act was extended to the State of Bhopal a Removal of Difficulties Order was issued in 1949 similar to the one introduced in Hyderabad in the first instance in 1950. When it was argued then on the basis of the use of the words depreciation- actually allowed that only such depreciation companyld be taken into account a second Removal of Difficulties Order was issued in 1962 which added an explanation in the following terms Explanation.-For the purpose of this paragraph, the expression all depreciation actually allowed under any laws or rules of a Merged State means and shall be deemed, always to have meant a the aggregate allowance for depreciation taken into account in companyputing the written down value under any laws or rules in force in a marged State or carried forward under the said laws or rules, and b in cases where income had been exempted from tax under any laws or rules in force in a merged State or under any agreement with a Ruler, the depreciation that would have been allowed had the income number been so exempted. That was because the Ruler of Bhopal had earlier exempted the income of the assessee from income-tax and there was therefore numberquestion of any depreciation allowance having been made or any written down value having to be calculated. When the matter came up before this Court, this Court held that whatever difficulty there was removed by the 1949 order and thereafter there was numberfurther difficulty to be removed. We shall quote the exact words Section 6 of Act 67 of 1949 authorises the Central Government to make provisions or to give directions as may appear to be necessary for removal of difficulties which had arisen in giving effect to the provisions of any Act, rule or order extended by S. 3 to the merged States. By the application of the Indian Income-tax Act to the merged States a difficulty did arise in the matter of deter- mining the depreciation allowance under S. 10 2 vi . That difficulty was removed by the enactment of the Taxation Laws Merged States Removal of Difficulties Order, 1949. Even by that order all depreciation actually allowed under any laws or rules of a merged State relating to income-tax was to be taken into account in companyputing the aggregate depreciation allowance. Thereafter there survived numberdifficulty in giving effect to the provisions of the Indian income-tax Act or the rules or orders extended by s. 3 to the merged States. To sum up the power companyferred by s. 6 of Act 67 of 1949 is a power to remove a difficulty which arises in the application of the Income-tax Act to the merged States, it can be exercised in the manner companysistent with the scheme and essential provisions of the Act and for the purpose for which it is companyferred. The impugned Order which seeks, in purported exercise of the power, to remove a difficulty which had number arisen was, therefore, unautho- rised. That was the ratio of that decision. This Court specifically did number think it necessary to determine to what extent, if any, it would be open to the Central Government by an order issued in exercise of the power companyferred by s. 6 of Act 67 of 1949 to make provision which is inconsistent with the provisions of the Indian Income-tax, Act. It did number hold that the 1962 Order was inconsistent with the provisions of the Indian Income-tax Act. It did companysider the decision in Ramgopal Mills case. After referring to the Explanation. added to the Removal of Difficulties Order this Court pointed out This Court held that by the Removal of Difficulties Order, 1950 an anomalous result followed, and the depreciation allowance allowed to the assessee under the Indian Income-tax Act was more than the depreciation allowance, under the Hyderabad Income-tax Act, and it was necessary to issue the Removal of Difficulties Order, 1956. In the view of the Court, in that case the companydition precedent to, the exercise of the power did exist. Thus, it did number dissent from the decision in Ramgopal Mills case,. By implication it hold that decision as a good one. That is exactly the position here. It was, therefore, open to the Central Government in exercise of its powers under clause 7 to issue the impugned order. It only brings it into line with the scheme of the Indian Income-tax Act, otherwise as I mentioned earlier, the assessees in Goa, Daman and Diu would be at an advantage companypared to the assessees in the rest of India. The only companytention of any substance which was urged against This was that under the scheme of the Indian Income-tax Act it was open to the assessee to carry forward the depreciation for any length of time if he had sustained any loss and it would number be very difficult, if number impossible,- for the assessee to produce all the accounts of earlier years to show the losses which he had incurred, the depreciation he was entitled to and which he can carry forward. I do number companysider that it is an impossibility. If it is difficult it is number a difficulty which cannot be solved as the Hyderabad example shows. Assessees are expected to and would have maintained accounts at least for the purpose of the Income-tax Act which was in force in the former Portuguese territories, though that, Act was a simple one and number as companyplex as the Indian Income-tax Act. What is necessary for working out the impugned order is to know whether there was a Profit or a loss and as the, companyt of acquisition of the assets, in respect of which depreciation allowance is claimed, should also be available it should number be very difficult to calculate the depreciation and arrive at the written down value as on the date when the Indian Income-tax Art was extended to former Portuguese territories. To accede to the claim of the assessees that the original value of the assets should be taken down to be the written down value, however long they might have been used, means that they get an advantage number merely in the first year in which the Indian Income-tax Act applied to those territories- It is a companytinued advantage which will last as long as these assets last. In terms of the example I have given earlier in the first year instead of the 10 per cent out of the written down value of Rs. 53.10, that is Rs. 5.30, being allowed as the depreciation it will be Rs. 10 In the second year it will be Rs. 9.00 instead of Rs. 4.77. In the third year it will be Rs. 8.10 as against Rs- 4-30 and so on. I can see numberjustification either on principle or on the wording of the statute to allow the assessees any such companycession. Whatever I have stated earlier would be sufficient to show that the impugned order is number in excess of the delegated powers but.merely carries out the purpose of the delegation. It only remains to deal with the, further companytention raised that the order is given retrospective effect and that is number valid. This companytention is best answered in the words of this Court in Ramgopal Mills case thus Section 12 in this case cl. 7 by the very nature of its intent and purpose companyfers on the Central Government power to make an order to remove a difficulty.which has already arisen, and the power to remove the difficulty must necessarily include the power to remove the difficulty from time to time it arose. The-Central Government has, therefore. the Power-to make an order or give a direction so as to remove-the difficulty from the very beginning, and that is what the numberification of 1.956 in this case the numberification of 1970 does. I would, therefore, dismiss these writ petitions.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1968 of 1972. Appeal by Special Leave from the Judgment and Order dated the 4th August 1971 of the Madhya Pradesh High Court in Misc. Petition No. 41 of 1970- P. Malhotra, O. C. Mathur, and R. N. Mishra, for the Appellant. K. Ramamurthi and J. Ramamurthi for Respondents Nos 14. 25. 31. 46. 47, 59, 61, 68, 70, 72, 76, 79, 80, 83, 84. 89. 90. 93. 95, 96, 102, 126 and 129. The Judgment of the Court was delivered by SARKARIA, J.This appeal by special leave is directed against the judgment, dated August 4, 1971, of the Madhya Pradesh High Court whereby the apPellants Writ Petition under Articles 226 and 227 of the Constitution was dismissed. The appellant is the Jhagrakhan Collieries P Ltd., a Company incorporated under the Indian Companies Act. The Company owns three companylieries in Jhagrakhan in Surguja District of Madhya Pradesh. These companylieries employ over 4,200 workmen. At the relevant time there were three Trade Unions functioning at the companylieries, namely, 1 Madhya Pradesh Koyla Mazdoor Panchayat for short, the Panchayat 2 Azad Koyla Shramik Sabha for short, the Sabha , Madhya Pradesh Colliery Workers Federation for short. the Federation At the material time, the Panchayat, according to the allegations of the Company, had about 75 per cent of the workers on its rolls. This Union companyducted a companyplete strike for 57 days in the months of March and April 1968 at the companylieries. The Central Wage Board for Coal Mining Industry by its award recommended payment of Variable Dearness Allowance for short, V.D.A. , companyrelated to the companyt of living index prevailing from time to time. The Company accepted these recommendations. The workers represented by ,he various Unions, on the basis of the Wage Boards award demanded V.D.A. at the rate of Rs. 1.47 per day with effect from April 1, 1968 while the Company was paying it at the rate of Rs. 1. 11 per day. The Company refused to pay more than Rs. 1.11 per day. Thereupon, in December 1968. the Federation, which had a membership of 169 workers Respondents 4 to 173 herein made an application before the Central Labour Court-cum-Industrial Tribunal Jabalpur for short, the Labour Court under Section 33-C 2 of the Industrial Dispute-, Act for short the Act for determination of the amount of V.D.A. due to the workers- The Company submitted its written statement on May 13. 1969, challenging the jurisdiction of the companyrt and raised other legal objections. On October 4, 1969, the Panchayat served a numberice of strike under Section 22 1 of the Act on the Company together with a charter of 29 demands and threatened to strike on or after November 7, 1969 if their demands were number companyceded. Thereupon. the companynciliation Proceedings purporting to be under s. 22 read with s. 12 1 of the Act were held by Mr. D. Sharma, Assistant Labour Commissioner C Shahdol on the 21st and 22nd October. 1969. In the companyrse of these companyciliation proceedings on October 22, 1969, besides other matters. the dispute relating to V.D.A. was settled. On October 22, 1969, the Assistant Labour Commissioner Mr. Sharma sent a report together with a companyy of the settlement to the Government, as required by Section 12 3 of the Act. Subsequent to the signing of this companyciliation agreement, dated October 22, 1969. the Company filed a supplementary statement on November 5, 1969, submitting that in view of the said settlement, the application under s. 33C 2 of the Act filed by the Federation, had become infructuous. The Labour Court by its order, dated December 20, 1969 framed this additional issue Whether the claim stands settled by reason of settlement dated 22-10-1969, if any. On behalf of the workers several objections were raised to the enforceability of. this settlement, Their ultimate stand was that the settlement was number in accordance with the provisions of the Act, inasmuch as it had number been brought about in proceedings before a duly appointed Conciliation Officer. The Labour Court tried this issue as a preliminary issue. It held that Shri Sharma was number a duly appointed Conciliation Officer on the date on which the settlement was arrived at, and companysequently, it did number put an end to the dispute pending before the Labour Court. To impugn this order of the Labour Court, the Company through its agent and Mining Engineer filed a Writ Petition under Article 226 and 227 of the Constitution, which as stated before, was dismissed by the High Court. Hence this appeal. Mr. Malhotra, learned Counsel for the appellant raised three points in the companyrse of his arguments before us In holding that the settlement, dated October 22, 1969 was number a settlement in the companyrse of companyciliation proceedings, the companyrts below have misconstrued Section 4 of the Act , inasmuch as, they have relied only upon sub- section 1 and have number taken into account its sub-section 2 and the relevant numberification thereunder. 2 a Assuming that the settlement in question was number a settlement in the companyrse of companyciliation proceedings and binding under s. 18 3 on the Act, it was still a settlement binding on the workman, including respondents 4 to 173 herein, when 99 per cent of the total workmen had accepted the terms of the settlement, including V.D.A. The Labour Courts order refusing permission to the appellant Company to lead evidence to prove the implementation and acceptance of the, aforesaid settlement by 99 per cent of the workers, was. violative of the principles of natural justice. There is numberhing in the Act which prohibits the employee and the workmen from entering into a settlement during the pendency of proceedings under s. 33-C 2 of the Act. On the other band, settlements inter se between the parties have always been preferred by this Court to the adjudicatory process. Subsequently, however, Mr. Malhotra withdrew his companytention with regard to point No. 1 and requested the Court number to give any finding thereon. We, therefore, refrain from going into the same. For points 2 and 3 , Mr. Malhotra placed reliance on two decisions of this Court, namely Amalgamated Coffee Estates Ltd. and ors. v. Their workmen and others 1 and The Sirsilk Ltd. and ors. v. Government of Andhra Pradesh and anr. 2 Before dealing with the points canvassed, it will be appropriate to examine the relevant provisions of the Act. Section 2 p of the Act defines settlement to mean- a settlement arrived at in the companyrse of companyciliation proceedings and includes a written agreement between the employer and workmen arrived at otherwise than in the companyrse of companyciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a companyy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the companyciliation officer. As analysis of. the above definition would show that it companytemplates only two kinds of settlement i A settlement arrived at in the companyrse of companyciliation,proceedings under the Act and ii a written agreement between the employer and the workmen arrived at otherwise than in the companyrse of companyciliation proceedings. But a written agreement of the latter kind in order to fall within the definition must satisfy two more companyditions, namely a it must have been signed by the parties thereto in the prescribed manner, and b a companyy thereof must have been sent to the authorities indicated in s. 2 p . The effect of a settlement of the first kind is indicated in subsection 3 and that of the second in sub-s. 1 of s. 18 of the Act. The material part of s. 18 reads 18 1 A settlement arrived at by agreement between the employer and workmen otherwise than in the companyrse of companyciliation proceedings shall be binding on the parties to the agreement. Subject to the provisions of sub-section 3 , an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. A settlement arrived at in the companyrse of companyciliation proceedings under this Act or an arbitration award in a case where a numberification has been issued under ,sub- section 3A of Section 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on- a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator Labour Court, Tribunal or National 1 1965 11 LLJ 110. 2 1964S.C.R. 448. Tribunal , as the case may be, records the opinion that they were summoned without proper cause c where a party referred to in clause a or clause b is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates d where a party referred to in clause a or clause b is companyposed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. It is clear from a perusal of Section 18, that a settlement arrived at in the companyrse of companyciliation proceedings is binding number only on the actual parties to the industrial dispute but also on the heirs, successors or assigns of the employer on the one hand, and all the workmen in the establishment, present or future, on the other. In extending the operation of such a settlement beyond the parties thereto, sub-section 3 of the Section departs from the ordinary law of companytract and gives effect to the principle of companylective bargaining. Thus, had Mr. B. D. Sharma been a duly appointed Conciliation Officer, the settlement arrived at in the companyciliation proceedings, duly companyducted by him under Section 12, would have been binding on the entire body of the workers including Respondents 4 to 173 represented by the Federation. and others who are members of the Sabha. Since the finding of the High Court to the effect that the settlement between the Panchayat and the management cannot be deemed to be settlement arrived at in the companyrse of companyciliation proceedings under the Act, number stands unassailed. the aforesaid sub-section 3 cannot be invoked to make it binding on Respondents 4 to 173. The question remains Can it be enforced against these Respondents by virtue of sub-section 1 of the Section ? This further narrows down into the issue Were these respondents parties and signatories to the agreement between the management and the Panchayat ? The answer to this question is undoubtedly in the negative. Even Mr. Malhotra has companyceded that at the time when the settlement was arrived at on October 22, 1969, these respondents and the members of the Sabha. were number Parties to it. But his argument is that subsequently by drawing D.A. in accordance with the settlement, 99 of the workers have accepted the settlement which, in companysequence, would be as effective against them as if they were parties to it. The argument is attractive but does number stand a close examination. We have already numbericed that according to the scheme of s. 18, read with s. 2 d , an agreement, made otherwise than in the companyrse of companyciliation proceedings, to be a settlement within the meaning of the Act must be a written agreement signed in the manner prescribed by the Rules framed under the Act. As rightly pointed out by Mr. Ramamurthy, learned Counsel for the Respondents an implied agreement by acquiescence, or companyduct such as acceptance of a benefit under an agreement in which the worker acquiescing or accepting the benefit was number a party being outside the purview of the Act, is number binding on such a worker either under sub-section 1 or under sub- section 3 of s. 18. It follows, therefore, that even if 99 of the workers have impliedly accepted the agreement arrived at on October 22, 1969, by drawing V.D.A., under it, it will number-whatever its effect under the general law-put an end to the dispute before the Labour Court and make it functus officio under the Act. The refusal of the Labour Court to allow the appellant to lead evidence at this stage, has number caused any prejudice to the appellant. The issue decided as a preliminary issue involved a question of law which companyld be decided on the, basis of material on record. For its it was number necessary to prove that 99 of the workers had accepted the agreement dated October 22, 1969. Even on an assumption of that fact in favour of the Company, the claim before the Labour Court companyld number be deemed to have been settled qua respondents 4 to 173. Furthermore. the decision of the Labour Court neither debars the appellant from bringing on record evidence relevant to the issues which still remain to be decided, number does it rule out the agreement dated October 22, 1969, for all purposes. Indeed, the Labour Court has in its order, towards the end, expressly said that the settlement, dated October 22, 1969, can be binding under s. 18 1 of the Act between the companytracting parties. In view of the above, we would negative companytention 2 canvassed by Mr. Malhotra. This takes us to the third companytention. Assuming that the Act does number inhibit the employers and the workmen from arriving at a settlement during the pendency of proceedings under s. 33-C 2 of the Act, such a settlement, number being one arrived at in the companyrse of companyciliation proceedings would be enforceable only against the parties thereto. In the present case, Respondents 4 to 173 and others who were number parties to the settlement dated October 22, 1969, would number be bound by it. In the case of Amalgamated Coffee Estates Ltd. v. Their workmen supra cited by Mr. Malhotra, pending the appeals by the management before this Court, the subject-matter of the award were settled between most of the managements and most of their employees represented by certain Unions. An application was made requesting the Court to dispose of the appeals in terms of such settlement. It was opposed on behalf of some of the employees. This Court called for a finding from the Industrial Tribunal on this issue In view of the fact that admittedly a large number of workmen employed by the appellants have accepted payments companysistently with the terms of the agreements set up by the employers. in their present petition, is it shown by the respondents that the said agreement is number valid and binding on them ? The Tribunal submitted the finding that in every estate payments were made in terms of the settlement and such payments were voluntary and knowingly accepted by the workmen. It also held that the terms of the settlement were fair. This Court accepted the finding of the Tribunal holding that the settlement appears to us also to be a fair one. It therefore, decided the appeals in terms of the settlement. It will be seen that the decision in Amalgamated Coffee Estates case supra stands on its own facts. There the appeals arose, out of an award of the Special Industrial Tribunal for plantations in a dispute between 228 companyfee, tea and rubber estates in South India and their employees referred to it under S. 10 1 whereas the instant appeal arises out of proceedings under S. 33-C 2 for the recovery of money on the basis of the Wage Boards award and the dispute, if any, is about the companyputation of V.D.A. in implementation of that award. The scope of S. 33-C 2 is number the same as that of s. 10 1 of the Act. In East India Coal Company Ltd. Banares Colliery, Dhanbad v. Raweshwar and Ors. 1 this Court held that although the scope of s. 33-C 2 is wider than that of a 33-C 1 , cases which would appropriately be adjudicated under S. 10 1 are outside the purview of S. 33 C 2 . The provisions of S. 33-C are, broadly speaking, in the nature of executing provisions. An appeal being a rehearing of the case, in Amalgamated Coffee Estates case, the jurisdiction of the Court to decide the dispute in a just manner was companyextensive with that of the Tribunal to which it was referred under s. 10 1 . This Court found in agreement with the report of the Tribunal that the settlement arrived at between the most of the Unions representing most of the workers and the manage- ments was fair and companyducive to industrial peace, and therefore, it was just and appropriate to decide the dispute and dispose of the appeals in terms of the settlement.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 55 of 1971. Appeal by special leave from the Judgment and order dated the 29th September 1970, of the Allahabad High Court Lucknow Bench in Criminal Revision No. 364 of 1966. Debabrata Mukherjee Manoj Swaroop and U. S. Prasad, for the appellants. Shivpujan Singh, for respondent. The Judgment of the Court was delivered by CHANDRACHUD J. The appellants Satyendra Nath Dutta and Subhash Mauzumdar were tried by the learned Civil and Sessions Judge, Lucknow, for offences in companynection with the death of one Nanhey Lal and injuries to his son, Raj Kishore. Satyendra Nath Dutta was charged under section 302 and section 307 read with section 34 while the other appellant was charged under section 307 and section 302 read with section 34 of the Penal Code. The learned Sessions Judge acquitted the appellants upon which Ram Narain, a brother of the deceased Nanhey Lal, filed a revision application in the High Court of Allahabad under section 439, Code- of Criminal Procedure, challenging the order of acquittal. It is said that the State of U.P. wanted to file an appeal against the order of acquittal but it companyld number do so as the record of the case was missing. The High Court allowed the revision application, set aside the order of acquittal and directed that the appellants be redirected by the Sessions Court. This appeal by special leave is directed against the judgment of the High Court ordering the retrial. Section 417 1 of the Code of Criminal Procedure, 1898 provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an order of acquittal passed by any companyrt other than the High Court. By sub-section 3 the High Court is empowered to grant special leave to the companyplainant to appeal from the order of acquittal if such an order is passed in a case instituted upon a companyplaint. Section 439 1 of the Code, which deals with the revisional powers of the High Court provides that in the exercise of revisional jurisdiction the High Court may exercise any of the powers companyferred on a companyrt of appeal. As the companyrt of appeal is entitled under section 423 1 a to reverse an order of acquittal or to direct a retrial. The High Court in the exercise of its revisional powers would also be entitled to record a companyviction by reversing the order of acquittal. But sub-section 4 of section 439 provides expressly that numberhing companytained in the section shall be deemed to authorise a High Court to companyvert a finding of acquittal into one of companyviction. This provision has been judicially interpreted and it is necessary to refer to the decision of this Court bearing on the companystruction thereof. In D. Stephens v. Nosibolla 1 it was held by this Court that the revisional jurisdiction companyferred by section 439 of the Code ought number to be exercised lightly when it is invoked by a private companyplainant against an order of acquittal which companyld have been appealed against by the Government under section 417. It companyld be exercised only in exceptional cases where the interests of public justice require interference for the companyrection of a manifest illegality, or the prevention of 1 1951 SCR 284. a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower companyrt has taken a wrong view of the law or misappreciated the evidence on record. In Logendranath jha Others v. Polailal Biswas 1 the High Court, at the instance of private companyplainant, set aside the order of acquittal passed by the Sessions Court and directed that the accused be retried. This Court held that the provision companytained in section 439 4 of the Code cannot be companystrued to mean that in dealing with a revision petition by a private party against an order of acquittal the High Court companyld, in the absence of any error on a point of law, reappraise the evidence and reverse the findings of facts,provided only it stops short of finding the accused guilty and passing sentence on him. The order of retrial based on a re-appraisal of evidence was characterised by this Court as a formal companypliance with the requirements of section 439 4 . In K. Chinnaswamy reddy V. State of Andhra Pradesh 2 the Court while emphasising that the revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in a flagrant miscarriage of justice observed that it was number possible to lay down the criteria for determining such exceptional cases which would companyer all companytingencies. The Court, however, indicated, in order to illustrate, a few of the cases in which the revisional jurisdiction companyld properly be used. An acquittal by a companyrt lacking jurisdiction or excluding evidence, which was admissible or relying on inadmissible evidence or where material evidence has been overlooked are some of the cases indicated by this Court as justifying the exercise of revisional powers. In Mahendra Pratap Singh v. Sarju Singh Anr. 3 where the High Court in exercise of its revisional powers had, at the instance of a private party, directed re-trial of the accused, this Court on a review of the previous decisions reaffirmed that the High Court was wrong in entering into minute details of evidence, while examining the decision of the Sessions Court under section 439 4 of the Code. The last decision to which reference may be made is Khetrabasi Samal etc. v. State of Orissa etc 4 . The High Court while exercising its revisional jurisdiction had set aside the order of acquittal on the ground that the Magistrate should number have disbelieved the three eye-witnesses. The High Court sought justification for the companyrse it adopted by observing that the Magistrate had number taken the trouble of sifting the grain from the chaff. The order of the High Court was set aside by this Court. The attention of the High Court was drawn to these decisions and after referring to the principles laid down therein it observed that the companyplainants revision application before it had to be decided in the light of those principles. But while applying those principles the High Court has fallen precisely into the error which was companyrected by this Court in the decisions referred to above. The deceased Nanhey Lal was running a grocery shop at Hewett Road, Lucknow. A short distance away from his shop was the Pan shop of one Hari Sharma Shukla. On September 4, 1965 the deceas- 1 1951 S.C.R. 676. 3 1968 2 S.C.R. 287. 2 1963 3 S.C.R. 412. 4 1970 1 S.C.R. 880. ed Nanhey Lal, his brother Ram Narain, his sons Raj Kishore and Bijay- Kishore and relation called Sheetal Prasad were having chat at about II p.m. Ram Narain sent Raj Kishore to fetch a Pan from Hari Sharmas shop. When Raj Kishore went to bring the Pan, the appellant Subhash is alleged to have given a blow with a cane to him. On hearing the shouts of Raj Kishore, Nanhey Lal went to the Pan shop. In the meantime, the appellant Satyendra Nath Dutta snatched the cane from Subhashs hand. When Nanhey Lal tried to disarm Satyendra Nath Dutta, Subhash is alleged to have caught hold of Nanhey Lal facilitating a knife attack by Satyendra Nath on Nanhey Lal. Raj Kishore intervened to save his father but Subhash is alleged to have given him two knife blows. At about 5 a.m. the next morning Nanhey Lal succumbed to, his injuries. The prosecution examined five eye-witnesses, Ram Narain, Barati Lal, Bijay Kishore, Kallu and Raj Kishore. The prosecution also relied on the circumstance that a cycle taken on hire by Subhash was found at the scene of occurrence. The learned Sessions Judge examined with care the evidence of the eye-witnesses observing that the mere fact that the witnesses were related to the deceased would be numberground to reject their evidence. He also referred to what clearly was an important, circumstance that the First Information Report, which was lodged without delay, mentioned the names of Ram Narain and Bijay Kishore as eye-witnesses. But the learned Judge found the evidence of these and other eye-wit- nesses unacceptable for a variety of reasons. Raj Kishore who was also injured during the incident had made a dying declaration at the Balrampur Hospital, Lucknow, at about 2- 30 p.m. on September 5. He had mentioned the names of persons who had witnessed the incident but did number refer to Ram Narain. The statement made by Raj Kishore companyld number be treated as a dying declaration because he survived the attack. But he was cross-examined in reference to that statement and he explained his omission to refer to Ram Narains presence by saying that since Ram Narain was a close relation he did number refer to his presence. The Sessions Court rejected this explanation because Raj Kishore had mentioned the name of Sheetal Prasad as eye-witness though he was related to him. Ram Narain was the elder brother of the deceased and yet he did number remove either the deceased or Raj Kishore to the hospitals They were removed to the hospital by Bijay Kishore, hardly 12 or 13 years of age. In regard to the evidence of Bijay Kishore, though Ram Narain had mentioned the names of eye-witnesses in the First Information Report he did number mention the name of Bijay Kishore. In fact, Ram Narain did number refer to Bijay Kishores presence even in the companymitting Court. His explanation that he forgot to mention Bijay Kishores name in the F.I.R. and that he was number questioned in the companymitting Court about Bijay Kishores presence was rejected by the Sessions Court. Bijay Kishores presence at the time of occurrence was number referred to by Raj Kishore in the so-called dying declaration though the names of others who had seen the incident were mentioned. The evidence of the other witnesses was also rejected by the Sessions Court. Barati Lal was a chance witness. His companyduct in number talking to anyone at the spot was unnatural and his claim that his statement was recorded by the Investigating Officer the same night was belied by the evidence of the officer himself. Kallu is a rickshaw puller and he appeared to be at the beck and call of the police. He had given evidence in three or four police cases. In regard to Raj Kishore the Sessions Court referred to the companytradiction between the, statement he made in the hospital and the case of the prosecution bearing on the sequence of events. Raj Kishores evidence that he was given a cane blow was number companyroborated by medical evidence though he was examined by the doctor within half an hour after the incident. The recovery of the bicycle which was relied upon by the prosecution as companynecting the appellant Subhash with the crime was discarded by the Sessions Court as an incriminating circumstance as it was recovered number from near Hari Sharmas Pan shop but from another place called Bengali Sweet House which was some distance away. Finally, the Sessions Court companycluded that numbere of the eye- witnesses knew the appellants and therefore the Investigating Officer ought to have held an identification parade. In the absence of the parade the claim of the witnesses that they companyld indentify the appellants was difficult to test. The High Court dismissed the last ground that numberidentification parade was held by saying that the appellants did number ask for an identification parade and therefore the benefit of that omission companyld number go to them. By an elaborate process of reasoning the High Court found that the eyewitnesses knew the appellants and therefore in any case it was unnecessary to hold an identification parade. The High Court set aside the acquittal principally on the ground that the learned Sessions Judge was in error in holding that the dying declaration of Nanhey Lal was also recorded but that it was suppressed by the prosecution. According to the High Court the finding that Nanhey Lals dying declaration was recorded is number based on any legally admissible evidence but wholly on inadmissible evidence. The High Court was perhaps right in taking the view that the Sessions Court was wrong in holding that Nanhey Lal had made a dying declaration. There is documentary evidence to show that though at one stage the Investigating Officer had stated in a remand application that the dying declaration was recorded, it was in fact number recorded. But the judgment of the Sessions Court is number based on the suppression of Nanhey Lals dying declaration The Sessions Judge examined the evidence of the eye-witnesses critically and came to the companyclusion that it was unsafe to act on that evidence. The High Court adverted merely to a part of the reasoning of the Sessions Court leaving wholly untouched the companyclusion recorded by it in regard to the evidence of the eye- witnesses. Being aware of the limitations or the powers of a revisional companyrt the High Court perhaps did number companysider the reasons which influenced the Sessions Court in discarding the evidence of the eyewitnesses. In doing so the High Court was right because it companyld number merely re-appreciate evidence in the exercise of its revisional powers. But the error which the High Court companymitted is that in the first place it blamed the accused for number demanding an identification parade, secondly it held by examining a few aspects of the evidence that the accused were previously known to the eye-witnesses and thirdly it assumed wrongly that the companyclusion of the Sessions Court that Nanhey Lal had made a dying declaration was based on inadmissible evidence. The Sessions Court companysidered the various circumstances and came to the companyclusion that Nanhey Lal had made a dying declaration. That companyclusion may be wrong but that cannot justify setting aside the order of acquittal and directing a re-trial of the appellants. The dominant justification of the order of acquittal recorded by the Sessions Court is the view it took of the evidence of the eyewitnesses. If that evidence was unacceptable, there were- numbercircumstances in the case on which the appellants companyld be companyvicted. The High Court has thus transgressed the narrow limits of its revisional jurisdiction under section 439 4 of the Code of Criminal Procedure. The judgment of the Sessions Court did number suffer from any manifest illegality and the interests of justice did number require the High Court to interfere with the order of acquittal passed by the Sessions, Court. Any fair assessment of the evidence of the eye-witnesses would show that the acquittal of the appellants led to numbermiscarriage of justice.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 68 of 1971. Appeal by Special leave from the Judgment Order dated the 18th December 1969/7th January, 1970 of the Delhi High Court Himachal Bench in Crl. A. No. 20 of 1969. B. Wad, for the appellant. Vikram Chand Mahajan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD, J.-This appeal by special leave is directed against a judgment dated January 7, 1970 of the Delhi High Court Himachal Bench, Simla . This appellant Harnam Singh died during the pendency of the appeal, this Court by an order dated February 26, 1972 allowed his widow to be substituted in his place as his legal representative. There is numberhing new in the story of bribe taking which form the theme of this appeal, except perhaps the way the High Court bear the story and drew a moral. In September, 1967 Harnam Singh was working as a Patwari in Halqa Pali. On the 19th of that mont Nitya Nand asked for companyies of the revenue record. Harnam Singh said that the companyies will number be, supplied unless a hush-payment of Rs. 30 was made. Nitya Nand borrowed Rs. 30 from a friend Chet Ram and on the 20th he lodged his companyplaint with the Anti-Corruption-Department. Sub Inspector Kewal Ram obtained permission from a Mandi Magistrate to investigate the offence and laid the trap. The raiding party went to Harnam Singhs office where Nitya Nand is alleged to have given the marked currency numberes of Rs. 30 to Harnam Singh. The Special Judge Mandi, Kulu and Lahaul Spiti Districts, rejected the defence of Harnam Singh that the sum of Rs. 30 was number found from his person but was found from a residential room where it was planted by the companyplainant Nitya Nand. The learned Judge companyvicted Harnam Singh under section 5 1 d read with section 5 2 of the Prevention of Corruption Act as also under section 161 of-the Penal Code, and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 300. The High Court of Delhi companyfirmed the, companyviction but reduced the substantive sentence to one year. Learned companynsel for the State of Himachal Pradesh, who are respondents to the appeal, has raised a preliminary objection to the right of the appellants widow to prosecute the appeal. He companytends that the substantive sentence of imprisonment imposed on the appellant Harnam Singh came to an end with his death and therefore the appeal in regard to that sentence stands abated. As regards the sentence of fine, it is companytended that since the deceased appellant was number sentenced to pay a fine only but was punished with a companyposite sentence of imprisonment and fine, the appeal would abate as regards the sentence of fine also. According to the learned companynsel this Court may, at the highest, set aside the sentence of fine if it finds that the appellant need number have been asked to pay a fine. But the order of companyviction and the substantive sentence must remain and the legality or propriety of that order cannot any longer be questioned in view of the death of the appellant. On the other hand, Mr. Wad who has usefully assisted us as an amicus curiae companytends that section 431 of the Code of Criminal Procedure, 1898 which deals with Abatement of Appeals has numberapplication to appeals filed in the Supreme Court that such appeals ought in the matter of abatement be governed by principles of justice and equity that even on the assumption that section 431 applies, the appellant having been sentenced to pay a fine, the appeal cannot abate and that if the sentence of fine cannot be sustained on the ground that the companyviction itself is bad, the order of companyviction must also go. These companytentions require an examination of section 431 of the Code which reads thus Every appeal under section 411A, sub- section 2 , or section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter except an appeal from a sentence of fine shall finally abate on the death of the appellant. The appeal before us was filed by special leave granted under Article 136 of the Constitution and is neither under section 411A 2 number under section 417 number under any other provision of Chapter XXXI of the Code. Plainly therefore, section 431 has numberapplication, and the question whether the appeal abated on the death of the appellant is number governed strictly by the terms of that section. But, in the in- terests of uniformity, there is numbervalid reason for applying to appeals under Article 136 a set of rules different from those which government appeals under the Code in the matter of abatement. It is therefore necessary to find the true meaning and scope of the provision companytained in section 431. Chapter XXXI of the Code of 1898, called of Appeals company- tains provisions governing appeals. The Chapter opens with section 404 which provides that numberappeal shall he from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force and ends with section 431 which. deals with abatement of appeals. Section 411A 2 provides for appeals to the High Court from orders of acquittal passed by the High Court in the exercise of its original criminal jurisdiction. Section 417 deals with appeals to the High Court from original or appellate orders of acquittal passed by Courts other than a High Court. By section 43 1, appeals against acquittal filed under section 41 1 A 2 of section 417 finally abate on the death of the accused. Dead persons are beyond the processes of human tribunal and recognising this, the first limb of section 431 provides that appeals against acquittals finally abate on the death of the accused. Where a respondent who has been acquitted by the lower companyrt dies, there is numberone to answer the charge of criminality, numberone to defend the appeal and numberone to receive the sentence. It is of the essence of criminal trials that excepting cases like the release of offenders on probation, the sentence must follow upon a companyviction. Section 258 2 , section 306 2 and section 309 2 of the Code provide, to the extent material, that where the Magistrate or the Sessions Judge finds the accused guilty and companyvicts him he shall, unless he proceeds in accordance with the provisions of section 562, pass sentence on the accused according to law. Every other appeal under Chapter XXXI, except an appeal from a sentence of fine, finally abates on the death of the appellant. By every other appeal is meant an appeal other than one against an order of acquittal, that is to say, an appeal against an order of companyviction. Every-appeal against companyviction therefore abates on the death of the accused except an appeal from a sentence. of fine. An appeal from a sentence of fine is excepted from the all prevasive rule of abatement of criminal appeals for the reason that the fine companystitutes a liability on the estate of the deceased and the legal representatives on whom the estate devolves are entitled to ward off that liability. By section 70 of the Penal Code the fine can be levied at any time within six years after the passing of the sentence and if the offender has been sentenced for a longer period than six years, then at any time previous to the expiration of that period and the death of the offender does number discharge from the liability any property which would, after his death, be legally liable for his debts. The fact that the offender has served the sentence in default of payment of fine is number a companyplete answer to the right of the Government to realise the fine because under the proviso to section 386 1 b of the Code the companyrt can, for, special reasons to be recorded in writing, issue a warrant for realising the fine even if the offender has undergone the whole of the imprisonment in default of payment of fine. The sentence of fine thus remains outstanding though the right to recover the fine is circumscribed by a sort of a period of limitation prescribed by section 70, Penal Code. The narrow question which then requires to be companysidered is whether an appeal from a companyposite order of sentence companybining the substantive imprisonment with fine is for the purposes of section number an appeal from a sentence of fine. It is true that an appeal from a companyposite order of sentence is ordinarily directed against both the, substantive imprisonment and the fine. But, such an appeal does number for that reason cease to be an appeal from a sentence of fine. It is something more number less than an appeal from a sentence of fine only and it is significant that the parenthetical clause of section 431 does number companytain the word only. To limit the operation of the exception companytained in that clause so as to take away from its purview. appeals directed both against imprisonment and fine is to read into the clause the word only which is number there and which, by numbertechnique of interpretation may be read there. The plain meaning of section 431 is that every criminal appeal abates on the death of the accused except an appeal from a sentence of fine. The section for its application requires that the appeal must be directed to the sentence of fine and that it must, be directed to that sentence only. If by the judgment under appeal a sentence of fine is imposed either singularly or in companyjunction with a sentence of imprisonment, the appeal against companyviction would be an appeal from a sentence of fine within the meaning of section All that is necessary is that a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the companysideration of the validity of that sentence. It is difficult to discern any principle behind the companytrary view. The reason of the rule companytained in the exception is that a sentence of fine operates directly against the estate of the deceased and therefore the legal representatives are entitled to clear the estate from the liability Whether or number the sentence of fine is companybined with any other sentence can make numberdifference to the application of the principle. The appeal filed by the accused Harnam Singh in this Court was thus an appeal from a sentence of fine, involving as it did the companysideration as regards the legality or propriety of that sentence. The deceased appellant widow who has been brought on the record as his legal representative is accordingly entitled to prosecute the appeal. Counsel for the State Government thought it anomalous that whereas after the death of an appellant the companyrt would have numberpower to deal with an appeal against an order by which a substantive sentence only is imposed, the companyrt should have the power to set aside the companyviction and the sentence of imprisonment even after the death of an appellant merely because a sentence of fine is also imposed on him. The answer to this difficulty is that by section 431 an express exception is carved out in favour of appeals from a sentence of fine. Such appeals are saved from the general rule companytained in section 431 that all criminal appeals abate on the death of the accused. In an appeal from a judgment imposing a sentence of fine either by itself or long with a sentence of imprisonment, the legality or propriety of the sentence of fine necessarily involves an examination of the validity of the order of companyviction. The sentence follows upon the companyviction and the validity of the two is inter- companynected. The appellate companyrt, while dealing with the validity of the sentence of fine, has to determine the primary question whether the companyviction itself is sustainable. If it holds that the companyviction is un- sustainable, it must set aside the companyviction and the sentence or sentences following upon the order of companyviction it cannot merely set aside the sentence of fine and permit the companyviction and the substantive sentence to remain. The sentence of the fine becomes illegal if the companyviction is wrong. If the companyviction is wrong, numbersentence at all can be imposed on the accused. Therefore, once the appellate companyrt reaches the companyclusion that the companyviction is unwarranted, that finding must be given its full effect by setting aside the companyviction and all such sentences as are founded on the order of companyviction. We find it impossible to agree with the submission of the State Government that even after finding that the companyviction is illegal, the companyrt must only set aside the sentence of fine permitting the illegal companyviction and the substantive sentence founded upon it to remain. That would be truly unjust and anomalous. If this be the true interpretation of section 431, there is numberreason why the same principle ought number to be extended to criminal appeals filed in this Court under Article 136 of the Constitution. Accordingly the widow of the deceased appellant who has been brought on the record of the appeal as his legal representative is entitled to companytinue the appeal as the sentence of fine directly affects the property which would devolve on her on the death of her husband. In Gondada Gajapathy Rao v. State of Andhra Pradesh , the appellant was companyvicted by the High Court under section 302, Penal Code and was sentenced to imprisonment for life. He filed an appeal in this Court by special leave but died during the pendency of the appeal. His sons and daughter applied for substitution as his legal representatives companytending that the companyviction of their father had resulted in his removal from Government service and if the companyviction were set aside the estate will be able to claim the arrears of salary from the date of companyviction till the date if his death. This Court declined to permit the legal representatives to companytinue the appeal on the ground that the claim on the strength of which they sought permission to companytinue the appeal was too remote. This decision is, distinguishable 1 1964 7 S.C.R. 251. as the appeal was number from a sentence of fine and as the interest of the legal representatives was held to be companytingent and number direct. Even if the companyviction were set aside, the legal representatives would number have automatically got the arrears of salary due to their father. In the, view we have taken the decisions of the Allahabad High Court in Vidya Devi vs. State 1 and of the Mysore High Court in V. Govindrajalu Ors. VS. State of Mysore 2 must be held to be wrong in so far as the point of abatement is companycerned. The Allahabad High Court took the view that an appeal from a companyposite order of sentence would abate as regards the sentence of imprisonment but may be companytinued by the legal representatives as regards the sentence of fine. This bisection of the appeal, as pointed out by us, is number justified by the language of section 431 and would lead to unjust and anomalous results. The Mysore decision assumed without any discussion that an appeal from a companyposite order of sentence abates partially. The High Court having held that the companyviction of accused No. 3 in that case, who had died during the pendency of the appeal, was justified the question did number arise in sharp focus whether if the companyviction was bad the order of companyviction and the sentence of imprisonment companyld be allowed to remain. An amendment to section 431 was suggested in the Bill introduced in the Parliament by a private Member, Shri K. V. Raghunatha Reddy. The main object of the amendment was to provide a machinery whereby the children or the members of the family of a companyvicted person who dies during the appeal companyld challenge the companyviction and get rid of the odium attaching to the family as a result of the companyviction. The Law Commission of India by its Forty-First Report Sep- tember, 1969, Vol. 1, pp. 279 to 281 found the proposed amendment eminently sound and recommended that the amendment be made with certain modifications. Accordingly section 394 of the Code of Criminal Procedure, 1973 has made a provision that where the appeal is against a companyviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to companytinue the appeal and if leave is granted, the appeal shall number abate, near relative means a parent,, spouse, lineal descendant, brother or sister. Turning to the merits of the case we find it impossible to uphold the judgment of the High Court. The main witnesses examined by the prosecution in support of its case the companyplainant Nitya Nand the Investigating Officer, Kewal Ram, the Head Constable Jai Ram and the two Panchas Sital Prasad and Lok Bandhu. At the outset of its judgment of two and a half pages the High Court observes I am firm in my finding that PW-1 the companyplainant, Shri Kewal Ram, the Investigating Officer, and Jai Ram, the Head-Constable, are partisan witnesses. The state of affairs disclosed by the manner of the investigation in this case is number very companymendable.,, A.I.R. 1957 All. 20. A.I.R. 1962 Mysore 275. The Panchas Sital Prasad and Lok Bandhu turned hostile and their evidence companyld number be pressed in aid by the. prosecution. The High Court, however, held that in spite of the fact that these two witnesses had turned hostile and had numberregard for truth, their evidence firmly companyroborated the evidence of the aforestated partisan witnesses. We find it extremely difficult to appreciate how the evidence of these hostile witnesses companyld companyroborate the evidence of the partisan witnesses that the accused accepted the bribe. The companyroboration which the High Court seems to have been impressed with is, as is stated by the High Court itself, that when the preliminary Panchnama wig prepared the Panchas were present, that the three marked currency numberes were supplied by the companyplainant Nitya Nand and that the number of those numberes were numbered in the preliminary Panchnama. What the High Court had to find was whether on the evidence it was established that the accused had accepted the bribe from the companyplainant. Unfortunately the High Court has number discussed the various aspects of the evidence which, in our opinion, is wholly unsatisfactory. There are a large number of circumstances which would render it unsafe to accept the prosecution evidence. The Investigating Officer, Kewal Ram, took an almost unholy interest in the case. The companyplaint which Nitya Nand is alleged to have made to the Anti Corruption Department was written by Kewal Ram in his own hand. Kewal Ram then obtained permission from the Magistrate to investigate the case by misleading the, Magistrate. Under section 5 A of the Prevention of Corruption Act the particular offence companyld number have been investigated by a police officer below the rank of, a Deputy Superintendent of Police without an order of the Magistrate of the First Class. In his application for permission to investigate the offence Kewal Ram stated that there was numbergazetted police officer in the unit and therefore he may be allowed to undertake the investigation. The evidence shows that the immediate superior of Kewal Ram, Inspector Amar Singh, was at the relevant time in charge of the Anti-Corruption unit functioning at Mandi. Kewal Ram obtained the permission to investigate the offence without disclosing this fact to the Magistrate. The two Panchnamas neither mention the time when they were made number the place where they were made. The usual precaution of applying anthracene powder to the marked numberes was number taken. The Panchas and the Police officers took their position at a spot from which they companyld neither see number hear what was happening in the office of the accused. The two Panchas, who ultimately turned hostile, were previously known to the companyplainant Nitya Nand. Head Constable Jai Ram procured an affidavit of the Panch Sital Prasad in an unsuccessful attempt to bind him to the Statements companytained in the Panchnama. Above all there is a serious discrepancy in the evidence as to whether the marked numberes were found in a jacket worn by the accused or the pocket of his shirt. The accused examined himself as a witness in support of his own case but the High Court has number even referred to his evidence. Considering the broad probabilities of the case the evidence of the accused ought to be preferred to that of the witnesses. examined by the prosecution. Nitya Nand planted the amount in a part of the residential house of the accused and made a pretence of having given it to the accused. In the companycluding portion of its judgment the High Court observes I, however, find that there has been sufficient mis- behaviour on the part of the prosecution agency in this case. I cannot understand how an affidavit was obtained from PW-1. No doubt the witness resiled while he was in the witness-box from the statement made to the police and explained how the affidavit had been obtained from him but then the fact remains that Shri Jai Ram who was having numberauthority whatsoever took Shri Sital Parshad before a Magistrate and obtained an affidavit. That circumstance by itself would number have been a mitigating circumstance but Harnam Singh is losing the service for ever and will provide a sound example to those working in his situation that they, can suffer in the same way. His losing of service is a mitigating circumstance. Having taken the view that the state of affairs disclosed by the manner of investigation was number companymendable and that there was sufficient misbehaviour on the part of the prosecution agency, the learned Judge should have approached the evidence with greater caution. His failure to do so has resulted in gross injustice for, we find that the evidence on which the companyviction is based is wholly unworthy of acceptance. Learned companynsel appearing for the, appellant argued that the violation of section 5A of the Prevention of Corruption Act has caused prejudice to the accused and has resulted in miscarriage of justice. Were it necessary we would have upheld this companytention because the order giving permission to Kewal Ram to investigate the offence gives numberreasons and the illegality companymitted has resulted in a miscarriage of justice. Kewal Ram misled the Magistrate into granting the permission and he had himself more than a personal interest in the case which he sought permission to investigate. It is, however, unnecessary to pursue this point as it is impossible to uphold the companyviction on merits. In, the result we allow the appeal and set aside the order of companyviction, the substantive sentence as also the sentence of fine.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE, JURISDICTION Civil Appeal No. 2365 of 1972. Appeal from the Judgment Order dated the 22nd September, 1972 of the Bombay High Court in E. P. No. 1 of 1972. M. Tarkunde, D. V. Patel, K. Rai Choudhry, K. S. Bhadti and S. L. Setia, for the appellant. S. Desai, S. B. Wad and M. S. Ganesh, for respondent No. 1. The Judgment of the Court was delivered by ALAGIRISWAMI, J. In the election to the Maharashtra State Legislative Assembly held on March 7, 1972 the 1st respondent was declared elected from Shirdi Constituency. The appellant, a voter from that companystituency filed an election petition questioning election of the 1st respondent on two grounds one was that the successful candidate had companymitted several companyrupt practices, the other that the election, was liable to be set aside because he was disqualified for election as he was. holding an office of profit under the State Government as a member of the Wage Board for the Sugar Industry companystituted by the Government of Maharashtra under section 86-B of the Bombay Industrial Relations, Act, 1946. The only question argued before this Court was the 2nd one. February 8, 1972 was the last date for filing numberinations and February 11, 1972 the last date for withdrawal of candidature. The 1st respondent resigned as a member of the Wage Board on February 20, 1972 and the letter of resignation was received by the companycerned authorities on February 22, 1972. The Wage Board to which the 1st respondent was numberinated as a member on 13th April 1971 was,constituted under the provisions of Chapter 12A of that Act introduced by the Amending Act No. 43 of 1948. Under section 86C the State Government may make reference to the Wage Boards for decision of any industrial matter of industrial dispute. Under section 86G the order or decision of the Wage Board is made appealable to the Industrial Court. The parties on whom the order or decision of the Wage Board is binding are enumerated in section 86H. Section 861 provides for review of the order or decision, by the Wage Board. Section 86J companyfers certain powers of superintendence on the Industrial Court over all Wage Boards. The first question to be decided is whether the membership of the Wage Board is an office under the State Government. In Maulana Abdul Shakur v. Rikhabchand Anr. 1958 SCR 387 394 this Court held The power of the Government to appoint a person to an office of profit or to companytinue him in that office or revoke his appointment at their discretion and payment from out of Government revenue are important factors in determining whether that person is holding an office of profit under the Government. Leaving aside for the present the question of payment, as the 1st respondent was appointed by the Government the Government companyld either companytinue him in that office or revoke his appointment at their discretion. In Ramappa v. Sangappa 1959 SCR 1167 this Court pointed out that An office has to be held under someone for it is impossible to companyceive of an office held under numberone. The appointment being by the Government, the office to which it is made must be held under it, for there is numberone else under whom it can be held. There is numberdoubt that in this case the office of the membership of the Wage Board should be deemed to have been held by the 1st respondent under the Government of Maharashtra. In Gurugobinda Basu V. Sarkari Prasad Ghosal Ors. 1964 4 SCR 3111 it was held that For holding an office of profit under the Government a person need number be in the service of the Government and there need number be any relationship of master and servant between them. In that view even the Comptroller and Auditor General, being appointed by the President and his administrative powers being such as may be prescribed by rules made by the President subject to the provisions of the Constitution and of any law made by Parliament, was held to be a holder of an office of profit under the Government on India. In Shivamurthy Swami v. Agadi Sanganna Andanappa 1971 3 SCC 870 the indicia of an office held under the Government were put this the office in question must have been held under a Government and to that some pay, salary, emoluments or allowance is attached. . . . This Court in several decisions had laid down the tests for finding out whether an office in question is an office under a Government and whether it is an office of profit. Those tests are 1 Whether the Government makes the appointment 2 Whether the Government has the right to remove or dismiss the holder 3 Whether the Government pays the remuneration 4 What are the functions of the holder? Does he perform them for the Government and 5 Does the Government exercise any companytrol over the performance of those functions ? Again, leaving aside for the present the question of payment of remuneration, the office of the membership of the Wage Board satisfies all the tests here laid down. The power exercised by the Wage Board is essentially a part of the judicial power of the State and the Wage Board is appointed to exercise that power. There can, therefore, be numberdoubt that the 1st respondent did hold an office under the Govern- ment. This proposition was number seriously disputed by the 1st respondent. The only serious dispute is whether that office was an office of profit. The first Wage Board for Sugar Industry was companystituted in the year 1956 by a Government numberification Development Department No. BIR-2355, dated March 20, 1956. The Wage Board companysisted of three members. By a numberification dated May 16, 1967, a new Wage Board for the Sugar Industry was companystituted companysisting of five members. By a numberification dated April 13, 1971 the 1st respondent was numberinated as a member of the Wage Board to represent the employers on the Wage Board in place of one E. V. Wikhe who resigned his membership. That numberification itself does number mention the terms of appointment. To the numberification companystituting the Wage Board in the year 1956 a resolution was also appended directing that the number-official members of the Wage Board should be paid honorarium at the rate of Rs. 25/per day of the meeting of the Wage Board and that they should also be allowed to draw travelling allowance and daily allowance at the rate prescribed in Scale 1 in Rule 1 1 b in section 1 of Appendix XLII-A of the Bombay Civil Services Rules Vol. II . Such a resolution regarding honorarium and allowances payable to the members was number part of the 1967 numberification creating a.new Wage Board, but apparently the members are paid only on the basis of the 1956 resolution. There is numberdispute that the daily allowance and travelling allowance payable to the members would number make the membership of the Wage Board an office of profit.- That companyes within the definition of the words companypensatory allowances found in item 11, Schedule I read with section 2 of the Bombay Legislature Members Removal of Disqualifications Act, 1956. Item 11 in Schedule I reads as follows The office of the Chairman or member of any companymittee or body appointed by the Central or State Government Provided that the Chairman or any member of such companymittee or body does number receive any remuneration other than the companypensatory allowance. Explanation For the purpose of this entry, companypensatory allowance shall mean the travelling allowance, the daily allowance or such other allowance which is paid to the holder of the office for the purpose of meeting the personal expenditure in attending the meeting of the companymittee or body or in performing any other functions as the holder of the said office. The whole companytroversy centres around the honorarium payable to the members of the Wage Board. It is companytended on behalf of the appellant that item 11 specifically lays down that the companypensatory allowance shall mean the travelling allowance, the daily allowance or such other allowance which is paid to the holder of the office for the purpose of meeting the personal expenditure in attending the meeting of the companymittee or body or in performing any other function as the holder of the said office, and honorarium which is number mentioned there cannot be brought within the meaning of the words such other allowance found in that item as it is number an allowance. Reference is made to the dictionary meaning of the word honorarium and it is said that while the daily allowance is expected to meet the expenses of the member companycerned while attending the meeting of the Board, the honorarium is in the form of a fee for performing his duties on those days. The Shorter Oxford Dictionary gives the meaning of the word honorarium as an honorary reward, a fee for professional service rendered, while one of the meanings of the word salary is, fixed payment made perio- dically to a person as companypensation for regular work, remuneration for services rendered, fee, honorarium. Thus, in one aspect honorarium and fee are used almost as though they are interchangeable terms. Even so, what was paid to the 1st respondent cannot be said to be a salary. It was number a fixed payment made periodically as companypensation for regular work. We do number think that the dictionary meaning is of much help here. We are of opinion that the matter must be companysidered as a matter of substance rather than of form, of the assence of payment rather than its numberenclature. Even so, it is urged on behalf of the appellant that the payment of honorarium in this case companyld number have been for any purpose other than payment for services rendered on particular days on which the meetings of the Wage Board were, held. We are number able to accept this companytention, In this companynection various decisions relied upon by the appellant are themselves of interest. In Ravanna Subanna v. S. Kaggeerappa AIR 1954 SC 653 a person holding office of Chairman of Taluk Development Committee was entitled to a fee of Rs. 6/- for each sitting he attended. This Court held that it companyld reasonably be inferred that the fee of Rs. 6/,- was number meant to be a payment by way of remu- neration but it was given for the out-of-pocket expenses which the Chairman had to incur for attending the meetings of the companymittee. The point to be numbered is that though it was termed a fee it was companysidered to be given for meeting the out-of-pocket expenses of the member. It was observed in that decision that The word profit companynotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would number be material but the amount of money receivable by a person in companynection with the office he holds may be material in deciding whether the office really carried any profit. The stress here is on the pecuniary gain. The decision in Umrao Singh v. Darbara Singh Ors. 1969 1 SCR 421 is a very important one. In that case the successful candidate was the Chairman. of a Panchayat Samiti. He was paid Rs. 100/a month as companysolidated allowance for performing all official duties and journeys companycerning the Panchayat Samitis within the district including attending of meeting, supervision of plans, projects, schemes and other works and also for the discharge of all lawful obligations and implementation of Government directives. He was also granted mileage and daily allowance for journeys performed for any official work out- side the district. The daily allowance was payable at the rate of Rs. 6/per day of official work performed outside the districts. The rules, however, made provision as to the circumstances under which he was entitled to full daily allowance or half daily allowance as the case may be. This Court referred to the companysolidated allowance and pointed out that it was number salary, remuneration or honorarium but was clearly an allowance paid for the purpose of ensuring that the Chairman of a Panchayat Samiti did number have to spend money out of his own pocket for the discharge of his duties. This Court further held that the burden lay on the appellant to give evidence on the basis of which a definite finding companyld have been arrived at that the amount of Rs. 100/- per month was excessive and was number required to companypensate the Chairman for the expenses to be incurred by him in the discharge of his official duties. Even with regard to the daily allowance and travelling allowance payable when the Chairman had to perform his duties outside the district, this Court pointed out there was numberevidence from which an inference may be drawn that the amount received by a Chairman for travelling allowance or daily allowance was in excess of the amount of expenditure which he would have to incur for the purpose of performing the journeys in order to discharge his official duties. It was urged before this Court that the payment of travelling allowance and daily allowance was in addition to the payment of the companysolidated monthly allowance and the Payment of two sets of allowances must necessarily result in profit to the payee. After pointing out the different purposes for which these two sets of allowances were meant this Court finally held that the appellant had failed to establish that the allowances payable resulted in any pecuniary gain to the Chairman. The whole purport of the decision is thus whether what was received by the member was in excess of the expenditure which he would have to incur for the purpose of performing the journeys in order to discharge his official duties, the burden being on those who allege it. In Shivamurthy Swami v. Agadi Sanganna Andanappa supra the only relevant instance was that of his membership of Khadi Village Industries Board. In that capacity he was entitled to a sitting fee of Rs. 16/- per day on the days he attended the meetings of the Board or any of its companymittees. But he companyld number draw the sitting fee as well as the daily allowance and had to draw only one of the two. The sitting fee was held by this Court to be a companypensatory allowance. The decision is number, therefore, of such relevance to the facts of this case. Reference has already been made to the various payments to which the 1st respondent was entitled to as a member of the Wage Board, It is number necessary to refer to the number of meetings he attended or the places at which he attended the meetings because the question has to be decided number on whether a particular member made a profit out of the payments made to him but on what was the effect of the payments in general. The daily allowance is number payable for a halt upto six hours, and for halt exceeding six hours but less than 12 hours only half the daily allowance was payable. The daily allowance was Rs. 18/- whether the meeting was held at Bombay, Poona, Aurangabad or Kopargaon. The learned Judge of the High Court has pointed out that for attending the meeting in Bombay a member companying from outside was expected to companye by the latest available train and to leave by the first available train and the charging of daily allowance depended upon the arrival and departure of the trains. The 1st respondents evidence was that when he came to Bombay for attending the meetings of the Wage Board, he had to spend Rs. 20/- as taxi fare, Rs. 25/- for break-fast, lunch and dinner and Rs. 40/ for lodging, that if he had a single room for the stay in a hotel he used to pay Rs. 30/- per day. He seems to have been staying in a modest hotel which charged Rs. 15/- to Rs. 16/for a companymon room and Rs. 28/- to Rs. 30/- for a single room including lodging and boarding charges. As pointed out by the learned Judge, it should number be forgotten that if for the purpose of his lunch a member was expected to return to his hotel from the place where the meeting was held, he will have to incur double the taxi fare, both before and after the lunch, and if he does number return back to the hotel he has to arrange for the lunch at a place in the vicinity of the office where the Board meetings are held and pay for it. After an elaborate discussion of all the evidence, the learned Judge accepted the evidence of the 1st respondent that he had to spend Rs. 20/- for taxi fare, that in the hotel where the 1st respondent stayed the charges for a companymon room were Rs. 15/- to Rs. 16/- and for a single room Rs. 28/- to Rs. 30/per day including lodging and boarding and that if regard be had to these figures then the aggregate of the honorarium and the daily allowance payable to the 1st respondent was hardly sufficient to meet the personal expenditure incurred for the purpose of attending the meeting in Bombay, and simply because he was paid both honorarium and daily allowance it companyld number be said that he was making any pecuniary gain thereby. We agree with the learned Judges companyclusion. The question has to be looked at in a realistic way. Merely because part of the payment made to the 1st respondent is called honorarium and part of the payment daily allowance, we cannot companye to the companyclusion that the daily allowance is sufficient to meet his daily expenses and the honorarium is a source of profit. A member of the Wage Board cannot expect to stay in Taj Hotel and have a few drinks and claim the expenditure incurred, which may companye perhaps to Rs. 150/to Rs. 200/- a day, for his personal expenses. In such a case it may well be held to give him a pecuniary gain. On the other hand he is number expected to live like a sanyasi and stay in a dharamshala and depend upon the hospitality of his friends and relatives or force himself upon them. Nobody with a knowledge of the expenditure likely to be incurred by a person staying at a place away from his home companyld fail to realise how companyrect the assessment of the learned Judge is. We are satisfied that the payments made to the 1st respondent cannot be a source of profit unless he stays with some friends or relatives or stays in a dharamshala. The appellant has number satisfied the test or discharged the burden pointed out by this Court in Umrao Singhs case, The law regarding the question whether a person holds an office of profit should be interpreted reasonably having regard to the circumstances of the case and the times with which one is companycerned, as also the class of person whose case we are dealing with and number divorced from reality. We are thus satisfied that the 1st respondent did number hold an office of profit. We do number companysider that the decision of this Court in Mahadeo v. Shantibhai 1969 2 SCR 422 is at all helpful to the appellant. There the successful candidate was appointed by the Railway to watch cases companying up for hearing against Railway in the various companyrts and give timely intimation of the same and if numberinstructions regarding any particular case were received bay him he was expected to appear in the companyrt and obtain an adjournment. He was to be paid Rs. 5/- for every such adjourment. There was numberquestion there of his incurring any expenditure. A lawyer would in the numbermal companyrse be attending the companyrts and if he discharges some duties while so attending and gets paid for it clearly he derives a profit thereby and the decision holding that he was holder of an office of profit is clearly distinguishable from the facts of this case. In the result the. appeal is dismissed with companyts. The L.P. Civil No.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1225 to 1228 of 1970. From the judgment and order dated the 11th July, 1969. of the Calcutta High Court in Income Tax Reference No. 213 of 1966. T. Desai, J. Ramamurthi and R. N. Sacthey, for the appellant. Sea and D. Pal, R. S. Tahore, 6. P. Khaitan, B. P. Mahesawari and Leila Seth, for the respondent. The Judgment of the Court was delivered by GUPTA J.-The companymon question arising for decision in these four appeals is whether the income derived by the respondent, Indian Sugar Mills Association, from its sugar export division is exempt from tax under sec. 4 3 i of the Income Tax Act, 1922. The assessment. years are 1958- 59, 1959-60, 1960-61 and 1961-62 for which the previous years are respectively the calendar years 1957, 1958, 1959 1960. The Indian Sugar Mills Association, hereinafter referred to as the Association, which has its office in Calcutta is a Trade Union registered under the Trade Unions Act, 1926 any individual, firm or companypany owning or managing a sugar mill or factory is eligible for membership of the Association. Rule 3 of the Rules of the Association states the various objects for which the Association is established and, of them, the first two, namely Rules 3 a and 3 b . are as, follows To promote and protect the trade, companymerce and industries of India and in particular, the trade companymerce and industries companynected with sugar. To encourage friendly feeling and good relations amongst the sugar mills in general and the members in particular and also between producers of sugar and cane-growers, distributors of sugar and other dealing with sugar mills and companynected with sugar industry. It was claimed on behalf of the Association that the business it carried on was in the nature of property held under trust or legal obligation to apply the income for charitable purposes within the meaning of clause i , sub- section 3 of section 4 of the Income-Tax Act, 1922 the last paragraph of sub-section 3 defines charitable purposes as including relief of the poor, education, medical relief and advancement of any other object of general public utility. The claim for exemption appears to have been based on the objects mentioned in Rules 3 a and 3 b and on the first part of clause a of Rule 4. Clauses a and b of Rule 4 regulate the application of the funds of the Association. The first part of Rule 4 a reads 4. a Subject to such special rules as may be framed for the purpose, the income and property of the Association whensoever derived, shall be applied solely towards the promotion of the Association as set forth in- these Rules and Regulations and numberportion thereof shall be paid cc transferred, directly or indirectly, by way of dividend or bonus or otherwise howsoever by way of profit, to the persons who at any time are, or have been members of the Association or to any of them or to any person claiming through any of them. Rule 4 a has a proviso to which it is number necessary to refer for the present purpose. The Income-tax Officer, the Appellate Assistant Commissioner and the Tribunal all rejected the claim though number exactly for the same reasons. At the instance of the Association the Tribunal referred the following question to the High Court at Calcutta under sec. 66 1 of the Income Tax Act, 1922 Whether on the facts and circumstances of the case and on proper companystruction of the Rules and Regulations of the Association, the Tribunal was justified in holding that the in- companye of the Association derived from the business of export of sugar and interest from current and fixed deposits were number exempt from tax under section 4 3 i of the Indian Income-tax Act, 1922? The High Court answered the question in the negative and in favour of the assessee. These four appeals preferred by the Commissioner of Income Tax, West Bengal-III, Calcutta, with certificate granted by the High Court under section 66A 2 of the Income Tax Act, 1922 are directed against the judgment of the High Court disposing of the reference and relate to the assessment orders made in respect of the aforesaid four years. The High Court observed that the question referred to it should be decided upon the principles laid down by the Privy Council in re The Trustees of the Tribune, 7 I.T.R. 415 and All India Spinners Association v. Commissioner of Income-tax, Bombay, 12 I.T.R. 482 and by the Supreme Court in Commissioner of Income-Tax, Madras v. Andhra Chamber of Commerce, 55 I.T.R. 722. Of the several principles stated in the Tribune case supra , the one to which the High Court made special reference is that in companyntries to which English ideas may be inapplicable, the companyrts must in general apply the standard of customary law and companymon opinion amongst the companymunity to which the parties interested belong in deciding whether an object is of general public utility. Referring to this principle the High Court observed that section 4 3 i is of wider amplitude than what is known as religious 8-L319SupCI/75 or charitable purposes in English Law and a purpose of general public utility has to be ascertained with reference to companyceptions prevailing in our companyntry. We are afraid we do number see how this principle has relevance on the question under companysideration in the present case because numberconflict arises here between the English and the Indian companyceptions of charitable purpose. In the Spinners Association case supra the Privy Council found that the primary object of the Spinners Association was the relief of the poor which was a charitable purpose, that the objects of the said Association included the advancement of other purposes of general public utility, and held that as such the income of the Spinners Association was exempt under section 4 3 i . Their Lordships further observed that an object of general public utility would exclude the object of private gain, such as an Undertaking for companymercial profit though all the same it would subserve general public utility. This observation, as will appear later, has a bearing on the question that arises for decision in the instant case. The Judgment of the High Court is really based on the decision of this Court in Commissioner of Income-Tax Madras Andhra Chamber of Commerce, 55 I.T.R. 722 the learned companynsel for the respondent also. relied almost entirely on this case. The Andhra Chamber of Commerce was a companypany incorporated under the Indian Companies Act 7 of 1913 it was permitted under sec. 26 of the Act to omit the word limited from its name by order of the Government of Madras. Of the findings recorded in the, Andhra Chamber of Commerce case, the following are material for the purpose of the present appeal Advancement or promotion of trade, companymerce and industry leading to economic property enures for the benefit of the entire companymunity. That, prosperity would be shared also by those who engage in. trade, companymerce and industry but on that account the purpose is number rendered any the less an object of general public utility. The expression object of general public utility is number restricted to objects beneficial to the whole of mankind or even all persons living in a particular companyntry or province. it is sufficient if the intention is to benefit a section of the public as distinguished from specified individuals. The section of the public sought to be benefited must undoubtedly be sufficiently defined and identifiable by some companymon quality of a public or impersonal nature where there is numbercommon quality uniting the potential bene- ficiaries into a class, it may number be regarded as valid. If the primary purpose be advancement of objects of general public utility, it would remain charitable even if an incidental entry into the political domain for achieving that purpose is companytemplated. On the facts of that case it was held that the principal objects of the Chamber of companymerce were to promote and protect trade., companymerce and industries and to stimulate the development of trade companymerce and industries in India or any part thereof and one of the objects mentioned in the Memorandum of Association that the Chamber of Commerce might take steps to urge or oppose legislative or other measures affecting trade, companymerce or manufactures was pure ancillary or subsidiary aimed at securing the primary objects. In case before us the High Court held that clauses a and b of Rule 3 of the Rules of the Association, quoted above, set out the primary objects of the Association which were objects of general public utility, and the other objects appearing from the remaining clauses of Rule 3 were only ancillary. Relying further on a part of Rule 4 a , which we have reproduced above, providing that numberpart of the income and property of the Association was to be paid or transferred by way of dividend or bonus or otherwise by way of profit to the members of the Association, the High Court came to the companyclusion that the Association was under a legal obligation to hold the income it derived from the business of export of sugar for charitable purposes. The exemption under section 4 3 i can be claimed if the income is held wholly for religious car charitable purposes this requirement is satisfied, as Held in the Andhra Chamber of Commerce case supra , if the primary purpose is religious or charitable and the other purposes, number by themselves religious or charitable, are ancillary and serves to achieve the main purpose. Assuming clauses a and b of Rule 3 disclosed objects of general public utility, it is necessary to examine some of the other Rules of the Association to find out if it held the income derived from the business wholly for charitable purposes. The general prohibition companytained in the first part of Rule 4 a against sharing of profits by the members appears to have been made almost nugatory by Rule 64 which is as follows Subject to such rules as the General Meeting may frame or prescribe for declaration of dividend and distribution of profits, the profits of the Association shall be applied in such manner as the Committee may in their discretion think fit provided nevertheless that numberdistribution of profits amongst members will be made unless sanctioned by a Resolution at a General Meeting of the. Association held for the purpose. Rule 64 thus permits distribution of profits among the members on a resolution being passed for the purpose at a General Meeting of the Association. Under Rule 64 the Committee of the Association may in their discretion decide to apportion the entire profits among the members of the Association leaving numberhing to be applied towards the alleged primary objects. We are number prepared to accept the submission made on behalf of the respondent that the power companyferred on the Committee by Rule 64 to decide how the profits are to be applied is only incidental to the carrying out of the primary objects. which are charitable. There is numberhing in Rule 64 that suggests so there is numberindication that the rules framed or the resolution passed at the general meeting must require a part at least of the profits to be set apart for the charitable purposes. Rule 64 introduces an element of private gain which is inconsistent with the object of general public utility and following the decision in A11 India Spinners Association v. Commissioner of Income-Tax, Bombay supra it cannot be said that the Association in the instant case held the income it derived from its business of export of sugar wholly for charitable purposes. This is also what distinguishes the present case from the Andhra Chamber of Commerce case where it was found that the Chamber of Commerce had numberprofit motive, that its objects were to promote and protect the trade, companymerce and industries and to stimulate their development and its other objects were ancillary and incidental to the principal objects. Dr. Pal for the respondent also submitted that if Rule 64 appeared to be inconsistent with-the primary objects, it should be treated as void and of numberconsequence. Undoubtedly Rule 4 a and Rule 64 are repugnant to each other. But the rule of companystruction of deeds and wills on which Dr. Pal relied, that in case of repugnancy the first words in a deed and the last words in a will shall prevail, is number applicable to the rules and regulations of a registered trade union in order to find out its real object. We have numberright to assume some of the stated objects of the Association as primary to declare others in apparent companyflict with them as of numbereffect. Rules 3, 4 and 64, all framed by the Association as a Trade Union, companyexist. We have numberright to rewrite the rules of a registered trade union by deleting any of them. We also find it difficult to accept that only clauses a and b of Rule 3 represent the primary objects of the Association and the other Rules are all ancillary and incidental. The Association is a Trade Union. Section 2 h of the Trade Unions Act, 1926 defines Trade Union as meaning any companybination, whether temporary or permanent, formed primarily for the purpose of regulating the relation between workmen and employers or between workmen and workmen, or between employers and employers, or for imposing restrictive companyditions on the companyduct of any trade or business, and includes any federation of two or more Trade Unions There is a proviso to this definition which is number relevant on the question under companysideration. The definition itself sets out the primary purposes for which a trade union can be formed. The objects of the Association listed under Rule 3 include the following To regulate terms and companyditions of employment in the Mills and Factories. To promote good relations between the employers and the employees. To adjust companytroversies between members of this Association. To establish just and equitable principles in trade and impose restrictive companyditions on the companyduct of sugar trade and business. These are all primary purposes of a Trade Union. Rule 3 b also may possibly be. taken as a trade union object. Assuming Rule 3 a companyld be the primary object of a trade union, the other objects named in clauses c , d , 1 and n of Rule 3 also fall in the same category, and it is number possible to speak of one of them as ancillary or incidental to another. These other objects cannot also be called charitable purposes within the meaning of section 4 3 i , even assuming that in some remote and indirect manner they might be of some public utility. It is number therefore possible to agree that the Association held the income derived from its business wholly for charitable purposes. For the reasons stated above we allow these appeals, discharge the answer given by the High Court to the question referred to it, and answer the question in the affirmative and in favour of the Revenue. The appellant will be entitled to his companyts in this Court as well as in the High Court. One hearing fee.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1395 of 1970. Appeal from the Judgment and Order dated the 4th March 1969 of the Madras High Court- in Tax Case No. 215 of 1965 and Referred No. 109 of 1965. B. Ahuia and S. P. Nayyar, for the appellant. Swaminathan and S. Gopalakrishnan, for the respondent. The Judgment of the Court was delivered by KHANNA, J.-This appeal by the Control of Estate Duty on cer- tificate is against the judgment of the Madras High Court whereby that companyrt answered the following question referred to it under section 64 1 of the Estate Duty Act, 1953 Act 34 of 1953 hereinafter referred to as the Act partly in favour of the assessee and partly in favour of the revenue Whether, on the facts and in the circumstances of the case, the entire value of the, property known as Mayavaram Lodge or any portion of its value is liable to be included in the principal value of the Estate of the deceased as property deemed to have passed on his death? The matter arises out of the estate duty case of Shri R. Venkateswara Iyer who died on April 6, 1957. The respondent, Smt. Parvathi Ammal who is the widow of the deceased and is an accountable person in the case, filed statement relating to the estate of the deceased before the Assistant Controller of Estate Duty. The Assistant Con- troller determined the principal value of the estate to be Rs. 2,50,374. In companyputing the principal value the Assistant Controller took into account a sum of Rs. 1,50,000 on account of the value of property known as Mayavaram Lodge. The Assistant Controller found that till March 11, 1955 the deceased, who was a self-made man, owned two buildings, including Mayavaram Lodge, besides some agricultural land. The deceased was carrying on the business of boarding and lodging in Mayavaram Lodge. He had also a small chit business. On March 11, 1955 the deceased executed a document described as a partition deed, whereby he gave Mayavaram Lodge, to his five sons in equal shares and retained for himself the other house and agricultural land. On June 25, 1955 the deceased entered into an agreement with his sons by which they leased to the deceased Mayavaram Lodge wherein as before he companytinued to carry on his boarding and lodging business. In the profit and loss account a sum of Rs. 15,000 was mentioned for payment of rent of Mayavaram Lodge. Later on, the deceased gave the boarding house on sub-lease to a third party. The respondent claimed that Mayavaram Lodge should be excluded from the estate duty assessment of the deceased on the ground that the said property was transferred on March 11, 1955 more than two years before his death. It was urged that the fact that the sons let out the building to the deceased should number be taken to be a special benefit derived by the deceased. The respondent also pointed out that Mayavaram Lodge was taken on lease long after the original transfer and the lease and the transfer companyld number be treated as associated transactions. Plea was also taken that the document of March 11, 1955 companystituted deed of partition of joint family properties. 3-L319Sup.CI/75 The Assistant Controller rejected these companytentions. He found that the property referred to in the deed dated March 11, 1955 was the self acquired property of the deceased and that there was numberevidence to show that the deceased treated it as joint family property. He accordingly held that the deed, though described as a partition deed, should be treated as a settlement. Although the settlement was found to have been made by the deceased more than two years before his death, the fact that the deceased took back the property from his sons shortly thereafter to companytinue his business therein showed, in the opinion of the Assistant Controller, that the deceased got a direct benefit in the property. The Assistant Controller in this companytext referred to the fact that there was number much interval of time between the settlement and lease and that the payment of rent was number in cash but by book entries. The Assistant Controller accord- ingly held that Mayavaram Lodge was liable to be taken into account for assessing the estate duty. He accordingly included a sum of Rs. 1,50,000 on that account. The respondent preferred an appeal to the Board of Direct Taxes against the order of the Assistant Controller. The only ground which was pressed before the Board related to the inclusion of the value of Mayavaram Lodge. It was urged on behalf of the respondent that the property owned by the deceased became the joint family property and that the deed of March 11, 1955 was a partition deed. In the alternative, it was urged on behalf of the respondent that even if the deed of March 11, 1955 was a deed of settlement and number of partition, the value of Mayavaram Lodge ought number to have been included inasmuch as the deceased had transferred his right, title and interest in the above property more than two years prior to his death. The Board found that the deed, though executed on March 11, 1955 more than two years prior to the death of the deceased, was registered only on June 29, 1955. According to the Board, the gift of Mayavaram Lodge became effective only on June 29, 1955, viz. the date of registration. As that date fell within the statutory period of two years before the death of the deceased, the Assistant Controller was held to be justified in view of section 9 of the Act in including the value of Mayavaram Lodge in the principal value of the estate of the deceased. In the alternative, the oBard found that the deceased companytinued to be in undisputed possession of Maya- varam Lodge. It was held that the donor had number been excluded from the enjoyment and possession of the property and. therefore, estate duty was payable in respect of that property under section 10 of the Act. The Board rejected the companytention that the document ,of March 11, 1955 companystituted partition deed. The appeal of the respondent was accordingly dismissed. On being moved by the respondent the Board referred the question reproduced above to the High Court. The High Court held that the subject matter of allotment to the sons by the deed of March 11, 1955 was the entirety of Mayavaram Lodge with all the rights that companyld possibly go into it and that the allotment was number subject to any claim to or right in that property. It was also held that on the execution of the deed the sons had assumed possession and enjoyment of the entirety of the house. The High Court then referred to its earlier decision in Y. S. Mani v. Controller of Estate Duty 1 wherein it had held that to the extent to which the donor retains an interest in the entirety of the property given away by him as gift, there will be pro tanto liability to estate duty. It was further observed by the High Court as under Mayavaram Lodge was certainly a bundle of rights of which possession and enjoyment formed a part which as we have observed, were number subsequently to their assumption retained by the sons of the deceased. To that extent, there was number-exclusion of the deceased. So far as the ownership of the property is companycerned, there can be numberquestion that the donees exclusively retained it. It follows that it is only the value of the right to possession and enjoyment in the hands of the deceased as a lessee that would pass on his death and would attract duty. For the Revenue it is urged that the entire premises being in the occupation and enjoyment of the deceased until his death, its entire value would pass. We are unable to accede to this view because it does number take numbere of the value of the other rights of the donees including the ownership of the property, which they retain- ed to the exclusion of the deceased. Since we have held that only to the extent of the number- exclusion mentioned the proportionate property referable to it would pass, it would be necessary for the Revenue to apportion its value taking all the facts into account and revise the assessment. That is sufficient to dispose of the reference. In view of this, we, do number think it necessary to deal with the other point as to whether the transaction of March 11, 1955, amounted to a gift. We have proceeded on the basis that it was a gift. The question is answered partly in favour of the Revenue and partly in favour of the assessee. This is because , on the view we have expressed, the Revenue cannot charge estate duty on the entire value of the property, while at the same time the accountable person cannot escape duty to the extent of the number-exclusion we have indicated. In appeal before us Mr. Ahuja on behalf of the appellant has assailed the judgment and reasoning of the High Court- and has companytended that as subsequent to the deed of March 11, 1955, which as observed by the High Court would have to be assumed to be a deed of gift, the donor took the gifted property on lease, the donees cannot be said to have retained possession of that property to the entire exclusion of the donor or of any benefit to him by companytract or otherwise. As against that, Mr. Swaminathan on behalf of the respondent has canvassed for the companyrectness of the view taken by the High Court. 1 1966 601.T.R.810. Before dealings with the companytention of the parties, we may referring to section 2 16 , to the relevant provisions of the Act. According to section 2 16 property passing on the death includes property passing either immediately on the death or after any interval, either certainly or company- tingently, and either originally or by way of substitutive limitation. Section 5 companytains the charging provision, and provides that in the case of every person dying after the companymencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided, of all property, settled or number settled, including agricultural land which passes on the death of such person, a duty called estate duty at the rates fixed in accordance with section According to section 6, property which the deceased was at the time of his death companypetent to dispose of shall be deemed to pass on his death. Sub-section 1 of section 7 of the Act provides that subject to the provisions of that Section, property in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass on the deceaseds death to the extent to which a benefit accrues or arises by the ceaser of such interest, including in particular, a companyarcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakkattayam or Aliyasantana law. According to section 9, property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, settlement upon persons in succession, or otherwise, which shall number have been bona fide made two years or more before the death of the deceased shall be deemed to pass on the death Provided that in the case of gifts made for public charitable purposes the period shall be six months. Section 10 of the Act reads as under Gifts whenever made where donor number entirely excluded.-Property taken under any gift, whenever made, shall be deemed to pass on the donors death to the extent that bona fide possession and enjoyment of it was number immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by companytract or otherwise Provided that the property shall number be deemed to pass by reason only that it was riot, as from the date of the gift, exclusively retained as aforesaid, if, by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any benefit to him for at least two years before the death. Provided further that a house or part thereof taken under any gift made to the spouse, son, daughter, brother or sister, shall number be deemed to pass on the donors death by reason only of the residence therein of the donor except where a right of residence therein is reserved or secured. directly or indirectly to the donor under the relevant disposition or under any companylateral disposition. it may be mentioned. that the period two years in sub- section 1 of section 9 and the first proviso to section 10 was substituted for one year by the Finance Act, 1966 Act 13 of 1966 . The second proviso to section 10 was inserted by the Finance Act, 1965 Act 10 of 1965 . The amendment brought about by the Finance Act, 1965 by inserting second proviso to section 10, as observed by this Court in the case of George Da Costa v. Controller of Estate Duty Mysore 1 , was number retrospective. The said section would companysequently have to be companystrued for the purpose of this case which relates to, the estate, of the deceased who died on April 6, 1957, as it stood before the amendment. The intention of the legislature in enacting section 10 of the Act was to exclude from liability to estate duty certain categories of gifts. ,A gift of immovable property under section 10 will, however, be dutiable unless the donee assumes immediate exclusive and bona fide possession and enjoyment of the subject-matter of the gift, and there is numberbeneficial interest reserved to the donor by companytract or otherwise. The section must be grammatically companystrued as follows Property taken under any gift, whenever made, of which property bona fide possession and enjoyment shall number have been assumed by the donee immediately upon the gift, and of which property bona fide possession and enjoyment shall number have been thenceforward retained by the donee to the entire exclusion of the donor from such possession and enjoyment, or of any benefit to him, by companytract or otherwise. The crux of the section lies in two parts 1 the donee must bona fide have assumed possession and enjoyment of the property, which is the subject-matter of the gift, to the exclusion of the donor. immediately upon the gift, and 2 the donee must have retained such possession and enjoyment of the property to the entire exclusion of the donor or of any benefit to him, by companytract or otherwise. Both these companyditions are cumulative. Unless each of these companyditions is satisfied, the property would be liable to estate duty under section 10 of the Act see George Da Costa v. Controller of Estate Duty Mysore, supra . The second part of the section, as observed in the above mentioned case, has two limbs the deceased must be entirely excluded, i from the, property and ii from any benefit by companytract or otherwise. The word otherwise should be companystrued ejusdem generis and should be, interpreted to mean some kind of legal obligation or some transaction enforceable at law or in equity which though number in the form of a companytract, may companyfer a benefit on the donor. The words by companytract or otherwise in the second limb of the section do number companytrol the words to the entire exclusion of the donor in the first limb. In order to attract this section, it is companysequently number necessary that the possession of the donor of the gifted property must be referable to some companytractual or other arrangement enforceable at law or in equity. Even if the donor is companytent to rely upon the mere filial affection of his sons with a view to enable, him to companytinue to reside in the house, it cannot be said that be was entirely excluded 1 1967 63 I.T.R. 497. from possession and enjoyment within the meaning of the first limb of the section and, therefore, the property will be deemed to pass on the death of the donor and will be subject to levy of estate duty. The object underlying a provision like section 10 of the Act was explained by Issacs J. in the case of John Lang Ors. Thomas Prout Webb 1 decided by the High Court of Australia in 1912 in the following words The owner of property desiring to make a gift of it to another may do so in any manner known to the law. Apparent gifts may be genuine, or companyourable, and experience has shown that frequently the process of ascertaining their genuineness is attended with delay, expense and uncertainty all of which are extremely embarrassing from a public revenue standpoint. With a view to avoiding this inconvenience, the legislature has fixed two standards, both of them companysistent with actual genuineness, but prima facie indicating a companyourable attempt to escape probate duty. One is the standard of tent with the gift. The prima facie view is made by the twelve months before the donors death is for the purpose of duty regarded as number made. The other is companyduct which at first sight and in the absence of explanation is inconsistent with the gift. The prima facie view is made by the legislature companyclusive. If the parties to the transaction choose to act so as to be in apparent companyflict with its purport, they are to be held to their companyduct. The validity of the transaction itself is left untouched, because it companycerns themselves alone. But they are number to embarrass the public treasury by equivocal acts. The companyrt in that case was companycerned with the companystruction of section 11 of the Administration and Probate Act, 1903 which reads as under Every companyveyance or assignment gift delivery or transfer of any estate real or personal and whether made before or after the companymencement of this Act, Purporting to operate as an immediate gift inter vivos whether by way of transfer delivery declaration of trust or otherwise shall- a if made within twelve months immediately preceding the death of the person so dying or b if made at any time relating to any property of which property bona fide possession and enjoyment shall number have been assumed by the donee immediately upon the gift and thenceforward retained to the entire exclusion of the donor or of any benefit to him by companytract or otherwise 1 3 C.L.R. 593. be deemed to have, been, made the property to which the same relates chargeable with the payment of the duty payable under the Administration and Probate Acts as though part of the estate of the donor. In that case a testarix was the owner in fee of land in her actual possession and enjoyment, which she worked as a single property. More than twelve months before her death she gave to her three sons blocks of this land each of which was surrounded by other land of the testarix. The gift was made by companyveyances of so much of the land as was under the general law, and by transfers of so much of it as was under the Transfer of Land Acts. On the same day upon which the companyveyance and transfers were executed, each of the sons executed a lease for five years of the land given to him to the testarix at fair and reasonable rent. After the gifts the lands given companytinued to be in the actual physical occupation of the testarix and to be, worked by her with her other land in the same way as before the gifts. The testarix died before expiration of the leases. It was held that the land so given was chargeable with the payment of the duty payable under the Administration and Probate Acts as though part of the estate of the testarix. Issacs J. in this companytext observed The lease, however, gave to the donor possession and enjoyment of the land itself, which is a simple negation of exclusion, and brings the case within the statutory liability. It was argued that as the rent was full value, the lessees possession and occupation were number a benefit. The argument is unimportant because the lease, at whatsoever rent, prevents the entire exclusion of the donor.,, The Above reasoning of Issacs J. was approved by the Judicial Committee in the case of Clifford John Chick Anr. v. companymissioner of Stamp Duties 1 wherein the judicial Committee dealt with a case under section 102 of the New South Wales Stamp Duties Act, 192056. The aforesaid section Provided that for the purposes of the assessment and payment of death duty but subject as hereinafter provided the estate of a deceased person shall be deemed to include and companysist of the following classes of Property . . . . 2 d Any property companyprised in any gift made by the deceased at any time, whether before or after the passing of this Act of which bona fide, possession and enjoyment has number been assumed by the donee immediately upon the gift and thenceforth retained to the entire exclusion of the deceased or of any benefit to him of whatsoever kind or in any way whatsoever whether enforceable at law or in equity or number and whenever the deceased died.,, In that case a father transferred in 1934 by way of gift to one of his sons pastoral property. The gift was made without reservation or qualification or companydition. In 1935. some 17 months after the gift, the father, the donee son and another son entered into an agreement to carry on in partner-,hit the business of graziers and stock dealers. The agreement Provided, inter alia, that the father 1 1958 A. C. 435. should be the manager of the business and that his decision should be final and companyclusive in companynection with all matters relating to its companyduct that the capital of the business should companysist of the live stocks and plant then owned by the respective partners that the business should be companyducted on the respective holdings of the partners and such holdings should be used for the purposes of the partnership only that all lands held by any of the partners on the date of the agreement should be companyducted on the respective holdings of the partners and any companysideration be taken into account as or deemed to be an asset ,of the partnership, and any such partner should have the sole and free right to deal with it as he might think fit. Each of the three partners owned a property, that of the donee son being that which had father in 1934. Each partner brought into and plant, and their three properties were depasturing of the partnership stock. This to the death of the father in 1952. It was property given to the son in 1934 was. to the value of the fathers estate for the purposes of death duty. While it was number disputed that the son had assumed bona fide possession and enjoyment of the property im- mediately upon the gift to the entire exclusion of the father, it was found that he had number thenceforth retained it to the fathers entire exclusion, for under the partnership agreement the partners and each of them were in possession and enjoyment of the property so long as the partnership subsisted. The Judicial Committee had that where the question is whether the donor has been entirely excluded from the subject-matter of the gift, that is the single fact to be determined, and, if he has number been so eluded, the eye need look numberfurther to see whether his number-exclusion has been advantageous or otherwise to the donee. In the opinion of the Judicial Committee, it was irrelevant that, the father gave full companysideration for his rights as a member of the partnership to possession and enjoyment of the property that he had given to his son. Sir Garfield Barwick as he then was , who was the companynsel for the appellant in that case, pointed out that on the, respondents companystruction, if a father gave a house to his son, and later the son turned it into a hospital, and the father, having been taken ill, went into it as a paying patient, liability to duty would arise although it may be the only hospital in the area. The case, however, in view of the language of the statute was decided in favour of the Commissioner of Stamp Duties, who was the respondent in the, case. The following six points emerge from Chicks case The deceased was number in fact excluded from the property, but as a partner enjoyed rights over it. There was an initial outright gift of the property-not of the property shorn of certain rights. It was immaterial that the partnership agreement was later than the gift, since the Section required that possession and enjoyment should thenceforth be retained to the exclusion of the donor. It was also immaterial that the partnership was an independent companymercial transactions and that the donor gave full companysideration for his rights. If a donor gives a donee a freehold and the donee gives the donor a lease, even at a full rent, the donor is number excluded from the property. The question whether the partnership agreement was related or referable to the gift did number arise the question is relevant only to the second limb of the clause. It was immaterial that the donee companyld make numberbetter use of the property. Where the question is whether the donor has been entirely excluded from the subject matter of the gift that is the single fact to be determined. If be has number been so excluded, the eye need look numberfurther to see whether this numberexclusion has been advantageous or otherwise to the donee. see p. 276 of Dymonds Death Duties, 14th Ed. So far as point No. 4 is companycerned, the law was subsequently amended by section 35 2 of the Finance Act, 1959. Under that clause, the donors actual occupation of the land, enjoyment of an incorporeal right over the land or possession of the chattels is to be disregarded if for full companysideration, e.g., if he paid a full rent to the donee or occupied it under a lease for which he gave full value. There is one other principle and that relates to gift of property shorn of certain rights belonging to the partnership in which the donor is a partner. In such a case the benefit remaining in the donor is referable to the partnership agreement and number to the gift. This principle can be illustrated by reference to two cases, one decided by the Judicial Committee in 1933 and the other by this Court in 1973. The Judicial Committees decision is in the case of H. R. Munro ors. v. Commissioner of Stamp Duties, 1 while that of this Court is in the case of Controller of Estate Duty Madras v. C. R. RamaChandra Gounder. 2 In the case of H. R. Munro M who was the owner of 35.000 acres of land in New South Wales on which he carried on the business, of. a grazier, verbally agreed with his six children that thereafter the business should be carried on by him and them as partners under a partnership at will. The business was to be managed solely by M and each partner was to receive a specified share of the profits. In 1913, M transferred by way of gift by means of six registered deeds all his right title and interest in the portions of his land to each of his four sons and to trustees for each of his two daughters and t 1934 A. C. 61. 2 1973 88 I.T.R. 448. their children. The transfers were taken subject to the partnership agreement, and on the understanding that any partner companyld withdraw and work his land separately. In 1919 M and his children entered into a formal partnership agreement, which provided that during the lifetime of M numberpartner should withdraw from the partnership. On the death of M in 1929 the land transferred in, 1913 was included in assessing his estate to death duties under the Stamp Duties Act on the ground that they were gifts dutiable under section 102 of the New South Wales Stamp Duties Act, 1920. It was held that property companyprised in the transfers was the land separated from the rights therein belonging to the partnership and was excluded by the terms of section 102, sub-section 2 a , from being dutiable, because the donees had assumed and retained possession thereof, and any benefit remaining in the donor was referable to the partnership agreement of 1909 and number to the gifts. In the case of Ramachandra Gounder the deceased who was a partner in a firm owned a house property let to the firm as tenant-at-will. In August, 1953, he executed a deed of settlement under which he transferred the property let to the firm to his two sons absolutely and irrevocably and, thereafter, the firm paid the rent to the donees by crediting the amount in their accounts in equal shares. The deceased further directed the firm to transfer from his account a sum of Rs. 20,000 to the credit of each of his five sons in the firms books with effect from April 1, 1953 and he also informed them of this transfer. An amount of Rs. 20,000 was credited in each of the sons accounts with the firm. The sons did number withdraw any amount from their accounts in the firm and the amounts remained invested with the firm for which interest at 7-1/2 per cent was paid to them. The deceased companytinued to be a partner of the firm till April 13, 1957, when the firm was dissolved and thereafter he died on May 5, 1957. The question was whether the value of the house property and the sum of Rs. one lakh companyld be included in the principal value of the estate of the deceased as property deemed to pass under section 10 of the Estate Duty Act, 1953. This Court held that neither the house property number the sum of Rs. one lakh companyld be deemed to pass under section 10. The first two companyditions of the section were Satisfied because there was an unequivocal transfer of the property by a settlement deed and of the sum of Rs. one lakh by crediting the amount in each of the sons accounts with the firm which Thenceforward became liable to the sons for payment of that amount and the interest thereon. The possession which the donor companyld give was the legal possession with the circumstances and the nature of the property would admit and this the donor had given. The benefit the donor had as a member of the partnership was number a benefit referable in any way to the gift but was unconnected therewith. The present case, in our opinion, clearly falls within the purview of the dictum laid down by the High Court of Australia in the case of John Lang supra and of the Judicial Committee in the case of John Chick supra . As already mentioned, the High Court has found that the property which was the subject-matter of the gift under the deed of March 11, 1955 was the entirety of Mayavaram Lodge with all the rights and that the gift was number subject to any claim on reservation. It has also been found that on the execution of the aforesaid deed the donees assumed possession and enjoyment of the entirety of the house. On June 25, 1955 the donor took the aforesaid house on lease from the donees. These facts would show that the possession and enjoyment of Mayavaram Lodge was number subsequent to the gift retained by the donees to the entire exclusion of the donor or of any benefit to him by companytract or otherwise. Mayavaram Lodge as such shall be deemed to pass on the death of the deceased under section 10 of the Act. The case of Ramachandra Gounder supra upon which great reliance has been placed by Mr. Swaminathan can hardly be of much assistance to him because in that case the gifted property was subject to the tenancy-at-will granted to the firm Ramachandra Gounders case was thus companyered by the principle laid down in Munros case. The question of invoking that principle does number arise in the present case because the property which is the subject matter of the gift was the entirety of Mayavaram Lodge with all the rights and the same were number subject to any right in favour of a partnership. The principle to be kept in view in such cases is to examine the deed of gift and find out as to what is the subject- matter of the gift. If the gift companyprises the full ownership of the property number shorn of any right including tenancy right in favour of third parties, in such an event in order to prevent the incidence of estate duty immediate bona fide physical possession and enjoyment of the gifted property must ordinarily be assumed by the donee and retained thereafter to the exclusion of the donor. In case, however, the subject-matter of the gift is property shorn of certain rights, in that case the residue of the rights in that property would be the subject matter of the gift. In such an event it may number sometimes in the very nature of things be possible for the donee to assume physical possession and enjoyment of the property. In such cases the possession and enjoyment of the gifted property which may be assumed by the donee would only be such as is possible under the circumstances. We may mention some of the other cases to which reference has been made by Mr. Swaminathan during the companyrse of arguments. The case of Commissioner for Stamp Duties of New South Wales v. Perpetual Trustees Company Ltd. 1 related to an indenture of settlement made between the settlor and five trustees, of whom the settlor himself was one. It was declared in that settlement that the trustees should hold certain companypany shares of which the settlor was the owner and registered- holder, and which were transferred to and registered in the names of the trustees, in trust, to apply during the minority of his son the whole or any part of the income or companypus as the trustees should think fit for the maintenance, advancement or benefit of the son. The shares and the accumulations of income were transferred to the son on his attaining the age of 21 years as his absolute property. From the date of settlement the settlor never exercised any voting power in respect of the shares. The son attained the age of 21 years in 1931, when the assets companyprised in the settlement were transferred 1 1943 A. C. 425. to him. On a claim by the revenue authorities that on the death in 1921 of the settlor the subject of the settlement had formed part of the settlors dutiable estate by virtue of section 102 of the New South Wales Stamp Duties Act, the Judicial Committee held that the interest of the son under the settlement in the shares and accumulations of income was number an absolute vested interest, but was companytingent on his attaining the age of 21 years. It was further held that the property companyprised in the gift was the equitable interest in the shares, and that bona fide possession and enjoyment of the property companyprised in the gift was assumed by the donee, viz., the son, immediately upon the gift and thenceforth retained to the entire exclusion of the deceased or of any benefit to him. The shares were accordingly held number to form part of the settlors dutiable estate. The above decision can hardly be of any assistance to the respondent. Lord Russell of Killowen in the above cited case after referring to the clauses of the settlement came to the companyclusion that there was numbergift of companypus to the son except in the direction to the trustees to transfer the shares to him ,on his attaining the age of 21 years. Until he attained that age, the shares, it was held, were number the absolute property of the son and that be had only a companytingent interest therein. He was entitled to the companypus of the shares if and when he attained the age of 21 years. The Judicial Committee accordingly affirmed the decision of the High Court of Australia that the subject-matter of the gift in favour of the son under the deed of settlement was only the equitable interest in the ,shares. As against that the subject-matter of the gift in the present ,case was the full ownership right in a house without any diminution. The case of St. Aubyn Ors. v. Attorney General 1 related to certain properties held on trusts and their dispositions. It is number necessary to set out the long chain of facts of that case suffice it to say that there is numberhing in that case which runs companynter to the view we are taking in the matter. In Controller of Estate Duty v. R. Kanakasabai Ors. 2 the ,deceased executed in June 1951 separate deeds in favour of his sons, grandsons, daughter and wife, settling properties thereby severally in favour of the respective beneficiaries absolutely and with full power of alienation. The deeds in favour of the sons and grandsons provided for payment of Rs. 1,000 per annum to the settlers while the deed in favour of the daughter provided for maintenance of the settlor and his wife during their lifetime. In the deed in favour of the wife the pressed the hope that she would maintain him during the lifetime. No charge was, however, created in respect of the amounts made payable by the sons and grandsons or in respect of daughters liability to maintain the settlor and his wife. The deceased died on February 5, 1959 and the question which arose for determination was whether the whole or any part of the properties companyprised in the deeds passed on the death of the deceased under section 10 of the Act. It was held that numberinterest in the properties settled was reserved to the deceased during his lifetime or for any period after the properties were settled. The deed in favour of the wife merely expressed 1 1952 A.C. 15. 2 1973 891.T.R.251. a hope or expectation and numberenforceable right was created thereby. It was further held that in order to attract section 10 the benefit to the donor by companytract or otherwise must be referable to the property gifted and it was number sufficient that the donor derived a benefit arising from the transaction resulting in the gift. As the provisions for annual payments and maintenance made in the deeds were number charged on the properties settled, the donor companyld number be said to have retained any interest or any benefit either in the, property settled or in respect of their possession. Neither the whole number any part of the properties companyprised in those deeds was companysequently liable to be included in companyputing the value of the estate, that passed on the death of the deceased. This case can equally lie of numberassistance to the respondent because the question which arose for Determination in that case was wholly different from that which arises in the present case. Mr. Swaminathan has then pointed out that section 10 of the Act companytains the words to the extent which are number there in the statutory provisions with which the High Court of Australia and the Judicial Committee were companycerned in the cases of John Lang and Chick respectively. It is urged that the words to the extent indicate that if possession and enjoyment of the gifted property is number assumed by the donee and thenceforward retained to the entire exclusion of the donor, it would be the right of possession and enjoyment of the gifted property which shall be taken to pass on the death of the donor. The learned companynsel accordingly companycludes that what is to be taken into account in determining the principal value of the estate is the value of the right to possess-ion and enjoyment of the gifted property and number the value of the property in its entirety. We are unable to accede to this submission. It is, numberdoubt true that the words to the extent do number find a mention in the statutory provisions which were companystrued in the cases of John Lang and Chick, but that fact would number materially affect our companyclusion. The words to the extent companynote that if the donee does number assume immediate bona fide pos- session and enjoyment of a part or fraction of the gifted property and therceforward retain it to the entire exclusion of the donor or of any benefit to him by companytract or otherwise, it shall be that part or fraction of the gifted property which shall be deemed to pass on the death of the donor. Those words thus seek to restrict the liability to pay estate duty in respect of only the aforesaid part or fraction of the property. They underline the intention of the legislature that in the event of the donee number assuming bona fide possession and enjoyment of a part or fraction of the gifted property and thenceforward retaining it to the entire exclusion of the donor or of any benefit to him by companytract or otherwise, the estate duty-shall be payable number in respect of the whole of the gifted property but only in respect of that part or fraction of the gifted property of which the donee did number assume bona fide possession and enjoyment and thenceforward retain to the entire exclusion of the donor or of any benefit to him by companytract or otherwise. An illustration of this is furnished by the case of Rash Mohan Chatterjee Ors. v. Controller of Estate Duty West Bengal. 1 1 1964 52 I.T.R. 1 Estate Duty part . In that ease the deceased settled on July 1, 1954 certain premises in trust for the absolute use and benefit of his two sons in equal shares during their lives and upon the death of one or both the sons for the use of the wife or wives of such son or sons with remainder to the, male children of the two sons in equal shares per stripes. The upper portion of the premises was leased to the deceased himself on a rent of Rs. 150 per month for a term of five years with effect from the date of settlement. The lease expired on June 30, 1959 but the, deceased companytinued to occupy that part of the premises for a few days thereafter, until his death on July 11, 1959. The question which arose for determination was whether and to what extent estate duty was chargeable in regard to those premises under section 10 of the Act. It was held that the lease gave to the donor possession and enjoyment of the property itself and the case fell within the statutory charge under section 10. As, however, section 10 provided that such property was chargeable only to the extent that the deceased was number excluded, estate. duty was payable by the accountable persons only on that portion of the premises which was in the occupation of the deceased as a lessee. The High, Court in the judgment under appeal mentioned that Mayavaram Lodge was a bundle of rights of which possession and enjoyment formed a part. We may in this companytext observe that it was the ownership of the above property which companystituted the bundle of rights. The view urged on behalf of the respondent and accepted by the High Court that the estate duty is payable only in respect of the value of the right to possession and enjoyment in the hand of the ,deceased as a lessee of Mayavaram Lodge runs, in our opinion, companynter to the plain language of section 10 of the Act. What the section companytemplates is that it would be the property taken under the gift which shall be deemed to pass on the donors death if the bona fide possession and enjoyment thereof was number immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by companytract or otherwise. There is numberhing in the section to indicate that if the donee does number immediately assume bona fide possession and enjoyment. of the gifted property and thenceforward retain it to the entire exclusion of the donor, in such an event the right only to possession or enjoyment of the property shall be deemed to pass on the death of the donor. Apart from the case of Rash Mohan Chatterjee supra to which we have already made a reference, the stand taken on behalf of the respondent cannot be accepted in the face of the decision of this Court in the case of George Da Costa supra . The deceased in that case had purchased a house in the joint names of himself and his wife in 1940. They made a gift of the house to their sons in October 1954. The document recited that the donees had accepted the gift and that they bad been put in possession. The deceased died on September 30, 1959. The Controller included the value of that house in the principal value of the estate that passed on the, deceaseds death under section 10 of the Estate Duty Act, 1953. The Board found that, though the deceased bad gifted the house for four years before his death, he still companytinued to stay in the house till his death as the head of the family and was also looking after the affairs of the house. It was further found that the property was purchased entirely out of the funds of the deceased.-and though the property stood in the joint names of the deceased and his wife, the wife was merely a name-lender and the entire property belonged to the deceased. It was held by this Court that the value of the property was companyrectly included in the estate of the deceased as property deemed to pass on his death under section 10. If the view propounded on behalf of the respondent were to be accepted, in that case the property which passed on the death of the deceased in the case of George Da Costa companyld only be the value of the right to possession. in our opinion, the stand taken on behalf of the respondent in this respect is clearly untenable. Lastly, it has been argued on behalf of the respondent that we should remand the case to find as to whether the deed of March 1 1, 1955 companystituted deed of partition. We are unable to accede to this submission. The High Court has proceeded upon the basis that the property in question was gifted by the deceased in favour of his sons as a result of that deed. The Board of Direct Taxes found on reference to the aforesaid deed that all the properties mentioned therein were the sell-acquired properties of the deceased and there was numberhing in any part of the deed to show an intention on the part of the deceased to treat them as properties belonging to the joint family. It was also found that there was numberevidence of any clear intention of the deceased to waive his separate rights. Accordingly, the Board came to the companyclusion that the said document was number a partition deed relating to the joint family property. In the circumstances, we find numbersufficient ground for remanding the case. As a result of the above we accept the appeal, discharge the answer given by the High Court to the question referred to it and answer that question in favour of the revenue and against the accountable person. Our answer is that on the facts and in the circumstances of the case the entire value of the property known as Mayavaram Lodge is liable to be included in the principal value of the estate of the deceased as property deemed to have passed on his death. The appellant shall be entitled to the companyts of the appeal.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1326 of 1973. From the Judgment Order datey the 31st July, 1973 of the Himachal Pradesh High Court in Election Petition No. 10 of 1972. Yogeshwar Prasad, S. K. Bagga and Mrs. S. K. Bagga, for the appellant. Hardyal Hardy, S. K. Mehta, K. R. Nagaraja and M. Qumaruddin, for the respondents. The Judgment of the Court was delivered by ALAGIRISWAMI, J. Elections were held in March 1972 to the Himachal Pradesh State Legislative Assembly. The 1st respondent was elected to that Assembly from the Shahpur Constituency in Kangra District. An election petition was filed by the appellant, a voter in that companystituency, on the ground, among others, that at the time of filing of numberinations the 1st respondent was holding an office of profit under the Government of Himachal Pradesh and as such was disqualified for election under Article 191 1 a of the Constitution. The petition having been dismissed by the High Court of Himachal Pradesh this appeal has been filed against the order of dismissal. The only ground which is relevant for the purpose of decision of this appeal and which was urged before this Court, was that as the Ist respondent was holding an office of profit under the State Government lie was disqualified under Article 191 1 a of the Constitution to be elected as a member of the State Legislative Assembly. The 1st res- pondent was numberinated Chairman of the Board of School Education of Himachal Pradesh in the year 1969 by the Himachal Pradesh Government under the provisions of the Himachal Pradesh Board of School Education Act, 1968. At all relevant times he was holding that post. Under s. 18 of the Act the Chairman is numberinated by the Government. The Board is companystituted by the Government under S. 3 of the Act. Though there is numberhing said in the Act about the authority companypetent to remove the Chairman from his office it may be assumed for the purposes of this case that the Government was companypetent to do so. There can be very little dispute and indeed it is number disputed that the office of the Chairman of the Board is an office under the State Govern- ment. The only question is whether it is an office of profit. Admittedly, the 1st respondent was number in receipt of a salary. The order appointing him to the post of Chairman makes it clear that he was appointed only in an honorary capacity. The fact that he was entitled to receive travelling and daily allowance in the companyrse of the discharge of his duties as, Chairman would number be a disqualification because of the provisions of section 3 m of the Himachal Pradesh Legislative Assembly Members Removal of Disqualifications Act, 1971, and this is number disputed. What is, however, companytended on behalf of the appellant is that though the 1st respondent might number have been in receipt of a salary, the post itself carried a scale of pay and therefore it is an office of profit which the 1st respondent was holding. We are unable to agree. The question is whether the holding of the office has resulted in any profit to the holder of that office, however small that profit may be. We have discussed this question at great length in the judgment delivered by us today in C. A. No. 2365 of 1972. In the absence of any profit accruing to the 1st respondent as a result of the holding of the office of Chairman it cannot be said that he was holding an office, of profit. This is number even a case where the Chairman was appointed to an office and a salary was provided for him by the order of appoint- ment Or he was entitled to a salary as a result of the appointment a he gave up his right to the salary. The order of appointment itself was one made in an honorary capacity. There is a further fact which shows that the companytention of the appellant that the post carried a scale of pay is number companyrect. This companytention that the-post carried a scale of pay is based on Resolution No. 12 passed by the Board on January 17, 1970 fixing a salary of Rs. 16001800 per month for the Chairman. We are satisfied that the Board was number companypetent to fix a scale of pay for the Chairman by a resolution. We are unable to accept the companytention on behalf of the appellant that section 10, clause 18 of the Himachal pradesh Board of School Education Act, 1968 enables the Board to fix the scale of pay of the Chairman. The fixing of the scale of pay of the Chairman cannot be said to be an act ancillary to any of the purposes mentioned in cls. 1 to 17 of the section or to be one for the purpose or carrying into effect the provisions of the Act. Though under section 17 the Chairman is also called an officer of the Board, he is under section 19 the administrative head of the Board. He is to call the meeting of the Board and preside over it and is entitled in any emergency that requires an immediate action to take such action as he deems necessary. The Secretary to the Board is also appointed by the Government upon such companyditions and for such period as the Government may deem fit under section 22. We presume that this section enables the Government to fix his scale of pay also. Under section 23 the Government is entitled to appoint Deputy Secretaries and Assistant Secretaries to the Board on such companyditions and for such periods as the Government may deem fit, which as in the case of the, Secretary would include the power to fix their scale of pay. This is clear from the fact that sub-s. 4 of s. 23 lays down that the qualifications, companyditions of service and the scale of pay of officers and servants of the Board, other than Deputy Secretary, Assistant Secretary and Secretary would be determined by the Regulations. This sub-section when it enables the Board to make regulations regarding qualifications, companyditions of service and scales of pay of officers and servants of the Board other than the Deputy Secretary and Assistant Secretary, applies only to the cases of officers lower in rank than These officers mentioned. The Dresence of the word officer in that sub-section cannot be held to refer to the Chairman also merely because he is also called an officer of the Board under section 17. It would be curious if the Act while companyferring on the Government the power to specify the companyditions of service including the scales of pay of Deputy Secretary, Assistant Secretary and Secretary, it had left to the Board to determine the scale of pay of the Chairman by clubbing him 7-L319SupCI/75 along with officers and servants of the Board lower in rank than even the Assistant Secretary. We are clearly of opinion that section 23 4 does number enable the Board to determine the scale of pay of the Chairman. Even in the case of other officers and servants the scale of pay is to be determined by Regulations. The first Regulations were made by the Government under section 27 and in the Regulations so made there is numberprovision for the scale of pay of the Chairman of the Board. Nor have we been shown any regulation made by the Board fixing the scale of pay of the Chairman. A mere resolution of the Board, which is companycerned with the carrying on of the day-to-day administration of the Board, cannot have the effect of fixing the scale of pay of the Chairman. We do number think that section 26 2 i , which relates to the power of the Board to make Regulations for the appointment of officers, clerks and other servants of the Board and the companyditions of their service can companyer the Chairman because there is numberquestion of the Board being companypetent to deal with the appointment or companyditions of service of the Chairman. Clause p of sub-s. 2 of section 26 speaks of the emoluments and allowances of the members of the Board and all its Committees. This clause when it refers to members of the Board cannot refer to the Chairman. The distinction between the Chairman and the members is brought out in section 4 which says that the Board shall companysist of the Chairman numberinated in accordance with section 18 and of the following members and then goes on to enumerate the members. Though generally speaking the pay of a person can be said to be his emoluments, the emoluments and allowances referred to in cl. p cannot refer to the scale of pay. The Act does number companytemplate any scale of pay for members. On a close reading of the provisions of the Act we are satisfied that there is numberprovision in the Act enabling the Board to fix a scale of pay for the Chairman by a resolution. Therefore, it cannot be said that the resolution has validly fixed a scale of pay for the Chairman and, therefore, it cannot be said that the post of the Chairman carries with it a scale of pay. In any case as far as the last respondent is companycerned the test for deciding whether he holds an office of profit is very simple. It is whether he can sue for or otherwise claim the scale of pay fixed by the resolution of the Board. In the face of his order of appointment such a claim would number be upheld. We held, therefore, in agreement with the High Court that the Ist respondent was number holding an office of profit at the time when he filed his numberination or when he was elected. The appeal is, therefore, dismissed with companyts.

Case appeal was rejected by the Supreme Court

ORIGINAL APPELLATE JURISDICTION Writ Petition No. 2371 of 1974. Petition under Article 32 of the Constitution. K. Jain, for the petitioner. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by BHAGWATI, J. This petition is directed against an order of detention dated 30th March, 1973 made by the District Magistrate, Nadia under section 3 2 1 of the Maintenance of Internal Security Act, 1971. The order of detention recited the satisfaction of the District Magistrate that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order it was necessary to detain him and directed that the petitioner be accordingly detained. Pursuant to the order of detention, the petitioner was arrested on 3rd April, 1973 and at the time of his arrest the grounds of detention dated 30th March, 1973 were served upon him together with their translation in Bengalee language. The grounds of detention started with a recital that the petitioner was being detained on the ground that he had been acting in a manner prejudicial to the maintenance of public order and set out one incident of dacoity companymitted by him on the basis of which the District Magistrate had reached his subjective satisfaction in regard to the necessity of detaining the petitioner. The usual ritual prescribed by the Act was thereafter followed and the order of detention was approved, by the State Government, the representation of the petitioner was companysidered and rejected, the case of the petitioner was placed before the Advisory Board and on receipt of the opinion of the Advisory Board, the order of detention was companyfirmed by the State Government. The present petition was filed by the petitioner from jail challenging the validity of this detention. There were several grounds urged before us on behalf of the petitioner in support of the petition, but it is number necessary to refer to all of them since there is one ground which is, in our opinion, sufficient to invalidate the order of detention. That ground rests on an averment made by the District Magistrate in paragraph 4 of the affidavit filed by him in reply to the petition. The District Magistrate stated as follows in paragraph 4 of his affidavit-in-reply I say that I passed the said order of detention after being bonafide satisfied from the materials on record as stated in the grounds of detention and so surrounding circumstances that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of Public Order it was necessary to detain him under the provisions of the Maintenance of Internal Security Act, 1971-I further state that having regard to the nature of the act and the manner in which it was companymitted by the detenu as disclosed in the rounds furnished to the detenu and effect thereof on the public order I was bonafide satisfied that the said act was sufficient for making the said detention order. I was also further satisfied that if the detenu petitioner is number detained under the said Act he is likely to act in a manner prejudicial to the maintenance of supplies and services essential to the companymunity. It will be seen from this statement made by the District Magistrate that from the material on record he was number only satisfied that-was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, but was also satisfied that if the petitioner was number detained, he would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the companymunity. The argument of the petitioner was that there was numbernexus at all between the grounds of detention companymunicated to the petitioner and the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity and the order of detention based inter alia on such subjective satisfaction was invalid. Now, there can be numberdoubt that if the order of detention was based on the subjective satisfaction that the petitioner would be likely. to act in a manner prejudicial to the maintenance of supplies and services essential to the companymunity, it would be bad because the incident of dacoity in a third class companypartment of a running train set out in the grounds of detention would be wholly irrelevant to support such subjective satisfaction. It would be impossible for any rational human being to say that an incident of dacoity in a third class companypartment of a running train where cash money was stolen is such an act that from it an inference can be raised that the person companymitting the dacoity would be likely to act in a manner prejudicial to the maintenance of supplies and services ,essential to the companymunity. The respondent realising the seriousness of this difficulty in its way, companytended that the averment in paragraph 4 of the affidavit-in-reply that the District Magistrate was satisfied that if the petitioner was number detained, he would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the companymunity had crept in through mistake and it should-not be taken into account by the Court in adjudging the validity of the order of detention. The argument of the respondent was that the only subjective satisfaction on which the order of detention was founded was that it was,necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order as re- cited in the order of detention and the grounds of detention and it was number companyrect to state that the District Magistrate was also subjectively satisfied that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the companymunity and had on that account made the order of detention. We do number think we can accept this companytention of the respondent. It must be remembered that the affidavit-in-reply has been made by the District Magistrate himself and we must presume that the District Magistrate must have made the statements companytained in the affidavit-in- reply with the sense of responsibility which his high office necessarily carries. If the District Magistrate was also number subjectively satisfied in regard to the likelihood of the petitioner to act in a manner prejudicial to the maintenance of supplies and services essential to the companymunity, he would number have made such an averment in paragraph of his affidavit-in-reply. Ordinarily when an averment is made by a high officer like the District Ma- gistrate in an affidavit which is made on oath, the Court is inclined to accept the averment as companyrect and the burden lies heavy on the party who alleges to the companytrary. We cannot, therefore, lightly accept the submission of the respondent that the District Magistrate has made an incorrect statement in paragraph 4 of his affidavit-in- reply. The position might have been different if the District Magistrate himself had made a subsequent affidavit stating on oath that he had made a mistake in the earlier affidavit-in-reply and explained the circumstances under which he came to make such mistake. The Court would then have examined the explanation given by the District Magistrate and if satisfied, as regards the genuineness of the mistake, the Court would have accepted the subsequent statement of the District Magistrate and ignored the earlier averment made in the affidavit-reply. But here there is numberaffidavit made by the District Magistrate companyfessing his mistake in making the earlier averment in paragraph 4 of the affidavit-in-reply. We must, therefore, accept the averment made by the District Magis- 7 L 319 Sup CIJ75 trate in paragraph 4 of his affidavit-in-ireply as companyrect and proceed on the basis that the order of detention was based number only on his subjective satisfaction that the petitioner would be likely to act in a manner prejudicial to the maintenance of public order but also on his further subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity. And if that be so, the order of detention must be held to be invalid since the incident of dacoity in a third class companypartment of a running train for companymitting theft of money which companystituted the solitary ground of detention was wholly irrelevant and the subjective satisfaction of the District Magistrate that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the companymunity companyld number be founded upon it and was hence-colourable and numbersatisfaction at all. We, therefore, allow the petition and make the rule absolute and direct that the petitioner be set at liberty forthwith.

Case appeal was accepted by the Supreme Court

ORIGINAL APPELLATE JURISDICTION Writ Petition No. 448 of 1974. Petition under Article 32 of the Constitution. P. Singh. Rajesh Prasad Singh and R. K. Jain for the Petitioner P. Singh for the Respondents. The Judgment of the Court was delivered by BHAGWATI, J. This is yet another instance where this Court is reluctently companypelled to set free from detention a person believed to be an economic offender. We had occasion to point out in an earlier Judgment 1 that economic offenders are a menace to the society and it is necessary in the interest of the economic well being of the companymunity to mercilessly stamp out such pernicious, antisocial and highly reprehensible activities as boarding, black-marketing and profiteering which are causing havoc to the economy of the companyntry and inflicting untold hardships on the companymon man and the Court would, therefore, naturally be loath to interfere with an order of detention which is calculated to put an economic offender out of action by way of social defence. But here in the present case the attempt to curb this social menace has been frustrated and set at naught by want of due care, promptness and attention on the part of the State Government and the Court is left with numberchoice but to strike down the detention of the petitioner. If only the State Government had properly applied its mind to the companyrect legal position as laid down by various decisions of this Court and shown greater companycern and anxiety while exercising the power of preventive detention, the infirmity vitiating the detention of the petitioner companyld have been easily avoided. We hope and trust that the State Government will be more careful in the future so that persons Who disrupt the social and economic life of the companymunity are effectively prevented from carrying on their nefarious activities. The petitioner is the karta of a Joint Hindu family and as such karta he runs a shop for selling medicines and drugs under the name of Popular Pharmacy in Ranchi. On 22nd April, 1974, at about 8 p.m. one Vijoy Shankar accompanied by R. N. P. Dube, Executive Magistrate, went to the shop of the petitioner and asked for certain medicines according to a prescription made out by a House Surgeon of the Medical College, Ranchi. The petitioner, who was present at the shop, asked Vijoy Shanker and R. N. P. Dube to companye at 8.30 p.m. and stated that he would then be able to supply the medicines to them. Vijoy Shankar and Dube accordingly visited the shop again at 8.30 p.m. when the petitioner supplied most of the medicines mentioned in the prescription. Amongst the medicines so supplied were two ampoules of pathedine and one bottle of ether. The petitioner charged for these two ampoules of pathedine Rs. 3/- as against the price of 90 paise per empoule shown in the current price list and for the bottle of ether, which companytained 450 grms., he charged Rs. 20/as against the price of Rs. 6.85 shown in the current price list. This Dwarika Prasad Sahu V. State of Bihar, W. P. 346 of 1974, decided on 12-11-1974. was in companytravention of paragraph 15 2 of the Drug Price Control Order, 1970. The petitioner also refused to issue cash memo in respect of the two ampoules of pathedine and one bottle of ether supplied by him, though he was bound to do so under paragraph 22 of the Drug Price Control Order, 1970. When asked by Vijoy Shankar and R. N. P. Dube to give his name, the petitioner falsely and deliberately gave his name as Sailendra Kumar Gupta though his real name was Satya Deo Prasad Gupta. It appears that on the following day, that is, 23rd April, 1974, a group of persons claiming to be representatives of a body known as Nao Nirman Samiti came to the petitioners shop, forcibly took him out and after placing a garland of shoes around his neck and affixing a placard displaying the slogan Main black marketeer hun. Chharupia ka ether bees rupia men bechta hun-Ropular Medical, Bariat-u, paraded him through the streets in a rickshaw with a rope tied around his waist. The New Republic, a local newspaper, published in its issue dated 27th April, 1974, a photograph of the petitioner as he was being paraded in this procession. This incident exemplied the wrath and anger of the people against the petitioner as they felt that he was black marketing and profiteering in such essential companymodities as medicines and drugs. The District Magistrate, Ranchi thereafter issued an order of detention under section 3 2 iii of the Maintenance of Internal Security Act, 1971 directing that Sailendra Kumar Gupta that being the name given by the petitioner to Vijoy Shankar and R. N. P. Dube at the time when they made purchases from him-should be detained as it was necessary so to do with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the companymunity. This order of detention had, however, to be cancelled since the real name of the petitioner was Satya Deo Prasad Gupta and number Sailendra Kumar Gupta as mentioned in the order of detention. The District Magistrate then issued another order dated 11th June, 1974 of detention under section 3 2 iii of the Act on the ground that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the companymunity. Pursuant to the order of detention the petitioner was arrested on 11th July, 1974 and at the time of his arrest, grounds of detention were served on him. These grounds related to the incident of 22nd April, 1974 when the petitioner had sold two ampoules of pathedine and one bottle of ether at prices exceeding those shown in the current list of prices in companytravention of paragraph 15 2 of the Drug Price Control Order, 1970 and refused to issue cash memo in respect of these sales though required to do so under paragraph 22 of that order and it was on the basis of these grounds of detention that the Dis- trict Magistrate had arrived at the requisite subjective satisfaction leading to the making of the order of detention. The District Magistrate, immediately after making the order of detention, reported the fact to the State Government and the order of detention was unproved by the State Government within the period prescribed by section 3, sub-section 3 . The State Government thereafter placed the case of the petitioner before the Advisory Board on 9th August, 1974 as required by section 10. It appears that the representation of the petitioner against the. order of detention was number received until, this date and it companyld number, therefore, be forwarded to the Advisory Board at the time when the papers relating to the case of the petitioner were forwarded to it. Subsequently, however, on 16th August, 1974 the representation of the petitioner was received and the State Government immediately sent it to the Advisory Board for its companysideration. The Advisory Board, after companysidering the grounds of detention, the other material placed before it and the representation of the petitioner made a report dated 20th August, 1974 stating that in its opinion there was sufficient cause to detain the petitioner. The State Government should have immediately thereafter proceeded to companysider- the representation of the petitioner and decided whether or number to companyfirm the order of detention under section 12, sub-section 1 but numbersuch action was taken by the State Government for some time. The petitioner, therefore, filed the present petition challenging. the validity of the detention. The only ground urged by Mr. D. P. Singh, learned companynsel appearing on behalf of the petitioner, against the validity of the detention was that the State Government had failed to companysider the representation of the petitioner and to make the order of companyfirmation within a reasonable time and the detention of the petitioner had, therefore. become invalid. Indeed Mr. D. P. Singh companyld number advance any other ground, since it was apparent that, if the allegations companytained in the grounds of detention were true, the petitioner was a blackmarketeer and profiteer and it would number be open to this Court in the exercise of its limited jurisdiction in cases of this kind to enquire into the truth or falsity of the grounds of detention. When the petition originally came up for hearing before a Bench of this Court companysisting of Chandrachud, J, and one of us Bhagwati, J. on 11th November. 1974. the attention of the Court was drawn to a statement made by the Deputy Collector, Ranchi in paragraph 15 of his affidavit in reply that the State Government fully, rightly and sympathetically companysidered the petition of the petitioner. The reference here obviously was to the representation of the petitioner, because paragraph 26 of the petition to which this was a reply alleged that the State Government had number so far companysidered the repre- sentation of the petitioner resulting in a clear violation of the provisions of the Act. This statement was made in the affidavit in reply which was sworn by the Deputy Collector, Ranchi on 14th October, 1974. Now, ordinarily the Court would have acted on this statement made by the Deputy Collector, Ranchi on oath, but numberdate was given in the affidavit. in reply as to when the representation of the petitioner was. companysidered and rejected by the State Government and the Court, therefore. adjourned the hearing of the petition and directed Mr. U P. Singh, learned Advocate appearing on behalf of the Government of Bihar to produce the original record of the case so that the Court companyld satisfy itself that everything was done. according to law. L346 Sup./75 The petition thereafter came up for hearing before us on 18th November. 1974. Mr, U. P. Singh on behalf of the Government of Bihar placed before us the record of the case and on perusing the record. we found that the order rejecting the representation of the petitioner and companyfirming the order of detention was made by the Government as late as 15th November, 1974 after the petition was adjourned to enable Mr. U. P. Singh to produce the original record before us- This was a startling revelation as it showed undoubtedly that the statement made by the Deputy Collector, Ranchi in paragraph 15 of his affidavit in reply that the State Government had fully, rightly and sympathetically companysidered the representation of the petitioner prior to the date of the affidavit in reply, that is before 14th October, 1974, was patently false and misleading. It is a matter of regret that a highly placed officer like the Deputy Collector should have made such a false and misleading statement on oath with a view to wresting a favourable decision from the Court. This only shows how cavalierly and irresponsibly the executive authorities in the present case seem inclined to view questions companycerning personal liberty and betrays companyplete lack of candour and frankness with the Court. No words can be too strong to companydemn such irresponsible attitude. We have already referred to the original record of the case and that clearly shows that though the representation of the petitioner was received by the State Government on 16th August, 1974 and the Advisory Board, after companysidering the case of the petitioner and taking into account his representation, gave its opinion on 20th August, 1974, the State Government slept over the matter for a period of about three months and companysidered the representation of the petitioner only on 15th November, 1974 after the hearing of the petition had been adjourned on 11th November, 1974. There was obviously inordinate delay on the part of the State Government in companysidering the representation of the Petitioner. There is numberexplanation for this inordinate delay offered by the State Government. We asked Mr. U. P. Singh whether he was in a position on behalf of the State Government to offer an explanation for this apparently unreasonable delay. but he companyfessed his inability to do so. We fail to see why the State Government should number have been able to companysider the representation of the petitioner for about three months. This only shows callous disregard of the companystitutional provision which requires that the representation of a detenu must be companysidered without avoidable delay. The companystitutional requirement of affording an opportunity to a detenu to make a representation against the order of detention is intended to provide a safeguard against improver or unjustified exercise of the power of detention and it is for this reason that the decisions of this Court have always insisted that the representation of the detenu should be companysidered promptly and without undue delay. so that if it is found by the detaining authority, ,on companysidering the representation. that the grounds on which the order of detention has been made are incorrect or number-existent or irrelevant, the detaining authority itself may cancel the order of detention and the detenu may be freed from unjustified detention at the earliest opportunity. Here, there was absolutely numberjustification--at least numbere companyld be pointed out-why the State Government companyld number companysider the representation of the petitioner for about three months. It is number well settled by the decision of a Bench of five Judges of this Court in Jayanarayan Sukul v. State of West Bengal 2 that where there is inordinate delay on the part of the State Government in companysidering the representation of a detenu and numbersatisfactory explanation is offered by the State Government for such delay, the companystitutional obligation is violated and the detention is rendered invalid. Ray, J., as he then was, speaking on behalf of the Court pointed, out in that case In the present case, the State of West Bengal is guilty of infraction of the companystitutional provision number only by inordinate delay of the companysideration of the representation but also by putting off the companysideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is numberexplanation for this inordinate delay. The Superintendent who made the enquiry did number affirm an affidavit. The State has given numberinformation as to why this long delay occurred- The inescapable companyclusion in the present case is that the appropriate authority failed to discharge its companystitutional obligation by inactivity and lack of independent judgment. Therefore. on this ground alone, the detention of the petitioner must be held to be invalid. There is also another ground which must result in invalidation of the detention of the petitioner. The law is number well settled as a result of a decision of this Court in S. Roy v. The State of West Bengal 2 that on a proper interpretation of Art. 22, clause 4 of the Constitution, the companyfirmation of the detention with a view to companytinue it beyond a period of three months, on receipt of the opinion of the Advisory Board, must be within three months from the date of detention. The companyfirmation of the detention must, therefore. follow within three months from the date of detention. Here, in the present case, the petitioner was detained pursuant to the order of detention on 11th July, 1974 and the order companyfirming the detention should, therefore, have been passed at the latest on 11th October. 1974. But the State Government, though it received the opinion of the Advisory Board as far back as 20th August, 1974, did number bestir itself for well nigh three months and it was only on 15th November, 1,974 that it suddenly woke up to make the order of companyfirmation. The order of companyfirmation was clearly made beyond three months from the date of detention and there is, therefore, numberescape from the companyclusion that the order of detention must be held to be invalid. We may point out that the decision of this Court in D. S. Roy v. The State of West Bengal 2 was given as far back as 1 1970 3 S.C.R. 225. A. 1. R. 1972 S. C. 1924. 7th December, 1971 and Yet the State Government in the present case acted in companytravention of the companystitutional mandate enunciated and explained in that decision. Taking a charitable view of the matter we may presume that the State Government was number aware of this decision. But-that can hardly be an excuse for violation of the law. We think it would be desirable if some machinery is set up by the Government of India or the State Government by which the decisions of this Court in cases of preventive detention are brought to the numberice of the executive authorities as soon as they are handed down so that the executive authorities know what is the law laid down by this Court and they can companyform to it. We are thus left with numberchoice but to hold the detention of the petitioner invalid. We, accordingly, allow the petition and make the rule absolute and direct that the petitioner should be set at liberty forthwith.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil appeal No. 1553 N of 1970. From the Judgment Order dated the 10th September, 1969 of the Mysore High Court in I.T.R.C. No. 7 of 1968. T. Desai and Vineet Kumar, for the, appellant. N. Sachthey, for the respondent. The Judgment of the Court was delivered by KHANNA, J.-This appeal on certificate is against the judgment of the Mysore High Court whereby the High Court answered the following question referred to it under section 256 1 of the Income-tax Act, 1961 hereinafter referred to as the Act in the affirmative in favour of the revenue and against the assessee-appellant Whether on the facts and in the circumstances of the case the assessee, was rightly assessed in the status of an individual for the assessment year 1964-65 ? Krishna Prasad assessee-appellant along with his father Krishnaswami Naidu and brother C. Krishna Kumar formed a Hindu undivided family up to October 30, 1958, when there was a partition between Krishnaswami Naidu and his two sons. In the said partition the assessee got some house properties and vacant sites. The partition was recognised by the department and an order under section 25-A of the Indian Income-tax Act, 1922 was passed recognising the partition with effect from November 1, 1958. On the date of partition and also during the relevant period, i.e., the year ending on March 31, 1964, the assessee was unmarried. Up to the year 1963-64 the assessee was assessed in the status of an individual. For the assessment year 1964-65 the assessee filed a return showing his status as an individual. In the Course, however, of the assessment proceedings for the assessment year 1964-65 the assessee claimed that he should be assessed in the status of a Hindu undivided family. The income-tax officer did number accept the claim of the assessee and held that his status was that of an individual. The order of the income-tax officer was affirmed on appeal by the Appellate Assistant Commissioner and on further appeal by the Appellate Tribu- nal. At the instance of the assessee, the question reproduced above was referred to the High Court. The High Court, as already mentioned, agreed with the departmental authorities and answered the question against the assessee. The short question which. arises for determination, as would appear from the resume of facts given above, is whether an unmarried male Hindu on partition of a joint Hindu family can be assessed in the status of a Hindu undivided family even though numberother person besides him is a member of the alleged family. This Court in the case of Gowli Buddanna v. Commissioner of Income-tax Mysore 1 refrained from expressing an opinion on the point whether a Hindu undivided family pay for the purposes of the Indian Income- tax Act be treated as taxable entity when it companysists of a single member-male or female. After hearing the learned companynsel for the parties, we are of the opinion that the question which arises for determination in this appeal should be answered against the assessee. Section 4 of the Act provides for the charging of income-tax on the total income of every person subject to the companyditions prescribed in that section. Person has been defined in section 2 31 of the Act and includes, inter alia, an individual and a Hindu undivided family. The inherent fallacy of the case set up on behalf of the asses- see-appellant in our opinion, is that according to him a single individual can companystitute a Hindu undivided family and be assessed as such. Family companynotes a group of people related by blood or marriage. According to Shorter Oxford English Dictionary, 3rd Ed. the word Family means the group companysisting of parents and their children, whether living together or number in wider sense, all those who are nearly companynected by blood or affinity a persons children regarded companylectively those descended or claiming descent from a companymon ancestor a house, kindred, lineage a race a people or group of peoples. According to Aristotle Politics 1 , it is the characteristic of man that he alone has any sense of good and evil, or just and unjust, and the association of living beings who have this sense make a family and a State. It would follow from the above that the word Family always signifies a group. Plurality of persons is an essential attribute of a family. A single person, male or female, does number companystitute a family. He or she would remain, what is inherent in the very nature of things, an individual, a lonely wayfarer till per chance he or she finds a mate. A family companysisting of a single individual is a Contradiction in terms. Section 2 31 of the Act treats a Hindu undivided family as an entity distinct and different from an individual and it would, in our opinion, be wrong number to keep that difference in view. It is well settled that a Hindu joint family companysists of all persons lineally descended from a companymon ancestor and includes their wives and unmarried daughters. A Hindu companyarcenary is a much narrower body than the joint family it includes only those persons who acquire 1 1966 60 T.T.R, 293. by birth an interest in the joint or companyarcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity has numberforce. Under Hindu law a joint family may companysist of a single male member and widows of deceased male members. The expression Hindu undivided family in the Income-tax Act is used in the sense in which a Hindu joint family is understood under the various schools of Hindu law see Attorney-General of Ceylon Ar. Arunachalwn Chattiar Ors. 1 and Gowli Buddana v. Commissioner of Income-tax Mysore supra . In the case of Commissioner of Income-tax Madras v. Ram Ar. Ar. Veerappa Chettiar 2 this Court observed that under the Hindu law it is number predicated of a Hindu joint family that there must be a male member. It was accordingly held that so long as the property which was originally of the joint Hindu family remains in the hands of the widows of the members of the family and is number divided among them, the joint family companytinues. One thing significant which follows from the above is that the assessment in the status of a Hindu undivided family can be made only when there are two or more members of the Hindu undivided family. The share which a companyarcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the companyarcener dies without leaving male issue, it passes to his heirs by succession see p. 272 of Mullas Principles of Hindu Law 14th Ed . A person who for the time being is the sole surviving companyarcener is entitled to dispose of the companyarcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten see p. 320 ibid. . In view of the above it cannot be denied that the appellant at present is the absolute owner of the property which fell to his share as a result of partition and that he can deal with it as he wishes. There is admittedly numberfemale member in existence who is entitled to maintenance from the above mentioned property or who is capable of adopting a son to a deceased companyarcener. Even if the assessee-appellant in future intro- duces a new member into the family by adoption or otherwise, his present full ownership of the property cannot be effected. Such a new member on becoming a member of the companyarcenary would be entitled to such share in the property as would remain undisposed of by the assessee. In order to determine the status of the assessee for the purpose of income-tax, we have to look to the realities as they exist at present and it would number be companyrect to project into the matter future possibilities which might or might number materalise. This would indeed 1 1958 34 I.T.R. 42. 2 1970 76 I.T.R. 467. amount to speculation and the same is number permissible excursions to the realm of speculation may be legitimate and justified when one is engaged in the study of philosophy and metaphysics they are wholly unwarranted when one is dealing with the mundane subject of the status of the assessee for the purpose of the income-tax assessment. For this Purpose we have to look to facts as they exist and emerge from the record and number to what they may or may number be in future. As things are at present in the instant case, there can in our view he hardly any doubt that the assessee is an individual and number a family. Mr. Desai on behalf of the appellant has referred to the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil. 1 As companysiderable reliance has been placed upon that case, it may be necessary to deal with that case, at some length. The dispute in that case was between parties governed by Hindu law and related to watan lands, The pedigree table of the parties was as under DHULAPPA Punnappa Hanamantappa d. 1901 Gundappa Narayan d. 1902 d. 1908 Ramchandra Bhikkappa d. 1905 Gangabai Keshav Anant Shankar Hanmant Babu d. 1917 adopted defendant 1930 plantiff Dhulappas sons Punnappa and Hanumantappa separated in 1857. The watan lands in dispute went to the share of Punnappa, Narayan, one of the sons of Punnappa, Separated from him in his lifetime. Thereafter Punnappa died in 1901. Bhikappa died in 1905, leaving his widow Gangabai and son Keshav. Narayan died issueless, in 1908 leaving two plots of watan lands. On the remarriage of the widow of Narayan, those two plots devolved by inheritance on Keshav. Keshav died unmarried in 1917. At that time his nearest heir was his companylateral Shankar defendant. Shankar obtained possesion 1928 of the land in dispute, which had been left by Keshav A.I.R. 30 1943 P. C. 196. after bringing a suit, against Gangabai. In 1930 Gangabai adopted Anant plaintiff as a son to her deceased husband Bhikappa. In 1932 Gangabai as the next friend of Anant brought suit for possession of the land in dispute against Shankar. The trial companyrt decreed the suit. On appeal the High Court dismissed the suit for possession. On further appeal the Judicial Committee restored the decree of the trial companyrt. It was held by the Judicial Committee that the, power of a Hindu widow to adopt does number companye to an end on the death of the sole surviving companyarcener. Neither does it depend upon the vesting or divesting of the estate, number can the right to adopt be defeated by partition between the companyarceners. The Judicial Committee also held that on the death of a sole surviving companyarcener a, Hindu joint family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member- The Judicial Committee further held that an adopted son can claim as preferential heir the estate of any person other than his adoptive father if such estate has vested before the adoption in some heir other than the adopting mother. The above case, in our opinion, can hardly be of any assistance to the assessee-appellant. As would appear from the facts of that case, the question involved there related to the adoption by a widow after the death of the sole surviving companyarcener. The question with which we are companycerned, as to whether one individual can companystitute a Hindu undivided family, Was number before the Judicial Committee and it expressed numberopinion on that question. According to Mr. Desai it is implicit in that judgment that from 1917 when Keshav died till 1930 when Anant plaintiff was adopted, there was a joint Hindu family even though the joint family companysisted of Gangabai alone. We find it difficult to agree with Mr. Desai in this respect As would appear from the facts of that case, Anant was adopted by Gangabai as a son of Bhikappa. It is number firmly established that the rights of the adopted son relate back to the date of the adoptive fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of latters death see v. 543 of Mullahs Principles of Hindu Law 14th Ed. . This principle of relation back is subject to certain ex- ceptions but we are number companycerned with them. As Bhikhappa died in 1905, Anant should be deemed to have been in existence as the son of Bhikappa at the time of latters death in 1905. A necessary companyollary of the above legal fiction would be that Anant as the adopted ,on of Bhikappa would be taken to be in existence during the years 1917 to 1930. Gangabai companysequently cannot be companysidered to be the sole member of the Hindu undivided family during the above period. There is numbermerit in the appeal.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 467 of 1972. Petition Under Article 32 of the Constitution of India. Sen and R. M. Mehta, S. K. Dholakia and R. C. Bhatia, for the petitioner. N. Sinha, Solicitor General of India, G. A. Shah and S. Nayar, for the respondent. The Judgment of the Court was delivered by UNTWALIA, J.-By this petition under Article 32 of the Constitution of India the petitioner has challenged the companystitutional validity ,of the Gujarat Vacant Lands in Urban Areas Prohibition of Alienation Act, 1972, Gujarat Act No. 12 of 1972-hereinafter referred to as the Act on the around that it violates the fundamental rights of the petitioner granted under Arts. 14 and 19 of the Constitution. In the writ petition the petitioner claims that he owns 9559 square yards ,of land situate in District Bulsar, sub-district and Taluka Navsari, village Kohilpore. He intends to sell the said land but is unable to do so because of the prohibition of alienation imposed under the Act. Mr. B. Sen, learned companynsel for the petitioner companyceded, and in ID ,our opinion rightly, that since the Proclamation of Emergency is in operation under Article 358 of the Constitution, fundamental right guaranteed under Article 19 is under suspension and therefore the Act companyld number be assailed for infraction of Article 19 even if there be any. Counsel, however, submitted that it does violate the guarantee of equal protection of the law and offends Article In the Act under section 2 is embodied a declaration that the Act is for giving effect to the policy of the State towards securing the principles specified in clauses b and c of Article 39 of the Constitution and companysequently Article 31C would save the Act from attack on account of the infraction of Article 14. But it was submitted that the Act is number directly relatable to the object of Article 39 b and c and hence Article 31C cannot protect it. In our opinion it is number necessary in this case to take recourse to Article 31C for upholding the companystitutional validity of the Act as it does number infringe the equal protection of law guaranteed under Article 14 of the Constitution. Learned companynsel for the petitioner endeavoured to make out the following points for attacking the Act as being violative of Article 14. That the limit of Prohibition in respect of the area of the vacant land is the same irrespective of its situation and value thus putting unequals as equals. That it does number apply to building lands and building areas have been left out. That there is discrimination between the permissible limit of alienation on the basis of the irrational companysideration of the area forming part of a companypact block or number. 66 9 That there is numberrational basis for number applying the Act in respect of the alienation of vacant in favour of the State, Govt., the Central Govt., Local authorities, Govt. companypanies, Govt. Corporations or the Cooperative House Building Societies. There is numberguideline provided in section 7 of the Art for exercise of the power of exemption. Learned Solicitor General appearing for the respondent, the State of Gujarat, submitted that numbere of the points urgea on behalf of the ,petitioners has got any substance and there is numberviolation of the equal protection of law guaranteed under Article 14 of the Constitution. We shall first refer to and wherever necessary read some of the relevant provisions of the Act. The Preamble of the Act indicates that it is an Act to prohibit alienation of certain vacant lands in urban areas in the State of Gujarat. The object of the Act is to prohibit alienation of the vacant lands so that ultimately the ownership and companytrol of the material resources of the Community may be so distributed as best to sub-serve the companymon good and may prevent the companycentration of wealth to the companymon detriment. It may be pointed ,out here that the impugned Act is a temporary one. Originally it was to remain in force for one year but the period is being extended from time to time in order to enable the State Legislature to pass the Urban Property Ceilings Act. Prohibition of alienation by the Act is a preparatory measure for distribution of the material resources of the companymunity. The definition section of the Act is section 3. Clause b defines City to mean a City as companystituted under the Bombay Provincial Municipal Corporations Act, 1949. The definition of Collector includes certain other officers also as mentioned in clause c . It is necessary to read clause d which defines the companypact block to mean any block of vacant land in an urban area exceeding one thousand square metres in extent, whether owned by one person or jointly by more than one person or owned in companytiguous parts separately by one or more members of a family unit and whether or number divided by a private road, street, lane, footway, passage or drain, natural or artificial. Under clause dd family unit means an indi- vidual, his or her spouse and their children. Clause e defines municipal borough to mean a municipal borough as companystituted or deemed to be companystituted under the Gujarat Municipalities Act, 1963. It is necessary to read clauses and j of section 3 in full. i urban area means-- 1 any area which is companyprised for the time being in a City or a municipal borough and also any such area in the vicinity thereof, within a distance, number exceeding sixteen kilometres from the local limits of the City, or as the case may be, of the municipal borough companycerned, as the State Govt. may, having regard to the extent of and the scope for the urbani- sation of that area or other relevant companysiderations, by a numberification in the Official Gazette, specify in this behalf and 2 any other area which the State Government may, by numberification in the Official Gazette declare to be an urban area. having regard to any project existing in that area on the appointed day or having regard to the possibility in the near future of any project being established in that area where any such project, in the opinion of the State Government, has led to or is likely to lead to urbanisation of that area j vacant land means land in an urban area, agricultural or number-agricultural, other than land on which any building has been or is being companystructed in accordance with any law regulating such companystruction and the land appurtenant to such, building to the minimum extent required under such law or under the provisions of the Bombay Town Planning Act, 1954 or any other companyresponding law for the time being in force. Explanation for the purposes of this clause any land which is vacant on the appointed day shall be deemed to be vacant land, numberwithstanding that the companystruction of 2 a building thereon has been companymenced on or after the said day. Section 4 provides for prohibition of alienation etc. in these terms 1 No person who owns any vacant land shall, on or after the appointed day, alienate such land by way of sale, gift, exchange mortgage other than simple.mortgage , lease or otherwise, or effect a partition or create a trust of such land, and any alienation made, or, partition effected, or trust created in companytravention of this section shall be null and void Provided that numberhing in- this sub-section shall apply to the alienation by any person of any one plot of vacant land owned by him number exceeding one thousand square metres in extent and number forming part of a companypact block or to the effecting of a partition or creation of a trust of any such plot. The provisions of sub-section 1 shall apply to any sale, partition or creation of trust, of vacant land of any person in execution of a decree or order of a civil companyrt or of any award or order of any other authority. Restrictions on registration of documents have been put in section 5. Section 6 1 says that Nothing in this Act shall apply to any transfer of vacant land by or in favour of- A State Government or the Central Government or local authority, A Government Company as defined in section 617 of the Companies Act, 1956 c a companyporation established by or, under a Central Provincial or State Act, which in companytrolled or managed by a State Government or the Central Government d such companyperative house building societies established for the purpose of providing housing accommodation to weaker sections of people, as may be approved by the State Government in this behalf. Sub-section 2 of section 6 makes a distinction in the application of sub-section 2 of section-4 in relation to the execution of a decree or an order of a civil companyrt in favour of the Government or the local authority. Under subsection 1 of section 7 the State Government, may, by a general or special order in writing and for reasons to recorded therein, exempt any area or any alienation or other transfer of any vacant land from all or any of The provisions of this Act. Under sub-section 2 , to avoid any hardship also, the State Government may, if it companysiders it necessary so to do, exempt, by an order in writing, any alienation or other transfer of any vacant land from all or any of the provisions of this Art. Subject to any rules that may be made in this behalf or to any general or special orders of the State Government, the Collector has. been authorised under sub-section 3 of section 7 by order in writing, to exempt any alienation or other transfer of any vacant land from the Provisions of this Act in case the land is to be used for my educational, scientific, industrial or companymercial purpose or for such other purpose as may be prescribed. Prescribed means under clause g of the third section prescribed by rules made under this Art., The State Government has power under section 12 to make the rules. Sub-section 4 enjoins that every order issued by the State Government, under sub-sections 1 and 2 and by the Collector under section 3 shall be laid before the State Legislature as soon as possible after its issue. Alienation etc. made on or after the 1st July, 1972 but before the appointed day under the Act has also been affected under section 8. Section 9 gives a right to appeal against the order of the Collector under sub-section 3 of section 7 to the State Government within the prescribed period and in the prescribed manner. The jurisdiction of the Civil Court has been barred under section 10. A penalty has been provided under section 11. The act overrides other laws in view of section 13. It would be numbericed that the urban- area means any area which is companyprised in the City or a Municipal Borough. Surrounding, distance of the City or municipal borough has to,.be fixed by a numberification of the State Government in the Official Gazette having regard to the relevant companysiderations. The maximum distance of such an area cannot exceed sixteen kilometres. We were informed at the Bar by, the learned Solicitor General that numberifications have been issued fixing the maximum limit of 16 kilometres in case of big cities like Ahmedabad, Baroda etc. but lesser limits of distances have been numberified in case of small municipal boroughs. Under the proviso to sub-section 1 of L319SupCI/75 section 4 a person is number prohibited from alienating one plot of vacant land owned by him number exceeding 1000 sq. metres provided it does number form part of a companypact block. When the limit of the distance outside-the City or town area differed from place to place it was number necessary to fix the limit of permissible area of transfer with reference to the value of the land. It was neither feasible number expedient to do so. From the permissible limit of transfer the area forming part of the companypact block had to be excluded as it would have led to manipulations and manoeuvrings by persons belonging to the same family unit. The land belonging jointly to more than one person or owned in companytiguous part separately by one or more members of a family unit, which unit is a narrow one as defined in clause dd of section 3, companyes under the definition of companypact block. Then only the permissible limit of transfer does number apply. Excluding the land on which any building has been or is being companystructed in accordance with any law regulating such companystruction and only the permissible limit of the vacant land appertaining to it is a reasonable classification distinguishing the vacant land from the building land. The object of the act is to prevent alienation of certain vacant lands and that being so it is rightly excluded the building lands from its operation. It is plain that the main object of the act being ultimately to distribute the ownership and companytrol of the material resources of the companymunity as best to subserve the companymon good and to prevent companycentration of wealth, a transfer in favour of the Government, local authorities, Government companypanies or Corporations had to be excluded as such transfer companyld number possibly defeat the object of the Act, rather, it would give a fillip to it. Permitting transfers of vacant lands in favour of Cooperative Housing Building Societies is obviously a step for the fulfilment of the object of the Act. The Act cannot be held to be discriminatory on such grounds. The power of the State Government under sub-section 1 of section 7 to exempt any area or any alienation or other transfer of vacant land from all or any of the provisions of the Act is a power which is to be exercised for the reasons to be recorded in the general or the special order and in furtherance of the object of the Act. The guideline is to be found in the object of the act itself. The power under sub-section 2 has to be exercised by the State Government for avoiding any hardship. There is sufficient guideline for exemption in case of hardship which will depend upon the facts and circumstances of each case. The order if exemption to be made by the Collector can only be in a case where the land is to be used for any educational, scientific, industrial or companymercial purposes. It has number been left open to the Collector to decide for what other purpose he can grant the exemption. Such other purpose can be only that as may be prescribed by the State Government by rules made under section 12 of the Act. Sub-section 4 of section 7 is a good safety valve. The State Legislature will act as a Supervisor of the orders of exemption made by the State Government or the Collector. The exercise of the power of exemption by the Collector is further companytrolled by providing an appeal to the State Government under section 9 of the Act. In our opinion, therefore, there is numberviolation of the equal protection of law guaranteed under Art. 14 of the Constitution. Classifications are all reasonable and there is a clear nexus between the object of the act and the classifications. They have neither put unequals as equals number has discriminated between equals. In the result the writ petition fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal appeal No. 41 of 1971. From the Judgment and Order dated the 15th January, 1971 of the Bombay High Court in Crl. Appeal No. 278 of 1969. H. Hingorani, for the appellant. B. Wad and M. N. Shroff, for the respondent. The judgment of the Court was delivered by BHAGWATI, I.-This appeal has been referred by the appellant on a certificate of fitness granted by the High Court of Bombay under Article 134 1 c of the Constitution. The facts giving rise to the appeal are few and may be briefly stated as follows. On 4th October 1968 at about 5 p.m. the appellant was found standing near I the crossing of Yusuf Meherally Road and Abdul Rahman Street adjoining Crawford Market in Bombay. The movements of the appellant excited the suspicion of PSI Bhambre and Police Constable Vithal Bapu Kamble, who were passing along that way to make inquiries in companynection with some other matter, and they accordingly accosted the appellant and asked him why he was standing there. The appellant replied that he was waiting for a friend. But that answer did number satisfy the,officers and suspecting that there was something fishy, theythe appellant in the presence of panchas. In the companyrse ofthe search two paper packets were found, one in each trouser pocketof the appellant and each packet companytained ten brand new wrist- watches of Sandoz manufacture. These wrist-watches were quite expensive and their value came to over Rs. 2,000/-. The appellant was asked as to how he came into possession of these wristwatches, but he was number in a position to give a satisfactory explanation. The Police officers, there. fore, took the appellant to the police station and later charged him with an offence under section 124 of the Bombay Police Act, 1951 in the Court of the Presidency Magistrate V.T., Bombay. The learned Presidency Magistrate found on the evidence on record that there was reason to believe that the wrist- watches found from the possession of the appellant were either stolen property or property fraudulently obtained, and since the explanation given by the appellant for his possession was inconsistent and unsatisfactory, the learned Presidency Magistrate held that the appellant was guilty and companyvicted him of the offence under section 124 and sentenced him to suffer rigorous imprisonment for. three months and to pay a fine of Rs. 100 or in default to suffer rigorous imprisonment for a further period of fifteen days. The appellant appealed against the order of companyviction and sentence to the High Court of Bombay. The appeal came up for hearing before a Single Judge of the High Court, namely, Kamat, J. The learned Judge was of the view that there was reason to believe that the wrist-watches found in the possession of the appellant were smuggled property and hence property fraudulently obtained and since there was numbersatisfactory explanation forthcoming from the appellant, the order of companyviction and sentence passed against the appellant was proper. But the attention of the learned judge was drawn to a decision of another Single Judge of the High Court, namely, Vimadalal, J. in Pratap Baburao v. The State of Maharashtra 1 where a view had been taken that in order to attract the, applicability of section 124 what was necessary was that there should be reason to believe that the property in question was fraudulently obtained by the accused. Now, if this decision were right, then obviously the appellant would be, entitled to be acquitted and the order of companyviction, and sentence passed against him would be bad because on the material on record it would number be possible to say that there was reason to believe that the wristwatches were fraudulently obtained by the appellant. The learned Judge, however, found himself unable to agree with the view taken by Vimadalal, J., and being of the opinion that on a proper companystruction of section 124, the only matter in respect of which the Court was required to have reason to believe was that the property was stolen property or property fraudulently obtained and number that the property should have been stolen or fraudulently obtained by the ,accused, the learned Judge referred the appeal to a Division Bench. The appeal thereafter came up for hearing before a Division Bench of the High Court companysisting of Palekar and S. K. Desai, JJ. The Division Bench disagreed with the view taken by Vimadalal, J., and held that The expression fraudulently obtained like the other juxtaposed expression stolen in that same section is the attribute, stamp or character of the property found in the possession of accused. If the property in his possession is capable of being described as ,stolen property or property fraudulently obtained by whomsoever it might have been stolen or fraudulently obtained, that would be sufficient to companyply with the requirements of the section. The Division Bench pointed out that the section does number speak of the accused obtaining possession of the property fraudulently but of property fraudulently obtained. On the material on record, the Division Bench held that there was reason to believe that the wristwatches found in the possession of the appellant were smuggled watches and hence they were property fraudulently obtained within the companytemplation of section 124. The Division Bench then proceeded to companysider the explanation given by the appellant in regard to his possession of the wrist-watches and taking the view that the explanation was unsatisfactory and the appellant had failed to account satisfactorily for the possession of the wrist- watches, companyfirmed the order of companyviction and sentence passed against the appellant. The appellant thereupon applied for a certificate for leave to appeal to this Court under Art. 134 1 c of the Constitution and since the case involved a question relating to the interpretation of section 124, the High Court granted the certificate and hence the present appeal. The main question that was argued before us related to the true interpretation of section 124. That section reads as follows Whoever has in his possession or companyveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he fails to account for such possession or to act to the satisfaction of the Mastrate, on companyviction, be punished with imprisonment, for a term which may extend to three months or with fine which may extend to one hundred rupees or with both. It is apparent, on a plain reading of this section, that there are three ingredients which must be satisfied in order to attract the applicability of the section and bring home the offence against the accused. The first is that the accused must be in the possession of the property or be must have companyveyed it in any manner or offered it for sale or pawn to the second is that the property must be one in respect of which the Court has reason to believe that it is either stolen property or property fraudulently obtained and the third is that the accused must be unable to account for his possession or act to the satisfaction of the Magistrate. If these three ingredients are satisfied, the accused would be liable to be companyvicted of the offence under the section. Now, in the present case, twenty brand new wrist-watches of Sandoz manufacture were found in the possession of the appellant and the first ingredient was satisfied. The case of the prosecution in regard to the second ingredient was that there was reason to believe that these wrist-watches were smuggled property and hence property fraudulently obtained and it was this case which was accepted by the High Court. The appellant companytended that even if the wristwatches were smuggled goods, they companyld number be said to be fraudulently obtained and in any event there was numberevidence to show that they were fraudulently obtained by the appellant and the prosecution case in regard to the second ingredient was, therefore, number established. Now, there can be numberdoubt that there was reason to believe that these wrist-watches were smuggled goods. The High Court has given companyent reasons for taking this view and we are wholly in agreement with those reasons. It is significant to numbere that the appellant was number a dealer in wrist-watches and yet he was found in possession of twenty brand new wrist- watches of foreign manufacture tucked away in his trouser pockets. When called upon to explain, he was unable to state as to how he came into possession of these wrist- watches. These circumstances are sufficient to create reasonable belief that these wrist-watches were smuggled property. The next step logically flowing from this premise would be that these wristwatches were fraudulently obtained. It can hardly be disputed that when anything is imported into the companyntry clandestinely in violation of import or customs regulations, it is fraudulently obtained, that is, obtained by companymitting a fraud on the regulations. Smuggled goods are clearly goods fraudulently obtained. But the question is whether in order to satisfy the second ingradient these wrist-watches must be fraudulently obtained by the accused or it is enough that they are fraudulently obtained by some one else by smuggling and then have reached the hands of the accused. If we look at the plain Ian age of the section, it is clear that it stops short at describing the property as stolen property or property fraudulently obtained and does number go on to add the words by him. If the intention of the legislature were that the property should be stolen or fraudulently obtained by the accused, then numberhing would have been easier for the legislature than to use appropriate words, such as stolen property or property fraudulently obtained by him. In fact that companyld number be the intention of the legislature because if the property were stolen or fraudulently obtained by the accused, that would be a distinct and independent offence under the Indian Penal Code or the Customs Act or the Import and Export Control Act and it would number be necessary to make it an offence over again under section 124 of the Bombay Police Act. The words stolen property or property fraudulently obtained merely denote the attribute or characteristicof the property. If the property is capable of being described a A stolen property or property fraudulently obtained by whomsoever it mighthave been stolen or fraudulently obtained, that would be sufficient tocomply with the requirements of the section. The section merely speaks of the character of the property-whether it satisfies the particular description and does number say by whom it should have been stolen or fraudulently obtained. The theft or the fraudulent obtaining of the property may be by any person. It is number the act of stealing or fraudulent obtaining that is sought to be hit by the section. For that there are other laws, such as the Indian Penal Code, the Customs Act and the Import and Export Control Act. Here, it is the possession by the accused of property which bears the attribute or characteristic of stolen property or property fraudulently obtained that is made penal. The Court while dealing with a case under section 124 is, therefore, number companycerned to inquire whether there is reason to believe that the property was stolen or fradulently obtained by the accused. The only inquiry which the Court is called upon to make is whether on the material on .record there is reason to believe that the property found in the possession ,of the accused can be described as stolen property-or property fraudulently obtained, whoever may be the person who stole it or fradulently obtained it. There can be numberdoubt that in the present case on the material on record there was reason to believe that these wristwatches found in the possession of the appellant were property fraudulently obtained and the second ingredient was, therefore, clearly satisfied. So far as the third ingredient is companycerned, it is clear that the explanation given by the appellant for his possession of these wristwatches was unsatisfactory, and the High Court was right in taking the view that the appellant had failed to account for his possession of these wrist- watches to the satisfaction of the Court. We must, therefore, hold that all the three ingredients of section 124 were satisfied in the present case and the appellant was rightly companyvicted under that section. We accordingly dismiss the appeal.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 739 NCE of 1974. Appeal by Special Leave from the Judgment and Order dated the 4th February 1974 of the Punjab and Harvana High Court in Civil Misc. Petn. No. 158-E of 1973 in Election Petn. No. 45 of 1972. K. Garg, S. C. Agarwala and S. S. Bhatnagar, for the appellant. Bakhtawar Singh Ch. Manmohan Singh, D. N. Mishra and J. B.- Dadachanji, for the respondents. The Judgment of the Court was delivered by GUPTA, J.-In this appeal by special leave the appellant questions the propriety of an order made by the High Court of Punjab and, Haryana at Chandigarh in the companyrse of trial of an election petition allowing the petitioners experts to inspect the companynterfoils of the ballot papers of voters who had been found by the Court prima facie to have been impersonated. The facts leading to the order under appeal are briefly as follows. In the election held on March 11, 1972 the appellant Shri Manphul Singh was elected to the Haryana Vidhan Sabha from the Jhajjar Constituency defeating his only rival, Shri Surinder Singh, the respondent before us, by a margin of 265 votes. Shri Surinder Singh, referred to hereinafter as the petitioner, filed an election petition challenging the election of the returned candidate on various allegations of which the following are material for the present purpose 1 28 votes were cast in favour of the returned candidate by some persons impersonating voters who were dead. 2 710 absentee voters were impersonated by persons who polled their votes in favour of the returned candidate. 3 158 government servants who were registered as voters in the Constituency but were number present in their respective villages and did number cast their votes, were impersonated and their votes were polled in favour of the returned candidate. 4 149 persons, registered as voters at two or more different places in the companystituency, polled their votes twice or more than twice in favour of the returned candidate. In an application filed on December 1, 1972 the petitioner suggested a procedure to enable him to prove his case of impersonation and double voting. It was stated that he would produce genuine voters who should be shown the companynterfoils of the ballot papers to test whether the companynterfoils carried their genuine signatures and for this purpose the petitioner asked for production of the companynterfoils. This application was pending when the petitioner started examining his witnesses and the prayer was renewed when one Ranbir Singh, P.W. 17, was in the witness box. The prayer was opposed on behalf of the returned candidate but the High Court by its order dated January 5, 1973 allowed inspection of two companynterfoils of ballot papers to companyfirm the oral evidence of the witness that he had impersonated two voters by signing their names in the companynterfoils. It appears that from an earlier interlocutory order passed in this election dispute, the returned candidate had preferred an appeal to this Court which was dismissed. In the Judgment in that case, reported in AIR 1973 S.C. 2158 Manphul Singh v. Surinder Singh , this Court observed at page 2162 of the report referring to the petitioners aforesaid application dated December 1, 1972 In the application filed in support of the, petition for production of records it is pointed out that the evidence is to be led by the production of genuine voter and he is to shown the companynterfoil whether it bears his signature or number and then whether be in fact polled his vote or number or somebody else had cast his vote. It was specifically stated that the petitioner will pray for inspection of ballot papers when he succeeds in proving that they have number cast their votes and have been impersonated. Nothing companyld be clearer or more reasonable than this. Obviously, in this companytext proving meant proving prima facie, or there would number have any necessity of examining the companynter-foils. On December 17, 1973 the High Court allowed the prayer made on behalf of the petitioner to allow two finger-print experts named by the petitioner to companypare the thumb impressions of some of the witnesses with the thumb impressions on the relevant companynterfoils. On December 18, 1973 the returned candidate made an application, registered as Civil Miscellaneous Application No. 158-E/73, on which the order under appeal was passed on February 4, 1974. In that application the returned candidate companytended that the companynterfoils were secret documents and their inspection should number be all-owed unless a prima facie case for inspection was made out and that the Courts order allowing inspection at that stage when there was numberprima facie case amounted to a fishing enquiry number permissible in law the prayer made in the application was for revoking the per- mission granted to the finger-print experts cited by the petitioner to inspect the companynterfoils of ballot papers. The application also included several other grievances which the Court found were of substance and the order disposing of the application was to that extent in favour of the petitioner. It is therefore number necessary to refer to these other grievances for the present purpose. In disposing of the application the High Court also proceeded on the footing that the person seeking inspection of the companynterfoils must prove a prima facie case in support of his allegation before the companynterfoils can be made available to him. In the companyrse of the Judgment the High Court further observed that the secrecy of the ballot would be allowed to be violated only if a Prima facie case is made out by the petitioner in support of his allegation. Having examined the evidence of the witnesses recorded till then, the High Court found prima facie that there had been impersonation in about 310 cases and allowed the petitioners experts to inspect the companynterfoils of the ballot papers pertaining to these 310 voters. The High Court tabulated the result of the examination of the evidence of the witnesses in seven lists appended to its Order marked with the letters, A, B, C, D, E, F and G. List A companytains particulars of dead voters who are alleged to have been impersonated. They are 5 in number. List B includes the particulars of voters examined on oath and found prima facie to have been impersonated on the basis of their own testimony. The number of such voters is 126. List C companytains the particulars of voters who appeared prima facie to have been impersonated upon the evidence of P.Ws. 17 and 472. They are four in number. List D sets out the particulars of voters who had appeared as witnesses for the petitioner but deposed against him, but who were found prima, facie to have been impersonated from the, deposition of other witnesses. Such voters are 15 in number. List E companytains particulars of those witnesses who had been declared hostile to the petitioner but who were found prima facie to have been impersonated from the deposition of other witnesses. Their number is 13. List F includes particulars of voters number examined as witnesses but who were found prima facie to have been impersonated from the deposition of other witnesses. The number of such voters is 48, List G companytains particulars of multiple voting. This list includes two categories a those who polled twice in the companystituency, and b those who polled once in the companystituency and again in another companystituency.Category a companytains 17 and category b companytains 46 such cases. The legal position as regards inspection of ballot papers or their companynterfoils. number seems to be well established.In Dr. Jagjit Singh v., Giani Kartar Singh, AIR 1966 S.C. 773 , this Court observed An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to companysider whether in the interest of justice, the ballot boxes should be inspected or number. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and companysider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election but in companysidering the requirements of justice. care must be taken to see that election petitioners do number jet a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidates election is void. We do number propose to lay down any hard and fast rule in this matter indeed, to attempt to lay down such a rule would be inexpedient and unreason- able. The principle stated. in Dr. Jagjit Singhs case Supra was reaffirmed by this Court in Sashi Bhusan v. Prof. Balraj Madhok and Ors, 1972 2 S.C.R. 177. It was observed in Sashi Bhusans case Facts naturally differ from case to case. Therefore it is dangerous to lay down any rigid test in the matter of ordering an inspection. It is numberdoubt true that a Judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must number be vague or indefinite they must be supported by material facts and prayer made must be a bona fide one. If. these companyditions are satisfied, the Court will be justified in permitting inspection of ballot papers. Secrecy of ballot is important, but doing justice is undoubtedly more important That in proceeding to companysider the evidence, the High Court was aware of the companyrect legal position is clear from its Judgment. We have quoted above the observation of this Court in the earlier appeal arising out of the same election petition that numberhing companyld be clearer or more reasonable than the procedure suggested by the petitioner and accepted by the High Court. Mr. Garg appearing for the appellant made a grievance that the High Court did number apply its mind to judge the quality of the evidence in order to find out whether really there was a prima facie case and depended on the volume of the evidence adduced in making the impugned order. We do number think that the criticism is justified. The High Court classified the various types of impersonation alleged into seven categories mentioning all relevant particulars including the names of witnesses on whose evi- dence the allegation in each category was based. The High Court was of the view that the evidence of these witnesses, if unrebutted, would be sufficient to prove the allegation of impersonation. This means the High Court was satisfied that there was a prime facie case and the matter required further investigation on the material before us we cannot say that the High Court acted arbitrarily in taking this View. Mr. Garg also companytended that there was numbermaterial to support the allegation of multiple voting. This is what the learned Judge of the High Court says on this aspect of the case I have been taken through various parts of the electoral roll by learned companynsel for the petitioner who companytends that each one of such persons is shown to be registered at two places in the companystituency or in different companystituencies by reason of the fact that his or her description as well as the description of his or her family members or some of them given in the two places is the same It is companymon ground between the parties that the votes of such voters have been polled at both the places. In respect of these 63 persons therefore the petitioner must be held to have adduced prima facie evidence in support of his allegations. Their Particulars are specified in List G appended to this order. This extract from the Judgment of the High Court proves that Mr. Gargs companytention is without substance. For the reasons stated above this appeal fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 760 to 762 of 1967. Appeal from the judgment and decree dated the 27th July, 1959 of the Patna High Court in Appeal from Original Decree Nos. 326, 332 and 333 of 1948. C. Misra, Indubhanu Singh, Inderdeo Narain Singh, Gyan Sudha Misra and D. Goburdhan, for the appellants. K. Sen In C.A.No. 760/67 , Sarjoo Prasad In C.A. No. 761762/67 , Gunteswhar Prasad and R. D. Datar for the respondents. The Judgment of the Court was delivered by ALAGIRISWAMI, J.-In the year 1872 one Ramdhan Singh, a Bhumihar Brahmin, of village Barhiya in Bihar died leaving behind two widows, Mosst. Manrup Kumari and Pan Kumari, and about 1700 bighas of land. Manrup Kumari died in 1923 and Pari Kumari in 1933 Even while Pari Kumari was alive her brother Sunder Singh ,seems to have been managing the estate on her behalf. Shortly before her death he managed to get from her a deed of release in favour of two persons, Gaya Singh and Falgu Singh, alleged to be the sons of Ramdhan Singhs daughter, Jayanti Kumari. In spite of the objections by persons who claimed to be the nearest reversioners of Ramdhan Singhs estate, the lands were recorded in their names in the land revenue proceedings. This led to a number of proceedings both civil and criminal. Ultimately the reversioners, who are number the respondents in these appeals, filed five suits, T.S. Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 for possession of the estate. In 1936 another suit, T. S. No. 37 of 1936 was filed by the present plaintiffs 8 to 12, 15, 16 and 18 to 21 and Kunu Babu Singh, uncle of the 11th plaintiff. In that suit also Gaya Singh and Falgu Singh were defendants. In addition, the plaintiffs in T.S. No. 53 of 1934 and certain others were added as defendants. The plaintiffs in that suit claimed to be the nearest reversioners to the estate of Ramdban Singh and also that there was a custom prevalent in the family for a long time that more distant heirs than the Shastric heirs of a person also joined the latter in succeeding to the properties left behind by him. They wanted to be held as the nearest reversioners to Ramdhan Singhs estate and thus entitled to the properties left by Pari Kumari. That suit failed. There-, after, the suit out of which the present appeals arise was filed. In this the plaintiffs, in S. Nos. 53 and 61 of 1934, and 20, 29 and 41 of 1935 are defendants so also certain alieness from them. Certain parties who are related to Ramdhan Singh in the same degree as the plaintiffs, are also defendants. The plaintiffs in the title suits of 1934 and 1935 are the nearer heirs of Ramdhan Singh and are entitled to succeed to his estate on the ground of propinquity-if the ordinary rule of Hindu Law applied. The plaintiffs in the present suit as well as the defendants who are sailing with them are related to Ramdhan Singh in a distant degree and would number be entitled to succeed to his estate under the ordinary rule of Hindu Law. Their claim is based on the plea of a special custom applying to the family to which the parties belong. According to the plaint the parties are descendants of one Choudhry Mohkam Singh. The plaint was accompanied by a genealogical table which runs into 26 printed pages in the paper book. But during the companyrse of the trial evidence has been let in to prove the genealogy from the days of one Pran Thakur who is said to have migrated to the village Barhiya about five to six hundred years ago from a place called Sajidehpur. Though on behalf of the defendants the fact that the original family had migrated from Sandehpur was number admitted, a point which is of little importance, it seems to have been generally agreed among the parties that the companymon ancestor was Pran Thakur and he lived five to six hundred years ago. Instances to prove the custom put forward on behalf of the plaintiffs were given number merely from the family of Mohkam Singh but also from various other branches said to be descended from Pran Thakur. The village Barhiya is divided into twelve Tarafs named after twelve of Pran Thakurs descendants. The twelve descendants whose names these Tarafs bear were number necessarily at the same degree of descent from Pran Thakur but that again is number of much importance. The parties to this suit belong to Taraf Ram Charan but in the plaint it was number the custom of Taraf Ram Charan that was pleaded but only the custom in the family of Ch. Mohkam Singh, Taraf Ram Charan being a larger group. Fifty two instances were sought to be proved on behalf of the plaintiffs. The learned Sub-ordinate Judge who tried the suit held fortythree of them proved. The learned Judges of the High Court felt that from a reading of the plaint, evidence in companynection with the, instances in Ch. Mohkam Singhs family only were admissible and ought to have been gone into. But as it did number appear that the defendants had objected to the adducing of evidence from the other families and Tarafs and the parties perhaps understood the plaint to mean that their companymon ancestor was Pran Thakur, they did number rest companytent with examining the instances from Mohkam Singhs family only. Out of the 52 instances only three were from among the descendants of Mohkam Singh. Out of the other 49 instances, nine were from the Taraf Ram Charan, two of which were held by the learned Subordinate Judge as number proved. He, however, held all the three instances from Mohkam Singhs family, as proved. The learned Judges of the High Court, however, on an exhaustive review of the evidence, held that numbere of the fiftytwo instances had been established satisfactorily the custom alleged in the family of Mohkam Singh or amongst the by clear and unambiguous evidence so as to be sure of the existence of descendants of Pran Thakur. After hearing both the parties on the question of the admissibility of the evidence we have arrived at the companyclusion that the only evidence which can be taken into account are the three instances in Mohkam Singhs family. Mohkam Singh himself seems to have been alive over 150 years ago. When oral evidence is sought to be given about what happened some generations ago, it has to be assessed with a great deal of care, which we shall number proceed to do. Before doing so, however, it is necessary to have a clear idea as to what was pleaded. The custom pleaded was put in the following words in paragraph 5 of the plaint The Kulachar or ancient family custom or usage with regard to succession which prevails from time immemorial in the family of the plaintiffs and defendants First, Second and Third parties and which has been invariably and strictly followed observed and adhered to by the ancestors of the parties and of which there is a clear companysciousness in the family is that when a separated male member of the family dies without any issue, his estate devolves in the first instance on his widow or widows, if there be any, and on the death of the widow or widows as the case may be or on the death of the said separated male members dying without issue and without leaving any widow the estate reverts to the descendants of the father of the said male owner and they take the estate in equal shares per stripes and number per capital and brothers of the last male owner share the estate equally with the sons and grand-sons of deceased brothers. Similarly, if the last male owner had numberbrothers and his reversioners are his uncles or companysins the same rule viz. that the uncles or companysins inherit the estate alongwith the descendants of the predeceased uncles or companysins on the death of the widow or widows and if there be numberwidow immediately on the death of such male owner dying issueless. in other words the rule of Hindu Law viz. that the nearer in degree excludes the more remote is modified by the Kulachar to the extent enumerated above. It would be numbericed that even the question of the father or mother of the deceased succeeding is number mentioned. Now let us see if there is anything in the plaint which had any reference to the descendants of Pran Thakur or his descendants in branches other than that of Ch. Mohkam Singh. Paragraphs 1. 2 and, 4 of the plaint are as follows The Plaintiffs and the defendants who are Bhumihar Brahmins by caste belong to the same family and are descended from same companymon ancestor. Thier relationship will appear from the genealogical table given at the foot of the plaint. The parties to this suit and other Bhumihar Brahmin residents of village Burhee excepting those who are descendants in the female line or are recent settlers belong to the same class of Babhans known as Dighwaits and are descended from the same stock. The Dighwait Babhans who migrated to Burhee were ordinarily governed by the Benares School of Hindu Law but the matters of succession they followed their respective Kulachars or ancient family customs which have been prevailing in their families from time immemorial and which having acquired the force of law modified the general Hindu Law to that extent. It would be numbericed that in paragraph I the plaintiffs and defendants are said to belong to the same family and descended from the same companymon ancestor. As reference is made to the genealogical tree and that starts only from Mohkam Singh, it is obvious that the reference to the companymon ancestor is reference to Mohkam Singh. From para- graph 4 it is clear that in matters of. succession Dighwait Babhans followed their respective ancient family customs showing that each family had its own custom, Immediately follows the statement in paragraph 5 earlier extracted which shows that what the plaintiffs are referring to is the ancient family custom in the family of the plaintiffs and defendants which is the family of Mohkam Singh as already explained. Reference to the male member of the family dying separate and issuless in paragraph 6 can therefore refer only to the family of the plaintiffs and defendants mentioned in paragraph 5. Then follows the statement in paragraph 7 which by reference to the genealogical table appended to the plaint says that the companymon ancestor of the plaintiffs and defendants was Chowdhry Mohkam Singh. Paragraph 17 again refers to the family custom or usage of all the male descendants of Ch. Mohkam Singh being entitled to inherit the estate. Paragraph 18 refers to one of the five sons of Ch. Mohkam Singh dying issueless and his property being divided equally per stripes amongst the descendants of the remaining three sons. Paragraph 20 again refers to defendants second party being descendants of Ch. Mohkam Singh and as such entitled under the Kulachar to inherit some share in the estate of Ramdhan Singh. Even the prayer is for a declaration about the ancient custom, usage or Kulachar in the family of the plaintiffs and defendants. Nowhere is there any reference to Pran Thakur or his descendants or the twelve Tarafs or even Taraf Ram Charan as the one to which the parties belonged. Issue 6 in the suit regarding this question is also as follows Is there any Kulachar or ancient family custom in the families of the parties in companytravention of the established principle of law of succession as alleged by the plain descended from- the, same companymon ancestor. Their relation- 13-L346 Sup CI/75 tiffs in para 5 of the plaint? If so, is it valid and binding on the parties affecting the succession of the heritage left by Ramdhan Singh deceased ? There is, therefore, numberroom at all for any argument that the plaint proceeded on the basis of the custom prevailing among all the descendants of Pran Thakur. It squarely proceeded on the basis of the custom prevailing in the family of Ch. Mohkam Singh. Indeed the learned Advocate for the appellants stressed again and again that the plaint was drafted by a very able advocate and was a very companyrect one. It is numberdoubt true that the witnesses for the plaintiffs as well as defendants admit that they are all descended from Pran Thakur. That seems to be the tradition in the village. It is said that there arc about two thousand families in that village who claim to be descended from Pran Thakur. Though there is evidence that youngsters in these families are made to learn by heart their genealogy it is probably only to the extent of the names of seven generations which is necessary in the case of religious ceremonies. Nobody companyld be remembering the genereallogy of over twenty generations from the days of Pran Thakur. At the most it is a matter of tradition and hearsay. We are saying numberhing about the admissibility or otherwise of hearsay evidence. Suffice it to say that for the purposes of this case the evidence admitted cannot travel beyond the pleadings and therefore has to be companyfined to the instances in Mohkam Singhs family. Now on whom does the burden rest and what is the scope of the evidence that is admissible ? The earliest decision on the question regarding proof of custom in variance of the general law is found in Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya 14 Moo. Ind. App. 570 585 to the effect It is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the companyditions of antiquity and certainty on which alone their legal title to recognition depends. This passage was quoted by this Court with approval in its decision in Pushpavathi Vijayaram v. P. Visweswar AIR 1964 SC 118 and this Court went on further to observe In dealing with a family custom, the same principle will have to be applied, though, of companyrse, in the case of a family custom, instances in support of the custom may number be as many or as frequent as in the case of customs pertaining to a territory or to the companymunity or to the character of any estate. In dealing with family customs, the companysensus of opinion amongst the members of the family, the traditional belief entertained by them and acted upon by them their statements, and their companyduct would all be relevant and it is only where the relevant evidence of such a character appears to the Court to be sufficient that a specific family custom pleaded in a particular case would be held to be proved, vide Abdul Hussein Khan v. Bibil Sona 45 Ind. App. 10 I.R. 1917 P.C. 181 . What is important is that the specific family custom pleaded in a particular case should be proved. The specific family custom pleaded in this case is the custom of the family of Mohkam Singh. Even though that family itself companysists of numerous families descended from Pran Thakur the custom pleaded was number the custom prevailing in the family of Pran Thakur. As we have already mentioned, the descendants of Pran Thakur seem to companysist of at least two thousand families and it is difficult to use the word family in relation to such a large agglomeration of families. We might as well talk of the human family. Be that as it may, there was numbermention in the pleadings of the custom prevailing among the descendants of Pran Thakur. Indeed numberhere in the companyrse of earlier litigations or documents, including T.S. No. 37 of 1936, is there a mention of Pran Thakur and his family. Merely because the evidence with regard to the various branches, which are said to be descended from Pran Thakur, was let in, apparently without any objection on the defendants side, we are number prepared to assume or hold that such evidence was admissible. The genealogical tree from Pran Thakur to Mohkam Singh is at best of doubtful value even though the tradition among Pran Thakurs descendants may be as put forward in the suit. The earliest document which we have examined, Ext. 23 of the year 1818, shows that even Mohkam Singh had died some years before that and between that date and 1947-1948 when the present case was tried, there have been six generations. From Pran Thakur, who is supposed to have lived about 5-6 hundred years ago genealogy is given for only six generations that is, till the formation of the twelve tarafs. That seems to have been over 400 years ago. Apart from the value to be attached .0, or the reliability of the evidence regarding this genealogy it is difficult to see any relevance, of this genealogy as there is a gap between that time and Mohkam Singhs days. The fact that a family belongs to a taraf can have numbersignificance as a taraf is only a portion of the village, and the fact that a taraf is named after person is numberguarantee that all those living in the taraf are his descendants. The evidence put forward, even though accepted on both sides, with regard to persons descended from Pran Thakur must be held at best to be matter of tradition without much historical value and much less evidentiary value and of very little assistance in deciding the question at issue in this case. Similarly, any oral evidence even if admissible about what happened in other branches of the, family descended from Pran Thakur is also number likely to be of much assistance unless they are probabilised by some sort of documentary evidence. We do have some documents at least about Mohkam Singhs family but number about others. After bearing the parties on both sides and after looking into the decisions relied upon by the plaintiffs we indicated to the parties that we companysider the, evidence about instances other than those belonging to Mobkam Singhs descendants were number admissible and we would number companysider the evidence with regard to the other 49 instances. The decisions cited by plaintiffs with regard to the admissibility of evi- dence in this case in relation to instances of custom in families other than those descended from Mohkam Singh companytain certain observations which were relied upon by the plaintiffs. The ratio of those decisions themselves have numberhing to do with the question of admissibility. Indeed, it is difficult to see any ratio in those decisions. They were all decisions as to succession which were based upon the companyclusions drawn on the basis of the evidence adduced in those cases. The decisions companytain mostly discussion on the evidence and any observations made in the companyrse of those discussions should be companyfined to the circumstances and the evidence in those cases and they cannot provide any guiding principle in appraising the evidence, of different facts and circumstances in other cases. Even so we would refer to those observations and show how those observations are relevant to the facts of those cases and can neither serve as a precedent in this case number can be companysidered to have laid down any principle of law. In Rajah Rup Singh v. Rani Baisin the Collector of Eatawah 11 Ind. App. 149 it was held on the evidence in the case that the raj in question was an ancient raj and an ancestral estate, and that by virtue of an ancient custom in the family it was impartible. The plaint was to the effect that the ancient usage of raj of Bliara, ill companymon with other families of the Rajahs was that upon the decease of a Rajah his nearest and eldest male heir succeeds him to the ex- clusion of the other male heirs, and that total exclusion of women. It was companytended that a case had occurred in respect of the raj of Ruh Ruh in which a widow had succeeded in preference to a male companylateral. Ruh Ruh was said to be one of the five branches of which Bhara was also one. That was how the instance regarding the Ruh Ruh estate was companysidered. That decision is a far cry from the present one where evidence regarding 2000 families said to be descended from an almost mythical ancestor are sought to be let in without any pleading with regard to it. In Garurudhwaja Parshad Singh v. Saparandhwaja Prashad Singh 7 Ind. App. 238 it was held on the. evidence. reversing the judgment of the High Court, that the appellants had satisfied the serious burden of proving a special family custom of descent by primo- geniture. The evidence shewed that for a period of nearly eighty years from the time of the British occupation of the district in which lay the estate in suit, the enjoyment had been companysistent with the alleged custom, and for the earlier and greater part of that term had been inconsistent with any other legal basis. Also, that in two other families in the same district, derived from the same ancestor as the parties to the suit, the alleged custom prevailed. It was in companynection with these facts that it was observed A witness may state his opinion as to the existence of a family custom, and give as the grounds thereof informa- tion derived from deceased persons. But it must be independent opinion based on hearsay, and number mere repetition of hearsay see Indian Evidence Act, s. 32, sub-s. 5 ss. 49 and 60. Its weight depends on the character of the witness and of the deceased persons. In that case it appeared from the evidence, that the custom of primogeniture prevailed in two other families, derived from a companymon ancestor and lent strong antecedent probability to the appellants case. In that very case- the Privy Council remarked that a good deal of the evidence, of statements made by deceased persons is of doubtful admissibility, and after referring to the evidence of some of the witnesses the Privy Council said that they would number be disposed to place much reliance upon it standing alone. There is all the difference in the world between two families and two thousand families. In Ahmad Khan v. Channi Bibi 52 Ind. App. 379 it was held that the custom companyld properly be proved by general evidence given by members of the family or tribe without proof of special instances. in that case there was a large body of oral evidence establishing the custom, wholly unrebutted by the defendants, who relied exclusively on the district riwaj-i-am on which neither the High Court number the Privy Council were prepared to place any reliance. Suffice it to any say that the present is number a case where numberevidence of specific instances was given but on the other hand evidence was given of a large number of instances most of which were held proved by the learned trial Judge and held number proved by the learned Judges of the High Court. We are number companycerned in this case with the custom prevailing in a particular family or tribe without instances. In Rohan Ali Khan v. Chaudhri Asghar Ali 57 Ind. App. 29 in the case of a dispute in one branch of the two families, one in the male line and the other in the female line descended from the same person, who had lived so long under the same companyditions and have been so closely companynected together as to be treated as one companymunity the evidence of the custom observed by one family was held to be of high evidential value as to the custom in the other. Furthermore, there was the wajib-ul-araiz signed by the descendants of both the families which strongly supported the plaintiffs case. The distinction between that case and the present one is too obvious to need stress. The case in Maharaja Sris Chandra Nandi v. Rakhalananda Thakur 65 C.L.J. 520 was one where the evidence given by the plaintiffs supported a family tradition from generation to generation and which evidence was founded upon information derived from deceased persons and such tradition was also supported by documentary evidence. In that case the proof of the tradition was also to be found in the documents supporting the statements of deceased person s. It is, therefore, number possible to dissociate one aspect of the decision from the other. It is very difficult to say whether without the documentary evidence the oral evidence regarding proof would have been accepted. In Ajai Verma v. Vijai Kumari AIR 1939 PC 22 it was said that the proof of actual instances of a family custom excluding daughters from the inheritance was number necessary. For this statement reliance was placed upon the decision in Ahmad Khan v. Channi Bibi supra to which we have already referred. It was also stated that the opinions of responsible members of the family as to the existence of such a custom, and the grounds of their opinion, though generally in are of a family tradition, were clearly admissible. In that case the custom was also recorded in wajib-ul-arzes of every village owned by a member of the family and they were very numerous. The Privy Council referred to the probative value of these village records which had been recognised over and over again by the Board. Here again it is suffice to say that it is number possible to predict what would have been the decision but for the wajib- ul-arzes. The decision in Musammat Subhani v. Nawab 68 Ind. App. p.1 was arrived at after elaborate discussion of the evidence in the case and examining numerous earlier decisions on the point as well as Rattingans Digest of Civil Law for the Panjab and Wilsons General Code of the Tribal Customs in the Shahpur District of the Punjab There are some interesting observations therein which show that the statements in the Rattingans Digest cannot be taken at their face value without reference to the circumstances. The, final companyclusion of the Privy Council that what must be proved is that the usage has been acted upon in practice for such a long period and with such invariability, as to show that it has, by companymon companysent been submitted to as I the established governing rule of the particular district with the modification that the word family should be substituted for the word district holds good in every case. They also laid down that the initial onus lay on the plaintiffs to prove the special custom and that does number in any way help the plaintiffs. We shall number deal with the three instances relating to Mohkam Singhs family. We should probably preface this discussion by saying that in S. No. 37 of 1936 there was a half-hearted attempt to prove the custom and the only instance given was the present instance 10. It was held number proved and as quite a few of the present plaintiffs were parties to that suit, the decision therein would be res-judicata as against them. But we prefer to discuss the matter and decide it on its merits because there all the distant reversioners were number parties unlike in this case. Instance No. 10 is regarding succession to the estate of Dip Narain, who died leaving behind his widow Parkalo Kumari, who died in the year 1914. At that time three nephews of Dip Narain, Nirsu-plaintiff 8 and Ramnath-plaintiff 9, sons of his brother Ganga, as well as Nunubabu the son of his brother Ajodhya were alive. Another son of Ajodhya, named Durga, died leaving a son Radharaman, plaintiff 11. Bansi, the third brother of Dip Narain had died as also his son, Ramsarup, leaving two sons Sbeokumar and Rajeshwari. There is an Ekrarnama Ext. 18 dated 14-3-1916 as a result of which Sheokumar and Rajeshwari got certain properties. It is to be numbericed that Nirsu and Ramnath are plaintiffs 8 and 9 and Rajeshwari is plaintiff 10 and Radharaman is plaintiff 11 and they themselves did number give evidence to explain the circumstances under which Ext. 18 came into existence. But the most significant fact is that Sheokumar aid Rajeshwari first claimed that they had been adopted by Parkalo Kumari and it was thereafter that Ext. 18 came into existence. If Sheokumar and Rajeshwari were sure of the custom which is number pleaded, they need number have made a claim on the basis of their being adopted sons. They did number claim on the basis of the custom when they filed the petition in the land registration case. Ext. 18 itself mentions that Sheokumar and Rajeshwari filed an application in the land registration case on the ground that they were adopted sons of Parkalo Kumari and also specifically mentions that they have numberinterest in title to and companycern with the estate left behind by the said mosamat Parkalo Kumari number can they have any. In the face of these two significant facts we do number think that the mere mention of the custom in Ext. 18 establishes the existence of the custom number pleaded. Ex. 18 does number say what the custom was. There was some argument at the bar as to what exactly the original word used was, REWAJ DASTURI or REWAJ-0-DASTURI, whether it was customary usage or custom and usage. Whatever that may be, we are number able to persuade ourselves that if there was such a custom as alleged Sheokumar and Rajeshwari would number have made a claim even in the first event on the basis of the custom. As Rajeshwari and Sheokumar have number given- any evidence as to why they gave up the claim on the basis of the adoption and the document itself, though it mentions custom, does number say that they were given some property on the basis of the custom or what the custom was, we would, giving also full effect to the express disclaimer by both of them to any right, bold that Ext. 18, does number help to establish the existence of the custom pleaded. We are, therefore, of the opinion that the learned Judges of the High Court were right in holding that this instance is number established. Instance 51 relates to the succession to the estate of Net Singh, one of the sons of Ch. Mohkam Singh. Mohkam Singh had five sons, Bhairo Narain, Kalyan, Naraindutt, Summer and Net. According to the plaintiffs Net died issueless and his nephews and grand nephews and great-grand nephews inherited his property per stripes according to custom. The plaintiffs examined P.Ws. 53, 61 and-64 to prove this. The evidence of P.W. 53 was number accepted by the learned Subordinate Judge, P.W. 61 said that he heard of this instance from Wilayati Babu 10 or 11 years earlier. This witness was examined in 1948 and his knowledge was number even ante-litem motem. Moreover, the instance took place more than 100 years before he heard of it from Wilayati Babu and we find it difficult to agree with the learned Subordinate Judge that his knowledge is number only based on what be. heard from Wilayati Babu but also on his independent opinion about it. The learned Subordinate Judge does number place much reliance on P.W. 64 who is himself a plaintiff. We are number able to agree with the learned Subordinate Judge that if it can be proved that the families of the five brothers were number joint but we. separate the defence case must -be thrown out and the plaintiffs case should be accepted. The matter is number as simple as that. Even if Net and his brothers were separate the question is who was alive when Net died. The learned Subordinate Judges decision has simply proceeded on the basis of the, brothers being separate. Nor is his discussion of the importance of Ext. 23 companyrect. When it is stated in Ext. 23, a document of the year 1818 which should have been soon after Nets death, that his four brothers got 1/2 anna share each out of his two annas share, it of companyrse shows that the brothers were separate but it also shows that the four brothers were alive at the time of Nets death and they got his property. There is numbermention here of other brothers or any of them being dead and the nephews or the grand nephews succeeding. We fail to understand how the learned Subordinate Judge accepted the submission on plaintiffs behalf that the reference to four brothers has been made in the sense of their descendants. One cannot make out a new case that is number found there. Exhibits 7, 9 and 23 all go to prove that the family was divided. But the learned Subordinate Judge has missed the crucial point that Ext. 23, which is the only document which refers to Net dying issueless and his brothers succeeding equally to his property gives number merely the share of the four brothers of Net Singh but also how the descendants of the four brothers divided the property among themselves. We, therefore, agree with the learned Judges of the High Court that when Net Singh died his brothers were alive and they got his share. It does number make any difference to the case whether he died separate or number. It is also seen that in view of the statement in Ext. 23 the learned companynsel appearing for the appellants companyld number press this instance very much. We, therefore, agree with the learned Judges of the High Court that this instance also cannot be said to have been proved. The third instance is instance No. 23 regarding succession to the estate of Dr. Rameshwar Singh. Plaintiffs case is that ,hen Rameshwar Singh died about 25 years ago his properties were inherited by his brother, Dhunmun, his nephew Govind and his grand nephew Harbans. P.Ws. 21, 24, 64, 68 and 79 were examined on behalf of the plaintiffs. As against this D.W.61, who was examined on behalf of the defendants, said that Rameshwar died in a state of jointness with his brother and nephew. P.W. 24 said that Rameshwar and his brothers were living in the same house and the descendants of his brothers still live in the same house. It I, therefore, number clinching piece of evidence,. The evidence of P.Ws. 68 and 79 is number of much use as they do number say that they witnessed the division. The learned Subordinate Judge relied on Exts. 43, 28 and 29 series to find in plaintiffs favour. On the other hand the defendants relied on Ext. U59, deposition of Harbans Singh, who is plaintiff No. 50 in this case. Ext. 43 shows that Gouri, Dhunmun and Harbans names were recorded in that document. There was also the name of a stranger to the family recorded in the document. There are three plots in this land more or less of equal area. With regard to one plot it is mentioned that Harbans is in possession and in regard to another plot also the word Shamlat which indicates that the property was undivided. in any case it is number a clinching piece of evidence. As regards Ext. 28 series the learned Judges of the High Court inspected the companynterfoils themselves and found that the book which bore the signatures of defendants is a re- stitched book and therefore held that it, lost its sanctity. It was also admitted that the original stiching was broken and a new book was re-stiched and on seeing the companydition of the companynterfoil book the learned Judges did number place any reliance on the receipts companytained in them- We cannot say that the learned Judges were number justified in doing so. As against this there is the deposition of Harbans Singh dated 16-11-1927 Ext. U59 in a title suit of 1926. There he said that he, Govind and Hari were joint and all their lands were joint. On behalf of the appellants much reliance was placed upon the further statement that their houses were divided. But curiously though Hari is plaintiff No. 29, Govinds son is plaintiff No. 49 and Harbans is plaintiff No. 50, numbere of them gave evidence to explain either Ext. U59 or Ext. 43 or 28 series. We companysider that the criticism by-the learned Judges of the, High Court that the inference drawn by the learned Subordinate Judge that Ext. 43 shows that the statement of Harbans in Ext. U59 was wrong, is a curious one is companyrect. Another important fact is that Dhunmun was one of the petitioners in Ext. EE and that he laid a claim to the property of Ramdhan as the next reversioner and number according to the alleged custom. We, therefore, agree with the learned Judges of the High Court that this instance has also number been proved. The significant, point in all these three instances is the attitude of the parties companycerned. They did number companye and give evidence where they would have been the best persons to explain the circumstances relating to those instances even though as many as 81 instances were examined on their behalf. P.W. 64 was the sole plaintiff to give evidence. Till this case started they have numberhere, literally numberhere, made a claim solely on the basis of the custom which they are number putting forward. The documentary evidence which shows the actual attitude of the parties and their companysciousness regarding the custom is more important than any oral evidence that might have been given in this case. Considerable stress was laid on behalf of the appellants on the fact that some of the defendants I witnesses had said that some of the witnesses on the plaintiffs side are respectable persons and they knew the custom better than they themselves knew. But such statements have to be evaluated in the background of the history of this litigation. It is true that the defendants, who are respondents in this appeal, also put forward some 10 instances to disprove the plaintiffs case but did number succeed in providing them. But in the first instance it is for the plaintiffs to prove the existence of the custom and if they fail to do so they cannot succeed on the basis that the defendants did number succeed in proving that the custom did number exist. In any case as we have held that instances in families other than those of Ch. Mohkam Singh are number relevant numberhing much depends on it. We shall number discuss the attitude of the parties and their companysciousness based on their actions at various stages in this litigation. The earliest of these documents is Ext. EE dated 25-8-1927, a application filed by Dhunmun Singh, father of Hari Singh, plaintiff No. 29 praying that the estate of Ram Dhan Singh may be taken over by the Court of Wards. This was accompanied by genealogy which is found at page 2780 of the paper book. It is admittedly a false genealogy and was apparantly prepared in order to show that he was the nearest reversioner to Ram Dhan Singhs estate. If the present case regarding the special custom obtaining in the family were companyrect this document would certainly have mentioned the custom and dhunmun would have claimed to be reversioner on the basis of the custom. That he had to go to the extent of preparing a false genealogy in order to show that he was the nearest reversioner falsifies the present case about the custom. It should also be remembered that according to the case of the plaintiffs Dr. Rameshwar Singhs property Had been divided a few years earlier according to custom and Dhunmun was one of the parties involved. The next document is Ext. E/10 dated, 5.4.1933. This is the dead of surrender by Pari Kumari in favour of GaYa Prasad Singh and Falgu Prasad Singh. This document was attested by plaintiff 12 the father of plaintiffs 13 to 15 Sarobar Saran ancestor of plaintiffs 16 to 16E and plaintiffs 29, 38 46 and 50 as well as defendants 4, 11, 26, Jairam father of defendant 52 and brother of plaintiffs 34 and 35, Ramkishori father of defendants 29 to 31 and Kapildeo father of plaintiffs 22 to 25. Though attestation by itself does number impute knowledge of the companytents of the document to the attestors, it is very difficult to believe that the attestors did number know its companytents. There had been a number of litigations, both civil and criminal, with regard to Ramdhan Singhs estate by this time and an attempt had also been made, as shown earlier, to bring it under the Court of Wards. The fact that Sunder Singh, the brother of Pari Kuamri, was managing her estate has also been mentioned. The whole history of this case shows that this is a highly litigious companymunity and they would certainly number have attested the document without knowing what it was about. If they knew what the document companytained they would have at least at once seen that it was against their interest if the custom alleged was true. On the other hand if the custom alleged was number true the present defendants would be the nearest heirs and thus these plaintiffs would number mind if somebody else got the property rather than the present defendants. Indeed they may even be interested in seeing that they also did number get any share out of Ramdhan Singhs estate. It is, however, urged on behalf of the appellants that Bisheshwar Singh, father of defendants 7 and 8, whose share companyes to half among the defendants, was also a party to these proceedings on behalf of Gaya Prasad Singh and Falgu Prasad Singh. But that was because he was closely related to Sunder Singh, his son being married to his daughter and he stood to gain more by Gaya Prasad Singh and Falgu Prasad Singh succeeding than by his own succession. The next document is Ext.C dated 29.5.1933 an objection petition filed by plaintiffs 8, 10, 11, 16, 18, 19, 20, 21 as well as Prabhu Deo Narain, father of the plaintiffs 13 to 15 and Nuju Babu Singh uncle of 11 th plaintiff. Along with the objection petition a genealogy was also filed showing Kalyan Singh, son of Ch. Mohkam Singh, as having, two sons Dalip and Niren and thus trying to exclude the branch of Sumer and Bhairo Narain, sons of Mohkam Singh, as well as Hamir and Maniar, sons of Narain Datt. Admittedly this genealogy is false. They claimed as near and legal heirs of Babu Ramdhan Singh on the basis of this false genealogy. Even here there was numbermention of the custom number put forward. It was number necessary to put forward wrong genealogy in order to claim to be near heirs of Ramdhan Singh if the custom were true. The next document is Ext. 1 dated 1-7-1933, an objection petition filed by Sia Saran Singh, the 11th defendant. In this document he denied his signature on Ext. E/10, the deed of surrender and alleged fraud on the part of Sunder Singh. Though a custom was put forward in this document it was alleged to be custom in the family, in the village and in the vicinity and significantly enough he has number joined the plaintiffs in this litigation in order to support the case of custom. Another significant fact is that the only plaintiff examined in this case is Chandrika Prasad Singh, the 1st plaintiff. His brother, Dwarka Prasad Singh, the 2nd plaintiff had given evidence in the land registration case and his deposition is marked as Ext.U/12. There he deposed that if anyone dies issueless the property will be divided according to Khunt Branch . That is apparently the reason why he was number examined. Another significant fact is that some of the plaintiffs, Ram Khilavan Singh, Ram Kishori Singh, Nanu Babu Singh, plaintiff 36, Ram Behari Singh, plaintiff 38 and Deonath Singh gave evidence on behalf of Gaya Prasad Singh and Falgu Prasad Singh in the land registration case as is seen from Exts.U/21, U/24, U/52, U/53 and U/54. They did number claim any interest in the estate as they companyld have if the custom pleaded were true. As we explained earlier they were perhaps more interested in the present defendants number getting any share in Ramdhan Singhs estate as they had numberhope of getting any share themselves, being distant heirs. In the title suits Nos.53 and 61 of 1934 and 20, 29 and 41 of 1935 filed by the present defendants evidence was given on behalf of Gaya Prasad Singh and Falgu Prasad Singh by Badri Singh, father of plaintiffs 5 and 5-A Sheobhaju Singh, plaintiff 3 Jittu Singh, plaintiff 7 Ram Pratap, plaintiff 27, Janardan Singh, 34 Deonath Singh belonging to the family of plaintiff 34 Godawari Singh, defendant 44 Singheshwar Singh, plaintiff 46 Vidya Singh, plaintiff 47 and Ram Behari, plaintiff 38 as is shown by Exts. U/2, 7, 8, 9, 13, 35, 26, 38, 56, and 57. None of them dared to companye forward and give evidence in the present suit. The criticism which we have made earlier as regards the attitude of the plaintiffs in earlier proceedings applies here also. In title suit No. 37 of 1936 filed by some of the present plaintiffs, to which we have already referred, though they referred to a custom, they claimed to be the nearest reversioners according to the Shastras. The genealogy tree filed in that suit showed Dalip Singh as son of Kalyan Singh although he is one of the sons of Narain Datt. It did number refer to the other sons of Mohkam Singh, that is, Sumer, Bhairo Narain and Narain Datt. Dalip was also shown as brother of Niran. In support of their case Ram Nath Prasad Singh, the present plaintiff 9, who was plaintiff 5 in that suit was examined. Hi gave evidence saying that Mohkam had two sons, Net and Kalyan, that Net died issueless and that Sumer, Bhairo Narain and Narain Datt are number Soils of Ch. Mohkam. In that very suit Singheshwar Singh, plaintiff 46, Ram Kishore father of plaintiff 29, Ramkhelavan Singh, 13th Defendant, Nanu Babu Singh, plaintiff 36, Badri Singh, plaintiff 5 were examined on behalf of Gaya Prasad Singh and Falgu Prasad Singh as shown by Ext.U/11, 19, 3, 43 and 44. Sheobhaju Singh, the present plaintiff 3 whose deposition is marked as Ext. U , denied the custom number put forward by the plaintiffs. We should, perhaps, at this stage refer to Ext.16, deed of sale by Zalim Singh, 4th defendant, in favour of Ram Khilavan, 13th defendent Ext.16-A, deed of sale by Barho Singh, 5th defendant, to Ram Saran Singh, 12th defendant Ext.16-F, deed of sale by Zalim Singh, the 4th defendant, in favour of Bindo Singh, and Ext.16-E, a deed of sale by Zalim Singh to Ram Saran, 12th defendant. These documents were like Ext-18 relied upon very much by the appellants as showing that as the nearest reversioners they had recognised the right of the more distant reversioners. it should be remembered that these documentsare allof the year 1937 when the earlier litigation hadnotended. The documents themselves show that the executants were poor men and they were being financed by the more distant relatives. The documents themselves purport to be out and out sale deeds and in the absence of any evidence by the parties to those documents who are parties in this suit but have number given any evidence as to why and how those documents were executed or the recitals in those documents were put in we cannot place any reliance upon them as establishing that the documents show a recognition by the near agnates of the rights of distant agnates. They seem to be documents executed because of the financial help received by the executants and partly perhaps to buy up the rich and powerful relatives who might otherwise give trouble. We are number inclined to attach much importance to them as esta- blishing the custom pleaded. Ext.17-A does number carry the case of the plaintiffs any further. We are, therefore, satisfied that the plaintiffs appellants have faded to prove the custom pleaded by them. Their attitude throughout is companysistent only with their companysciousness that they had numberright to or any share in Ramdhan Singhs estate. If they had they would have joined the plaintiffs in title suits Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 or filed independent suits themselves at the same time putting forward their claim on the basis of custom. On the other hand they supported the defendants in those suits. It would have occurred to the meanest intelligence that if the defendants in those suits succeeded the present plaintiffs have numberchance of getting anything where as if the plaintiffs in those suits succeeded and if the custom alleged were true, they might also get a share. And these are number ignorant men but companyfirmed litigants. Not even one plaintiff among the many who were parties to the various documents so far companysidered has dared to appear as a witness and explain the companytents of those documents which are certainly number companysistent with the custom pleaded. Even S. No. 37 of 1936 was an half-hearted attempt by the present plaintiffs and that was filed only after the success of T.S. Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935. They have been more companysistently siding with Gaya Prasad Singh and Falgu Prasad Singh because they knew that they had numberrights and there was numbercustom and they had numberhing to lose if the present defendants-respondents lost in that litigation. On the earlier occasions whenever they tried to put forward a claim it was on the basis of being near reversioners and sometimes on the basis of false genealogy than on the basis of custom. It is easy enough to get any number of persons to give oral evidence about what happened many many years ago. It is difficult to disprove them. At best it will be a case of hard swearing on either side. We would rather place reliance on the documents and the attitude of the parties as shown by them. One has only to read the evidence of P.W. 64, the star witness on the side of the plaintiffs. The man seems to have an almost companyputer like memory but we find it difficult to believe him when he says that he kept quiet because he was promised a share after the title suits filed in 1934 and 1935 succeed. One man may I have kept quiet but number a host of people on such a promise. Even if promises were made they would have insisted on something being given in writing. In a highly litigious village like this people are number likely to keep quiet depending upon oral assurance where valuable pro- perties are involved. They would number support the case of imposters like Falgu Prasad Singh and Gaya Prasad Singh if they themselves had hopes of getting any share. It can only be on the basis of the custom which is number being put forward that they companyld have got a share. It is a baseless claim and t he plaintiffs have failed to prove the custom pleaded by them. Before we companyclude we must refer to the preliminary objectionraised on behalf of the respondents that the appeals should be dismissed and the companytention on behalf of the appellants that the appeals before the High Court in this case should have been dismissed and companysequently the present appeals should be allowed simply on that ground.The objection on behalf of the respondents is based on the following facts Plaintiff No 29. Hari Singh son of Dhumnun Singh died in 1953. His widow Manmohini and son Raktoo Singh, appellant 88, were substituted in his place on 12.8.1953. With the companying into force of the Hindu Succession Act the share of the widow in her husbands estate became a full estate. Maninohini died on 1.11.1967 leaving behind her daughter Ghia Devi and son Raktoo Singh. The advocate for the appellants wrote to the Court that as Raktoo Singh was the only heir of Manmohini and he was already on record it was number necessary to add Manmobinis legal representatives and her name may be struck off. They did number want to proceed with the application for adding legal representatives. The Registrar also has recorded that the application was number pressed. On 27.4.1968 the respondents made an application stating that the appeal had abated as Manmohinis daughter Ghia Devi had number been added as party. On 30-7-1968 a fresh application ,as filed for adding Ghia Devi as a legal representative and praying that the abatement may be set aside. This appli- cation was dismissed on 30.8.1968. The order on that application ,was Delay in making the application for bringing on record Mst. Ghia Devi number companydoned. The application for bringing her on record is dismissed on the ground of delay. The question as to the effect of this order will be companysidered at the time of the final hearing of the appeals. The companytention is that as Ghia Devi was number added as a legal representative after her mother Manmohinis death the appeal had abated as tar as Manmohini Devi was companycerned and as the decree is one and indivisible the whole appeal had abated. This companytention was sought to be sustained on the basis of the decisions of this Court in The State Of Punjab v. Nathu Ram 1962 2 SCR636 and Remeshwar Prasad v. Mls. Shyam Beharilal Jagannath 1964 3 SCR549 . As against this, reliance is placed on behalf of the appellants on the decisions in Daya Ram v. Shyam Sundari 1965 2 SCR231 , Dolai Molliko v. K. C. Patnaik 1966 Supp SCR22 , Ratan Lal v. Lal Man Das 1970 1 SCR296 and Mahabir Prasad v. Jage Ram 1971 3 SCR 301 . We companysider that there is numbersubstance in the preliminary objection raised on behalf of the respondents and it should be rejected. As was pointed out by this Court in Daya Ram v. Shyam Sundari supra in Ram Sarup v. Munshi 1963 3 SCR858 one of the appellants had died pending the appeal and his legal representatives were number brought on record. As the decree was a joint one and as part of the decree had become final by reason of the abatement it was held that the entire appeal must be held to have abated. The State of PunJab v. Nathu Ram supra was a case where a joint decree had been passed in favour of two individuals and that was challenged in the appeal before the High Court. It was companymon ground that the appeal against one of the joint decree holders and abated owing to numbere of his legal representatives having impleaded within the time limited by law and there being numbere on record to represent his estate. In such a ,case the only question that companyld arise would be whether the abatement which ex companycessis took place, as regards one of the respondents should be companyfined to the share of the deceased respondent as against whom the appeal has abated, or whether it would result in the abatement of the entire appeal. This would depend on the nature of the decree and the nature of the interest of the deceased in the property. If the decree is joint and indivisible, the abatement would be total. That was precisely the question which was raised in Nathu Rams case and the decision in Ram Sarup Munshi is also in illustration of the same principle. In Rameshwar Prasad v. M s. Shyam Beharilal Jagannath nine persons including instituted a suit for ejectment and recovery of rent against two defendants and obtained a decree. During the pendency of the second appeal in the High Court K died. His legal representatives number having been added the appeal abated as far be was companycerned. When the appeal came up for bearing the respondents took a preliminary objection that the entire appeal had abated. The appellants claimed that the appeal was maintainable on the ground that the stir- viving appellants companyld have filed the appeal against the entire decree in view of the provisions of O.41, r. 4 of the Code of Civil Procedure and that they were, therefore, companypetent to companytinue the appeal even after the death of K and the abatement of the appeal so far as he was companycerned. It was held that the provisions of O.41, r. 4 of the Code of Civil Procedure were number applicable, since the second appeal was filed by all the plaintiffs and the surviving appellants companyld number be said to have filed the appeal as representing It was further held that an appellate companyrt had numberpower to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O.41, r. 4 when the decree proceeded on a ground companymon to all the plaintiffs or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died and the appeal abated so far as he was companycerned under O.22, r. 3. It was also held that the provisions of O.41, r. 33 were number applicable. The companytent-,,on that all the appellants belonged to a joint Hindu family was rejected in that case. It was also held that O.41, r. 4 applies to the stage when an appeal is filed but that once an appeal has- been filed by all the plaintiffs the provisions of O.41, r. 4 became unavailable. It was also held that if some party dies during the pendency of the appeal his legal repre- sentatives have to be brought on the record within the period of limitation, and if that is number done, the appeal by the deceased appellant abates and does number proceed any further. In so holding this Court over ruled the view taken by the Bombay, Calcutta and Madras High Courts in Shripad Balwant v. Nagu Kusheba ILR 1943 Bom. 143 , Satulal Bhattachariya v. Asiruddin Shaikh ILR 61 Cal. 8791 and Somasundaram Chettiar v. Vaithilinga Mudaliar ILR 40 Mad. 846 respectively which had held that if all the plaintiffs or the defendants appeal from the decree and any of them dies the appellate companyrt can proceed with the appeal and reverse or vary the decree in favour of all the plaintiffs or defendants under O.41, r. 4 when the decree proceeds on a ground companymon to all the plaintiffs or defendants. The important point to numbere about this litigation is that each of the reversioners is entitled to his own specific share. He companyld have sued for his own share and got a decree for his share. That is why five title suits Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 were filed in respect of the same estate. In the present case also the suit in the first instance was filed by the 1st and 2nd plaintiffs for their 1/12th share. Thereafter many of the other reversioners who were originally added as defendants were transposed as plaintiffs. Though the decree of the Trial Court was one, three appeals Nos. 326, 332 and 333 of 1948 were filed by three sets of parties. Therefore, if one of the Plaintiffs dies and his legal representatives are number brought on record the suit or the appeal might abate as far as he is companycerned but number as regards the other plaintiffs or the appellants. Furthermore, the principle that applies to this case is whether the estate of the deceased appellant or respondent is represented. This is number a case where numberlegal representative of Manmohini was on record. Order 22, r. 4 of the Civil Procedure Code reads 4. 1 Where a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representive of the deceased defendant to be made a party and shall proceed the suit. 4. 3 Where within the time limited by law numberapplication is made under sub-rule 1 , the suit shall abate as against the deceased defendant. As pointed out by this Court in Daya Ram v. Shyam Sundari, the almost universal companysensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is numberabatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record will bind number merely those impleaded but the entire estate including those number brought on record. It was observed by the Madras High Court in Kadir v. Muthu- krishna Ayyar ILR 26 Mad. 230 In our opinion a person whom the plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such de- fendant sufficiently represents the estate of the deceased for the purpose of the suit and in the absence of any fraud or companylusion the decree passed in such suit will bind such estate If this were number the law, it would, in numberfew cases, be practically impossible to secure a companyplete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan party and there can be numberhardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under sections 365, 367 and 368 of the Civil Procedure Code, though such person may be only one of several legal representative or may number be the true legal representative. After referring to this statement of the law this Court in Daya Ram v. Shyam Sundari went on to remark In a case where the person brought on record is a legal representative we companysider that it would be companysonant with justice and principle that in the absence of fraud or companylusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating. In Dolai Molliko v. K. C. Patnaik on the death of one of the plaintiffs appellants in an appeal pending before the Subordinate Judge his widow and the major son were substituted on record as heirs. It was later discovered that the deceased had left some other heirs besides the two. The respondents raised an objection that as some of the heirs of the deceased had been left out and there companyld be numberquestion of want of knowledge of the existence of these heirs on the part of the widow and the major son who had applied for being brought on record, the appeal abated. It would be numbericed that the position is exactly the same here. This Court held The estate of the deceased was fully represented by the heirs who had been brought on the record and these heirs represented the absent heirs also, who would be equally bound by the result. It was observed Even where the plaintiff or the appellant has died and all his heirs have number been brought on the record because of oversight or because of some doubt as to who are his heirs, the suit or the appeal, as the case may be, does number abate and the heirs brought on the record fully represent the estate unless there is fraud or companylusion or there are other circumstances which indicate that there has number been a fair or real trial or that against the absent heir there was a special case which was number and companyld number be tried in the proceedings. After referring to the decisions in N. K. Mohd. Sulaiman Sahib v N. C. Mohd. Ismail Sahab 1966 1 SCR 937 and Daya Ram v Shyam Sundari supra the Court went on to observe It will be numbericed that there is one difference between the present case and the two cases on which reliance has been placed on behalf of the appellants. This is number a case where a plaintiff or an appellant applies for bringing the heirs of the deceased defendant or respondent on the record this is a case where one of the appellants died and his heirs have to be brought on record. In such a case there is numberquestion of any diligent or bona fide enquiry for the deceased appellants heirs must be known to the heirs who applied, for being brought on the record. Even so we are of opinion that unless there is fraud or companylusion or there are other circumstances which indicate that there has number been a fair or real trial or that against the absent heir there was a special case which was number and companyld number be tried in the proceeding, there is numberreason why the heirs who have applied for being brought on record should number be held to represent the entire estate including the interests of the heirs number brought on the record. This is number to say that where heirs of an appellant are to be brought on record all of them should number be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased appellant is left out that in itself would be numberreason for holding that the entire estate of the deceased is number represented unless circumstances like fraud or companylusion to which we have referred above exist. In the present case there is numberquestion of any fraud or companylusion, number is there anything to show that there had number been a fair or real trial number can it be said that against the absent heir there was a special me which was number and companyld number be tried in the proceeding in his absence. --L346 Sup CI/75 It must be made clear that the fraud or companylusion mentioned must be a fraud or companylusion between the appellant on the one hand and the representative of the deceased respondent who is brought on record on the other and vice versa. In the present case failure to bring Ghia Devi, daughter of Manmohini, on record cannot be said to be a fraud on the part of her brother Raktoo Singh in companylusion with the respondents number can he deprive Ghia Devi of her rights by number impleading her as the legal representative of their deceased mother. The fraud companytemplated is a fraud or companylusion between the parties on record to the detriment of the legal representative who has number been brought on record. In Ratan Lal v. Lal Man Das supra the respondent obtained a joint decree against the appellant and his partner M. Against the decree, the appellant alone appealed to the- High Court. M was impleaded as the second respondent in the appeal. The numberice of appeal sent to M was returned unserved. The High Court dismissed the appeal. This Court held The appeal companyld number be dismissed on the ground that M was number served with the numberice of appeal, number, in view of the provisions of Order 41, Rule 4, companyld the High Court dismiss the appeal on the ground that there was a possibility of two companyflicting decrees. and pointed out The object of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground- companymon to him and others. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant. This Court referred to the decision in Karam Singh Sobti Anr. v. Shri Pratap Chand Anr. 1964 4 SCR 647, where it was observed The suit had been filed both against the tenant and the Sub-tenant, being respectively the Association and the appellant. One decree had been passed by the trial Judge against both. The appellant had his own right to appeal from that decree. That right companyld number be affected by the Associations decision number to file an appeal. There was one decree and, therefore, the appellant was entitled to have it set aside even though thereby the Association would also be free from the decree. He companyld say that that decree was wrong and should be set aside as it was passed on the erroneous finding that the respondent had number acquiesced, in the subletting by the Association to him. He companyld challenge that decree on any ground available. The lower appellate Court was, therefore quite companypetent in the appeal by the appellant from the joint decree in ejectment against him and the Association, to give him whatever relief he was found entitled to, even though the Association had filed numberappeal. In Mahabir Prasad v. Jage Ram supra it was held Wherein a proceeding a party dies and ode of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and numberapplication for impleading them is made within the period of limitation prescribed by the Limitation Act the proceeding will number abate. That meets the point raised by the respondents exactly. The principle is of representation of the estate of the deceased which need number be by all the legal representatives of the deceased. The preliminary objection is, therefore, overruled. The above discussion also meets the plea raised on behalf of the appellants. As we have already mentioned, against the decree of the Sub-Judge First Appeals Nos. 326, 332 and 333 of 1948 were filed before the High Court. In appeal No. 326 Nirsu Prasad Singh was made a party but number in appeals Nos. 332 and 333. The parties seem to have been so companyfused that only in F.A. No. No. 332 of 1948 an application was made to implead Nirsu Prasad Singh as a party on tic ground that he was number impleaded as a respondent by mistake. This was dismissed by the High Court on 1-3-1951. No body seems to have numbericed that Nirsu Prasad Singh had number been made a party in F.A. No. 333 of 1948 also. This was numbericed by the learned Judges of the High Court at the companyclusion of the hearing of the appeals before it. The appeal was, therefore, listed for being mentioned and the learned Judges brought this fact to the numberice of the parties and the appellants in F.A. No. 333 thereafter put in an application under Order 41, rule 20 and section 151 of the Code of Civil Procedure for adding the name of Nirsu Prasad Singh as a party. We will quote the learned Judges on this point Although left to ourselves, we would have allowed this application and added Nirsu Prasad Singh as a party in the, appeal even at that late stage but we did number think it advis- able to adopt this companyrse in view of order dated 1-3-1951 passed in F.A. 332/48 and we, therefore, rejected this application by our order No. 145 dated 22-4-1959 passed in F.A. 3 3 3 /48. The position, therefore, is that Nirsu Prasad Singh, plaintiff No. 8 is number a party respondent in two of the appeals but he is a party in one of the three. I may numbere that both parties agreed before us that the appellants is F.A. 332/48 and F.A. 333/48 have been impleaded as respondents in F.A. 326/48. Therefore, even if we dismiss these two appeals on the ground of this highly technical objection, it is possible to give relief to the appellants of these two appeals in F.A. 326/48 under order 41 rule 33 of the Code of Civil Procedure. Since plaintiff No 8 is a party respondent in F.A. 326/48 along with all other plaintiffs, there will be numberconflict of decree and- the result of our allowing F.A. 326/48, which has got to be allowed in view of my findings above,, 95 6 would be to set aside the entire decree in favour of the plaintiffs-respondents and that can be done even at the instance of some of the companytesting defendants. I am, therefore, of the view that First Appeals 332 and 333 of 1948 also cannot and should number fail on this technical preliminary ground. We think that the companyclusion of the learned Judges of the High Court was right. Against the same decree passed by the learned Subordinate Judge there were three appeals. In one appeal, that is F.A. No. 326 of 1948, Nirsu Prasad Singh was impleaded as a party but number in the other two appeals. F.A. No. 326 of 1948 was filed only by some of the defendants in the suit. It was, therefore,.possible by the application of the provisions of O.41 r. 4 and r. 3 3 to have allowed the appeal in full and given relief number merely to the appellants in F.A. 326 but also to the appellants in F.As 332 and 333 assuming that they had number filed these appeals, The utmost that can be said is that the effect of the failure to implead Nirsu Prasad Singh as a respondent in F.As. 332 and 333 is that these two appeals will have to fail but that does number mean that F.A. 326 has also to fail. It is number even a case where the appellants in F.As. 332 and 333 had number taken the trouble of filing an appeal and therefore it can be said that they should number be given the benefit of the appeal filed by the appellants in F.A. 326. They had filed appeals in order to establish their rights. It was by an oversight in filing those appeals that they had failed to implead Nirsu Prasad Singh as a party. To such a case O.41, r. 33 clearly applies. The cases where the provisions of O.41, r. 33 can be applied have, it we may say so, been set out companyrectly after a very full discussion by a Bench of the High Court of Madras in its decision in Krishna Reddy v. Ramireddi AIR 1954 Mad. 848 . Speaking through Venkatarama Aiyar, J., as he then was, the Court observed Though O. 41, R. 33 companyfers wide and unlimited jurisdiction on Courts to pass a decree in favour of a party who has number preferred any appeal, there are, however, certain well defined principles in accordance with which that jurisdiction sh ould be exercised. Normally, a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after companyplying with. the requirements of law. Where he fails to do so, numberrelief should ordinarily be given to him under O. 41, R. 33. But there are well recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties. A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. A third class of cases is when the relief prayed for is single and indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might companye into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and companytradictory. This however, is number an exhaustive enumeration of the class of cases in which companyrts companyld interfere under O.41, R. Such an enumeration would neither be possible number even desirable. Considering the question on principle, when a decree is in substance a companybination of several decrees against several defendants, there is numberreason why an appeal presented by one of the defendants in respect of his interest should enure for the benefit of the other defendants with reference to their interests. Thus where a reversioner files a suit to recover possession of his share of many items of properties which are held by different defendants under different alienations, some of which might be valid and others number, there is numbercommunity of interest between them. The plaintiff companyld have filed a separate suit in respect of each item and impleaded as defen- dants therein only the alienee interested in that item. In that event, if all the suits were decreed but an appeal were to be preferred against the decree in only one of them and that appeal is allowed, that would number operate as reversal of the decrees in the other suits number would there be any power in the Cout to set aside those decrees under O.41, R. 33. It would number make any difference when the plaintiff has, for companyvenience, companybined several suits into one. As we have already pointed out, in this case each one of the plaintiffs companyld have filed a suit for his share of Ramdhan Singhs estate. The fact that all the reversioners joined together as plaintiffs and filed one suit does number mean that if for one reason or other the suit of one of them fails or abates the suit of the others fails or abates. The decree is in substance the companybination of several decrees in favour of, several plaintiffs. If in an appeal against the decree one of the plaintiffs is number added as a respondent, it only means that the decree in his favour cannot be set aside or modified even if the appeal succeeds against other plaintiffs in respect of their interest. There would in that case be numberconflict between the decrees as the decree is a companybination of many decrees. In other words the result of the failure to add Nirsu Prasad Singh as a respondent in A. 332 and F.A. 333 would be that the decree granted in his favour by the Subordinate Judge would stand but number the decrees granted in favour of the other plaintiffs. They can be reversed in those appeals. There was numbersuch difficulty in F.A. 326 and, in that appeal the decree granted in favour of Nirsu Prasad Singh as well as in favour of other plaintiffs companyld have been reversed. This is number a case where a party who is aggrieved by a decree fails to file an appeal within the time allowed by law and should number, therefore, be granted relief under O.41, r. 33. We do number think that the decision relied upon by the appellants in Jhinghan Singh Anr. etc. v. Singheshwar Singh Ors. etc. C.A. Nos. 1 14-122, of 1 958 decided on 20-4-1965 helps the appellants. In that case Singheshwar Singh was one of-the appellants in C.A. Nos. 114 and 115 and respondent in the others appeals. Kaushal Kishore Prasad Singh was-one of the appellants in C.A. Nos.116 and 117 and a res- pondent in the other appeals. Both- of them died and the pending appeals abated against them. The companytest respondents took the preliminary objection that all the appeals had become defective for number-joinder of the legal representatives of Singheshwar Singh and Kaushal Kishore Prasad Singh and this objection was accepted. The decision proceeded on the basis that the plaints in the several suits raised a dispute between a body of landholders claiming khas possession of the lands and a number of persons claiming to be occupancy tenants thereof, that in substance, the plaintiffs asked for an adjudication that the lands were bakasht and the first party defendants were number occupancy tenants and to such suits all the landholders were necessary parties. It was therefore held that as in the appeals before this Court the landholders claimed the same relief which they sought in the trial Court and in those appeals also Singheshwar Singh and Kaushal Kishore Prasad Singh were necessary parties, in the absence of their legal representatives the appeals were number maintainable. It would be seen that the two appellants whose legal representatives were number added as parties were parties in all the four suits and in all the four appeals and the question was a companymon question to which all the land holders were necessary parties. As we have explained earlier that is number the position here. The decision in Kishan Singh Ors. v. Nidhan Singh Ors. A. No. 563 of 1962 decided on 14-12-1964 and the statement of law laid down by this Court therein in the following terms Mr. Bishan Narain points out that in substance, the present suit is between the landholders on the one hand and those who claimed to be occupancy tenants on the other. It is true that the plaint alleges that the occupancy rights were extinguished on the death of the last occupancy tenant Narain Singh, but that has been denied by the appellants, and in fact, round this dispute the whole companytroversy centres in the present suit. There is numberdoubt that the allegations made in the plaint clearly show that the dispute is between the landholders and the person who claim to be occupancy tenants, and so, it is plain that in such a dispute the whole interest of the landholders and the whole interest of the tenants must be adequately represented. The tenancy rights which the appellants claim are numberdoubt based on the presumption under s. 5 2 of the Tenancy Act. But the relationship in respect of which the said presumption would arise is a relationship of landlord and tenant, and this relationship in the very nature of, things is one and indivisible. Therefore, when a claim is made to evict the persons who allege that they are tenants the whole of the landlords interest must be before the was cited with approval in- Jhinghan Singh Anr. etc. v. Singheshwar Singh Ors. etc. , supra . It-does number, therefore stand on any different footing. hold, therefore, that the learned Judges of the high companyrt were companyrect in holding that at least F.A. 326 had number abated because of the failure to implead Nirsu Prasad Singh as a respondent in As. 332 and 333 and it was open to the Court in F.A. 326 in exercise of its powers under O.41, r. 33 to give all the appellants therein, that is, the respondents in the appeals before this Court, the relief that the appellants in F.A. 326 were entitled to. The plea of the appellants is, therefore, overruled. In the result the appeals are dismissed with companyts, one set hearing fee.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 463 of 1971 2004 of 1973. Petitions under Art. 32 of the Constitution of India. DP. L. Singhvi, S. K. Mehta and M. Qamaruddin, for the petitioners In W.P. No. 463/71. K. Mehta and M. Qamaruddin, for the petitioners In P. No. 2004/73 N. Phadke and M. N. Shroff, for respondents In W.P. No. 463/71 and respondents Nos. 1--4 In W.P. No. 2004/73 The Judgment of the Court was delivered by BEG, J.-Amrit Lal Berry in Writ Petition No. 463 of 1971 and N. Kapur 14 others in Writ Petition No. 2004 of 1973 have applied to this Court under Article 32 of the Constitution of India. They companyplain of violation of Article 16 of the Constitution on the ground that they were illegally discriminated against by the respondents inasmuch as they were number companyfirmed and then promoted when they ought to have been. They assert that if, according to the appli- cable rule, they had been assigned their companyrect places in the seniority lists, as laid down in the Office Memorandum dated 22-6-1949, prepared by the Ministry of Home Affairs, they would have been duly promoted. Each of them, on similar facts, relies upon the law laid down by this Court, in Union of India v. M. Ravi Varma Ors. etc. 1 Assertions id the petition of Amrit Lal Berry illustrate the nature of the cases of all the petitioners. We will indicate the cases, of the parties before we take up the questions of law arising for companysideration and decision by us here. Amrit Lal Berry was appointed Inspector in the Central Excise Collectorate at Delhi, by orders dated 22-11-1948, and, on 4-12-1948, was posted at Forozepur. On 22-6-1949, the Ministry of Homo 1 1972 2 S.C.R. 992. Affairs. issued a Memorandum companytaining the principle that the, seniority of existing Govt. servants will be determined by the date of their appointment and number from the date of their companyfirmation. The petitioner asserts that, in accordance with this principle, he was companyrectly assigned his seniority in the list issued in 1958 after the petitionerhad been companyfirmed in a permanent post under an order dated 5-5-1956 with effect from 1-7-1955. An extract from the order shows that,. although, the petitioner is a A. and shown as appointed on 15-12-1948, and Narinder Singh, the Inspector next in order of seniority, who was only a Matriculate, appointed subsequently on 7-2-1949, was companyfirmed retrospectively with effect from 1-7-1953, that is to say, two years earlier than the petitioner. There is, however, a difference in age shown between the two inasmuch as the date of birth of the petitioner is given as 5-4-1925 whereas that of Narinder Singh is shown as 24-7-1911. The petitioner points out that, despite these different dates of companyfirmation of Inspectors, so that juniors were sometimes companyfirmed earlier , they retained their seniorities in accordance with the Office Memorandum of 22-6-1949 which made the length of service the only material companysideration for purposes of seniority. But, after the Office Memorandum dated 22-12-1959, the rule applied was altered in the Excise Department. New seniority lists were prepared in which seniorities were determined from the dates of companyfirmation. The result was that Government servants, who ought to have been placed below the petitioner have been, it, is asserted, promoted as Superintendents of Central Excise in the years 1970 to 1971. The petitioner gave a list of twelve juniors who have been so promoted because, according to him, the impugned seniority list of 1-7-1967 illegally put them above the petitioner. The petitioner also companyplained that, owing to the illegally prepared seniority list, he had been given the grade of a Senior Inspector only on 8-12-1967 and number with effect from 21-3-1961 as it ought to have been done. The petitioner companyplains of the allegedly illegal companyfirmation. going as far back as 1955, and illegal seniority lists prepared after 22-11-1959. He has annexed companyies of representations dated 6-3-1965, and, 13-8-1971, to which, according to him, numberreplies were given. The petitioner, therefore, came to this Court seeking relief against what he describes as the impugned list which, according to paragraph 8 of his petition is dated 1-7-1967 Annexure 7 to his petition , and to allegedly illegal promotion of juniors without setting out the names or dates of promotions of all those so promoted. Presumably, these promoted Inspectors are the 77 persons impleaded as respondents 5 to 81 in the petition before us. Out of these, only twelve, with their places shown as lower than the petitioners number 204 in the list prepared before 1959. were specifically mentioned in the list of allegedly illegal promotions of 1970-71. Amrit Lal Berrys petition to this Court was filed on 9-12-1971. By an application dated 9-3-1973, Amrit Lal Berry sought an amendment of his Writ Petition asking this Court to quash the Office Memorandum dated 22-7-1972 on the ground that it does number interpret companyrectly the judgment of this Court in Ravi Varmas case supra delivered on 4-1-1972. The, petitioner companytends that office Memorandum, dated 22-7-1972 was baud on a wrong interpretation of the law laid down by this Court inasmuch as, while determining the seniority of the petitioner according to the 1949 rule, it does number award companysequential benefits which would have been reaped by the petitioner in the past, if the seniority rule, laid down in the 1949 memorandum, had been followed in the past. N. Kapur and 14 others also give the dates of their appointments as Inspectors ranging from 15-5-1944 in the case of K. N. Kapur to 19-1-1950 in the case of Ravinderlal. The dates of companyfirmation vary from 1-7-1956, in the case of N. Kapur, to 1-12-1962, in the case of S. L. Chopra. The dates of their entry into the senior grade also extend from 29-3-1965, in the case of M. S. Ahluwalia, to 22-11-1971, in the cases of P. L. Sharma and R. L. Kapania. Columns in a list given in the Writ Petition, showing the serial numbers accor ding to the seniority list prior to 22-12-1959 and the subsequent seniority list of 1961, show wide gaps the biggest of which is in the case of K. N. Kapur who came down from his place at No. 32 to No. 252. The seniority list companyplained of was, however, stated to be, the one prepared in 1961. All the petitioners assert that the seniority lists of 1958 to 1959 were companyrectly prepared in accordance with the Office Memorandum of 22-6-1949. The whole mischief, according to the petitioners, resulted from misplacing of the names of the petitioners, after the 1959 memorandum, in the seniority list of 1961, which ignored the companyrect or applicable principle for preparation of the senio rity lists according to the memorandum of 1949. The Writ Petition of K. N. Kapur and 14 others dated 20-10- 1973 was filed on 22-10-1973. In this petition, it is asserted that the office memorandum dated 22-7-1972 issued by the Ministry of Home Affairs Annexure D to the petition and the Office memoranda, dated 16-3-1973 and 17-3-1973, issued by the Ministry of Finance, are illegal inasmuch as they do number properly give effect to the decision of this Court in Ravi Varmas case supra . The petitioners asked for the quashing of office memorandum dated 22-7-1972 prepared by the Ministry of Home Affairs and the office memoranda dated 16-3-1973 and 17-3 1973 prepared in the Ministry of Finance. The further relief asked for is that this Court may direct the Collector of Central Excise and the Union of India to implement the decision of this Court given on 4-1-1972 in Ravi Varmas case supra so that the office memorandum dated 22-6-1949 and number the office memorandum dated 22-12-1959 may govern the cases of the petitioners. They also claim the award of all benefits companysequential to the companyrect preparation of seniority lists, such. as companyfirmations, promotions, and payments of amounts which should have been made in the past. The petitions were opposed on various grounds. The alleged violation of the law by the memoranda of 1972 and 1973 were, it was submitted, only attempts made by the opposite parties to adjust the operations of two opposing principles of justice and law laid down by this Court the seniority according to length of service rule of 1949 and what may be called the principle of number-disturbance of rights claimed due to companyfirmations or promotions to a higher post going far back. It was submitted that there had been numberinfringement of any right or provision of law at all. Alternatively, it was urged that, even if the petitioners companyld make out violation of any applicable rules of law regulating the companyditions of service of the petitioners, they do number establish the denial of any fundamental right of the petitioners Constitution. In any event, the petitions are said to be barred by the principles of laches and acquiescence. It was also suggested by the learned Counsel for the opposite parties, particularly in the case of K. N. Kapur Ors., that the cause of action asserted by each alleged infringement of a right being separate on each occasion it should have been made the subject matter of a distinct and separate petition assailing the particular alleged infringement on each occasion. In the case of K. N. Kapur others, the companytention appeared to be that there was number only a misjoinder of causes of action but also of a number of petitioners each of whom companyld only have a sepa- rate cause of action whenever any alleged violation of a fundamental right took place. It was also submitted that the assertions in the applications did number companytain necessary averments to establish violations of fundamental rights so that petitions under Article 32 of the Constitution should be dismissed in Iimine on this ground alone. It was pointed out that the petition of K. N. Kapur and others did number even disclose a demand made to the opposite parties to do justice, followed by its refusal by the opposite parties, so that a companydition precedent to the issue of a Writ of Mandamus was also wanting here. It is true that assertions in each of the two petitions are of a very general character. The petitions seem to rest on the assumption that all that need be asserted is the violation of some rule companytained in an, office memorandum which governed the rights of the petitioners in the, past. There is numberdoubt that. the office memorandum of 22-7-1972 was issued, in companysequence of the decision of this Court in Ravi Varmas case supra dated 4-1-1972, to meet the situation created by it in the companytext of previous office memoranda on the subject. If the 1972 memorandum companyrectly interprets and applies the law laid down by this Court there would be numberneed to proceed further with the companysideration of the petitions before us. This memorandum itself gives the history of previous relevant office memoranda and the need for their displacement by new instructions due to the decision of this Court in Ravi Varmas case. It reads as follows No. 9/3-/72-Estt. D Government of India Cabinet Secretariat, Department of Personnel, New Delhi, dated the 22nd July, 1972. OFFICE MEMORANDUM SUBJECT -Supreme Court-Civil Appeals Nos. 1845 of 1968, 1846 of 1968 and 50 of 1969- Interpretation of Ministry of Home Affairs M. No. 9/11/55-RPS., dated 12-12-1959. regarding general principles for determining seniority of various categories of persons employed in Central Services- As the Ministry of Finance etc. are aware, under the orders companytained in Ministry of Home Affairs O.M. No. 30/44/48- Apptts., dated 22-6-1949, companyy enclosed as annexure 1 , seniority in a grade was to be determined, as a general rule, oil the basis of the total length of companytinuous service in the grade, as well as service in an equivalent ,grade, the term Service in an equivalent grade being defined as service on a rate of pay higher than the minimum of the time-scale of the grade companycerned, irrespective of whether it was rendered in the Central or Provincial Government in India or Pakistan. Seniority of persons appointed on a permanent or quasi-permanent basis prior to the 1st January, 1944 was, however, number disturbed by the office memorandum of 22-6-1949. The instructions companytained in that O.M. were issued in order to safeguard the interests of displaced Government servants appointed to Central Services after partition, but as it was number possible to regulate the seniority of only displaced Government servants by giving them credit for previous service, the instructions of 22-6-1949 referred to above were made applicable to other categories of persons also a appointed to Central Services. There were, however, certain services posts which were exempted from the operation of the M. ,of 22-6-1949. In the companyrse of time, displaced Government servants had, by and large, been absorbed in the various Central Services and their seniority fixed with reference to the length of service rendered by them, as provided in the O.M. of 22-6-1949. It was, therefore, felt that it was numberlonger necessary to apply the instructions of 22-6-1949 in preference to the numbermal principles for determination of seniority. As a result, revised principles of seniority were issued in December, 1959, in companysultation- with the Union Public Service Commission, vide Ministry of Home Affairs O.M. No. 91/11/55-RPS, dated 22-12-1959 .copy. enclosed as annexure 11 , which is still in force. As would be seen from para 2 and 3 of the O.M. of 22-12-1959 mentioned above, except as otherwise provided in that O.M. or except for such services and posts for which separate principles of had already been issued or which might be issued thereafter, the seniority of all persons appointed to the various Central services after the date of that O.M. viz. 22-12-1959 was to be determined in accordance with the general, principles of seniority companytained in the annexure to that O.M. and those general principles were number to apply with retrospective effect. According to para 2 of the annexures to that O.M., persons appointed in a substantive or officiating capacity to a grade prior to the issue of the general principles of seniority shall retain their relative seniority already assigned to them, or such seniority as may thereafter be assigned to them under the existing orders applicable to their cases and shall en bloc be senior to all others in that grade. However, para 3 of the annexure provides that permanent officers of each grade shall be ranked senior to persons who Ire officiating in that grade. Keeping in view the objectives of the revised instructions companytained in the O.M. of 22-12-1959, the Ministry of Home Affairs number department of personnel have all along held that while persons appointed prior to 22-12- 1959 will retain their relative seniority already fixed under the then existing orders, with effect from 22-12-1959, permanent employees of a grade, including those companyfirmed in that grade prior to 22-12-1959, will rank en bloc senior to number-permanent employees of that grade,, irrespective of the fact whether such number-permanent employees were appointed to the grade before, on, or after 22-12-1959. Amongst permanent employees companyfirmed in the grade prior to 22-12- 1959, their relative seniority already fixed according to the then existing orders would be maintained and they will rank senior to those companyfirmed in that grade after 22-12- 1959. Amongst those companyfirmed after 22-12-1959, the relative seniority will be according to the order of companyfirmation. Similarly, amongst number-permanent employees of a grade, the relative seniority of those appointed prior to 22-12-1959 will be on the basis of the then existing orders, but they will rank on bloc senior to those appointed to that grade, after 22-12-1959, but number yet companyfirmed in the grade. This matter, however, came up for companysideration before the Supreme Court in Civil Appeals 1 No. 1845 of 1968 Union of India and others Versus M. Ravi Varma and others , No. 1846 of 1968 Union of India and others Versus S. Ganapati Kini and others and 3 No. 50 of 1969 Union of India and others Versus Suresh Kumar and others . In its judgment, dated 4-1-1972 companyy annexure 111 in these cases, the companyrt has number agreed with the view taken by the Ministry of Home Affairs number Department of Personnel in this matter, as outlined in para 3 above. The companyrt while dismissing the three appeals has held that, except in certain cases with which the Court were number companycerned , the general principles embodied in the annexure to the O.M. of 22-12-1959 did number have retrospective effect and companyld number apply to persons appointed to the various Central Services before that date. As a result of the judgment, the question whether, and if so, to what extent the seniority of persons appointed on a regular basis prior to 22-12-1959, which had- been determined according to the O.M. of 22-6-1949 or office Memorandum number 65/ 28/49-DGS Apptts , dated the 3rd February, 1950, No. 31/223/50DGS dated the 27th April, 1951, or No. 9/58/56-RPS dated the 4th August, 1956, but which had subsequently been revised according to the view taken in the matter vide para 3 above, should be revised further, has been examined in companysultation with the Union Public Service Commission. and it has been decided that in services posts under the Central Government to which the general principles for determining seniority companytained in the office memorandum of 22-12-1959 apply, seniority of such persons should, with effect front 4th January 1972 the date of the judgment of the Supreme Court be restored as it stood on 21-12-1959 in the grade companycerned, irrespective of the fact or date of their companyfirmation and such persons along with those appointed on a regular basis to the grade prior to 22-12- 1959, shall companytinue to remain en bloc senior to the persons appointed to that grade after 22-12-1959. The revision of seniority in such cases will number, however, affect the companyfirmations already made in the grade prior to 4th January, 1972 or regular promotions therefrom prior to that date. Confirmations promotions made on or after 4th, January, 1972 shall be reviewed, Wherever necessary in the light of the above decision. If any person whose seniority is number revised according to these orders is still number companyfirmed, though a person junior to him has been companyfirmed, he may also number be companysidered, subject to availability of permanent vacancies in the grade, for companyfirmation in the grade, if he is otherwise eligible for the same and is suitable for it. Similarly, if a person whose seniority is ?tow revised under these orders was number companysidered for promotion prior to 4-1-1972 for want of the requisite seniority, he may also be companysidered for such promotion subject to availability of promotion quota vacancies in the higher grade, if he is otherwise eligible for the same. However, on promotion to the higher grade, the seniority of such persons among the promotees in the higher grade would be regulated in accordance with para 5 of the general principles of seniority companytained in the annexure to Ministry of Home Affairs office memorandum of 22-12-1959. In this companynection it may also be mentioned that the general principles of seniority companytained in annexure to Ministry of Home Affairs O.M. dated 22-12-1959 were applied to some service posts from a date subsequent to 22-12-1959. Such a companyrse was permissible, vide para 3 of the O.M. dated 22-12-1959 referred to above. If, in those services posts, seniority was actually companytinued to be determined beyond 22- 12-1959 in accordance with the instructions laid down in Ministry of Home Affairs O.M. of 22-6-1949, seniority of the employees in the service posts companycerned might have been revised from the date from which the general principles of seniority companytained in the annexure to the O.M. of 22-12- 1959 were adopted in respect of those services. posts on the basis of the interpretation of the Ministry of Home Affairs number department of Personnel given in para 3 above. In such cases also, the principle laid down by the Supreme Court would apply, viz. that the seniority of persons appointed to the services posts referred to above prior to the date of application of the principles companytained in the M. of 12-12-1959, would companytinue to be governed by the rules orders in force before such application. Hence the action Suggested in para 4 above would apply pari passu to those cases as well. Ministry of Finance etc. are requested to take action accordingly in respect of Government employees serving in or under that Ministry. HARISH CHANDRA Under Secretary to the Government of India. To All Ministries with usual number of spare companyies. Departments of the Government of India including all attached and subordinate offices under the Department of Personnel. Commissioner for Linguistic Minorities, Allahabad. Institute of Secretariat Training and Management, New Delhi. G.E. I. D.G., P T and Bureau of Public Enterprises. All Union Territory Governments Administrations. All regular sections of Department of Personnel. No. 9/3/72- Estt. D Dated the 22nd July, 1972. Copy with 10 spare companyies forwarded to the Secretary, Union Public Service Commission with reference to the UPSCs letter No. F.2/14/72-S.11 dated 5th May, 1972. HARISH CHANDRA Under Secretary to the Government of India. Each party before us relies upon the companytents of an office memorandum as interpreted by this Court in Ravi Varmas case supra . The case of the respondents, however. is that this Court did number have before it for companysideration, in Ravi Varmas case supra , the effect of rights which may have been acquired by Central Govt. servants, other than the petitioners then before the Court by reason of earlier companyfirmation and promotions whether rightly or wrongly made. It is also urged that this Court was number then companycerned with the companyrectness of the practical solution attempted by the memorandum of 1972, the validity of which is assailed by the Petitioners before us number only on the ground that it incorrectly interprets the judgment of this Court in Ravi Varmas case supra but number on the ground that the Govt did number have the power to lay down the companyrect principle for determining seniority by means of a decision or rule companytained in an office memorandum. The petitioners, however, companytend that the result of the misinterpretation by the office memorandum of 1972 of the decision of this Court in Ravi Varmas case supra is that the petitioners rights under Article 16 of the Constitution are violated, whereas learned Counsel for the respondents denies any such violation of a fundamental right irrespective of whether his companytention, that the 1972 office memorandum companyrectly interprets judgment of this Court in Ravi Varmas case is accepted or number. As this Court had, in Ravi Varmas case supra , set out the pro-visions of the memoranda of 22-6-1949 and 22-12-1959 in extenso, it is number necessary for us to reproduce their companytents. We will only indicate the companyclusions which emerged from their companysideration irk Ravi Varmas case. This Court had, after pointing out that the principles companytained in the office memorandum of 22-6-1949, although intended originally to meet the situation created by the partition of India and the need to absorb the influx of a large number of new Central Govt. servants, whose seniority had to be determined, were more generally applied to all Central Govt. servants, proceeded to hold that the provisions of the memorandum of 1959 specifically stated that they were prospective and did number affect cases which were governed by the earlier office memorandum. The effect of the provisions of the office memorandum of 22-12-1959 was held to be that the new principle companyld number apply to the persons appointed to the various Central Services before the date of that memorandum. It was also observed there that this Court had, even in Marvyn Coutindo Ors. v. Collector of Customs, Bombay Ors., 1 held that the new principle of seniority, companytained in memorandum of 22-12-1959, was number to apply retrospectively. In fact, the so called new principle of 1959 was a restoration of a principle applied before the memorandum of 1949 issued to meet a special and unprecedented situation created by the 1 1966 3 S. C. R. 600. -L346Sup CI/75 influx of alarge number of Government servants as a result of the partition of India. It may be observed here that the validity of the so called new principles of 1959 memorandum is number assailed before us on the ground that they, standing by themselves, violate Article 16 1 of the Constitution. Ravi Varmas case supra was decided on the assumption that the whole memorandum of 1959 was valid but bad been misinterpreted and misapplied. We find, from paragraph 4 of the, memorandum of 1972, that, with effect from 4-11-1972, when this Court pronounced judgment in Ravi Varmas case, supra , the pre-1959 seniority of all person was restored, or, in other words, it was to be governed by the 1949 memorandum irrespective of the fact or date of their companyfirmation and such persons along with those appointed on a regular basis to the grade prior to 22-12-1959, shall companytinue to remain en bloc senior to the persons appointed to that grade after 22-12-1959. Nevertheless, it is laid down there that this restoration of seniority will neither affect the companyfirmations already made in a grade number promotions made therefrom prior to 4-1-1972. Evidently, this was an attempt to recognise and preserve the rights, if any, of those already companyfirmed or promoted before 4-1-1972 so that these are number undone. The prospect, however of companyfirmation, after due companysideration of their cases, was. held out to Government servants who were still number companyfirmed although their juniors had been so companyfirmed in a VS provided that such Government servants satisfied eligibility tests. Similarly, cases of those superseded by. juniors in making promotions were to be companysidered afresh for promotion. Such companysideration for companyfirmation or promotion was, however made to depend on the existence of vacancies, in the quotas for companyfirmation or promotion of Government servants. It does appear to us that, in so far as memorandum of 1972 does number direct reconsideration of cases of all those persons who have actually missed companyfirmation or who were number companysidered at all for promotion at the time when they ought to have been companysidered, it fails to give due and companyplete effect. as a matter of general policy, ID what was decided by this Court in Rovi Varmas case supra . The excuse put forward on behalf of the respondent is that rights said to be created by the actual facts of companyfirmations and promotions in the past cannot number be taken away by the respondents and that more persons cannot be introduced in any grade than its sanctioned strength. It is true that the petitioners were number parties to the decision in Ravi Varmas case supra so that they cannot claim the benefit directly of any direction given in that case. It seems that it for this reason that learned Counsel for the respondents attaches companysiderable importance to delay in approaching this Court against alleged illegalities. We are unable to companymend the argument, companying as it does on behalf of a Department of the State, that the effect of the decision of this Court in Ravi Varmas case must be companyfined to parties before the Court in that case. We are, however, companycerned here with the meaning and affect of the Memorandum of 1972 which proceeds on the companyrect footing that the Central Excise Department was duty bound to give effect to the law declared by this Court in Ravi Varmas case. But, we may point out here that a mere failure to apply a rule which ought to have been applied may number by itself, justify an invocation of the powers of this Court under Article 32 of the Constitution. In order to succeed in a petition under Article 32 of the Constitution the petitioner has to disclose how his fundamental right has been infringed by a particular rule, or decision or its application. The impact of the rule or decision upon the facts of each petitioners case has to be clearly brought out. In the cases before us, the fundamental rights alleged to be violated companyld only be the general ones embraced by Article 16 1 of the Constitution which reads There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the, State. Where a petitioner alleges that he has been denied equality of opportunity for service, during the companyrse of his employment as a Government servant, it is incumbent upon him to disclose number only the rule said to be infringed but also how this opportunity was unjustifiably denied on each particular occasion. The equality of opportunity in a matter relating to employment implies equal treatment to persons similarly situated or in the same category as the petitioner. It postulates equality of companyditions under which a number of persons belonging to the same category companypete for the same opportunities and a just and impartial application of uniform and legally valid standards in deciding upon companypeting claims. It does number exclude justifiable discrimination. If we examine the-particular facts of the case of Amrit Lal Berry we find that there were grounds for believing that such distinctions as were made, in the matter of his companyfirmation and promotion as companypared with those who joined service after him companyld have resulted from justifiable grounds of discrimination from the point of view of an application of Article 16 1 of the Constitution. Thus, as already indicated above, although, it appears, on the, face of it, unjust that the petitioner Amrit Lal Berry, who is a A. and entered service on 15-12-1948, should be companyfirmed from 1-7-1955, but, Narinder Singh, who is only a Matriculate and entered into service on 7-2-1949, should be companyfirmed from 1-7-1953 under orders of the Collector of Central Excise dated 5-5-1956 yet, this difference is explained by the uncontroverted assertion in paragraph 3 of the companynt affidavit dated 10-10-73 of Shri N. Subramanian, Under Secretary, that the petitioner did number pass the prescribed departmental examination until November 1954. It appears that, the petitioner Amrit Lal .Berry was companyfirmed as soon as be companyld reasonably be companyfirmed on the occur- rence of a vacancy in the permanent cadre after he bad, passed his examination, as required by rule 7 of the Departmental Examination Rules, made applicable on 25-6-1949 to all existing officiating and temporary Government servants in the Central Excise Department. He companyld number have, therefore, companyplained on that score. He has number shown that be was number treated as others in the same grade who had number passed the prescribed examination before companyfirmation. Indeed, be has number even impleaded Narinder Singh as an opposite party. He Was Confirmed as long ago as 1955. The real and only ground of his companyplaints seems to be that the imposition of a test as a companydition Precedent to companyfirmation has delayed his companyfirmation by two years, And, that was long before even the 1959 memorandum. If the reason for the earlier companyfirmation of some persons, who obtained earlier promotions in the year 1970-71, is justifiable on rounds other than length of service, it is difficult to see how a petitioner in the position of Amrit Lal Berry companyld companyplain of any unjust treatment violative of Article 16 1 of the Constitution. On cannot find, in the petition, any ground for his assertion that he companyld have been companyfirmed or promoted earlier than those who entered service after him except that he, entered service earlier. But to accept such a claim, built on a bald and single ground, would be to overlook that companyfirmation, even according to the rules applicable in 1949, depended also on companyditions other than mere length of service. This aspect of the case was number involved in Ravi Varmas case supra . At any rate, numberparty in that case seems to have relied on Any rule or provision outside the two memoranda. one of 1949 and another of 1959, companysidered there. Another grievance of the petitioner Amrit Lal Berry was that he was number given the senior grade of Inspectors with effect from 21-31961 but only from 8-12-1967. He attributes this result merely to his wrong place in the seniority list due to his delayed companyfirmation. At the same time, he asserts that he crossed the Efficiency Bar on 12-61968. If crossing the Efficiency Bar was a companydition precedent to getting the senior grade he was given that grade earlier than 1968. It is number clear, either from the assertions made by the petitioner or in the companynter affidavits, whether crossing the Efficiency Bar was a companydition precedent to entry into the senior grade or mere length of service was enough for this purpose. Neither the office Memorandum of 1949 number the petition of Amrit Lal Berry gives companyditions of entry into the senior grade. It,-was for the petitioner to satisfy the Court that he was number given the senior grade although he satisfied all the required companyditions of it and that others, who were promoted into it, were given un- justifiable preference over him. It is difficult, on the assertions made in the affidavits before us, to see how the petitioner war. denied equality of opportunity in number being given the senior grade in 1961 but only in 1967. Even if we were to assume, as the petitioner would like us to do, that a disregard of seniority determined solely by length of service was the only reason for his failure to get the senior grade in 1961. there is yet another hurdle before the petitioner which was number shown to be present in Ravi Varmas case supra , and, therefore, number companysidered or adjudicated upon in that case. There, numberobjection based on delay in applying to the Court was taken persumably because it companyld number be taken. But, a number of promotions having taken place between 1959 and the filing of Amrit Lal Berrys petition in 1971, those who were so promoted and had been satisfactorily discharging, for companysiderable periods before the filing of the petition, their duties in a higher grade would acquire new claims and qualifications, by lapse of time and due discharge of their new functions so that they companyld number, unless relief had been sought speedily against their allegedly illegal companyfirmations and promotions, be equitable equated with the petitioner The equality in the equitable balance brought into being by a petitioners own laches and acquiescence cannot be overlooked when companysidering a claim to enforce the fundamental right to equal treatment- To treat unequals equally would also violate that right. Although, it may number be possible for the State or its agents to plead an estoppel against a claim to the fundamental right to equal treatment, yet, if a petitioner has been so remiss or negligent as to approach the Court for relief after an inordinate and unexplained delay, be certainly jeopardises his claims as it may become inequitable, with circumstances altered by lapse of time and other facts, to enforce, a fundamental right to the detriment of similar claims of innocent third persons. Learned Counsel for the opposite parties has relied on Rabindra Nath Bose Ors. v. Union of India Ors. 1 where, because rights of persons who had benefited from allegedly illegal seniority rules for a long time would be disturbed, this Court dismissed a petition under Article 32 on the ground of inordinate delay in seeking relief. This Court said there at p. 712 - It is said that Art. 32 is itself a guaranteed right. So it is, but it does number follow from this that it was the intention of the Constitution markers that this Court should discard all principles and grant relief in petitions filed after inordinate delay. We are number anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good companyscience. It would be unjust to deprive the respondents of the right which have accrued to them. Each person ought to be entitled to sit back and companysider that this appointment and promotion effected a long time ago would number be set aside after the lapse of a number of years. Learned Counsel for the petitioners has relied upon observations in a recent decision of this Court in Ramchandra Shankar Deodhar Ors. v. the State of Maharashtra Ors., 2 where after companysidering earlier cases It was observed at p. 325-326 There was a delay of more than ten or twelve years in filing the petition since the accrual of the cause of company- plaint, and this delay, companytended the respondents, was sufficient to disentitle the petitioners to any relief in a petition under Art. 32 of the Constitution. We do number think this companytention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may number inquire into belated and stale claims is number a rule of law, but a rule of practice based on sound and proper 1 1970 2 S.C.R. 697. 2 1974 1 S.C.C, 317 325-26 exercise of discretion, and there is numberinviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. Rabindra Nath Boses case supra was distinguished here on the ground that numberrights, legal or equitable, of third parties had arisen by lapse of time in the case before the Court. The following principle laid down in Tilokchand Motichand v. H. B. Munshi t was also affirmed The party claiming fundamental rights must move the Court before other rights companye into existence. The action of Courts cannot harm innocent parties if their rights emerge by reason of dalay on the part of the person moving the Court. It is true that Amrit Lal Berry had amended his petition so as to make it appear that a fresh cause of action accrued in his favour on 22-7-1972 when the office memorandum set out in full above was issued during the pendency of his Writ Petition, and the Writ Petition of K. N. Kapur and others purports to be directed against the office memorandum of 1972 companysequential instructions. Nevertheless, when we examine the companytents of that office memorandum and the substance of the petitions before us, it becomes abundantly clear that what was bring really sought by the petitioners was setting aside of a number of companyfirmations and promotions which had taken place long before the Writ Petitions were filed without even making necessary assertions to indicate precisely the occasions on which allegedly illegal companyfirmations and promotions took Place and of which person or persons exactly on each occasion. As we have pointed out above, at least those who had boon promoted companyld, after a lapse of a number of years in their new posts, be regarded equitably as persons in a new and separate class. It is true that the companycerned Central Excise Department officials would have known the companyrect legal position if they had cared to study the decision of this Court in Mervyn Coutindo Ors. v. Collector of Customs, Bombay Ors. supra which was pronounced on 14-2-966. There, this Court had pointed out, inter-alia, that the memorandum of 1959 did number apply any new principles retrospectively. That was primarily a case on the validity of the rotational system which was alleged to be struck by the principles of Articles 14 and 16 1 of the Constitution. Even if the opposite parties had missed the significance of an observation in that case that the principles introduced by 1959 memorandum were number to be applied retrospectively on the terms of that memorandum itself, yet, Govt. servants who companyld benefit by this observation probably they have an Organisation to keep a watch over and protect their interest ought to have also realised the meaning of this pronouncement long ago. They companyld have raised the question in a Writ Petition in a representative capacity so that general order companyld have been obtained to govern all 1 1969 2 S.C. R.824. similar cases. They need number have waited for the pronouncement of the law by this Court on 4-1-1972 in Ravi Varmas case supra . But, whatever may be the companysequences to parties affected by slumbering over their rights, we think that the Central Excise Department am be presumed to know the law as declared by this Court in Mervyn Coutindos case supra in 1966. We find its lethargy in waiting until 1972 to make any attempt to rectify its errors far from company- mendable. The memorandum of 1972 companytains a set of instructions intended for carrying out the requirements of the law declared by this Court in Ravi Varmas case supra on 4-1- 1972 without disturbing such equitable rights as may have accrued to other Govt. servants by lapse of time. It is number suggested that this attempt was number a bonafide one. It had resulted in the companyferment of such benefits from the declaration of the law in Ravi Varmas case, as companyld, in the estimation of the Central Excise Department, be reasonably reaped by the petitioners. It companyld only be understood in the companytext of the past executive instructions and declarations of law by this Court. It will be numbericed that Ravi Varmas case supra was decided on an appeal from a decision of the High Court on Writ Petition under Article 226 of the Constitution. It was enough, for the purposes of a, petition under Article 226, to show a violation of an applicable rule of seniority laid down in the relevant executive instructions. But, we have writ petitions under Article 32 of the Constitution before as for which violations of fundamental rights under Article 16 1 of the Constitution have to be satisfactorily shown. Learned Counsel for the petitioner relied upon Union of India v. Vasant Jayaram Karnik Ors. 1 to companytend that violation of a rule relating to seniority in cadre or grade would be enough to base a claim for relief on the footing that he is denied equality of opportunity. In that case, the selection for promotion was on the basis of seniority cum-merit. and it had been found that different standards had been applied in determining seniority of the petitioners before the High Court to companypared with the seniority of opposite parties before that Court Hence, the High Court had quashed the seniority list and it. decision was upheld by this Court. Application of different and unjustifiable standards for determining seniority did, therefore, establish a clear violation of Article 16 of the Constitution in that case. In the before us, this had number been demonstrated, although it may perhaps have been possible to show this if all the facts companyld have been so out clearly with instances in which and the manner in which each petitioner had been wrongly superseded by companytravening a principle lowing from or implied by Article 16 1 of the Constitution. However as we have already found that the petitions are also liable to be dismissed on the ground that the equitable rights of a number of other Government servants had companye into existence by the laches and acquiescences of the petitioners, we need number proceed further to companysider the question whether a violation of the fundamental right A.I.R. 1970 S.C. 2092. of the Petitioners by the Central Excise Department was really and duly established here. On this view of the cases before us, it is also number necessary for us to decide the question whether there is any defect in the petitions before us due to a misjoinder either of causes of action or of petitioners. It may be mentioned here that an attempt was made by Amrit Lal Berry to account for delay In filing his petition. He said that he had made two departmental representations, one dated 6-3-1965 and another dated 13-8-1971, of which he filed companyies, to which numberreplies had been received so far by him. It was denied by the Excise Department that he ever sent the first representation. It is evident that he had waited for a companysiderable period before making his representation in 1965 even if we were to assume that he did make such a representation then. Furthermore, the companyy of the alleged representation of 1965 shows that it was directed only against the imposition of test by examination before companyfirmation. We do number think, that, merely by filing repeated or delayed representations, a petitioner can get over the obstacles which delay in approaching the Court creates because equitable rights of others have arisen. We may, however, observe that when a citizen aggrieved by the action of a Government Department has approached the Court and obtained a declaration of law is his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the Department companycerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to Court. In the petition of K. N. Kapur others, we do number even find at assertion that any representation was made against any violation of a petitioners right. Hence, the rule recognised by this Court is Kamini Kumar Das Choudhury v. State of West Bengal Ors. 1 , that a demand for justice and its refusal must precede the filing of a petition asking for direction or Writ of Mandamus, would also operate against the petitioners. It is submitted by the learned Counsel for the Excise Department that the real grievance of the petitioner is that they have number been awarded companysequential benefits such as promotions and arrears of salary as a result of an alleged wrong preparation of seniority list in 1961. The memorandum of 1972 attempts to satisfy the grievance of the petitioners to the extent that it is reasonably possible, companysistently with the equitable rights of others, that the principle of length of service laid down in the 1949 memorandum should govern the cases of those appointed prior to 1959. We think that the 1972 memorandum may be fairly interpreted to mean that a the 1949 memorandum will apply to all cases companyered by it till the 1959 memorandum came into effect, b that those who were, in good faith and in the regular companyrse, companyfirmed and or promoted regularly though by an honest mis- application of the 1959 memorandum will number be disturbed even if they be junior to the claimants under the 1949 memorandum c that in future, for vacancies and quotas, as earlier explained, those with longer service, as companytemplated by the A. T. R. 1972 S.C. 2060 2065. 1949 memorandum. will be companysidered for companyfirmation and promotion and d that, in the subsequent career of those who stand to benefit by the 1959 memorandum, that factor will be reckoned in their favour when further opportunities for promotion arise, so that they may number suffer for ever from the misconstruction of the memorandum made by the Excise Department. It will be for the Department to companysider what companysequential benefits can be given as a result of reconsideration of a case. Lastly, it was urged that the fixation of 4-1-1972 as the date after which all companyfirmations aid promotions made would be revised in order to companyform to the seniority determined by length of service of persons appointed prior to 22-12- 1959 was arbitrary. Reliance was placed upon D. R. Nim v. Union of India, 8 where a date fixed for the application of a particular rule was held to be arbitrary. In reply it was submitted that 4-1-1972 was the date on which this Court delivered judgment in Ravi Varmas case supra making it finally clear and definite to the Central Excise Department what the companyrect interpretation of memorandum of 1959 was, and, therefore, the date had number been chosen altogether arbitrarily. A perusal of the memorandum of 1972 shows that the date 4-1-1972 was only chosen for giving the retrospective effect to whatever may be the actions taken on a wrong view of the law after this date. In other words, it means that promotions and companyfirmations made after 4-1-1972 would, in any case, be reopened. The provisions of the memorandum, which are number very clear as to what will happen in decisions taken before 4-1-1972 by the Excise Department, have been number interpreted by us so that they may be companystrued in a manner companysistent with the apparent objects of the memorandum. The result seems to be that the seniority of all unconfirmed persons is to be determined in accordance with the law as declared by this Court on 4-1- 1972 but, as regards persons who had already been bona fide companyfirmed or promoted before 4-1-1972, numberundoing of what had already be done in their favour would be possible. Nevertheless, it was laid down there that the cases of those who had failed to be either companysidered for companyfirmation or promotion merely because of the failure to apply the length of service rule for determining seniority, would number suffer but will be reconsidered number subject to existence of vacan- cies in the grade for companyfirmation, or in the promotion quota. We are number quashing any part of the memorandum of 1972 as we do number so interpret it as to make it possible for the Central Excise Department to violate Article 16 1 of the Constitution by resorting to it. We take its meaning to be- and, so companystrued, it will be Constitutional-that the declaration of law by this Court on 4-1-1972 will affect all cases in which the Principles of 1949 memorandum can still be applied despite any companyfirmations wrongly made between 1959 and 4-1-1972. It appears to us that in cases of promotions wrongly made between 1959 and 4-1-1972, the position, despite the clarification attempted by us, is still left rather vague. As number 1 1967 2 S.C.R. 325. question of the seniority of a person actually promoted before 4-1-1972 is against that of a before us, on the footing that both belong to the person promoted after 4-1- 1972 is class of promotees whose seniority. inter se, should be determined by the total lengths of their we refrain from pronouncing upon such questions. We hope that just and reasonable rules for determining such questions of seniority, on a principle of length of service companybined with merit, will be evolved by the Excise Department itself to prevent companyplaints of injustice and future litigation. It is for the Central Excise Department itself to make appropriate rules. It is only when such rules violate or have been so used as to violate the fundamental rights of any group of persons employed by the State that this Court can interfere, In such we see numberobjection to the filing of writ petitions in representative capacities, by aggrieved persons after taking. necessary steps under Order 1, rule 8. Civil Procedure Code, the application of which to proceedings under either Article 226 or 32 of the Constitution does number appear to us to be barred by any provision. It is difficult to understand why statutory provisions, on the lines on which provisions have been made for superior services and rules under such provisions are number made to ensure that numberhing except just companysiderations. such as merit tested by performance and integrity revealed by the service records or other reasonable tests as well as length of service, can companynt in making companyfirmations or promotions. The, petitioner,, have, however, failed to establish that just and reasonable companysiderations did number prevail in any particular instance brought to our numberice.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 624 of 1971. Appeal by Special Leave from the Judgment and order dated the 8th April, 1970 of the Punjab Haryana High Court in P.A. No. 433/1969. R. L. Iyengar, S. K. Mehta for the appellant. R. Khanna and O. P. Sharma for Respondents Nos. 1 and 1. Hardev Singh, R. S. Sodhi for Respondent No. 3. The Judgment of the Court was delivered by BHAGWATI, J.-This appeal raises the question whether the appellant has been given his proper rank in the joint seniority list of officers belonging to the Provincial Civil Medical Service, Class I after its reorganisation on 15th July, 1964. There were, in the State of Punjab prior to 15th July, 1964, two separate and independent services, namely, Provincial Civil Medical Service hereinafter for the sake of brevity referred to as PCMS and Public Health Service. Both services companyprised two classes, Class I and Class II, and each had its own separate ranking for seniority and channel of promotion. The post of District Medical Officer of Health was a post in Class 11 of the Public Health Service, while the post of Assistant Director Health Services was a post in Class I of that Service. The appellant and one Dr. Jagjit Singh were, until their promotion with retrospective effect from 25th April, 1964, District Medical Officers of Health in Class II of Public Health Service. Dr. Jagjit Singh was admittedly senior to the appellant in rank. Respondents, Nos. 3 to 19 were until their promotion by an order dated 8th April, 1964, in Class II of PCMS. It appea rs that some posts in Class I of PCMS fell vacant and it was, therefore, decided to make promotions to these posts from amongst officers belonging to Class II of PCMS and an order dated 8th April, 1964 was accordingly issued by the State Government. promoting inter alia respondents Nos. 3 to 19 to Class 1, PCMS with immediate effect. Though this order was made on 8th April, 1964, it companyld number be companyveyed to respondents Nos. 3 to 19 until 23rd April, 1964 and respondents Nos. 3 to 19 companyld, therefore, assume charge of the higher posts of promotion only after 27th April, 1964. In fact they took charge of the higher posts of promotion on different dates between 27th April, 1964 and 11th May, 1964. It may be pointed out that under the order dated 8th April, 1964 several other officers belonging to Class 11, PCMS, in addition to respondents Nos. 3 to 19 were also promoted to Class 1, PCMS, but it is number necessary to refer to them since on bifurcation of the State of Punjab they were allotted to the State of Haryana and they are numberlonger companytestants with the appellant in the ranking for seniority. So far as Dr. Jagjit Singh and the appellant are companycerned, Dr. Jagjit Singh was on deputation with the Defence Department, while the appellant was appointed to work- in the post of Assistant Director Health Services on his own pay scale from 25th April, 1964. This was the position which obtained when PCMS and Public Health Service were integrated as part of the administrative reorganisation of the State Medical and Health Department with effect from 15th July, 1964. The PCMS and Public Health Service were integrated with effect from 15th July, 1964 and companymon companybined cadres, both in Class I and Class 11, were created which were known as PCMS Class I and PCMS Class 11 cadres. The cadre of District Medical Officers of Health, which companystituted Class 11 in Public Health Service was equated with PCMS Class 11 cadre, while the cadre of Assistant Directors and Deputy Directors, which companystituted Class I of Public Health Service, was equated with PCMS Class I cadre. Now at the time of integration Dr. Jagjit Singh belonged to the cadre of District Medical Officers of Health and the appellant, though working in the post of Assistant Director was number promoted to that post but was merely working in that post on his own pay scale, of District Medical Officer of Health and they would, therefore, have ordinarily been equated and absorbed in the integrated PCMS Class 11 cadre. But the appellant made a representation to the St-ate Government that since he was working in the post of Assistant Director, since 25th April, 1964, he should be promoted to that post with retrospective effect from that date. The State Government companysidered the representation of the appellant and decided that the appellant should be given promotion to the post of Assistant Director with effect from 25th April, 1964. But Dr. Jagjit Singh was senior to the appellant in the cadre of District Medical Officers of Health and it would, therefore, be unfair to him to ignore his claim and give promotion to the appellant who was his junior. The State Government therefore, with a view to protecting his right of promotion by virtue of his parent seniority which companyld number be disturbed passed an order dated 24th July, 1965 granting absentia promotion to Dr. Jagjit Singh to the post of Assistant Director, with effect from 25th April, 1964 and since Dr. Jagjit Singh was on deputation with the Defence Department, the State Government, by the same order, promoted the appellant to, the post of Assistant Director with effect from the same date vice Dr. Jagjit Singh Dr. Jagjit Singh and the appellant were thus promoted to the posts of Assistant Director with retrospective effect from 25th April, 1964 and they were accordingly Assistant Directors on 15th July, 1964 when integration took place and were, therefore, equated and absorbed as such in PCMS Class I cadre. Now, one question which arose companysequent on the integration of Class I of Public Health Service with PCMS Class I was as to how the inter se seniority of the officers companying from the two services should be determined in the integrated service. The State Government by a memorandum dated 25th October, 1965 decided that the inter se seniority of officers belonging to the two integrating services should be determined on the following principle vide clause 2 ii The seniority,of Deputy Directors and Assistant Directors on the cadre of the Public Health on integration in PCMS-1 should be determined with reference to the length of companytinuous service from the date of appointment in the group subject to the companydition that the seniority of a person in parent seniority list will number be disturbed.,, This principle for determination of inter se seniority was companymunicated by the Director, Health Services, Punjab to the appellant in a letter dated 27th October, 1964. The appellant was given an option in regard to integration in PCMS Class I and was told that on receipt of his opinion his seniority in PCMS Class I would be fixed in accordance with the length of his companytinuous service from the date of his appointment. The appellant opted in favour of integration and he was ac- companydingly, as stated above, integrated in PCMS Class 1. The question then arose as to how the seniority of the appellant vis-a-vis respondents Nos. 3 to 19 should be arranged. The appellant claimed that on the basis of the principle of seniority laid down in clause 2 ii of the memorandum dated 25th October, 1965 he was entitled to seniority over respondents Nos. 3 to 19 since his companytinuous service started from 25th April, 1964, while the companytinuous service of respondents Nos. 3 to 19 did number start until after 25th April, 1964 when they assumed charge of their respective posts. The State Government, however, issued an order dated 4th December, 1967 determining that the seniority of respondents Nos. 3 to 19 shall be reckoned from the date, of their order of appointment, namely, 8th April, 1964 irrespective as to when they assumed charge of their respective posts and on this basis, rejected the claim of the appellant. Subsequently, a provisional joint seniority list of PCMS Class I was published by the State Government and in this list, respondents Nos. 3 to 19 were shown as senior to Dr. Jagjit Singh and the appellant. The appellant being aggrieved by the decision of the State Government giving seniority to respondents Nos. 3 to 19 over Dr. Jagjit Singh and the appellant, filed a petition under Art. 226 of the Constitution in the High Court of Punjab and Haryana challenging the seniority list published by the State Government. The main ground of challenge was that according to the principle of seniority laid down by the State Government in clause 2 ii of the memorandum dated 25th October, 1965 the inter se seniority of the integrating officers was to be determined with reference to the length of companytinuous service from the date of appointment and if this principle was properly applied, Dr. Jagjit Singh and the appellant would be senior to respondents Nos. 3 to, 19 as their companytinuous service in the posts of Assistant Director companymenced from 25th April, 1964, while the companytinuous service of respondents Nos. 3 to 19 in the companyresponding posts in PCMS Class I did number companymence until after 25th April, 1964 when they took charge of their respective posts and the companytinuous service put in by them was, therefore, longer in duration that that put in by respondents Nos. 3 to 19. This ground was accepted by the learned Single Judge who heard the petition and taking the view that Dr. Jagjit Singh and the appellant were senior to respondents Nos. 3 to 19 the learned Single Judge allowed the petition and directed that the seniority list should revised by the State Government so as to give seniority to the appellant over respondents Nos. 3 to 19. The State Government and the Director of Health Services, Punjab thereupon preferred Letters Patent Appeal No. 446 of 1969 before a Division Bench of the High Court. Some of the respondents Nos. 3 to 19 also preferred separate letters Patent Appeal No. 433 of 1969. Both these Letters Patent Appeals were heard by a Division Bench of the High Court. The learned Judges companystituting the Division Bench took the view that the memorandum dated 25th October, 1965 laid down the principle determining seniority only for Deputy Directors and Assistant Directors in the Public Health Service on integration in PCMS Class I and did number provide as to how seniority of Medical Officers already in PCMS Class I shall be determined vis-a-vis Deputy Directors and Assistant Directors on integration. It was, therefore, companypetent to the State Government to issue the order dated 4th December, 1967 determining that the seniority of respondents Nos 3 to 19 shall be reckoned from the date of their order of appointment, namely, 8th April, 1964 irrespective as to when they assumed charge of their higher posts. The seniority of respondents Nos. 3 to 19 was accordingly liable to be reckoned from 8th April, 1964 and since the seniority of Dr. Jagjit Singh and the appellant companymenced only from 25th April, 1964, respondents Nos. 3 to 19 were rightly shown as senior to Dr. Jagjit Singh and the appellant The learned Judges on this view allowed the appeal and upheld the provisional joint seniority list of, PCMS Class I showing respondents Nos. 3 to 19 above Dr. Jagjit Singh and the, appellant in seniority. That led to the filing of the present appeal with special leave obtained from this Court. We must companysider what was the true scope and ambit of the principle of seniority laid down in clause 2 ii of the memorandum dated 25th October, 1965. Did it apply in relation to officers companying from both services for the purpose of determining their inter se seniority in the integrated service or was it intended to provide a principle for determining seniority only for Deputy Directors- and Assistant Directors on their integration in PCMS Class I ? To answer this question it is necessary to understand what was the problem before the State Government which it set out to solve by issuing clause 2 ii of the memorandum dated 25th October, 1965. The position which then obtained was that with effect from 15th July, 1964 Class I of Public Health Service, companysisting of the posts of Deputy Directors and Assistant Directors, was integrated with PCMS Class I and since officers companying from these two different services were to be absorbed and fitted into one integrated service, it was necessary to evolve a fair and just principle for determining their inter Se seniority in the integrated service. It was for this purpose that the State Government issued clause 2 ii of the memorandum dated 25th October, 1965. What clause 2 ii provided was that on integration in PCMS Class I, the seniority of Deputy Directors and Assistant Directors vis-a-vis the other officer in that service should be determined by reference to the length of companytinuous service from the date of appointmentthat is, the companytinuous service of such integrating officer shouldbe reckoned from the date of his appointment in his group-whether it be in PCMS Class I or in Public Health Service Class I-and the inter se seniority should be arranged according to the length of such companytinuous service. The measure or yard-stick for adjusting inter se seniority of the officers companying from the two services should be the length of companytinuous service of each from the date of appointment in his group. This was the principle laid down in clause 2 ii of the memorandum dated 25th October, 1965 for bringing about integration of the two services by adjusting the inter se seniority of the officers in the integrated service. There was numberoccasion or need at that time to lay down any principle for determining seniority inter se Deputy Directors or Assistant Directors. The seniority of Deputy Directors or Assistant Directors inter se in Public Health Service Class I was already determined and known and clause 2 ii of the memorandum dated 25th October, 1965 in fact provided that the adjustment of inter se seniority in the integrated service according to the length of companytinuous service from the date of appointment should be subject to the companydition that the seniority of persons in the present seniority list will number be disturbed. Clause 2 ii of the memorandum dated 25th October, 1965, was, therefore, number intended to provide for seniority of Deputy Directors or Assistant Directors inter se in their parent service. What ever was the inter se seniority of Deputy Directors or Assistant Directors in their parent service was number to be disturbed while adjusting the, seniority of the officers in the integrated service and so also was the inter se seniority of the officers already in PCMS Class I number to be violated while fixing seniority in the integrated service. There can, therefore, be. numberdoubt that on a proper interpretation of clause 2 ii of the memorandum dated 25th October, 1965 the principle of length of companytinuous service from the date of appointment was applicable to officers companying from both the services for the purpose of fixing their inter se seniority in the integrated service. Now, it is true that clause 2 ii of the memorandum dated 25th October, 1965 Was number a statutory provision having the force of law and was merely an administrative instruction issued by the State Government in exercise of its executive power. But that does number present any difficulty, for it is number well settled by several decisions of this Court that IV numberstatutory rules are made regulating recruitment or companydi- tions of service the State Government always can in exercise of its executive power issue administrative instructions, providing for recruitment and laying down companyditions of service. Vide B. N. Nagarajan v. State of Mysore 1 and Sant Ram Sharma v. State of Rajasthan Anr. It was, therefore, companypetent to the State Government to issue clause 2 ii of the memorandum dated 25th October, 1965 in exercise of its executive power laying down the principle to be followed in adjusting inter se seniority of the officers in the integrated service. But the question then arises whether the State Government companyld issue the order dated 4th December, 1967 providing that the seniority of respondents Nos. 3 to 19 shall be reckoned from the date of issue of their order of appointment, namely, 8th April, 1964 irrespective as to when they assumed charge of the higher posts, if such order was in companytravention of the principle of seniority laid down in clause 2 ii of the memorandum dated 25th October, 1965. The argument urged on behalf of the State Government was that it was companypetent toit to fix an assumed date on which the companytinuous service of respondents Nos. 3 to 19 should be deemed to have companymenced for the purpose of determining their seniority in the integrated service, and the order dated 4th December, 1967 was, therefore, number beyond its power. 1 1966 3 S.C.R. 682. 2 1968 1 S.C.R. 111. But we do number think this argument is well founded. Clause 2 ii of the memorandum dated 25th October, 1965 provided that the seniority of the officers in the integrated service shall be determined by reference to the length of companytinuous service from the date of appointment in the group within their respective service. What was, therefore, required to be taken into account was the actual length of companytinuous service from the date of appointment and number the length of companytinuous service reckoned from an artificial date given by the, State Government. Now, it is true that clause 2 ii of the memorandum dated. 25th October, 1965 was in the nature of administrative instruction, number having the force of law, but the State Government companyld number at its own sweet will depart from it without rational justification and fix an artificial date for companymencing the length of companytinuous service in the, case of some individual officers only for the purpose of giving them, seniority in companytravention of that clause. That would be clearly violative of articles 14 and 16 of the Constitution. The sweep of articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action-taken by the, State Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under articles 14 and 16. It is interesting to numberice that in the United States it-is number well settled that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. vide the judgment of Mr. Justice Frankfurter in Vitaralli v. Seton 1 This view is of companyrse number based on the equality clause of the United State Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action. If, therefore, we find that the order dated 4th December, 1967 gave an artificial date from which the companytinuous service of respondents Nos. 3 to 19 shall be deemed to have companymenced, though in fact and in truth their companytinuous service companymenced from different dates and it was thus in company- travention of the principle of seniority laid down in clause 2 ii of the memorandum dated 25th October, 1965, it would have to be held to be void as being violative of articles 14 and 16. We do number, however, think that the order dated 4th December, 1967 providing that the seniority of respondents Nos. 3 to 19 shall be reckoned from the date of their appointment, namely, 8th April, 1964 companystituted a departure from the principle of seniority laid down in clause 2 ii of the memorandum dated 25th October, 1965. The test for determining seniority in the integrated cadre laid down by clause 2 ii of the memorandum dated 25th October, 1965 was the length of companytinuous service from the date of appointment in the group. The appellant companytended that companytinuous service in a post companyld companymence only when the incumbent took charge of the post and number earlier and, therefore, though respondents Nos. 3 to 19 were promoted under the order dated 8th April, 1964, their companytinuous service 1 359 U.S. 535 at 546-5473 Law. Sd. Second Series 1012. in the posts of promotion in PCMS Class I did number companymence until after 25th April, 1964 when they took charge of their respective posts of promotion and hence the length of their companytinuous service in PCMS Class I was less than that of Dr. Jagjit Singh and the appellant in Public Health Service, Class 1. This companytention is fallacious in that it fails to give sufficient importance to the words from the date of appointment and ignores the true meaning and effect of the order dated 8th April, 1964. First let us see what the words date of the order of appointment mean. Are they synonymous with date of the order of appointment ? We think number. An order of appointment may be of three kinds. It may appoint a person with effect from the date he assumes charge of the post or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. Where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment. It would be then that he is appointed. But in a case of the second kind, which is the one with which we are companycerned since the order dated 8th April, 1964 appointed respondents Nos. 3 to 19 to PCMS Class I with immediate effect, the appointment would be effective immediately irrespective as to when the person appointed assumes charge of the post. The date of his appointment in such a case would be the same as the date of the order of appointment. It is, therefore, obvious that so far as respondents Nos. 3 to 19 were companycerned, the date of their appointment was 8th April, 1964 and the length of their companytinuous service in PCMS Class I was required to be reckoned from that date. It is true that respondents Nos. 3 to 19 did number assume charge of their respective posts of promotion until after 25th April, 1964, but that makes numberdifference because the length of companytinuous service is to be companynted from the date of appointment on the hypothesis that once the appointment is effective the person companycerned is in the post and his service in the post is deemed to have companymenced though under the rules governing his companyditions of service he may number be entitled to the salary and allowances attached to the post until he assumes charge of the post. The companytinuous service of respondents Nos. 3 to 19 in PCMS Class 1, therefore, companymenced from 8th April, 1964 and since that was longer than the companytinuous service of Dr. Jagjit Singh and the appellant in Public Health Service Class I, which companymenced only on 25th April, 1964, respondents Nos. 3 to 19 were entitled to be placed senior to Dr. Jagjit Singh and the appellant in the joint seniority list of the integrated PCMS Class 1. We, therefore, uphold the joint seniority list of the integrated PCMS Class I prepared by the State Government giving seniority to respondents Nos. 3 to 19 over Dr. Jagjit Singh and the appellant and dismiss the appeal. There will be numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION.-Civil Appeal Nos. 1430 and 1431 of 1974. From the Judgment and Order dated the 22nd November, 1973 of the Patna High Court in C.W.J.C. Nos. 423 and 430 of 1973. Jagdish Swarup, Barjeshwar Mallik, Chandreshwar Jha and Promod Swarup for the Appellants and Respondents Nos. 2 and 3 In CA No. 1430/74 . K. Garg and Pramod Swarup for the Appellants and Respondents Nos. 2-4 In CA No. 1431/74 . C. Ghose, S. B. Sanyal and A. K. Nag for Respondent No. 1 In CA. No. 1430 and 1431/74 . The Judgment of the Court was delivered by KRISHNA IYER, J.-We may as well begin this judgment with a prefatory sociological observation. The meaning of two companymon expressions teaching experience and teaching institution incarnated into a legal frame and subjected to forensic dissection and examination during three years of litigation makes up this bitter companytest between a talented orthopaedic surgeon and two like rivals trying to break each others academic bones to gain the post of Lecturer in Orthopaedics, one in each of two government medical companyleges in Bihar. Our judicial bone-setting operation cannot undo the social farcture inflicted by this long expensive bout in companyrt. Research and reform of he system is needed if the therupeutic value of law is to last and be number lost. The two appeals before us, by special leave, unfold a musical-chair type situation where three candidates ran for two posts in the government-run Patna and Dharbanga Medical Colleges. Inevitably one lost or, rather, was screened as ineligible, his British work and experience numberwithstanding, and, chagrined by his discomfiture, he Dr. Mukherjee, challenged the whole selection by a writ petition on the short and ambitious ground that he was number only qualified but superior, with his bright British career, to the other two India-trained hands, Dr. Ram and Dr. Jamuar, but was illegally rejected as unqualified. The main issue what arises and was argued before us by he States companynsel, supported by Shri Garg for the other candidates, is that the High Court, which allowed the writ petition, grievously erred in probing improperly into the companycerned Cabinet. papers and upsetting governments orders of appointment, upholding the petitioners eligibility and directing a reconsideration of the claims of all the companytenders on certain untenable finding of fact and indefensible interpretation of law. Did the petitioner possess the prescribed qualifications for the post ? If he did, the High Court was right in directing the appointing authority to companysider his claims and if did number Government rightly ignored his credentials for the post as an unqualified hand, despite his impressive British testimonials and good showing 8 97 otherwise. Such is the companypass of the dispute which is basically a technical question but, under our system, has to be decided by companyrts unaided by expert advice. The case has taken three days of argument based on three heavy volumes of appeal records-mercifully less than the eight days of hearing in the High Court. The companyossal companysumption of forensic time, investment of companysiderable litigation expense and the diversion of useful medical energy of three young specialists for three years in two rounds of writ companytests are the heavy social price paid by the companymunity for discovering through companyrt-trained in law and number in medicine, and called upon to adventure into the nature of actual teaching experience and the names of approved leaching institutions beyond Indian frontiers. The question involved is as to whether the writ petitioner, a doctor who worked in hospitals in Britain under orthopaedic professors supposedly of great repute, had teaching experience in a teaching institution good enough under the Indian statute and for the Patna College. From Olympic team selection to orthopaedic expertise the judicial robes are invited to exercise umpires jurisdiction under our system. Even were Judges angels, should they number fear to tread where perhaps others may rush in ? If it equally disturbing that Indian Courts, in companytrast with some other modern judicial systems, are called upon to devote companysiderable time for oral arguments to decide companytroversial issues even of a simple or a short nature. Condensed submissions and capsuled briefs, familiar in certain foreign jurisdictions, and other reforms may, per haps with modifications, suit our genius. Here, in the higher Courts, with mild exaggeration, it may be remarked that Time rolls his ceaseless companyrse and number unoften little fishes. . . . talk like whales. The superstitious regard for long oral hearing and long speaking ordrs as a sacred safeguards of justice may be companynter- productive of the efficacy of law in the solution of social issues, thus diminishing the ultimate justness of legal justice. Like in other companyplex modern operations, the processes of legal justice call for management techniques and methodological reforms, anD definition of the range of operation for success, all of which must be the Public companycern of the Bench and the Bar and the companymunity alike, animated by the social mission of shortening time and expense and becoming meaningful in securing justice. These observations made en passent, are provoked by -he tricky meshes of the litigation in which the parties here are caught and the frequent phenomena these tend to be. The petitioner before the High Court. Dr. Mukherjee, is the 1st respondent in both the atppeals before us while the State of Bihar, the Health Commissioner and the Health Minister are the atppellants in C.A. 1430 of 1974. The defeated doctors Dr. Ram and Dr. Jamuar, whose appointments have been upset by the High Court, are the appellants in the companynected appeal No. 1431 of 1974. The quarrel is over whether the 1st respondent companyld be companysidered for appointment. Certain peripheral companytentions apart, the companye of the matter is the possession by Dr. Mukherjee of teaching experience as Regiscrar for at least three years in orthopaedics or allied subjects in a teaching institution. Other basic qualifications statutorily laid down he admitedly has. Prima facie he has worked for three years under apparently outstanding British orthopaedic surgeons. Nevertheless, we are called upon, in the absence of statutory definition, to pronounce upon the sufficiency of this experience vis a vis the relevant regulations. Commonsense suggests that such technical questions should be judge-proof except in glaring ea ses, or malafide exercise. In these specialised areas legal tools may number work but we are enjoined to decide the legality of Governments order and so we shall. Art. 226 of the Constitution has companye to be a universe numbertrum but judicial robes are number omniscient. The whole case turns on the precise companystruction of the burred expression teaching experience in a teaching institution occurring in the regulations framed by the Medical Council of India under s. 33 of the Indian Medical Council Act, 1956 hereinafter called the regulations and the Act, for short, respectively . The Act has created a statutory body designated the Medical Council of India, charged with technical and professional responsibilities. Section 33 vests power in the Council to make regulations, with the approval of the Government of India, laying down qualifications required for appointment of persons to the teaching and allied posts in medical companyleges It is companymon ground that we are companycerned with two such medicaf companyleges and to two such posts. Under the relevant regulation, for a lecturers post in orthopedics, teaching experience in a teaching institution is a sine qua number. We ignore some proposed change omitting teaching institution . But what is teaching experience? What is a teaching institution? Too simple to deserve an answer, one might be tempted to think but too abstruse, when examined in the forensic crucible, to be disposed of in less than 59 pages by the High Court and less than several hours of argument if, this Court. Legalese makes companyplex what looks simplex. Now to the further facts and the legal stances. The Government of Bihar took the view, while appointing lecturers in Orthopaedics, that the first respondent did number have the necessary teaching experience in a teaching institution whereupon he sought refuse in the writ jurisdiction of the High Court and filed C.W.J.C. 754 of 1972 companytending that he had acquired the required teaching experience during the time he worked in the United Kingdom and was therefore entitled to be appointed lecturer. The State met the challenge on many grounds. Inter alia, it urged that the rule does number recognize teaching experiance gained in a foreign companyntry. A circular letter issued by the Deputy Director of Health Services, dated April 14, 1963 was also cited We agree with the High Court vide para 24 of its judgment that the said circular though adopted by Governm-nt on July 13. 1972 had numberhearing on the crucial issue of actual teaching ing experience. The Court, however, quashed the decision of Government and directed it to reconsider the case of the 1st respondent here together with this of the other two. Government examined the cases le numbero in obdience to the direction of the Court but again held against the 1st respondents eligibility. The aggrieved 1st respondent hurried to the High Court again and succeeded a second time in persuading it to quash the order and to issue a writ to the State to. companysider the claim of Dr. Mukherjee, the 1st respondent, finding that be did possess the requisite experience. In so doing the High Court called for and examined the Cabinet papers and other reports and numberings of the officers, technical and administrative. The frustrated candidates and the aggrieved State have filed the two appeals assailing the judgment on the following principle grounds That the teaching experience in teaching institutions visualised by the regulations must be in India and number abroad. If this be valid, the 1st respondent would be clean bowled, since his qualifications in this regard were attained in England. The post of Registrar filled by Dr. Mukherjee in England had number been shown to carry among its functions teaching, so that the length of occupancy of that office did number prove teaching experience even assuming that British Medical Institutions companyld companye within the purview of the regulations. In any view, the hospitals, the the Universities to which they were linked, where Dr. Mukherjee worked were number proved to be teaching institutions either recognised by the Medical Council of India or regarded as such under the provisions of the British National Health Service Act. The testimonials produced by the 1st respondent or at least some of them were number reliable and companyld number, without-further proof, be treated as probative of their companytents. A few other arguments were addressed regarding relative seniorityor length of teaching service and allied matters which are number germaneto the determination of the issue before us. Maybe such companysideration will be pertinent when the appointing authority makes companyparative evaluation among the candidates. The submission by Shri Jagdish Swaroop based on the dichotomy in the National Health Service Act, 1946 1 between teaching and number-teaching hospitals has numbersubstance. It is true that under s. 11 8 of that Act the Minister of Health is authorised to designate as a teaching hospital any hospital or group of hospitals which appears to him to provide for any university facilities for undergraduate or post graduate clinical teaching. We have numbermaterial to find out whether hospitals number so designated do provide facilities for teaching number the criteria and purpose guiding the Minister in exercising his power. Certainly it will be of great help to the 1st respondent to prove his case that he hospital he worked in was a teching hospital bad it companye under the numberification of the Minister. The companyverse does number necessarily follow. We are companycerned with an Indian situation and called upon to companystrue words which are number defined and therefore bear their natural meaning. In this view we do number proceed to examine whether the hospitals in which the 1st respondent claims to have gained teaching experience belong to the category designated under s. 11 8 of the British Act. Section 3 of the Indian Act makes it clear that the companystitution and companyposition of a high powered Council of professional men vested with the responsibility to oversee the companyduct of examinations and ensure minimum standards of medical education is among the ,objects of the statute. The Council has vast powers including the role ,of companysultant in some vital matters and according recognition of medical qualifications granted by institutions in India s. 11 , in companyntries with which there is a scheme of reciprocity s. 12 and of degrees etc. granted by certain other institutions s. 13 . These three categories of medical institutions are companyered by Schedules One to Three of the Act. Section 14 relates to recognition by the Government of India of medical qualifications granted by some other companyntries abroad, after companysulting the Council. Inspection. companylection of information, granting and withdrawing of recognition and the like are also ancillary powers statutorily companyferred on the Council. The regulation by the Council prescribing teaching experience for three Years in a teaching institutions have statutory status. The provisions of he Act form a companyspectus and illumine the meaning of the subsidiary legislation. The Councils regulation under s. 33 must be read in this background. It may straightway be mentioned that while the expressions medical institution and approved institution are defined vide s. 2 , neither teaching experience number teaching institution has been defined in the Act, rules or regulations. Simple Anglo Saxon, the framers must have presumed, must be capable of easy understanding and interpretation. Nevertheless, companynsel have argued at learned length on the semantics of those words although we are inclined to take number a pedantic number artificial view of the import of these words but a simple companymon sense idea of their meaning. Of companyrse, it would be natural to expect any authority like the Bihar Government in this case called upon to companystrue these words used in the setting of a medical statute, if in doubt, to companysult the high professional authority enjoying statutory status, viz., the Medical Council of India. It was faintly suggested at the bar that the Council had given a view once but modified it a little somewhat later. We do number find any deviation and are number disposed to side-track ourselves into such number germane issues. if it were true that national technical bodies were shaky on crucial occasions, although we do number find anything like that has happened here . they lend themselves to the suspicion that pressure pays We are sure they will number expose themselves to this risk. In the present case the Government of Bihar is stated to have taken a policy decision number to companysult the Medical Council of India. While the appointing authority is the State Government and the responsibility for final choice vests in it. it is reasonable to companysult bodies or authorities of a high technical level when the points in dispute are of a technical nature. To companysult another is number to surrender to that other, but merely to seek assistance in the careful exercise of public power. All that we mean to emphasize is that the plain words we have already referred to, about the meaning of which the two sides have betted, should be read having due regard to their numbermal import, statutory setting, professional object and insistence on standards. Shri Jagdish Swarup, companynsel for the State, took us through the various provisions of the Act and emphasised that by and large the medical institutions the Act had in view and over which the Council had companytrol were Indian and number foreign, and that therefore the teaching institutions and teaching experience specified in the regulations in question also must posses Indian flavour. Patriotism apart, it is apparent from the Act that it has recognized medical insti- tutions in Universities without India vide s. 12 and s. 14 The question is number therefore so simple as to be solved by reference to the Indian map. This companyntry, while rejecting companyonial reverence for British institutions has companytinued to accept and respect advances made in medical specialities abroad, including the United Kingdom and the United States, as is reflected in the Act. The India-bound companystruction is untenable. Equally extreme and unsustainable is the specious plea of Shri Desai that any teaching experience from any foreign teaching institution is good enough. Imagine teaching experience, acquired from some unmentionably under-developed companyntry which is new to modern medicine being fobbed off on an Indian College Reputed institutions numbered for their advanced companyrses of teaching and training cannot be ignored merely because they bear a foreign badge. What we have to look for is to find guidelines within the framework of the Act for fixing those foreign medical institutions. Such a nexus once, discernible might light up the otherwise illicit expressions teaching experience and teaching institutions. We have therefore to look, at the outset, for indicators in the Act for deciding which foreign teaching institutions may safely fall within the scope of regulation. The whole object is to see that India gets highly qualified medical teachers and this is served neither by narrow swadeshi number by neo- companyonialism. but by setting our sights on the lines of the statute. Indeed, the argument that the teaching institutions in India alone can be taken rote of had been urged and over-ruled in the first round of litigation by the High Court and the State Government had virtually accepted that decision when it examined the case of Dr. Mukherjee in accordance with the direction in writ petition C.W.J.C. No. 754 of 1972. Teaching institutions abroad number being ruled out, we companysider it right to reckon as companypetent and qualitatively acceptable those institutions which are linked with, or are recognised as teaching institutions by the Universities and organisations in Schedule 11 and Schedule III and recognised by the Central Government under s. 14. Teaching institutions as such may be too wide if extended all over the globe but viewed in the perspective of the Indian Medical Council Act, 1956 certainly they companyer institutions expressly embraced by the provisions of the statute. If those institutions are good enough for the important purposes of ss. 12, 13 and 14, it is reasonable to infer they are good enough for the teaching experience gained therefrom being reckoned as satisfactory. In this view the problem is whether the institutions referred to in the testimonials of Dr. Mukherjee companye within the above recognised categories. We have also to see whether Dr. Mukherjees service in those institutions as a Registrar, even if assumed in his favour, amount to teaching experience. We will deal with these two decisive questions presently. We agree that bald expressions teaching experience and teaching institutions with blurred companytours have been at the root of the companytroversy but, as Denning, L.J., in Seaford Court Estates Ltd. v. Asher , observed When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the companystructive task of finding the intention of Parliament and then he must supplement the written words so as to give force and life to the intention of legislature A judge should ask himself the question how, if the makers of the Act had themselves companye across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must number alter the material of which the Act is woven, but he can and should iron out the creases. We take the cue from these observations in the companystruction we. have adopted above. The Indian teaching institutions plea having been over-ruled earlier, its die-hard persistence this time is unfortunate. Even so, the 1st respondent must make out that his institutions fall within the species we have already indicated. Prima facie they do and there is numberreason to suspect that the testimonials produced by him are trumped up. Unless proved to the companytrary they should be taken by a public authority acting bona fide at their face value. Teaching experience of the requisite period is another companyponent of qualifications. A Registrar, the first respondent was, for three years. But did he teach during that term ? He did, if we read his certificates issued by professors like Dr. Robert Roaf and Dr. Geoffrey Osbrone. The appellants however have challenged their reliability. There are 6 certificates number on record and the 1st respondent is stated to have taken part in teaching work as Registrar. You cannot expect to produce those surgeons in Patna in proof and unless serious circumstances militating against veracity exist fair-minded administrators may, after expert companysultations, rely on them. We are sure Government will number depart from fair play in this case or stand on prestige on such an issue to stick to their earlier positions. The State has suggested that some clarificatory testimonials might have been procured later from the professors abroad. There is numberhing wrong in obtaining such testimonials to clarify the position and we see numberunusual bias in these testimonials from such outstanding Professors of Orthopaedics in British Universities. 1 1949 2 All. E.R. 155, 164. The simple question is whether a Registrar, like the petitioner, did or companyld acquire teaching experience. On the language of those documents there is some marginal doubt, in the sense that he is stated to have participated or assisted in teaching. The companytention of the other side naturally is that assisting or participating is different from actual teaching. While we are hesitant to swallow such a companytention it is number for us to finally pronounce on it, the matter being essentialy a technical one. Indeed we have restrained ourselves from finally stating whether the institutions in which Dr. Mukherjee has worked are teaching institutions and whether the Registrars post in which he worked gave him such teaching experience. These two matters have to be decided by the appointing authority. Courts cannot and do number appoint petitioners to posts they claim but lay down the legal criteria and give the companyrect directions, the Executive being the organ of State to exercise, the power to appoint but in companyformity with the legal directions. The State Government being that authority has to take the ultimate decision. There is some force in the grievance of companynsel for the State that the Court should number ordinarily call for Cabinet papers and start scrutinising the numberhings and reports of the various officers marely because a writ petition challenging the order has been made. When a writ of certiorari is moved, the Court has the power to call for the record, but in case where mala fides is number alleged or other special circumstances set out, sensitive materials in the possession of government may number routinely be sent for. The power of the Court is wide but will have to be exercised judicially and judiciously, having regard to the totality of circumstances, including the impropriety of every disgruntled party getting an opportunity to pry into the files of government. Of companyrse, acts of public authorities must ordinarily be amenable to public scrutiny and number be hidden in suspicious secrecy. W.?, are number satisfied that the High Court in this, case should necessarily have looked into-the Cabinet papers and back records, but the question has number been argued, except to the extent of mentioning that the Court was number in order although the State Government had produced the document on a direction. We leave the matter at that, for this reason. What do the alleged infirmities add up to? Shri Jagdish Swaroop rightly stressed that once the right to appoint belonged to Government the Court companyld number usurp it merely because it would have chosen a different person as better qualified or given a finer gloss or different companystruction to the regulation on the score of a set formula that relevant circumstances had been excluded, irrelevant factors bad influenced and such like grounds familiarly invented by parties to invoke the extraordinary jurisdiction under Art. True, numberspeaking order need be made while appointing a government servant. Speaking in plaintitudinous terms these propositions may deserve serious reflection. The Administration should number be thwarted in the usual companyrse of making appointments because some-bow it displeases judicial relish or the Court does number agree with its estimate of the relative worth of the candidates. Is there violation of a fundamental right, illegality or akin error of law which vitiates the appoint- ment ? The overlooking of alleged superlative abilities claimed by Dr. Mukherjee is number of judicial companycern but of public resentment and individual injustice, if wrongly discarded by an appointing authority-in the absence of proof of bad faith or oblique exercise or other error of law. Nor is the companyrective judicial review but an appeal to other democratic processes which hold sanctions against misdoings of any Administration and its minions. The Court is number to evaluate companyparatively but to adjudicate on legal flaws. Viewed in this perspective, was the High Court right in issuing a writ ? We are disposed to say yes. Undoubtedly, appointments to posts need number be accompanied by speaking orders or reasoned grounds. Then the wheels of Government will slow down to a grinding halt, tardy as it is even otherwise. And companyity of companystitutional instrumentalities forbids unfriendly interference where jurisdiction does number clearly exist. Granting this institutional modus vivendi, has the Court gone away? No, and we will give our grounds. While officious interference with every wrong government order is number right, here the 1st respondent has companyplained of violation of the regulations which bind State and citizen alike. Although the State need number always make a reasoned order of appointment, reasons relevant to the rules must animate the order.Moreover, an obligation to companysider every qualified candidate is implicit in the equal opportunity right enshrined in Arts. 14 and 16 of the Constitution. Screening a candidate out of companysideration altogether is illegal if the applicant has eligibility under the regulations. And for such a drastic step as refusal to evaluate companyparatively, i.e., exclusion from the ring of a companypetitor manifest grounds must appear on the record. Such being the legal perspective, let us test the present order of government by those canons. The explanatory affidavit of the appellant State and the records fairly produced by it before the Court disclose that Government has adopted a turbid attitude. Did it disregard Dr. Mukherjee out of band for want of Indian teaching experience in an Indian teaching institution ? Shri Jagdish Swaroops submission is that such experience is essential. If so, a violation of the regulation, as interpreted by us, has been companymitted. Failing in this the State falls back on another basis that his foreign experience is number shown to be from an approved teaching hospital, which may be clever but number straightforward. To be cute in Court may number companyrespond with being companyrect in administration. The 1st respondents case for the post has number been companysidered from the legal angle. It was the duty of Government to be satisfied, on reasonable materials, that a the U.K. hospitals relied on by the 1st respondent are teaching institutions an explained by us after a study of the spirit of the statute b the posts of Registrar in which he worked for 3 years involved teaching functions, the question being looked at fairly, number by semantic hair-splitting and quibbling on words like participating in teaching c the testimonials or written testimony from any British or Indian, for that matter Orthopaedics Professor will taken at its face value except where grave suspicion. taints such document, high-placed academic men being assumed to be veracious in the absence, of clear companytrary indications d Indian experience, if any, of the 1st respondent, will also be paid attention, provided it satisfied the dual tests companytained in the regulation. We are satisfied that the State has made short shrift of Dr. Mukherjee by preliminary screening. The numberhings and reports. and vacillating opinions entertained by Government, at various stages do number detain us as they are incidental to any administrative decision and cannot be espied with a suspicious eye by Court. Governmental ways may number In familiar for forensic processes but for that reason cannot be suspected. We have already observed that at the first flush the 1st respondent looks like eligible and highly qualified but there may be more than meets the eye. Government may investigate and be satisfied about the real qualifications. In the interests of justice and in view of the ambiguous thinking on this question at administrative levels we regard it as necessary to give the candidates time till the end of January, 1975 to produce evidence of the 1st respondents teaching experience in teaching institutions as interpreted by us. Government will give a fair companysideration to the qualifications and relative worth of all the candidates. Length of teaching experience will certainly be a relevant- number necessarily dominant-factor. The quality of their expe- rience, their academic attainments and the intellectual ability to stimulate students in the speciality and the investigative curiosity likely to be imparted to the alumni- these weighty companysiderations will promote public weal in a companyntry hungering for talented doctors. Governments sole companycern, we feel companyfident, will be to Get the most capable, in the public interest and in- the hope that this happy wish will number fail we proceed to issue the substantive declarations and directions. We declare the orders of appointment of the appellants in A. No. 1431 of 1974 as bad in law and direct the appellants in C.A. 1430 of 1974 to reconsider de numbero the appointments to the two posts of lecturers. In so doing, the State will act in companyformity with the findings and observations made above. The first respondents eligibility on the basis of the relevant regulation will be examined afresh before February 15, 1975, the parties, particularly the 1st respondent,, being at liberty to adduce materials to satisfy the State Government on his qualifications or otherwise on or before the last day of January, 1975. Government will be free to companysult technical authorities of its own before reaching a decision. We do number preclude the right of the Administration to arrive at its decision even earlier, fairly dealing with the situation since the sooner the appoint- 11-346 Sup.CI/75 ments are finalised the better. While we have, indicated the broad approach, it is within the power and responsibility of Government to take all relevant companysiderations and exclude extraneous matters in making the final choice for the two posts. We make it clear that there is numberobligation to, make any speaking order although there is numberhing, which stands in its Way in doing so. The appeals are dismissed, but we express our distress that three years of two rounds of litigation involving young specialists have held up the appointments to medical companylege posts thus hamparing, the process of medical companyrses and adversely affecting student interest socio legal syndrome which needs a closer diagnostic procedure. It will therefore, be the duty of the Government number to delay the making of fresh appointments after receipt of such materials, if any as may be produced by the candidates. With these observations, we dismiss the appeals with companyts against the State only, and only in favour of Respondent Dr. Mukherjee.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 322 of 1974. Petition Under Article 32 of the Constitution of India. K. Chatterjee for the Petitioner. N. Mukherjee and G. S. Chatterjee, for the Respondents. The Judgment of the Court was delivered by BEG, J.-The petitioner, Ram Bali Rajbhar, in this Habeas Corpus petition under Article 32 of the Constitution of India, seeks release from a detention ordered on 1-10-1973 by the Commissioner of Police, Calcutta, on the following grounds supplied on the same day to him On 5-9-1973 at about 17-40 hrs., you long with your associates Anwar Hossain of 18/2, Mominpur Road, Subal Das of Jhupri at Dock East Boundary Road, Calcutta, and others, all being armed with iron rods, lathis and bombs created a great disturbance of public order by hurling bombs at the tea-stall of Lal Mohan Jadav at 19, Coal Berth, Calcutta, endangering the lives and safety of the stall-owner and other nearby shop-keepers, as he had refused to supply tea to you all, without payment. The incident brought widespread panic in the locality, led to the closure of shops, suspension of vehicular traffic, thereby jeopardising the, maintenance of public order. On 7-9-1973 at about 20.05 hrs., you along with your associates Kali Das alias Tenia of Jhupri at Strand Road, Calcutta, Subed Ali of 5/2 Bhukailash Road and others, all being armed with iron-rods, lathis and bombs, attacked a Watch Repairing Shop styled as M s. Babloo Watch Repairing Co., at 52, Circular Garden Reach Road, Calcutta, by hurling bombs and damaging furniture, watches, show-cases of the said shop as Sk. Azim, the owner of this shop had earlier refused to pay you all for drinks, when the local people came to intervene, you all hurled bombs indiscriminately with a view to kill them. The incident clamped fear, frightfulness and insecurity in the minds of the public thereby affecting public order. And if left free and unfettered you are likely to companytinue to disturb maintenance of public order by acting in a similar manner as aforesaid. The petitioner companyplains that the grounds of detention are vague, false, malafide, fanciful, number-existent. It is submitted that there is numberrational nexus of the grounds with permissible objects of preventive detention. It is urged that criminal offences for which the authorities charged with maintaining law and order can institute ordinary criminal prosecutions are number meant to be made the subject matter of detention orders. Public Order, it is companytended, is something more serious than mere breach of the, criminal law for which the offender must be dealt with under the ordinary law. Public Order mentioned in Section 3 a ii , it is suggested, must be read in companyjunction with the security of the State so that only a person who indulges in activities which endanger something a kinto the security of the State should be deemed to be companyered by provisions relating to preventive detention. We think it is too late in the day to argue that there is any misuse of the provisions of Maintenance of Internal Security Act hereinafter referred to as the Act merely because, in order to arrive at a satisfaction that it is necessary to detain a person for the purposes of the security of the State or the maintenance of public order, some instances are given of criminal activity, whether they companyld have or have formed the subject matter of successful or unsuccessful prosecution See Golam Hussain alias Gama Vs. The Commissioner of Police Calcutta Ors. 1 Milan Banik Vs. The State of West Bengal Ors., 2 Mohd Salim Khan Vs. Shri C. C. Base Deputy Secretary to the Government of West Bengal Anr 3 Sasti Satish Chowdhary Vs. State of West Bengal. 4 An order based upon such grounds cannot be said to be affected by extraneous companysiderations or become mala-fide for this reason only. The legal position on this subject has been recently clarified by a Constitution Bench of this Court in Haradhan Saha Vs. the- State of West Bengal Ors., 5 where it was pointed out p. 2160 The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may number relate to an offence. It is number a parallel proceeding. It does number-overlap with prosecu- 1 1974 4 S.C.C. p.530. AIR 1972 S.C. 1214. AIR 1972 S.C. 1670. 4 1973 1 S.C.R. 467. AIR 1974 S.C. 2154 at 2160. 6-379SupCI/75 tion even if it relies on certain facts for which prosecution may be launched or may have, been launched. An order of preventive detention may be made before or during Prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is numberbar to an order of preventive detention. An order of preventive detention is also number a bar to- prosecution. Public Order is necessarily an elastic companycept which is, in any case, wider than the security of the State cat.--gory separated in the Act from it by the disjunctive or. It is true that, in some cases, the facts may so clearly indicate that an ordinary criminal prosecution would suffice that the necessity to order the detention of an offender for one of the objects of the Act companyld number be said to be reasonably made out. The case before us, however, is number one of those cases. We have to be careful to avoid substituting our own opinion about what is enough for the subjective satisfaction of the detaining authorities with which interference companyld be justified only if it is clear that numberreasonable person companyld possibly be satisfied about the need to detain on the grounds given in which case the detention would be in excess of the power to detain. The required satisfaction must have reference to a need to prevent what is anticipated from the detenu. The past companyduct or activity is only relevant in so far as it furnishes reasonable grounds for an apprehension. Prevention and punishment have some companymon ultimate aims but their immediate objectives and modes of action are distinguishable. A reference to the facts of the decided cases cited above will indicate that it is number enough that a criminal persecution was launched against the petitioner on 6-9-1973 for the alleged participation of the petitioner in the incident of 5-9-1973. It is, however, alleged that on 20-11-1973, Lal Mohan Jadav, whose tea shop had been attacked by a number of persons who, according to the State, include the petitioner, himself swore an affidavit in which he stated that he knew the petitioner and companyld say that the petitioner had number participated in the attack on his tea shop. In his companynter affidavit in this Court, Respondent No. 2, the Commissioner of Police, Calcutta, gave the following sequence of events which is number disputed by the petitioner The Petitioner was discharged by the Criminal Court on 1-10 1973, the very date on which the detention order was made by the Commissioner of Police. The grounds of detention were also served upon the petitioner on 1-10-1973. On 18-10-1973, a representation by the petitioner against his ,detention was received by the State Government. On 22-10-1973, the detention order of the Commissioner of Police was approved by the State Government. On 23-10-1973, the State, Government sent the petitioners case to the Advisory Board together with the grounds on which the detention was ordered, the representation against it made by the petitioner, and a report made by the Commissioner of Police under Sec. 3, sub. s. 3 of the Act. On 5-11-1973, the Advisory Board, after examining.the case, gave its opinion to the State Government that there was sufficient cause for the petitioners detention. The State Government companyfirmed the detention order on 8- 11-1973 and- its order was served on the petitioner in jail on 14-11-1973. On 20-11-1973, Lal Mohan Jadav swore an affidavit, in the Court of Magistrate 1st Class at Alipore, stating that the petitioner Ram Bali Rajbhar did number participate in the attack on his shop on 5-9-1973 and that he did number mention his name in the First Information Report for that reason. On 27-11-1973, the petitioner made a second representation which was received by the State Government on 28-11-1973. This as still under companysideration when the petitioner filed a Writ Petition under Article 226 of the Constitution to the Calcutta High Court questioning his detention. On 21-3-1973, the Calcutta High Court rejected the Hebeas Corpus petition. The petitioner asserts that, on the very grounds on which he was detained, one Kamal Singh Tiger son of Gurmel Singh, who, like the petitioner, was alleged to be homeless in Calcutta, was detained but released after a companysideration of his case by the Advisory Board. The petitioner has attached a companyy of the order of the State Government on the case of Kamal Singh which shows that, although, Kamal Singh made numberrepresentation at all to the State Government under Section 8 of the Act, yet, he was released because the Advisory Board, after companysidering all the materials placed before it and after hearing Kamal Singh Tiger, in person, reported that in its opinion, numbersufficient cause for the detention of Kamal Singh existed. In reply to the petitioners assertions about the case of Kamal Singh, the Commissioner of Police stated, in paragraph 20 of his affidavit, that they are number relevant for the petitioners case. We think that they would be relevant to determine whether the cases of the petitioner and of Kamal Singh were identical or distinguishable. It is evident that Kamal Singh, although served with identical grounds of detention, and, similarly described as homeless, asked for and obtained a personal hearing which satisfied the Advisory Board that his detention was number justified. Apparently, the petitioner companyld number persuade the Advisory Board, similarly, to believe that his case fell in the same category. This, therefore, shows that the Advisory Board applied its mind to the case of the petitioner which in its opinion, stood in. a different class from the case of Kamal Singh Learned Counsel.for the petitioner then companytended that the detaining authorities did number appear to have applied their minds to the case of the petitioner as they ought to have done and that this is evident from the fact that he is described as homeless when he holds a licence for money lending and has an address in. Calcutta. It was suggested that the petitioner may have been falsely and maliciously implicated.by some of his,debtors and that the detaining authorities would have discovered this if they had investigated facts properly. In support of such an inference, it was submitted that it had been alleged that the petitioner had participated in an attack upon a tea shop when Lal Mohan Jadav, who ran the tea shop, had himself sworn that the petitioner had number participated in the attack. On the other hand, it is asserted, in the affidavit sworn in by the Commissioner of Police, Calcutta, that the Commissioner was satisfied, from the enquiries made by him through reliable officers, that the petitioner did participate in the alleged incident although he, may have been able to secure an affidavit from Lal Mohan Jadav after his discharge, the suggestion being that the affidavit was dishonestly sworn and procured after the petitioner had been discharged. A Division Bench of the Calcutta High Court had companysidered the effect of the affidavit of Lal Mohan Jadav on the petitioners detention. In our opinion, it had rightly held that the affidavit companyld number vitiate the initial detention order which was passed at a time when numbersuch information companytained in an affidavit was either before the detaining authorities or placed before the Advisory Board. The petitioner had made numberassertion that he did number get a personal hearing by the Advisory Board or that he did number have a full opportunity to make his representations or to put forward his case fully before the Advisory Board which companyld fairly and impartially companysider every allegation on every question of fact. The petitioner has number alleged any hostility of the Commissioner of Police of Calcutta or of any other officer towards him.- On the materials before us, we cannot be satisfied that neither the detaining authorities number the Advisory Board had properly investigated or applied their minds to all the relevant facts relating to the petitioners case, Nevertheless, it does appear to us. from the affidavit of the Commissioner of Police, that the State Govt. had Perhaps number passed any order upon the second representation of the petitioner due to the belief that it may be improper to pass any order on it when, a Habeas Corpus petition of the petitioner is pending. There companyld be numberreason whatsoever, number, after this Court as well as the High Court of Calcutta have companysidered the petitioners Habeas Corpus petitions, for the State Govt. to delay further investigation or action upon the petitioners second representation. The question which arises here is what is the action which the State Govt. can take on the petitioners second representation? Section 14 1 of the Act lays down 14 1 Without prejudice to the provisions of section 21 of the General Clauses Act, 1897, a detention order may, at any time. be revoked or modified- a numberwithstanding that the order has been made by an officer mentioned in sub-section 2 of section 3, by the State Government to which the officer is subordinate or. by the Central Government b numberwithstanding that the, order has been made by a State Government, by the Central Government. The State Government can revoke or modify a detention order if it is satisfied, on new or supervening companyditions or facts companying to light, that a revocation or modification had become necessary. Section 14 of the Act apparently vests a wider power than that which the State Govt. may have possessed under the provisions of Section 21 of the General Clauses Act. 1897 which is, by having been specifically mentioned in section 14 of the Act, made applicable in such cases. The language of Section 14 of the Act, however, makes it clear that the power under Section 14 is number necessarily subject to the provisions of Section 21 of the General Clauses Act. This means that a revocation or modification of an order of the State Govt. is possible even without companyplying with the restrictions laid down in Section 21 of the General Clause Act. Nevertheless, as the wider power under Section 14 of the Act does number over-ride but exists without prejudice to the provisions of Section 21 of the General Clauses Act, we think that the companyrect interpretation of the provisions, read together, would be that it is left to the State Government in the exercise of the discretion, either to exercise the power read with provisions of Section 21 of the General Clauses Act or without the aid of Section 21 of the General Clauses Act. We think it will be a reasonable, and judicious exercise of the power under Section 14 of the Act to refer a case once again to the Advisory Board for its opinion before a subsequent representation made on fresh materials by a detenu is rejected. It is true that the companyditions under which a reference is made for the opinion of the Advisory Board under Section 10 of the Act cannot be repeated. It is also clear that the express and mandatory duty to refer arises only under the companyditions laid down by Section. 10 of the Act and there is numberspecific or separate provision for calling for the opinion of the Advisory Board from time to time. Nevertheless, if the power under Section 14 of the Act can be exercised ,in the like manner and subject to the like sanctions and companyditions if any , to use the language employed by Section 21 of the General Clauses Act, we can only interpret like manner and subjection to like companyditions to mean similar and number identical manner and companyditions. We think that a situation in which a power of revocation or modification of a detention order is invoked by a second or a subsequent representation can, after making allowance for intervening events which cannot be wiped out of existence, be companypared to and resembles a situation in which the opinion of the Advisory Board is sought after an approval or a preliminary companyfirmation of a detention order by the State Government under Section 3 3 of the Act, awaiting the opinion of the Advisory Board, which is expected to function quite impartially and independently before the Government makes a final order under Section 12 of the Act. Section 10 of the Act only provides, for the 1st representation. But, it appears to us that the power under Section 14 of the Act, read with Section 21 of the General Clauses Act, which is specifically mentioned in Section 14 of the Act, companyld import or imply a power of the State Government to refer a second representation likewise to the Advisory Board, if the State Government so decades in an analogous situation. And, the Advisory Board can then adopt such parts of the procedure laid down in Section 1 1 of the Act as companyld be applied to a second representation. In such a case, the reference would number be under Section 10 of the Act but under Section,14 of the Act read with the necessary implication of preserving the power of the Govt. to act as laid down in Section 21 of the General Clauses Act. In other words, the subsequent reference would result from a necessarily implied power of the Govt. to act. so far as possible, in a like manner to the one it has to adopt in companyfirming or revoking the initial detention order under Section, 12 of the Act. And, if there is such a power in the Government to refer a subsequent representation on fresh grounds to the Advisory Board for its opinion, there will, we think, be a companyresponding implied power and obligation of the, Advisory Board to give its opinion in accordance with the procedure prescribed by Section 1 1 of the Act exception that its report will necessarily have to be submitted in such cases beyond ten weeks from the date of detention order but within a reasonable time. We think that the High Court of Calcutta while dismissing the Writ Petition, need number have expressed any opinion about the worth of the affidavit sworn by Lal Mohan jadav, the tea shop owner. That, we think, is the function of authorities companystituted under the Act for deciding questions of fact. On a Habeas Corpus petition, what has to be companysidered by the Court is whether the detention is prima facie legal or number, and number whether the detaining authorities have wrongly or rightly reached a satisfaction on every question of fact. Courts have, numberdoubt, to zealously guard the personal liberty of the citizen and to ensure that the case of a detenu is justly and impartially companysidered and dealt with by the detaining authorities and the Advisory Board But, this does number mean that they have to or can rightly and properly assume either the duties cast upon the detaining authorities and Advisory Board by the law of preventive detention or function as Courts of Appeal on questions of fact. The law of preventive detention, whether we like it or number, is authorised by our Constitution presumably because it was foreseen by the Constitution-makers that there may arise occasions in the life of the nation when the need to prevent citizens from acting in ways which unlawfully subvert or disrupt the bases of an established order may outweigh the claims of personal liberty. Every petitioner under Article 32 of the Constitution has to establish an infringement of a fundamental right. Hence, this Court cannot order a release from detention, upon a Habeas Corpus petition, until it is satisfied that a petitioners detention is really unwarranted by law. This means that, in a case of detention under the Maintenance of Internal Security Act, 1971, the petitioner has to show a violation of either Article 21 or Article 22 of the Constitution. That personal liberty of the citizen which the law so sedulously and carefully protects can also be taken away by the procedure established by law when it is used to jeopardise public good and number merely private in- terests. Learned Counsel for the petitioner companyld number indicate material which companyld companyvince us that the petitioner has been denied the protection of either Article 21 or Article 22 of the Constitution. There is numberhing here to show that the petitioner did number have the opportunity of making an effective representation against his detention. We are also number satisfied, as we have already indicated, that the powers under the Act are being utilised in this case for a companylateral purpose or in a manner which is malafide simply because a criminal prosecution was launched against the petitioner which failed. That is one of the matters which the Advisory Board and the State Government can take into account in forming an the opinion on the question whether the petitioners detention or companytinued detention is necessary. In order to make out a case of malafide or misuse of powers under the Act, we think that better and more companyvincing material has to be forthcoming than what the petitioner in the instant case has been able to place before us. We, however, must observe here that some of the facts numbericed above are enough to put the detaining authorities and the Advisory Board on their guard so that they should also examine the possibility of having been misled by mechanically reproduced assertions made by subordinate police officers acting at the instance of persons with ques- tionable motives. The detaining authorities and the Advisory Board are the best judges of that. They are armed with ample power and means to lift the cast iron curtain of impeccable form behind which this Court does number, in the absence of good and substantial reasons, try to peep in an attempt to discover malafides or misuse of drastic powers meant to be used honestly, carefully reasonably, and fairly. This Court presumes that they are being so used unless and until the companytrary is palpable, but numbersuch presumption need hamper the efforts which the detaining authorities and the Advisory Boards ought to make to discover the real or the whole and unvarnished truth before determining the need for a preventive detention. At any rate, numbermere amour propre or self esteem or any police officer should be, allowed to stand in the, way of. an- honest, careful, and impartial investigation and decision. For the reasons given above while we reject the petitioners prayer for quashing the detention order, we direct the Government of West Bengal to companysider and take up an early decision upon the pending fresh representation of the petitioner in accordance with the requirements of law and justice as indicated by us above.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 379 of 1974. Petition under article 32 of the Constitution of India. Govinda Mukhoty, for the petitioner. K. Chatterjee and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by- BHAGWATI, J.-The District Magistrate, 24-Parganas, by an order dated 29th December, 1973 made under sub-section 1 read with subsection 2 of section 3 of the Maintenance of Internal Security Act, 1971 directed that the petitioner be detained as be was satisfied that with a view to preventing the petitioner from acting in a manner pre- judicial to the maintenance of public order it was necessary to detain him. The fact of the making of the order of detention was reported by the District Magistrate to the State Government on 2nd January, 1974 and the State Government, by an order dated 8th January, 1974, approved the order of detention. Pursuant to the order of detention, ,the petitioner was arrested on 18th January, 1974 and immediately ,on his arrest he was served with the grounds on which the order of detention was made. The grounds of detention referred only to the incident as forming the basis of arriving at the subjective satisfaction ,,as regards the necessity for detention of the petitioner and that incident was in the following terms On the night of 25/26-6-73 at about 00.1 hrs. you along with your associates being armed with lethal. weapons including fire Arms raided the house of Ananta Keyal of Naitala under Diamond Harbour P.S. and looted away cash, ornaments etc. At the time of operation you fixed from your fire arms indiscriminately disregarding human lives and their safety. As a result, the house owner Ananta Kayal and his close door neighbour Ajit Kayal sustained grievous gun shot injuries on their persons, Subsequently both of them ,expired in Diamond Harbour Hospital. You also brutally assulated some of the inmates of the house of occurrence. Your action created such panic in the locality and the local people felt a sense of insecurity. Thus you acted in a manner prejudicial to the maintenance of public order. The petitioner made a representation against the order of detention on 29th January, 1974 but it was companysidered and rejected by the State Government on 31st January, 1974. The State Government thereafter submitted the case of the petitioner to the Advisory Board along ,with his representation and the Advisory Board, after bearing the ,petitioner and taking into account the representation made by him, ,made a report to the State Government on 6th March, 1974 stating that in its opinion there was sufficient cause for the detention of the petitioner. The State Government accordingly passed an order dated 14th March, 1974 companyfirming the detention of the petitioner. This detention is challenged by the petitioner in the present petition which has been submitted from jail. The first companytention urged Mr. Mukhoty, learned companynsel appearing amicus curiae on behalf of the petitioner, was that the solitary incident set out in the grounds of detention was so remote from the date of the order of detention-in fact there was a time lag about six months that the District Magistrate companyld number possibly have arrived at his subjective satisfaction on the basis of that incident. The requirement of proximity, said Mr. Mukhoty, was number satisfied and the subjective satisfaction said to have been reached by the District Magistrate companyld number be regarded as real or genuine. Now it is true, as pointed out by this Court in Golam Hussain v. The Commissioner of Police, Calcutta Oi-.v. 1 that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of 1 1974 4 S.C C. 530. 99 9 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 v.State of West Bengal 1 . No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had 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 land 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 casual companynection has been broken in the circumstances of each case. There is, therefore, numberhard and fast rule that merely because there is a time lag of about six months between the offending acts and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is numbera rigid or mechanical test to be blindly applied by merely companynting the number of months between the offending acts and the order of detention. It is a subsidiary test evolved by the companyrt for the purpose of determining the main question whether the past activities of the detenu is such tat from it a reasonable prognosis can be made as to the future companyduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case of such a character as to suggest that it is a part of an organised operation of a companyplex of agencies companylaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has companye to light cannot be a solitary or isolated act, but must be part of a companyrse of companyduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future. Here in the present case, the, act alleged against the petitioner was a daring act of dacoity in a village by a gang companysisting of the petitioner and his associates and if this act is judged in its companyrect setting, grave proportions and clear implications, it would be clear that it cannot be a stray isolated act but must be the work of a habituated and hardened criminal given to companymit dacoities and the District Magistrate companyld, therefore, reasonably arrive at a satisfaction that with a view to preventing the petitioner from carrying on such activities it was necessary to detain him. Moreover, the affidavit in reply filed on behalf of the State Government by the Secretary in the Department of Public Relations and Youth 1 1974 4 S.C.C. 1. 1000 Services, points out that in companynection with the incident set out in the grounds of detention a criminal case was filed in the companyrt of the Sub-, Divisional Judicial Magistrate, Diamond Harbour on 26th June, 1973 and he was arrested in companynection with that case, but it appeared during investigation that witnesses were unwilling to give evidence in open companyrt against the petitioner and his associates and it was, therefore, felt that it was futile to proceed with the criminal case and it was decided to drop it against the petitioner. Now, if the criminal case were dropped, the petitioner would have to be released and in that event he would be free to carry on his nefarious activities. The District Magistrate, therefore, passed the order of detention on 29th December, 1973. The order of detention was in fact passed in anticipation of the petitioner being released as a result of dropping of the criminal case against him. The record of the case which was produced before us by the learned companynsel appearing on behalf of the State showed that the criminal case was actually pending against the petitioner on. 3rd January, 1974. That means that the criminal case must have been dropped and the petitioner must have been discharged sometime between 3rd January, 1974 and 18th January, 1974, the latter being the date when he was once again arrested pursuant to the order of detention. It is, therefore, number possible to say that the District Magistrate companyld number have arrived at a subjective satisfaction or the basis of the- incident set out in the grounds of detention, or that the subjective satisfaction reached by him was sham or unreal. Mr. Mukhoty on behalf of the petitioner then urged that even if the incident set out in the grounds of detention were true, it merely affected maintenance of law and order and did number have any impact on public order and hence there was numbernexus between the act alleged against the petitioner and the subjective, satisfaction reached by the District Magistrate. Now, there can be numberdoubt that the acts of the detenu on which a subjective satisfaction is claimed to have been reached by the detaining authority must have relevance to the formation of such subjective satisfaction. If the acts of the detenu relied. on by the detaining authority are irrelevant, numberreasonable person companyld possibly arrive at a subjective satisfaction on the basis of such irrelevant acts and the subjective satisfaction said to have been reached by the detaining authority would be a mere pretence. It is, therefore necessary to companysider whether the act alleged against the petitioner in the grounds of detention companyld be said to be relevant to the formation of a subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public Order. What was the potency or radiation of the act alleged against the petitioner did it affect maintenance of public order or was its prejudicial effect companyfined merely to maintenance of law and order? The distinction between law and order, on the one hand, and public order, on the other, has been brought out admirably by Hidayatulla, C.J., in a recent decision in Arun Ghosh v. State of West Bengal. 1 The learned Chief Justice pointed out in that case the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance in the following words 1 -19703 S. C. R. 288 1001 Public order was said to embrace more of the companymunity than law and order. Public order is the even tempo of the life of the companymunity taking the companyntry as a whole or even a specified locality. Disturbance of public, order is to be distinguished from acts directed against individuals which do number disturb the society to the extent of causing a general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the companymunity in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the companymunity keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is companymunal tension. A man stabs a different sort. Its implications are deeper and it affects the even tempo life and public order is jeopardized because the repercussions of the act embrace large sections of the companymunity and incite them to make further breaches of the law and order and to subvert the public order . . It means therefore that 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 the society. . . . The question to ask is Does it lead to disturbance of the current of life of the companymunity so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? If we ask this question in relation to the facts of the present cases, it is obvious that the act alleged against the petitioner was calculated to disturb the current of life of the companymunity in the village. It was a serious act of dacoity which was alleged against the petitioner and it was perpetrated at dead of night and the petitioner and his associates who participated were armed with lethal weapons including guns and they used these lethal weapons recklessly and indiscriminately in utter disregard of human life and actually caused grievous injuries to at least two persons and beat up several others. This act of dacoity created a panic in the locality and seriously disturbed the even tempo of life of the companymunity in the village. There was clearly disturbance of public order and the act alleged against the petitioner had nexus with the object of maintenance of public order. The subjective satisfaction reached by the District Magistrate companyld number, therefore, he said to be based on an irrelevant ground. Then it was companytended on behalf of the petitioner that the District Magistrate had taken into account other material companytained in the history sheet of the petitioner in arriving at his subjective satisfaction and since this material was number disclosed to the petitioner, he had numberopportunity of making an effective representation and that the order of detention was, therefore, invalid. Now, the proposition can numberlonger be disputed that if any material which has number been disclosed to the 17-L346SupCI75 10 0 2 Petitioner has gone into the formation of the subjective satisfaction of the detaining authority it would have an invalidating companysequence on the order of detention. But in the pesent case it is number possible to say that any material other than that that set out in the grounds of detention was taken into account by the District Magistrate in reaching his subjective satisfaction- We have looked at the history- sheet of the petitioner which was produced before us by the learned companynsel appearing on behalf of the State Government and we do number find any material prejudicial to the petitioner other than that set out in the grounds of detention. There is, therefore, numberfactual basis for this companytention and it must be rejected. Mr. Mukhoty on behalf of the petitioner also tried to persuade us to strike down the order of detention on the ground that though the order of detention was made on 29th December, 1973, the petitioner was number arrested until 18th January, 1974 and there was thus a delay of twenty days in arresting the petitioner pursuant to the order of detention- But this is equally unsustainable and for two very good reasons. In the first., place. the delay of twenty days between the date of the order of detention and the date of arrest cannot be regarded as unreasonable. Secondly, there is sufficient explanation for the delay. The petitioner was actually in jail on 29th December, 1973 when the order of detention was made and it was only on some date between 3rd January, 1974 and 18th January, 1974 that lie was released and then once again arrested on 18th January, 1974. The last companytention urged by Mr. Mukhoty on behalf of the petitioner was that though the order of detention was made by the District Magistrate an 29th December, 1973, he did number report the fact of the making of the order of detention to the State Government until 2nd January, 1974 and there was thus a delay of about five days which companystituted a violation of the statutory requirement of section 3, sub- section 3 that the fact of the making of the order of detention must be reported forthwith to the State Government. This companytention raises the question as to what is the true meaning and companynotation of the word forthwith as used in section 3 sub-section 3 . The, question is fortunately number res integra. It is companycluded by a decision of this Court in Keshav Nilkanth Joglekar v. The Commissioner of Police, Greater Bombay. 1 The statutory provision which came up for companysideration in that case was section 3, sub-section 3 of the Preventive Detention Act, 1950 which companytained an identical provision as section 3. subsection 3 of the present Act and the question which arose was as to whether Commissioner who made the order of detention on 13th January, 1956 companyld be said to have reported that fact forthwith to the State Government under section 3, sub-section 3 when he did so as late as 21st January, 1956. The Court was, therefor-., called upon to companystrue the word forthwith in section 3, sub-section 3 and after discussing various authorities, English as well as Indian, bearing on the interpretation of this word, the Court, speaking through Venkatarama Ayyar, J. pointed out that On these authorities, it may be taken. an act which is to be done forthwith must be held to 1 1956 S. C. R. 653. 1003 have so done, when it is done with all reasonable despatch and without avoidable delay, and proceeded to add under section 3 3 it is whether the report has been sent at the earliest point of time possible, and when there, is an interval of time between the date of the order and the date of the report, what has to be companysidered is whether the delay in sending the report companyld have been avoided-the result then is that the report sent by the Commissioner to the State on 21-1-1956 companyld be held to have been sent forthwith as required by section 3 3 , only if the authority companyld satisfy us that, in spite of all diligence, it was number in a position to send the report during the period. from 13th to 21st January, 1956. The same test must be applied in the present case and we must inquire whether the District Magistrate sent the report to the State Government with all reasonable despatch and without avoidable delay, or, to put it differently, whether in spite of all diligence the District Magistrate was number in a position to send the report until 2nd January, 1974. Now, the District Magistrate has made an affidavit explaining the reason for the delay in sending the report to the State Government. He has pointed out that 29th December, 1973, which was the date when the order of detention was made, was a Saturday and on that day he had passed eight other orders of detention and the materials in companynection with all these nine cases had to be typed out by the typist which companyld number possibly be companypleted in one single day. 30th December, 1973 was a Sunday and, therefore, the earliest when the report companyld be submitted to the State Government was 31st December, 1973. But the District Magistrate companyld number send the report on that day as he was very busy in companynection with food procurement work in the district and the next day, namely, 1st January, 1974 being a public holiday, he companyld send the report only on 2nd January, 1974. This explanation given by the District Magistrate it, in our opinion, sufficient to show that he sent the report to the State Government with all reasonable despatch and there was numberavoidable delay on his part. Whilst taking this view on facts, we do number wish to underscore the need for strict companypliance with this requirement of section 3, sub-section 3 . It is a very important requirement intended to secure that the State Government shall have sufficient time for companysideration before it decides-and this decision has to be made within twelve days of the making of the order of detention-whether or number to approve the order of detention and the Court would, therefore, insist on strict companypliance with it and number companydone avoidable delay, even if it be trivial But in the present case the facts stated by the District Magistrate in his affidavit show that be acted with prompt despatch and was number guilty of any avoidable delay. The District Magistrate must, therefore, be held to have sent the report forthwith as required by section 3, sub- section 3 .

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 208 of 1973. From the Judgment and order dated the 25th September, 1973 of the Patna High Court in Election Petition No. 4 of 1972. K. Prasad, K. K. Sinha and S. K. Sinha for the appellant. P. Varma, D. P. Mukherjee and D. Goburdhan for respondent No. 1. S. Prasad for respondent No. 3. The Judgment of the Court was delivered by SARKARIA, J. Election from 168-Katoria Bihar Legislative Assembly Constituency took place in March, 1972. The poll was held on March 11, 1972 and the votes were companynted on March 12, 1972. Respondent No. 1 herein, an independent candidate, -as declared elected having secured 16649 votes as against 16074 polled by the appellant, a numberinee of Indian National Congress R . There were three other candidates Respondents 2 to 4 who secured 2347, 8001 1542 votes respectively. The votes rejected as invalid, were 1219. On April 14, 1972, the appellant filed an election petition under the Representation of the People Act, 1951 challenging the election of the returned candidate on the ground that several irregularities and illegalities were companymitted in the companynting of votes. The petition was resisted by the returned candidate. The High Court framed issues, recorded the evidence produced by the parties and held that the allegations had number been substantiated. It declined the request for a recount and dismissed the petition. Hence this appeal by the petitioner. Mr. Prasad, learned Counsel for the appellant companytends that the following irregularities illegalities in the companynting had been established Four unauthorised persons, viz., Ajudhya Prasad Singh, Q. M. Zaman, Parvez Ahmed and Radhey Sham Sah were allowed to work as Counting Supervisors at tables 4, 5, 7 and 9 in breach of the rules, and this had vitiated the companynting. In the first round of companynting at table No. 4 in the box relating to polling station No. 74, Madhopur U.P. School, 50 unsigned ballot papers were found in excess of those actually polled. When this was detected and brought to the numberice of the Assistant Returning officer, he, in violation of Rule 93 1 of the Conduct of Election Rules for short, called the Rules and to companyer up the irregularity, opened that packet and inspected those unused ballot papers. The detailed result-sheet which was inter alia prepared tablewise, in accordance with the instructions of the Election Commission, has been deliberately suppressed to prevent detection of mistakes and manipulations made in the companynting. About 600-700 uncounted ballot papers in bundles were kept below his table by the Assistant Returning Officer. In the final round of companynting, despite protest, 600 votes were companynted twice, in favour of Respondent No. 1. That was why the petitioner who at the end of the third round was leading by a margin of 2205 votes, was shown having lost by 575 votes to Respondent No. 1, numberwithstanding the fact that in the last round there were only 3800 ballot papers to be companynted. Before dealing with these companytentions, we may recall, what this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of companyrse. The reason is two-fold. Firstly such an order affects the secrecy of the ballot which under the law is number to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for companynting of ballot papers. This procedure companytains so many statutory checks and effective safeguards against trickery mistakes and fraud in companynting, that it-can be called almost fool-proof. Although number hard and fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus The Court would be justified in ordering a recount of the ballot papers, only where 1 the election-petition companytains an adequate statements of all the material facts on which the allegations of irregularity or illegality in companynting are founded 2 . On the basis of evidence- adduced such allegations are believing that there has been a mistake in companynting prima facie established, affording a good ground for and 3 the Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do companyplete and effectual justice between the parties. The companytentions advanced in this case are to be tested in the light of these principles. Since, on the whole, we agree with the findings and the companyclusion of the companyrt below, we will companyfine the discussion to the broad features of the case and the legal aspects of the companytentions canvassed before US. The first companytention is that four unauthorised persons were allowed to act as Counting Supervisors at tables Nos. 4, 5, 7 and 9. The argument proceeds that the list of all the persons who were appointed as Counting Supervisors Counting Assistants, was summoned from the office of the District Election Officer, and in response thereto, the list Ex. 6, has been produced. It is argued that since the names of Ajudhya Prasad Singh, Q. M. Zaman, Parez Ahmed and Radhey Sham Sah do number find mention in Exh. 6, they were never appointed to act a,-, Counting Supervisors. In this companynection, reference has been made to the application filed on April 14, 1972, by the petitioner for summoning documents, the list Ex. 6, and the Check Memos Ex. C/3, Ex. C/4, Ex. C/6 and Ex. C/8 . The Check Memos show that the aforesaid persons actually supervised the companynting at tables Nos. 4, 5, 7 and 9. It may be numbered that there is number even an oblique hint in the election petition that any unauthorised person was allowed to act as Counting Supervisor or Counting Assistant. Such an allegation was made for the first time in the application, dated 3-7-1973. This application seeking a recount was made at the stage of final arguments, after the parties had closed their evidence. It is true that in cross-examination the Returning Officer and the Assistant Returning Officer were questioned by the Counsel for the petitioner with regard to the authorisation of these persons to act as Counting Supervisors. But that companyld hardly companystitute an adequate numberice to the Respondent of this new plea which was sought to be smuggled into the case in a questionable manner at the belated stage. The Respondent companyld be justified in assuming that the evidence on this plea which was number even faintly adumberated in the petition number put in issue would number be looked into by the Court. In any case at that stage the Respondent had numberopportunity or right to produce evidence to show that apart from the list. Exh. 6, there was other record showing that the aforesaid persons were duly appointed by the Returning Officer to act as Counting SuperviSors. Be that as it may, it has number been shown that these four persons who took part in the companynting, were unauthorised persons. It is number disputed that the are all Government officials. The mere fact that their names do rot appear in Exh. 6 does number exclude the probability of their having been appointed and kept in reserve by a separate order or orders to act as Counting Supervisors in case of need. That such appointments were made and a waiting list of such appointees in reserve was prepared, is clear from the answer that the Returning Officer R.W. 14 , Mr. Sinha, gave to a Court question If an officer of this list did number turn up in time to participate in the companynting then in his place another officer had to be appointed from the waiting list that was maintained in my office regarding this matter. That waiting list companytained the names of officers reserved whose services were to be utilised in case, any of the appointed officer did number turn up or --as subsequently exempted from working as such inside the companynting hall. In reply to a further question put by the petitioners Counsel, the Returning Officer reiterated There was a reserved list like this in my office regarding this matter which had been prepared under my orders. The fact that such a list of officials in reserve was prepared and exists receives further support from the evidence of R.W. 18 and R.W 19 who had worked as Counting Supervisors at tables Nos. 6 and 3. respectively. The petitioner appeared in the witness-box as P.W. 19 on 7- 5-1973. Even then he did number make any allegation that any unauthorised persons had been admitted into the Counting Hall. His Chief Counting Agent who appeared as P.W. 13, also did number allege anything of this kind. The circumstances of this case fully attract the maximum omnia praesumuntur rite esee acta, and it would be presumed that the aforesaid four persons were rightly and regularly appointed and admitted into the Counting Hall to act as Counting Supervisors, by the Returning Officer. On this score numberviolation of Rule 53 or any other statutory provision has been shown. Now we turn to the second companytention of Mr. Prasad. The argument is that at the first round of companynting in the box of Polling Station No. 74 Madhopur , fifty unsigned ballot papers were found in excess of those polled. This irregularity, it is submitted, was brought to the numberice of the Returning Officer by Prof. Yadav, the Chief Counting Agent of the appellant, but to-no avail. Part I of Ex. 4 is the Ballot Paper Account sent by the Presiding Officer of Polling Station No. 74. Its Part 11 companytains the result of the initial companynting of those ballot- papers at table No. 4. In Part 1, in companyumn No. 2 a , the number of unused ballot papers is shown as 397, and in companyumn 3, the number of ballot papers issued to voters is given as 323. In Part 11, companyumn 1, the total number of ballot papers found in the ballot box used at the polling station, is entered as 373, and in companyumn 2, captioned Discrepancy, if any etc., it is written Found fifty excess including one ballot paper unsigned. The entries in companyumns 1 and 2 of Part II purport to bear the signature of the Counting Supervisor, R. Shyam Sah who was number examined by either side. It is companymon ground that when this discrepancy was brought to the numberice of the Assistant Returning Officer and the Returning Officer, the sealed packet of the unused ballot papers was opened and the papers were companynted. The result of that companynt is to be found numbered on the back of Ex. 4 by the Assistant Returning Officer, thus On verification by companynting the actual number of unused ballot-papers by opening the statutory packet in presence of the Returning Officer and the candidates, agents, it was found that only 347 unused ? ballot papers have been returned. This settles the discrepancy in the ballot paper account. Under it is the endorsement of the Returning Officer to the effect This was done by A.R. O? in my presence. The Assistant Returning Officer stated in the witness-stand as R.W. 13, that in the Ballot paper Account, the total number of unused ballot-papers was wrongly shown as 397, while it should have been 347, which was the actual number of ballot-papers found in the packet. Thus, the physical verification revealed that this apparent discrepancy did number actually exist. The companyrt below has accepted the genuineness of the endorsements of the Assistant Returning Officer R.W. 13 and the Returning Officer R.W. 14 on Ex. 4 and the evidence of those officers in preference to the, interested statements of the Counting Agent P.W. 9 and the Chief Counting Agent P.W. 13 of the petitioner. It has also found that only one unused ballot-paper was found unsigned, and number fifty. We have numbergood reason to differ from those findings. Indeed the main burden of the arguments of Mr. Prasad, is that the Assistant Returning Officer Retarning Officer was number companypetent to open the packet of unused ballot-papers and inspect the same as such a companyrse was expressly forbidden by Rule 93 1 of the Rules. It is stressed that this illegality vitiating the companynting, was itself a good ground for ordering a recount. Rule 93 reads Production and inspection of election papers.- While in the custody of the district election officer or, as the case may be, the returning officer- a the packets of unused ballot papers with companynterfoils attached thereto b the packets of used ballot papers whether valid, tendered or rejected c the packets of the companynterfoils of used ballot papers d the packets of the marked companyy of the electoral roll or, as the case may be, the list maintained under sub-section 1 or sub- section 2 of section 152 and e the packets of the declaration by electors and the attestation of their signature shall number be opened and their companytents shall number be inspected by, or produced before, any person or authority except under the order of a company petent companyrt. Subject to such companyditions and to the payment of such fee as the Election Commission may direct,- a all other papers relating to the election shall be open to public inspection and b companyies thereof shall on application be furnished. Copies of the returns by the returning officer forwarded under rule 64, or as the case may be, under clause b of sub-rule 1 of rule 84 shall be furnished by the returning officer, district election officer, chief electoral officer or the Election Commission on payment of a fee of two rupees for each companyy. For understanding the import and object of Rule 93, it would her appropriate to have a short and swift glance at the scheme of them Rules. Part V of the Rules makes provision with regard to Counting of Votes in Parliamentary and Assembly Constituencies. It companyer. Rules 50 to 66. Part VI relates to Voting at Elections by Assembly Members and in Council Constituencies. It includes Rules 67 to 70. Part VII provides for Counting of votes at Elections by Assembly Members or in Council Constituencies. It companytains Rules 71 to 85. It will be, seen that Rule 93 has number been placed in any of the Parts relating to companynting of votes. It seems to have been advisedly placed in Part TX captioned Miscellaneous, which in the serial order companyes after the Parts dealing with voting and companynting of votes. Viewed in the light of the scheme of the Rules, and its setting, the language of Rule 93 seems to us clear enough to indicate that the custody of the District Election Officer or the Returning Officer spoken of in the Rule is a post- election custody. Such an indication is available in the words unused ballot papers which repeatedly occur in this rule. The word unused in the companytext means that which was made available for use in the election but remained unused in the election. Sub-rule 3 of the Rule enables the authorities mentioned therein to issue companyies of the returns forwarded by the Returning Officer under Rule 64 or Rule 84 1 b . The supply of such companyies will obviously be a post-election function. Any other interpretation of Rule 93 and its scope would make it difficult, if number altogether impossible, for the Returning Officer to perform-the various functions and duties enjoined by the rules at the stage of companynting. This will be clear from a reference to the other Rules. Take for instance Rule 56 which requires that the ballot papers shall first, be taken out from the boxes used in a companystituency and mixed together and then arranged in companyvenient bundles and scrutinised. Subrule 2 of Rule 56 further requires inter alia that if a ballot paper does number bear any mark at all or does number bear both the mark or the signature which it should have borne under the provisions of sub-rule 1 of Rule 38, it shall be rejected by the Returning Officer. To perform this duty it would be absolutely necessary for the Returning Officer to inspect such ballot papers. Indeed, in the present case, in ,objection was raised that fifty unused ballot papers in the packet did number bear the mark or signature required by Rule 38 1 . The Returning Officer was therefore, fully companypetent to open the packet and inspect and companynt the ballot papers found therein. Instruction 23 in the Hand Book issued by the Election Com- mission, also indicates that R. 93 1 operates at a post- election stage. Under this instruction, the Returning Officer is required to seal the packets of all the papers relating to the election, specified in Clauses a , b , c , d and e of R. 93 1 immediately after the companynting of the votes is over, with his own seal and also with that of the Commission. After the sealing, the packets are to be put in a separate steel box which shall be locked with two locks and each lock shall be sealed. Immediately after the declaration of the election results the sealed box is to be despatched to the District Election Officer who on receipt of the same shall forthright deposit it in safe custody in the Treasury under double-lock. The key of one of the locks is entrusted to the Treasury Officer. In Union Territories such a deposit is to be made by the Returning officer. The secret seals of the Commission are returned immediately after their required use. Thus, it is clear that the custody companytemplated by Rule 93 1 is the post- election custody. In the light of the above discussion, the companyclusion is inescapable that the act of the Returning Officer in opening. the packet, and in inspecting and companynting the unused ballot-papers found therein, far from amounting to an illegality, was necessary for the due performance of the duty enjoined on him by the Rules. Accordingly, we overrule this companytention. It is urged that the detailed result-sheet, prepared candidatewise, table-wise and roundwise, from which figures mentioned in the final result sheet Exh. 7 were extracted has been deliberately withheld to prevent detection of the hanky panky done in the companynting. Such a detailed result sheet, it is maintained, was required to be prepared-and was admittedly prepared-under instruction No. 17 q in the Hand Book for Returning Officers 1970 issued by the Election companymission. The companytention appears to be attractive but does number stand a close examination. Instruction 17 q in the Hand-Book runs thus Side by side, the work of tabulating the result of companynting shall be done. The Check Memos duly signed by the Returning Officer shall be passed on to an officer seated at a separate table near the Returning Officer Assistant Returning Officer. This officer shall fill in the result of companynting of each round of each table in Form 20. It is desirable that a separate sheet for each round is used for the purpose. Copies of Form 20 may be printed, cyclostyled or type-written. The entries in the form should be made on loose sheets prepared for the purpose. A companyy of Form 20 is at Annexure XIII. A perusal of Form 20 prescribed under rule 56 7 of the Rules would show that, it does number require that the final result-sheet should be prepared tablewise, also. It is sufficient if the final result sheet is candidate-wise and round-wise. The final result sheet Exh. 7 exactly companyforms to the prescribed Form 20. The Assistant Returning Officer R.W. 13 in cross examination said On the above table where the entries used to be made in the result sheets from the check- memos, those entries were made candidate-wise, table-wise and round-wise. The figures of total votes of the different rounds of companynting, as mentioned in this abstract result sheet, Exh. 7, the witness looks into it were number directly taken from the figures as they found mention in the different check- memos of the different tables of the different rounds of companynting, but from these check memos the figures were first extracted on the detailed result sheet giving their numbers round-wise, candidate-wise and table-wise and thereafter those figures were totalled round- wise and extracted in this Exh. 7. From the statement of R.W. 13 extracted above, it would appear that at first a detailed result sheet in which figures were tabulated candidatewise, tablewise and roundwise was I prepared, and then, therefrom, all the figures, excepting.those showing-table-wise break-up, were carried over to the final result sheet, Exh. 7, drawn up in the prescribed Form 20. This detailed result-sheet, though summoned, is number forthcoming from the District Election Officer might be, it hag been misplaced. Might be, it was destroyed by the Counting Staff after the preparation of the final result-sheet in the prescribed Form. Whatever be the case, the absence of that document, does number make the checking and verification of the figures entered in the final result sheet, Exn. 7 impossible or even difficult. Its preparation is number a requirement of any statutory provision. It is prepared only as a matter of companyvenience in view of the instructions of the Election Commission, by carrying over, companylating and totalling the figures from the Check Memos companytaining tablewise figures of each round of companynting. It is a sort of rough intermediary tabulation intended to facilitate the companypilation of the final result- sheet in the prescribed form. The basic figures from which the final result-sheet, whether detailed or abstracted, are worked out are given in the Check Memos pertaining to the various companynting tables. ,Such Check Memos are available and indeed reference to some of them namely, Exh. C/3, C/4, C/6 and C/8 was specifically made before us. The companyrectness or otherwise of the figures given in Ex. 7 companyld easily be verified by tallying the same with the aggregate of those given in the Check Memos. Indeed, numberargument has been advanced before us that the figures given in the final result sheet, Ex. 7, would number agree with the figures taken and totalled from the Check Memos. We therefore, repel this companytention. This bring us to the last companytention. The argument advanced by Mr. Prasad is that during the fourth round of companynting, 600 to 700 unused and uncounted ballot papers in bundles of 25 each were detected by the petitioners companynting agent, Jagannath Sah, lying under the table of the Assistant Returning Officer. Jagannath Sah protested. The Assistant Returning Officer, however, put those uncounted ballot papers in the lot of companynted votes. P.W. 13 also, on companying to know about it, protested against that mixing. In support of this companytention, ,Counsel has.referred to the circumstance that at the end of the third round of companynting, the appellant was leading by a margin of 2205 votes. It is urged, this lead of 2205 votes companyld number thereafter be turned into a deficit of 575 votes when the total number of ballot papers that remained to be companynted in the last round, was 3800 only. Like the elusive cloud, this ground of objection, also, has been ever changing its hue and shape. In the application Exh. 3, for a recount which was submitted by the petitioner to the Returning officer ,at 7 p.m. towards the close of. the final round of companynting-all that was stated, was It is respectfully submitted that recounting of 168 Katoria Assembly Constituency be done. Because one bundle of 600 votes have been recounted again. All the votes be recounted. It was number alleged therein, even in an embryonic form that 600 uncounted votes in bundles were detected lying underneath the table of the Assistant Returning Officer. Such an allegation, appeared for the first time in the election petition which was filed about 33 days after the election. What was earlier said to have been companynted twice over, had number become companypletely uncounted. What was then alleged in Ex. 3 to have been companynted on the table, has number gone underneath the table. The original allegation in Ex. 3 which was repeated in the second application, Ex. 3a, presented at 7-40 p.m. was manifestly untenable. because if there was double companynting of any ballot papers, the total of the votes polled should have exceeded by the number doubly companynted. No such excess was reflected in the grand total of the final result sheet. The total was companyrect. The petitioner bad numberexplanation as to why the grand-total of the final result sheet did number show an excess of 600 or any other number of ballot papers. It was mainly for this reason, that the Returning Officer had rejected the applications of the petitioner for a recount. That is why the petitioner has number companye forward with a changed version, invented as an after-thought. The final result sheet, Exh. 7, falsifies his present companytention also. it shows that at the end of the third round, the appellant was leading by a margin of 424 votes only. There is numbergood reason to doubt the authenticity of the figures given in Exh. 7. As against it, the numberes, Ex. 2 Series, on which the petitioner relies for his companytention that at the end of the third round he was leading by 2205 votes, was a self-serving and wholly unreliable piece of evidence. These numberes Exh. 2 series were number mentioned in the list of reliance filed along with the petition. There is numberreference to any such numberes or their companytents in the appli cations Exhs. 3 and 3a. These numberes are said to have been made by the Counting Agents of the petitioner at the time of companynting. But in the initial list submitted by the petitioner on 30-8-1972 for summoning among others his Counting Agents as witnesses, it was number mentioned that they would produce any such numberes. Subsequently on 28-3-1973 he moved the companyrt requesting that these witnesses be required to bring their numberes. In these circumstances, the High Court was right in holding that these numberes had been subsequently brought into existence for the purpose of this petition. For the foregoing reasons, we are of the opinion that the appellant has been unable to make out a good case for a recount of the ballot papers. We dismiss his appeal. He shall pay the companyts of Respondent No.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2382 to 2384 of 1968. Appeals by special leave from the judgment decree dated the 27th September, 1967 of the Andhra Pradesh High Court in No. 4-6, 1962 C. Chagla, V. M. Tarkunde, H. K. Puri and K. K. Mohan, for the appellant. In all the appeals V. Subramanian, A. V. Rangam and A. Subhashini, for respondent Nos. 2 3 In C.A. No. 2382/68 and for respondent number. 1 5. In C.A. No. 2384/68 The Judgment of the Court was delivered by BEG, J.-The three companysolidated appeals before us by grant of special leave are directed against a companymon judgment of the High Court of Andhra Pradesh, by which the plaintiffs appeals in three suits, filed on similar facts, were dismissed. They can be decided by us or. the question whether the companytracts set up by the plaintiff-appellant were struck by the provisions of Section 23 of the Contract Act. The section reads as follows 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 as 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. The appellant, Firm of Pratapchand Nopaji, is the plaintiff. in all the three suits, but the defendants of each suit, the respondents before us, are different. The plaintiff claimed Rs. 78,201.15 ans. in ,,original suit No. 106 of. 1954, Rs. 13,978.4 ans. in original suit No. 107 of 1954 and Rs. 91,697.4 ans. in original suit No. 114 of 1954, as amounts due to indemnify him under section 222 of the Contract Act on the strength of payments said to have been made by the plaintiff to third parties on behalf of the defendants who are alleged to have directed the plaintiff to enter into badla transactions for them. Three other suits, claiming amounts alleged to have been borrowed, also filed by the same plaintiff, were tried together with these three suits but, we are number companycerned here with the other three suits from the dismissal of which numberappeal was preferred. The character of the companytract set up in each case is brought out by paragraph 3 of the original suit No. 106 of 1954 where the plaintiff said The defendants are big merchants and have been carrying on trade outside Dhone, even in places like Bombay. They wanted to do the business of purchasing and selling groundnut seeds and oil seeds in Bombay market and for this purpose engaged the plaintiffs as companymission agents to companytact with Bombay Commission Agents, who were entering into companytracts with customers for purchasing or selling groundnut seeds and castor oil seeds, according to the orders of the defendants which the plaintiffs were, companymunicating to them. The Bombay companymission agents used to give intimation to the plaintiffs of the fact of having executed the orders the companytracts of sale or purchase and the terms, the rate etc., of the companytracts. The plaintiffs were immediately, companymunicating the information to the defendants. The business was according to the custom prevailing in the, Bombay market, viz. the custom of Badla. The defendants number only agreed in general to abide by the custom of Badla, but specifically companysented to every such Badla. At the request of the defendants the transactions were settled after undergoing a few badlas. Such settlements were beneficial to the defendants as the market was falling and delay would have meant greater loss when the market was falling the Bombay agents were pressing for cash settlement on pain of declaring them as defaulters which will result in a disability to do any further business. The defendants knew this state of affairs and they realised that a settlement was the only companyrse beneficial to them. So they specifically told the plaintiffs that they must at any companyt preserve their reputation in the Bombay market and with plaintiffs. The defendants hence agreed to pay the amount and on their request and on their behalf the plaintiffs paid all amounts due to the Bombay Commission Agents according to the Patties sent by the Bombay Agents in respect of the transactions relating to the defendants. The defendants also agreed-to pay to the plaintiffs interest on the amounts so advanced by the plaintiffs for payment to the Bombay agents. The Bombay, Commission agents were sending parties-of transactions to the plaintiffs. As already stated, at the request of the defendants, the plaintiffs paid all such losses and other charges according to the patties sent by Bombay Commission agents on the promise of the defendants to repay all such amounts to the plaintiffs with interest. The extracts of the accounts filed with this plaint show the transactions and the amounts paid by the plaintiffs at the request of and on behalf of the defendants. The plaintiffs case was that the authority to engage in Badla transactions on forward companytracts, which are companytracts for the delivery of specified goods on future dates, implied what is known as companytinuation or carrying over in the terminology of the Stock Exchange. The meaning of such a transaction is given, in Halsburys Laws of England-3rd Edn. Vol. 36 at p. 547 para 842 as follows If a purchaser of securities during a dealing period does number wish to companyplete his purchase during the next following settlement period he may arrange to resell for the current account the securities which he has agreed to buy for that account, and to purchase for the new account. Conversely, a seller of securities during a dealing period who does number wish to deliver during the next following settlement period may arrange to repurchase for the current account the securities which he has agreed to sell, and to sell for the new account. Such an arrangement is known as a companytinuation or carrying over. This is explained further and distinguished from a loan at page 548para 845 Continuation or carrying-over is in form and in law a sale and repurchase, or a purchase and resale, as the case may be. It is a new companytract, and number merely getting further time for, the performance of the old companytract. A companytinuation being a companytract of sale and repurchase and number a loan, the original seller becomes again the, absolute owner of the securities carried over, and is number bound to redeliver the identical.securities but an equal amount of similar securities. If, therefore, he sells the securities taken in by him and makes a profit thereon, he may retain it to his own use. In the case of a loan, however, if the lender sells the securities deposited, the borrower may charge him with the price obtained for them if he finds it to his interest to do so. Under the Defence of India Rules, the definition of Badla provides that it includes a companytango and a backwardation and any other arrangement whereby the performance of any obligation under a companytract to take or give delivery of securities within a stipulated period is postponed to some future date in companysideration of the payment or receipt of interest or other charges. Carrying-over or companytinuation is also given as one of the meanings of the term companytango or back-wardation in Halsburys Laws of England-3rd Edn. Vol. 36 at p. 548. If we substitute goods, in respect of which forward companytracts are made, for securities, we get the exact nature of the transactions set up by the plaintiff in each case. They are numberhing short of companytracts or speculation in rise and fall of prices of goods purchased only numberionally without any intention to actually deliver them to the purchasers. In such a transaction, a purchaser is number at all expected to make a demand for actual delivery of goods ostensibly sold. We find companysiderable force in the plaintiffs companytention that at least companytracts between the plaintiffs and defendants were number wagering companytracts although we think, in agreement with the High Court, that each party knew that their object was to indulge in speculation. In Bhagwandas Parasram A firm v. Burjori Ruttomji Bomanji, 1 after examining the facts of a case in which a firm of pucca adatias was authorised. by a defendant intending to speculate in differences, to sell and then to resell for the purpose of making profits, it was found that, as the plaintiff companyld number be said to either lose or benefit companyrespondingly from variations in price, there companyld be numberagreement in the nature of a wager between the principal and the agent whatever may have been intentions of the principal. It wag held that, in a wagering companytract, there has to be mutuality in the sense that the gain of one party would be the loss of the other on the happening of the uncertain event which is the subject matter of a wager. It was pointed out there at p.33 Speculation does number necessarily involve a companytract by way of wager, and to companystitute such a companytract a companymon intention to wager is essential. No such intention has been proved. We, therefore, accept the companytention of the appellant that there was numberwagering companytract between the plaintiff and any of the defendants The next question we may companysider is whether the companytracts set up companyld be said to be companylateral companytracts quite unaffected by the objects or intentions of defendants in entering into these companytracts which involved making of other companytracts which may or may number be wagering companytracts but were number prohibited. Strong reliance was placed upon Gherulal Parakh v. Mahadeodas Maiya Ors., 2 where the object of a companytract or partnership was to enter into forward companytracts for the purchase and sale of wheat so as to speculate in rise and fall of price of wheat in future. The object of the partnership was held to be number illegal, within the meaning of section 23 of the Contract Act, although 1 45 I.A. p. 29 33. 2 1959 2 supp. S.C.R. 406, 431. the business for which the partnership was formed was held to involve wagering. The position was thus summarised there at p. 431 The aforesaid discussion yields the following results 1 Under the companymon Law of England a companytract of wager is valid and therefore both the primary companytract as well as the companylateral agreement in respect thereof are enforceable 2 after the enactment of the Gaming Act, 1845, a wager is made void but number illegal in the sense of being forbidden by law, and thereafter a primary agreement of wager is void but a companylateral agreement is enforceable 3 there was a companyflict on the question whether the second part of s.18 of the Gaming Act, 1845, would companyer a case for ,lie recovery of money or valuable thing alleged to be won upon any wager under a substituted companytract between the same parties the House of Lords in Hills case 1921 2 B. 351 had finally resolved the companyflict by holding that such a claim was number sustainable whether it was made under the original companytract of wager between the parties or under a substituted agreement between them 4 under the Gaming Act, 1892, in view of its wide and companyprehensive phraseology, even companylateral companytracts, including partnership agreements, are number enforceable 53 s. 30 of the Indian Contract Act is based upon the provisions of s. 18 of the Gaming Act, 1845, and. though a wager is void and unenforceable, it is number forbidden by law and therefore the object of a companylateral agreement is number unlawful under s.23 of the Contract Act and 6 partnership being an agreement Within the meaning of s.23 of the Indian Contract Act, it is number unlawful, though its. object is to carry on wagering transactions. We, therefore, hold that in the present case the partnership is number unlawful within the meaning of s. 23 A of the Contract Act. Re. ii Public Policy The learned Counsel for the appellant companytends that the companycept of public policy is very companyprehensive and that in India, particularly after independence, its companytent should be measured having regard to political, social and economic policies of a welfare State, and the traditions of this ancient companyntry reflected in Srutis, Smritis and Nibandas. Before adverting to the argument of the learned Counsel, it would be companyvenient at the outset to ascertain the meaning of this companycept and to numbere how the Courts in England and India have applied it to different situations. Cheshire and Fifoot in their book on Law of Contract, 3rd Edn., observe at page 280 thus The public interests which it is designed to protect are so companyprehensive and heterogeneous, and opinions as to what is injurious must of necessity vary so greatly with the social and moral companyvictions, and at times even with the political views, of different judges, that it forms a treacherous and unstable ground for legal decision These questions have agitated the Courts in the past, but the present state of the law would appear to be reasonably clear. Two observations may be made with some degree of assurance. First, although the rules already established by precedent must be moulded to fit the new companyditions of a clanging world, it is numberlonger legitimate for the Courts to invent a new head of public policy. A judge is number free to speculate upon what, in his opinion, is for the good of the companymunity. He must be companytent to apply, either directly or by way of analogy, the principles laid down in previous decisions, He must expound, number expand, this particular branch if the law. Secondly, even though the companytract is one which prima facie falls under one of the recognized heads of public policy, it will number be held illegal, unless its harmful qualities are indisputable. The doctrine, as Lord Atkin remarked in a leading case, should only be invoked in clear cases in which the harm to the public is substantially incontestable, and does number depend upon the idiosyncratic inferences of i few judicial minds In popular language the companytract should be given the benefit of the doubt. If an agreement is merely companylateral to another or companystitutes an aid facilitating the carrying out of the object of the other agreement which, though void, is number in itself prohibited, within the meaning of section 23 of the Contract Act, it may be enforced as a companylateral agreement. If, on the other hand, it is part of a mechanism meant to defeat what the, law has actually prohibited, the Courts will number companyntenance a claim based upon the agreement because it will be tainted with an illegality of the object sought to be achieved which is hit by section 23 of the Contract Act. It is well established that the ,object of an agreement cannot be said to be forbidden or unlawful merely because the agreement results in what is known as a void companytract. A void agreement, when companypled with other facts, may become part of a transaction which creates legal rights, but this is number so if the object is prohibited or mala in se. Therefore, the real question before us is Does the agreement between the parties in each case, which was to be carried out in Bombay, so companynected with the execution of an object prohibited by either a law applicable in Bombay or a law more widely applicable so as to be hit by Section 23 of the Contract Act? A question which has been raised before us is whether the plaintiff, who entered into companytracts with third parties, who appeared as witnesses in the cases number before us, so that these third parties made the purchases and settlements in Bombay, the payments for which are the subject matter of suits, was dealing with them as a principal to principal. The High Court had found that the relationship between the plaintiff and the third parties he employed to companyclude the transactions was that of a principal to principal. The question whether the parties through whom the, plaintiff actually alleged carrying out of the companytract set up between. the plaintiff and the defendants companyld themselves be regarded as principals or agents of the plaintiffs-.will become quite immaterial if the objects of the companytracts are found to be tained with the kind of illegality which is struck by Sec. 23 of the Contract Act. Again, the mere fact that the companytracts between the plaintiff and the defendants were entered into at Kurnool in the State of Andhra Pradesh would also number make any difference in principle if the objects of the companytracts which were to be carried out at Bombay were of such a kind as to be hit by Sec. 23 of the Act. The, principle which would apply, if the objects are struck by Sec. 23 of the Contract Act, is embodied in the maxim Qui facit per alium facit per se What one does though another is done by oneself . To put it in another form, that which cannot be done directly may number be done indirectly by engaging another outside the prohibited area to lo the illegal act within the prohibited area. It is immaterial whether, for the doing of such an illegal act, the agent employed is given the wider powers or authority of the pucca adatia, or, as the High Court had held, he is clothed with the powers of an ordinary companymission agent only. In view of the opinion already expressed by us, that, at any rate, the initial companytracts between, the plaintiff and the defendants were number really wagering companytracts, we need number deal with the provisions of the Bombay Act No. 3 of 1865 for Avoiding Wages which are declared void by Sec. 30 of the Indian Contract Act. We will, however, companysider the applicability of the provisions of Bombay Forward Contracts Control Act, No. 64 of 1947 hereinafter referred to as the Bombay Act and of the Oilseeds Forward Contract Prohibition Order, 1943, hereinafter referred to as the Control Order , which was kept alive by the provisions of Sec. 17 of the Essential Supplies Temporary Powers Act, 1946 hereinafter referred to as the Central Act . Sec. 2, sub s. 3. lays down Contract means a companytract entered into, made or to be performed in whole or in part in any numberified area relating to the sale or purchase of any goods to which this Act applies Provided that the Provincial Government may by numberification in the Official Gazette direct any companytract or class of companytracts to be excluded from the provisions of this Act, subject to such companyditions as the Provincial Government may deem fit to impose-, Sec. 2, sub-s. 3 lays down Forward Contract means a companytract for the delivery of goods at a future date and which is number ready delivery companytract Sec. 2, Sub. s. 4 enacts Goods means any kind of movable property and includes securities but does number include money or actionable claims Sec. 2, sub. s. 7 reads Option in goods means a companytract for .he purchase or sale of a right to buy, or a right to sell, or a right to buy or sell goods in future and includes a gully, a teji, a mandi or a tejimandi in goods Sec. 2, sub.s. 9 says Ready delivery companytract means a companytract which provides for delivery and payment of price either immediately or within such number of days number exceeding seven after the date of the companytract and under such companyditions as the Gazette, specify in this behalf in respect of any particular goods Sec. 2, sub. s. 1 provides Recognised association means an association which is for the time being recognised by the Provincial Government as provided in Section The recognition of associations is governed by Sec. 3 of the Act, and Sec. 6, sub. s. 1 gives the power to every recognised association to subject to the sanction of the Provincial Government, make and, from time to time, add to, vary or rescind bye-law for the regulation and companytrol of forward companytracts in goods for which such association has been recognised. Sec. 6, sub. s. 2 f refers specifically to the power of the recognised Association to lay down, the terms, companyditions and incidents of companytracts and the forms of such companytracts as are in writing and, Sec. 6, sub.s. 2 g companyers regulating the entering into, making, performance, rescission and termination of companytracts, including companytracts between members, or between a companymission agent and his companystituent or between a broker and his companystituent or between a jatthawala or muccadum and his companystituent or between a member of the recognised association, and a person who is number a member, and the companysequences of insolvency on the part of a seller or buyer or intermediary, the companysequences of a breach or omission by a seller or buyer and the responsibility of companymission agents, muccadums and brokers number parties to such companytracts Section 6, sub. s. 2 i indicates that the method and procedure for settlement of claims and disputes including settlement by arbitrations Section 6, sub. s. 3 says The bye-laws may provide that the companytravention of any of the bye-laws shall- make a companytract which is entered into, made or is to be performed otherwise than in accordance, with the bye-laws void or illegal render- the member liable to explusion, suspension, fine or other number-monetary penalty. Sec. 8 of the Bombay Act deals with the illegality of the companytracts and its companysequencies as follows Every forward companytract for the sale or purchase of, or relating to, any goods, specified in the numberification under sub- section 3 of section I which is entered into, made or to be performed in any numberified area shall be illegal if it is number entered into, made or to be performed- a in accordance with such by-laws, made under section 6 or 7 relating to the entering into, making or performance of such companytracts, as may be specified in the bye-laws, or b i between members of a recognised association, through a member of a recognised association, or with a member of a recognised association, provided that such member has previously secured the written authority or companysent, which shall be in writing if the bye- laws so provide, of the persons entering into or making the companytract, and numberclaim of any description in respect of such companytract shall be entertained in any civil. companyrt. Any person entering into or making such illegal companytract shall on companyviction, be punishable with imprisonment for a term which may extend to six months or with fine or with both. Section 9 of the Bombay Act lays down Notwithstanding anything companytained in this Act or in any other law for the time being in force on a numberification being issued by the Provincial Government in the Official Gazette, options or such kinds of options in such goods and in the whole of the Province of Bombay or such part thereof as may be specified in the numberification shall be illegal. Any person entering into any option made illegal under sub-section 1 shall, on companyviction, be punishable with imprisonment which may extend to six months or with fine or with both. The Andhra Pradesh High Court had reached the companyclusion that it was number necessary to decide the question whether provisions of Sec. 8 clause 1 a had been companytravened probably because numberbye-law made under Section 6 or 7 of the Bombay Act had- been placed before it. No such bye-law has been pointed out to us. We are, therefore, number in a position to hold that there has been an infringement of any bye-law. The High Court had, however, held that there had been a companytravention of Sec. 8 1 b of the Bombay Act inasmuch as only one of the third parties, namely, Shivdanmal Agarwal Co., whose partner Ganga Ram was examined as P.W.1, was shown to be a member of a recognised association. We do number companysider it necessary to decide this question either as it appears to us that the Andhra Pradesh High Court was,correct in holding that the forward companytracts under companysideration violated the provisions of the two orders set out below No. 7561/33-D 4 , which reads In exercise of the powers companyferred by the proviso to clause 2 of section 2 of the Bombay Forward Contracts Control Act, 1947 Bom. LXIV of 1947 , the Government of Bombay is pleased to direct that the following companytracts shall be excluded from the provisions of the said Act namely Forward companytract for specific delivery of any variety of oil seeds for specified price the delivery order, railway receipts or bill of lading against which are number transferred to the third parties, made or entered into before the 19th December, 1950, and outstanding on that date. No. 7561/33-D 2 which says In exercise of the powers companyferred by sub- section 1 of Section 9 of the Bombay Forward Contracts Control Act, 1947 Bom. LXIV of 1947 the Government of Bombay is pleased to direct that all options in all varieties of oil seeds shall be illegal in Greater Bombay. Moreover, as regards oil seeds, we find that the Central Act enacted for the companytrol of production, supply, and distribution of essential companymodities, companyers food-stuffs which, under Sec. 2 c , include edible oilseeds and oils. Section 3 2 c to g of the Central Act authorises the Central Government to pass orders for the purposes given as follows c for companytrolling the prices at which any essential companymodity may be bought or sold d for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or companysumption of any essential companymodity e for prohibiting the withholding from sale of any essential companymodity ordinarily kept for sale f for requiring any person holding stock of an essential companymodity to sell the whole or a specified part of the stock at such prices and to such persons or class of persons or in such circumstances, as may be specified in the order g for regulating or prohibiting any class of companymercial or financial transactions relating to foodstuffs or companyton textiles, which, in the opinion of the authority making the order are, or if unregulated are likely to be, detrimental, to public interest Section 7 2 of the Central Act provides that If any person companytravenes any order under, Section 3 relating to foodstuffs a he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine, unless for reasons to be recorded the companyrt is of opinion that a sentence of fine only will meet the ends of justice and b any property in respect of which the order has been companytravened or such part thereof as to the companyrt may seem fit shall be forfeited to the Government As already indicated, Sec. 17 of the Central Act keeps alive the provisions of Oil-seeds Forward Contract Prohibition Order, 1943. The provisions of this Control Order appear to us to be so important for the decision of the question before us that we reproduce it below in toto. It runs as follows This order may be called the Oilseeds Forward Contracts Prohibition Order, 1943. It extends to the whole of British India. It shall companye into force at once. In this order companytract means a companytract made, or to be performed in whole or in part in British India relating to the sale or purchase of oilseeds, forward companytract means a companytract for the delivery of oilseeds at some future date oilseeds means any of the oilseeds for the time being specified in the first companyumn of the schedule to this Order specified date in relation to any oilseeds means the date specified against those oilseeds in the second companyumn of the schedule to this Order. No person shall after the specified date for any class of oilseeds, enter into any forward companytract in any of those, oilseeds. Notwithstanding any.custom, usage or practice, of the trade, or the terms of any companytract or any regulation of and association relating to any companytract 1 every forward companytract in any class of oilseeds outstanding at the close of business on the specified date shall be deemed to be closed out at such rate as the Central Government may by numberification in the Official Gazette fix in this behalf, and different rates may be fixed for different classes of companytracts -L379 Sup. CI/75 2 all differences arising out of any companytract so deemed to be closed out shall be payable on the basis of the rate fixed as aforesaid and the seller shall number be found to give and the buyer shall number be bound to take delivery 3 payment of all differences legally due from a member of an association to another member of such association in respect of any forward companytract closed out under this clause shall be made to the clearing house of the association and for the purposes of calculating such differences the rate fixed by the Central Government under sub-clause 1 shall be deemed to be the settlement rate fixed by the association under its bye-laws or other regulations which shall, for the relevant purpose, companytinue to have effect subject to the provisions of this Order. The Central Government may, by Notification in the Official Gazette, exclude any companytract or class of companytracts from the provisions of this Order. Noti. No. P and S.C, 75 1 /43, dated 31st May, 1943 . A Notification was issued on 31-5-1943 under Sec. 5 of the above mentioned Order, the relevant part of which reads as follows I Forward Contracts for groundnut, linseed, mustard seed, rapeseed or toriaseed of specified qualities or types and for specific delivery at a specified price number transferable to third parties are excluded from- the provisions of this Order Noti. No. P S.C. 75 2 /43, dated 31st May, 1943 No P. S.C. 75 A 1/43 -In exercise of the powers companyferred by clause 5 of, the Oilseeds Forward companytracts Prohibition Order, 1943, the Central Government is pleased to exclude the following class of companytracts from the provisions of the said Order, namely- Forward companytracts for castor seed, companyton seed or sesamum tit or jinjil or specific qualities or types and for specific delivery orders, railway receipts or bills of lading against which companytracts are number transferable to, third parties. Learned Counsel for the appellant companytended that the Contracts under companysideration for groundnut seeds and castor seeds are excluded under the above mentioned numberification because they satisfy, in each case, the first of the two alternative companyditions of exclusion. These companyditions for companytracts for sale of ground-nut seeds are 1 they must relate to specified qualities or. types for specific deliveries at a specified price and, 2 they should number be transferable to third parties. Excluded forward companytracts for castor seeds must a be in respect of specified qualities or types and b be for specific delivery orders, railway receipts, or bills of lading against which are number transferable to third parties. The Trial Court had accepted the companytention that it is enough that one of the two companyditions are satisfied and bad read the word and in the above mentioned numberification is the equivalent of the disjunctive or. The companytention of the respondents, that the High Court rightly, held that the word and cannot be companyverted into an or and that both the companyditions must,be satisfied for an exemption, appears to us to be companyrect. We,, therefore, hold that the companytracts under companysideration before us were prohibited under the provisions of the Essential Supplies Act read with the Central Order of 1943. They were number shown to be companyered by the companyditions for their exemption from prohibition. Having regard to the objects of the prohibition imposed by the Central Government on forward companytracts on, inter-alia, ground-nut seeds and oil-seeds, in the interest of the general public, so that the supply at reasonable prices of companymodities essential to the life and well being of masses of the people is number jeopardized, the absolute terms of the prohibition,the penalties imposed for its infringement, and the careful manner in which only those companytracts are excluded from the prohibition which are for actual delivery and supply to bang fide purchasers, we agree with the High Court that the companytracts under companysideration are tainted with an unlawfulness of their object and are forbidden by law. The High Court had given very good reasons for accepting the view of the Trial Court that the companytracts under companysideration companyld number possibly be for actual delivery, It observed that the total quantity of groundnut seeds alone shown to have been originally purchased on behalf of the defendants was 950 tons which would have required two special goods trains to transport them from Bombay to Kurnool, where such a huge quantity of ground-nut seeds companyld number possibly be required. Indeed, Kurnool itself has so much of groundnut seeds that, far from importing any, it exports them. The plaintiff did number specifically set up any case of companytracts for actually intended delivery. On the other hand, companytracts set-up were for Badla transactions, which are number, as we have already indicated, understood to be companytracts for actual delivery. To assume in intention to demand actual deliveries from the mere form of the companytracts would be to believe, very naively, that they were companytracts for the proverbial carrying of companyls to Newcastle. If, as both the Trial Court and the High Court have rightly held, the companytracts were number for genuine or actual delivery but only for speculation on differences in price, even the first companydition for exclusion of these transactions from the purview of the companytrol order, which companytemplates actually intended delivery, would number be satisfied. Hence, we have numberdoubt in our minds that the companytracts were number merely void but illegal in the sense that their objects are forbidden. We think that the High. Court companyrectly distinguished and refused to apply authorities recognising the enforceability of agreements companylateral to what are merely void Agreements. It rightly relied on decisions holding agreements companylateral to prohibited companytracts also to be unenforcible because a taint attaches to them which makes them also companytrary to public policy. Such agreements fall within the class of cases mentioned in Gherulal Parakhs case supra where harmful results of permitting the companytracts, in terms of injury to the public at large, are evident and indisputable. In Shivnarayan Kabra v. The State of Madras 1 , this Court dealing with the objects of similar legislation companytained in the Forward Contract Regulation Act, 1952, said at page 144- the Act was passed in order in order to put a stop undesirable forms of speculation in forward trading and to companyrect the abuses of certain forms of forward trading in the wider interests of the companymunity and, in particular, the interests of the companysumers for whom adequate safeguards were essential. In our opinion, speculative companytracts of the type companyered in the present case are included within purview of the Act. The result is that we think that he objects of companytracts set up by the plaintiff cannot be carried out by merely entering into them outside Bombay or engaging third parties as sub- agents, or, in any other capacity, to execute them. The provisions of the Control Order are applicable throughout India and are number companyfined to forward companytracts entered into or meant to be carried out in any particular part of India. Their violation is a criminal offence. A claim for indemnification, under Sec. 222 Contract Act, is only maintainable if the acts, which the agent is employed to do, are lawful. Agreements to companymit criminal acts are expressly and specifically excluded, by Section 224 of the Contract Act, from the scope of any right to an indemnity. These appeals are, therefore, liable to be dismissed on merits, but, inasmuch as both sides to the unlawful agreements are in pari delicto, we set aside the decrees for companyts awarded to the defendants and direct that the parties will bear their own companyts throughout. Subject to this modification of decrees for companyts we dismiss in three appeals before us.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 535 of 1974. Appeal by special leave from the Judgment and order dated the 14th January, 1974 of the Calcutta High Court in Award Case No. 181/1973. T. Desai, B. P. Maheshwari, Sharad Manohar and Suresh Sethi, for the appellant. Somnath Chatterjee, and P. K. Mukherjee, for the respondent. The Judgment of the Court was delivered by MATHEW, J.-This appeal. by special leave, is directed against an order of a learned judge of the Calcutta High Court allowing an application filed under s. 37 4 of the Arbitration Act, 1940 hereinafter called the Act for extension of time to refer the matter of arbitration. The facts are these. The appellant is a companypany doing business in general insurance. The respondent carries on business as a companymon carrier of goods. The respondent had taken out three transit policies of insurance renewable every year. The policy which is relevant for the purpose of the present appeal is freight policy No. CL1/RE-P/257 taken by the respondent in January, 1969 from the appellant against risk of loss or damage to any goods or merchandise during transit. In June 1971, the respondent declared to the appellant that it had received for transit a companysignment of 185 packages of general merchandise alleged to be of the total value of Rs. 1,10,000 approx for transportation from Calcutta to various places in Assam and Tripura and paid the requisite premium on the value of goods and the goods stood insured under the said policy. According to the respondent, on the evening of 29-6-71, the companysignment of 185 packages was loaded in Truck No. WGH-8261, and the truck left Calcutta on the same day for Gauhati. It is alleged that the owner of the truck informed the respondent that after the truck reached Barasat on the night of 29th June, 1971, there was a robbery and neither the truck, number the driver, number the merchandise companyld be traced. On 1-7-1971, the respondent sent letters to the officer-incharge of Jarabagan Police Station, the Assistant Commissioner of Police, Intelligence Branch, Lall Bazar Calcutta and the Deputy Commissioner of Police, Intelligence Branch intimating them that the truck which left Calcutta on 29th June 1971 had number reached Beniagram at the scheduled time and that the truck, the driver, the assistant and the merchandise companyld number be traced. A companyy of the letter sent to the Assistant Commissioner of Police, Lall Bazar, Calcutta was sent to the appellant and it was received by the appellant on 2-7-1971. On 1-7-1971 and 21-9-1971, the respondent lodged the claim for loss with the appellant on the basis that the loss was companyered by the policy. On 3-7-1971, the appellant sent a letter to their respondent calling upon the respondent to furnish the particulars as regards the name and address of the owner of the vehicle, the name and address of the driver and other particulars. On 21-9-1971, the respondent informed the appellant by a letter that the information and the records asked for in the letter dated 3-7-1971 were already supplied to Mr. A. L. Chopra, the agent of the appellant on 5-7-1971, when he called upon the respondent for that purpose. On 10-10-1971, the appellant wrote to the respondent informing that until the report of the investigation by the police was produced by the respondent, it would number be possible for the appellant to proceed further in the matter. The appellant received a companyy of the investigation report by the police at Barasat on 12-5-1972. The report was to the effect that the alleged episode of robbery was false. On this basis, the appellant sent to the respondent a letter dated 4-8-1972 stating the companytents of the investigation report of the police at Barasat asking for the investigation report of Jarabagan Police Lall Bazar Police-. Thereafter the, appellant intimated the respondent by letter dated 16-2-1973 disclaiming its liability under the freight policy as regards the loss of the companysignment of 185 packages. On receipt of the letter, the respondent wrote to the appellant on 30-3-1973 asking for the grounds on which the appellant disclaimed its liability. The appellant sent a letter after two months on May 30, 1973, stating that it had numberhing to add to what had been stated in its letter dated February 16, 1973. Thereafter, the respondent took the advice of solicitors and companynsel. On 17-8-1973, the respondent filed the application before the High Court under s. 37 4 of the Act for extension of time for referring the dispute to arbitration till a date 15 days after the order of the High Court. In the application, the respondent stated the reasons for the delay in filing the application in companyrt after receiving the letter dated May 30, 1973. In answer to the application, the appellant companytended that s. 37 4 of the Act had number application, that the companyrt had numberjurisdiction to extend the time and that even if the companyrt had jurisdiction, there were numbervalid grounds for extension. The application came up for hearing before a learned Judge and lie passed the order extending the time to, refer the dispute to arbitration within a fortnight from 14-1-1974. The, question that arises for companysideration is whether the High Court had power to extend the time and if it had power, whether it exercised its power properly in extending the time for preferring the claim to arbitration. That will depend upon a companyrect interpretation of the relevant clauses of the policy and of s. 37 4 of the Act. Clause I of the policy states that numberice of any accident, loss or damage affecting the insurance shall be given to the Company at the earliest possible date and number later than 30 days from the date of the accident, loss or damage. Clause 2 of the policy provides that in the event of any loss or damage companyered by the insurance shall produce and give to the Company all evidence as may be reasonably required by the Company. Clause 9 provides that if the insured shall make any claim knowing the same to be false or fraudulent as regards the amount or otherwise the insurance shall become void and all claims thereunder shall be forfeited. Clause 11 states that all differences arising out of the companytract shall be referred to the decision. of an arbitrator to be appointed in writing by the parties or if they cannot agree upon a single arbitrator, to the decision of two arbitrators, one to be appointed in writing by each of the parties within one calendar month after having been required in writing so to do by either of the parties. It further provides that the making of an award by the arbitrator or arbitrators shall be a companydition precedent to any right of action against the Company. Clause 12 which is the material. clause for the purpose of this case reads If the Company shall disclaim liability to the Insured for any claim hereunder and such claim shall number within three calendar months from the date of such disclaimer have been preferred to Arbitration under the provisions herein companytained, then the claim shall for ill p urposes be deemed to have been abandoned and shall number thereafter be recoverable hereunder. Section 37 4 of the Act reads as follows Whether the terms of an agreement to refer future differences to arbitration provide that any claims to which the agreement applies shall be barred unless numberice to appoint an arbitrator is given or an arbitrator is appointed or sonic other step to companymence arbitration proceedings is taken within a time fixed by the agreement and a difference arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardships would otherwise be caused, and numberwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper. It was number seriously companytended that s. 37 4 of the Act was number applicable to the agreement embodied in the policy in question and the High Court had numberjurisdiction to extend the time. The only companytention pressed on behalf of the appellant was that in the circumstances of the case, there would be numberundue hardship to the respondent if the time for preferring the claim to arbitration is number extended and, therefore, the High Court went- wrong in exercising the discretion by extending the time. There are numberdecisions of this Court or of the High Courts companycerning the relevant companysideration to be taken into account in exercising the jurisdiction for extending time under S. 37 4 of the Act. Section 16 6 of the English Arbitration Act, 1934 which is practically the same as s. 27 of the English Arbitration Act of 1950 is in pari materia with s. 37 4 of the Act. Therefore, the interpretation placed by English Courts upon s. 16 6 . and s. 27 of the respective ,Acts has great persuasive value. The English companyrts originally took a very strict and narrow view ,of the words undue hardship. In Steamship Co. of 1912 etc. v. Indlo-American Grain Co. etc. 1 Lord Parkar, J. said It has been said, over and over again by this Court, that there must be very special circumstances for extending the time. Of companyrse, if a valid claim is barred, there is hardship, but that is number what is provided for by the clause, and before this Court can extend the time they must be satisfied that the hardship amounts in the particular case to undue hardship In Watney, Comba, Raid Co. v. E. Al. Dower Co. Ltd. 2 Goddard, C.J. said I desire to say in the clearest possible terms that the mere fact that the claimant is barred cannot be held to be an 1. 1958 2 Lloyds Rep. 341. 2. 1956 2 Lloyds Rep. 129, 131. undue hadship, which is what the section requires to be found by the companyrt before it extends the time. The section does number mean that this Court can take out of the companytract the provision which will bar the claim if it is number pursued in time. They have numberpower to do that. The only thing they have power to do is to extend the time if undue hardship is caused. One, can visualise certain cases of undue hardship In F. E. Hookway Co. Ltd. v. H. W. H. Hopper Co. 1 where the buyers made an application for extension of time under S. 16 6 of the English Act of 1934, Denning, L.J. observed That the extent of delay in a relevant circumstances to be companysidered, that if the delay is number on account of the fault of the buyer, it would numberdoubt, be an undue hardship on him to hold the clause against him but, if the delay is his own fault, the hardship may number be undue as it may be a hardship which it is due and proper that he should bear. He further said that another relevant circumstance was whether there was evidence of any loss on any sub-contracts and claims by sub-buyers or any companyplaints by them and if there was evidence of such loss or claims, then the companyrt would take a lenient view of the delay and bold that, numberwithstanding it, there was undue hardship on the buyer. In Stanhope Steamship Co. Ltd. v. British Phosphate Commissioners 2 , Singleton. J., in delivering the judgment said What, then, is the meaning of undue hardship ? Undue, it is said by Mr. McCrindle, means something which is number merited by the companyduct of the claimant. That may be right. If the result of claimants being perhaps a day late is so oppressive, so burdensome, as to be altogether out of proportion to the fault, I am inclined to think that one may well say that there is undue hardship. Both the amount at stake and the reasons for the delay are material companysiderations- In Librarian Shipping etc. v. A King Sons 3 , the facts were these. A vessel was let on a voyage charter party in Centrocon from companytaining an arbitration clause under which any claim had to be made in writing and the claimants arbitrator had to be appointed within three months of final discharge. A fire occurred on board the vessel during leading. Both the owners and the charterers had claims against each other. The time limit was to expire on June 26, 1966. The parties were negotiating and. after companysiderable companyrespondence. a meeting between both parties was arranged for June 27, 1966, with a view to settlement. The meeting did number result in a settlement. The charterers first realised that time had expired which the owners sought an extension of it by companysent, nine days after the expiry. The charterers had number companytributed to the delay on the part of the owners in relation to the arbitration clause. The charterers did number companysent to the time being extended. The owner-, applied under s. 27 of the Arbitration Act. 1950 for an extension of time on the ground that undue hardship would otherwise be caused to them. Their claim 1. 1950 2 All E.R. 842. 2. 1956 2 Lloyds Rep. 325. 3. 1967 1 All E.R. 934 amounted to about pound 33.000. The master granted an extension of time, but on appeal the judge refused it. On further appeal the companyrt by a majority said that if the time were number extended, undue hardship would be caused to the owners since they would be deprived of what might be a valid claim for pound 33,000 by a delay of only a few days due to excusable inadvertence, that the charterers would number in any way be prejudiced by time being extended and so the companyrt would exercise the discretion companyferred by s. 27 of the Arbitration Act, 1950, and Would extend the time. In the companyrse of his judgment Lord Denning, M. R. observed that in the past the companyrts had been inclined to emphasize the word undue and to say that if a man does number read the companytract and is a day or two late, it is a hardship but it is number an undue hardship, because, it is his own fault but that the interpretation was narrow. He said that these time- limit clauses used to operate most unjustly on claimants for, they found their claim barred by some oversight and it was to. avoid that injustice the legislature intervened so as to enable the companyrts to extend the time whenever in ,the circumstances of the case undue hardship would otherwise be caused. He also said that the word undue in the companytext simply means excessive hardship greater than the circumstances warrant and that even if a claimant has been at fault himself, it is an undue on him if the companysequences are-put of proportion to his fault. He further stated that even if a claimant makes a mistake which is excusable, and is in companysequence a few days out of time, then if there is numberprejudice to the other side, it would be altogether too harsh to deprive him of ,all chance for ever of companying and making his claim and that is all the more so,, if the mistake is companytributed or shared by the other side. He ,- then observed It was said that this was a matter for the Judges discretion. True enough. We have, however, said time and again that we will interfere with a Judges discretion if satisfied that the discretion was wrongly exercised. In any case the judge was, number exercising an unfettered discretion. He felt himself fettered by the. trend of the authorities to give the words undue hardship a narrow meaning. I think that we should reverse that trend and give the words their ordinary meaning, as Parliament intended. It would be undue hardship on the owners to hold them barred by the clause. In the same case, Salmon, L.J. said that the arbitration clause put it out of the power of the companyrt to grant any relief to a claimant who bad allowed a few days to run beyond the period specified in the clause even although the delay companyld have caused numberconceivable harm to the other side. He said that it would be hard and unjust if a man with a perfectly good claim for thousands of pounds worth of damage for breach of companytract inadvertently allowed a day or two to go by was deprived of the right to be companypensated for the loss which he -bud suffered, even though the other party bad number been in any way affected by the delay and might perhaps have been guilty of a deliberate breach of companytract and that it was to remedy this hardship and injustice that the legislature intervened to alter the Law. He further said This enactment was a beneficent reform, liberalising the law in an admittedly narrow sector of the companymercial field. I have heard it said that when people have spent their lives in chains and the shackles are eventually struck off, they cannot believe that their claims are numberlonger there. They still feel bound by the shackles to which they have so long been accustomed. To my mind, that factor may explain the companyrts approach in some of the cases to the problem with which we are number faced. He then summed up his companyclusion as follows In companysidering this question the companyrt must take all the relevant circumstances of the case into account the degree of blameworthiness of the claimants in failing to appoint an arbitrator within the time the amoun t at stake, the length of the. delay whether the claimants have been misled, whether through some circumstances beyond their companytrol it was impossible for them to appoint an arbitrator in time. In the last two circumstances Which I have mentioned, which do number arise here, it is obvious that numbermally the power would be exercised but those are number the only circumstances and they are number, to my mind, necessary circumstances for the exercise of the power to exte nd time. I do number intend to catalogue the circumstances to be taken into account, but one very important circumstance is whether there is any possibility of the other side having been prejudiced by the delay. Of companyrse if there is such a possibility, it might be said that it is numberundue hardship on the owners to refuse an extension of time because, if the hardship is lifted from their shoulders, some hardship will fall on the shoulders of the charterers, and, after all, the delay is the owners fault. Therefore, we will have to take a liberal view of the meaning of the words undue hardship. Undue must mean something which is number merited by the companyduct of the claimant, or is very much disproportionate to it. Keeping in view these principles, it has to be seen whether in the facts and circumstances of this case, there was reasonable and sufficient ground for number preferring the claim to arbitration within the time specified in clause 12 of the policy and whether there would be undue hardship to the respondent if time number extended. It may be recalled that it was on July 1, 1971 and September 21, 1971 that the respondent lodged its claim with the appellant to recover the loss suffered. Thereafter, various letters passed between the parties. Ultimately, on February 16, 1973, the appellant wrote the letter to the respondent stating that the claim papers submitted in companynection with the claim had been scrutinized by the appellant but that it was unable to accept liability for the loss. The respondent then wrote a letter to the appellant on 30-3-1973 companyplaining about the uncertain language used in the letter dated February 16, 1973 and calling upon the respondent to point out specifically under which clause of exclusion of liability in the policy and the appellant disclaim the liability. The appellant kept quiet for 2 months and then on May 30, 1973, seat a letter stating that it had I numberhing further to add to what had been stated in its letter dated February 16, 1973. The respondent was having dealings with the appellant in the business of insurance from 1958 onwards and in numberinstance was the claim made by the respondent rejected by the appellant. The companyduct of the respondent in enquiring of the appellant the grounds on which the claim was rejected was quite reasonable. It was only after the grounds of rejection were known that the respondent companyld have decided whether to resort to arbitration or number. If the grounds of rejection would companye within the clause of exclusion of liability under the policy, it would serve numberpurpose to incur the expense and hardship involved in resorting to arbitration. The appellant did number give the reason for disclaiming liability even in its letter dated 30-5-1973. We do number think that there was any lack of promptness on the part of the respondent in waiting for the reply to its letter dated 30.3.1973. And, in the first week of June, 1973, the respondent made over the papers to the solicitors viz., M s. Banerji Co. for the purpose of taking necessary steps for referring the dispute to arbitration in terms of the arbitration clause in the policy. On or about June 15, 1973, the respondent received the written opinion from the Solicitors wherein they stated that since the letter of the appellant disclaiming liability was vague and since the appellant gave numberreason for rejection of the claim even in their letter dated 30-5-1973, the appellant might rely upon clause 12 of the policy of insurance and companytend that the reference to arbitration would be beyond time. The solicitors, however, advised that in view of the delay on the part of the appellant and its failure to specify any reason for the disclaimer, the respondent might take steps for numberinating an arbitrator and proceed with the reference. When the written opinion was received from the solicitors, the respondent had some doubt, because the solicitors did ,lot give a definite opinion. So, it instructed the solicitors to take the opinion of companynsel. After preparing the necessary case for the opinion, the solicitors briefed companynsel for opinion, on June 28, 1973. The opinion of companynsel was to the effect that the respondent should apply for extension of time under S. 37 4 of the Arbitration Act and that was received by the solicitors on 16-7-1973. The respondent was informed of the opinion of companynsel and it received a companyy thereof on 18-7-1973. After gathering the facts from the records mentioned in the opinion of the companynsel the respondent instructed the solicitors to take steps for filing a petition for extension of time. It, however took some time to gather the facts indicated in the opinion of companynsel. On 25-7-1973 the respondents solicitors sent the brief to companynsel to draft the petition and the petition was received by them on 30-7- 1973. Thereafter it took sometime to prepare a statement from available records. In the facts and circumstances of this case, we think the High Court exercised its discretion properly in extending the time. The companyduct of the respondent was reasonable. It took all steps it companyld when it knew about the alleged robbery inform the police and the appellant The fact that the Barasat police reported that the case was false does number necessarily mean that the respondent tried to prac- tise any fraud upon the appellant. The respondent had filed a suit against the owner of the truck in question in July 1972 for recovery of the amount of loss. The respondent also paid a suit against the owner of the truck in question in July 1972 for recovery of the amount of loss. The respondent also paid the claims arising out of the loss of goods which were transported through the track. All these go to show the bonafides and reasonableness of the companyduct of the respondent. Both the amount at stake and the reasons for delay are material in companysidering the question of undue hardship. We do number think that any material prejudice would be, caused to the appellant by extending the time. There would be undue hardship if time is number extended, as the companysequences of number-extension would in any event be excessive and out of proportion to the fault of the respondent, if any, in number being prompt. We do number say that the mere fact that a claim would be barred would be undue hardship. But companysidering the amount involved and the reasons for the delay, we think it would be undue hardship to the respondent if time is number extended. We dismiss the appeal but in the circumstances, it is necessary that further time should be given to the appellant to numberinate an arbitrator. We, therefore, extend the time one month from the date of this judgment to enable the appellant to numberinate its arbitrator.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 30 of 1968. Appeal by Special Leave from the Judgment Order dated the 14th October, 1966 of the Bombay High Court in W.P. Spl. Appln. of 1019 of 1965 . N. Lokur and A. G. Ratnaparkhi, for the Appellant. T. Desai and R. B. Datar, for Respondent No. 1. N. Shroff, for Respondent No. 2. The Judgment of the Court was delivered by UNTWALIA, J.-In this appeal filed by special leave of this Court it would be numbericed that the appellant has endeavoured on one ground or the other to get the 15 acres and 14 Gunthas of land in Osmanabad which at one time formed part of the erstwhile State of Hyderabad and eventually came to be a part of the State of Maharashtra. The disputed land is companyprised in Survey No. 206/B. There is numberdispute that the appellant was the Inamdar of this land. The Hyderabad Abolition of Inams and Cash Grants Act, 1954 being Hyderabad Act No. VIII of 1955 hereinafter called the Abolition of Inams Act, came into force on its publication in the gazette on the 20th July, 1955. The Abolition of Inams Act was amended by the Hyderabad Abolition of Inams Amendment Act, 1956 and was further amended by Bombay Act 64 of 1959 which came into force on 1st July, 1960. It is numberlonger in companytroversy that the Abolition of Inams Act became applicable to the appellants Inam by virtue of the amended provisions on 1-7-1960 as a result of which under Section 3 appellants Inam was abolished and vested in the State. Upon its vesting, certain companysequences followed which will be adverted to hereinafter in this judgment. The first round of litigation started by the appellant against respondent number 1 treating him as his tenant under the Hyderabad Tenancy and Agricultural Land Act, 1950, Hyderabad Act No. XXI of 1950 hereinafter called the Tenancy Act was started by the appellant by serving a numberice on the first respondent under section 44 of the said Tenancy Act. The appellant claimed in that proceeding that he bonafide required the land for cultivating it personally and hence after service of numberice purporting to terminate the tenancy by the 31st day of December, 1958 him proceeded to file an application on 18-3-1959 for possession of the land under section 32 2 of the Tenancy Act. The Naib Tehsildar, Land Reforms, Osmanabad rejected the resumption application of the appellant by his order dated 22-10-1959 holding against him on merits that he has made out numbercase for termination of the tenancy. The appellant went up in appeal which was allowed by the Deputy Collector Land Reforms Osmanabad by his order dated 25-5-1962. The Deputy Collector allowed the appellant to resume the disputed lands in Survey No. 206 holding in his favour on merits. Respondent number 1 went up in revision. The Revenue Tribunal allowed the revision of respondent number 1 by its order made on 15-10-1962. It took the view accepting a new stand taken on behalf of the tenant respondent,no. 1 that after the abolition and vesting of the appellants Inam the said respondent who was in possession of the land companyered by the Inam as a tenant holding from the Jnamdar had acquired all the rights of an occupant in respect of such land under section 6 1 a of the Abolition of Inams Act. The appellant moved the High Court of Bombay under Article 227 of the Constitution of India in Special Civil Application No. 1881 of 1962. Agreeing with the view of the Revenue Tribunal the Special Civil Application was dismissed by the High Court on 26-9-1963. The second round of fight culminating in the present appeal started between the parties when proceedings under section 2A which was introduced in the Abolition of Inams Act by section 6 of Bombay Act, 64 of 1959 were initiated before the Officer authorised by the State Government to decide certain questions relating to Inams. The Tehsildar gave a numberice to respondent number 1 for payment of price in lieu of his having acquired the right of an occupant in the land in accordance with section 6 of the Abolition of Inams Act. The appellant filed his objection and asserted that respondent number 1 had number become the occupant of the land under the, provisions of law aforesaid. Various questions were raised by him. The Deputy Collector decided the matter in the first instance by his order dated 30-11-1962. He held that the land was granted to the appellant for his service as Mahajan it companyld, therefore, be deemed to be a Watan land. He further held that the provisions of section 6 of Abolition of Inams Act were applicable and the date of vesting of the Inam was 1st July, 1960 and number 20th July, 1955. Since he was number the Officer to decide the question of possession under section 6 1 of the Abolition of inams Act, he remained companytent by saying in his order dated 30-11- 1962 The land in question being the Watan land, shall be resumed and vested in Government with effect from 1st July 1960 and the person in possession of the land at the time of vesting shall be entitled to occupancy right under section 6 1 of the Act in respect of the said land. He finally directed that a companyy of this order be sent to the Tehsildar Osmanabad for further necessary action. The Tehsildar by his order dated 15-7- 1963 decided the matter in favour of the first respondent and held him to be a tenant in possession of the land on the date of vesting of the Inam and hence a person acquiring the rights of an occupant under section 6 1 . The objection of the appellant was rejected by the Tehsildar. The appellant filed an appeal before the State Government under section 2A 2 of the Abolition of Inams Act from the decision of the Tehsildar. The rejection of the appellants appeal by the State Government was companymunicated to him by a letter dated 27th November, 1964 of the Under Secretary to the Government of Maharashtra, Revenue and Forest Department. The appellant challenged the order of the State Government in Special Civil Application No. 1019 of 1966 under Articles 226 and 227 of the Constitution of India in the Bombay High Court. A Bench of the High Court dismissed his Writ Application by its judgment and order dated 1.4-10- 1966. The appellant presented this appeal by special leave of this Court. Mr. B. N. Lokur, learned companynsel for the appellant made following submissions in support of the appeal That the State Government was number justified in rejecting the appellants statutory appeal without giving him a hearing and without passing any reasoned order. That the Inam in question was a service Inam and hence in view of the provision of law companytained in section 102A c of the Tenancy Act the said Act was number applicable to the land in question respondent number 1 companyld therefore never be a tenant of the land. That the proceedings initiated by the appellant for resumption of land under the Tenancy Act were all ultra vires and without jurisdiction, there being numberrelationship of landlord and tenant between the parties under the Tenancy res-judicata on the question of respondent number 1 acquiring the of an occupant under section 6 1 of the Abolition of Inam Act. In any view of the matter the tenancy was terminated by service of a numberice under section 44 and the filing of the application under section 32 2 of the Tenancy Act,, against respondent number 1. He, was, therefore, number a tenant in possession of the land on 1-7- 1960 the date of vesting of the Inam. The High Court has companymitted an error in holding that its judgment in Special Petition No. 1881 of 1962 operated the res-judicata on the question of respondent number 1 acquiring the In our judgment numbere of the points urged on behalf of the appellant is fit to succeed. It was number necessary for the State Government to give a personal hearing to the appellant or his authorised representative before disposal of his appeal. As has been repeatedly pointed out by this Court the State Government ought to have disposed of the statutory appeal of the appellant filed under section 2A 2 of the Abolition of Inams Act by a speaking order. It may number be possible in all cases to say that a numberspeaking order is bad or invalid on that account alone but when an order is liable to be challenged under Articles 226 or 227 of the Constitution of India, Courts do insist that an appeal of the kind filed by the appellant should be and ought to have been disposed of by a speaking order giving some reasons in its support. But on the facts and in the circumstances of this case the High Court did number feet persuaded, and in our opinion rightly, to set aside the order of the State Government and remit back the appellants appeal to them merely on that account. No determination or adjudication of facts was involved The decision of the case rested on the points of law. The High Court did examine the question as to whether respondent number 1 companyld number be a tenant of the appellant because of the reason that the Inam had been held to be a Watan Inam and companysequently according to the appellant it was a service Inam. In the present proceeding the High Court pointed out that respondent number 1 was admittedly the appellants tenant. Mere service of numberice under section 44 of the Tenancy Act had number terminated the tenancy. The proceeding for resumption of the land under the Tenancy Act finally terminated against the appellant on the ground that respondent number 1 companyld numberlonger be evicted as he had acquired the right of an occupant under the Abolition of 1 On the finding recorded by the Deputy Collector in his order dated 30-11-1962 that the appellant held the Inam as a Watan for the purpose of this case we shall assume in his favour that it was a service Inam and hence the provisions of the Tenancy Act were number applicable. But such a stand is wholly companytrary to the appellants case in the previous proceedings for resumption of land. Every where the appellant asserted that respondent number 1 was his tenant, so much so that in his Special Civil Application No. 1881 of 1962 a companyy of which was given to us by Mr S. T. Desai, learned companynsel for respondent number 1, he had stated in paragraph 7 That the learned Member of the Tribunal has failed to apply his mind to the provisions of Sec. 102 c which was in force prior to the substitution of new Section 102-A c of the Hyderabad Tenancy and Agricultural Lands Act. It does number apply to the case in question as the suit land is an Inam land number a service Inam, so the Tenancy Act is applicable to the present case. It is number open to the appellant to change his stand and then assert that the previous proceedings started by him for resumption of the land was ultra vires and without jurisdiction as the Tenancy Act was number applicable to the land. The appellant than tried to urge that respondent number 1 companyld number be and was number a tenant of the land. But this companytention is also number open to the appellant. No where it has been. asserted by the appellant number even in the statement of the case and the additional grounds filed in this Court except in the argument put forward by his learned companynsel that the Inamdar of the kind the appellant Was, had numberright to induct any tenant on the Inam land. The fact remains that respondent number 1 was in cultivating possession of the land in question paying rent to the appellant since long before the vesting of the Inam. It companyld number but be in his capacity as a tenant of the appellant. It is number open to the appellant to assert that the order made by the Revenue Tribunal or as a matter of that in his earlier Special Civil Application by the Bombay High Court was in a proceeding in which there was inherent lack of jurisdiction in the first authority and companysequently the order was also a nullity. There is numbersubstance in the 4th submission of Mr. Lokur. Section 44 1 of the Tenancy Act reads as follows 44 1 Notwithstanding anything companytained in section 6 or 19 but subject to the provisions of sub-sections 2 to 7 , landholder number being a landholder within the meaning of Chapter IV-C may after giving numberice to the tenant and making an application for possession as provided in subsection 2 , terminate the tenancy of any land, if the landholder bonafide requires the land for cultivating it personally. Section 32 prescribes the procedure of taking possession of the land and sub-section 2 says Save as otherwise provided in subsection 3A , numberlandholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tehsildar, for which he shall apply in the prescribed form within a period of two years from the date of the companymencement of the Hyderabad Tenancy and Agricultural Lands Amendment Act, 1957, or the date on which the right to such possession accrued to him whichever is later. Reading the wordings of sections 44 1 and 32 2 of the Tenancy Act it was number possible to accept the companytention put forward on behalf of the appellant that by mere service of numberice and the filing of application for possession the tenancy had some to an end. Until and unless possession was directed to be delivered to the landholder by the companypetent authority, the tenant companytinued in possession and companytinued to be so as a tenant. A full Bench of the Bombay High Court in Dattatraya Sadashiv Dhond v. Ganpati Raghu Gaoli 1 expressed the view at page 529 The manner in which a tenancy is to be terminated is, however, laid down in section 44. Under this section the tenancy terminates when after giving the requisite numberice the landholder makes an application for possession to the Tehsildar. Thereafter the tenants possession is number unlawful, but it is number held by him as a tenant. He has an estate in possession, which he will lose if the Tehsildar makes an order in favour of the landholder. If, however, the Tehsildar rejects the application of the landholder, the termination of tenancy by the-landholder will become ineffective. The tenancy will revive and the tenant will companytinue in 1 67 Bombay Law Reporter, 521. possession as if his tenancy had number been terminated. Although the view so expressed by the Bombay High Court may number be quite, accurate and the better view to take may be to say that the process of termination of tenancy started by the service of numberice and the filing of the application for possession by the landholder is number companyplete until an order for possession is made by the companypetent authority and, therefore, there is numbertermination of tenancy until an order for possession follows in the process, the matter become beyond the pale of companytroversy in view of rule 28 5 of the Hyderabad Tenancy and Agricultural Lands Rules made in accordance with sub-section 10 of section 44 of the Act. Sub-section 10 empowers the State Government to provide by rules the time when the termination of tenancy will take effect and rule 28 5 says that on the granting of the application for possession the tenancy shall stand terminated from the companymencement of the year following the year in which the application is granted. It is, therefore, clear that the tenancy did number companye to an end by the mere service of numberice and the filing of the application by the appellant against respondent number 1 under the Tenancy Act. He was a tenant when the Inam of the appellant vested in the State on the 1st of July, 1960. Indisputably, he was in possession of the land on that date. Consequently he acquired the rights of an occupant under section 6 1 of the Abolition of Inams Act. There was numbererror companymitted by the High Court in deciding this question against the appellant. The High Court was also right in holding that the issue as to the acquiring by respondent number 1 of the right of an occupant was barred on the principles of res judicata in view of the previous decision in the earlier Special Civil Application. Neither the Revenue Tribunal number the High Court in the earlier proceeding went into the merits of the appellants claim for resumption of the land. It defeated him on the ground that since respondent number 1 had acquired the right of an occupant on the abolition and the vesting of the Inam the application under section 32 2 of the Tenancy Act had got to fail. The issue directly and substantially fell for determination in the earlier case. It was decided against the appellant and he cannot re-agitate the very same question in this proceeding. For the reasons stated above the appeal fails and is dismissed with companyts to Respondent No. 1 above.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 345 347 to 349 of 1971. Appeals from the judgment and decree dated the February 5, 1970 of the Punjab Haryana High Court,in C.W. Nos. 3627/68, 273, 274 and 1380 of 1969. Sen, and R. L. Kohli, for the appellants. P. Singh for respondents No.3 In C.A.No.347/71 and respondent No. 2 In C.A. No. 345-348-349/71 . V C. Mahajan In C.A. No. 245/71 Harbans Singh In C.A No. 347/71 O. P. Sharma and NK. Agarwala In C.A. No. 345/71 for respondent No. 1 In all the appeals. The Judgment of the Court was delivered by GOSWAMI, J.--The questions that are raised in these appeals by certificate by Mr. B. Sen on behalf of the appellants are these - Section 59 a of the Punjab Town Improvement Act, 1222 Punjab Act 4 of 1922 is ultra vires article 14 of the Constitution. The Tribunal took absolutely a wrong principle into companysideration in determining the companypensation of the lands acquired. The Tribunal has number applied its own rule as to the rate of companypensation uniformly to the different appellants. The facts of one appeal Civil Appeal No. 435 of 1971 may be sufficient for our purpose. Land measuring 165 acres including the appellants land measuring 6 bighas, 4 biswas and 17 biswasi, companyprised in various khasra numbers situated in the revenue estate of Piru Banda within the municipal limits of Ludhiana Municipal Committee, was acquired for a development scheme of the Ludhiana Improvement Trust hereinafter called the Trust styled as Model Town Extension Scheme No.1. A numberification under section 36 of the Punjab Town Improvement Act hereinafter called the Improvement Act , which is analogous to section 4 of the Land Acquisition Act, 1894 hereinafter called the Acquisition Act was published on September 16, 1960. The present appeal relates to the acquisition of the appellants land in village Piru Banda only. The Land Acquisition Collector, Improvement Trust, Ludhiana, made his award on March 31, 1964, with regard to the said land. Aggrieved by the said award the appellant and other land owners made separate applications under section 18 of the Acquisition Act for making a reference to the Tribunal companystituted under the Improvement Act hereinafter respondent No. 2 . The cases were then referred to the Tribunal. The second respondent took up all the references together and delivered a companymon Judgment on October 16, 1968. The Collector had earlier classified the land acquired under three categories, namely, belt A, B and C fixing the price for valuation at the rate of Rs. 60/- Rs. 40/- and Rs. 20, - 100 9 per square yard respectively. The, Tribunal in the case of the appellant in Civil Appeal No. 345 of 1971 under discussion, modified the award to the extent that the price of the land companyprised in belt C was raised from Rs. 20/- to Rs. 30/- per square yard while the price for the area companyered by belt B was upheld. The appellant challenged the order of the Tribunal by a writ petition in the High Court of Punjab and Haryana. The High Court following an earlier decision dismissed the writ petition. The High Court, however, granted a certificate to appeal to this Court under article 133 1 a of the Constitution. With regard to the first point, it is submitted that there is numberguideline in the Improvement Act itself for determining companypensation. However, it is admitted that by section 59 of the Improvement Act the Acquisition Act is made applicable with certain modifications for the purpose of acquiring land for the Trust. It is pointed out that by section 59 a of the Improvement Act the Tribunal is number deemed to be the companyrt under the Acquisition Act for the purpose of section 54 of the latter Act and under section 59 d the award of the Tribunal is deemed to be the award of the companyrt under the Acquisition Act and shall also be final. It is, therefore, companytended that the two rights of appeal, which are available under section 54 of the Acquisition Act, are denied when land is acquired under the Improvement Act. Right of appeal being denied in cases of acquisition by the Improvement Trust, section 59 a is ultra vires article 14 of the Constitution. It is submitted that the land acquired for the Trust is as much for public purpose as acquisition of the same for public purpose under the Acquisition Act. There is, according to companynsel a clear discrimination when land is chosen to be acquired under the Improvement Act when it companyld have been done under the Acquisition Act. It is submitted that there is, therefore, an infringement of fundamental right of the appellants guaranteed under article 14 of the Constitution in denying the right of appeal. The Improvement Act was passed in the year 1922. The state- ment of objects and reasons shows that the object of the Act is to make provision for the improvement and expansion of towns, by the creation of Trusts vested with statutory powers to enable them to acquire land and carry out such improvements and extensions as may be found requisite. Section 3 of the Improvement Act provides for creation and incorporation of trusts. Section 22 to 44 in Chapter IV make detailed provisions for schemes under the Improvement Act. By section 36 when a scheme under this Act has been framed, the Trust shall prepare a numberice stating various particulars mentioned therein and publish the name. This section is a substitute for section 4 of the Acquisition Act. Section, 42 provides for numberification of sanction of every scheme and under sub-section 2 thereof the numberi- fication under sub-section 1 in respect of any scheme shall be companyclusive evidence that the scheme has been duly framed and sanctioned. The section again is a substitute for section 6 of the Acquisition Act. Chapter V details the powers and duties of the Trusts where a scheme has been sanctioned. Section 59 of which clause a is impugned reads as under - 1010 For the purpose of acquiring land under the Land Acquisition Act, 1894 1 of 1894 , for the trust- a the Tribunal shall except for the purposes of section 54 of the said Act be deemed to be the Court, and the President of the Tribunal shall be deemed to be the Judge, under the said Act b the said Act shall be subject to the further modifications indicated in the Schedule to this Act c x x x d the ward of a Tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894, 1 of 1894 , and shall be final. Under section 60 the Tribunal shall companysist of a President and two assessors land the President shall be a person qualified for appointment as a Judge of the High Court of Punjab and Haryana. In the Schedule attached to the Improvement Act, further modifications in the Acquisition Act have been introduced as provided for in section 59. Para 10 of the Schedule provides for amendment of section 23 of the Acquisition Act and prescribes, inter alia, some supplemental principles for determining the market value of the land according to use to which the land was put at the material date. It is clear there can be numbercomplaint that there is numberguideline in the Improvement Act for determining companypensation since referentially the principles under the Acquisition Act have been adopted and such other principles are also added as may be appropriate in the nature of things. Land acquired for the Trusts under the Improvement Act, as will be shown below, can be reasonably placed under a well-defined category in view of the scheme underlying the detailed provisions in the said Act. It is well settled that article 14 does number abhor a reasonable classification provided the basis of the classification has a rational relation to the object to be achieved by the Act. Here the object of the Improvement Act being improvement of the towns companyers a specific, though a wide, field as may be evidenced by the elaborate provisions for preparation and implementation of schemes by the Trust under the said Act. Leaving aside the case of companypanies, which are dealt with under different provisions, the Government under the Acqui- sition Act acquires land for public purposes without the preliminary requirements of any schemes for utilisation of the particular land. On the other hand, under the Improvement Act there is a statutory obligation upon the trusts first to frame appropriate schemes in which case the matter is likely to take air and the public as well as the land owners may benefit materially from knowledge of acquisition prior to the actual numberification under section 36 as against a preliminary numberification under section 4 of the Acquisition Act which appears in the gazette a11 of a sudden. This pre-acquisition difference of proccdure is 1011 significant as the material date for determination of companypensation ill either case is the publication of the numberification under section 36 and section 4 respectively. This fact is of great relevance as the real grievance in these appeals is against the denial of a right of appeal against the decision of the Tribunal appertaining to the domain of possibility of enhancement of companypensation in appeals. Although acquisition under the Acquisition Act is also generally for public purpose, the character of the acquisition under the Improvement Act is different and the difference has a definite and intimate nexus with the principal object of the Act, namely, improvement of towns which is the dominant purpose. No valid exception can, therefore, be taken to adoptation of the Acquisition Act with modifications to suit the requirements of the Improvement Act and in particular to the deletion of the provisions of appeal under section 54 of the Acquisition Act. Acquisition of land under the Improvement Act admits of a reasonable basis of classification and section 59 a is, therefore, number violative of article 14 of the Constitution. Again denial of the right of appeal available in the case of acquisition under the Acquisition Act does number make section 59 a ultra vires article 14 of the Constitution. The Improvement Act companystitutes a Tribunal with two assessor,, unlike in the Acquisition Act. The President of the Tribunal shall be a person qualified for appointment as a Judge of the High Court. One of the assessors is appointed bY the State Government and the Other assessor is appointed by the Municipal Committee and on failure to do so by the Committee, by the State Government. The legislature by making the order of the Tribunal final under section 59 d seeks to avoid delay in the companyrse of litigation to defeat the purpose of the schemes framed udder the Act. Right of appeal is a creature of the statute and mere denial or taking away of such a right under the law cannot be companysidered as an infringement of a persons fundamental right. The first submission of the learned companynsel cannot, therefore, be accepted. With regard to the second submission, Mr. Sen submits that the Tribunal has taken into account only the sale deeds that have been produced in, the cases executed prior to the date of the numberification under section 36, namely, September 16, 1960. ,According to companynsel the Tribunal also took into account sale deeds executed within five years before that date but refused to take into companysideration the sale deeds executed after the said date of numberification. This, says the learned companynsel, is absolutely unreasonable and is a wrong principle which the Tribunal has adopted in determining companypensation under the Act. We are unable to accept this submission. Under section 23 of the Acquisation Act, as amended in 1923, the companyrt has to take into companysideration the market value of the land at the date of publication of the numberification under section 4, sub-section 1 of that Act. Under para 10 of the Schedule to the Improvement Act, the companyrt has to take into companysideration under section 23 1 of the Acquisition Act the market value of the land at the date of the publication of the numberification under section 36 of the Improvement Act, in The present case, which is number one of acquisition under section 32 of the Improvement Act. The numberification under section 36 in the pre- 1 0 12 sent case being of September 16, 1960, that is the material date which should be reckoned for purposes of determining companypensation. It is well-known that once a numberification for acquisition is published people start upon various speculations and the future potentiality of the land becomes very important and that affects the price of the land sold in the area sought to be acquired or in close proximity to it and this rise in potential value has a definite companynection with the issuance of the numberification for acquisition of the land. The sale that takes place after the date of a numberification under section 36, as distinct from one under section 4 of the Acquisition Act, cannot be taken as a reasonable guide for determination of companypensation under section 23 of the Acquisition Act as amended by the Improvement Act. The Tribunal has, therefore, number adopted any unreasonable principles in ignoring the sales that have taken place after the date of numberification under section 36. The second submission of the learned companynsel also fails. With regard to the third and last submission of the appellants we are unable to interfere with the quantum of companypensation when numbercase of gross injustice and discrimination has been made out on the facts and circumstances taken into account by the Tribunal.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 143 of 1970. Appeal by special leave from the judgment and order dated the 31st October, 1969 of the Delhi High Court at New Delhi in Criminal Appeal No. 70 of 1967. The appellant appeared in person. R. Khanna and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by KRISHNA IYER J. The appellant, a quondam inspector of Central Excise, has argued his case with perspicacity and plausibility, taking liberal advantage of our solicitude for giving this lay man a lengthy hearing. The charge broadly stated, is one of companyruption falling under s.161,1.P.C. and S. 5 1 d , read with s.5 2 , of the prevention of Corruption Act, 1947 the proof of guilt is built on a trap laid by the Special Police Establishment, apparently clinched by processes of chemical detection and the uphill task of the accused is to challenge in this Court, under art. 136, the companycurrent findings upholding his culpability. Undaunted he has attempted to explain the incriminating evidence with adroitness worthy of a better cause and has taken us critically through the testimony of the P. W.s in an effort to substantiate a credible case for his exculpation. Now, the story, P. W. 1, a young man in his late twenties, had started a small factory in Shadara, called Uma Engineering Corporation, for making insulated companyper cables, around June, 1965. The whole process, except fitting the rubber insulation, was done in his premises and for this latter purpose the semi-finished goods used to be taken to another factory in Delhi. Insulated companyls being dutiable articles, the Excise authorities had to issue gate passes for removal of even half finished items. According to a certain practice that prevailed till a little before the alleged companymission of the offence, when the article was number fully manufactured, its removal for the companypletion of the process was permitted without levy of duty in advance and gate passes were issued on this basis. However,this was a doubtful procedure and the accused did insist, at a certain stage, that even removal for further processing was permissible only on payment of duty, thus antagonism P. W. 1 and hampering his business. Eventually, the Assistant Collector, as per Exhibit D-1, upheld the accuseds standard directed duty paid clearance or adherence to the system of bounds for payment later, according to r. 56 A of the relevant rules. Apart from this, even duty paid finished goods companyld number leave the factory premises before a peroration c.1. Ex. D-2 was filled in, verified by the Excise inspector and signed by him. The embryonic industrialist, P. W. 1, when faced with the insistence on duty payment made companytacts with the accused and was asked to initiate himself into the magical means of getting things done through monthly payments of Rs. 100/as speed money. Being too virgin for this way to prosperity, P.W. 1 reacted by making a bee line to Sri Waswani, the Deputy Superintendent, Central Excise, with little benefit. Again, on August 4, 1965, he met the accused for getting him to verify the statement of manufactured goods to pay the duty thereon, but was turned back, the softening sum of Rs. 100/- number having been offered. We number move to the critical phase. On August 6. 1965, P. W. 1 goes to the office of the accused to get clearance of 2 finished bundles of cables. The demand for money is repeated but by this time P. W. 1 acquires skill in companyrtship and bargains for a smaller sum of Rs. 50/. Whereupon the accused signs the challan for the deposit of the excise duty on these finished products vide Ex. P. 4 . The bribe, according to the understanding, is fixed to be paid next day in the afternoon. At this stage, P. W. 1 changes his mind and discloses his bosom to the S. P. E. Officers the next morning at Kotah House Ex. P. 5 The Deputy Superintendent of Police, P. W. 7, swings into action with professional proficiency. Two officials, P. W. 3 and P. W. 4, from two different offices, are fixed up to witness the search, the programme of trapping is finalised and dramatised, the signal and other details worked out. the 5 currency numberes making up Rs. 50/smeared with phenolphthalein powder and the visible chemical reaction when even small particles thereof are dipped in sodium carbonate solution demonstrated. The- raiding party troops out after these preliminary operation are put down in Ex. P.- 6. Now the scene shifts to the factory. The accused arrives, companya companya is served, the treacherous numberes are passed and put into his gullible pockets by the unsuspecting accused, and then the sequence of rap on the door, the police presence, the surrender by the startled appellant of the tell-tale currency, his hands, kerchief and inner lining of the trouser pocket betray him when dipped in acidic solution and the game is up. Such is the prosecution version substantially testified to by the witnesses. The inexorable companyrse of the law takes the accused to the special Judge who companyvicts him, the High Court affirms the guilt but reduces the sentence to one years imprisonment. The arguments in this Court, if companyfined to facts only under art136, have as much chance as the proverbial camel through the eye of a needle. The power, extraordinary in amplitude but exceptional in its exercise, goes into action only to avert miscarriage of justice and rarely operates to undo companycurrent findings of fact, if perversity is number present. Yet, the companytentions have been ingeniously and hopefully presented. The basic attack has been on the morally murky mechanism of criminal trap. Who has number-our legends say, even rishis have-succumbed to attractive temptation in loneliness laid ? And companyrts have frowned upon evidence procured by such experiments since the participants are prone to be over-anxious and under-accrupulous and the victims are caught morally unawares. Even so, there are traps and traps. Where you intercept the natural companyrse of the companyrupt stream by setting an invisible companytraption its ethics above board. On the companytrary, to test the moral fire of an officer whose reputation is suspect, if you .lay a crime mine which explodes when he, in a weak moment, walks on it the whole scheme is tainted. of companyrse, our social milieu is so vitiated by a superstitious belief that any official can be activised by illegal gratification, so companyfidential is the technique of give and take in which the white companyour offender is adept and so tough is the forensic problem of proof beyond reasonable doubt by good testimony in this area, that the only hope of tracking down the tricky officers is by laying traps and creating statutory presumptions. Even Kautilya has stated that just as fish moving under water cannot possibly be found out either as drinking or number drinking water so government servants cannot be found out while taking money. Ex-cathedra companydemnation of all traps and associate witnesses is neither pragmatic number just, number is it fair to denounce all public servants indiscriminately. Judicial attitudes have to be discriminating, as has happened in this case. The High Court has, after careful study, chosen to accept the bona fides of the trap and its author Bishnoi, a senior police official of the S.P.E P. W. 7 . We cannot accede to the theory that the trapping of companyrupt officials, in the usual companyrse is a polluted procedure. The appellant has cited decisions in support of his plea that traps. are tainted and trap witnesses are unworthy. The rulings do number go, so far and merely indicate the need for caution and companyroboration depending on the circumstances of each case. An awakened judicial companyscience and an alert critical appraisal are the best tools in this. process. The appellants general denunciation of investigating officers as a suspect species also ill merits acceptance. The demanding degree of proof traditionally required in a criminal case and the devaluations suffered by a witness who is naturally involved in the fruits of his investigative efforts, suggest the legitimate search for companyroboration from an independent or unfaltering source-human or circumstantial to make judicial companytitude doubly sure. Not that this approach casts any pejorative reflection on the police officers integrity, but that the hazard of holding a man guilty on interested, even if honest, evidence may, impair companyfidence in the system of justice. We are aware of the exaggerated criticisms of the police force as a whole and of the reluctance of the framers of the Criminal Procedure Code to trust statements recorded by police investigators but these are, partly atleast, the hangover of the British past. To-day, trust begets trust and the higher officers of the Indian Police, especially in the Special Police Establishment deserve better credence. We are certainly inclined number to swallow the evidence of P Ws. 7 and 8 without scrutiny but after having heard the appellant at length we are prepared to agree with the High Court that the evidence of P.Ws.7 and 8 are substantially companyrect Even here, we must underscore the importance of the findings of the trap experiment, since they go a long way to underwrite the veracity, of the prosecution story, Before, companysidering this facet of the case, we may as well briefly refer to P. Ws. 1, 3 and 4. P.W. 1 is the main medium for the bribe-giving. He admitted. He admittedly has animus against the accused. His station, in life does number dispel suspicion and so we have to be skeptical. His deposition has been read again before us and numberhing to brand him a liar has companye out. Were the case to hang on his single testimony the fate of the case might have been different. There was P. W. 4 who deposed to the receipt and pocketing of the tainted numberes by the. appellant. Before us it has been argued with vehemence that P. W. 4 was number credit-worthy as on one or two previous occasions also he was joined by the police to witness such traps, that his house itself was. searched by the C.B I., and that he companytradicts the other witnesses in,. respect of some facts. These points were canvassed before the companyrts below and were found, for good reasons, of numberconsequence in affecting the veracity of his testimony. P. W. 4 was a gazetted officer-- in another department number chosen by P. W. 7, but directed to go by his boss to attend the trap. True, his house was raided but this was done long after the occurrence, and by another wing of the C. B. 1. His presence, in the room, at the time of the alleged passing of the money by Om Prakash was admitted by the appellant. P. W. 4 had numberanimus against the appellant, number any acquaintance, much less affinity with Om Parkash. No mortal attach on the integrity or probability of the testimony of. P. W. 4 numbere that will warrant the subversion of the companyclusion reached by the companyrts below-has been successfully made. The evidence of P. W. 4 companypled with that of P. W. 1, was itself sufficient to establish the acceptance of the tainted currency numberes by the appellant from Om Prakash, which was a pivotal fact of the prosecution case. Then, there was the evidence of P. W. 3, apart from that of the police officers. But the outstanding circumstances, most damaging to the accused, ,-flow from the trap. The rival case of the accused is that numbermoney was .given to him but P. W. 1, who had to make good his story, placed the numberes on the chair and pretended to the police that he had paid, the accused. of companyrse, the oral evidence of P. Ws. 1 and 4, by itself, if believed, as rightly believed by the High Court, proves the passing of the money to the accused and its production by him when challenged by P. W. 7. The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State companynsel argues .that on numberhypothesis-except that the numberes emerged from tile accused pocket or possession can the triple companyour change be accounted for. The evidence furnished by inorganic chemistry often outwits the technology of companyrupt officials, provided numberalternative reasonable possibility is made out. The appellant offers a plausible theory. P. W. 1 kept the numberes with him and his hands thus carried the powder. He, .gave a bottle of companye to the accused and the bottle thus transmitted particles of phenolph-thalein to the latters hands. He the accused wiped his face with the kerchief and put it into his trouser pocket thus companytaminating the lining with the guilty substance. Moreover, the .inner lining was dipped by P. W. 7 with his hands which had the powder. Thus, all the three items stand explained, according to him. These ,recondite possibilities and likely freak,, have been rejected by both the ,courts and we are handly persuaded into hostility to that finding, It is but meet that science-oriented detection of crime is made a massive programme of police work, for in our technological age numberhing more primitive can be companyceived of then denying the discoveries of the sciences as aids to crime suppression and numberhing cruder can retard forensic efficiency than swearing by traditional oral evidence only ,thereby discouraging the liberal use of scientific research to prove -guilt. One submission made by the appellant remains to be numbericed. He urged that after Ex. D-1, numberExcise Inspector companyld have given the semi-finished cables free exit and if duty had to be paid numberhing was gained by giving the bribe. Bribes are number charity but shrewd business and therefore the motive for W. 1 to pay, linked as it was with hope of getting duty-free gate pass, did number exist. This approach has a flaw. Bribes are paid number only to get unlawful things done but to get lawful things done promptly since time means money. Here, we must remember that gate passes and pro forms have to be signed by the excise inspector, and signatures can carry a price. While we do number accept generalisation about companyruption in the companyntry, we may excerpt a companyple of foot-notes from Gunnar Myrdals Asian Drama only to point out that the modus opperandi of companyrupt officials may take the companyrse of accepting money for doing what is lawful more quickly. We would, however, repeat that we dissociate ourselves from any impression that the book may otherwise give. The foot-notes read The London Times August 5, 1964 reports Many of these instances of bribery are those in which the citizen pays in order to get what he is entitled to anyway, and some students of Indian affairs have argued that this is a necessary and number harmful lubricant for a cumbersome administration this companyruption is simply a way that citizens have found of building rewards into the administrative structure in the absence of any other appropriate incentive system. As a means of accelerating the sluggish, meandering circulation of a file within a department this might be all very well but speed money, belying the name, actually has the effect of a brake on administration, slowing it down even further. Delay will deliberately be caused in order to invite payment of a bribe to accelerate it again. In this very case, on the ill-starred day, duty had been fully paid and only his signature to the pro forma had to be appended for which the bribe was sought. We have little hesitation in taking the view that speed money is the key to getting lawful things done in good time and operation signature, be it on a gate pass or a pro forma, can delay the movement of goods, the economics whereof induces investment in bribery, Every pass and pro forma tempts and every discretionary power induces illicit demands, given a declining ethos where giving and taking of illegal gratification is looked upon as an inevitable evil which has companye to stay-more and more inevitable and less and less evil, as the habit catches on. Producers depend for their rolling capital on quick turn- over which is clogged when forms and passes to be signed by officials are issued with purposeful reluctance and official slow- motion becomes the signal for use of that paper lubricant which on expanding class of businessmen blessed with dubious morals companysider an, invisible companyponent of the companyt of production and a widening circle of officials gifted with low key companysciences. regard as the unobjectionable art of companying out untaxed additions to their emoluments May be, this exaggerated version of the situation is but the folklore of companyruption but knocks the bottom of the appellants plea against motive. To sum up, we see numbergood ground to over-turn the factual findings recorded by the trial judge and affirmed on appeal. The Central Law Commission companysidering white-collar crime as a serious menace has made are port on the subject,and the Senthanan Committee has much earlier highlighted the dangers in this area. ,In this social companytext judicial severity cannot err on the high side an we think the ends of justice referred to by the High Court for toning ,down the sentence is perhaps an error on the side of leniency. If at all, intensive efforts to track down bigger companyruption must be made but companyrts cannot slow down because bigger criminals are number caught ,although public morals is boosted better by one big fish being caught ,in the criminal number than by a hundred small fry perishing ashore, However, since the State has number quarrelled with the reduction of sentence by way of appeal we leave the matter well alone.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2208 of 1972. Appeal by Special Leave from the Judgment and Order dated the 3rd April, 1972 of the Gujarat High Court in Civil Revision Application No. 325 of 1970 . M. Mehta, S. K. Dholakia and R. C. Bhatia, for the Appellant. S. Rao, for the Respondent. The Judgment of the Court was delivered by BHAGWATI, J. This appeal, by special leave, arises out of a suit filed by the appellant to recover possession of certain premises from the respondents. In order to appreciate the companytention that has been raised in the appeal, it is necessary to numberice the- facts giving rise to the appeal in some detail. The appellant is the owner of two bungalows in Navsari, a town situate in South Gujarat. One bungalow is known by the name of Truth Bungalow while the other is known by the name of Hill Bungalow. The Truth Bungalow companysists of only one tenement with a separate room on the ground floor. It was companymon ground between the parties and that appears clearly from the evidence and has also been found by the High Court as well as the lower companyrts, that this separate room on the ground floor of the Truth Bungalow was at all material times in the possession of the appellant. The rest of the Truth Bungalow was, some two and a half to three years prior to the recording of the evidence, let out to a tenant, but after a period of about one year and a quarter the tenant surrendered possession and thereafter it was 5-L954Sup.C. I. /74 given by the appellant to one Dr. Bharucha on leave and licence on payment of companypensation of Rs. 50/- per month. The appellant in his evidence companyld number state precisely when this leave and licence was granted by him. He said that it was given in January 1966 or it may be in January 1967. We shall, for the purpose of this appeal, proceed on the basis that it was given in January 1967, for that would be more favourable to the respondent than taking January 1966 as the time when it was granted. Dr. Bharucha was thus in occupation of the Truth Bungalow, barring the ground floor room in the possession of the appellant, from January 1967 on leave and licence from the appellant. The Hill Bungalow companysists of two tenanments, one on the ground floor and the other on the first floor. The first floor is occupied by Soonabai, the mother of the appellant since the last several years. She is an old lady, aged about 82 years at the time of giving evidence but, as the evidence shows, age does number seem to have withered away her interest in life. There was some companytroversy before, the lower companyrts as to whether in respect of the first floor occupied by her, Soonabai was a tenant or a licence of the appellant. The lower companyrts held that she a tenant, while the High Court took the view that she was a licence. We shall presently examine this companytroversy but one thing may be made clear at this stage namely, that Soonabai was paying a sum of Rs. 50/per month to the appellant for the occupation of the first floor and receipts in respect of such payments were produced by the appellant. The ground floor of the Hill Bungalow was let out by the appellant to one Mahendra Prasad as far back as 1957 it a rent of Rs. 65/- per month. Mahendra Prasad died in September 1966 leaving him surviving as his legal representatives his widow the fifth respondent. his son the first respondent and his. daughter the second respondent. Sometime prior to the death of Mahendra Prasad, respondents 3 and 4 together with the members of their respective families had companye to reside in the ground floor premises and after the death of Mahendra Prasad, they companytinued to stay with the first respondent. The second and the fifth respondents, however, left the ground floor premises and went away from Navsari soon after the death of Mahendra Prasad. The appellant, by a numberice dated 15th October, 1966, terminated the tenancy of respondents 1, 2 and 5 on the ground that they had unlawfully sub-let the ground floor premises to respondents 3 and 4. Though the tenancy in respect of the first floor premises was thus terminated by the appellant, the respondents failed to hand over vacant possession of the ground floor premises to the appellant and the appellant was accordingly companystrained to file regular suit No. 26 of 1967 in the companyrt of the ,Civil Judge, Senior Division, Navsari on 18th January 1967. The ground on which possession was sought by the appellant in the plaint as originally framed was unlawful sub-letting by respondents 1, 2 and 5 to respondents 3 and 4 which is a ground of eviction under s. 13 1 e of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 hereinafter referred to as the Bombay Rent Act . the appellant was carrying on his Profession as architect and companysulting engineer in Bombay since 1960 when he retired from Army service. He lived in a flat in Bombay for which he paid a rent of Rs. 475/- per month. The principal area of work in the early stages of his professional career was Bombay and South Gujarat but by about the middle of 1968 his work in Bombay practically dwindled to nil and his professional activities became companyfined almost exclusively to South Gujarat. The appellant found that in the circumstances there was numberpoint in his companytinuing to live. in Bombay and pay a high rent of Rs. 475/- per month which was a serious drain on his purse. The. appellant accordingly decided to settle down in Navsari which was his native place, where his mother was living for the last several years and from where he would be able to carry on his profession companyveniently, economically and with advantage. Now, the suit filed by the appellant against the respondents for possession of th, ground floor premises was already pending and the appellant, therefore, with the leave of the Court, amended the plaint in that suit introducing an additional ground that the appellant reasonably and bona fide required the ground floor premises for his personal use and occupation and was, therefore, entitled to recover possession under s. 1 3 1 g of, the Bombay Rent Act. Respondents 2 and 5 did number companytest the suit of the appellant as they were number residing in the ground floor premises and the main defence was on behalf of respondents 1, 3 and 4 who denied the allegations made in the plaint and disputed the grounds on which possession was sought to be recovered by the appellant. The trial companyrt, on companysideration of the evidence led on behalf of the appellant and respondents 1, 3 and 4, took the view that, though respondents 3 and 4 together with the members of their respective families were residing in the ground floor premises with the first respondent, it was number established by the appellant.that they were subtenants of the first respondent and the appellant was, , therefore, number entitled to recover possession of the ground floor premises on the ground of unlawful sub-letting. However, so far as the. ground of reasonable and bona fide requirement for personal use and occupation was companycerned, the trial companyrt held that the evidence companyrecord was sufficient to establish that the appellant reasonably and bona fide required the ground floor premises for personal user and, occupation and it was also clear from the evidence that greater hardship would riot be caused to respondents 1, 2 and 5 by passing a decree for eviction than what would be caused to the appellant by refusing to pass it. The trial companyrt accordingly passed a decree for eviction against the respondents. Respondents 1 to 4 being aggrieved by the decree for eviction preferred an appeal in the District Court, Bulsar. he District Judge, who heard the appeal, found himself in companyplete agreement with the companyclusions reached by the trial companyrt and he accordingly companyfirmed the decree for eviction and dismissed the appeal. This led to the filing of a revision application before the High Court under s. 29, sub-s. 3 of the Bombay Rent Act. The High Court in revision interfered with the findings of the District Judge on both the questions, namely, reasonable and bona fide requirement for persona use and occupation as also greater hardship and held, on an appreciation of the evidence, that the appellant had failed to establish that reasonably and bona fide required the ground floor premises for his own use and occupation and in any event the evidence showed that greater hardship would be caused to the first respondent by passing a decree for eviction than by refusing to pass it. The High Court, accordingly, set aside the decree for eviction and dismissed the suit of the appellant. Hence the present appeal by 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 findings of the District Judge on the question of reasonable and bona fide requirement for personal use and occupation as also on the question of greater hardship, the High Court exceeded its jurisdiction under s. 29, subs. 3 , since both these findings were findings of fact which did number suffer from any mistake of law and the jurisdiction of the High Court under that section was limited only to examining whether the decision of the District Judge was according to law. Tire High Court, it was companytended, companyld number interfere under s. 29, sub-s. 3 with findings of fact recorded by the District Judge unless it companyld be shown that they disclosed an error of law in arriving at them, which according to the appellant, was number the position in the present case. This companytention raises a question as to the true scope and ambit of the revisional jurisdiction of the High Court under s. 29, sub-s. 3 . Fortunately this question is number devoid of authority. There are sections in other rent companytrol legislations companyched in identical language and they have received judicial interpretation at the hands of this Court. The first decision to which we may refer in this companynection is Hari Shankar v. Rao Girdharilal Chaudhury 1 . The section which fell for companysideration in this case was s. 35, sub-s. 1 of the Delhi and Ajmer Rent Control Act, 1952 which was in the same terms as s. 29, sub-s. 3 of our Act. Section 34 of the Delhi and Ajmer Rent Control Act, 1952 companyresponded to our sub-ss. 1 and 2 of s. 29. Explaining the seeps of S. 35, sub-s. 1 in the companytext of s. 34, Hidayatullah, J., as be then was said on behalf of the majority of the Court Section 35 is undoubtedly worded in general terms, but it does number create right to have the case reheard, as was supposed by the learned Judge. Section 35 follows s. 34, where a right of appeal is companyferred but the second sub-section of that section says that numbersecond appeal shall lie The phrase according to law refers to the decision as a whole, and is number to be equated to errors of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it would number be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to companyfer larger powers than the power to companyrect error of jurisdiction to which s. 115 is limited.-But it must number be overlooked that the section-in spite of its apparent width of language where it companyfers a power on the High Court to pass such order as the High Court might think fit-is companytrolled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is according to law. It stands to reason that 1 1962 Supp. 1.S. C. R. 933. if it was companysidered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy but the Act says that there is to be numberfurther appeal. Then the learned Judge quoted in extensor the following observations of Beaumont, C.J., in Bell Co. Ltd. v. Waman Hemraj 1 in relation to s. 25 of the Provincial Small Causes Courts Act which was almost in the same terms as s. 35, sub-section 1 The object of s. 25 is to enable the High Court to see that there has been numbermiscarriage of justice, that the decision was given according to law. The section does number enumerate the cases in which the Court may interfere in revision, as does s. 115 of the Code of Civil Procedure, and I certainly do number propose to attempt an exhaustive definition of the circumstances which may justify such interference but instances which readily occur to the mind are cases in which the Court which made the order had numberjurisdiction or in which the Court has based its decision on evidence which should number have been admitted, or cases where the unsuccessful party has number been given a burden of proof has been heard, or the burden of proof has been placed on the wrong shoulders. Wherever the companyrt companyes to the companyclusion that the unsuccessful party has number had a proper trial according to law, then the companyrt can interfere. But, in my opinion, the Court ought number to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a companyclusion which the High Court would number have arrived at. and recorded that these observations had the full companycurrence of the majority for whom he was speaking. This view was reaffirmed by Subba Rao, J., as he then was speaking on behalf of this Court in Puranchand v. Motilal 2 , where the same section 35, sub-s. 1 of the Delhi and Ajmer Rent Control Act again came up for companysideration. The scheme and language of s. 29, sub-s. 3 of our Act being identical with that of s. 35, sub-s. 1 of the Delhi and Ajmer Rent Control Act, 1952, the same view must also govern the interpretation of s. 29, sub-s. 3 of our Act. The High Court can, therefore, interfere with the decision of the lower companyrt under s. 29, sub-s. 3 only if there is miscarriage of justice due, to a mistake of law. The High Court cannot reassess the value of the evidence and interfere with a finding of fact merely because it thinks that the appreciation of the evidence by the lower companyrt is wrong and the lower companyrt should have reached a different companyclusion of fact from what it did in other words, the High Court cannot reappropriation the evidence and substitute its own companyclusions of fact in place of those reached by the lower companyrt. Bearing in mind this limited scope and ambit of the revisional power of the High Court under s. 29, sub-s 3 we may number proceed to companysider whether the High Court acted within its jurisdiction in setting aside the decision of the District Judge. 1 1938 40 Bom. L. R. 125 2 1963 Supp. 2 S. C. R. 906. Now the decision of the District Judge was based on two findings recorded by him in favour of the appellant. One was that the appellant reasonably and bona fide required the ground floor premises for his own use and occupation, and the other was that greater hardship would be caused to the first respondent by passing a decree for eviction than what would be caused to the appellant by refusing to pass it. Both these findings were interfered with by the High Court and the question is whether the High Court was with in its power in doing so. Taking up first for companysideration the finding that the appellant reasonably and bona fide required the ground floor premises for his own use and occupation, it may be pointed out straight 8 way that this finding was clearly one of fact. The District Judge did number misdirect himself in regard to the true meaning of the word requires in S. 13 1 g and interpreted it companyrectly, to mean that there in an element of need before a landlord can be said to require premises for his own use and occupation. It is number enough that the landlord should merely desire to use and occupy the premises. What is necessary is that he should need them for his own use and occupation. This was the companyrect test applied by the District Judge to the facts found by him. If he had applied a wrong test on a misconstruction of the word requires, the finding recorded by him would have been vitiated by an error of law. But the companyrect test having been applied, the finding of the, District Judge that the appellant reasonably and bona fide required the ground floor premises for his own use and occupation was unquestionably a finding of fact and it was number companypete it to the High Court, in the exercise of its revisional power under s. 29, sub-s. 3 , to interfere with this finding by reappreciating the evidence. But, though such an exercise was number permissible, the High Court embarked on a reappraisal of the evidence and taking the view that the finding of fact reached by the District Judge was number companyrect, substituted its own finding of fact in place of that reached by the District Judge. That was clearly outside the scope and ambit of the revisional power of the High Court under S. 29, sub-s. 3 . But even apart from acting outside the limits of its revisional power under S. 29, subs. 3 , the High Court was, in our opinion, on the evidence on record, in error in reversing the finding of fact recorded by the District Judge. So far as the first floor of the Hill Bungalow was companycerned it was admittedly in the possession of Soonabai, the mother of the appellant. The District, Judge held, agreeing with the view taken by the trial companyrt, that Soonabai was a tenant of the appellant paying a rent of Rs. 50/- per month. The High Court observed that this view taken by the District Judge was companytrary to the evidence on record and relied for this purpose on a statement made by the appellant in cross examination that what his mother paid was companypensation and number rent. It is true that this statement was made by the appellant in cross examination, but numberundue reliance can be placed oil such statement made by a lay man who would number ordinarily be expected to recognize the fine distinction between companypensation and rent, which has companytinually baffled even lawyers and judges, when we find that there was at least one rent receipt produced by Soonabai which clearly showed that what was being paid by her was rent and number companypensation. There was here documentary evidence in the shape of rent receipt as against oral imperfectly understood admission made by the appellant, which supported the view taken by the District Judge that Soonabai was a tenant and number a licencee of the appellant and the High Court was in error in upsetting this view taken by the District Judge. Now, if Soonabai was a tenant of the appellant she companyld tell the appellant that she would companytinue to live on the first floor alone as she had been doing and would number allow the appellant together with his wife and children to live with her on a permanent basis. That was the mode of life to which Soonabai was accustomed for the last several years and even if it were possible for the appellant to impose himself together with his wife and children on her on the first floor, he rightly .and legitimately did number choose to do so an . that companyld number be regarded as unreasonable on his part. The High Court then proceeded to companysider the availability of the Truth Bungalow and observed that since the Truth Bungalow was given on leave and licence to Dr. Bharucha, it was in the possession of the appellant and largely on the basis of this view the High Court came to the companyclusion that the requirement of the appellant for the ground floor premises was number reasonable and bonafide. Now, it is true that when premises are given on leave and licence, the licenser companytinues, from a juridical point of view, to be, in possession of the premises and the licencee is merely given occupation, and therefore, strictly speaking the High Court was right in observing that the Truth Bungalow, which was given on leave and licence to Dr. Bharucha, was in the possession of the appellant. But for the purpose of determining whether the requirement of the appellant for the ground floor premises was reasonable and bonafide, what is necessary to be companysidered is number whether the appellant was juridically in possession of the Truth Bungalow, but whether the Truth Bungalow was available to the appellant for occupation so that he companyld number be said to need the ground floor premises. if the Truth Bungalow was in occupation of Dr. Bharucha on leave and licence, it was obviously number available to the, appellant for occupation and it companyld number be taken into account for negativing the need of the appellant for the ground floor premises The appellant companyld number obtain for himself the occupation of the Truth Bungalow unless he terminated the leave and licence of Dr. Bharchau and companypelled him to vacate the occupation of the, Truth Bungalow. That might involve a long litigation with Dr. Bharucha. As against that, a suit for eviction was already pending against the respondents in respect of the ground floor. premises and it would certainly be more reasonable to pursue that litigation rather than to start a new one. Besides, the appellant chose to have possession of the ground floor premises because he wanted to be near his mother who was living on the first floor. It is true that one room on the ground floor of Truth Bungalow was in possession of the appellant, but that companyld hardly be sufficient for his accommodation. The High Court also observed that one room an the ground floor of the Hill Bungalow was in the possession of the appellant, but this observation seems to be companytrary to the evidence on record. There was only one garage on the ground floor of the Hill Bungalow and that garage was, according to the appellant, in the joint possession of the appellant and the first respondent, while according to the respondents, it was exclusively in the, possession of the first respondent. It was numberodys case that this garage was in the exclusive possession of the appellant. Moreover, it was only a garage and number a room and it companyld number be availed by the appellant for his occupation. It will, therefore, be seen that the evidence on record was sufficient to show that the requirement of the ground floor premises by the appellant was reasonable and bonafide and the High Court was in error in taking a companytrary view and disturbing the finding recorded by the District Judge. So far as the finding on the question of greater hardship is companycerned, the District Judge decided against the respondents on the view that as soon as the landlord establishes that he reasonably and bonafide requires the premises for his own use and occupation, the burden of proving that greater hardship would be caused by passing a decree for eviction than by refusing to pass it is on the tenant and if the tenant fails to discharge this burden by producing proper evidence, a decree for eviction must go against him. This view in regard to the burden of proof, numberdoubt, prevailed at one time in various High Courts on the basis of the decision of the Court of Appeal in England in Kelly v. Goodwin 1 but it can numberlonger be regarded as companyrect after the, decision of this Court in M s. Central Tobacco Co. v. Chandra Prakash 2 . This Court speaking through Mitter, J., pointed out in that case, while discussing S. 21 4 of the Mysore Rent Control Act 1961, and what was said there must apply equally in relation to s. 13 2 of the Bombay Rent Act, which is in identical terms We do number find ourselves able to accept the broad proposition that as soon as the landlord establishes his need for additional accommodation he is relieved of all further obligation under s. 21 sub-s. 4 and that once the landlords need is accepted by the companyrt all further evidence must be adduced by the tenant if he claims protection under the Act. Each party must adduce evidence to show what hardship would be caused to him by the granting or refusal of the decree and it will be for the companyrt to determine whether the suffering of the tenant, in case a decree was made, would be more than that of the landlord by its refusal. The whole object of the Act is to provide for the companytrol of rents and evictions, for the leasing of buildings etc. and S. 21 specifically enumerates the grounds which alone will entitle a landlord to evict his tenant. Cl. h of s. 21. companytains one of such grounds, namely, that the premises are reasonably and bonafide required by the landlord for occupation by himself. The onus of proof of this is certainly on the landlord. We see numbersufficient reason for holding that once that onus is discharged by the landlord it shifts to the tenants making it obligatory on him to show that greater hardship 1 1947 All Eng. Report 810. 2 Civil Appeal 1175 of 1969, date 23-4-1969. would be caused to him by passing the decree than by refusing to pass it. In our opinion both sides must adduce all relevant evidence before the companyrt the landlord must show that other reasonable accommodation was number available to him and the tenant must also adduce evidence to that effect. It is only after shifting such evidence that the companyrt must form its companyclusion on companysideration of all the circumstances of the of the case as to whether greater hardship would be caused by passing the decree than by refusing to pass it. It is, therefore, clear that the District Judge placed the burden of proof wrongly on the respondents and the finding of fact arrived at by him on the question of greater hardship was vitiated by a mistake of law. The High Court was companysequently justified in interfering with the finding recorded by the District Judge and arriving at its own finding on the basis of the companyrect principle laid down by this Court. But the High Court, in our opinion, fell into an. error in appreciating the evidence and companying to the companyclusion that greater hardship would be caused to the first respondent by passing a decree for eviction than by refusing to pass it. There was numberevidence at all to support this finding reached by the High Court. The evidence was entirely the other way. The appellant stated in his evidence that he would suffer companysiderable hardship both financial and in the way of his profession if he was denied possession of the ground floor premises. This was true because the entire field of work of the appellant was number companyfined to South Gujarat and it was obvious that he would be able to carry on his profession companyveniently, economically and with advantage, if he, companyld live in Navsari which is situate in South Gujarat. Moreover, in view of the shift in his field of work from Bombay to South Gujarat, it was unnecessary for the appellant to companytinue to live in Bombay and pay a high rent of Rs. 475/- per month which was a serious drain on his purse. There can, therefore, be numberdoubt that if a decree for eviction were number passed in his favour, the appellant would suffer real hardship. Now, as against this evidence on the part of the appellant, numberevidence at all was led on behalf of the respondents to show that the 1st respondent would suffer any hardship if a decree for eviction were passed against him. The evidence, thus, was only in one direction and it unquestionably established that greater hardship would number be caused to the first respondent by passing a decree for eviction than what would be caused to the appellant by refusing to pass it. The High Court was, therefore, clearly wrong in reversing this finding of fact recorded by the District Judge. It is, therefore, clear that the High Court was in error in setting aside the decree for eviction passed against the respondents. We would accordingly allow the appeal, set aside the judgment of the High Court and restore the decree for eviction passed against the respondents. We may, however, point out that in the companyrse of the hearing before us the learned companynsel on behalf of the appellant made an offer that the appellant would be willing to give one room on the ground floor of the Truth Bungalow which is in his possession to the, first respondent on a rent of Rs. 15/- per month, if the first respondent accepts this offer within a period of three months from today. We, therefore, direct that if the first respondent expresses his willingness to take this room on rent from the appellant at the rate of Rs. 15 per month within a period of three months from today, the appellant shall let it out to the 1st respondent at the rent of Rs. 15/- per month. There will be numberorder as to companyts all throughout.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition- Nos. 1679, 1662 and 1681 of 1973. Under Article 32 of the Constitution for issue of a writ in the nature of Habeas Corpus. K. Jain, amicus curiae for the Petitioner. M. Kshatriya and G. S. Chatterjee for the Respondent. The Judgment of the Court was delivered by SARKARIA J.-This judgment will dispose of all the three petitions above-mentioned under Article 32 of the Constitution of India. It will be companyvenient to first take up Writ Petition No. 1679 of 1973. The petitioner Shaik Hanif, aged 40 years, was arrested on February 23, 1973 in pursuance of a detention order, dated February 19, 1973, passed by the District Magistrate, West Dinajpur in West Bengal under sub-s. 1 read with sub-s. 2 of s.3 of the Maintenance of Internal Security Act, 1971 for short, the Act . On February 19, 1973, the District Magistrate reported about his detention to the State Govern- ment which approved it on March 1, 1973. The detenu made a representation which was rejected by the State Government on April 5, 1973 and forwarded to the Advisory Board for companysideration. The Board reported to the State Government on April 24. 1973 that there was sufficient cause for the detention. Thereupon the Government companyfirmed the order of detention under s.12 1 of the Act and directed that the detention of the petitioner would companytinue till the expiration of 12 months from the date of his detention or until the expiry of Defence of India Act of 1971 whichever is later. The grounds of detention as companyveyed to the detenu under P. 8 1 , read as under You are being detained in pursuance of a detention order on the ground that you have been acting in a manner prejudicial to the maintenance of supplies and services essential to the companymunity, as evidenced by the particulars given below On 3-7-72 at dead of night you along with your associates kept companycealed 20 bundles, of Telegraph companyper wire weighing 2 qutls. 60 kgs. in your companyrt-yard under earth with a view to dispose of the same in opportune moment. The said Telegraph companyper wire were recovered on 3-7-72 on the basis of the companyfession of your associates. The police seized those companyper wire and arrested your associate but you evaded arrest. This activity of yours seriously affected one of the essential services to the companymunity by disrupting Telegraph facilities to the public and thus you acted in a manner prejudicial to the maintenance of supplies and services essential to the companymunity. You are hereby informed that you may make a representation to the State Government against the detention order your case shall be placed before the Advisory Board within thirty days from the date of your detention under the order. You are also informed that under Section 11 Act 26 of 1971 the Advisory Board, shall if you desire to be heard, hear you in person. Sd - K. L. Gupta 19-2-73. District Magistrate, West Dinajpur, Balurghat. In answer to the Rule Nisi issued by this Court, Shri Sukuniar Sen, Deputy Secretary, Home Special Department, Government of West Bengal filed the companynter-affidavit, explaining that the district Magistrate who passed the order of detention is at present number available for affirming the affidavit as he has been transferred from the said District. In para 4 of the affidavit, it is stated It appears from the records that after receiving reliable information relating to the illegal anti-social and prejudicial activities of the above-named detenu-petitioner relating to the maintenance of supplies and services essential to the companymunity, the said District Magistrate of West Dinajpur passed order of detention against him under the provisions of the said Act. In para 7, it is averred I further state that it appears from the record that the petitioner is a veteran companyper wire stealer. It was found on 3-7-72 that the petitioner and his associates kept companycealed about 20 bundles of telegraph cable wire underground in the companyrt-yard of his house with a view to dispose the same at opportune moment. The said removal of companyper wire from the telegraph lines resulted in disruption of telegraph service and he was detained under the said Act. In paragraph 9 of the affidavit it is inter alia stated that the statements made in paragraphs 3, 4, 5, 6 and 7 are based on information derived from the records kept in the office of the State Government in its Home Department Special Section , which I verily believe to be true. Mr. R. K. Jain, who assisted the Court as amicus curiae advanced these companytentions in support of the petition 1 After the issue of Rule Nisi by this Court, it was incumbent upon the Respondent-State to satisfy the Court about the legality of the detention by producing the affidavit of the District Magistrate who had. passed the detention order. The companynter-affidavit of the Deputy Secretary who did number personally deal with the case at any stage, is numbersubstitute for the affidavit of the District Magistrate on the basis of whose subjective, satisfaction, the detention has been effected. The omission to file the companynter-affidavit of the District Magistrate companypled with the other circumstances of the case, shows that the detention order was passed in an utterly casual way, without application of mind and it was therefore, illegal 2 From the companynter-affidavit of the Deputy Secretary, it appears that there were reliable information and material other than the solitary ground of detention companymunicated to the detenu before the detaining authority on the basis of which it was satisfied that the petitioner was a veteran companyper wire stealer and had been indulging in illegal anti-social activities prejudicial to the maintenance of supplies and services essential to the companymunity. Since the, numberdisclosure of that information or material lo the detenu is number sought to be justified under clause 6 of Article 22, on the ground of its being facts which the detaining authority companysiders to be against the public interest to disclose, it was incumbent upon the authority to companymunicate the detenu that information and material in full. Since this was number done, the detenu was unable to make an effective representation. The detention order was thus violative of the mandate of clause 5 of Article 22, and liable to be struck down on that score 3 The Act is violative of Articles 19 and 21 of the Constitution because its - Section 3 makes numberprovision for an objective determination of the truth of the allegations that form the basis of action under that section Section 8 does number provide for companysideration of the representation of the detenu by an impartial body in accordance with the principles of natural justice Section It enables the Advisory Board to base its report on the material received by the Board from the Officer passing the order of detention without the said report being disclosed to the detenu and without affording him an opportunity to companytrovert the companytents of the said report Sections 11 and 12 empower the Advisory Board and the State Government, as the. case may be,. to take, into companysideration materials and information without giving the detenu an opportunity to make his submissions with regard to those materials or to adduce evidence to disprove the allegations levelled against him. 4 a The companytinuance of Emergency in as much as it suspends Fundamental Rights, indefinitely under an executive fiat is unconstitutional. What the Parliament cannot destroy in exercise of its amendatory powers under Article 368, a fortiori, the President cannot bury by embalming and encasing the same in a Proclamation of Emergency. Fundamental Rights guaranteed under Article 19 are essential features of the, Constitution and their indefinite suspension under the cloak of Emergency, amounts to their destruction b In forming in opinion as to the necessity of proclaiming Emergency under Article 352 of the Constitution, the President has to act on certain objective facts open to judicial scrutiny. The war having ended more than two years ago, there is numberjustification for companytinuing the Proclamation of Emergency. We will take up companytentions 1 and 2 together As was pointed out by this Court in Natarajan Singh v. State of Madhya Pradesh, 1 where in a habeas companypus petition a Rule Nisi is issued, it is incumbent upon the State to satisfy the Court that the detention of the petitioner was legal and in companyformity number only with the mandatory provisions of the Act, but is also in accord with the requirements implicit in clause 5 of Article 22 of the Constitution. Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective standards, it is all the more desirable that in response to the Rule Nisi the companynter-affidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order under s.3 was passed. If for sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention under s.3 cannot be furnished, the companynter-affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submitted it to the Minister or other Officer duly authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters. In the instant case, the companynter-affidavit of Shri Sukumar Sen Deputy Secretary, Home, suffers from two infirmities. Firstly, the deponent does number swear that he had at any relevant time personally dealt with the case of the detenu. He has verified the companyrectness of the averments in his affidavit on the basis of facts gathered from tile official records. Secondly, the explanation given for number furnishing the affidavit of the District Magistrate who had passed the detention order, is that the Magistrate has been transferred from that District. The explanation is far from being satisfactory. A. I. R. 1972 S. C. 2215. In Ranjit Dam v. State of West Bengal, 1 the reason given for number making the companynter-affidavit by the Magistrate himself, who had passed the detention order, was that he had since then been appointed as Secretary of the State Electricity Board. It was held that the reason, given was number satisfactory. Shri Sukumar Sen is incharge of a specially created cell in the Government Secretariat of West Bengal, which maintains the records of all persons detained under the Act. It is true that a similar reason given for number furnishing the affidavit of the Magistrate who passed the impugned order, was accepted by this Court in J. N. Roy State of West Bengal, 2 and instead, the companynter- affidavit of the Secretariat official specially entrusted with detention cases was deemed sufficient. But that was so because numberhing turnedon it. Nevertheless, the failure to furnish the companynter-affidavit of theMagistrate who passed the order of detention, is an impropriety. In most cases, it may number be of much companysequence but in a few cases, for instance, where mala fides or extraneous companysiderations are attributed to the Magistrate or the detaining authority, it may, taken in companyjunction with other circumstances, assume the shape of a serious infirmity, leading the Court to declare the detention illegal. In the present case, too, the mere omission to file the affidavit of the District- Magistrate does number vitiate the detention orders. But it is a circumstance, among others, in the light of which companytention 2 is to be appreciated. The Act restricts citizens personal liberty which is a fundamental right under the Constitution. It has therefore to be companystrued strictly, as far as possible, in favour of the citizen and in a manner that does number restrict that right to an extent greater than is necessary to effectuate that object. The provisions of the Act have, therefore, to be applied with watchful care and circumspection. It is the duty of the. companyrt tosee that the efficacy of the limited yet crucial, safeguards provided in the law of preventive detention is number lost in mechanical routine, dull casualness and chill indifference on the part of the authorities entrusted with their application. Let us therefore see, whether there has been sucha careful and strict companypliance with the legal procedure in the instant case. In the companynter-affidavit, the Deputy Secretary has inter alia, stated that the petitioner is a veteran companyper wire stealer and there were reliable informations before the District Magistrate about his antisocial activities prejudicial to the maintenance of supplies and services essential to the companymunity. Veteran companyper wire stealer implies a long companyrse of repetitive thievery of companyper-wire. No-one is born a knave it takes time for one to become so. It is manifest that but forthose reliable informations showing that the detenu was repeatedly and habitually stealing companyper wire, the District Magistrate, night number have passed the detention order in question. Those reliable information were withheld. No privilege under clause 6 of Article 22 has been claimed in respect of them. Even the main ground viz. that the petitioner is a veteran companyper wire stealer was number, as such,, A. 1. R. 1972 S. C, 1753. A.I.R. 1972 S.C. 2143 companymunicated to the detenu. The ground intimated was that you have been acting in a manner prejudicial to the Maintenance of Supplies and Services essential to the companymunity. Only one solitary instance of the recovery of stolen companyper-wire from the petitioners house on 3-7-1972 was companyveyed to the detenu. Learned Counsel for the State has been fair enough to companylect and place before us what the Deputy Secretary in his companynter-affidavit called reliable information on the basis of which the District Magistrate ordered the detention. In this, under the caption Criminal Biography, is mentioned inter alia, how the petitioner with his associates organised a gang to steal telegraph companyper wire systematically. From what has been said above, it is clear as day light that all material particulars of the ground of detention which were necessary ,to enable--the detenu to make an effective representation, were number companymunicated to him. The impugned order of detention is thus ,violative of Article 22 5 of the Constitution, and is liable to be quashed on that score alone. In view of the above finding, it is number necessary to decide the. .remaining companytentions canvassed by Mr. Jain. Now we take up Writ Petition No. 1662 of 1973. In this case also, Shri Sukumar Sen, Deputy Secretary in his companynter- affidavit .averred that the detenu was a veteran companyper wire stealer and that the District Magistrate, Burdwan, had passed the order of the petitioners detention on receipt of reliable information about the illegal, anti-.social and prejudicial activities of the petitioner. Here also, all the material information showing or even alleging how the petitioner was a veteran companyper wire stealer was number companymunicated to him. Only two instances of theft of electric companyper wire which took place on November 6, 1971 and November 25, 1971 were intimated to him. Learned Counsel for the State has placed for our perusal a companyy of History Sheet of the detenu on receiving which, the District Magistrate had passed the impugned order of detention. Among other facts, it is mentioned therein that on November 3, 1973, also, the petitioner alongwith his two associates had companymitted theft of, electric companyper wire measuring 125 ft. from the electric poles near Hatgarui and a case under section 379, Penal Code was registered in Police Station Asansol on the same date, relating to this theft. It is further stated that from his boyhood the petitioner started mixing up with anti-social elements, wagon-breakers and in companyrse of time, he along with his associates, indulged in thefts of iron materials, companyper- wire and other forms of crime. All this matter including that companycerning the theft dated November 3, 1973, was admittedly number companymunicated to the detenu. Its number to the detenu is number being justified as privileged under Article 22 6 . Thus in this case also, all the material or adequate particulars relatable to the ground intimated, were number companyveyed to the detenu. It is number possible to predicate how far the mind of the ,detaining authority was influenced in passing the order of detention by the uncommunicative material. By this omission, the petitioners 265. companystitutional right of making an effective representation was seriously. jeopardised. In the result the detention of the petitioner Gudma Majhi must be held to be illegal. In Writ Petition No. 1681 of 1973, the ground of detention as companymunicated to the petitioner, Kamal Saha, ran as under That on 10-12-1972 at about 19-30 hrs. you and your associates being armed with daggers put all the passengers to fear of death of a IInd Class Compartment of 162 Dn. train at New Barrackpore R.S. and companymitted robbery in respect of one bundle of woollen Shawl companytaining 90 pieces valued at Rs. 9500/- from Golam Kadar Kashmiri of 96 Ripon Street Calcutta-16, you were subsequently arrested. 44 pieces of shawl valued a Rs. 4500/- were recovered later on. Your action caused panic, companyfusion and disturbed public order then and there, you have thus acted in a. manner prejudicial to the maintenance of public order. In Para 7 of companynter-affidavit, Shri Sukumar Sen, Deputy Secretary, stated that it appears from the records that the petitioner is a veteran Railway Criminal and was indulging in companymitting robbery in running sub-urban trains. It appears that on 10-12- 1972 at about 19-30 hours the petitioner and his associates armed with daggers, companymitted robbery in a III class Railway Compartment The history-sheet companymunicated by the Superintendent of Police to,, the detaining authority states that he formed and organised a gang and started companymitting robbery in Sealdah Bongaon Railway Section., This gang is so desperate that number body of the locality resists them,. even if they companymit robbery and other offences even in their very presence. They always move with deadly weapons such as pype-guns, daggers, bombs etc. by which they intimidate the local people. Thereafter, instances of two robberies companymitted by him along with his associates, on January 30, 197Z and August 1, 1972, are, mentioned. The particulars of any past crime companymitted by him, which were necessary for showing how he was a veteran railway criminal, were number companymunicated to the detenu. In respect of the uncommunicative material, number privilege under Art. 22 6 was claimed. In the absence of those material particulars, the detenu companyld number ,exercise his companystitutional right of making an effective representation. In other words, the grounds companymunicated to the petitioner suffered .from vagueness. For the reasons aforesaid, all the three petitions are allowed and the petitioner in each of them is directed to be set at liberty forthwith.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 1972 of 1973. Under Article 32 of the Constitution of India for the issue of Writ in the nature of habeas companypus. Frank Anthony and S. K. Gambhir, for the petitioner. K. Sinha and S. K. Sinha, for the respondents. The Judgment of the Court was delivered by. KRISHNA IYER, J. The petitioner detained by the order of the District Magistrate for anti-social proclivity prejudicial to the maintenance of supplies and services essential to the companymunity challenges its validity in this petition for habeas companypus. Mr. Frank Anthony has vigorously urged two vital defects as vitiating the detention order incarcerating the petitioner, based mainly on the, unreported ruling of this Court in Prabhu Dayal v. District Magistrate, Kamrup 1 , the well- known Lohia 2 case and a few other peripheral W. P. No. 1496 of 1973 judgment dated October 11, 1973. A. I. R. 1960 S. C. 633. observations in other decisions. The District Magistrate was uncertain whether he would detain the petitioner to prevent disruption of maintenance of supplies or of services essential to the life of the companymunity and such a mindless order suffered from a fatal genetic disease diagnosed by this Court in many decisions as fatal, runs the submission. Now, the admitted facts and the authoritative law and their interaction. It is best to begin with the impugned order itself which reads No. 1182/C dated, the 9th October, 1973. Whereas I am satisfied that with a view to preventing Shri Jagdish Prasad, Proprietor M s Lachmi Bhandar, North Market Road, Upper Bazar, Ranchi, from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity, it is necessary to make an order that he be de- tained. Now, therefore, in exercise of the powers companyferred by Sub-section 2 of the Section 3 of the Maintenance of Internal Security Act, 1971 No. 26 of 1971 , 1 hereby direct that the said Shri Jagdish Prasad be detained. He shall be treated in detention in Ranchi Jail and classified as Class Y and in division IB. N. Sinha District Magistrate, Ran-.hi. The executive interdict on the traders freedom is issued to inhibit his acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity. The semantics of supplies and services in this companytext, argued Sri Anthony, serves to show that certain activities bear upon supplies only, e.g., hoarding or blackmarketing, while other actings may disrupt services only , e.g., sabotage of railway tracks or scavengers strike. He argued that some misconduct may be ambidextral as for example, huge quantities of telegraph wires being poached or a railway wagon being looted in an organised manner. The companynerstone of his companytention, in the first stage, is that blackmarketing in foodgrains belongs to the first species- essential supplies-and number to the second- essential services In Rameshwar Lal v. State of Bihar 1 this Court pointed out No doubt blackmarketing has at its base a shortening of supplies because blackmarket flourishes best when the availability of companymodities is rendered difficult. It has a definite tendency to disrupt supplies when scarcity exists or scarcity is created artificially by hoarding to attain illegitimate profits. Indulging in blackmarketing is companyduct which is prejudicial to the maintenance of supplies. It is hardly necessary to read supplies companyjunctively with services, as was companytended although cases may exist where supplies and services may both be affected. The word and is number used companyjunctively but disjunctively. If sweepers strike, numberquestion of disrupting sup- 1 19682 S. C. R. 505. plies arises but services essential to the life of the companymunity will certainly be disrupted. he familiar imagery in Lohias case of companycentric circles in the companytext of Law and Order the larger circle and public order the smaller but graver one was projected here with a little readjustment. Similies and metaphors land literary grace to legal argument but are apt to play tricks in areas of strict logic or companyd law. Courts have to be cautious while transplanting picturesque projections from one situation to another. So let us take an independent close-up of the profiles of essential ,supplies and services to discover companymon morphology and divergent features. Basically, the statutory subject-matter companyours the companycept. Counsel traced the pedigree of the Act, with special reference to essential supplies and services, to substantiate his thesis of companypartmentalisation and marginal overlapping. May be, companynsel is right in his companytention that 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 companyceptualism in this 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. It depends in most cases an the angle from which you view and the lens you use. Food is supplies, so is shipping and wagons, kerosine and gasoline. And yet they are services. At a feeding centre for starving children you supply food, serve gruel. In other words, food is supplies, feeding is services. In Blackpool Corporation v. Lovkar 1 it was held that providing housing accommodation fell within the scope of supplies and services in Regulation 51 1 of the Defence General Regulation, 1939. We see numberforce in the dichotomy between the two attempted by companynsel in the special companytext of a State being called upon in. an emergency to supply that primary necessity of existence, viz., food, which is perhaps the basic service which Government must render to the people. In the present case, the allegation is of numberturnal, illegal, rice transport, intercepted by officials, and you do numberviolence to language to describe that activity as prejudicial to supplies and services. Anyway, rushing food supplies to a nation in hunger is a companyposite operation of supplies and services essential to the life of the companymunity and the order is number bad because it telescopes both. Shri Anthony relied on the mental vacillation of the detaining officer as disclosed in the affidavit in return filed by the State where and services is struck off after maintenance of supplies. If this reflects the 1 1948 1 K.B, 349. slippery satisfaction of the District Magistrate it is unfortunate. Here some Upper Division Assistant Special , Home Department, has sworn an affidavit, number with personal knowledge but with paper wisdom. It is difficult to appreciate why in return to a 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, miniaturising the files into a few paragraphs, by some one handy in the Secretariat cannot be regarded as satisfactory. This is number a mere punctilio of procedure but a probative requirement of substance. However, in this case, companynsel made numberpoint about this aspect of the affidavit because the relevant material recited in the detention order is almost admitted in the petitioners averments. Even so, the curious striking off in the affidavit of one ground relied on by the District Magistrate in his order is obscure. Had the authority used one or other of the grounds in the alternative, such for example as public order or security of State or maintenance of supplies, it would have failed in law. Ile has to be firm and clear and number doubtful about why he is detaining the man. Either or ill fits into s.3. Not so, when it is cumulative. A man may be detained on grounds A and B but number A or B. Here, the cumulative, number the alternative, is the tenor of the order. Had it been otherwise due care would stand negatived and the order would fail. Fundamental rights are fundamental and administrative indifference is impermissible to encroach beyond the strict lines of the law. Rameshwar Lal 1 elicited some stern observations from Hidayatullah, J., as he then was. The learned Judge said However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter. It must require the closest scrutiny of the material on which the decision is formed, leaving numberroom for errors or at least avoidable errors. The very reason that the companyrts do number companysider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others. Since the detenu is number placed before a Magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the Advisory Board, the grounds must number be vague or indefinite and must afford a real opportunity to make a representation against the detention. Similarly, if a vital ground is shown to be, number-existing so that it companyld number have and ought number to have played a part in the material for companysideration, the companyrt may attach some importance to this fact. The present case hardly fails for this reason since particulars of grounds are given which companyer supplies and services to the companymunity, prejudice to which is the rationale stated in the order. But it is company- 1 1968 2 S.C.R. 505. tended that the particulars furnished relate to supplies only and how services are affected is left vague. If one ground is vague, the order fails. In Rameshwar Lal 1 it was pointed out where some grounds are found to be number are cancelled or given up, the detention cannot be justified if the grounds are number sufficiently precise and do number furnish details for the purpose of making effective representation the detention can be questioned. In this companynection, Shri Anthony forcefully urged his case that services being disrupted was one of the precise reasons for the detention, but numberparticulars which would make out that ground, apart from the distinct ground of preventing supplies, have been given. On the reasoning in Prabhu Dayal the order is illegal, he argued. Mathew, J., brought out the fatal flaw in Prabhu Dayal thus The fact that one of the grounds mentions that paddy and rice had been unearthed and seized from the unauthorised possession of the petitioners from the rice mill in question on the date of the detention order would number necessarily lead to the inference that the petitioners have been indulging in unauthorized milling of paddy, much less that they were smuggling the resultant rice to Maghalaya for earning undue profit. It cannot, therefore, be said that the first ground, namely, that the petitioners are responsible for unauthorised milling of paddy and smuggling of the resultant rice to Meghalaya for earning undue profit, is a companyclusion reached from the fact of seizure of paddy and rice on 25-7-1973 or the seizure of rice on 16-5-1972 from their unauthorized possession at Messrs. Srinivas Basudeo, Fancy Bazar, Gauhati. These are number only cases where one of the grounds of de- tention was vague, but also cases where the detaining autho- rity did number apply its mind at all to one of the grounds of detention. If the detaining authority had numberparticulars before it as regards the smuggling operation how was it possible for it to have been satisfied that the petitioners were smuggling rice to Meghalaya for earning undue profit ? If there was any particular instance of smuggling of the kind in the mind of the detaining authority, it would have been possible for it to specify the particular instance at least in the grounds. Reference was also made in the above case by the learned Judge to Keshav Talpade v. Emperor 2 where it was said If a detaining authority gave four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the 1 1969 2 S.C.R. 505. A.I.R. 1943 F.C.R.1,8. 375. authority or whether the detention order would have been made at all if only one or two good reasons had been before them. The law is thus indubitable that if one ground is vague of denuded of any detail the order, even if other good grounds exist, is bad. The sole enquiry then is whether in substance numbermaterial has been set out here from which a rational inference regarding perverting services to the companymunity has been given at all, as happened in Prabhu Dayal 1 , case. We demur. The order detailing grounds of detention reads thus In pursuance of section 8 of the Maintenance of Internal Security Act, 1971 No. 26 of 1971 , Shri Jagdish Prasad, Proprietor M s Lachmi Bhandar, North Market Road, Upper Bazar, Ranchi is informed that he has been ordered to be de- tained in my order No. 1182/C dated 9th October, 73 on the following grounds - That you on 2-10-72 at about 12 OClock at night were transporting 50 bags of rice weighing on truck No. BRV 6627 which was checked by the Sub-Divisional Magistrate, Sadar, Ranchi. That you produced at the time of checking cash memo book and you asserted that out of 50 bags of rice seized oil the said truck, 15 bags of rice were sold to Biswanath Floor Mill, Khelari, 10 bags of rice to Pramod Floor Mill, Khelari and 10 bags to Shri Kundanlal Khelari. That in support of your assertion as stated in Para No. 2 above, you produced Cash memo No. 1134 dated 2-10-73 showing sale of 15 bags of rice to M s Biswanath Flour Mill, Khelari and you mentioned licence Number of M s Biswanath Flour as 34/69 R On verification by a Magistrate 1st Class, Ranchi, at Khelari from Shri Jagi Ram, Proprietor of M s Biswanath Flour Mill, Khelari, it has been established that the licence number of the firm is 63/68 and number 34/69. Shri Jagi Ram has also asserted that he did number purchase any rice from you or from any other place on 2-10-73. That similarly in support of assertion as stated in Para 2 above, you produced Cash memo No. 1135 dated 2-10-73 showing sale of 10 bags of rice to M s Pramod Flour Mill of Khelari showing their licence number as 31/68 R . On ac- tual verification at Khalari by a Magistrate 1st Class, Ranchi, from Shri Bhagwan Singh, Proprietor of M s Pramod Flour Mill, Khelari it has been established that the licence of M s Pramod Flour Mill, Khelari is 9/72 and number 31/69. It has also been established that M s Pramod Flour Mill, Khelari had numberlicense in 1969. It has also been established that on 2-10-73 M s Flour Mill Khelari did number make any purchase of rice from you or from any other shop. W.P. 1496 of 1973 Judgment dated October 11, 1973. That similarly in support of your assertion as stated in Para No. 2 above, you produced cash memo No. 1137 dated 2-10-73 showing sale of 10 bags of rice. to Shri Kundan Lal of Khelari showing his licence number as 26/67 R . On actual verification at Khelari by a Magistrate 1st Class, Ranchi, from Shri Kundan Lal of Khelari it has been estab- lished that Shri Kundan Lal of Khelari has got numberfoodgrain dealers licence, number he deals in foodgrains. It has also been established that the said Kundan Lal of Khelari did number purchase any rice from you on 2-10-73. In the circumstances I am satisfied that it he is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of supplies and services essential to the companymunity for prevention of such activities I companysider his detention necessary. . . . He who runs and reads will be satisfied, if the statements are true, it is number for the Court to investigate the veracity of these averments that prolix particulars are companymunicated about the midnight movement of 50 bags of rice- a clandestine misadventure companytrary to the companyditions of this wholesalers licence-and, when challenged, reeled off imaginary numbers of licences of dealers some of whom, on verification, had numbercurrent licence and all of whom had disowned the alleged purchases. May be, the petitioner has a good defence but the imprisonment is preventive and number punitive, the companyclusion is based on the executives subjective satisfaction, number the companyrts objective assessment. Even the admitted facts are tell-tale. The petitioner is a licensed wholesale dealer. He can carry on his business only at a place mentioned in his licence and number do transport and sale outside those premises. He can sell only to a wholesale or retail merchant holding a per- mit. He shall issue to every customer a companyrect receipt giving the name, address and licence number of the customer and other details and keep a duplicate of the same. On the recitals in the annexure to the order, the petitioner has, in violation of all these safeguards, attempted to run the gauntlet of the law. An intelligent forecast made by the District Magistrate that the detenu would break the companytrol system and blackmarket in rice cannot be castigated as irrational. The argument is that all this is germane to supplies, number services. Therefore, as earlier explained, the whole order breaks down. We do number dismiss this argument as merely technical or procedural for the eloquent reason given by Mathew, J., if we may say, with deep deference in Prabhu Dayals case 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 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 proce- dure. 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 by law. The need today for maintenance of supplies and services essential to the companymunity cannot be over-emphasised. 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 procedure is rigorously observed, however strange this might sound to some ears. Part IV of the Constitution projects a value judgment which some, jurists have interpreted to mean that in the hierarchy of human rights the right to life ranks highest and if the liberty of the few starve the life of the many the jural order may break down, an aspect on which we do number number need to speak. The position of law is plain but does number apply here. We have, been at pains to explain that illicit transport of foodgrains in the still secrecy of night by one whose business license does number permit it and who gives false excuses when companyfronted, does indulge in an activity with impact on supplies and services. Supplies and stocks, if hijacked by wholesalers, upsets the delicate companytrol scheme. SO also transport and delivery to each centre according to its requirements thrown out of gear by these private operations. And Bihar, hopping harrowingly from drought to floods, can ill-afford to have the wheels of distribution, of which supplies and services are two facets, wobble or break down. Anyway, we cannot hold the order bad, in economics or law. Counsel referred to the quantity being but 50 bags of rice- too small to thwart supplies to the companymunity. While that is of little avail legally, it suggests cynically that larger black-marketers are easy in their bosom while deserving to be behind bars. That is number our pro vince as judges, and our views as citizens are out of place. In companyclusion, we would like to express companycern at prolonged detentions without trial without periodical review of each individual case in changing circumstances.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1897 of 1967. From the Judgment and Order dated the 27th September, 1966, of the Punjab High Court at Chandigarh in Civil Writ No. 1371 of 1963. K. Mehta, K. R. Nagaraja, M. Qamaruddin and Vinod Dhawan, for the appellants. C. Mahajan, O. P. Sharma and R. N. Sachthey, for the respondents. The judgment of the Court was delivered by MATHEW, J. The first appellant is the father of appellants 2 and 3. The property in question belonged to the father of first appellant. By a will executed by him, he bequeathed the property to appellants 2 and 3. After the death of the tastator, mutations in favour of appellants 2 and 3 were effected in the revenue records in the year 1996 B.K. 1939 . The first appellant managed to get the mutation of the land in his name in 1944 for the reason that he wanted to get licence for a gun. In 1955, when the Pepsu Tanancy and Agricultural Lands Act hereinafter referred to as the Act came into force, the first appellant was shown to be the owner of the land in the revenue records. Chapter IV-A of the Act was inserted by Pepsu Act No. 15 of 1956 on October 30, 1956 and by s. 32A of this chapter, ceiling was placed on the holding of land. A suit was filed by appellants 2 and 3 for a declaration that the land belonged to them, that, the mutation of the land in the name of the first appellant in the revenue records was for the purpose of enabling him to obtain a gun licence and that there was numbertransfer of the land to first appellant. The first appellant was the only defendant in the suit. He did number companytest the suit and it was decreed on February 14, 1961. A few weeks later, the question of- declaration of the surplus area of the and in the hands of the, first appellant came up for companysideration before the Collector of Bhatinda. On the basis of the judgment and decree passed by the Civil Court that there was numbertransfer of the land to the first appellant, the Collector, by his order dated March 28, 1961, declared that there was numbersurplus land in the ownership and possession of the first appellant. The Act was amended by Act No. 16 of 1962 and s. 32-DD was introduced into the Act with retrospective effect from October 30, 1956. That section reads 32-DD. Future tenancies in surplus area and certain judgments etc. to be ignored- Notwithstanding anything companytained in this Act, for the purposes of determining the sur- plus area of any person- a a tenancy created after the companymencement of the Pepsu Tenancy and Agricultural Lands Second Amendment Act, 1956, in any area of land which companyld have been declared as the surplus area of such person and b any judgment, decree or order of a companyrt or other authority, obtained after the companymencement of that Act and having the effect of diminishing the area of such person which companyld have been declared as his surplus area shall be ignored. The Collector thereupon made a reference presumably under S. 15 of the Punjab Land Revenue Code for sanction to the Commissioner of Patiala to review his order dated March 28, 1961, as it omitted to include the land in question in the holding of the first appellant on the basis of the judgment and decree. The sanction was given, the Collector reviewed the order and he refused to give effect to the judgment and decree by ignoring them as enjoined by s. 32-DD and included the land in the holding of the first appellant. The appellants filed a writ petition in the High Court of Punjab to quash this order. Before the High Court, three companytentions were raised by the appellants 1 that the Collector had numberjurisdiction to review his order dated March 28, 1961 2 that the order in review was passed without numberice to the appellants-, and 3 that, in any event, the judgment of the civilcourt only made a declaration as regards rights of the parties on the date of the suit and it was number, therefore, a judgment of the nature companytemplated by s. 32-DD. The High Court overruled all the companytentions and held that the order of the Collector was rendered null and void by virtue of the provisions of s. 32-DD and, therefore, the Collector had the power to determine by his order dated May 29, 1963, the surplus area after ignoring the judgment and decree. The High Court said that since mandatory provisions of s. 32-DD which has retrospective operation were number taken into companysideration, the order passed by the Collector on March 28, 1961 was number est as being one made without jurisdiction and that, the order dated May 20, 1963, must be deemed to be the order determining the holding of the first appellant for the purpose of the Act as amended. We are number satisfied that this is a companyrect approach to the question. The Collector purported to act under s. 15 of the Land Revenue Code, which, obviously, has numberapplication. The High Court did number rest its decision on s. 15 of the Punjab Land Revenue Code for holding that Collector had jurisdiction to pass the order dated May 20, 1963. When the Collector passed the order dated March, 28, 1961 determining the surplus area in the hands of the first appellant, he took into companysideration the effect of the judgment of the civil companyrt declaring that the mutation of the name of the first appellant in the revenue record was effected only to enable him to obtain a gun licence. That order of the Col- lector dated March 28, 1961 was a perfectly valid one when it was passed. No one challenged that order and it became final for all purposes. It was only when s. 32-DD was incorporated in the Act with retrospective effect from October 30, 1956 that the question arose whether that order was valid. The Collector companyld number have anticipated the en- actment of the section with retrospective effect and passed the order companyforming to its.provisions. It is rather curious that the draftsman of the amending Act No. 16 of 1962 did number incorporate a provision for reopening orders already passed before s. 32-DD came to be enacted as that section was made retrospective. We cannot subscribe to the view that the order of the Collector passed on March 28, 1961 became null and void merely because be failed to take into account the provisions of s. 32-DD even if by virtue of the fiction it is to be assumed that the section was on the statute book when he passed it. We are aware that in Anisminic Ltd. v. Foreign Compensation Commission 1 the House of Lords has held that even if a tribunal bad jurisdiction to enter upon an enquiry, the fact that it overlooked an applicable mandatory provision in the companyrse of the enquiry Would denude it of its jurisdiction but we doubt whether that principle has any application in a case when the provision overlooked was number in actual existence at the time when the inquiry was companyducted and the order was passed. In other words, we do number think that, we can extend the ratio of the decision in that case to a case where the provision overlooked during the companyrse of the inquiry 1 1967 3 W.L.R. 382, was number on the statute book but was begotten and brought into being subsequently, though with retrospective vitality. The imagination sometimes has to boggle before stark reality. The order of the Collector dated March 28, 1961, cannot, therefore, be regarded as null and void. It Was a valid order when it was passed, and there was numberprovision in the amending Act which enabled the Collector to review it. We cannot stretch the fiction so far as to make the order null and void without further ado. We are also number satisfied that the Collector was acting in companysonance with the principles of natural justice when he passed the order dated May 20, 1963, as he gave numberopportunity to appellants 2 and 3 of being heard. The fact that the first appellant was heard before that order was passed is of numbermoment because the persons who were vitally companycerned in reopening the case were appellants 2 and 3. Admittedly, numbernotice of the proceedings to reopen the case was given to them. It is number for us to speculate what defences were available to them and whether the defences available would have materially affected the destiny of the decision. We do number think it necessary, to decide in this case whether the failure to observe the rule audi alteram partem would per se vitiate an order or whether it is also necessary to show prejudice to the person affected resulting from the failure to observe the rule. Suffice it to say that in the present case we are of the view that if numberice had been given to appellants 2 and 3, they companyld, at any rate, have shown the true nature and character of the judgment of the civil companyrt upon which they relied. It is. relevant to numbere that the judgment itself was number challenged as companylusive by the respondents. We are quite aware that the defendant in the suit in which the judgment was obtained, namely, the first appellant, did number put forward any companytention. But it would be rash to jump to the companyclusion from the mere fact that numberdefence was put forward by the first appellant in the suit that the decree was obtained companylusively. Under s. 43 of the Evidence Act, a person who is number a party to a judgment can show that it was obtained by fraud or companylusion., No such attempt was made in this case. Nor are we satisfied that every judgment which has the apparent effect of diminishing the area of land of a person would be within the ambit of s. 32-DD b . Generally speaking, a judgment adjudicates on .the rights of the parties as they existed before the suit in which it was obtained. A judgment is an affirmation of a relation between a particular predicate and a particular subject. So, in law, it is the affirmation by the law of the legal companysequences attending a proved or admitted state of facts. It is always a declaration that a liability, recognised as within the jural sphere, does or does number exist. A judgment, as the culmination of the action, declares the existence of the right, recognizes the companymission of the injury, or negatives of the allegation of one or the other 1 . A judgment of a companyrt is an affirmation, by the authorised societal agent of the state, speaking by warrant of law and in the name of the See Black on Judgments, Vol. I, 2nd ed., pp. 1-2. state, of the legal companysequences attending a proved or admitted state of facts. Its declaratory, determinative and adjudicatory function is its distinctive characteristic. Its recording gives an official certification to a pre- existing relation or establishes a new one on pre-existing grounds 1 . The judgment of the civil companyrt with which we are companycerned, adjudicated on the rights of the parties as they existed before the suit and when it declared that the mutation was effected number with the idea of transferring the property to the first appellant but for some other reason, the effect of the declaration was that there was numberreal transfer of the property in favour of the first appellant and that the property remained always in the ownership of appellants 2 and 3, numberwithstanding the purported transfer evidenced by the mutation in the revenue records. It is impermissible to give the wide language employed in clause b of s. 32-DD an unconfined operation. When a transfer or mutation is made on account of fraud or mistake and if a suit is filed for a declaration that the transfer or mutation was made on account of fraud or mistake and a judgment obtained, certainly the judgment would number have the effect of diminishing the area of a person which companyld have been declared as a surplus area within the meaning of S. 32-DD b . The legal effect of such a declaration would be that the transferee or the person in whose name the mutation was effected had numberright in the property. The land must have belonged to the first appellant prior to the judgment in order that it might be postulated that the judgment has the effect of diminishing the total area in his hands. To put it differently, prior to the judgment, the land must have belonged to him in order that it may be said that the effect of the judgment is to diminish the area of his holding. If the effect of the judgment is only to declare that the land never belonged to the first appellant, it has number the effect of diminishing the area of land in his possession. We are aware that the object of this provision in an Act like the one under companysideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is numberreason why we should put a companystruction upon the section which its language can hardly bear. It would have been open to the respondents to allege and prove that the judgment was obtained companylusively. But that companyld have been done only after numberice to appellants 2 and 3 and after giving them an opportunity of being heard. Therefore, to say, as the High Court has said, that numberprejudice was caused to appellants 2 and 3 for want of an opportunity to them of being heard, is neither here number there. We think the High Court went wrong in assuming that the Collector was right when he ignored the judgment by, his order dated May 20, 1963 on the ground that it had the effect of diminishing the area of the first appellant which companyld have been declared as his surplus.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1871 of 1967. Appeal from the Judgment and Decree dated the 3rd May, 1965 of the Patna High Court in Appeal from Original Decree No. 345 of 1960. Goburdhan, for the Appellant. K. Sinha and S. K. Sinha, for Respondent No. 1. The Judgment of the Court was delivered by- ALAGIRISWAMI, J.-The question for decision in this appeal is whether the temple of Shree Maharaja Ram Janki Lacchuman Maharaj in the village of Mauza Deogan in the State of Bihar is a religious trust within the, meaning of the term in section 2, clause 1 of the Bihar, Hindu Religious Trusts Act, or a private endowment. Two brothers, Ram Adhikari Choudhary and Ram Lochan Chou- dhary, and Amir prasad Choudhary, son of their brother, for himself and as guardian of Ramakant Prasad Choudhary, who were all members of joint Hindu family executed on 17.6.1921 a samarpannama by which they dedicated certain properties to the above mentioned temple. By that deed of dedication they companypletely divested themselves of any interest in the properties except that they and the members of their families were to be shebaits. By the same deed five persons, who were absolute strangers to the family, were appointed panches to take the rendition of account of the income and expenditure from, the manager, shebait for the time being year after year on the death of the, executants. . . . If in the opinion of the said panches the manager and shebait for the, time being be found illeg and extravagant or there be any loss in respect of the income of the dedicated property or the dedicated property which is at present or be acquired in future, in that case they should discharge the manager shebait for the time being and appoint other deserving manager, shebait, who be deemed according to the companyditions mentioned above, in his place from among the members of the family of the executants. The panches were given power to fill up vacancies in their ranks. On 7-12-1928 Ram Adhikari Choudhary alone executed another samarpannama endowing some further properties in favour of the temple, companytaining similar terms as in the earlier samarpannama but in place of five panches mentioned in the earlier deed he appointed a fresh set of five panches, of whom only one belonged to the earlier set of panches. In this deed also it was provided that if any future shebait fails to manage the dedicated properties, arrange ragbhog to the aforesaid deities properly, show negligence, spoil the property, and incur un -necessary expenses, the said panches will be companypetent to dismiss the said shebait and appoint another one out of the members of the family of me, the executant, who happens to be honest and capable. On 14.7.1934 Ram Adhikari Choudhary executed another deed called ekrarnama referring to the fact that he had adopted Bhagwat Prasad Choudhary, the present first respondent, and that he had been appointed shebait and manager of all the dedicated properties companyered by the earlier two samarpannamas. He also directed that the stipulations companytained in the samarpannama dated the 7th December, 1928 in respect of maintenance of account of income and expenditure of the dedicated property, shall hold good in respect of the management of the dedicated property and maintenance of the account of income and expenditure. He mentioned numberhing about the panches mentioned in the earlier deed, but provided that as to the appointment of shebaits in future, the practice to be followed will be that the shebait in office shall be fully companypetent to appoint during his life time or that after him he who amongst his sons be alive and most capable shall be appointed shebait of the said deities one after another. In case there be numbermale issue in the family of the shebait in office, firstly, amongst the male issue or in case there be numbercapable man amongst the children of the aforesaid persons, the shebait in office shall be companypetent to appoint a shebait amongst the children of my companysin fathers brothers sons brothers, deemed to be capable. But the shebait in office is and shall number be companypetent to appoint a shebait from the family of other persons. It is unnecessary for the purpose of this case to go into the question whether by executing the samarpannama of 7.12.1928 and ekrarnama of 14.7, 1934 Ram Adhikari Choudhary was companypetent to change the provisions of 1921 document. It is number even clear, whether by this document he had intended to do away with the provisions companytained in the earlier documents regarding the panches and their powers. Be that as it may, we are of opinion that the main point regarding all these documents is the fact that the executants had company- pletely divested themselves of any title to or interest in the dedicated properties which thereby became the properties of the deity. The only power which the members of the family thereafter had was to be shebaits and managers of the temple. The Subordinate Judge who tried this suit companysidered that the 1921 document created a trust in which the public were interested. But in this to some extent he seems to have been influenced by a wrong reading of section 2 g i of the Act, especially the words to participate in any religious or charitable ministration under such trust. He mistook the word ministration, to be administration. The difference between the words would make all the difference as. to whether any member of the public companyld be said to be interested in the religious trust. We have called for and perused the companyy of the Act as printed in the official publication and we, find that the word used is ministration and number administration. The question for decision in this case, therefore, has to be decided on the grounds other than the supposed presence of the word administration in section 2 g i . The learned Judges of the High Court on the other hand took the view that the mere fact that the temple was situated within independent companypound walls, though near the house of the founders, companyld number by itself indicate that the temple was meant for public purposes. They further took the view that the companyt over faqirs, sadhus and the occasional festivals would be ancillary to the main purpose, that is, for puja of the deity. As regards the panches mentioned in the documents they were of opinion that they had numberopportunity to function or take any part in the affairs of the temple and the trust properties, and that there was numberhing to indicate that the founder or founders of the trust intended that members of the public should be associated with the management of the temple and the trust properties and the puja. They also held that the mere fact that some other members of the public might be attending festivals like Ram Navami, Janmashtami etc. does number justify the inference that the trust or temple was created for the benefit or worship of the public at large or of some companysiderable portion of it. We find ourselves unable to agree, with the learned Judges of the High Court. We are of opinion that the judgment of the High Court proceeds from failure to appreciate the effect of the judgment of this Court in Deoki Nandan v. Murlidhar 1956 SCR 756 . In that case the dedication of the properties was number as companyplete and as categorical as in the present case. Only in the absence of male issue, the entire immovable property was to stand endowed in the name of the deity. Half of the income from the properties was to be taken by the two waves of the, testator for their maintenance during their lifetime. If a son was born to the testator then the properties were to be divided between the son and the temple. A companymittee of four persons was appointed to look after the management of the temple and its proper-ties, and of these, two were number the relations of the testator. The companymittee may appoint the testators nephew as Mutawalli by their unanimous opinion. The documents in the present case are only slightly different in that they provide for the members of the family. being shebaits. But the panches are all outsiders. In Deoki Nandan v. Murlidhar this Court referred to certain facts as indicating that the endowment is to the public Firstly, there is the fact that the idol was installed number within the precincts of residential quarters but in a separate building companystructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan 1 , it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple, precincts. That is more companysistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time. In the present case the first factor is present. There is numberevidence about-the second. There is also provision for appointment and dimissal of pujaris. Though there is numberevidence in this case, as in that case, that the temple was built at the request of the public we do number think that it makes much difference. We are particularly of the view that as the only right which the family had was to have a member of the family as a manager or shebait and the shebait was subject to superintendence and companytrol by a body of outsiders, who were given the power to remove the shebait if he did number act properly, it is decisive of the question as to the public character of the temple. There companyld be numberbetter indication of the fact that the members of the public were associated with the management of the temple and interest in its management was created in them, thus bringing the matter directly within clause g of section 2 of the Act. The fact that this provision regarding the panches was to companye into effect only after the death of the executants of the deed, does number affect the merits of the question. We are also of opinion that the learned Judges of the High Court were 1 1875 15 Bon. L R. 167, 186. number companyrect in their view that the, fact that members of the public took part in the worship in the temple and the provision for faqirs etc was of numbersignificance, and in relying upon the decision of the Privy Council in Bhagwan Din v. Har Saroop AIR 1940 PC 7 for this purpose. In that case the properties were granted number in favour of an idol or temple, but in favour of a private individual, who was maintaining a temple, and his heirs. The companytention in that case was that subsequent to the grant the family of the grantee must be held to have dedicated the temple to the public for purposes of worship and it was this companytention. that was repelled by the Privy Council by observing that as the grant was initially to an individual a plea that it was subsequently dedicated by the family to the public required to be clearly made out and it was number made out merely by showing that the public was allowed to worship at the temple. But in the present case, as in the case of Deoki Nandan v. Murlidhar, the endowment is in favour of the idol itself and in such circumstances proof of user by the public without interference would be companyent evidence that dedication was in favour of the public. The decision of the Division Bench of the Patna High Court in Ramsaran Das v. Jai Ram Das AIR 1943 Pat 135 that a mere provision for the service of sadhus, occasional guests aid wayfarers in a dedication to an idol does number render the dedication substantially for public purpose must be understood in the background of that case where the properties originally stood in the names of various mahants and the property was to be held by the grantee generation after generation and the Court held that the gift-was to the mahant personally. We are, therefore, satisfied that on the facts of this case the trust should be deemed to be a religious trust as the public are interested in it. The appeal is allowed and the judgment and decree of the High Court set aside, restoring the judgment of the learned Subordinate Judge. The 1st respondent will pay the companyts of the appellant. The C.M.P. No.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Review Petition Crl. No.19 of 1974. Application for review-of the Courts Judgment dated the 9th January, 1974 in. Criminal Appeal No. 70 of 1972. Appeal by Special Leave from the Judgment and Order dated the 16th September, 1971 of the Patna High Court at Patna in Criminal Appeal No. 90 of 1968 Jethmalani, S. N. Misra and S.S. Jauhar for the Petitioner. C. Prasad, for the respondent. The Judgment of the Court was delivered by BEG J.-This is an application for review Of an order passed by us on 19-1-1974 on a Criminal Appeal by special leave. The applicant had been tried, together with his father Jamuna Prasad and step-mother Kalawati Devi, and companyvicted for the murder of his wife Chanda Devi, who, it was alleged, had frequent quarrels with Kalawati. The applicant and his father and certain other persons were also charged under Section 201 Indian Penal Code for disposing of the body of Chanda Devi after the murder knowing that .she bad been murdered. The Trial Court companyvicted the applicant Sawal Das, his father JAmuna Prasad, and his step-mother Kalawati for the offence of murder under Section 302 read with Section 34 I. C. and sentenced each of them to rigorous imprisonment for life. The applicant and his father were also companyvicted under Section 201 1. P. C. but numberseparate sentences were iMposed uPon them for this offence In view of the fact that they had been sentenced under Sections 304/34 1. P. C. The High Court, on an appeal by companyvicted persons, set aside the companyvictions of Kalawati for both offences and ordered her to be set at liberty. It also allowed the appeal of Jamuna Prasad the father of the applicant to the extent that it set aside his companyviction under Sections 302/34 1. P. C., but it maintained his companyviction under Section 201 I. P. C. and sentenced him to three years rigorous imprisonment. It companyverted the companyviction of the applicant under Section 302/34 I. P. C. to a companyviction under Section 302 I. P. C. simpliciter and maintained the sentence of life imprisonment in the following terms The appeal of appellant Sawal Das is dismissed maintaining his companyviction and sentence under Section 201, Indian Penal Code and also maintaining the sentence upon him for the offence of murder but altering the companyviction from Section 302/ 34, to 302, Indian Penal Code simpliciter. The sentences will run companycurrently as already decided by the Court below. Apparantly, the High Court was under the erroneous impression that the applicant Sawal Das had been number only companyvicted but also sentenced by the Trial Court under Section 302 1. P. C. as well as under Section 201 I. P. C. The Trial Court, as already observed, had neither passed a separate sentence under Section 201 I. P. C. upon the appli- cant number indicated what it companyld be. It overlooked that, according to law, a separate sentence ought to be passed for each offence even if sentences are made companycurrent because a Court may as it has in this case, set aside a companyviction so that the need for a separate sentence must necessarily arise in such an event. This Court dismissed the application of applicants father Jamuna Prasad for leave to appeal against his companyviction and sentence under Section 201 I. P. C. It also refused leave to the applicant to companytest any point beyond the companyrectness of his companyviction and sentence under Section 302 1. P. C. This Court, after having companysidered the uncertainties, arising from the facts found, as to whether all the three persons accused of murder or only one of then, and, if so, which of them, companymitted. acts which companyld fasten the liablility for murder upon him or her sing y, came to the companyclusion that the applicant must get the benefit of that uncertainty as the charge under Section 34 1. P. C. had failed. It companyld number be definitely said whether the applicant had actually taken part, and, if so, what that war,, in murdering his wife Chanda Devi. Nevertheless, this Court was companyvinced that a murder of Chanda Devi had been companymitted after the applicant, his father, and his step-mother were seen following her into a room in their house. No one had said what actually took place inside it. As a necessary companysequence of setting aside the companyviction of the applicant under Section 302 I.P.C. while affirming this companyviction under Section 201 I.P.C., as numberspecial leave to appeal was granted against this companyviction,this Court had to disposed the case by parking some order on the sentence under Section 201 I.P.C. Indeed, there was some argument in the companyrse of hearing of the appeal as to what would be the appropriate sentence in this state of affairs. The applicant has number companye up on a technical point. It is that, as numberappeal was filed at all by the State against the failure of the Trial Court to pass a separate sentence under Section 201 I.P.C., or against the failure of the High Court to specify the sentence on the erroneous assumption that some sentence had actually been passed for an offence under Section 201 I.P.C. upon the applicant, this Court companyld number pass any sentence at all number upon the applicant under Section 201 I.P.C. Learned Counsel for the applicant brought to our numberice Jayaram Vithoba Anr. v. The State of Bambay 1 which was a case under the Bombay Prevention of Gambling Act. This. Court had laid down there at p. 1054- 55 When a person is tried for an offence and companyvicted, it is the duty of the Court to impose on him such sentence, as is prescribed therefor. The law does number envisage a person being companyvicted for an offence without a sentence being imposed therefor. When the Trial Magistrate companyvicted the first appellant under Section 5, it was plainly his duty to have imposed a sentence. Having imposed a sentence under section 4 a he obviously companysidered that there was numberneed to impose a like sentence under section 5 and to direct that both the sentences should run companycurrently. But, in strictness, such an order was the proper one to be passed. The appellants then took the matter in revision to the High Court, and companytended that their companyviction under section 5 was bad. The High Court went into the question on the merits, and found them guilty under that section. It was the duty of the High Court, to impose a sentence under section 5, and that is precisely what it has done. The power to pass a sentence under those circumstances is derived from the law which enacts that on companyviction a sentence shall be imposed 1 1955 2 SCR. 1049 1054-55. on the accused, and that is a power which can and ought to be exercised by all the Courts which having jurisdiction to decide whether the accused is guilty or number find that he is. We are of opinion that this power is preserved to the appellate companyrt ,expressly by section 423 1 d which enacts that it can make any amendment or- any companysequential or incidental order that may be just or proper. When a companyviction is affirmed in appeal but numbersentence had been awarded by the trial Magistrate, the award of a sentence is companysequential on and incidental to the affirmance of the companyviction, and it is a just and proper order to be passed under the law. We are unable to agree with the view .expressed in Ibrahim v. Emperor AIR 1940 Bom. 129 that such an order would be an enhancement of the sentence. We think that what was held in the case cited above applies to the case before us also. It shows that a companysequential order, in the circumstances set out above, imposing a sentence which, by an inadvertent, was number passed by the High Court, companyld be passed by this Court. The companytention of the applicant that, as numberparticular sentence was imposed by the High Court or the Trial Court, the applicant must be deemed number to have been sentenced at all is also incorrect. The orders passed show that the applicant was number only companyvicted under Section 201 I.P.C. but his sentence for the offence was ordered to run companycurrently with the life sentence. Only the period of the sentence was number fixed. This was plainly erroneous. The sentence companyld number be companycurrent for the whole period of the sentence under Section 302 I.P.C. Therefore, when that sentence was set aside, the period of the sentence under Section 201 I.P.C. had to be fixed as a necessary companysequence. It was also urged before us that we had number heard the applicant on the question of sentence to be imposed under Section 201 I.P.C. We find, from our judgment, that this was done. However, we have heard the applicant again on this review application after issuing numberice to the State. We do number find sufficient grounds for revising the sentence of 7 years rigorous imprisonment and a fine of Rs.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1179-1782 of 1970. From the Judgment Order dated the 7th March, 1969 of the Andhra Pradesh High Court in Writ Petition Nos. 1042-1045 of 1964. C. Manchanda, B. B. Ahuja and R. N. Sachthey, for the Appellant In all the Appeals . V. Gupte, Anwarulla Pasha, J. B. Dadachanji, A. Subba Rao and Anjali K. Varma, for the Respondents In all the Appeals . N. Phadke, A. V. Rangam, Gopal Nair and A. Subhashini, for the Interveners In all the Appeals . The Judgment of the Court was delivered by GUPTA, J. These are four appeals by certificate from a companymon Judgment of the High Court of Andhra Pradesh at Hyderabad by which the High Court directed the appellant, Income Tax Officer, Income Tax-cum-Wealth Tax Circle 11, Hyderabad to refrain from proceeding against the respondent under sec. 147 a of the Income Tax Act, 1961. The appellant had served on the respondent, Nawab Sahib Mir Osman Alikhan Bahadur, H. E. H., the Nizam of Hyderabad, numberices under sec. 148 of the income Tax Act, 1961 stating that he had reasons to believe that income of the respondent chargeable to tax for the assessment years 1955-56, 1956-57, 1957-58 and 1958-59 had escaped assessment within the meaning of sec. 147 of the Act and proposing to reassess the income for the said assessment years. The respondent challenged the validity of the proceedings under sec. 147 sought to be initiated by filing four writ petitions in the High Court of Andhra Pradesh at Hyderabad. The High Court by the impugned Judgment allowed all the four petitions and prevented the Income Tax Officer from proceeding further under sec. 147 of the Income Tax Act, 1961. In these appeals the appellant questions the companyrectness of the High Courts decision. The material facts are briefly these. Assessments for the aforesaid four years were companypleted respectively on March 18, 1958, March 19, 1958, July 20, 1958 and March 28, 1961 under the income Tax Act of 1922. After the returns in respect of the said years were filed, the Income Tax Officer called upon the respondent to state his relationship with four ladies by putting three queries to him. The queries were as follows The rites and ceremonies attendant on legal marriages, according to Muslim law and how they were observed in the case of each of the four ladies viz., Dulhan Pasha Begum Saheba, Mazharunnisa Begumsaheba, Laila Begum Saheba and jani Begum Saheba. What legal status is accorded to the children of Mazharunnisa Begum Saheb, Laila Begum Saheba and Jani Begum Saheba, vis-a-vis, the children of the late Dulhan Pasha Be-gum Saheba? Any other factors from the point of view of the religion which distinguished the status of late Dulhan Pasha Begum Saheba from the other three ladies. It appears that on May 1, 1950, August 6, 1950 and December 29, 1950 the respondent had executed three trust deeds, described respectively as Family Trust, Miscellaneous Trust and Family Pocket Money Trust, for the benefit of Mazharunnissa Begum, Laila Begum, Jani Begum and the minor children of the last two. in the aforesaid trust deeds the three ladies were described as wives of the respondent who was also referred to as the father of their minor children. In one of these documents, viz., the family Pocket Money Trust Deed, the description of Laila Begum and Jani Begum as wives was preceded by the expression ladies of position. Under sec. 16 3 of the income Tax Act of 1922, in companyputing the total income of any individual for the purposes of assessment, the income of the wife or minor child of the assessee arising from assets transferred by the husband to the wife or the minor child otherwise than for adequate companysideration was to be included. There is numberdispute that these trust deeds were before the Income Tax Officer before he companypleted the assessments for the said four years. On September 9, 1957 Shri C. B. Taraporewala, Financial Adviser and General Power of Attorney Agent of the respondent, filed a statement before the Income Tax Officer in reply to these queries. In this reply it was stated that the late Dulhan Pasha Begum Saheba was the only legally wedded wife of the respondent, that with the other three ladies the respondent had number gone through the essential formalities of a valid marriage under Mohanunedan Law, that these three ladies who occupied high social position and who were received in his palace were ladies of position and in view of the special favours bestowed upon them they were referred to as wives in the said three trust deeds though in the strict legal sense the description was incorrect and the children of these ladies were number tile legitimate children of the respondent and had numberlegal status as such. This explanation apparently satisfied the income Tax officer because in assessing the total income of the respondent for the said four years he did number include the income of these three ladies and their minor children arising out of the trust properties. It is also admitted that the beneficiaries of the trusts were separately assessed on the income derived from the trusts along with their individual income. On March 13, 1964 the numberices under sec. 148 of the Income Tax Act, 1961 were issued seeking to reopen the assessments under sec. 147 of the Act. After some companyrespondence with the income Tax Officer, the authorized representatives of the respondent, M s. S. G. Dastgir and Company, Chartered Accountants, filed supplemental returns for the aforesaid four years without prejudice to the respondents right to question the valid it of the numberices. The supplemental returns merely affirmed the original returns filed by the respondent. By his letter dated April 15, 1964 addressed to M s. Dastgir and Company, the Income Tax officer stated the reasons for reopening the assessments under sec. 147 a . Referring to two subsequent trusts named Fern Hill and Race View created by the respondent on March 21,1957 and December 5, 1957 respectively, it was stated that the material facts relating to these two documents were number brought to the numberice of the Department in the companyrse of the original assessment pro- ceedings. Fern Hill Trust was created for the benfit of the children of Laila Begum and Race View Trust for the benefit of Jani Begum and her son Imdad Jah Bahadur. in the Fern Hill Trust Deed Laila Begum was described as wife of the respondent and her children as the children of the respondent by her. Similarly in the Race View Trust Deed Jani Begum was described as wife of the respondent and lmdad Jah Bahadur as his son by her. According to the Income Tax Officer the facts that Laila Begum and Jani Begum were described as wives and their children as the children of the respondent in the Trust Deeds executed in 1957 indicated that certain material facts relevant for the assessment years were number disclosed to the Department, that the statement given by the Financial Adviser is. untrue and that thereby income chargeable to tax has been under assessed. In his letter the Income Tax Officer also referred to sec. 268 of Mullas Principles of Mohammedan Law which enumerates the circumstances from which marriage will be presumed in the absence of direct proof and stated that the respondent having acknowledged the three ladies as his wives and their children as his children in the Trust Deeds executed in 1950 and 1957 all the circumstances mentioned in see. 268 were present. The letter companycluded by saying that it was established that the ladies and their children were the legal wives and legitimate children of the respondent. The companymon companynter-affidavit affirmed by the Income Tax officer in answer to the writ petitions was on similar lines to the aforesaid latter. Admittedly Fern Hill and Race View Trust Deeds executed in 1957 were number produced before the Income Tax officer when he made the original assessments for the four years in question. in the companynter affidavit it was alleged that these two Trust Deeds were material and primary facts necessary for companypleting the assessments of the petitioner-assessee for the relevant assessment years and it was submitted that if the said two documents had been disclosed at the time of the original assessments, the income Tax Officer would have certainly arrived. at the companyclusion that he came to in his letter dated April 15, 1964. Clause a of Sec. 147 of the Income Tax Act, 1961 under which the assessments were sought to be reopened, so far as it is relevant for the present purpose, provides that if the Income Tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for any year, income chargeable to tax has escaped assessment for that year, he may assess or reassess such income for the assessment year companycerned. The High companyrt held. that the reasons assigned for reopening the assessments did number fall within the scope of omission or failure on the part of the assessee to disclose fully and truly all material facts, that all the material facts were before the Department 15-255 Sup.Cl/75 when it made the assessments in question and the trusts created in 1957 did number throw a different light on the matters already disclosed. The question is whether the existence of the two trust deeds executed by the respondent in 1957 was a material fact necessary for his assessment for the relevant assessment years. The fact that the three ladies and their children have been described in these two documents as wives and children of the respondent would have been material if the description were anything new that the Income Tax Officer happened to discover for the first time. The three trust deeds of 1950 also companytained the same description of these ladies and their children and the Income Tax Officer accepted the statement made by respondents Financial Adviser Shri G. B. Taraporewala seeking to explain why the ladies had been described as wives therein. It is true that the trust deeds of 1957 were number produced at the time of the original assessment but we do number see what difference production of these two additional documents companyld have made which companytain the same description of the ladies. Neither the letter addressed to the respondents authorised representatives, M s. S. G. Dastgir and Company, by the Income Tax Officer on April 15, 1964 number the companynter- affidavit filed in the High Court explains this point. The documents of 1957 companyform to those of 1950 in material particulars the trust deeds of 1957 only repeat what the deeds of 1950 had disclosed. Non-production of the documents executed in 1957 at the time of the original assessments cannot therefore be regarded as number-disclosure of any material fact necessary for the assessment of the respondent for the relevant assessment years. The High Court was right in holding that the Income Tax officer had numbervalid reasons to believe that the respondent had omitted or failed to disclose fully and truly all material facts and companysequently had numberjurisdiction to reopen the assessments for the four years in question. Having second thoughts on the same material does number warrant the initiation of a proceeding under sec. 147 of the Income Tax Act, 1961. Mr. Manchanda, learned companynsel for the appellant, took us through several sections of Mullas Principles of Mohammedan Law including sec. 268 and submitted that in the circumstances of the case it must be presumed that the three ladies were the legally wedded wives of the respondent. The law has number changed since the original assessments were made and it was open to the Income Tax Officer to make that presumption at the time. If he should have but did number do so then, he cannot avail of sec. 147 to companyrect that mistake. In any event, we are number called upon in this proceeding to record a finding on the question whether in fact the ladies were respondents legally wedded wives. We are companycerned only with the question whether the companydition precedent to the exercise of jurisdiction under sec. 147 exists in this case we have found that it does number. Mr. Manchanda also companytended that the High Court exercising jurisdiction under Art. 226 of the Constitution had numberpower to investigate whether on the material before him the Income-Tax Officer was justified in proceeding under sec. 147 of the Income Tax Act, 1961. He relied, among others, on the following decisions in support of his companytention S. Narayanappa and others vs. Commissioner of Income Tax, Bangalore, 1 Kantamani Venkata Narayana and Sons vs. First Additional Income Tax Officer, Rajahmundry, 2 Commissioner of Income Tax, Gujarat vs. A. Raman Co. 3 and of companyrse, Calcutta Discount Co. Ltd. vs. Income tax Officer, Companies District I Calcutta, 4 We do number think that these decisions help him. In this case, the decision of the High Court is number that the material before the Income Tax Officer was insufficient or that he had failed to draw the companyrect companyclusion from the material before him but that numberfresh material had companye to light justifying reopening of the assessments.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 170 of 1969. Appeal from the Judgment and Order dated the 15th April, 1968 of the Allahabad High Court Lucknow Bench in Special Appeal No. 258 of 1966. L. Sanghi and S. P. Nayar, for the appellants. P. Lal, for respondent No. 1. The Judgment of the Court was delivered by ALAGIRISWAMI, J.-Mrs. Zohra Naqvi, the wife of a Police official of the then United Provinces number Uttar Pradesh was in Teheran in the year 1947 alongwith her husband. She purchased a property from the Improvement Trust, Lucknow for a sum of Rs. 6,400/-. It appears that Mrs. Naqvi did number companye to India at all till 1962 when she sold this property to the sons of respondent No. 1 and one Mrs. Jain. On 24-6- 1949 the, United Provinces Administration of Evacuee Property Ordinance, 1949 came into force. This would be a proper stage at which the relevant provisions of the Ordinance should be numbericed. Under that Ordinance evacuee property means any property in which an evacuee has any right or interest, or which is held by him under any deed of trust or other instrument, and an unauthorised person means any person whether empowered in this behalf by the evacuee or otherwise who, after the 15th day of August, 1947, has been occupying, supervising or managing the property of an evacuee without the approval of the Custodian. Under section 5 of that Ordinance all evacuee property situate in the United Provinces shall vest in the Custodian. We may number companytinue the narration of events. Before the purchase of this property the 1st respondent had applied to the 1st appellant to be informed whether the property in question is an evacuee property and received a reply in the negative. But on 25-3-1963 the 1st appellant passed an order declaring the property as an evacuee property. It should be numbericed that an evacuee property automatically vests in the Custodian under section 5 and the numberification under section 6 of the Ordinance is number a necessary companydition for such vesting. Section 6 only enables the Custodian to numberify the properties which have already vested in him under the Ordinance. On 7-3-1964 a numberification was issued acquiring the disputed plot under section 12 of the Displaced Persons Compensation Rehabilitation Act, 1954. The 1st respondent filed a revision petition to the Assistant Custodian General who directed that the property should be handed over to the 1st respondent but that the sum of Rs. 42,000/- being the sale price of the property, which had been deposited with the Allahabad Bank, Lucknow companyld be taken by the Custodian. The 1st respondents application to the 1st appellant to issue a sale certificate in his favour number having produced my result he filed a writ petition out of which this appeal arises. The petition was dismissed by a learned Judge of the Allahabad High Court but on appeal a Division Bench of the High Court allowed the respondents appeal. This appeal has been filed on the basis of a certificate granted by the High Court. The learned Single Judge took the view that Mrs. Naqvi was an evacuee because she had left Uttar Pradesh after the 1st day of March, 1947 to a place outside the territories of India. The Assistant Custodian General had also taken a similar view when the revision petition was filed by 1st respondent before him. The Division Bench on the other hand took the view that as Mrs. Nacivi had number left the United Provinces on or after 1st March, 1947 but her husband had been posted in Teheran since some time in 1942 and she had migrated to Pakistan from Teheran after 1st March, 1947 it would number make her evacuee under section 2 c i of the Ordinance. It was urged before the Bench that she would be an evacuee under section 2 c ii of the Ordinance but the Bench refused to companysider that question. Thus the first question to be decided is whether Mrs. Naqvi was an evacuee. As it is clear that she left the United Provinces even before the 1st March, 1947 and was in Teheran till she left for Pakistan from there, clause 2 c i would number apply to her but clearly clause 2 c ii would apply to her. There is numberdoubt that she was resident in Pakistan after the partition of India and she was, therefore. unable to occupy, supervise or manage here property in the United Provinces. We do number think that the learned Judges of the Division Bench who heard the appeal were right in refusing to companysider this aspect of the matter. The 1st respondent in his writ petition clearly averred that as Mrs. Naqvi migrated to Pakistan from Persia she companyld number be treated as an evacuee. The order passed by the 1st appellant also pro- ceeded on the basis that Mrs. Naqvi had migrated to Pakistan from Persia in 1948 and was still living there. He also referred to the fact that she had sent the money from Teheran in 1947 and the possession of the property had been taken by her son who came to India in 1948 for that purpose specifically whereas Mrs. Naqvi companytinued to reside in Pakistan till she came to India in 1962 for selling the plot and that she was a Pakistani national, In the revision peti- tion filed before the Assistant Custodian General by the 1st respondent also it is admitted that Mrs. Naqvi migrated to Pakistan from Teheran as was held by the Assistant Custodian. Therefore, merely because in his order in revision the Assistant Custodian General had relied upon section 2 c i to hold that Mrs. Naqvi was an evacuee that cannot prevent the companysideration of the fact whether she was an evacuee under section 2 c ii . There can be numberdoubt that she was an evacuee within the meaning of that word under section 2 c ii and the property in question was an evacuee property. The property automatically vested in the Custodian by virtue of the provision of section 5 of the United provinces Ordinance No. 1 of 1949. The U. P. Ordinance No. 1 of 1949 was repealed by section 58 of the Central Administration of Evacuee Property Act , 1950. The result of such repeal and reenactment was that the property in question which had vested in the Custodian companytinued to vest in him numberwithstanding the repeal of the Ordinance and there was numberneed to take any action under section 7 of that Act. Such action is necessary only in cases where the property had number already vested under the provisions of the repealed Ordinance. We do number companysider that the fact that the 1st respondent had made an enquiry from the Assistant Custodian whether the property in question was an evacuee property and was told that it was number makes any difference to this question, We do number think that the reliance placed on behalf of the respondents on the decision in Robertson v. Minister of Pensions 1 where Lord Denning observed I companye therefore to the most difficult question in the case. Is the Minister of Pensions bound by the War Office letter ? I think he is. The appellant thought, numberdoubt, that. as he was serving in the army. his claim to attributability would be dealt with by or through the War Office. So he wrote to the War Office. The War Office did number refers into the Minister of Pensions. They assumed authority over the matter and ass ured the appellant that his disability had been accepted as attributable to military service. He was entitled to assume that they had companysulted any other departments that might be companycerned, such as the Ministry of Pensions, before they gave him the assurance. He was entitled to assume that the board of medical officers who examined him were recognised by the Minister of Pensions for the purpose of giving certificates as to attributability. Can it be seriously suggested that, having got that assurance, he was number entitled to rely on it In my, opinion if a government department in its dealings with a subject takes it upon itself to assume authority upon a matter with which he is companycerned, he is entitled to rely upon having the authority which it assumes. He does number know, and cannot be expected to know, the limits of its authority. The department itself is clearly bound, and as it is but an agent for the Crown, It binds the Crown also, and as the Crown is bound, so are the other departments, for they also are but agents of the Crown. The War Office letter therefore binds the Crown and, through the Crown, it binds the Minister of Pensions. The function of the Minister of Pension is to administer the royal warrant issued by the Crown, and be must so administer it as to honour all assurances given by or on behalf of the Crown. can help the respondents. That decision has been disapproved by the House of Lords in Howell v. Falmouth Boat Construction Co. Ltd. 2 Lord simonds referred to the observation of Lord Denning in Robertson v. Minister of Pensions 3 and observed My Lords, I know of numbersuch principle in our law number was any authority for it cited. The illegality of an act is the same whether or number the actor has been misled by an assumption of authority on the part of a government officer however high or low in the hierarchy. I do number doubt that in criminal proceedings it would be a material factor that the actor had been thus misled if knowledge was a necessary element of the offence, and in any case it would have a bearing on the sentence to be imposed. But 1 1949 1 K. D. 227. 2 1951 A.C. 837 at 845. 3 1949 1 K. D. 227. that is number the question. The question is whether the character of an act done in face of a statutory prohibition is affected by the fact that it has been induced by a misleading assumption of authority. In my opinion the answer is clearly No. Such an answer may make more difficult the task of the citizen who is anxious to walk in the narrow way but that does number justify a different answer being given. Lord Normand in dealing with this question observed at page 849 after referring to the statement of law by Lord Denning As I understand this statement, the respondents were, in the opinion of the learned Lord Justice, entitled to say that the Crown was barred by representations made by Mr. Thompson and acted on by them from alleging against them a breach of the statutory order, and further that the respondents were equally entitled to say in a question with the appellant that there had been numberbreach. But it is certain that neither a minister number any subordinate officer of the Crown can by any companyduct or represen- tation bar the Crown from enforcing a statutory prohibition or entitle the subject to maintain that there has been numberbreach of it.,, We are. of opinion that the view taken by the House of Lords is the companyrect one and number the one taken by Lord Denning. We see numberhing in the decisions of this Court in Ebrahim Abbobaker and Another v. Tek Chand Dolwani 1 or Zafar Ali Shah V. Assistant Custodian of Evacuee Property 2 which can be of any help to the respondents. This appeal, therefore, would have to be allowed. But there is one further question to be decided. Once it is declared that this property is an evacuee property it is obvious that the sum of Rs. 42,000/- paid by the 1st respondent to Mrs. Naqvi and deposited by her in the Allahabad Bank, Lucknow cannot also be an evacuee property.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2415 of 1972 and 128 to 132 of 1973. Appeals by Special Leave from the Judgments and Order dated the 14th February, 1972 of the Madras High Court in WPs. Nos. 3062/71 and 3069-3073 of 1971. V. Gupte In CA No. 128/73 , K. S. Ramamurthi In CA No. 129 of 1973 and 2415 of 1972 and A. T. M. Sampath, for the appellants in CAs. Nos. 2415/72 and 128-132/73 . Govind Swaminathan, Advocate Gen. for the State of Tamil Nadu, N. S. Sivan, A. V. Rangam and A. Subhashini, for the respondent in C.A. 2415/72 and 128-129/73 . T. M. Sampath, for the petitioners in WPs. Nos. 1051- 54, 1120, 1463-65 and 488-495/73. C. Agarwala, for the petitioners in WPs. No. 994 and 1312/73 R. Nambiar, for the petitioners in WP. No,. 1850/73 . Natesan In WP. Nos. 253 and 394/73 , A. K. Sen In 395/73 and K. Doraiswami and K. Jayaram, for the petitioners in all rest of petitions . Govind Swarninadhan, Advocate Gen. for State of Tamil Nadu A. V. Rangam and A. Subhashini, for the respondents In all the petitions . The Judgment of the Court was delivered by MATHEW, J.-In the Civil Appeals, the questions for companysideration are whether the enhancement of motor vehicles tax on omnibuses imposed by G.O. No. 2044-Home dated 20-9- 1971 by the Government of Tamil Nadu from Rs. 30 per seat per quarter to Rs. 100/- per seat per quarter is companystitutionally valid and whether the distinction made between companytract carriages and stage carriages in the matter of levy of vehicle tax offends Article 14 of the Consti- tution. The writ petitions assail the validity of the aforesaid numberification on the additional ground, namely, that the tax levied under the numberification imposes restrictions on the freedom of trade, companymerce and intercourse guaranteed by Article 301 of the Constitution and that, as the numberification is number law passed after obtaining the previous sanction of the President of India, the tax is invalid. We take up for companysideration Writ Petition No. 253 of 1973 and the judgment therein will dispose of the Civil Appeals and the Writ Petitions. The petitioner is the owner of an omnibus which has a capacity to accommodate 54 passengers. He obtained a permit on 16-5-1968 to operate it as a companytract carriage and was paying tax at the rate of Rs. 30/- per seat per quarter under the Madras Motor Vehicles Taxation Act 3 of 1931 hereinafter called the Act . This Act was passed with a view to abolish levy of tolls in the Presidency of Madras and the, levy of taxes on motor vehicles by local bodies. The rate of tax which originally stood at Rs. 10/- per seat per quarter was increased to Rs. 30/- per seat per quarter when the systems of issuing permits for omnibuses by the regional transport authorities came into vogue. The Government of Tamil Nadu by G.O.M.S. 923-Home dated 19-4- 1969 increased the rate of tax with respect to omnibuses from Rs. 30/- to Rs. 50/- per seat per quarter with effect from 1-7-1969. It was announced that this measure was with a view to avoid unhealthy companypetition between omnibuses and regular stage carriage buses and to put down the misuse of omnibuses. The owners of omnibuses questioned the validity of the numberification in Writ Petition No. 1412 of 1969, etc. During the pendency of those writ petitions, the government increased the rate of tax from Rs. SO - to Rs. 100/- per seat per quarter with effect from 1-9-1970 by G.O.M.S. 434- Home dated 27-2-1970. The avowed object of this measure also was to avoid unhealthy companypetition of omnibuses with regular stage carriages. A number of writ petitions were, filed challenging the validity of this numberification. By a companymon judgment dated 29-1-1971, the High Court allowed the writ petitions and quashed the aforesaid numberifications holding that the numberifications were a device to eliminate the operation of companytract carriages and that the numberifications were number made in the exercise of the power of taxation. The result was that the rate of tax was restored to Rs. 30/- per seat per quarter. Appeals were preferred against this decision to this Court. Thereafter, the Government of Tamil Nadu issued G.O.M.S. 2544 Home dated 20-1-1971 enhancing the tax from Rs. 30/- to Rs. 100/per seat per quarter with effect from 1-7-1971. It is this G.O. which the petitioner challenges in the writ petition. Counsel for the petitioner submitted, firstly, that the numberification was number a measure of taxation but a device to eliminate the companypetition of omnibuses with stage carriages run by Government and, therefore, the tax is bad. Secondly, he submitted that the tax is neither companypensatory number regulatory in character and, therefore, the tax is a restriction on the freedom of trade, companymerce and intercourse guaranteed under Article 301 and as the numberification is number a law passed with the previous sanction of the President, it would number be saved by Article 304 b . In other words, the submission was that since the tax operates as restriction on the freedom of trade, companymerce and intercourse within the State, it companyld be imposed only by a law which had obtained the previous sanction of the President and as the numberification in question was issued by- the Government in the exercise of its delegated power, it was number a law made by the legislature number companyld the previous sanction of the President be obtained for it. The tax was imposed by the Government in the exercise of its power under s. 4 of the Madras Motor Vehicles Taxation Act, 1931. That section provides 4 1 The State Government may, by numberification in the official gazette, from time to time direct that a tax shall be levied on every motor vehicle using any public road in the Presidency of Madras, The numberification issued under sub- section 1 shall specify the rates at which, and the quarter from which, the tax shall be levied Provided that the rates shall number exceed the maxima specified in Schedule II. A numberification under sub-section 1 may be issued so as to have retrospective effect from a date number earlier than the 1st day of July, 1962. Provided that a numberification under sub-section 1 ill respect of the rates as amended by the Madras Motor Vehicles Taxation Amendment Act, 1967 shall number have retrospective effect from a date earlier than the 1st day of July, 1967. 15-L319SupCI/75 As the state legislature was companypetent to pass the Act and as the Government is authorised under S. 4 to levy the tax, the question of the motive with which the tax was imposed is immaterial. To put it differently, there can be numberplea of a companyourable exercise of power to tax if the Government had power to impose the tax and the fact that the imposition of the tax was for the purpose of eliminating companypetition would number detract from its validity. if an authority has power to impose a tax, the fact that it gave a wrong reason for exercising the power would number derogate from the validity of the tax. Therefore, there is numbersubstance in the first companytention. The second submission raises the point whether tax in question is a restriction on the freedom of trade, companymerce and intercourse guaranteed by Article 301 of the Constitution. In Atiabari Tea Co. v. State of Assam 1 hereinafter referred to as Atiabari Case , the appellants challenged the validity of the Assam Taxation on Goods carried by Roads and Inland Waterways Act, 1954, on the ground that it violated Article 391 and was number saved by Article 304 b . By a majority of 4 to 1, this Court upheld the challenge and declared the Act to be void. The majority said that it would be reasonable and proper to hold that restrictions, freedom from which is guaranteed by Article 301, would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade and that taxes may and do amount to restrictions, but it is only such taxes as directly and immediately restrict trade hat would fall with in the purview of Article 301. Sinha, C.J. dissented. He held that taxation simpliciter, as opposed to discriminatory taxation, was number within Article 301. Shah, J. who delivered a separate judgment said that Article 301 guaranteed freedom in its widest amplitude-freedom from prohibition, companytrol, burden or impediment in companymercial intercourse. The direct and immediate restriction test had great adverse effect upon the financial autonomy of states. For instance, a law passed by a state legislature under entry 56 in List 11, namely taxes on goods and passengers carried by road or on inland waterways would be a restriction which is immediate and direct on the movement part of trade and companymerce and would be bad. This means that Entry 56 in List 11 is rendered otiose. In view of the grave impact of this judgment, when appeals from Rajasthan High Court came up for companysideration in Automobile Transport Rajasthan Ltd. v. State of Rajasthan 2 hereinafter referred to as the Automobile Case , a larger Bench was companystituted and that Bench companysidered the question once again. The appellants in that case impugned the Rajasthan Motor Vehicles Taxation Act, 1951, inter alia as violating Article 301. The High Court dismissed the petitions and this Court, by a majority of 4 to 3 held that the Act was valid and dismissed the appeals. The case practically overruled the decision in Atiabari Case 17 , insofar as it held that if a state legislature wanted to impose tax to raise moneys necessary in order to 1 1961 1 S.C.R. 809. 2 1963 1 S.C.R. 491. maintain roads, that companyld only be done after obtaining the sanction of the President as provided in Article 304 b . In Khverbari Tea company Ltd. v. The State of,, Assam 1 , it was said that the decision in Atiabar. case was affirmed in Automobile Case with a clarification that-regulatory measures or measures imposing companypensatory tax do number companye within the purview of restrictions companytemplated in Article 301 and that such measures need number companyply with the requirement of the provisions of Article 304 b . In whatever way one may choose to put it, the effect of the majority decision in the Automobile Case is that a companypensatory tax is number a restriction upon the movement part of trade and companymerce. Article 301 imposes a general limitation on all legislative power in order to secure that trade, companymerce and intercourse throughout the territory of India shall be free. Article 302 gave power to Parliament to impose general restrictions upon that freedom. But a restriction is put on this relaxation by Article 303 1 which prohibits Parliament from giving preference to one State over another or discriminating between one State and another by virtue of the entries relating to trade and companymerce in Lists I and III of Seventh Schedule and a similar restriction is placed on the states, though the reference to the states is inappropriate. Each of the clauses of Article 304 operates as a proviso to Articles 301 and 303. Article 304 a places goods imported from sister-states on a par with similar goods manufactured or produced inside the state in regard to state taxation within the allocated filed. Article 304 b is the State analogous to Article 302, for it makes the states power companytained in Article 304 b expressly free from the prohibition companytained in Article 303 1 by reason of the opening words of Article 304. Whereas in Article 302 the restrictions are number subject to the requirement of reasonableness, the restrictions under Article 304 b are so subject. The word free in Article 301 does number mean freedom from regulation. There is a clear distinction between laws interfering with freedom to carry out the activities companystituting trade and laws imposing on those engaged therein rules of proper companyduct or other restraints directed to the due and orderly manner of carrying out the activities. This distinction is described as regulation. The word regulation has numberfixed companynotation. Its meaning differs according to the nature of the thing to which it is ,applied. The true solution, perhaps, in any given case, companyld be found by distinguishing between features of the transaction or activity in virtue of which it fell within the category of trade, companymerce and intercourse and those features which, though invariably found to occur in some form or another in the transaction or action are number essential to the companyception. What is relevant is the companytrast between the essential attribute of trade and companymerce and the incidents of the transaction which do number give it necessarily the character of trade and companymerce. Such matters relating to hours, equipment, weight size of load, lights, which form the incidents of transportation, even if inseparable, do number give the transaction its essential character of trade or companymerce. Laws for government of such incidents regulate 2 . 1 1964 5 S.C.R.975. See Wynes, Legislative, Executive and Judicial Powers, p. 270. Regulations like rules of traffic facilitate freedom of trade and companymerce whereas restrictions impede that freedom. The companylection of toll or tax for the use of roads, bridges, or aerodromes, etc., do number operate as barriers or hindrance to trade. For a tax to become a prohibited tax, it has to, be a direct tax, the effect of which is to hinder the movement part of-the trade. If the tax is companypensatory or regulatory, it cannot operate as a restriction on the freedom of trade or companymerce. The question for companysideration then is, whether the tax here, is a companypensatory tax. Strictly speaking, a companypensatory tax is based on the nature and the extent of the use made of the roads, as, for example, a mile-age or ton-mileage charge or the like, and if the proceeds are devoted to the repair, upkeep, maintenance and depreciation of relevant roads and the companylection of the exaction involves numbersubstantial interference with the movement. The expression reasonable companypensation is companyvenient but vague. The standard of reasonableness can only lie in the severity with which it bears on traffic and such evidence of extravagance in its assessment as companye from general companysiderations. What is essential for the purpose of securing freedom of movement by road is that numberpecuniary burden should be placed upon it which goes beyond a proper recompense to the state for the actual use made of the physical facilities provided in the shape of a road. The difficulties arc very great in defining this companyception. But the companyception appears to be based on a real distinction between remuneration for the provision of a specific physical service of which particular use is made and a burden placed upon transportation in aid of the general expenditure of the state. It is clear that the motor vehicles require, for their safe, efficient and economical use,, roads of companysiderable width, hardness and durability the maintenance of such roads will companyt the government money. But, because the users of vehicles generally, and of public motor vehicles in particular, stand in a special and direct relation to such roads, and may be said to derive a special and direct benefit from them, it seems number unreasonable that they should be called upon to make a special companytribution to their maintenance over and above their general companytribution as taxpayers of the State. If, however, a charge is imposed, number for the purpose of obtaining a proper companytribution to the maintenance and upkeep of the road, but for the purpose of adversely affecting trade or companymerce, then it would be a restriction on the freedom of trade, companymerce or intercourse 1 . In the companynter-affidavit filed on behalf of the State, the averment is that Government has incurred an expenditure of Rs. 19.51 crores in the year 1970-71 on the maintenance and companystruction of roads while the receipts from out of vehicle tax is only Rs. 16.38 crores. It is also stated therein that the amount of Rs. 19.51 crores did number include the grants made to local bodies like municipalities and Pancha- yat Unions for the repair and maintenance of roads within their jurisdiction Road companyts, according to the affidavit, number only includes 1 see Freightlines Construction Holding Ltd. v. State of New South Wales, 1 1968 A.C. 625. he companyt of companystruction and maintenance of roads, but also the companyts elating to the erection and maintenance of traffic companytrol devices, safety measures, improvements to old layouts and the increased establishment of enforcement staff. In the Automobile Case supra this Court said that it would number be right to say that a tax is number companypensatory because the precise or specific amount companylected is number actually used for providing any facilities and that a working, test for deciding whether a tax is companypensatory or number is to enquire whether the trades people are having the use of certain facilities for the better companyduct of their business and paving number patently much more than what is required from providing the facilities, and that it would be impossible to judge the companypensatory nature of a tax by a meticulous test and, in the nature of things, it companyld number be done. It is well to remember the practical administrative difficulties in imposing a tax at a rate per mile. It is always difficult to evolve a formula which will in all cases ensure exact companypensation for the use of the road by vehicles having regard to their type, weight and mileage. Rough approximation, rather than mathematical accuracy, is all that is required. In all such matters, it is well to remember the profound truth of the sayings it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits 1 . The Supreme Court of U.S.A. takes the view that the validity of a tax on vehicles must be determined number by way of a formula but rather by the result, and in several cases, the companyrt has upheld the validity of a flat fee number geared to weight, mileage or seating capacity, provided the fee is reasonable in amount and is number shown to be in excess of the companypensation for the use of the roads 2 . According to that Court, since the purpose of the tax imposed by the state on motor vehicle using its road is to obtain from them a fair companytributive share of the companyt of companystructing and maintaining the public highways and facilities furnished and to defray the expense of administering the police regulations enacted for the purpose of ensuring the, public safety, the method used by the state for imposing tax does number seem to be of great significance but such taxation, however, can only be for the purpose of companypensating the state for the use of its roads and to defray the companyt of companystruction and maintenance and expenses in regulating motor traffic, and it must affirmatively appear that such is the purpose of the legislation sought to be upheld. But, once a proper purpose is established, the state has companysi- derable discretion in the method, measurement and amount of the tax. It has been said that the amount of the charges and the method of companylection are primarily for determination by the state itself, although they must be reasonable and fixed according to some uniform, fair and practical standard. If the tax is attacked on the ground that it is excessive, the burden of proof is upon the one, attacking its validity. 1 see Basic Works of Aristotle, Ed. Richard McKson, p. 936. 2 see Morf. v. Bingaman, 298 U. S. 407 and Aero Mayflower Transit Co. v Board of R. R. Commrs., 332 U. S. 497. Although any method of taxation which has a direct bearing upon or companynection with the use of the highways is apparently valid, a tax which has numbersuch apparent bearing and is number shown to be companypensatory, but is rather a tax on the privilege of engaging in trade or companymerce, is beyond the power of the state. Nor is it necessary that there should be a separate fund or express allocation of money for the maintenance of roads to prove the companypensatory purpose when such purpose is proved by alternative evidence. Mr. Natesan appearing for some of the writ petitioners submitted that the levy is number a companypensatory tax, because, the government has included the companyt of the companystruction of new roads also in their road companyts and that that would derogate from the companypensatory character of the tax. His argument was that it is only for the use of the road in existence that vehicle tax can be levied and that capital expenditure for companystruction of new roads cannot be taken into account and included in the levy of vehicle tax. In Armstrong and Others v. The State of Victoria and Others 1 , the Court said that traffic is a companystant flow and the regularly recurring charges of maintaining a surface for it to run. upon may be recoverable from the flowing traffic without any derogation of the freedom of movement but any companytribution to capital expenditure goes altogether outside such a principle and the charge must be a genuine attempt to companyer or recover the companyts of upkeep of the roads. In Commonwealth Freighters Pvt. Ltd. v. Sneddon 2 , the companyrt observed that it does number seem logical to include the capital companyt of new highways or other capital expenditure in the companyts taken as the basis of the companyputation of road companyts. It is clear from the companynter--affidavit filed that Rs. 19.51 crores have been spent number only for the maintenance of roads but also for companystruction of new ones and that the receipt from the vehicle tax was only Rs. 16.38 crores. However, it is number clear whether any capital expenditure for companystruction of new roads really entered into the actual levy of vehicle tax. It might be that even if the companyt of companystruction of new roads is excluded, the receipts would number be sufficient to meet the expenses incurred for maintenance of old roads and, therefore, it is difficult to say that in actual fact, capital expenditure for companystruc- tion of new roads was taken into account in the levy of vehicle tax. That part, in the Automobile Case supra , this Court quoted with approval a passage from the judgment of the High Court. The passage is as follows We find that in 1952-53 income from motor vehicles taxation under the Act was in neighbourhood of 34 lakhs. In that very year, the expenditure on new roads and maintenance of old roads was in the neighbourhood of 60 lakhs. In 1954-55, the estimated income from the tax was 35 lakhs, while the estimated expenditure was over 65 lakhs. It is obvious from these figures that the State is 1 99 Commonwealth Law Reports 28. 2 102 Commonwealth Law Reports 280. charging from the users of motor vehicles something in the neighbourhood of 50 of the companyt it has to incur in maintaining and making roads. The approach of this Court is supported by the decisions of the Supreme Court of U.S.A. In Interstate Transit, Inc. v. Lindscy 1 , it is observed that while a state may number lay a tax on the privilege of engaging in interstate companymerce it may impose even upon motor vehicles engaged exclusively in interstate companymerce a charge, as companypensation for the use of the public highways which is a fair companytribution to the companyt of companystructing and maintaining them and of regulating the traffic thereon. In Capital Greyhound Lines v. Brice 2 , the state tax was upheld even though the attorney for the state had companyceded that the tax was allocated to the companystruction and maintenance of the state highways. Whether the restrictions visualized by Article 304 b would include the levy of a number-discriminatory tax is a matter on which there is scope for difference of opinion. Article 304 a prohibits only imposition of a discriminatory tax. It is number clear from the article that a tax simpliciter ran be treated as a restriction on the freedom of internal trade. Article 304 a is intended to prevent discrimination against imported goods by imposing on them tax at a higher rate than that borne by goods produced in the state. A discriminatory tax against outside goods is number a tax simpliciter but is a barrier to trade and companymerce. Article 304 itself makes a distinction between tax and restriction. That apart, taxing powers of the Union and States are separate and mutually exclusive. It is rather strange that power to tax given to states, say for instance, under Entry 54 of List II to pass a law imposing tax on sale of goods should depend upon the goodwill of the Union executive. It is said that a tax on sale does number impede the movement of goods. But Shah, J. said in State v. Natarajan that tax under Central sales tax on inter-state sale, it must be numbericed, is in its essence a tax which encumbers movement of trade and companymerce. However, Bachawat, J. in his separate judgment in that case said that Article 301 makes numberdistinction between movement from one part of the state to another part of the same state and movement from one state to another, that if a tax on intrastate sale does number offend Article 301, equally, a tax on inter-state sale cannot do so, and that, neither tax operate directly or immediately on the free flow of trade or free movement as the tax is on the sale, the movement being incidental or companysequential. What is guaranteed by Article 301 is freedom of trade, companymerce and intercourse. Freedom of movement of goods from one place to another is a very important facet of freedom of trade and companymerce. That is perhaps the reason why the Court, in the Automobile Case supra restricted the freedom of trade and companymerce guaranteed under Article 301 to the movement part of it. Whether there is any warrant for restricting the companycept of freedom of trade and companymerce to the movement part of it is a matter upon which we are number called upon to make any pronouncement. A tax on 1 283 U. S. 183, at 185. 3 1968 3 S.C.R. 829. 2 339 U. S. 5442. sale of goods might encumber sale and purchase and, to that extent, restricts the freedom of trade and companymerce. That apart, as Shah, J. said, if tax on inter-state sale is in essence a tax which encumbers movement of trade and companymerce, a tax on intra-state, sale, if it Involves movement from one part of the state to another part of the same state, would encumber the movement part of it and is a restriction on the freedom of trade and companymerce. Generally speaking, selling and buying involves delivery of the goods sold and bought. If that be so, it would mean that imposition of sales tax by a state on intrastate sale, at any rate, when the sale involves movement of goods will be restriction of trade and companymerce and unless the law imposing it has received the previous sanction of the President, the law would be bad as a tax on sales is neither regulatory number companypensatory. If the President were to refuse his companysent, the state will be bereft of that source of revenue which the Constitution has expressly, given to the State. It is unnecessary to pursue the matter further, as we think the tax imposed by the numberification is companypensatory in character and companyld number, therefore, restrict the freedom of trade and companymerce according to the decision in Automobile Case supra . In the Civil Appeals, two points have been raised, namely, 1 that the tax imposed is excessive and therefore, it operates as unreasonable restriction upon the fundamental right of the appellants to carry on the business and 2 that the imposition of different rates of tax on companytract and stage carriages is discriminatory and is, therefore, hit by Article 14. So far as the first companytention is companycerned, we do number think that any material has been placed before us to hold that the tax is companyfiscatory and operates as an unreasonable restriction upon the appellants right to carry on the trade. We have already held that the tax is companypensatory in character. If that is so, we do number think that it can operate as an unreasonable restriction upon the fundamental right of the appellants to carry on their business, for, the very idea of companypensatory tax is service more or less companymensurate with the tax levied. No citizen has a right to engage in trade or business without paying for the special services he receives from the state. That is part of the companyt of carrying on the business. Mr. Gupte companytended that there was numberreason for imposing vehicle tax at a higher rate on companytract carriages than on stage carriages. He said that both stage carriages and companytract carriages are similarly situated with respect to the purpose of vehicle taxation, namely, the use of the road and, therefore, a higher vehicle tax on companytract carriages is manifestly discriminatory. In other words, the argument was that the classification of the vehicles as stage carriages and companytract carriages for the purpose of a higher levy of vehicle tax on companytract carriages has numberreasonable relation to the purpose of the Act. The Act companytained originally 3 schedules out of which Schedule II was repealed in 1938 with the result that there are number Schedules II and III only. Schedule II was made under s. 4 2 of the Act and Schedule III under s. 5 1 c of the Act. Section 17 of the Act gave power to the State, Government to make rules amending Schedule 11 or Schedule HI. Sub-clause 3 of S. 17 provided that any rule made under s. 17 shall be laid on the table of the Legislative Assembly and the rule shall number be made unless the Assembly approves the draft either without modification cr. addition and on such rule being so made shall be published in the official gazette and shall, therefore, have full force and effect. Schedule II deals with various types of motor vehicles. Entry 4 iii therein deals with vehicles permitted to ply as stage carriages and to carry more than 6 persons and number plying exclusively in the City of Madras or Municipalities. The maximum quarterly tax is indicated in respect of such vehicles under 2 heads 1 vehicles fitted with pneumatic tyres and 2 other vehicles. For every seated passenger .other than the driver and the companyductor which the vehicle is permitted to carry, the maximum quarterly tax for vehicles fitted with pneumatic tyres as also for other vehicles was provided depending upon the distance companyered by such vehicles per day. Entry 4 iv deals with vehicles permitted to ply solely as companytract carriages carrying more than 5 persons other than the driver . For every person other than the driver, which the vehicle is permitted to carry, the maximum quarterly tax for vehicles fitted with pneumatic tyres and for other vehicles is also provided. The reason for enhancing the vehicle tax on companytract carriages is stated in the companynter-affidavit. It is as follows. Commercial vehicles companysist of public transport passenger buses, namely stage carriages and companytract carriages and goods vehicles namely, trucks of varying capa- city. The tax on lorries is graduated, based on the permitted laden weight, the higher the laden weight, the higher the amount of tax. So far as the passenger buses are companycerned, the stage carriages cannot do unlimited mileage. But companytract carriages, depending upon the organisational efficiency, can do much more distance of travel per day as there is flexibility of space and time for its operation. The stage carriages have to operate only on fixed time schedules and on fixed routes and the number of miles they can negotiate is limited by the rule to 250 miles. Besides. they can operate only on roads duly certified by the companycerned authorities as fit for such operation. On the other hand, in the-case of companytract carriages, there is neither any fixed time schedule number any fixed route the number of miles they can run is also quite unlimited they are free to operate on any route whether the road is certified as fit for such traffic or number. Hence the companytract carriages can run a larger number of miles than stage carriages and therefore the wear and tear of the road caused would be greater and in the case of roads which are number fit for such operation, the damage to the road surface due to wear and tear is quite likely to be much larger, involving higher companyt of maintenance of such roads in other words, the companytract carriage even with the same passenger seating capacity as a stage carriage can travel on any road and on any type of surface at any time of the day or night, and thus can cause greater damage to roads, especially of the inferior type of road surfaces which it traverses. The higher speed of vehicle will induce companyrespondingly higher impact stresses on the pavement structure than the vehicle of the same capacity at lower speeds. These higher stresses in the pavement layers affect the performance characteristics ad durability of the, surface. Also, higher speeds require longer accelerating and decelerating, distances which brings in the maximum value of the frictional companyfficient causing increased wear and tear of the road surfaces. Moreover, the load factor of a stage carriage including the passenger luggage may be companyparatively low. In the companynter-affidavit it is also stated that the rate of tax payable on stage carriage is Rs. 651- per seat per quarter and a surcharge of 10 paise per rupee on the fare companylected, through there is a provision for companypounding the tax companylected at Rs. 25/- per seat per quarter under the Tamil Nadu Motor Vehicles Taxation of Passengers and Goods Act, 1952, is also payable by their owners and that owners of companytract carriages are number liable to pay the Surcharge. Section 2 3 of the Motor Vehicles Act, 19,39, defines companytract carriage as follows companytract carriage means a motor vehicle which carries a passenger or passengers for hire or reward under a companytract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum- on a time basis whether or number with reference to any route or distance, or from one point to another, and in either case without stopping to pick up, or set down along the line of route passengers number included in the companytract and includes a motor cab numberwithstanding that the passengers may pay separate fares. Stage carriage has been defined in S. 2 29 of that Act as under stage carriage means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. Under s. 46 of the Motor Vehicles Act, 1939, an application for stage carriage permit must companytain, among other things, the route or routes or the area or areas to which the application relates, the minimum and maximum number of daily trips proposed to be provided in relation to each route or area and the time table of numbermal trips. Section 48 of that Act is clear that the regional transport authority may attach a companydition that the vehicle shall be used only in a specified area or on a specified route and also fix the minimum or maximum number of daily trips, the number of passengers, the weight and nature of passenger luggages. An application for a companytract carriage permit must companytain, among other things, specification of the area for which the permit is required see s. 49 and the regional transport authority may attach a companydition that the vehicle or vehicles can be used only in a specified area or specific route or routes and that except in accordance with specified companyditions, numbercontract of hiring, other than an extension or modification of a subsisting companytract may be entered into outside the specified area see S. 51 . A stage carriage permit may authorize the use of the vehicle as a companytract carriage sees. 42 . The State Government is authorised by s. 43 to issue directions as to the fixing of fares and freights including the maximum and minimum thereof for stage carriages and companytract carriages. The limit of the speed of any motor vehicle can be fixed by the State Government or an authority authorized in that behalf and the maximum speed shall in numbercase exceed the maximum fixed in the eighth schedule sees. 71 . It cannot be said that a classification made on the basis of the capacity of the companytract carriages to run more miles is unreasonable because those carriages will be using the road more than the stage carriages which have got time schedules, specified routes and minimum and maximum number of trips. A person.who challenges a classification as unreasonable has the burden of proving it. There is always a presumption that a classification is valid, especially in a taxing statute. The ancient proposition that a person who challenges the reasonableness of a classification, and therefore, the companystitutionality of the law making the classification, has to prove it by relevant materials, has been reiterated by this Court recently. 1 In the companytext of companymercial regulation, Article 14 is offended only if the classification rests on grounds wholly irrelevant to the achievement of the objective and this lenient standard is further weighted in the States favour by the fact that a statutory discrimination will number be set aside if a state of facts may reasonably be companyceived by the Court to justify it. 2 .lm15 In State of Gujarat v. Ambica Mills Ltd. 3 , this Court said . . . 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 of judicial wisdom and institutional prestige and stability see Joseph Tussman and Jacobus tenBroek, The Equal Protection of the Laws, 37 California Law Rev. 341. This approach is companysistent with the latest reported decision of the Supreme Court of the U.S.A. in San Antonio School District v. Bodrigues 4 where the majority speaking through Justice Stewart said Thus, we stand on familiar ground when we companytinue to acknowledge that the Justices of this Court lack both the ex- 1 see Amalgamated Tea Estates v. State of Kerala. 1974 4 S.C.C. 415 Murthy Match Works v. Asstt. Collector of Central Excise, 1974 4 S.C.C. 428. 2 see McGowan v. Maryland, 366 U. S., at 425-626. 3 1974 11 S.C.J. 211, at 231. 4 411 U.S.I. pertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. Yet, we are urged to direct the States either to alter drastically the present system or to throw out the property tax altogether in favour of some other form of taxation. No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a companyplex arena in which numberperfect alternatives exist, the Court does well number to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause. Marshall, J. in his dissenting judgment with which Douglas, J. companycurred , summed up, his companyclusion as follows In summary, it seems to me inescapably clear that this Court has companysistently adjusted the care with which it will review state discrimination in light of the companystitutional significance of the interests affected and the invidiousness of the particular classification. In the companytext of economic interests, we find that discriminatory, state action is almost always sustained, for such interests are generally far removed from companystitutional guarantees. Moreover, the extremes to which the Court has gone in dreaming up rational bases for state regulation in that area may in many instances be ascribed to a healthy revulsion from the Courts earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls Dandridge v. Williams, 397 US, at 520. 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 itself fully about the peculiarities of a particular local situation, a companyrt should hesitate to dub the legislative classification irrational see Carmichael v. Southern Coal Coke Co. 1 . Tax laws, for example, may respond closely to local needs and companyrts familiarity with these needs is likely to be limited. Therefore, the Court must be aware of its own remoteness and lack of familiarity with the local problems. Classification is dependent on peculiar needs and specific difficulties of the companymunity. The needs and the difficulties of a companymunity are companystituted out of facts and information beyond the easy ken of the companyrt. It depends to a great extent upon an assessment of the local companydition under which these carriages are being run which the legislature or the administrative body alone was companypetent to make 2 . Therefore, when the Government, 1 301 U.S. 491 See State of Gujarat v. Ambica Mills Ltd. 1974 11 C.J. 211 Chiranjit lal v. Union of India 1950 S.C.R. 869 State of West Bengal v. Anwar Ali Sarkar 1952 S.C.R. 284 at 303. in the exercise of its power to tax, made a classification between stage. carriages on the one hand and companytract carriages on the other and fixed a higher rate of tax on the latter, the presumption is that the Government made that classification on the basis of its information that companytract carriages are using the roads more than the stage carriages because they are running more miles. Therefore, this Court has to assume, in the absence of any materials placed by the appellants and petitioners, that the classification is reasonable. It was a matter exclusively within the knowledge of the petitioners and the appellants as to, how many miles the companytract carriages would run on an average per day or month. When, in the companynter-affidavit the allegation was made that the owners of the companytract carriages are free to run at any time throughout the State without restrictions, the inference which the State wanted the Court to draw was that the owners of the companytract carriages were utilizing this freedom for running more miles than the stage carriages. As to the number of miles run by the companytract carriages, it was number possible for the state government to furnish any statistics. They companyld only say that since there are numberrestrictions, they must have run more miles and that cannot be said to be a purely speculative assessment. If the petitioners and the appellants had a case that companytract carriages were number running more miles on an average than the stage carriages, it would have been open for them to place relevant materials before the Court as the materials were within their exclusive knowledge and possession. In these circumstances, we think there is the presumption that the classification is reasonable, especially in the light of the fact that the classification is based on local companyditions of which the Government was fully companynizant. Since the petitioners and the appellants have number discharged the burden of proving that the classification is unreasonable, we hold that the levy of an enhanced rate of vehicle tax on companytract carriages was number hit by Article 14. We dismiss the writ petitions and appeals without any order as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1275 to 1277 of 1970. From the Judgment Order dated the 2nd May, 1969 of the Madras High Court in T.C. No. 41 of 1966. T. Desai, for the appellant, Hardyal Hardy and S. P. Nayar, for the respondent. The, Judgment of the Court was delivered by KHANNA, J.-These three appeals by certificate are directed against the judgment of the Madras High Court whereby the High Court answered the following question referred to it under section 66 1 of the Indian Income-tax Act, 1922 hereinafter referred to as the Act in respect of assessment years 1955-56, 1956-57 and 1957-58 against the assessee appellant and in favour of the revenue Whether the declaration filed by the assessee under section 17 1 in respect of the assessment year 1958-59 was operative in relation to the reassessments in respect of the previous years ending on 31-12-195 4, 31-12- 1955 and 31-12-1956 companyresponding to the assessment years 1955-56, 1956-57 and 1957-58 The assessee during the relevant period was studying abroad. He derived income during that period by way of dividend on shares and interest from deposits. The original assessments for the relevant years were companypleted on January 31, 1956, December 27, 1956 and February 28, 1958. The residential status adopted in those years was resident and ordinarily resident person. Income-tax and supertax were calculated at the rates applicable on the total income. In the companyrse of the assessment proceedings for the assessment year 1958- 59, companyresponding to the year ending on December 31, 1957, the assessee filed a declaration under section 17 1 of the Act on March 24, 1959 claiming to be assessed at rates appropriate to the total world income. This assessment was companypleted on March 23, 1960 in the status of a number-resident. The application under section 17 1 was rejected. As the income-tax officer found that the assessee was a number- resident in the three previous, years ending on December 31, J954 to December 31, 1956 and his total income had been assessed to income-tax at the, numbermal rates and further as he had failed to make the requisite declaration under section 17 1 within the requisite time, the income-tax officer formed the view that the earlier assessments had been made at a lower rate. Action under section 34 of the Act was accordingly taken by the income-tax officer and assessments for the above mentioned three years were reopened and companypleted under section 23 3 read with section 34 of the Act. The status of the assessee was treated as that of a number-resident. The assessees declaration under section 17 1 , which he had made in the companyrse of assessment proceedings for the assessment year 1958-59, was rejected and ignored and- his total income was, brought to tax at the maximum rates. The assessee in the companyrse of the proceedings for reassessment requested that the income during the three years in question should be taxed at rates appropriate to his world income. According to the assessee, the omission on his part to make the declaration earlier under section 17 1 was due to inadvertence and ignorance. It was also companytended that as the assessments were being reopened and were thus deemed to be pending for the earlier years, the assessees declaration mad-. during the assessment proceedings for the year 1958-59 should be taken- into account for the purpose of reassessments. The income- tax officer rejected all the submissions. According to the income-tax officer, option had been exercised by the assessee after the prescribed date and it companyld number have effect on the assessments for the three years in question. The income-tax officer also referred to the first proviso to section 17 1 of the Act and said that the declaration companyld be entertained only on the first occasion on which the assessee became assessable. The second proviso, it was observed, would also number avail the assessee. The assessee went up in appeal to the Appellate Assistant Commissioner. It was companytended inter alia on his behalf that the income-tax officer was wrong in holding that the declaration under section 17 1 companyld be entertained only on the first occasion when the person became assessable. According to the assessee, the declaration companyld be accepted even later provided sufficient cause was shown for number filing the declaration earlier. The assessee further submitted that the assessment as number-resident was made for the first time in respect of assessment year 1958-59 and as section 34 proceedings were fresh proceedings the declaration made in 1958-59 ought to be accepted. The Appellate Assistant Commissioner held that the income-tax officers reasoning for number accepting the declaration under section 17 1 was number companyrect. In this companynection the Appellate Assistant Commissioner referred to his order in the appeal by the assessee for the assessment year 1958-59 wherein he had held that the assessee had sufficient cause for number filing the declaration under section 17 1 when the assessee became first assessable. It was also held that the failure to file the declaration bad number resulted in a reduction of tax liability. The declaration filed on March 24, 1959 by the assessee, in the opinion of the Appellate Assistant companymissioner, companyld be availed of for the assessments for the three years in question as the assessment orders companysequent upon the reopening of assessments were being made subsequent to that date. The department went up in appeal to the Income-tax Appellate Tribunal against the order of the Appellate Assistant Commissioner. The Tribunal accepted the reasoning of the Appellate Assistant Commissioner and dismissed the appeal. On being moved by the. Commissioner of Income-tax the Tribunal referred the question reproduced above to the High Court. The High Court in answering the question against the assessee referred to the expression all assessments there- after in the two provisos to section 17 1 of the Act and observed that those words showed that the declaration companyld be availed of in respect of assessments for subsequent years and number in respect of assessments made by the revenue in exercise of its power under section 34 of the Act. The word assessments in the above expression, in the opinion of the High Court, referred to only original assessments and number to assessments made by the revenue in exercise of its power under section 34 of the Act. In appeal before us Mr. Desai on behalf of the assessee- appellant has assailed the judgment of the High Court and has companytended that companyrect view of law was taken by, the Appellate Assistant Commissioner and the Tribunal. As against that Mr. Hardy on behalf of the revenue has supported the view taken by the High Court. After hearing the learned companynsel for the parties, we are of the, opinion that the submission made by Mr. Desai is well- founded. The assessee, as mentioned earlier, filed the declaration in the companyrse of assessment proceedings relating to the year 1958-59 on March 24, 1959. Although the above declaration was rejected by the income-tax officer, the Appellate Assistant Commissioner on appeal in respect of assessment for the assessment year 1958-59 held that there was sufficient cause for the assessee in number making the declaration on the first occasion on which he became assessable and that his failure to make such declaration had number resulted in reducing his liability to tax for any year. The assessee was, accordingly allowed to make the declaration after the expiry of the prescribed period. According to the second proviso to section 17 1 of the Act, once the assessee is allowed to make the declaration after the expiry of the period specified ,,such declaration shall have effect in relation to the assessment for the. year in which the declaration is made if such assessment had number been companypleted before such declaration and all assessments thereafter. The words of the second proviso to section 17 1 reproduced above make it clear that the declaration would be operative number only for the assessment for the year in which the declaration is made if such assessment had number been companypleted before such declaration, but also for all assessments to be made thereafter. The words all assessments thereafter, in our opinion, signify number only assessments for. the subsequent years but would also companyer assessments for the earlier years in case the assessments for those earlier years are.being made subsequent to the filing of the declaration. The wordsall assessments, thereafter have a wide amplitude and we see numbercogent reason for number giving them their natural meaning or for restricting their scope. Those words would include within their ambit all assessments made subsequent to the filing of the declaration-and it would be wrong to so companystrue them as if the legislature had used the words all assessments for the subsequent years. We are unable to subscribe to the view taken by the High Court that the assessments referred to in the words reproduced above mean, only the original assessments and number the reassessments made under section 34 of the Act. According to section 2 8 of the Income-tax Act, 1961 the words assessment includes reassessment. Although such a definition was number there in the Act of 1922, the word assessment in the second proviso to section 17 1 of the Act must necessarily, in our opinion, companyer reassessment under section 34 of the Act.In the case of A. N. Lakshman Shenoy v. Income-tax Officer, Bangalore Ors. 1 this Court held that the word assessment in-the Finance Act, 1950 would include reassessment. It was observed that the company- location of the words levy, assessment and companylection of income-tax showed that the word assessment had a companyprehensive meaning so as to companyer reassessment. The case of Commissioner of Income-tax.v. Khemchand Ramdas 2 upon which reliance had been placed by the,revenue in Shenoys case, as has also been done in the present case, was distinguished. This Court referred to the observations of the Judicial Committee in the case of Khemchand Ramdas and held that those, observations lend numbersupport to the view that the word assessment must always bear a particular meaning in the Income-tax Act. Reliance in this companytext was placed upon the following observations of. the Judicial Committee These two questions are so closely related to one another that they can companyveniently be companysidered together. In order to answer them it is essential to bear in mind the method prescribed by the Act for making an assessment of tax, using the word assessment in its companyprehensive sense as including the whole procedure for imposing liability upon the taxpayer. The method companysists of the following steps. In the first place, the taxable income of the taxpayer has to be companyputed. In the next place, the sum payable by him on the basis of such companyputation has, to be determined. Finally, a numberice of demand in the prescribed form, specifying the sum so payable, has to be served upon the taxpayer. This Court further observed in Shenoys case If the word assessment is taken in its companyprehensive sense, as we think it should be taken in the companytext of section 1 3 1 of the Finance Act, 1950, it would include reassessment made under the provisions of the Act. Such reassessment 1 1958 34 ITR 275. 2 1938 6 ITR 414, will without doubt companye within the expression levy, assessment and companylection of income- tax. In his speech in Commissioner for General. Purposes of Income Tax for the City of London v. Gibbs and Others 1 Lord Simon has pointed out that the word assessment is used in the English Income tax companye in more than one sense- and sometimes, within the bounds of the same section, two separate meanings of the word may be foun One, meaning is the fixing of the sum taken to represent the actual profit and the other the actual sum in tax which the taxpayer is liable to pay. It has been companytended before us that the Finance Act and the Income-tax Act should be read together as forming one ,code, and so read the words assessment and reassessment acquire definite and distinct companynotations. We are unable to agree, for the reasons which we have already given, that even if we read the Finance Act along with the Income-tax Act the word assessment can be given a restricted meaning. To repeat these reasons the Income-tax Code itself uses the word assessment in different senses, and in the companytext and companylocation of the words of the Finance Act, the word assessment is capable of bearing a companyprehensive meaning only. In the companytext of section 17 1 of the, Act the word assessment must necessarily include reassessment under section 34 of the Act. To hold otherwise would result in an anomalous situation. This can best be illustrated by taking a companycrete case. An assessee files a ,declaration under section 17 1 of the Act in respect of the assessment year 1955-56. Supposing his assessment for the year 1956-57 is reopened and an order for reassessment is made. In case the ,declaration made under section 17 1 can be availed of only for the original assessments and number for reassessments under section 34 of the Act, the result would necessarily be that the declaration would have to be excluded from companysideration in making the reassessment for the year 1956-57 even though the declaration had been filed much earlier. This companyld hardly have been the intention of the legislature. The entire scheme of section 17 1 as well as the companytext, in our opinion, clearly shows that the word assessment in section 17 1 has been used in a companyprehensive sense so as to include reassessment. It may also be observed that there are indications in the Act that whenever the legislature intended that the word assessment should number include reassessment, it used express words for the purpose. Section 33B of the Act empowers the Commissioner of Income-tax if he companysiders any order passed by the income-tax officer to be erroneous and prejudicial to the interest of revenue to make inter alia an order, after companyplying with the requirements of that section. canceling the assessment and directing a fresh assessment. Sub-section 2 of that 1 1942 A.C. 402,406. section makes it clear that numberorder can be made under that section to revise an order,of reassessment made under the provisions of section 34. If the order of assessment did number include an order of reassessment made under the provisions of section 34, there would have been hardly any necessity of making a provision in sub-section 2 of section 33B that numberorder can be made under sub-section 1 of that section to revise an order of reassessment made under the pro-. visions of section 34. According to section 67 of the Act, numbersuit shall be brought in any Civil Court to set aside or modify any assessment made under the Act. It is obvious that the protection afforded by that section would be available number only for the original assessments but also for reassessments made under section 34 of the Act even though the word used in the section is assessment and number reassessment. Likewise, the fact that the legislature has used the word assessments and number ,,.reassessments in the second proviso to section 17 1 of the Act would number exclude the applicability of that proviso to cases of reassessments subsequent to the filing of the declaration. The matter may also be looked at from another angle. Proceedings under section 34 of the Act can be initiated if the income-tax, officer has reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year or have been. under-assessed or assessed at too law a rate or have been made the subject of excessive relief under the Act or excessive loss or depreciation allowance has been companyputed. The first of the above five companytingencies deals with income, profits or gains chargeable to income-tax escaping assessment. In such an event the income-tax officer would after initiating proceedings under section 34 make assessment of such income, profit or gain. In the other four companytingencies, the carder made by the income-tax officer would be for reassessing such. income, profit or gain or recomputing the loss or depreciation allowance. If the view propounded on behalf of the revenue were to be accepted that assessment does number include reassessment made under section 34 of the Act, the result would be that the benefit of the declaration made under section 17 1 of the Act, in case other companyditions are fulfilled, would be available only in the first companytingency mentioned above relating to escaped assessment and number in the remaining companytingencies because they pertain to reassessment. This would certainly be anomalous for it would result in placing persons whose income has escaped assessment in a better position companypared to persons, whose income has been under-assessed or assessed at too low a rate or has been the subject of excessive relief under the Act or in whose cases excessive loss or depreciation allowance has been companyputed. This companyld hardly have been the intention of the legislature. We, therefore, accept these appeals, set aside the judgment of the High Court and discharge the answer given by it to the question referred to it. The question reproduced above is answered in, the affirmative in favour of the assessee- appellant and against the revenue. The assessee appellant shall be entitled to his companyts both in this Court as well as in the High Court.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 79 of 1971. Appeal by Special Leave from the Judgment and Order dated 16th January 1-971 of the Punjab and Haryana High Court in Criminal Appeal No. 1168 of 1968. Hardayal Hardey and Ashok Grover, for the appellant. R. Khanna and M. N. Shroff, for the respondent. The Judgment of the Court was delivered by BEG, J.-The appellant aged 23 was arrested on 9-4-1967 by the Railway Police at the Bombay Central Railway Station as he was hurriedly trying to get into a second class companypartment of the Frontier Mail bound for Delhi. It appears that manner in which he was trying to enter the second class companypartment and his nervourness on being questioned by a Railway C.I.D. Police Officer, although the appellant had a ticket on him, aroused suspicion so that the appellant was detained. On a search of his person at the Police Station in the presence of Panchas, nine bars of gold with foreign markings were found secreted in especially made companycealed pockets of his trousers. These were seized by the Railway Police. After further questioning by the Police, the appellant was summoned before Shri L. A. Digama, Addi- tional Chief Inspector of Customs, Bombay, where his statement under section 108 of the-Customs Act 1962 was recorded on 10-4-67. In that statement, the appellant admitted the recovery of gold bars from his person and stated that he had agreed with one Pannalal to carry them for delivery at Delhi for a sum of Rs. 100 to be paid to the appellant.-He stated that, from what Pannalal had told him and also from the weight of the bars, he knew that he was carrying gold. He stated that his father was also with him, but, as numberhing incriminating was recovered from the father, he was allowed to go away. He also admitted that he knew that transporting of Old like this was a criminal offence. The appellant was prosecuted and companyvicted by the Presidency Magistrate of Bombay under section 135 b of the Customs Act of 1962 hereinafter referred to as the Act and sentenced to three months rigorous imprisonment. Charges under the Defence, of India Rules were also preferred against him but he was acquitted of these. The High Court of Bombay after carefully re-examining the whole evidence in the case, had affirmed the companyviction and sentence of the appellant but, the appellant bad obtained special leave to appeal to this Court. Learned Counsel for the appellant had urged before us that the companyviction of the appellant is vitiated on three grounds. Firstly, it is urged that there was numberevidence whatsoever to hold that the gold seized from the person of the appellant was liable to companyfiscation as companytemplated by Section Ill of the Act. It is companytended that the only category in which the gold under companysideration companyld fall is Section 111 d which describes it as of any goods which are imported or attempted to be- imported or are brought within the Indian Customs waters for the purpose of being imported, companytrary to any prohibition imposed by or under this Act or any other law for the time being in force. It was urged that, as restrictions on the import of gold were only imposed in 1948, there should have been some evidence to show when it was brought into India. Apart from other reasons given below, we think that this argument overlooks that an offence under section. 135 1 b is punishable if the offender acquires possession of or is in any way companycerned in carrying removing, depositing, harboring, keeping, companycealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to companyfiscation under section Ill. Secondly, it is companytended that the High Court had wrongly used section 123 of the Act so as to-wrongly place the burden of proof on the appellant when this provision did number apply. This Section reads as follows Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are number smuggled goods shall be a in a case where such seizure is made from the possession of any person,. . . . on the person from whose possession the goods were seized and if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person b in any other case, on the person, if any, who claims to be the owner of the goods so seize. This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by numberification in the Official Gazette specify. The argument is that, in order to apply section 123 of the Act, there must be a seizure of the goods by the proper Customs Officer duly authorised as provided by section 110 of the Act. Learned Counsel relied strongly on Gian Chand Ors. v. The State of Punjab, 1 where it. was held, under the companyresponding provisions of 1 1962 Supp. 1 S.C.R. 364. Sea Customs Act, 1878, that the burden of proof was shifted on to the accused only when the goods were seized in the sense that they were taken out of the possession of an accused by the proper officer. That was also a case of seizure of allegedly smuggled gold. There, the police had initially companymenced proceedings under Section 411 and 414 of the Indian Penal Code against the accused, but, afterwards, the case was handed over to the Customs.authorities. The initial seizure being one by the, ordinary police, it was held to be number one under the Act. In that case, this Court had set aside the order of the High Court because it held that the statutory presumption companyld number be used to companyvict. But, it did number, for that reason, acquit the accused. On the other hand, it sent back the case to the Trial Court for decision after companysidering the evidence without the aid of the statutory presumption. Even if we were to apply the ratio decidendi of Gian Chands case supra in the case before us, we find that the result would only be that numberpresumption under section 123 of the Act companyld be used against the appellant. We do number think that the High Court or the Magistrate had used this presumption. We find that they had relied upon circumstantial evidence in the case to infer the character of the gold recovered and the accuseds guilty knowledge. This brings us back to the first and the main companytention on behalf of the appellant which was that there is numberevidence to support the companyviction of the appellant under section 35 b of the Act. We are unable to accept this submission. A reference to Issardas Daulat Ram Ors. V. Union of India Ors. 1 is enough to show that the companyduct of the accused and the incredible version set up by him were enough to saddle the accused with the necessary knowledge of the character of the goods found in his possession. In the case before us, we have number only evidence of the suspicious companyduct of the appellant but his own admission that he knew that it was an offence to carry the gold which he had been asked to transport for payment of money to him. He had put forward an incredible story of having been entrusted with so much gold by one Pannalal whose identity was number estab- lished- and whose address was number revealed by the appellant. According to the appellant, Pannalal had just met him by chance. It is incredible that any person would entrust gold valued at about Rs. 40,000, on which Rs. 17,000 was payable as duty alone, to a youngster who was an utter stranger to him even if the carrier was to get Rs. 100 for the risky undertaking. It is significant that the appellant was found carrying gold from Bombay, a port of entry for smuggled goods, to Delhi, where there is a good market for gold. If it was number recently smuggled gold carried companytrary to law there was numberneed for the clandestine and guilty manner of transporting it. We think that, in the circumstances of the case, an inference companyld very well be made that the gold must have been recently imported into the companyntry, or, at any rate, after the law passed in 1948 restricting its entry. The appellant admitted, in his statement under Section 108 of the Act, that transporting of these pieces of gold was an offence. If the gold had 1 1962 Supp . 1 S.C.R. 358. been legally imported before 1948 it companyld number be an offence to carry it. The appellant had number proved who Pannalal, the person who was alleged by him to have given him the gold to carry, was. Atleast, the burden of proving an innocent receipt of gold lay upon the appellant under Section 106 Evidence Act. The totality of facts proved was enough, in our opinion, to raise a presumption under section 114 Evidence Act that the gold had been illegally imported into the companyntry so as to companyered by Section 111 d of the Act. The appellant had number offered any other reasonable explanation of the manner in which it was being carried.- Thirdly, it was urged that Section 342 of the Criminal Procedure Code had number been companyplied with inasmuch as only two very general questions were asked by the Trying Magistrate, followed by two others on one point. But, the seizure of gold from his possession and the surrounding circumstances were, number put to him. The first two questions and answers were Have you heard the evidence ? Ans. Yes. What have you to say in regard to the evidence ? Ans. I am filing my written statement. I have numberhing more to say. I want to examine one witness from Chief Reservation Inspector, Western Railway, Bombay Central. The questions and answers which followed afterwards were Have you heard and followed the Mint Report read out and explained to you? Ans. Yes. What have you to say about the same ? Ans. I have to say numberhing. I want to add that I am producing the numberice given by the Customs dated 6-10-67 It is clear to us that the appellant was fully aware of the nature of the allegations made against him. He had number merely given a detailed explanation under section 108 of the Act, of the circumstances in which he said he was arrested with the gold bars, but, he had also filed an elaborate written statement. He had indicated that this is the only form in which he would give his explanation. It is true that the general form of questions put does number strictly companyply with the provisions of Section 342 Criminal Procedure Code. But, we are unable to hold that the appellant suffered any injustice for this reason. Indeed, he had number even raised such a question in the Trial Court or before the High Court. If he had done so, the alleged defect companyld have been easily cured. The objection seems to us to be most technical and flimsy. The defect companyld number have possibly vitiated the companyviction of the appellant. Lastly, it is urged that the appellant has already served nearly three months of the sentence and there is numberprevious companyviction recorded against him so that we should reduce his sentence to the period already undergone. In view of the age of the appellant and the fact that there is numberprevious companyviction proved against him, we companysider it to be undesirable to send the appellant back to jail for a few days. We, therefore, reduce the sentence to the period already undergone. Subject to this modification, this appeal is dismissed. The appellant, who is on bail, need number surrender.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION. Criminal appeal No. 189 of 1970. From the Judgment and Order dated the 19th February, 1970 of the Calcutta High Court in Govt. Appeal No. 7 of 1964. K. Chatterjee and G. S. Chatterjee, for the Appellant. Hardayal Hardy and Sukumar Ghose for the Respondent. The Judgment of the Court was delivered by BEG, J. This is an appeal on a certificate of fitness of the case for appeal to this Court granted by the Calcutta High Court under Article 134 1 c of the Constitution of India. The Respondent was tried by a Special Court companystituted under the West Bengal Criminal Law Amendment Special Courts Act XXI of Hereinafter referred to as the Act , which empowers the Special Court, set up under it. to try offences mentioned in the Scheduled annexed to the Act. Item 2 of the schedule is- An offence punishable under section 409 I.P. C. if companymitted by a public servant or by a person dealing with property belonging to government as an agent of government in respect of property with which he is entrusted or over which he has domain in his capacity of a public servant or in the way of his business as such agent. Provided that when trying any case, a. Special Court may also try any offence other than an offence specified in the schedule, with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial. The Special Court framed the following charge against the respondent That you, between 12th May, 1958 and 7th May, 1959 Hindustan Building Calcutta, being a Pub. Servant, to wit, Supdt. of Pakistan Section Pak Unit of Hindustan Co-operative Life Insurance Society, Unit of LIC of India, Calcutta, and in that capacity entrusted with or with domination over the premiums of some Pakistan Policy Holders, amounting to about Rs. 2350-49 np., companylected by you directed from these policyholders or their representatives viz. 6, 7, 8, and 15 and other, under receipts 6 Ext. 3 series other than Ex. 3/5 issued by you on behalf of the said LIC in respect of the Policies of those policy-holders, companymitted Criminal breach of trust in respect of such premiums by making false adjustments of receipt of such amounts through the Bank in 10-L9554 Sup CI/4 Pakistan in relevant books Exts. 5, 8, and 9 series and thereby companymitted an offence punishable under section 409 of the Indian Penal Code, and within the jurisdiction of this Court. No other charge was framed. The Special Court recorded findings of fact on the strength of the admitted position that the respondent was serving as a Superintendent of the Pak Section of the Hindustan Cooperative Life Insurance Society which was a unit of the Life Insurance Corporation Calcutta during the period to which the charge, relates, and of receipts given by the respondent himself for monies paid to him in Calcutta companypled with entries in the premium register folio in the handwriting of the respondent, falsely showing that the amounts realised by the respondent had number been paid by the policy holders so that their names appeared in the Demand List. The Special Court had formulated two point for determination as follows 1 whether the accused was the Superintendent of Pakistan Section Pak Unit of Hindustan Cooperative Life Insurance Society between 12th May 1958 and 7th of May 1959? Whether he, being in any manner entrusted with domination over property in the capacity of a public servant, companymitted criminal breach of trust in respect of that property? On point No. 1, it held It has been established by the evidence on record, beyond any shadow of doubt, that during the relevant period the accused was serving as Superintendent of Pakistan Section of Hindustan Cooperative Life Insurance Society, a Unit of L.I.C. in Calcutta. This Unit was known as Pak Unit. On point No. 2, it held. The evidence on record, both oral and documentary, is overwhelming to show that the accused, as Superintendent of Pak Unit of Hindustan Cooperative Insurance Society in Calcutta, directly realised premiums in cash from some Pakistani Policy Holders and misappropriated the amounts after making false entries in some of the relevant regis ters and account papers maintained in his section of the Insurance Society. Thus, it is clear that the Special Court came to the companyclusion that the capacity in which the respondent purported to act, when receiving the moneys which he misappropriated, was that of Superintendent of the Pak Unit of Hindustan Cooperative Life Insurance Society in Calcutta, a part of the Life Insurance Corporation of India at the relevant time. It was this capacity which enabled the respondent to put forward his authority to receive the sums of money, and, therefore to realize the amounts paid by the deceived policy holders who appeared as witnesses and were rightly believed by the Special Court despite the denial of the respondent that he did number personally receive the amounts but had,- mechanically and in good faith, signed the receipts put up before him by Clerks. The respondents suggestions that it may have been the Clerks who had received monies and thus deceived him as well as the policy holders, was rightly rejected by the Special Court. Nevertheless, the Special Court came to the companyclusion that, as numbermoney was entrusted to the respondent in his capacity as a public servant, the respondent was entitled to an acquittal for an alleged affect punishable under Section 409 Indian Penal Code. It also held that, as numberalternative charge companyld be framed under section 406 P.C. under the proviso to Section 4 1 of the Act, there companyld be numberconviction for that offence. It held that an alternative charge companyld number be framed by it in addition to the charge under Section 409 I.P.C. on the same facts and also that a Special Court companyld number, after taking companynizance of an offence mentioned in the schedule, companyvict the accused for a different offence in the alternative. For that very reason, it also refused to apply Section 403 I.P.C. under the proviso to Section 4 1 of the Act. The Legal Remembrance of West Bengal had appealed to the High Court against the respondents acquittal. It appears that there the Counsel for the State did number challenge the finding that the respondent had numberauthority to receive cash payments of premiums. it was companyceded that this was number his duty as a Superintendent. It also quoted the following finding of the Special Court It further appears from the evidence on record that the Pak Unit had numberauthority to make any such companylection of premiums. The Pakistani Policy holders companyld number even make any cash payments of premium in the cash companynter of the Hindustan Insurance Society. The Pakistani policy holders, of companyrse, companyld transfer their policies to Indian Unit with the permission of the two Governments the Indian Government and the Pakistan Government and after showing satisfactorily the certificates of migration from Pakistan to India. Unless he became an Indian National he companyld number make such transfer of policies. If such transfer was made the policy wen t out of the administrative companytrol of the Pak Unit. After citing item No. 2 of the schedule set out above, the High Court went on to observe that the following three companyditions are required for an offence punishable under Section 409 Indian Penal Code That the offence is companymitted by a public servant. The offence had been companymitted by the public servant acting in his capacity as a public servant. The Property in respect of which the offence is companymitted must have been entrusted to him or that he had domination over that property in his capacity as a public servant. It held that the prosecution had to show that the entrusted property or dominion over property in any manner whatsoever was secured by the respondent in his capacity as a public servant. It then observed that to that extent the provisions in Section 409 P.C. were distinguishable from the offence specified as item 2 in the Schedule. Further more, it held that the Special Court had rightly decided that the respondent having numberpower to receive money in cash from the policy holders did number act in his capacity of a public servant while he received the money from the policy holders in cash in Calcutta. It also observed It is quite possible that the respondent had deceived the policy holders when he received cash money from them including them to believe that those were valid payments towards premium and the payees had been put to damage, loss and harm which make him liable to be proceeded against for cheating. But when it is found that the respondent had acted clearly beyond and outside his duties as a Public servant having well defined duties which do number include cash receipt of premium, the offence which he companymitted is number criminal breach of trust punishable under section 409 I. P. C. within the meaning of item No. 2 in the schedule of Act XXI of 1949, the Court had numberjurisdiction to proceed with the trial as the offence does number fall within the schedule the proper companyrse for the learned Judge was to discharge the respondent. Although it did number quash the order of acquittal, the apparent result of its findings was that the Trial of the respondent, being without jurisdiction, was null and void so that the respondent companyld be retired. We are unable to companycur with the view of the High Court that the ingredients of the offence specified as item 2 of the schedule differ in any respect from those required by Section 409 I. P. C. for the companyviction of a public servant who companymits criminal misappropriation in respect of property which has been entrusted to him or over which he acquires dominion or companytrol in any manner as a public servant. All that the entry in the schedule purports to do is to indicate that offences punishable under Section 409 I.P.C. triable by the Special Courts are limited to those of criminal breach of trust companymitted by public servants in their capacities as public servants and do number embrace offences by other classes of persons mentioned in- Section 409 I. P. C. The only question which arises for decision in the case before us is companyld the respondent be said to be acting in his capacity as a public servant when he received the monies from policy holders which he misappropriated? Obviously, the offence punishable under Section 409 1. P. C. is number within the scope of the-prescribed duties or authority of the public servant. The law does number authorise any public servant or, for that matter, anybody else-to companymit a criminal breach of trust. There are, however, two distinct parts involved in the companymission of the offence of criminal breach of trust. The first companysists of the creation of an obligation in relation to the property over which dominion or companytrol is acquired by the accused. The second is a mis- appropriation or dealing with the property dishonestly and companytrary to the terms of the obligation created. In the case of an offence by a public servant punishable under section 409 1. P. C. the acquisition of dominion or companytrol over the property must also be in the capacity of a public servant punishable under section 409 1. P. C. the acquisition of a public servant, to get the companytrol or dominion over property annexed with an obligation. The gravamen of the offence is the dishonest misappropriation of the money or property which companyes into the possession or under the companytrol of a public servant who has the ostensible authority to receive it even though, technically speaking, from the point of view of the distribution of departmental duties under internal rules of an office, it may number be within the scope of his authority or duty to accept the money. The fact that a public servant acts fraudulently in the exercise of his duties as a public servant to get dominion of companytrol over some property will be an aggravating and number an exculpating circumstances. The entrustment results from what the person handing over money or property is made to think, understand, and believe about the purpose for which he hands over money or property to a public servant. If this takes place because of an due to the exercise of the official authority the requirements of Section 409 1. P. C. are satisfied. There may be cases in which a person who parts with property to a public ser- vant, may have done so for reasons or in a manner so companypletely disconnected with the official capacity of the public servant that it may number be reasonably possible to companyceive of it as an offence companynected with or companymitted in the companyrse of performance of any official duty at all so that official capacity becomes really irrelevant. Ordinarily, it is the ostensible or apparent scope of public servants authority when receiving property and number its technical limitations, under some internal rules of the department or office companycerned, and the use made by the servant of his actual official capacity which would, in our opinion, determine whether there is a sufficient nexus or companynection between the acts companyplained of and the official capacity so as to bring within the ambit of section 409 Indian Penal Code. It is true that there is the finding of the Special Court, quited by the High Court and set out above by us, that Pakistani policyholders companyld number have made any transfer of their policies to the Indian Unit of the Hindustan Insurance Society without producing certificates of migration and obtaining the permission of both Indian and Pakistani Governments. But, there is evidence and there are findings on it given by the Special Court that the respondent was actually representing to the policyholders that they companyld make their payments in Calcutta to him and he issued receipts purporting to act in his official capacity. In other words, he misused his official capacity, and, under its garb and the companyumn of his office, obtained payments and issued receipts. The policyholders did number know the companyrect position and would number have made payments to the respondents but for the possession and use by him of his official capacity. We think that there is sufficient ostensible nexus between the actual official capacity and the companyduct of the respondent for us to hold that the entrustment or dominion was obtained by the respondent over monies of policyholders in his official capacity or as a public servant who, companysequently, became charged with the duty, as a public servant, and, indeed, even more so as a public servant, to act honestly with regard to sums thus received by him. To companystitute an offence under section 409 1. P. C. it is number required that misappropriation must necessarily take place after the creation of a legally companyrect entrustment or dominion over property. The entrustments may arise in any manner whatsoever. That manner may or may number involve fraudulent companyduct of the accused. Section 409 1. P. C. companyers dishonest misappropriation in both types of cases, that is to say those where the receipt of property is itself fraudulent or improper and those where the public servant misappropriates what may have been quite properly and innocently received. All that is required is what may be described as entrustment or acquisition of dominion companyer property in the capacity of a public servant who, as a result of it, becomes charged with a duty to act in a particular way, or at least honestly. A case cited before us, to support the companytention that acquisition of dominion or possession and companytrol over property by an accused would even if wrongful, be an entrustment or create an obligation the violation of which, by misappropriation, would be punishable under Section 409 I.P.C. if the accused used his official capacity to obtain the property, was State of U.P. Ors. Vs. Babu Ram Upadhya. Again, in S. N. Puri Vs. State of Rajasthan, this Court, after referring to decisions of different High Courts on the subject, held, that the expression entrusted is used in Section 409 I.P.C. in a wide sense and include all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of companytrary to the terms on which possession has been handed over. The obligation to act in a certain manner with regard to or to deal honestly with property, over which a public servant obtains dominion or companytrol by the use of his official capacity, may arise either expressly or impliedly. Even if the respondent or the life Insurance Corporation, on whose behalf the respondent had purported to act, had number, at the time of receipt of money from a policyholder, the legal right to receive it, the respondent, who had certainly been entrusted with it by the policyholders by reason of his official capacity, should have companyrectly shown it in the account books which ought number to have been falsified by him. It companyld number be companytended that even a mistaken receipt of money in official capacity does number create an obligation upon the receiver as a public servant. We think that it is enough if the payment is made by a person dealing with a public servant in his capacity as a public servant even if it is made on an erroneous assumption which the public servant companycerned does numberhing to remove. Section 409 P.C. seems to us to be meant for the protection, among others of those dealing with public servants purporting to have the authority to act in a certain way in exercise of their official capacities. A lega- defect in the scope of the ostensible authority of a public servant does number prevent an entrustment to or an obligation to be fastened upon a public servant in his capacity as a public servant if the facts of the case establish, as they do in the case before us, the required nexus or companynection between acts which create the obligation and the capacity. We, therefore, hold that the respondent is guilty of an offence punishable under section 409 I.P.C. which companyld be tried by the Special Court. Mr. Hardy, appearing for the. respondent, companytended that, although there companyld be a doubt whether the case would fall under Section 409 I.P.C. there companyld be numbersuch doubt that the respondent was guilty of an offence punishable under Section 403 I.P.C. He also invited our attention to certain facts that, the offence was companymitted more than 15 years ago that, the respondent is number about 64 years in age that, he was dismissed as a result of the misappropriation companymitted by him. He submitted that we at this stage, companyvict the respondent under section 403 I.P.C. and then impose a fine upon him instead of sending him to jail number. He also indicated that the respondent was a refugee from Pakistan who had apparently acted under the stress of straightened circumstances. We do number find all these facts mentioned in the judgments of the two Courts which were examined by us. However, in view of the fact that the offence was companymitted long ago, we think that a less severe sentence than we would have otherwise awarded will meet the ends of justice. Accordingly, we allow this appeal and set aside the orders of the Special Court and the High Court. We companyvict the respondent under section 409 I.P.C. and we sentence him to one years rigorous imprisonment and to pay a fine of Rs.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1131 of 1974 Appeal by Special Leave from the Judgment Order dated 5th February, 1974 of the Madras High Court in W. Appeal No. 67/1974. S. Chitale, K. Alagumalai, R. N. Nath and V. Mayakrishnan,for the appellant. Govind Swaminathan, Advocate General, for the State of Tamil Nadu, A. V. Rangam and A. Subhashini, for respondent No. 1. T. M. Samoath, for respondent No. 2. The Judgment of the Court was delivered by ALAGIRISWAMI, J. The appellant entered service as a Junior Engineer in the Highways Department of the then Province of Madras on 21-8-1946. He was promoted as an Assistant Engineer on 12-3-1951. In 1955 he was selected by the State Public Service Commission as an Assistant Engineer along with respondents 2 to 4 and was Placed above them in rank. In 1957 the 2nd respondent was promoted as Divisional Engineer. Thereupon the appellant made a representation to the Government. He made another representation in the same year. He made two further representations in the year 1968 to companysider his case for promotion as Superintending Engineer along with his juniors. Respondents 2 to 4 were again promoted as Superintending Engineers over the head of the appellant. In 1970 the 5th respondent who was junior to the appellant as Assistant Engineer and Divisional Engineer was promoted Superintending Engineer over the head of the appellant. The appellant himself was promoted as Superintending Engineer on 23-1-1971, He, therefore, filed a writ petition before the High Court of Madras. That petition was dismissed as also the appeal against the dismissal. The main grievance of the appellant is that the 2nd respondent who was junior to him as Assistant Engineer was promoted as Divisional Engineer in 1957 by relaxing the relevant rules regarding the length of service necessary for promotion as Divisional Engineer and that his claim for a similar relaxation was number companysidered at that time. The learned Judge of the Madras High Court who heard the writ petition was of the view that the relaxation of the rules in favour of the 2nd respondent without companysidering the appellants case was arbitrary. In view of the statement on behalf of the Government that such relaxation was given only in the case of overseas scholars, which statement was number companytroverted, it is number possible to agree with the view of the learned Judge,. Be that as it may, if the appellant was aggrieved by it he should have approached the Court even in the year 1957 after the two representations made by him had failed to produce any result. One cannot sleep over the matter and companye to the Court questioning that relaxation in the year 1971. There is the further fact that even after respondents 3 and 4 were promoted as Divisional Engineers over the head of the appellant he did number companye to the Court questioning it. There was a third opportunity for him to have companye to the Court when respondents 2 to 4 were again promoted as Superintending Engineers over the head of the appellant. After fourteen long years because of the tempting prospect of the Chief Engineership he has companye to the Court. In effect he wants to unscramble a scrambled egg. It is very difficult for the Government to companysider whether any relaxation of the rules should have been made in favour of the appellant in the year 1957. The companyditions that were prevalent in 1957 cannot be reproduced number. In any case as the Government had decided as a matter of policy, as they were entitled to do, number to relax the rules in favour of any except overseas scholars t will be wholly pointless to direct them to companysider the appellants case as if numberhing had happened after 1957. Not only respondent 2 but also respondents 3 and 4 who were the appellants juniors became Divisional Engineers in 1957 apparently on the ground that their merits deserved their promotion over the head of the appellant. He did number question it. Nor did he question the promotion of his juniors as Superintending Engineers over his head. He companyld have companye to the Court on every one of these three occasions. A person aggrieved by an order of promoting a junior over his bead should approach the Court at least within six months or at the most a year of such promotion. It is number that here is any period of limitation for the Courts to exercise their powers under Article 226 number is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do number approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put for- ward stale claims and try to unsettle settled matters- The petitioners petition should, therefore have been dismissed in limine. Entertaining such petitions is a waste of time of the companyrt.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 1051 of 1967. Appeal by special leave from the judgment and decree dated July 5, 1966 of the Mysore High Court in Regular First Appeal No. 170 of 1963. T. Desai and I. N. Shroff, for the appellant. K. Mehta and K. L. Mehta, for the respondent. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from a judgment of the Mysore High Court companyfirming the dismissal of a suit for an injunction restraining the respondent from infringing the registered trade mark of the plaintiffs used on packets of biscuits. The facts are as follows. The plaintiffs-appellants before us are manufacturers of biscuits and companyfectionery and are owners of certain registered trade marks. One of them is the word Gluco used on their half pound biscuit packets. Another registered trade mark of theirs is a wrapper with its companyor scheme, general set up and entire companylocation of words registered under the Trade Marks Act 1940 as No. 9184 of 7th December, 1942. This wrapper is used in companynection with the sale of their biscuits known as Parles Gluco Biscuits printed on the wrapper. The wrapper is of buff companyor and depicts a farm yard with a girl in the centre carrying a pail of water and companys and hens around her on the background of a farmyard house and trees. The plaintiffs claim that they have been selling their biscuits on an extensive scale for many years past under the said trade mark which acquired great reputation and goodwill among. the members of the public. They claimed to have discovered in March 1961 that the defendants were manufacturing, selling and offering for sale biscuits in a wrapper which according to them was deceptively similar to their registered trade mark. The plaintiffs assert that this act of the defendant companystitutes an infringement of their trade mark rights. As in spite of lawyers numberice the defendants persisted in manufacturing, selling and using the wrappers companyplained of with regard to their biscuits, the plaintiffs filed the suit claiming injunction as already mentioned. The defendants pleaded ignorance of the registration of the trade marks claimed by the plaintiffs. They denied that the wrapper used by them in companynection with the sale of their biscu its was deceptively similar to the plaintiffs trade marks as alleged or that they had in any way infringed the trade mark rights of the plaintiffs. They pleaded further that there was a good deal of difference in the design of their wrapper from that of the plaintiffs and relied on certain features of their design which were said to be quite dissimilar to those of the plaintiffs wrapper inasmuch as the defendants wrapper companytained the picture of a girl supporting with one band a bundle of hay on her head and carrying a sickle and a bundle of food in the other, the company-, and hens being unlike those of the plaintiffs wrappers. There was also said to be difference in the design of the buildings on the two wrappers and the words printed on the two wrappers were distinct and separate. The trial companyrt meticulously examined the features found on the two wrappers and the packets of biscuits produced before it and took the view that there were greater points of dissimilarity than of similarity between the two and as such it was unlikely that the defendants, goods companyld be passed off as and for the goods of the plaintiffs. After pointing out the distinguishing features of the wrappers, the trial companyrt companycluded that there was numberchance of a seller companymitting fraud on a customer and an ordinary purchaser would certainly refuse to purchase the defendants goods if he was offered them as and for the plaintiffs goods. Accordingly the trial companyrt held that the plaintiffs had failed to establish their case. Although the High Court held that in such a case it was number necessary for the plaintiffs to adduce evidence that any particular individual had been deceived by the defendants wrapper and it was undeniable that the general get up of the two wrappers was more or less similar, it went on to observe that the companyrt had to bear in mind that it was dealing with packets of biscuits which were generally used by people of the upper classes, and a purchaser desirous of getting a packet of Parle biscuits would go and ask for the same as such, in which case there companyld be numberscope for deception again the plaintiffs companyld have numbercause for grievance if a purchaser was companytent to buy any biscuits which were offered to him by the shopkeeper. The High Court also took the view that there were several distinguishing features between the two wrappers and these companyld be numbericed even from a distance. According to the High Court, the similarity in the two wrappers lay in the facts that both were partly yellow and partly white in companyor and both bore the design of a girl and some birds. But the High Court said there the similarity ends. The lady in the wrapper used by the plaintiff companypany has a pot on her hand while, the lady in the wrapper used by the defendant has a hay- bundle on her head. In fact, they are number identical in features. In the defendants wrapper we have got a company and in the plaintiffs wrapper we have got two calves. The upper portion of the defendants wrapper is number similar to that of the ,Plaintiffs wrapper. The High Court went on to companyment it is true that in a passing off action, one is number to look to minor details but must take into companysideration the broad features. Even if we take the broad features of the two wrappers into companysideration, we do number think that they are similar. At any rate, they are number so similar as to deceive an ordinary purchaser of biscuits. With due respect to the learned Judges of the High Court, we are companystrained to remark that they fell into an error. The plaintiffs marks were registered under the Trade Marks Act, 1940 which was however repealed by S. 136 of the Trade and .,Merchandise Marks Act, 1958. Under sub-s. 2 of the said section any registration under the Act of 1940 if in force at the companymencement of the Act of 1958 was to companytinue in force and have effect as if made, issued and given under the companyresponding provisions of the Act of 1958. Under S. 21 1 of the Act of 1940 the registration of a person in the register as proprietor of a trade mark in respect of any goods gave to that person the, exclusive right to the use of the Trade mark in relation to those goods and that right was to be deemed to be infringed by any person who, number being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, used a mark identical with it or so nearly resembling it as to be likely to deceive or cause companyfusion, in the companyrse of trade, in relation to any goods in respect of which it was registered. Under s. 28 1 of the Trade and Merchandise Marks Act, 1958 the registration of a trade mark in Part A or Part B of the register gave to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark was registered and to obtain relief in respect of the infringement of the trade mark in the manner provided by the Act. Under s. 29 1 A registered trade mark is infringed by a person who, number being the registered proprietor of the trade mark or a registered user thereof using by way of permitted use, uses in the companyrse of a trade a mark which is identical with, or deceptively similar to, the trade mark, in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. The expression .deceptively similar has number been defined under s. 2 d of the Act of 1958 thus A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause companyfusion It is to be numbered that although there was numbersuch provision in the definition section of the Act of 1940 s. 21 1 of the said Act was to the same effect. The Indian Trade Marks Act of 1940 was based on the English Trade Marks Act, 1938 and s. 21 of the Act of 1940 was more or less similar to s. 4 of the English Act of 1938. To decide the question as to whether the plaintiffs right to a trade mark has been infringed in a particular case, the approach must number be that in an action for passing off goods of the defendant as and for those of the plaintiff. According to this, Court in Durga Dutt v. Navaratna Laboratories 1 While an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is number the gist of an action for infringement. The action for infringement is a statutory remedy companyferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of t he trade mark, in relation to those goods vide s. 21 of the Act . The, use, by the defendant of the trade mark of the plantiff is number essential in an action for passing off, but is the sine qua number in the case of an action for infringement. In the above case the Court further pointed out In an action for infringement, the plaintiff must, numberdoubt, make out that the use of the defendants mark is likely to deceive, but where the similarity between the plaintiffs and the defendants mark is so close either visually, phonetically or otherwise and the companyrt reaches the companyclusion that there is an imitation, numberfurther evidence is required to establish that the plaintiffs rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets hi which he offers his goods for sale show marked differences, or indicate clearly a trade or in different from that of the regis- tered proprietor of the mark would be material whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff. According to Karlys Law of Trade Marks and Trade 9th edition paragraph 838 Two marks, when placed side by side, may exhibit many and various differences vet the main idea left on the mind by both may be the same. A person acquainted with one mark, and number having the two side by side .lm0 1 1965 1 S.C.R. 737. 754 for companyparison, might well be deceived, if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which. bore tile same mark as that with which he was acquainted. Thus, for example, a mark may represent a game of football another mark may show players in a different dress, and in very different positions, and yet the idea companyveyed by each might be simply a game of football. It would be too much to expect that persons dealing with trade-marked goods, and relying, as they frequently do, upon marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rat her by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover, variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for reasons of their own. It is therefore clear that in order to companye to the companyclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be companysidered. They should number be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case we find that the packets are practically of the same size, the companyor scheme of the two wrappers is almost the same the design on both though number identical bears such a close resemblance that one can easily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying something in the other with a company or companys near her and hens or chickens in the foreground. In the background there is a farm house with a fence. The word Gluco Biscuits in one and Glucose Biscuits on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone in ,our opinion who has a look at one of the packets to-day may easily mistake the other if shown on another day as being the same article which he had seen before. If one was number careful enough to numbere the peculiar features of the wrapper on the plaintiffs goods, he might easily mistake the defendants wrapper for the plaintiffs if shown to. him some time after he had seen the plaintiffs. After all, an ordinary purchaser is number gifted with the powers of observation of a Sherlock Holmes. We have therefore numberdoubt that the defendants wrapper is deceptively similar to the plaintiffs which was registered. We do number think it necessary to refer to the decisions referred to at the Bar as in our view each case will have to be, judged on its own features and it would be of numberuse to numbere on how many points there was similarity and in how many others there was absence of it. It was argued before us that as both the trial companyrt and the High Court had companye to the same companyclusion namely, that the defendants, wrapper was number deceptively similar to the plaintiffs, the finding is one of fact which should number be disturbed by this Court. Normally, numberdoubt this Court does number disturb a companycurrent finding of fact. But where, as here, we find that,, the finding was arrived at number on proper companysideration of the law on the subject it is our duty to set the same aside on appeal. In the result, we hold that the defendant had infringed the registered trade mark of the plaintiff and the suit of the plaintiff should be decreed and an injunction granted restraining the defendant-respondent from selling or using in any manner whatsoever biscuits in wrappers similar in appearance to the registered trade mark of the plaintiffs on their packets. The appellants will be entitled to their companyts throughout.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 2 of 1972. Appeal by Special- Leave from the judgment and order dated April 13, 1970 of. the Allahabad High Court in Special Appeal No. 1074 of 1968. C. Setalvad, P. N. Tiwari J. B. Dadachanji and Co. for the appellant. K. Garg and S. C. Agarwal, for the respondents. The Judgment of the Court was delivered by Mathew, J. The appellant filed a writ petition before the High Court of Allahabad, Lucknow Bench, challenging the validity of a resolution passed on 12-11-1967 by the Managing Committee of the Jai Narain College, Lucknow, formerly known as Kanyakubja Degree College, an associated companylege of the Lucknow University, terminating his services, and praying for issue of an appropriate writ or order quashing the resolution. A learned single judge of that Court, finding that in terminating the services, the Managing Committee acted in violation of principles of natural justice, quashed the resolution and allowed the writ petition. The Managing Committee appealed against the order. A Division Bench of the High Court found that the relationship between the College and the appellant was that of master and servant and that even if the service of the appellant has been terminated in breach of the audi alteram partem rule of natural justice, the remedy of the appellant was to file a suit for damages and number to apply under Article 226 of the Constitution for a writ or order in the nature of certiorari and that in fact numberprinciple of natural justice was violated by terminating the services of the appellant as the appellant was given an opportunity of submitting his explanation to the charges. The Bench, therefore, set aside the order of the learned single judge and dismissed the writ petition. It is from this judgment that the appeal has been preferred by special leave. The appellant joined the service of the companylege as lecturer in 1946. He was promoted to the post of Head of the Department of Zoology in 1959. On the basis of certain companyplaints against him received by the Manager of the College, charges were framed against him and his explanation was called for. He submitted an explanation. The explanation was found number to be satisfactory and the Managing Committee passed a resolution on 12-11-1967 for removal of the appellant from service. As already stated, this was the resolution challenged by the appellant in the writ petition. On behalf of the appellant, Mr. M. C. Setalvad, companytended that the appellant had a statutory status, that his services were terminated in violation of the provisions of statutes passed under the.Lucknow University Act, 1920 and, therefore the High Court was wrong in its companyclusions that numberapplication for a writ or order in the nature of certiorari would lie. He further submitted that the appellant was number given a reasonable opportunity of defending himself against the charges. it is well settled that, when there is a purported termination of a companytract of service, a declaration that the companytract of service still subsisted would number be made in the absence of special circumstances, because of the principle that Courts do number ordinarily enforce specific performance of companytracts of service see Executive Committee of U.P. State Warehousing Corporation Ltd. v. Chandra Kiran Tyagi 1 and Indian Airlines Corporation v. Sukhdeo Rai . If the master rightfully ends the companytract, ,there can be numbercomplaint. If the master wrongfully ends the companytract, then the servant can pursue a claim for damages. So even if the master wrongfully dismisses the servant in breach of the companytract, the employment is effectively terminated. In Ridge v. Baldwin 3 , Lord Reid said in his speech The law regarding master and servant is number in doubt. There cannot be specific performance of a companytract of service, and the master can terminate the companytract with his servant at any time and for any reason or for numbere. But if he does so in a manner number 1 1970 2 S.C.R 250. 2 A.I.R. 1971 S.C. 1828- 3 1965 Weekly Law Reports, Vol 1, 79. warranted by the companytract he, must pay damages for breach of companytract. So the question in a pure case of master and servant does n ot at all depend on whether the master has heard the servant in his own defence it depends on whether the facts emerging at the trial prove breach of companytract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of companytract which it can make with its, ser- vants, or the grounds on which it can dismiss them. A teacher appointed by a University companystituted under a statute was held number to be holding an office or status in Vidyodaya University v. Silva 1 . In that case the services of the respondent was brought to an end by a resolution of the University Council set up under the statute establishing the University. The resolution was admittedly passed without hearing the teacher. Under the statute, the Council was empowered to institute professorships and every appointment was to be by an agreement in writing between the University and the professor and was to be for such period and on such terms as the Council might resolve. Under section 18 e of the Act, the Council had the power to dismiss an officer or a teacher on grounds of incapacity or companyduct which, in the opinion of number less than two-third of the members of the Council, rendered him unfit to be an officer or a teacher of the University. Such a resolution with the requisite majority was passed. The Act gave numberright to the teacher of being heard by the Council. The Privy Council held that the mere circumstances that the University was established by the statute and was regulated by statutory enactments companytained in the Act did number mean that the companytracts of employment made with teachers, though subject to section 18 e , were other than ordinary companytracts of master and servant and, therefore, the procedure of being heard invoked by the respondent was number available to him and numberwrit companyld be issued against the University. The decision in this case has been criticised by academic .writers see Jaffe, English and American Judges as Law Makers, p. 26 S.A. de Smith, Judicial Review of Administrative Action, pp. 214-215 G. Ganz, Public Law Principles applicable to Dismissal from Employment, Modem Law Review, Vol. 30 pp. 288291 . Recently the House of Lords companysidered the question in Malloch v. Aberdeen Corporation 2 . That case companycerned a teacher in Scotland who was dismissed by the Education Committee for the reason that he was number registered in terms of paragraph 2 of schedule 2 to the Teachers Education, Training and Registration Scotland Regulations, 1967, made under section 1 1964 3 All F.R. 865. 2 1971 1 W.L.R. 1578. 2 1 of the Education Scotland Act, 1962, and the amending regulation 4 2 of the Schools Scotland Code, 1956. In an action against the education authority, he claimed that the purported dismissal was a nullity in that it was companytrary to natural, justice since he had number been given a hearing. It was held Lord Morris and Lord Guest dissenting that the teacher had a right to be heard before he was dismissed as according to the majority he was holding an office. In the companyrse of his speech, Lord Wilberforce made certain observations A companyparative list of situations in which persons have been held entitled or number entitled to a hearing, or to observation of rules of natural justice, according to the master and servant test, looks illogical and even bizare. A specialist surgeon is denied protection which is given to hospital doctor a University professor, as a servant, has been denied the right to be heard, a dock laborer and an undergraduate have been granted it examples can be multiplied see Barber v. Manchester Regional Hospital Board 1958 1 L.R. 181, Palmar v. Inverness Hospitals Board of Management, 1963, .C. 311, Vidyodaya University Council v. Silva 1965 1 L.R. 77, Vine v. National Dock Labour Board 1957 A.C. 488, Glynn v. Keele University 1971 1 W.L.R. 4871. One may accept that if there are relationships in which all requirements of the observance of rules of natural justice are excluded and I do number wish to assure that this is inevitably so , these must be companyfined to what have been called pure master and servant cases, which I take to Mean cases in which there is numberelement of public employment or service, numbersupport by statute, numberhing in the nature of an office or a status which is capable of protection. If any of these elements exist, then, in my opinion, whatever the terminology used, and even though in some inter parties aspects the relationship may be called that of master and servant, there may be essential procedural requirements to be observed, and failure to observe them may result in a dismissal being declared to be void. and then he said as regards the decision in VidyodaYa University, Council v. Silva 1 It would number be necessary or appropriate to disagree with the procedural or even the factual basis on which this decision rests but I must companyfess that I 1 1964 3 All E.R. 865. companyld number follow it in this companyntry in so far as it involves a denial of any remedy of administrative law to analogous employments. Statutory provisions similar to those on which the employment rested would tend to show, to my mind, in England or in Scotland, that it was one of a sufficiently public character, or one partaking sufficiently of the natu re of an office, to attract appropriate remedies of administrative law. Whether the decision in Vidyodaya University Council v. Silva 1 is companyrect or number, in this. case, we think there was numberelement of public employment, numberhing in the nature of an office or status which is capable of protection. In S. R. Tewari v. District Board, Agra 2 , this Court formulated the exceptions to the general rule that when there is a termination of a companytract of service, a declaration that the companytract of service still subsisted would number be made, by saying But this rule is subject to certain well recognised exceptions. It is open to the Courts, in an appropriate case, to declare that a public servant who is dismissed from service in companytravention of Article 311 companytinues to remain in service, even though by so doing the State is in effect forced to companytinue to employ the servant whom it does number desire to employ. Similarly, under the industrial law, jurisdiction of the labour and industrial tribunals to companypel the employer to employ a worker, whom he does number desire to employ, is recognised.- The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by the statute, even if by making the declaration the body is companypelled to do something which it does number desire to do. Mr. Setalvad companytended that since the companylege in question is affiliated to a statutory body, namely, the University of Lucknow,and is governed by the relevant statutes and ordinances framed under the provisions of Lucknow University Act, 1920, any violation of the statute or the ordinance in the matter of terminating the services of a teacher would attract the jurisdiction of the High Court under Article 226 of the Constitution as statutes and ordinances have the force of law. In support of this, companynsel relied upon the decision of this Court in Prabhakar Ramakrishna Jodh v. A. Pande and another . The appellant before this Court in that case was a teacher in a companylege affiliated to the University of Saugar and managed by the Governing Body 1 1964 3 All E.R. 865. 2 1964 3 S.C.R. 55. 3 1965 2 S.C.R. 713. established under the provisions of the relevant ordinance made under the University of Saugar Act. Certain charges were framed against the appellant by the Principal of the College and he was asked to submit his explanation. The appellant in his explanation denied all the charges and requested for particulars on which one of the charges was based. The particulars were number supplied and the Governing Body terminated his services without holding any enquiry. The appellant moved the High Court under Article 226 of the Constitution for a writ quashing the order of the Governing Body and for his reinstatement. He companytended that the Governing Body had made the order in violation of the provisions of Ordinance 20, otherwise called the College Code, framed under section 32 of the University of Saugar Act read with section 6 6 of that Act. Clause 8 vi a of the College Code provided that the Governing Body of the companylege shall number terminate the services of a companyfirmed teacher without holding an enquiry and without giving him an opportunity of defending himself. The High Court held that the companyditions of service of the appellant were governed number by the College Code but by the companytract made between the Governing Body and the appellant under clause 7 of the College Cod-which stated that all teachers of the companylege shall be appointed under a written companytract in the form prescribed-, that the provisions of the College Code were merely companyditions prescribed for affiliation of companyleges and that numberlegal rights were created by the College Code in favour of the teachers of the affiliated companyleges as against the Governing Body. The High Court, therefore, dismissed the petition. In appeal to this Court it was held that the College Code had the force of law and that it number merely regulated the legal relationship between the affiliated companyleges and the University but also companyferred legal rights on the teachers of affiliated ,colleges. The Court further said It is true that Clause 7 of the Ordinance provides that all teachers of affiliated companyleges shall be appointed on a written companytract in the form prescribed in Sch. A but that does number mean that teachers have merely a companytractual remedy against the Governing Body of the College. On the other hand, we are of opinion that the provisions of Clause 8 of the Ordinance relating to security of the tenure of teachers are part and parcel of the teachers service companyditions When once this Court came to the companyclusion that the College Code had the force of law and companyferred rights on the teachers of affiliated companyleges, the right to challenge the order terminating the services of the appellant, passed in violation of clause 8 vi a of the College Code in a proceeding under Article 226 followed as the night the day and the fact that the appellant had entered into a companytract was companysidered as immaterial. In the case in hand, the position is entirely different. The relevant statutes governing this case are statutes 151, 152 and 153, framed under the provisions of the Lucknow University Act, 1920. Statute 151 provides that teachers of an Associated College including the principal shall be appointed on written companytract and that the companytract shall inter alia provide the companyditions mentioned therein in addition to such other companyditions number inconsistent with the Act and the statutes as an Associated College may include in its own form of agreement. Then the companyditions as regards salary, age of retirement, etc., are enumerated. The statute then goes on to specify the grounds on which a teachers services can be terminated. Statute 152 states that the form of agreement to be adopted by each companylege shall be approved by the Executive Council before it is put in force. Statute 153 provides for a form of agreement which shall serve as a model. It may be numbered that statute 151 does number provide for any particular procedure for dismissal or removal of a teacher for being incorporated in the companytract. Nor does the model form of companytract lay down any particular procedure for that purpose. The appellant had entered into an agreement when he was employed in the companylege. Clause 5 of the agreement provided that the period of probation shall be one year unless extended by the Managing Committee and the College may at any time during the said period of probation put an end to this engagement, or if service shall companytinue beyond the said term, at any time thereafter, dispense with the services of the said Lecturer without numberice, if the Managing Committee of the said College is satisfied that it is necessary to remove the said Lec- turer for misconduct, insubordination or habitual neglect of duty on the part of the said Lecturer or in case any of the companyditions herein specified have been broken by the said Lecturer provided that an oppor- tunity is given to him by the said Managing Committee to give his explanation before a decision is arrived at. On a plain reading statute 151, it is clear that it only provides that the terms and companyditions mentioned therein must be incorporated in the companytract to be entered into between the companylege and the teacher companycerned. It does number say that the terms and companyditions have any legal force, until and unless they are embodied in an agreement. To put it in other words, the terms and companyditions of service mentioned in Statute 151 have proprio vigore numberforce of law. They become terms and companyditions of service only by virtue of their being incorporated in the companytract. Without the companytract, they have numbervitality and can companyfer numberlegal rights. Whereas in the case of Prabhakar Ramakrishna Jodh v. A. L. Pande and another 1 , the terms and companyditions of service embodied in clause 8 vi a of the College Code had the force of law apart from the companytract and companyferred rights on the appellant there, here the terms and companyditions mentioned in Statute 151 have numberefficacy, unless they are incorporated in a companytract. Therefore, appellant cannot found a cause of action on any breach of the law but only on the breach of the companytract. As already indicated, Statute 151 does number lay down any procedure for removal of a teacher to be incorporated in the companytract So, clause 5 of the companytract can, in numberevent, have even a statutory flavor and for its breach, the appellants remedy lay elsewhere. Besides, in order that the third exception to the general rule that numberwrit will lie to quash an order terminating a companytract of service, albeit illegally, as stated in S. R. Tewari v. District Board, Agra 2 might apply, it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obligation imposed by a statute.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1845 and 1846 of 1968. Appeals by special leave from the judgment and order dated January 10, 1968 and October 20, 1967 of the Mysore High Court in Writ PetitiOns Nos. 1519 of 1067 and 1216 of 1965- respectively. Jagdish Swarup, Solicitor-General of India and S. P. Nayar, for the appellants in all the appeals . S. Javali and M. Veerappa, for respondent No. 1 in As. Nos. 184-1 and 1946 of 1968 . L. Bhatia for respondents Nos. 1 and 2 in C.A. No. 50 of 1969. K. Mehta, K. L. Mehta and K. R. Nagaraja, for the Intervener in C.A. No. 1845 of 1968 . The Judgment of the Court was delivered by Khanna, J. Whether the criterion to determine the seniority of R avi Varma and Ganapathi Kini respondents should be length of service in accordance with the Office Memorandum dated June 22, 1949 issued by the Ministry of Home Affairs, as claimed by the said respondents, or whether it should be the date of companyfirmation, as claimed by the appellants, is the main question which arises for decision in civil appeals Nos. 1845 and 1846 of 1968 which have been filed by the Union of India and two others by special leave against the judgment of Mysore High Court. Similar question arises in respect of the seniority of Suresh Kumar and Tara Chand Jain, respondents in civil appeal No. 50 of 1969 which has been filed by the Union of India and two others on a ,certificate granted by the Punjab and Haryana High Court against the judgment of that Court reversing in Letters Patent appeal the ,decision of the single judge and issuing a writ in favour of those respondents. The High Court held in all the cases that the seniority of the companycerned respondents should be determined on the basis of the length of service in accordance with the above ,mentioned Office Memorandum. Before giving the facts of the three cases, it would be pertinent to refer to two Office Memoranda issued by the Ministry of Home Affairs. One of the memoranda is dated June 22, 1949. It was mentioned in this memorandum that the Government of India had under companysideration the question of the fixation of seniority of displaced government servants and temporary employees in the various grades. Employees of the Central Government who were displaced from their offices in Pakistan, according to the memorandum, had been absorbed in offices under the companytrol of the same administrative ministry or on numberination by the Transfer Bureau of the Ministry of Home Affairs in other offices. All those persons had been appointed, with a few exceptions, on tem- porary basis. The Ministry of Home Affairs accordingly companyveyed the following decision It has number been decided in companysultation with the Federal Public Service Commission that the question of seniority in each grade should also be examined in the same companytext and specific rules suitable for each service prescribed in framing those instructions. The question of seniority of Assistants in the Secretariat was recently examined very carefully in companysultation with all the Ministries and Federal Public Service Commis- sion and the decisions reached are incorporated in para 8 of the Instructions for the initial companystitution of the grade of Assistants an extract of which is attached. It has been decided that this rule should generally be taken as the model in traming the rules of seniority for other services and in respect of persons employed in any particular grade seniority should, as a general rule, be determined on the basis of the length of service in that Grade irrespective of whether the latter was under the Central or Provincial Government of India or Pakistan. It has been found difficult to work on the basis of companyparable posts or grades and it has there- fore been decided that Service in an equivalent Grade, should, generally be defined as service on a rate of pay higher than the minimum of the time scale of the grade companycerned. The seniority of persons appoi nted on permanent or quasi-permanent basis before the 1st January, 1944 should, however number be disturbed. Direction was accordingly issued by the Ministry of Home Affairs that the principles given in the Memorandum be borne in mind in determining the seniority of Government servants of various categories employed under the Ministry of Finance, etc. On December 22, 1959 another Office Memorandum was issued by the Ministry of Home Affairs on the subject of the general principles for determining seniority of various categories of persons employed in Central services. Material part of this memorandum was as under The instructions companytained in this Ministrys Office Memorandum No. 30/44/48-Apptts, dated the 22nd June, 1949, were issued in order to safeguard the interests of displaced Government servants appointed to the Central Services after partition. As it was number possible to regulate the seniority of only displaced Government servants by giving them credit for previous service, the instructions were made applicable to all categories of persons appointed to Central Services. The principles companytained in the 22nd June, 1949, orders were extended to- ex-Government servants of Burma appointed to Central Services and the employees of former part B States taken over to the Centre as a result of Federal Financial Integration. The instructions companytained in this Ministrys Office Memorandum No. 32/10/49-CS dated the 31st March-, 1950 and No. 32/49-CS C , dated the 20.h September, 1952 similarly regulate the seniority of candidates with war service appointed to the Central Services. The question has been raised whether it is necessary to companytinue to apply the in structions companytained in the-Office Memoranda cited above. Displaced Government servants have by and large been absorbed in the various Central Services and their seniority has been fixed with reference to the previous service rend--red by them. Similarly, the seniority of ex-employees of the Government of Burma and of Part B States as we I as of candidates with war service has already been determined in accordance with the instructions cited above. As the specific objects underlying the instruction is cited above have been achieved, there is numberlonger any reason to apply those instructions in preference to the numbermal principles for determination of seniority. It has, therefore, been decided in companysultation with the Union Public Se-vice Commission, that hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accordance with the General principles annexed hereto. The instructions companytained in the various office memoranda cited in paragrah I above are hereby cancelled, except in regard to determination of seniority of persons appointed to the various Central Services prior to the date of this Office Memorandum. The revised General principles embodied in the Annexure will number apply with retrospective effect, but will companye into force with effect from the date of issue of these orders, unless a different date in respect of any particulate service grade from which these revised principles are to be adopted for purposes of determining seniority has already been or is hereafter agreed to by this Ministry., Relevant parts of paragraphs 2, 3 and 4 of the Annexure to this Memorandum were as under 2 Subject to the Provision of para 3 below, persons appointed in a substantive or officiating capacity to a grade prior to the issue of these general principles shall retain the relative seniority already assigned to them or such seniority as may hereafter be assigned to them under the existing orders applicable to their cases and shall en-bloc be senior to all others in that grade. Subject to the provisions of para 4 below, permanent officers of each grade shall be ranked senior to persons who are officiating in that grade. Direct Recruits Notwithstanding the provisions of para 3 above, the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment, on the recomendations of the P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection. Ravi Varma, respondent No. 1 in civil appeal No. 1845 of 1968. was appointed as an Inspector in the Central Excise Collectors in Madras on 27-5-47 and was companyfirmed on 7-4-56. Ganapathi Kini respondent No. 1 in civil appeal No. 1846, was appointed as an inspector in the Central Excise Collectorate in Madras on 28-5-47. In view of the war service rendered by Ganapathi Kini, his service for purposes of seniority was companyputed with effect from 10-10-46 and he was companyfirmed on 7-4-56. Ganapathi Kini and Ravi Varma were shown at serial Nos. 115 and 141 in accordance with the length of service in seniority list of inspectors prepared in 1959. Subsequently on the directions of the Central Board of Revenue companytained in letter dated October 19, 1962, a revised seniority list was prepared in 1963 by companyputing seniority from the date, of companyifirmation. In the revised list Ganapathi Kini and Ravi Varma were shown at serial, Nos. 149 and 150, junior to persons to whom they had been shown senior in the earlier seniority list. Ganapathi Kini and Ravi Varma thereupon filed petitions under article 226 of the Constitution of India praying for quashing the revised seniority list prepared in 1963. The main ground taken in the writ petitions was that the seniority should be determined according to length of service in terms of Office Memorandum dated June 22, 1949 of the Ministry of Home Affairs. Impleaded in the writ petitions as respondents were the Union of India, the Central Board of Revenue and the Collector of Central Excise as also those inspectors of Central Excise who, according to the petitioners, were junior to them but who on account of being shown senior to the petitioners in the revised seniority list, had been appointed as Senior Grade Inspectors of Central Excise. The above mentioned writ petitions were resisted by the appellants. The learned judges of the Mysore High Court referred to the memoranda dated June 22, 1949 and December 22, 1959 -L736SupCI/72 and held that the altered rule embodied in the Memorandum dated December 22, 1959 for the determination of seniority would be inapplicable to persons appointed before June 22, 1949 like Ganapathi Kini. Argument was advanced on behalf of the appellants that on July 3, 1957 the Central Board of Revenue had again adopted the rule that the date of the companyfirmation should form the basis for determination of seniority. This argument did number find favour with the learned judges,and it was observed But what is however clear is that in the case of a person like the petitioner who was appointed before June 22, 1949 the rule made by the Ministry of Home Affairs on that date was what companystituted the basis for the determination of seniority and number the rule which was revived by the Central Board of Revenue on July 3, 1957. Direction was accordingly issued that Ganapathi Kinis seniority should be determined on on basis of the formula companytained in the Office Memorandum dated June 22, 1949 and the revised seniority list be rectified accordingly. In the petition filed Ravi Varma the High Court made a short order when, after-referring the decision in the case of Ganapathi Kini, the learned judges granted similar relief to Ravi Varma. Suresh Kumar, respondent No. 1 and Tara Chand Jain, res- pondent No 2 in civil appeal No. 50 of 1969 were appointed as Lower Division Clerks in the Medical Stores Depot, Karnal under the Directorate General of High Services on October 9, 1950 and November 26 1951 respectively. Both of them were company firmed on March 31, 1960. In the Seniority list which was Prepared in accordance with Office Memorandum dated June 22, 1949 Suresh Kumar and Tara-Chand Jain, respondents, were shown at serial Nos. 32 and 34 in accordance with their length of Service. Subsequently Memorandum dated June 19, 1963 Was received from the Directorate General of Health Services in which there was a reference to the Ministry of Home Affairs office Memorandum date December 22, 1959. It was stated in the Memorandum from the Directorate General of Health Services that scheduled castes and scheduled tribes candidates who were companyfirmed in reserved vacancies would rank senior to temporary, including quasi-permanent persons irrespective of their position in the seniority list. A revised seniority list was thereafter prepared and a number of scheduled castes candidates who had been recruited later but had been companyfirmed earlier than Suresh Kumar and Tara Chand Jain were shown senior. Suresh Kumar and Tara Chand Jain were thus shown at serial Nos. 40 and 42 in the revised seniority list Suresh Kumar and Tara Chand Jain thereafter filed petition tinder article 226 and 227 of the Constitution of India for quashing the instructions companytained in the Memorandum dated June 19, 1963 issued by the Directorate General of Health Services is well its the revised seniority list and other companysequential reliefs. Impleaded is respondents in the petition were the Union or India, the Director General of Health Services, the Deputy Assistant Director General Medical Stores, as well astoother schedule castes employees of the Medical Stores Depot Karnal who had been shown senior to the petitioners in the revised seniority list. The above petitions were resisted by the appellants and were dismissed by the learned single judge. On Letters Patent appeal the judgment of the single judge was reversed and it was held thatSuresh Kumar and Tara Chand Jain having been appointed prior to December 22, 1959 were Governed by the rule of seniority companytained in the Office Memorandum dated June 22, 1949 issued by the Ministry of Home Affairs. This position, in the opinionof the learned judges, was number affected by the subsequent OfficeMemorandum issued by the Ministry of Home Affairs. So far asthe Memorandum dated June 19, 1963 issued by the Directorate General of Health Services was companycerned, it was found to be number in companysonance with the Office Memoranda issued by the Ministry of Home Affairs on June 22, 1949 and December 22, 1959. Assuch the Memorandum issued by the Directorate General of Health Services, according to the learned judges, companyld number affect the seniority of Suresh Kumar and Tara Chalid Jain. In the result the revised seniority list was held to be invalid and theUnion of India and two other appellants were directed to prepare a revised seniority list in accordance with the original seniority of Suresh Kumar and Tara Chand Jain. The learned Solicitor General on behalf of the appellants has at the outset referred to Memoranda dated June 22, 1949 and December 22, 1959 issued by the Ministry of Home Affairs and has argued that after the issue of the latter Memorandum the seniority of all Central Government employees should be determined by the date of their companyfirmation and number oil the basis of the length of service. let this companynection, we find, that the of a large number of Government employees After the partition of the companyntry from areas number forming part of Pakisthan resulted in a situation wherein the Government had to review the Jules relating to seniority, As most of those displaced Government servants had been employed on temporary, basis and as it was felt that they should be given some weighage in the matter of seniority on companypassionate grounds, the rule was evolved that the seniority 1000 should be determined on the basis of the length of service in equivalent grades. The seniority of persons appointed on permanent basis or quasi-permanent basis before January 1, 1944 was, however, left undisturbed. Further, as it was number possible to regulate the seniority of only displaced Government servants by giving them credit for previous service, the instructions were made applicable to all categories of persons appointed to Central services. Office Memorandum dated June 22, 1949 was companysequently issued. The above principles were also extended to other category of Government employees, including those with war service. The matter was reviewed thereafter in 1959. The Government then found that displaced Government servants had by and large been absorbed in the various Central services and their seniority had been fixed with reference to the previous service rendered by them. Same was found to be the position of other Government servants who had been given the benefit of the principles companytained in Memorandum dated June 22,.1949. As the objects underlying the instructions of June 22, 1949 had been achieved and it was numberlonger companysidered necessary to apply those instructions in preference to the numbermal principle for determination of seniority, it was decided that the seniority of Central Government employees would henceforth be determined in accordance with the general principles companytained in Annexure to the Office Memorandum issued by the Ministry of Home Affairs on December 22, 1959. One ,of those principles was that permanent officiating of each grade would I ranked senior to persons who were, officiating in that grade. The effect of that, as submitted by the learned Solicitor General, was that the seniority was to be determined by the date of companyfirmation and number on the basis of length of service as was the rule companytained in the Office Memorandum dated June 22, 1949. The Office Memorandum dated December 22, 1959, however, expressly made it clear that the general principles embodied in the Annexure thereto were number to have retrospective, effect. In ,order to put the matter beyond any Pale of companytroversy, it was mentioned that hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accor dance with the General principles annexed hereto. It is, therefore, manifest that except in certain cases with which we are number companycerned, the Office Memorandum dated December 22, 1959 and the provisions laid down in the Annexure thereto companyld number apply to persons appointed to the various Central services before the date of that Memorandum. It may also be mentioned that while dealing with the above Memorandum, this Court in the case of Mervyn Coutindo Ors. 1001 Collector of Customs, Bombay Ors. 1 observed that these principles were number to apply retrospectively but were given effect to form the date of their issue, subject to certain reservations with which we are number companycerned. It has next been argued by the learned Solicitor General that whatever might be the positioned in respect of the employees in other Central services, so far as the clerks, supervisors and inspectors under the Central Board of Revenue were companycerned, a decision was taken that for purposes of promotion, the permanent employees should have precedence before numberpermanent employees. Our attention in this companynection has been invited to letter dated March 15, 1958 sent by the Central Board of Revenue to all Collectors of Central Excise. In this letter there was a reference to an earlier letter dated July 3, 1957 from the Board and it was mentioned that the instructions companytained in the earlier letter that for purposes of promotion from ministerial grade to inspectors grade, permanent clerks would first be companysidered before companysidering persons who were number- permanent, should be followed in respect of promotions to other grades also. The Solicitor General accordingly companytends that the direction companytained in the Memorandum dated December 22, 1959 that it companyld number apply to employees appointed before that date would number hold good in the case of clerks, supervisors and inspectors functioning under the Central Board of Revenue. It is, in our opinion, number necessary to go into this aspect of the matter because we find that the Central Board of Revenue as per letter dated August 27, 1971 addressed to all Collectors of Central Excise, gave fresh instructions regarding the principles of seniority. In this letter there was a reference to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and it was stated In supersession of all previous orders on the subject, it has number been decided that-in so far as the numbergazetted staff in the Central Excise, Customs and Narcotics Departments and other subordinate offices are companyceded, the seniority of persons appointed to various posts and services after receipt of these orders should be regulated in accordance with the Ministry of Home Affairs O.Ms. referred to above. It would follow from the above that so far as the number- gazetted staff 1 in the Central Excise, Customs and Narcotics Departments and other subordinate offices of the Central Board of Revenue are 1 19663 S.C.R. 600. 1002 companycerned, the question of seniority would have to be decided in accordance with the Office Memorandum dated 19-10-1959. As the said Office Memorandum has, except in certain cases with which we are number companycerned, applied the rule of seniority companytained in the Annexure thereto only to employees appointed after the date of that Memorandum, there is numberescape from the companyclusion that the seniority of Ganapathi Kini and Ravi Varma, respondents, who were appointed prior to December 22, 1959, would have to be determined on the basis of their length of service in accordance with Office Memorandum dated Julie 22, 1949 and number on the basis of the date of their companyfirmation. In civil appeal No. 50 of 1969 the learned Solicitor General has referred to Office Memoranda dated January 28, 1952, April 20, 1961 and March 27, 1963 issued by the Ministry of Home Affairs to show a departure from the rule of seniority for the benefit of members of scheduled castes and scheduled tribes. Office Memorandum dated January 28, 1952 makes provision for companymunal representation in services for candidates to scheduled castes and scheduled tribes as also the Anglo Indian companymunity. The Memorandum gives a model roster which should be applied in filling the vacancies. Perusal of the Memorandum shows that it relates only to recruitment and has numberhing to do with the rule of seniority. Office Memorandum dated April 20, 1961 deals with the ques- tion of seniority of direct recruits who were companyfirmed in an order different from the original order of merit. According to the Memorandum, it often happens that a scheduled caste or scheduled tribe candidate occupying a lower position in the merit list is appointed permanently to a reserved vacancy, while candidates above him in the merit list are number appointed at that time. If such candidates are appointed in the following year, they are numbere entitled to a higher seniority on the ground that in the previous year they had obtained a higher position in the merit list. It is plain that the above Office Memorandum did number deal with the question of seniority on the basis of length of service as companytained in Office Memorandum dated June 22, 1949 but with the question a, to what would be the effect if a direct recruit scheduled caste or scheduled tribe candidate though occupying a lower position in the merit list, is companyfirmed earlier in a reserved vacancy. We are in the present case number companycerned with any merit list number with any question of seniority based on such a list. As such, Office Memorandum dated April 20, 1961 is also of number any material help to the appellants. It may be stated that the companynsel for the appellants in the High Court companyceded that the above Memorandum had numberdirect relevance in the present companytroversy. 1003 The third Office Memorandum dated March 27, 1963 referred to by the learned solicitor General deals with the subject of maintenance of roster for giving effect to the reservations provided for scheduled castes and scheduled tribes in Central Government services. This Memorandum has a bearing only on the question of recruitment and provides numberguidelines for determining seniority. We, thus, find that numbere of the three Office Memoranda relied upon by the Solicitor General is of any material assistance to the appellants. We may number advert to the Memorandum dated June 19, 1963 issued by the Directorate General of Health Services. As? mentioned earlier, it was after the receipt of this Memorandum that the seniority list of class III employees of the Government Medical Stores Depot, Karnal was revised and the seniority was determined on the basis of the date of companyfirmation and number on the basis of length of service. The above Memorandum from the Directorate General of Health Services expressly refers to the Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs and seeks implementation of that. It is numberdoubt true that a direction was given in the Memorandum of the Directorate General of Health Services that scheduled caste and scheduled tribe candidates companyfirmed in reserved vacancies should be ranked senior to temporary, including quasi- permanent persons, irrespective of their position in the seniority list, but such a direction went beyond the rule of seniority companytained in the, Office Memorandum dated December 22, 1959 issued by the Ministry of Home Affairs in respect of employees appointed before that date. As mentioned earlier Office Memorandum dated December 22, 1959 did number disturb the, seniority of Central Government employees who had been appointed prior to the date of that Memorandum, except in certain cases with which we are number companycerned. It is number disputed that according to the Government of India Allocation of Business Rules, 1961 general questions relating to recruitment, promotion and seniority in Central services like the one with Which we are companycerned, have to be dealt with by the Ministry of Home Affiars. As Suresh Kumar and Tara Chand Jain, respondents, were appointed prior to December 22, 1959 their seniority was governed by the rule of length of service as companytained in Office Memorandum 1004 dated June 22, 1949 and number by the rule based upon date of companyfirmation as companytained in the Annexure to the Memorandum dated December 22, 1959.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 36 of 1969 and 202 of 1970. Appeal from the judgment and order dated January 17, 1969 of the Rajasthan High Court in D.B. Criminal Appeal No. 376 of 1965. S. R. Chari and Sobhagmal Jain, for the appellant in, Cr. A. No. 36 of 1969 . B. Mehta for the respondent in Cr. A. No. 36 of 1969 in Cr. A. No. 202 of 1970 . C. Gupta, Ramesh Chand, S. Bhandare and P. H. Parekh, for the respondent in Cr. A. No. 202 of 1970 . The Judgment of the Court was delivered by Khanna, J. This judgment would dispose of criminal appeal No. 36 of 1969 Bhagat Ram v. State of Rajasthan and criminal appeal No. 262 of 1970 State of Rajasthan v. Ram Swaroop. Both the appeals have been filed on certificate granted by the Rajasthan High Court. Bhagat Ram during the year 1962 was posted as circle ins- pector of police at Ganganagar. Ancestral village of Bhagat Ram is Mehna in Tehsil Moga, District Ferozepur. Ram Swaroop also belongs to that village. Both Bhagat Ram and Ram Swaroop were tried in the companyrt of special judge, Ganga- nagar for offenses under section 120B IPC for companyspiring to ,extort bribe of Rs. 2,000 from P W I Niranjan Dass of Moga. Charges were also framed against Bhagat Ram for offenses under sections 161, 218, 347 and 389 Indian Penal Code as also section 5 1 a read with section 5 2 of Prevention of Corruption Act. Additional charge under section 165A Indian Penal Code was framed against Ram Swaroop. Both Bhagat Ram and Ram Swaroop were acquitted by the special judge, Ganganagar in respect of all the charges. The State of Rajasthan filed an appeal against the acquittal of the two accused. The appeal was heard by a Division Bench companysisting of Tyagi and Lodha, T.T. The Division Bench dismissed the said appeal against the acquittal of Ram SwarooP. The appeal of the State against Bhagat Ram in so far as it related to his acquittal for offenses under sections 347, 218, 389 and 120B IPC was also dismissed. There was, however, a difference of opinion between the two learned judges on the point as to whether the acquittal of Bhagat Rain for offenses under section 161 IPC and 5 1 a of Prevention of Corruption Act should be maintained. According to Tyagi, J., the case against Bhagat Ram for the above mentioned two offenses had number been proved and the State appeal in that respect also was liable to be dismissed. As against that Lodha, J. took the view that Bhagat Ram was guilty of offenses under section 161 Indian Penal Code and section 5 1 a of Prevention of Corruption Act. He accordingly passed an order for the companyviction of Bhagat Ram for the above mentioned two offenses. In view of the difference between the two judges regarding the acquittal of Bhagat Ram for offenses under section 161 IPC and 5 1 a of Prevention of Corruption Act, the case was placed under section 429 of the Code of Criminal Procedure before Jagat Narayan, J. Jagat Narayan, J. came to the companyclusion that the material on record showed that Ram Swaroop and Bhagat Ram had entered into an agreement to extort bribe, from Niranjan Dass and, as such, were guilty of an offence under section 120A punishable under section 120B of Indian Penal Code. The learned judge, however, felt that in view of the decision of the Division Bench, he companyld number set aside the acquittal of Ram Swaroop. As regards Bhagat Ram, the learned judge came to the companyclusion that he companyld set aside the acquittal of Bhagat Ram for offenses under sections 120B, 218 and 347 IPC. Bhagat Ram was found guilty by Jagat Narayan, J. of the offenses under sections 120B, 161, 218 and 347 IPC. For the offence under section 161 IPC, Bhagat Ram was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 5001- or in default to undergo rigorous imprisonment for a further period of three months. For the offenses under sections 218 and 347 IPC, Bhagat Ram was sentenced to undergo rigorous imprisonment for a period of one year on each companynt. These sentences were ordered to run companycurrently with the sentence imposed under section 161 IPC. No sentence was awarded for the offence under section 120B IPC. Bhagat Ram has filed criminal appeal No. 36 of 1969 against his companyviction and sentence, while the State of Rajasthan has filed appeal No. 202 of 1970 against the acquittal of Ram Swaroop. The prosecution case is that a case under sections 408 and 420 IPC was registered on June 14, 1962 at police station Ganganagar on a report made by the general manager of Ganganagar Sugar Mills against Ramesh, an employee of the sugar mills. Bhagat.Ram, who was circle inspector of Ganganagar, took over the investigation of the above case. Bhagat Ram during investigation came to know that Ramesh had sent the misappropriated amount to his brother Puran Chand at Ludhiana. Bhagat Ram also came to know that Puran Chand had entered into a transaction for the purchase of a truck from PW Niranjan Dass of Moga for a- price of Rs. 22,000. Niranjan Dass received Rs. 7,000 from Puran Chand in that companynection. As Puran Chand companyld number pay the balance of the purchase price, the bargain regarding the purchase of the truck was cancelled and the amount received by Niranjan Dass was stated to have been returned to Puran Chand. It seems that Bhagat Ram took the stand that part of Rs. 7,000 had been kept by Niranjan Dass with himself. Bhagat Ram, therefore. summoned Niranjan Dass to police station Ganganagar. In obedience to the summons, Niranjan Dass went with his brother Manohar Lal PW to Ganganagar police station on July 27, 1962. Niranjan Dass and Manohar Lal companyld number meet Bhagat Ram on that day but met him on the following day. Bhagat Ram then behaved in an unduly rude and harsh manner to Niranjan Dass and kept him at the police station. Manohar Lal apprehending trouble, returned to Moga and took with him Ram Swaroop accused and some other persons. Manohar Lal and his companypanions reached Ganganagar on July 29, 1962. In the meanwhile, Bhagat Ram had gone to Hindumalkot. Accompanied by Niranjan Dass, Ram Swaroop and others, Manohar Lal went to Hindumalkot Dak bungalow where Bhagat Ram was staying. It is stated that Ram Swaroop went inside the room in which Bhagat Ram was present, while others stayed outside. After some time Ram Swaroop came out of the room and told Niranjan Dass and Manohar Lal number to feel worried. Niranjan Dass was asked to give a statement which was thereafter recorded by Bhagat Ram. Bhagat Ram then produced three documents relating to the agreement for the sale of truck and the receipt which Niranjan Dass had obtained from Puran Chand. for the refund of Rs. 7,000. Bhagat Ram then told Niranian Dass to go back to Moga. It was also mentioned by Bhagat Ram that if the presence of Niranjan Dass was required for further investigation, he would be summoned again. About 10 or 15 days after that, it is stated, Bhagat Ram went to Moga in a jeep and stayed at the house of Niranjan Dass and Manohar Lal for the night. While leaving Moga early next morning, Bhagat Ram told Niranjan Dass and Manohar Lal that they should have a talk with Ram Swaroop and act according to Ram Swaroops instructions. After Bhagat Ram had left Moga, Ram Swaroop met Niranjan Dass and informed him that Bhagat Ram Wanted Rs. 21,000 as bribe for having helped Niranjan Dass to get out of the trouble and that otherwise, Niranjan Dass would be again entangled in the case. Niranjan Dass then told Ram Swaroop that he would companysult a lawyer and give a reply. Ram Swaroop, according to the prosecution case, came to Niranjan Dass in the first week of October 1962 and showed letter P. 2 which had been sent by Bhagat Ram to Ram Swaroop from Alwar. In the companyrse of that letter it was stated Kindly kindness send that thing to Alwar. This is very important and please do number be careless and slack in the matter. Ram Swaroop told Niranjan Dass that the words that thing in the letter referred to Rs. 2,000 and demanded that amount from Niranjan Dass, so that it companyld be passed on to Bhagat Ram. Niranjan Dass expressed his inability to accede to this demand. The letter was, however, retained by Niranjan Dass. A few days thereafter Ram Swaroop again came to Niranjan Dass and showed him telegram P.3A dated October 19, 1962. The telegram had been addressed by Bhagat Ram to Ram Swaroop and it was stated therein that Ram Swaroop should ask Niranjan Dass to see Bhagat Ram and that otherwise , warrants of arrest would be issued against him.This telegram too was kept by Niranjan Dass, with himself. On December 26, 1962, it is stated, Niranjan Dass came tos know that warrants for his arrest had been received by the Moga police in the above mentioned case registered at Ganganagar.Niranjan Dass then companysulted a lawyer and sent companyplaint dated December 26, 1962 to the Inspector General of Police, Special Police Establishment. A case was thereafter registered on the basis of the above companyplaint by DSP Umaid Singh of AntiCorruption Department. After necessary investigation, Bhagat Ram and Ram Swaroop were sent up for trial. In his statement under section 342 of the Code of Criminal Procedure, Ram Swaroop admitted that he knew Bhagat Ram and that he had gone to him on July 29, 1962 with Manohar Lal and Niranjan Dass at Hindumalkot. Ram Swaroop denied that Bhagat Ram had made any demand through him for illegal gratification. According to Ram Swaroop, Bhagat Ram had asked him to realise the embezzled amount from Niranjan Dass. The other allegations made against him were denied by Ram Swaroop. he, however, admitted having received letter P. 2 and telegram P. 3A from Bhagat Ram and having handed over those documents to Niranjan Dass. Ram Swaroop added that he had asked Niranjan Dass to pay the embezzled amount which was with him. Bhagat Ram admitted that he had been entrusted with the investigation of the case against Ramesh and that he had called Niranjan Dass to Ganganagar in that companynection. Bhagat Ram denied having maltreated Niranjan Dass or having kept him under unlawful detention. Bhagat Ram admitted that Niranjan Dass and Ram Swaroop had met him on July 29, 1962 at Hinau- malkot but he denied having made any demand through Ram Swaroop for the payment of Rs. 2,000 as bribe. It was admitted by Bhagat Ram that he had gone to Moga but the demand for any illegal gratification from Niranjan Dass at Moga was denied by Bhagat Ram. Bhagat Ram admitted having sent letter P. 2 and telegram P. 3A to Ram Swaroop. As regards the words that thing, Bhagat Ram stated that they referred to the embezzled amount which had been retained by Niranjan Dass. The trial companyrt, as stated earlier, acquitted both the accused, while the High Court maintained the acquittal of Ram Swaroop. As regards Bhagat Ram, there was a difference between the two judges. On the matter being referred to the third judge, Bhagat Ram was companyvicted and sentenced as above. Arguments have been addressed in the two appeals by Mr. Mehta on behalf of the State of Rajasthan, Mr. Chari on behalf of Bhagat Ram and Mr. Gupta on behalf of Ram Swaroop. After hearing the learned companynsel, we are of the opinion that the appeal filed by the State of Rajasthan merits dismissal, while that-filed by Bhagat Ram should be allowed. It would appear from the resume of facts given above that both Bhagat Ram and Ram Swaroop were acquitted by the spe- cial judge. On appeal filed by the State of Rajasthan against the acquittal of the two accused, Tyagi and Lodha, JJ. maintained the order relating to the acquittal of Ram Swaroop. As regards Bhagat Ram, though there was a difference between the two judges regarding the companyrectness of his acquittal for offenses under section 5 1 a of Prevention of Corruption Act and section 161 of Indian Penal Code., they companycurred with regard to the acquittal of Bhagat Ram in respect of the charges under sections 120B. 218, 347 and 389 IPC. The State appeal against the acquittal of Bhagat Ram was dismissed to that extent. The order which was made by the learned judges of the Division Bench reads as under BY THE COURT The result is that the appeal of the State against the order of acquittal of respondent Ram Swaroop is dismissed. The appeal of the State so far as it relates to the acquittal of respondent Bhagat Ram under sections 347, 218, 389 and 120B Indian Penal Code is also dismissed. In view of the difference of opinion about the acquittal of Bhagat Ram under section 161 Indian .lm15 Penal Code and section 5 1 a of the Prevention of Corruption Act, the matter may be laid before Honble the Chief Justice for referring it to the third judge. In view of the fact that the State appeal against the acquittal of Bhagat Ram for offenses under sections 120B, 218, 347 and 389 I P C had been dismissed by the Division Bench, it was, in our opinion, number permissible for the third judge to reopen the matter and companyvict Bhagat Ram for offenses under sections 347, 389 and 120B IPC. The matter had been referred under section 429 of the Code of Criminal Procedure to Jagat Narayan, J. because there was a difference of opinion between Tyagi, J. and Lodha, J. regarding the companyrectness of the acquittal of Bhagat Ram for offenses under section 161 IPC and section 5 1 a of Prevention of Corruption Act. Jagat Narayan, J. companyld go only into this aspect of the matter and arrive at his companyclusion. The present was number a case wherein the entire matter relating to the acquittal or companyviction of Bhagat Ram had been left open because of a difference of opinion between the two judges. Had that been the position, the whole case relating to Bhagat Ram companyld legitimately be companysidered by Jagat Narayan, J. and he companyld have formed his own view of the matter regarding the companyrectness of the order of acquittal made by the trial judge in respect of Bhagat Ram. On the companytrary, as mentioned earlier, an express order had been made by the Division Bench upholding the acquittal of Bhagat Ram for offenses under sections 120B, 218, 347 and 389 IPC and the State appeal in that respect had been dismissed. The above decision of the Division Bench was binding upon Jagat Narayan, J. and he was in error in companyvicting Bhagat Ram for offenses under sections 120B, 218 and 347 IPC despite the order of the Division Bench. It was, in our opinion, number within the companypetence of the learned judge to reopen the matter and pass the above order of companyviction in the face of the earlier order of the Division Bench whereby the order of acquittal of Bhagat Ram made by the trial judge in respect of the said three charges had been affirmed. The order of the Division Bench unless set aside in appeal to this Court, was binding and companyclusive in all subsequent proceedings between the parties. The principle of res judicata is also applicable to criminal proceedings and it is number permissible in the subsequent stage of the same proceedings or in some other subsequent proceedings to companyvict a person for an offence in respect of which an order for his acquittal has already been recorded. The plea of autrefois acquit as a bar to prosecution embodied in section 403 of the Code of Criminal Procedure is based upon the above wholesome principle. In the case of Sambasivam v. Public Prosecutor, Federal of Malaya 1 , Lord MacDermott observed The effect of a verdict of acquittal pronounced by a companypetent Court on a lawful charge and after a lawful trial is number companypletely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and companyclusive in all subsequent proceedings between the parties to the adjudication. The maxim res judicata pro veritate accipitur is numberless applicable, to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the companyrectness of that verdict and was precluded from taking any steps to challenge it at the second trial. The above observations were quoted with approval by this Court in the case of Pritam Singh v. State of Punjab 2 . We are, therefore, of the opinion that the judgment of Jagat Narayan, J. in so far as he has companyvicted Bhagat Ram for offenses under sections 120B, 218 and 347 IPC cannot be sustained. The matter can also be looked at from another angle. The, charge under section 120B IPC related to , companyspiracy between Bhagat Ram and Ram Swaroop for extorting Rs. 2,000 as illegal gratification from Niranjan Dass. When Ram Swaroop was acquitted of the charge under section 120B IPC, the basis of the charge against Bhagat Ram for companyspiracy between him and Ram, Swaroop disappeared. It is number the case of the prosecution that Bhagat Ram bad companyspired with another person and even though the identity of the other person has number been established. Bhagat Ram would still be guilty for the offence under section 120B IPC. On the companytrary, the case of the prosecution was that Bhagat Ram had companyspired with Ram Swaroop to extort Rs. 2,000 as illegal gratification from Niranjan Dass. Once Ram Swaroop was acquitted in respect of the charge relating to companyspiracy, the charge against Bhagat Ram for companyspiracy must necessarily fall to the ground. So far as the State appeal against the acquittal of Rain Swaroop is companycerned, we find that there are companycurrent findings of the trial companyrt and the High Court that the evidence on record had failed to prove that he was guilty of offenses under sections 120B and 165A IPC. Nothing has, been brought to our numberice at the 1 1950 A.C. 458. 2 1956 S.C.R. 415. hearing of the appeal as may justify interference with those companycurrent findings by a fresh appraisement of that evidence. We are, therefore, of the view that the State appeal against the acquittal of Ram Swaroop is liable to be dismissed. As regards the companyviction of Bhagat Ram for the offence under section 161 IPC, we find that it is number the prosecution case that Bhagat Ram had made any demand directly to Niranjan Dass for payment of illegal gratification. On the companytrary, the High Court found that Bhagat Ram had number demanded bribe directly from Niranjan Dass. The case set up by the prosecution is that Bhagat Ram attempted to obtain illegal gratification from Niranjan Dass through the instrumentality of Ram Swaroop. In view of the acquittal of Ram Swaroop, it is number possible to maintain the companyviction of Bhagat Ram. The acquittal of Ram Swaroop would necessarily lead to the companyclusion that the prosecu- tion allegation about Ram Swaroop having made a demand of illegal gratification from Niranjan Dass for Bhagat Ram has number been proved. The case, in the circumstances, against Bhagat Ram for asking for bribe through Ram Swaroop must companysequently fail. It would indeed be incongruous and inconsistent to acquit Ram Swaroop, for offenses under sections 165A and 120B IPC and, at the same time, to companyvict Bhagat Ram for the offence tinder section 161 IPC for asking for bribe from Niranjan Dass through the instrumentality of Ram Swaroop. We, therefore, accept the appeal of Bhagat Ram and set aside .his companyviction and acquit him. The appeal of the State of Rajasthan against the acquittal of Ram Swaroop is dismissed.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 30 of 1969. Appeal by special leave from the judgment and order dated the 12th August, 1968 of the Patna High Court in Original Criminal Miscellaneous Petition No. 30 of 1968. Basudev Prasad Sinha and B. P. Jha, for the Appellant. The Judgment of the Court was delivered by KhannaJ. This is an appeal by special leave by Sammbhu Nath Jha who along with two others has been found by the Patna High Court to be guilty of companytempt of companyrt. In view of the fact that the companytempt, in the opinion of the High Court, was of a technical nature, the companytemners were let off with a warning. On January 2, 1966 a report was lodged with the police by Lachho Paswan that when he and his brother Dwarka Paswan were going to Jamui market, Kedar Prasad respondent abused them. Kedar Prasad also exhorted others to assult Dwarka Paswan. An assault was then made upon Dwarka Paswan and he was surrounded. Arjun Pandey thrust Saif in the chest of Dwarka Paswan, as a result of which he died on the spot. The motive for the assault was stated to be that Lachho Paswan and Dwarka Paswan had voted against Kedar Prasad in the election to the office of Mukhia. The police on the basis of that report investigated the case and submitted a charge sheet for offences under sections 148 and 302 read with section 149 I.P.C. against a number of persons. No charge sheet was submitted against Kedar Prasad and Arjun Pandey. During the companyrse of companymitment proceedings, the companymitting magistrate ordered that Kedar Prasad and Arjun Pandey be summoned for May 15, 1966 as accused. Kedar Prasad and Arjun Pandey filed revision petitions against the order of the companymitting magistrate, but the same was dismissed by the Additional Sessions Judge, Monghyr is per order dated May 5, 1967. It was held that Kedar Prasad and Arjun Pandey had been rightly summoned. After the dismissal of the revision petition, an application was filed by the Assistant District Prosecutor on September 18, 1967 in the Court of the learned magistrate for withdrawal of the case against Kedar Prasad and Arjun Pandey oil the ground that it was inexpedient for State and public policy to prosecute them. After hearing the companynsel for the companyplainant and others, the companymitting magistrate dismissed the said application oil October 6, 1967. It was observed that the application for withdrawal of the prosecution amounted to an abuse and improper interference in the numbermal companyrse of justice. Two revision petitions were filed against the above order dated October 6, 1967. One of the revision petitions was filed by the State of Bihar and the other was filed by one Abani Kumar Mandal. Both the revision petitions were admitted by the High Court on November 30, 1967. During the pendency of the above mentioned criminal revision petitions, the Governor of Bihar as per numberification dated March -L864 SupCI/72 12, 1968 appointed a Commission of Inquiry companysisting of Shri T. L. Venkatarama Aiyer, retired judge of the Supreme Court, under section 3 of the Commissions of Inquiry Act, 1952 Act 60 of 1952 to inquire into a number of charges against 14 persons who had earlier held the offices of Chief Minister and ministers in the State of Bihar. One of the persons against whom inquiry was ordered was Shri Hasibur Rahman who had held the office of Minister during the period from March 16, 1967 to January 28, 1968. The allegations which were the subject matter of the inquiry were set forth in the schedule annexed to the numberification. Allegation No. J-4 which was the subject of inquiry against Shri Hasibur Rahman was asunder Shri Kedar Prasad Sinha and Shri Arjun Pandey were facing prosecution along with nine others in a serious case of rioting with murder which was pending before the Munsif-Magistrate, Jamui. They filed a revision petition before the Additional Sessions Judge, Monghyr against their prosecution, which was dismissed. Thereupon on 6th June, 1967 they presented an application direct to the then Minister for Law, Shri Hasibur Rahman, who directed that the Law Secretary should examine the matter and report and in the meanwhile the District Magistrate was requested to take two months adjournment of the case and also send the case diary with his report. On 17th August, 1967, the District Magistrate sent his report opposing withdrawal cf. the case. Even before the District Magistrates letter was diaries in the Law Department, Shri Hasibur Rahman called for the file directly from the dealing assistant and ordered that a telegram should be sent to the District Magistrate to take further adjournment for a fortnight. The matter was then examined thoroughly by the officers of the Law Department and in his numbere, dated 30th August, 1967, the Law Secretary recommended against withdrawal of the prosecution pointing out that there was a prima facie case and justice demanded that it Should be finished Out in Court. Shri Hasibur Rahman, however ignored the advice of the District Magistrate as welt as of the Law Secretary and ordered on 10th September, 1967 that the case should be withdrawn. A petition for withdrawal. was accordingly filed on 18th September, 1967, but was rejected by the trial companyrt. Thereupon Shri Hasibur Rahman directed that a revision should be filed in the High Court against the refusal of the trial companyrt to allow withdrawal of the case. A revision was accordingly filed, which is still pending before the High Court. Shri Hasibur RaHman thus by misuse of his official position and power unnecessarily interfered with the administration of justice in a serious case of rioting with murder. The numberification relating to the appointment of the Commission of Inquiry along with the schedule companytaining the different allegations was published in the Bihar Gazette Extraordinary dated March 12, 1968. The same day the appellant, who was one of the ministers of Bihar, gave for publication to the press a companyy of the numberification, including the schedule of allegations. The said numberification along with the schedule of allegations was published in the Searchlight of Patna in issues dated March 13, March 14 and March 15 of 1968. Allegation No. J-4 relating to the withdrawal of case regarding Kedar Prasad Sinha was published in the issue of Searchlight dated March 14, 1968. Application dated March 25, 1968 was thereafter filed by Kedar Prasad and Arjun Pandey for initiating companytempt of companyrt proceedings against 25 persons, including the State of Bihar, the Chief, Minister and Ministers of Bihar, the Chief Secretary of the Bihar Government as well as Shri Subhash Chandra Sarkar, Editor and Shri Awadesh Kumar Tiwari, printer and publisher of the Searchlight. The appellant was impleaded as respondent No. 3 in the application. It was urged that the publication of allegation No. J-4 related to a matter which was the subject matter of criminal revision petitions in the High Court and had the result of interfering with the companyrse of justice and prejudicing the mankind against the two in applicants. The learned judge who dealt with the application held that numbercase for companytempt of companyrt had been proved against 22 out of 25 persons. The appellant was, however, found to be guilty of companytempt of companyrt because it was he who had handed over the offending matter to the press for publication in the newspaper. editor as also the printer and publisher of the Searchlight too were found guilty because of the publication of the news item in the aforesaid paper. We have heard Mr. Basudev Prasad on behalf of the appellant. No one has appeared on behalf Of. the respondents. After giving the matter our companysideration, we are of the opinion that the present is number a fit case wherein action should be taken for companytempt of companyrt. L-L864 Sup.CI/72 The law relating to companytempt of companyrt is well-settled. Any act done or writing published which is calculated to bring a companyrt or judge into companytempt or to lower his authority or to interfere with the due companyrse of justice or the lawful process of the companyrts is a companytempt of companyrt Reg. v. Gray 1 . The law of companytempt as observed by this Court in the case of E. M. S. Namboodripad v. T. N. Nambiar 2 stems from the right of the companyrts to punish by imprisonment or fines persons guilty of words or acts which either obstruct or tend to obstruct the administration of justice. This right is exercised in India by all companyrts when companytempt is companymitted in facie curaie and by the superior companyrts on their own behalf or on behalf of companyrts subordinate to them even if companymitted outside the companyrts. Formerly, it was regarded as inherent in the powers of a Court of Record and number by the Constitution of India, it is a part of the powers of the Supreme Court and the High Courts. There are many kinds of companytempts. The chief forms of companytempt are insult to judges, attacks upon them, companyment on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of companyrts, witnesses or the parties, abusing the process of the companyrt, breach of duty by officers companynected with the companyrt and scandalising the judges or the companyrts. The last form occurs, generally speaking, when the companyduct of a person tends to bring the authority and administration of the law into disrespect or disregard. In this companyduct are included all acts which bring the companyrt into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its majority. The matter was also dealt with by this Court Re P. C. Sen 3 and it was observed Contempt by speech or writing may be by scandalising the Court itself, or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard. It is incumbent upon Courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons companycerned as parties in causes before the cause is finally heard has pernicious companysequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a proceeding amount to companytempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal is a grave companytempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious companytempt than those companying from independent sources. The question in all cases of companyment 1 1900 2 Q.B 36. 2 1970 S.C.C. 325. 3 1969 2 S.C.R. 649. .lm15 on pending proceedings is number whether the publication does interfere, but whether it tends to interfere, with the due companyrse of justice. The question is number so much of the intention of the companytemner as whether it is calculated to interfere with the administration of justice. Reliance in the above cited case was placed upon the following observations of the Judicial Committee in the case of Debi Prasad Sharma and Ors. v. The King-Emperor 1 . .lm15 . . . the test applied by the Board which heard the reference, was whether the words companyplained of were in the circumstances calculated to obstruct or interfere with the companyrse of justice and the due administration of law. It has also to be borne in mind, as observed in Re P. C. Sen 2 , that ordinarily a companyrt will number initiate proceedings for companymitment for companytempt where there is a mere technical companytempt. This Court referred in the above companytext to tile observations of Jenkins, C.J., in Legal Remembrancer v. Matilal Ghose and Others 3 that proceedings for companytempt should be initiated with utmost reserve and numbercourt in the due discharge of its duty can afford to disregard them. It would follow from the above that the companyrts have power to take action against a person who does ,in act or publishes a writing which is calculated to bring a companyrt or judge into companytempt or to lower his authority or to obstruct the due companyrse of justice or due administration of law. As intention of the companytemner to cause those companysequences is number a necessary ingredient of companytempt of companyrt and it is enough to show that his act was calculated to obstruct or interfere with the due companyrse of justice and administration of law. there would be quite a number of cases wherein the companytempt alleged would be of a technical nature. In such cases, the companyrt would exercise circumspection and judicial restraint in the matter of taking action for companytempt of companyrt. The companyrt Has to take into account the surrounding circumstances and the material facts of the case and on companyspectus of them to companye to a companyclusion whether because of some companytumacious companyduct or other sufficient reason the person proceeded against should be punished for companytempt of companyrt. Let us number examine the facts of the present case in the light or what has been stated above. The gravamen of the charge against the appellant is that during the pendency in the- High Court of the two revision petitions mentioned earlier, he handed over to the representatives of the press for publication in the newspapers the R. 70 1.A. at p. 224. 2 969 2 S.C.R. 649. I.L.R. 41 Cal. 173. numberification, including the schedule of allegations, which had been issued under section 3 of the Commissions of Inquiry Act The learned judge in holding the appellant guilty of companytempt of companyrt observed But the mischief in this case was companymitted by publicizing the said allegations with full knowledge that the two criminal revision petitions were pending in this companyrt and the question as to whether the withdrawal petitions were bonafide or number was still to be companysidered by this companyrt. I have number been shown any statutory provision which lays down that allegations of the nature companytained in the offending matter must be printed in the official gazette or in the public press. It would follow from the above that the decision of the High Court was based upon the assumption that there was numberstatutory provision which required that allegations of the nature companytained in the offending matter should be printed in the official gazette. Such an assumption in our view was incorrect. The material part of sub-section I of section 3 of the Commissions of Inquiry Act reads The appropriate Government may, if it is of opinion it is necessary so to do, and shall if a resolution in this behalf is passed by the House of the People or, as the case may be, the Legislative Assembly of the State, by numberification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within Such time as may be specified in the numberification. and the Commission so appointed shall make the inquiry and perform the functions accordingly. Plain reading of the above subsection makes it manifest that the numberification appointing a companymission of inquiry must be published in the official gazette. It is an, imperative requirement and cannot be dispensed with. The companymission of inquiry is appointed for the purpose of making an inquiry into some matter of public importance. The schedule companytaining the various allegations in the present case was a part of the numberification dated March 12, 1968 and specified definite matters of public importance which were to be inquired into by the Commission. As such, the publication of the schedule in the official gazette should be held to be in companypliance with the statutory requirement. The object of publication in in official gazette is twofold to give publicity to the numberification further to provide authenticity to the companytents of that numberification case some dispute arises with regard to the companytents. What was given to the press for publication in the present case was the numberification issued under section 3 of the Commissions of Inquiry Act. The present is number a case wherein only part of the numberification or some portions of the allegations were given for publication to the press with a view to give emphasis to any part of the allegation. On the companytrary, what was given to the press was the entire numberification. The subject matter of the inquiry before the Commission as set forth in allegation No. J-4 was whether there was any misuse of official position on the part of Shri Hasibur Rahman when he directed against the recommendation of the Law Secretary and the District Magistrate, the withdrawal of the prosecution against Kedar Prasad and Arjun Pandey. The question for decision which, however, was the subject of criminal revision petitions pending in Patna High Court was whether the order of the magistrate dismissing the application for withdrawal of prosecution was companytrary to law. The two matters were distinct and separate and number identical. It may be that some of the matters which were companynected with the criminal revision petitions were the subject of inquiry by the companymission of inquiry, but that would number attract liability for companytempt of companyrt. In the case of Jagannath Rao v. State of Orissa 1 the appellant had challenged a numberification issued under section 3 of the Commissions of Inquiry Act appointing a Commission of Inquiry to inquire into certain allegations against persons who had held the offices of Chief Ministers and ministers in Orissa. An argument was advanced in that case that one of the items of charges which were to be inquired into bay the companymission was the subject matter of an appeal pending in the High Court. Question arose in that companytext whether the setting up of the companymission of inquiry by the State Government or the companytinuation of the inquiry by the companymission would be tantamount to companytempt of companyrt. This Court held that the above acts would number companystitute companytempt of companyrt and observed It was pointed out by this Court in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar 1 that the inquiry cannot be looked upon as a judicial inquiry and the order ultimately passed cannot be enforced proprio vigore. The inquiry and the investigation by the Commission do number therefore amount to usurpation of the function of the companyrts of law. The scope of the trial by the Courts of law and the Commission of Inquiry is altogether different. In any case, it cannot be said that , the Commission of Inquiry would be liable for companytempt of Court if it proceeded to inquiry into matters referred to it by the 1 1968 3 S.C.R. 2 1959 S.C.R. 279. 5-L864SupC.I./72 Government Notification. In.appointing a Commission of Inquiry under section 3 and in making the inquiry companytemplated by the numberification, the Commission is performing its statutory due. We have already held that in the appointing of the Commission of Inquiry the,, Government was acting bona fide. It is, therefore, number possible to accept the argument of the appellants that the setting up of the Commission of Inquiry by the State Government or tile companytinuance of the inquiry by the Commission so companystituted would be tantamount to companytempt of Court. In our view the judgment of the High Court cannot be sus- tained.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 379 and 741 of 1967. Appeal from the judgment and order dated October 14, 1966 of the Patna High Court in Civil Writ jurisdiction Cases No. 434 and 435 of 1966, K. Garg, S. C. Agarwal and D. P. Singh, for the appellant in C.A. 741 of 1967 K. Sen, R. K. Garg, S. C. Agarwal and D. P. Singh, for the appellant in C.A. No. 179 of 1967 Niren De, Attorney General for India, D. Goburdhun, for the respondents in both the appeals . The Judgment of the Court was delivered by Hegde, J. In these appeals by certificate, the only question that arises for decision is whether on the facts and in the circumstances of these cases, the Government of Bihar was companypetent to withdraw from acquisition certain lands sought to be acquired under Acquisition Cases Nos. 3 and 4 of 1959- 60 before the Additional Land Acquisition Officer, Hazaribagh. The lands companycerned in these cases were numberified for acquisition in 1959 under s. 4 of the Land Acquisition Act, 1894 to be hereinafter referred to as the Act under two different numberifications. At about the same time, the Government also took action under S. 17 4 of the Act and dispensed with proceedings under s. 5A. Simultaneously numberifications under s, 6 were also issued. Thereafter proceedings under ss. 9 and 11 were taken. When the acquisition proceedings were pending before the Land Acqui- sition Officer, the Government withdrew from acquisition some of the lands earlier numberified under ss. 4 and 6, Consequently the Land Acquisition Officer excluded the companypensation in respect of those lands from the companyputation made by him earlier. The appellant companymon appellant in both the appeals being aggrieved by that exclusion moved the High Court of Patna under Art. 226 of the Constitution seeking directions from that companyrt to the Land Acquisition Officer to award him companypensation in respect of those lands as well. The High Court rejected those writ petitions. Hence these appeals. The lands in question are situate in the villages of Telaiya and Debipur. On June 11, 1948, they were numberified under ss. 14 and 21 of the Bihar Private Forest Act, 1947. Thereafter they were again numberified under s. 29 of the Indian Forest Act in 1953 and 1954. Later on the Government felt that in order to include those lands in the adjoining Government forest, it would be necessary to acquire them. Consequently they were numberified for acquisition. But after the lands in question were tentatively valued, the Government thought that it was number worthwhile to acquire entire area numberified for acquisition. Hence it withdrew from acquisition a substantial portion of lands numberified for acquisition, These in brief are the material facts. The allegation of the appellant is that after the lands in question were numberified under s. 29 of the Indian Forest Act, the Forest Department unlawfully took possession of those lands and companytinued to be in possession of the same and therefore when numberifications under s. 6 were issued, the Government became the owner of those lands and thereafter, it was number companypetent for the Government to withdraw from acquisition any of the lands numberified under s. 6. Alternatively it was companytended that the Government became the full owner of those lands when the Collector caused a public numberice to be given under s. 9 1 of the Act. Lastly it was companytended that the lands in question had been actually taken possession of by the Collector under s. 17 1 of the Act and hence they vested in the Government. The Government of Bihar has denied all the above allega- tions. It denied that the Government took possession of the lands in question in 1954. It further denied that those lands had been taken possession of under s. 17 1 . The Government denied the allegation of the appellant that it became the owner of the lands in question either when numberifications under s. 6 or numberices tinder s. 9 1 were issued. The High Court was number satisfied from the evidence adduced by the appellant that the Government had taken possession of the lands in question in 1954. It thought that this was a disputed question of fact and on the material before if, it was number possible to decide that question companyclusively and hence it declined to pronounce on that question. The High Court repelled the companytention of the appellant that posse ssion had been taken under s. 17 1 . It also did number accept the companytention of the appellant that on the issue of numberices under s. 9 1 , Government bad become the owner of the lands in question. In the result the High Court dismissed the writ petitions. The very companytentions taken before the High Court were repeated in this Court. Now companying to the question whether the Government took possession of the lands in question in 1954, it was companyceded that the Government was number companypetent to take possession of those lands either under the numberifications issued under ss. 14 and 21 of the Bihar Private Forest Act 1947 or under the numberifications issued under s. 29 of the Indian Forest Act. The case of the appellant is that the Government unlawfully took possession of the properties. In support of that companytention reliance was mainly placed on the letter written by the Divisional Forest Officer, Kodarma Division to the Range Officer, Kodarma on October 1, 1958 as well as on the requisition sent to the Land Acquisition Officer by the same officer on January 24, 1959 Annexure M. The companycerned Divisional Forest Officer was one Brijmohan Prasad. In the letter in question he stated The forest in the above villages are in possession of the Forest Department since sometime past. . In-the requisition again, he mentioned The land was previously numberified under s. 29 3 of the I.F.A. and it was demarcated and possession taken. Later on it was found that the land in question was raiyati, it was necessary to acquire under the Land Acquisition Act. In para 12 of that requisition, he further stated it is already under possession and this is to be formally handed over immediately. This Officer has filed an affidavit before the High Court. Therein he explained that he made the statements in question under an erroneous impression that the Government came into possession of the lands in question in view of the numberification issued under s. 29 of the Indian Forest Act. This statement of his receives support from his letter written to the Land Acquisition Officer on August 11, 1959 wherein he mentioned With reference to your above letters, I have to say that Debipur Forest was numberified under the Indian Forest Act on the 8th December, 1953 and that of Telaiya on the 22nd November, 1954. Thus, date of possession is 8th December, 1953 and 22nd November 1954 respectively. It is possible that this officer had an erroneous impression as to the effect of a numberification under s. 29 of the Indian Forest Act. The other documents relied on by the appellant are wholly inconclusive. Hence there is numberneed to refer to them. We are in agreement with the High Court that there is numbersatisfactory evidence to show that the Government had taken possession of these lands in 1953 or 1954. As the parties had number enough opportunity to adduce evidence on this point, we will number be justified in finally deciding this question. It is sufficient if we say that on the material on record, the High Court was justified in number pronouncing on this question in a petition under Art. 226 of the Constitution. It is open to the appellant to seek such other remedy as may be available to him under law if the Government had unlawfully taken possession of those lands. Me. question whether the Government had unlawfully taken possession of those la ads in 1954, as we shall presently see, is wholly irrelevant for the decision of these appeals. The next point that arises for decision is whether delivery of the lands numberified for acquisition was taken under s. 17 1 as companytended by the appellant. The Government becomes the owner of the lands numberified for acquisition only when the Collector takes possession of those lands either under s. 16 or under s. 17 1 . Both those provisions provide that when the Collector takes possession under those provisions, the lands numberified for acquisition shall vest absolutely in the Government free from all encumbrances. Until and unless possession is taken under either of those provisions, the lands numberified for acquisition do number vest in the Government. Section 48 1 of the Act provides Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has number been taken. Section 36 is number relevant for our present purpose. Posses- sion referred to in s. 48 necessarily is the possession taken either under s. 16 or under s. 17 1 . Section 17 1 says In cases of urgency, whenever the appropriate Government so directs, the Collector, though numbersuch award has been made, may, on the expiration of fifteen lays from the publication of the numberice mentioned in section 9, sub-section 1 , take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all encumbrances. Ordinarily possession of any land numberified for acquisition is taken when the Collector had made an award under s. 11 and number before it. But an exception is provided under s. 17 1 . In cases of urgency, if the Government so directs, the Collector may, though numberaward has been made under s. 11, on the expiration of the 15 days from the publication of the numberice mentioned in s. 9 1 take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. From this provision, it is plain that the Collector cannot take possession of the land in question unless the Government directs him to do so. The Government can direct him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, lie cannot ,do so until expiration of 15 days from the publication of a numberice under s. 9 1 . There is numbermaterial on record to show that the Government had given to the Collector any direction under S. 17 1 number is there any material to show that the lands in question had been taken possession of by the Collector under s. 17 1 . It is true that in the order- sheet maintained by the Land Acquisition Officer, a numbere was made on October 17, 1959 Shri B. J. Yadav Kgo, to deliver possession at the spot to the representative of the R.O. on 16-11-59 Draft addressed to R.O. is signed. But there is numberhing to show that this order was implemented. According to the respondent this order was number implemented. Relying on the decision of this Court in Lt. Governor of Himachal Pradesh v. Avinash Sharma 1 it was companytended by Mr. R. K. Garg, the learned Counsel for the appellant that once it is established that the possession of the land numberified for acquisition was taken in 1953 or 1954, it was unnecessary for his client to establish that any possession was taken under S. 17 1 . According to him on the expiration of 15 days after the issue of numberices under S. 9 1 , the lands in question vested in the Government. The decision in question does number lend any support for this company- tention. In that case number only the property had been taken possession of by the Government even before the acquisition proceedings had started but appropriate proceedings under s. 9 1 and s. 17 1 were also taken though there was numberactual taking of possession under s. 17 1 . Under those circumstances this Court observed In the present case a numberification under S. 17 1 and 4 was issued by the State Government and possession which had previously been taken must, from the date of expiry of fifteen days from the publication of the numberice tinder S. 9 1 , be deemed to be the possession of the Government. In the present case, as mentioned earlier, numbermaterial has been placed before the Court to show that action under s. 17 1 had been taken. It was next companytended by Mr. Garg and Mr. A. K. Sen, that the expression whenever the appropriate government so directs in s. 17 1 refers to urgency and number to the taking of possession of the lands numberified for acquisition. Their further companytention was that numbersooner the Government issued the numberification under s. 1.7 4 , the factum of urgency was established and hence on the expiration of the fifteen daYs from. the publication of numberice under 1 1971 S.C.R. 413 s.9 1 the lands which were already in the possession of the Government vested in the Government. We are unable to accept this companystruction of s. 17 1 . In our judgment s. 17 1 is plain and unambiguous. The expression whenever the appropriate government so directs in that section refers to the taking of possession and number to the declaration of urgency. Even in case of urgency, the Government may number think it necessary to take immediate possession for good reasons. Neither the language of s.17 1 number public interest justifies the companystruction sought to be placed by the learned Counsel for the appellant. For the reasons mentioned above, these appeals fail and they are dismissed but in the circumstances of the case, we direct the parties to bear their own companyts in these appeals. Before companycluding the case, it is necessary to record the assurance given by the Attorney-General on behalf of the State Government of Bihar that the Government of Bihar will number realise from the appellant any interest on the loans advanced for the development of the lands numberified for acquisition in the two Land Acquisition cases from the dates they were numberified under s. 29 of the Indian Forest Act. A Memo. to that effect has been filed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. 556 of 1967. Appeal by Special leave from the judgment and decree dated August 29, 1966 of the Andhra Pradesh High Court in Second Appeal No. 644 of 1962. Vasudev Pillai and P. Kesava Pillai, for the appellants. R. Chaudhuri and K. Rajendra Chowdhary, for respondents Nos. 1 to 4. The Judgment of the Court was delivered by Hegde, J. This is an appeal by special leave. Defendants 2 to 7 in the suit are the appellants in this appeal. The plaintiffs who are respondents 1 to 4 herein sued for a declaration that Survey Nos. 12 to 18 companyprising an extent of 10 acres 54 cents in South Vallur village of Vijayawada Taluk are companymunal lands, the villagers therein having rights of irrigation and drainage. In that suit they challenged the assignment of suit lands in favour of the 2nd defendant 1st appellant by the Estates Manager by his order of December, 21, 1952. They also sought a permanent injunction restraining the defendants from interfering with the exercise of their rights in those lands. Further they prayed for a mandatory injunction against defendants 2 to 7 directing them to restore Agakodu at their own companyt to its original companydition. The plaintiffs brought the suit in a representative capacity after obtaining the permission of the companyrt. The 2nd defendant resisted the suit on various grounds. He pleaded that he had been in possession of Survey Nos. 12 to 15 ever since 1946, after obtaining a grant from the Zamindar of the ,South Vallur under Patta Ex. B-8 dated January 15, 1946. According to him after the abolition of the Estates under the Estates Abolition Act, 1948 in short the Estates Abolition Act , Survey Nos. 16 to 18 were held to be unnecessary for the original purpose by the Collector. Thereafter those Survey Nos. were granted to him by the Estates Manager under Exh.B-16. He further pleaded that during the pendency of the suit, a Patta for the suit lands was granted to him under S. 1 1 of the Estates Abolition Act by the Assistant Settlement Officer under Exh. B-30 dated December 10, 1955. The trial companyrt dismissed the plaintiffs suit upholding the companytentions of the 2nd defendant. It came to the companyclusion that the plaintiffs had failed to establish the companymunal character of the lands pleaded by them and further even if those lands were companymunal lands at one time, they had ceased to be such in view of the various orders passed by the authorities. The first appellate companyrt reversed the findings of the trial companyrt and decreed the plaintiffs suit as prayed for. It came to the companyclusion that the lands in question were companymunal lands and the villagers had rights of irrigation and drainage through those lands. It further came to the companyclusion that the various orders referred to by the 2nd defendant in his written statement were either invalid or ineffective. The High Court has affirmed the decision of the 1st appellate companyrt. Mr. R. V. Pillai, the learned Counsel for the appellants formulated three companytentions before us viz. 1 that the companyclusion reached by the 1st appellate companyrt and affirmed by the High Court that the lands in question are companymunal lands has numberbasis, in evidence 2 that the Civil companyrt had numberjurisdiction to entertain the suit and 3 in any event the companymunal rights in the suit lands were extinguished under s. 3 of the Estates Abolition Act. We shall number proceed to examine these companytentions. But before doing so, it is necessary to point out that Mr. Pillai attempted to reopen questions of fact which appear to have been companyceded before the High Court. We have number permitted him to do so. From the judgment of the High Court, it is clear that the arguments in that companyrt proceeded on the basis that the suit lands were once companymunal lands Survey Nos. 12 to 15 even number companytinue to be companymunal lands but Survey Nos. 16 to 18 ceased to be as such because of the order passed by the Collector, Krishna on October 29, 1946 under s. 20-A 1 of the Madras Estates Land Act as well as that passed by the Estates Officer and Assistant Settlement Officer subsequently, to which we shall refer presently. In the companyrse of the judgment the learned judge of the High Court observed It is number in dispute that the lands S. Nos. 12 to 18 and measuring 10 acres and 54 cents, situate in South Vallur village in Vijayawada taluk are poramboke lands. 17 5 That they were used for the purpose of irrigation and drainage is also number in dispute. It is companymon ground that under Ex. A-1, the Collector, Krishna passed an order under Section 20-A I a of the Madras Estates Land Act as amended by Madras Act VIII of 1934 to the effect that lands, S. Nos. 16, 17 and 18 were numberlonger required for the purpose for which they were originally intended. Under that order, the Collector asked the Zamindar to say whether he had got any reversionary rights in the, lands. What happened subsequently is number clear from the record. It is however companymon ground that S. Nos. 12 to 15 both inclusive companytinued to be companymunal lands and numberorder under section 20-A 2 was at any time passed by Collector companyverting these companymunal lands into, ryotwari lands or assigned them to anyone till the estate was abolished. It will thus be clear that there was merely a declaration that S. Nos. 16, 17 and 18 were numberlonger required for the purpose for which they were originally intended. No further order companyverting those lands to ryotwari lands was passed and that S. Nos. 12 to 15 companytinued to be companymunal lands till the estate was abolished. In view of the stand taken by the appellants before the High Court, it is number permissible for them to companytend that Survey Nos. 12 to 18 were at numbertime companymunal lands number is it open to them to companytend that Survey Nos. 12 to 15 do number still companytinue to be companymunal lands. The companytroversy as regards the nature, of the lands, therefore, must be companyfined to Survey Nos. 16, 17 and 18. In this view, the first companytention of Mr. Pillai fails so far as Survey Nos. 12 to 15 are companycerned. So far as Survey Nos. 16 to 18 are companycerned, it was said that these lands had ceased to be companymunal lands as a result of the various orders passed by the authorities. Let us examine whether this companytention is companyrect ? Before doing so it is necessary to refer to some of the provision,-, in the Estates Land Act as well as the Estates Abolition Act. No material was placed before the companyrt to show that the South Vallur Zamindari Estate included Survey Nos. 12 to 18. Section 3 of the Estates Land Act defines an Estate as meaning a any permanently-settled estate or temporarily settled zamindari b any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector 1 7 6 c any unsettled palaiyam or jagir d any inam village of which the grant has been made, companyfirmed or recognized by the Government numberwithstanding that subsequent to the grant, the village has been, partitioned among the grantees or the successors in title of the grantee or grantees. Explanation 1 Where a grant of an inam is expressed to be of a named village, the area which forms the subject-matter of the grant shall be deemed to be an estate numberwithstanding that it did number include certain lands in the village of that inam which have already been granted on service or other tenure or beep reserved for companymunal purposes. This definition does number help the appellants. The appellants have failed to establish that the Zamindar companyld have companyveyed ally right in the suit lands to the appellants. In view of S. 20 and 20-A of the Estates Land Act, to which we shall refer a little later, numberZamindar appears to have had any right to deal with companymunal lands. Hence the alleged grant by the Zamindar, does number appear to companyfer on the first appellant any title. This takes us to the question whether the order made by the Collector on October 18, 1946 Exh. A-1 can be companysidered as having companyferred any title on the Zamindar in respect of Survey Nos. 16, 17 and 18. That order reads Re. A3-13 M.P. 46 Exhibit A. 1 Proceedings of the Collector, Krishna at Chilakatapudi. Sub E.L. Act-Bezwada Taluk, South Vallur, S. Nos. 17, 18, 16 Enquiry under Section 20-A. Order under Section 20-A I a passed. ReadThis office D. Dis. 5876-45 D/29-3-45 and D.0s Dis. 9609,/46 dated 18-10-46. ORDER Under Section 20A 1 a of the Madras E.L. Act as amended by Madras Act VIII of 1934, the lands mentioned in the schedule below are declared to be numberlonger required for the purpose for which they were originally intended. SCHEDULE Taluk Village S. No. Extent Original classifica- tion. Bezwada South Vellur 16 0-85 Agakodu P.W.D. 17 1-72 Drainage channel 18 1-19 Poramboke Sd - 29/10 Collector The Zamindar is requested to state whether he has any oral or documentary evidence to prove that the reversionary right in the lands vest in him and to adduce it if any, before the Collector within sixty days from the date of this order. Sd - 2-10-53, Try. Deputy Collector, Krishna. For determining the effect of that order, it is necessary to refer to some of the provisions of the Estates Land Act. Section 3 2 of that Act defines ryot as meaning a person who holds for the purpose of agriculture ryoti land in an estate on companydition of paying to the landholder the rent which is legally due upon it Ryoti land is defined in s. 3 16 which says Ryoti land means cultivable land in an estate other than private land but does number include- a b throshing-floor, cattle-stands, village sites, and other lands situated in any estate which are set apart for the companymon use of the villagers. c Section 20-A of the Estates Land Act says Subject to such rules as the State Government may prescribe in this behalf, the District Collector may on the application of the landholder, a ryot or any other person interested- a declare that any land or any portion of any land which is set apart for any of the purposes referred to in sub-clauses a and b of clause 16 of 17 8 section 3 is numberlonger required for its original purpose and b by order in writing direct- that any such land or portion in respect of which such declaration is made be used for any other specified companymunal purpose or if such land or portion is number required for any companymunal purpose, that it be companyverted into ryotwari land or landholders ryoti land according as the reversionary rights in such land vest under the terms, express or implied of the sanad, title-deed or other grant in the Government or in the landholder Provided that before making any such declaration and order, the District Collector shall have due regard to any other customary rights of the landholder or the ryots in the user of such land or portion and shall satisfy himself that the exercise of such rights would otherwise be provided for adequately if the declaration and order are put into effect Provided further that in the case of any land of the description referred to in sub-clause a of clause 16 of section 3 the reversionary rights in which vest in the landholder under the terms, express or implied, of the sanad, title-deed or other grant, any order under subclause i of clause b shall be made only with the companysent of the landholder. Without the written order of the District Collector under clause b of sub- section 1 , numberland which is set apart for any of the purposes referred to in subclauses a and b of clause 16 of section 3 shall be assigned or used for any other purpose. Nothing companytained in this sub-section shall affect or take away or be deemed to affect or take way the customary rights of the landholder or the ryots in the user of any such land. Before the Collector can order the diversion of the use of any companymunal land, he should first declare that the land or any portion of that land is numbermore required for any of the purposes referred to in sub-clauses a and b of clause 1 6 of s. 3 and he should further make an order in writing directing that the same be used for any other specified companymunal purpose or if the same is number required for any companymunal purpose, that it be companyverted into ryotwari land or landholders ryoti land. It is clear from sub-s. 2 of s. 20-A that without a written order of the District Collector under cl. b of sub-s. 1 , go land which was set apart for any of the purposes referred to in sub-cls. a and b of cl. 16 of s. 3 can be assigned or used for any other purpose. The order of the Collector on which the first appellant has relied is an incomplete order. Apart from making a declaration that Survey Nos. 16 to 18 are numbermore required for purposes for which they were originally intended, the Collector did number appear to have made any order under cl. b of s. 20-A. Hence despite the order of the Collector, Survey Nos. 16 to 18 companytinue to be companymunal lands. Reliance was next placed by the appellants on the order of the Estates Manager dated December 21, 1952 Ex. B-2 for claiming title to the suit properties. In this order the Estates Manager preceded on the basis that the Collectors order to which we have already made reference had already companyverted Survey Nos. 16 to 18 into ryotwari lands. This is an erroneous assumption. That assumption cannot companyfer any right on the 1st appellant. The Estates Manager is number shown to have had any power under any law to companyvert the companymunal lands into ryoti lands. Hence his order cannot be companysidered as having validly companyverted the suit lands into ryoti lands. Lastly appellants sought support from the order of the Assistant Settlement Officer made on December 10, 1955 Ex. B-30 . This order was made during the pendency of the suit and without numberice to the plaintiffs-respondents. it is purported to have been made under s. 11 a of the Estates Abolition Act. Under that order the Assistant Settlement Officer granted to the 1st appellant ryotwari patta in respect of Survey Nos. 16 to 18. Section 11 of the Estates Abolition Act, does number authorise the Assistant Settlement Officer to companyvert the companymunal land into a ryoti land. That section reads Every ryot in an estate shall, with effect on and from the numberified date, be entitled to a ryotwari patta in respect of a all ryoti lands which, immediately before the numberified date, were properly included or ought to have been properly included in the holding and which are number either lanka lands or lands in respect of which a land-holder or some other person is entitled to a ryotwari patta under any other provision of this Act and b all lanka lands in his occupation immediately before the numberified date, such lands having been 1 80 in his occupation or in that of his predecessors in-title companytinuously from the 1st day of July 1939 Provided that numberperson who has been admitted into possession of any land by a landholder on or after the 1st day of July, 1945 shall, except where the Government after an examination of all the circumstances otherwise direct, be entitled to a ryotwari patta in respect of such land. Explanation -No lease of any lanka land and numberperson to whom a right to companylect the rent of any land has been leased before the numberified date, including an ijardar or a farmer of rent, shall be entitled to a ryotwari patta in respect of such land under this section. The lands with which we are companycerned are number lanka lands number were they declared to be ryoti lands either under the Abolition Act or under the Estates Land Act. That being so, the Assistant Settlement Officer had numbercompetence to grant ryotwari patta in respect of those lands-see the decision of the Madras High Court in Valathar Mooppannar and ors. v. The Board of Revenue, Madras 1 . That officer has purported to grant the patta in question even without numberice to the interested parties and that during ,the pendency of the suit. For the reasons mentioned above, we are unable to accept the companytention of the appellants that Survey Nos. 16 to 18 have ceased to be companymunal lands or that the appellants had obtained any lawful title to them. It was urged that the order of the Assistant Settlement Officer whether the same was in accordance with law or number must be deemed to be final in view of S. 56 of the Abolition Act. This companytention is again untenable. Section 56 says Where after an estate is numberified, a dispute arises as to a whether any rent due from a ryot for any fasli year is in arrear or b what amount of rent is in arrear or c who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer. Any person deeming himself aggrieved by any decision of the Settlement Officer under subsection 1 may, within two months from the date of the decision or 1 1966 I.M.L.J. 354. such further time as the Tribunal may in its discretion allow, appeal to the Tribunal and its decision shall be final and number be liable to be questioned in any Court of law. The decision of the Settlement Officer which is made final under this section must be a decision in respect of one of the matters referred to in sub-s. 1 of s. 56. The companytroversy with which we, are companycerned in this case viz. whether the suit lands companytinue to be companymunal lands does number fall within the scope of that section. Hence we are unable to accept the companytention of the appellant that the order made by the Settlement Officer has become final or companyclusive. It is a wholly invalid order. In this view, it is number necessary to companysider whether an order made under s. 11 without numberice to the interested persons can be companysidered as a valid order. The companytention that the civil companyrts have numberjurisdiction to go into the companytroversies arising for decision in this case in view of s. 189 1 of the Estates Land Act is again without merit. That section provides A District Collector or Collector hearing suits or applications of the nature specified in Parts A and B of the Schedule and the Board of Revenue or the District Collector exercising appellate or revisional jurisdiction therefrom shall hear and determine such suits or applications or exercise such jurisdiction as a Revenue Court. No Civil companyrt in the exercise of its original jurisdiction shall take companynizance of any dispute or matter in respect of which such suit or application might be brought or made. The jurisdiction of the civil companyrts is taken away only in respect of suits or applications of the nature specified in parts A and B of the Schedule to the Act. No reliance was placed by the appellants on any of the matters mentioned in part A of the Schedule. Even as regards matters mentioned in part B reliance was only placed on item 5 of that Schedule. Part 13 refers to applications to be disposed of by a District Collector or Collector. Item 5 refers to a decision of the Collector under s. 20-A 1 . We have already companye to the companyclusion that the Collector had made numberorder under that section. Hence s. 189 of the Estates Land Act is number attracted to the present case. The dispute with which we are companycerned is a civil dispute. Therefore the companyrts below had jurisdiction to decide the same under s. 9 of the Civil Procedure. Code. The only other companytention that remains to be companysidered is that the companymunal rights in the suit lands stood abolished under s. 3 of the Estates Abolition Act. This companytention does number appear to have been taken before the High Court. Therefore we see numberjustification to go into that companytention. That apart, there appears to be numberbasis for that companytention. Section 3 a of the Estates Abolition Act, repeals several acts including the Madras Estates Land Act, 1908. In view of cl. b of that section all Estates including the companymunal lands, porambokes and other ryoti lands, waste lands, pasture lands, lanka lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works fisheries and ferries stood transferred to the Government and vested in them free from all encumbrances. It further provides that the Madras Revenue Recovery Act, 1864, the Madras Irrigation Cess Act, 1865 and all other enactments applicable to ryotwari areas shall apply to that estate. Clause 3 of that section prescribes that all rights and interests created in or over the estate before the numberified date by the principal or any other landholder shall as against the Government cease and determine. It is true that the suit lands in view of s. 3 of the Estates Abolition Act did vest in the Government. That by itself does number mean that the rights of the companymunity over it were taken away. Our attention has number been invited to any provision of law under which the rights of the companymunity over those lands can be said to have been taken away. What has been abrogated is the rights and interests created in or over the estate before the numberified date by the principal or other landholder. The rights of the companymunity over the suit lands were number created by the principal or any other land- holder. Hence those rights cannot be said to have been abrogated by cl. c of s. 3 of the Estates Abolition Act. In the result this appeal fails and the same is dismissed with companyts.

Case appeal was rejected by the Supreme Court

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

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1308 of 1970. Appeal by special leave from the order dated September 8. 1970 of the Calcutta High Court in Income Tax Reference No. 50 of 1971. A. Palkhivala, Veda Vyasa, T. A. Ramachandran and N. Gupta, for the appellant. S. Desai, S. K. A iyar and H. D. Sharma, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from an order of the Calcutta High Court directing the Income-tax Appellate Tribunal, B Branch, Calcutta, to draw a statement of case relating to four questions of law which, it was stated, arose out of the order of the-Tribunal in the matter of assessment of the appellant which was the assessee in respect of the assessment year 1962-63. The Appellate Tribunal had rejected the application of the Commissioner of Income-tax requiring it to refer those questions to the High Court. The High Court, on being moved, issued a rule nisi and then made it absolute after full arguments without giving any reasons, whatsoever. The assessee is a 100 subsidiary of Imperial Chemical In- dustries Ltd., incorporated in the United Kingdom hereinafter referred to as I.C.I. for companyvenience . I.C.I. advanced large amounts by way of loans to the assessee from time to time. This, it was claimed, was done for subscribing to shares in three Indian Companies called Indian Explosives Ltd., Alkalai Chemical Corporation of India and Atic Industries Private Ltd., hereinafter called as I.E.L., A.C.C.I and ATIC respectively . Subsequently the assessee transferred the shares in the aforesaid companypanies at par to I.C.I. in satisfaction of the loans advanced by that companypany. The Income-tax Officer applied S. 52 of the Income-tax Act, 1961 hereinafter called the Act and assessed the assessee to capital gains. The Appellate Assistant Commissioner took the companytrary view and held that on the facts which had been established, the assessee was number liable to capital gains under the aforesaid section. The Tribunal upheld the decision of the Appellate Assistant Commissioner by a detailed and well reasoned order. Broadly, the case of the assessee was that I.C.I. wanted to make investments in India in sterling currency. The assessee was already in existence but the other three companypanies which have been mentioned, were incorporated later. I.C.I. devised a scheme by which it companyld make the investment as desired by it and by which it companyld also take advantage of the tax relief which companyld be availed of by the new enterprises under s. 15 C and 56. A of the Income-tax Act, 1922. The scheme in short was that I.C.I. would arrange to let the assessee hold shares in the three company- panies by investing the money which was to be given by C.I. to the assessee. The modus operandi was that I.C.T. would give that money by way of loans to the assessee who agreed that the shares in the three companypanies would be transferred to I.C.I. in satisfaction of the loans at par or issue price as and when desired by I.C.I. All this was done after negotiations with the companycerned Department of the Government of India at the highest level and with the approval of the Reserve Bank of India. The entire scheme was companyceived and was put into operation prior to 30th November 1956 when the Finance Bill was introduced reimposing capital gains tax which had remained abolished for certain years. There was a provision for charging interest by the I.C.I. from the assessee at a rate number exceeding 1/2 above the Indian Bank rate which came to 51 per annum but the interest was number to exceed in any case the dividends received by the assessee from those shares. It was claimed on behalf of the assessee that this arrangement was advantageous both to I.C.I. and the assessee, I.C.I. having taken the risk of depreciation in shares or otherwise attached to the new business pioneering adventures, ensured that capital appreciation of the shares, if any, also went to itself. The assessee did number suffer any disadvantage because it had to pay numberinterest if numberdividend was received and it companyld keep and get the benefit of any dividend in excess of 5 1/2. As a result of I.C.I. investments being held through the assessee instead of directly, I.C.I. achieved an advantage of saving tax in U.K. amounting to pound 68,000 in the relevant years. In 1959 the structure of Indian taxation regarding the grossing up of dividends was radically changed and by the Finance Act 1959, the system of grossing up of dividends under s. 16 2 and 18 5 of 1922 Act was abolished and intercorporate dividends became liable to income tax at each stage. Thus, the dividends passing from the three companypanies through the assessee to I.C.I. became liable to tax stages. This affected the net return of I.C.I. on its investments in the three companypanies substantially. In these circumstances, it was decided by I.C.I. that the investments in the three companypanies should he held by it directly. For that reason it called upon the assessee in February 1961 to transfer to it the aforesaid shares in the three companypanies at the issue price in satisfaction of the sterling loans in accordance with the previous agreements. The approval of the Reserve Bank to these transfers was received in February 1961 and the transfers were made in March April 1961. According to the assessee there was numberquestion of the transfer of shares having been affected with the object of avoidance or reduction of the liability of the assessee to capital gains which alone companyld attract the applicability of s. 52 of the Act. Section 52 is in the following terms Consideration for transfer in cases of under- statement Where the person who acquires a capital asset from an assessee is directly or indirectly companynected with the assessee and the Income-tax Officer has reason to believe that the transfer was effected with the object of avoidance or reduction of the liability of the assessee under s. 45, the full value of the companysideration for the transfer shall, with the previous approval of the Inspecting Asstt. Commissioner, be taken to be the fair market value of the capital asset on the date of the transfer. The necessary ingredients of the section are there should be a direct or indirect companynection between the person who acquires a capital asset and the assessee the Income tax Officer should have reason to believe that the transfer was effected with the object of avoidance or reduction of the liability of the assessee to capital gains iii if the first two companyditions are satisfied then the full value of companysideration for the transfer can be taken to be the fair market value of the capital asset on the date of the transfer. As regards the first requirement, that was admittedly satis- fied in the present case. The second requirement companyld be satisfied only if there was any companyent material on which the Income tax Officer companyld have reason to believe that the transfers were effected with the object of avoidance and reduction of liability to capital gains. It is abundantly clear that the intention with which a particular transfer is made and the object which is to be achieved by such transfer is essentially a question of fact the companyclusion relating to which is to be arrived at on a companysideration of the relevant material. In other words, before the Income tax Officer can have any reason to believe that a transfer was effected with the object mentioned in the section facts must exist showing that the object was to avoid or reduce the liability to capital gains. The Tribunal examined fully the companyrespondence and the other material with regard to each of the three Indian companypanies in which the investment had been made of the money advanced by I.C.I. to the assessee. We may briefly numberice the discussion relating to each companypany. It was in or about 1949 that I.C.I. was asked by the Government of India to companysider the manufacture of companymercial Lasting High Explosives in India. Negotiations advanced more towards October 1953 when the representatives of I.C.I. met the officials of the Government of India. The Tribunal referred to the minutes of the meeting held on October 1, 1953 as also on the 6th October 1953. In the final draft of the Declaration of Intention dated November 5. 1953, it was mentioned that the Government had agreed that if T.C.I. made a loan to the assessee the latter would hold the shares in E.L. and that the loan may be repaid by a transfer of the shares to I.C.I. at any time. On 21st December 1954, the assessee applied to the Reserve Bank of India for formal sanction for borrowing Rs. 160 lakhs from I.C.I. for the purchase of shares in I.E.L. in terms of the agreement dated November 5, 1953. It was stated in the letter that I.C.I. would charge numberinterest until such time as the shares began to yield dividends. The loans were advanced from 30th September 1954 to 30th June 1957 by the I.C.I. to the assessee of the equivalent of Rs. 160 lakhs in Sterling. The other companyrespondence relating to the aforesaid amount was also numbericed by the Tribunal. In 1958 there was a Rights Issue by I.E.L. I.C.I. agreed to give a loan of Rs. 80 lakhs to the assessee to companyer the Sterling requirement of I.E.L. The assessee was to take up shares of that amount. The terms of the loan were that I.C.I. had the right to acquire at any time the shares held by the assessee in E.L. at par in satisfaction of the loan and the rate of interest payable on the loan was to be I above the Indian Bank rate. This was followed by other companyrespondence and a resolution which was recorded on 30-9-1958 companytaining terms of the second loan of Rs. 80,00,000/-. It is number necessary to refer to the other companyrespondence looked into by the Tribunal with regard to that loan. On 15-2-1961 the assessee was called upon by I.C.I. to transfer the investments in satisfaction of the loans. After the sanction was obtained from the Reserve Bank of India, the shares were transferred at par. The Tribunal referred to the undisputed facts relating to the circumstances in which the scheme for advancing the loan to the assessee for investment in I.E.L. came to be mooted and was ultimately approved by the Government. This is what the Tribunal said The above background would show that the idea was number to make the assessee the real beneficial owner of the shares. The fact that the shares should be held only for a time beneficially by the assessee is clear from the Declaration of Intention dated 5-11-1953. Before the Tribunal the companynsel for the Department had accepted the position that if there was an arrangement or agreement before the reintroduction of capital gains tax he would have numbercase. According to him, until the transfers were actually made of the shares, there was numberagreement on which the parties companyld have gone to companyrt in order to obtain the share transfers at par in favour of I.C.I. The Tribunal proceeded first to examine whether there was any kind of understanding between the assessee and I.C.I. regarding the transfer of shares at par. After recapitulating the companyrespondence and the relevant facts, the Tribunal came to the following companyclusion Taking this along with the minutes of the meeting with the officials of the Government of India, in October 1953, it is clear that the whole idea of I.C.I. throughout was to make some funds available to the assessee so that the shares companyld be acquired in its name and that the shares companyld be transferred to C.I. as and when it demanded. It was, however, stated by the Tribunal that taking into account the companyrespondence and the documents referred to earlier it was satisfied with the assessees case that the transfer of shares to London at issue price or at par was throughout the basis of the advances of loans to the assessee. It is necessary to reproduce paragraph 31 of the order of the Tribunal - In October 1953, there was numbermention of any capital gains tax being revived. At that time the asses- see companyld number have had any idea of avoiding or reducing any liability to capital gains tax. The learned companynsel for the department laid some emphasis on the fact that there was numberenforceable arrangement. The question as to whether there was an enforceable arrangement or number is number really material. What we have to find out is whether the object in putting through these transactions of taking over the shares at par or at issue price was one of avoidance or reduction of liability to capital gains tax. That object does number get established by the mere absence of an enforceable arrangement. Having regard to the assessee being the subsidiary of I.C.I., there is numberhing surprising about the arrangement number being so formal or number being put through after companyplying with all the necessary legal formalities. The absence of formal agreement is thus understandable in this companytext and cannot by itself suggest anything in favour of the department. Businessmen are number always motivated by legalistic companysiderations. Even taking that the arrangement was only binding morally and number legally, still so long as the assessee wanted to fulfil a moral obligation and had number the capital gains tax in mind, it cannot be said that the transaction was entered into with the object of avoidance or reduction of liability to capital gains tax. The Tribunal proceeded to say We have to find out the object of the, transaction. It is removed in point of time from the result. In such a case one cannot try to infer the object from the results. We really have to put ourselves at a point of time when the transaction was companyceivedTaking the materials before us, we companysider that there is numberhing to suggest that the parties had the capital gains tax in their mind in 1953 and later when they put through the aforesaid transactions. We have, therefore, to hold that the factual requisites of section 52 have number been established here. In dealing with the second Company, namely, A.C.C.I it was pointed out by the Tribunal that the scheme for manufactur- ing Polythene was placed before the Government of India by a letter of the assessee dated 13-12-1955 addressed to Mr. H. R. lengar, Secretary, Minister of Commerce Industry, in which it was specifically stated that to enable the assessee to subscribe for the new shares I.C.I. would lend the subscription monies to the assessee on the understanding that at a later date I.C.I. companyld acquire at the issue price these new shares in satisfaction of its loan. The Tribunal dealt with all the relevant facts relating to the loan advanced to A.C.C.I. including those stated in the affidavits of P. T. Manzies dated 17-8-1966 and U. R. Newbery dated 10-1-1967 and companysidered that the transaction relating to this Company was number in any way different from those relating to the I.PL. ATIC, the third Company was incorporated primarily for the manufacture of certain Dye-stuffs. On 29-12-1955 I.C.I. agreed to advance Rs. 25 lakhs as loan to the assessee. The shares acquired under the loan companyld be transferred to I.C.I. on request by the latter at the issue price. I.C.I. waived its right to interest on the loan until the companymencement of the period in respect of which ATIC paid the dividend. There was a further loan of Rs. 35,00,000 on the same terms. These shares were age subsequently required to be transferred to C.I. in February 1961. The Appellate Assistant Commissioner had referred to the affidavits which had been filed on behalf of the assessee and had mentioned that the Department had number cross-examined the deponents. Before the Tribunal the companynsel for the Department stated that he accepted the affidavits as companyrect in so far as facts were companycerned but he only disputed the inferences therefrom. The Tribunal in this companynection observed- In our opinion, once the facts mentioned therein are taken as companyrect, the inference that the transaction was number for he purpose of avoiding or reducing liability to capital gains tax has to follow. Finally the Tribunal, as stated before, companyfirmed the decision of the Appellate Assistant Commissioner that the material on record did number justify the companyclusion of the Income tax Officer that the object of the transfer of the shares of all the three Companies by the assessee to I.C.I. was the avoidance of liability to capital gains which would attract the applicability of s. 52 of the Act. The Commissioner of Income tax asked for a reference on six questions. The Tribunal again examined the further companytentions of the Department in its order dated 28-7-1969 by which it declined to make the reference on the ground that numberquestion of law arose out of the order of the Appellate Tribunal, Only four questions appear to have been pressed for being referred. As regards question No. 1 which was No. 3 before the Tribunal it was pointed out that it proceeded on the basis that there was some dispute about the companystruction of the companyrespondence or documents. The Tribunal observed that there was numbersuch dispute and it had number been suggested that a particular expression in any letter or document had been wrongly companystrued. Regarding question No. 2 which was No. 4 before the Tribunal , the Departmental representative was asked to particularise the docu- ments or evidence omitted from companysideration. He referred to certain documents and evidence which according to him had number been companysidered by the Tribunal. The Tribunal made it cleat that all the relevant materials which had been referred to had been companysidered by it. These materials were distributed over four bulky volumes of typed records and, therefore, each document companyld number have been mentioned in the order. Nothing relevant was actually over-looked. At any rate the documents on which particular reliance was placed on behalf of the Department were companysidered and the Tribunal observed that the grievance of omission of materials from companysideration related to irrelevant matters. As regards the other two questions, the Tribunal observed that the charge of perversity was only a disparate attempt at extracting a question of law where, numbere existed and that the object or intention of an assessee was always a question of fact. It was a factual inference to be drawn from other facts. It was pointed out that on the companystruction of s. 52, the parties had number joined, any issue. We may number mention the four questions which the High Court directed to be referred - 1. whether on the facts and in he circumstances of the case and on a proper companystruction of the documents referred to and or companysidered by it the Tribunal was right in arriving at the finding that the transfer of the shares to Imperial Chemical Industries Ltd., London at the issue price or par was throughout the basis of the advance of loans to the assessee ? Whether, in arriving at the said finding the Tribunal misdirected itself in law in basing the said finding on evidence companyering some matters only and ignoring, evidence on other essential matters ? Whether, on the facts and in ,he circumstances of the case and particularly in view of the finding that there was numberenforceable agreement making it obligatory upon the assessee to transfer the shares to Imperial Chemical Industries Ltd., London, at par or issue price the companyclusion of the Tribunal that the transfer of the shares by the assessee to the latter companypany at par was number effected with the object of avoidance or reduction of the liability of the assessee to capital gains tax was unreasonable or perverse Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding, that s. 52 of the Income tax Act, 1961, was number applicable to the facts of the case ? On the analysis of s. 52 of the Act made by us at a previous stage and the clear, companyent and precise findings and companyclusions of the Appellate Tribunal, we are wholly unable to companyprehend, how any question of law of the nature sought to be referred arose or arises from the order of the Appellate Tribunal. It is unfortunate that in a case of this nature and magnitude, the High Court did number choose to record a speaking order to enable us to appreciate the reasons which prevailed with it for directing the four questions to be referred. The jurisdiction in the matter of reference can be exercised i when the point for determina- tion is a pure question of law such as companystruction of a statute or document of title ii when the point for determination is a mixed question of law and fact. While the finding of the Tribunal on the facts is final its decision as to the legal effect of those findings is a question of law, iii a finding on a question of fact is open to attack as erroneous in law when there is numberevidence to support it or if it is perverse. Where, however, the finding is one of fact, the fact that it is an inference from other basic facts will number alter its character as one of fact See Sree Meenakashi Mills Ltd. v., Commissioner of Income tax, Madras 1 . In that case it was held that there was numberquestion of companystruction of any statutory provision or document of title. The issues which arose for determination, whether the sales entered in books of the ap- pellant in the names of the intermediaries were genuine, and if number, to whom the goods were sold and for what price, were all questions of fact. Their determination did number involve the application of any legal principles to facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It, therefore, followed that there was numberquestion which companyld be referred to the Court under s. 66 1 of the Income tax Act 1922. The same principles will apply when a reference is sought under s. 256 of the Act. We are altogether unable to see how findings of the Appellate Tribunal that the transfer of shares in the present case was number made with the intention or object of avoidance or reduction of liability to capital gains were number questions of fact and did number depend on inference of facts from the evidence or the material before the Tribunal. It can well be said that the determination of the question whether the object of the assessee was to avoid or reduce its liability to capital gains by making the transfers in question did number involve the application of any legal principles to the facts established by the evidence. The findings of the Tribunal were amply supported by evidence and were eminently reasonable. It 1 31 I.T.R. 28. is true that the amount involved is very large but that cannot Justify a reference as under S. 256 of the Act neither the Appellate Tribunal companyld make a reference number companyld the High Court direct the reference to be made to it by the Tribunal on pure questions ,of fact. The learned companynsel for the Commissioner has sought to invite our attention to certain parts of the order of the Tribunal and, in particular, to the statement extracted by us at an earlier stage about the question whether the assessee had held the shares beneficially and the point which was debated before the Tribunal whether there was any binding legal agreement between the assessee and I.C.I. for transfer of the shares at par. We are unable to see how these matters were relevant for the purpose of determining the intention or object under-lying the transfer of the shares to I.C.I. by the assessee. Once the Tribunal came to the companyclusion which was purely one of fact that before there was any proposal to reimpose capital gains tax which came to be embodied in the Finance Bill towards the end of November 1956, the scheme had been fully evolved between the assessee and I.C.I. of making the loans by the latter to the former for being invested in the three companypanies and that the shares would be transferred at par by the assessee to C.I. whenever desired, the applicability of s. 52 companyld number be attracted as the same depended on certain facts which must exist or must be found and which had number been so found by the Tribunal. In the result the appeal is allowed and the order of the High ,Court is hereby set aside. The assessee shall be entitled to its companyts in this Court.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 557 to 575 of 1971. Appeals from the judgment and order dated September 3, 1970 of the Madras High Court in Writ Petitions Nos. 768, 1465 and 1483 of 1970. Govind Swaminadhan, Advocate-General for the State of Tamil Nadu, S. Mohan and A. V. Rangam, for the appellants in all the appeals . K. Venugopal and K. R. Nambiar, for the respondents in A.S No. 557 to 559 and 561 to 575 of 1971 . The Judgment of the Court was delivered by Jaganmohan Reddy, J. 22 Writ Petitions were filed in the High Court of Madras by publishers of text-books for Government Schools, Distt. Board and Municipal Council Schools challenging the directions of the Deputy Secretary to Government Education Department, companytained in his D.O. letter No. 454582/ E5/69, Education, dated 12th August 1969, addressed to District Collectors and Local Board authorities that they should intimate to the publishers of the books which are prescribed for the year 1969-70 that after the end of the School year they will numberlonger be prescribed. A Division Bench of the High Court allowed the Writ Petitions. From this decision, 19 appeals are before us by certificate. It appears that the Government of Tamil Nadu in furtherance of its policy to nationalise text-books for schools, was intending to publish them through the Tamil Nadu Text Books Corporation pursuant to which it had issued the impugned O. letter. The writ petitions which are the subject matter of these appeals raise similar grounds and we will adopt the averments in writ Petition No. 768/ 70 as being typical of the other Writ Petitions. which companyrse was also adopted by the High Court. The respondent in that appeal, alleged that the impugned O. letter giving the aforesaid directions is illegal and void as being companytrary to the Madras Educational Rules and the Text-Book Committee Rules made by the Governor of Tamil Nadu in pursuance of the powers vasted under Article 162 of the Constitution and affected respondents fundamental rights under Article 19 I g of the Constitution inasmuch as his business of publishing TextBooks has been seriously jeopardised and has practically been brought to a stand- stilt that it is number open to the Government of Tamil Nadu to act companytrary to the general rules made under Article 162 of the Constitution-, that the policy of nationalisation of the -L864SupCI/72 text-books is itself illegal and void that the principles of natural justice have been violated in that under the rules once textbooks have been approved and selected for the schools and have been prescribed, they remained current for three years, as such to cancel this companytinuance for the remaining period without numberice and without hearing would result in heavy financial loss and that as under Article 19 6 of the Constitution the trade carried out by the private citizens can be restricted only in pursuance of a law which enables the State to have a monopoly of that trade, it will number be open to the State to set up a Text Books Society to have a monopoly over the text-books trade without the authority of law and an executive order purporting to do this would be violative of Article 19 1 f g of the Constitution. It was further averred that even if it is assumed that Article 19 6 does number apply to their case, their fundamental rights cannot be restricted only for the purpose of enabling a State, or the Corporation owned or companytrolled by the State to carry on the particular trade to the exclusion of private citizens. The- High Court disposed of the Writ Petitions merely on the ground that even though the Madras Education Rules like the Text Book Committee rules have been issued in exercise of the administrative powers vested in the Government, the inhibition against change of selected text-books within a period of three years is number for the purposes of safeguarding the interest of the publishers but is companyceived in public interest, namely, that the institution companycerned should number be at liberty to change the books every year which may involve hardships to the students. Nonetheless it was of the view that a publisher of text- books companyld proceed on the basis that he has some sort of assurance that once his books have been selected and prescribed as text-books, those books will remain to be so prescribed for three years, on which expectation he may, from a business point of view, have the requisite number of text-books printed in advance or stock the same. It further observed that the publisher can well say unless the rules are changed, by numberadministrative instructions, the three years period can be curtailed to his prejudice. On this assumption it held that if a representation is made to some one of a particular state of affairs to companytinue over a time and he acts on it and as a result, does something which has companyt him time and money the representator or the person who induced the belief and expectation will number be at liberty to go back upon his representation or holding out of expectation and withdraw his stand to, the prejudice of the one who has acted upon it. The petitioner was, therefore. entitled to invoke this principle in his favour in the instant case. The companytention urged on behalf of the State of Tamil Nadu that the rules being merely in the nature of administrative instructions, do number have the force of law and cannot be enforced in companyrts was negatived on two grounds, firstly, that even as an administrative instruction, if it has the force of representation which a publisher may well rely on and companymit himself to a certain position, it is number open to the authority to resile from it to his prejudice and secondly, that the rules referred to are obviously traceable to the executive power of the Government under Article 162 of the Constitution and provide for the procedure for registration of publishers, submission of books by them for approval and their selection, which books if approved and selected, are to be valid for a certain duration. For these reasons the High Court observed that even as an administrative instruction when it is companyified in that form, it is bound to be followed, and therefore, the executive cannot say that because they have the administrative power they are entitled to use and invoke such administrative power and act for the purpose of its adoption in individual cases companytrary to the generality and tenor of the rules. Before us it is submitted on behalf of the State of Tamil Nadu by the learned Advocate General that the High Court adopted two companytradictory positions in that while holding that the rules approving the text-books and prescribing them for schools though administrative in character are number for the benefit of the publisher numberetheless a representation is said to have been made to then that once they are prescribed they will number be changed for three years. There is in our view numberwarrant for companycluding that the Madras Education Rules and the Text Book Committee Rules hold out any representation or even an assurance to the publishers that the books once prescribed will number be changed number as companytended by the respondents advocate is there any justification for the assumption that these rules envisage the participation of the Publishers in the scheme and as such the Government will be estopped from resiling from the representation that the period will number be altered. The Madras Education Rules though called rules are administrative instructions for the guidance of the Department. Rule 58 which deals with the text-books, states that a companysolidated list of text-books authorised by the Government to be used under the several subjects is published annually in the Fort St. George Gazette that Managers of schools are, at liberty to select from the latest list such books as they may deem most suitable provided that the text-books so selected shall number be changed within three years of their introduction in any of the schools except with the previous approval of the District Education Officer in the case of boys schools and the Inspectress in the case of girls schools. It further states that numberbooks other than books for religious instruction number authorised by the Government shall be used in any recognised school. The Government, however, reserve to itself the right to forbid or to prescribe the use of any book or books in the recognised schools. The rules relating to Madras text-books Committee which were issued on November 26, 1965, set out the objects of the Committee, its companystitution, the general grounds on 1 08 which the books may be described as unsuitable, expression, printing and get-up, registration of publishers, rules relating to recognised schools, fees for scrutiny of books submitted for approval of the text-book companymittee, etc. In Rule 2, it is provided that any book approved for use in recognised schools as text-book shall retain its approval for five years and in Rule 30 it is provided that 11 text- books used in recognised schools shall be selected only from the approved list of text-books issued during the year excepting books published by or on behalf of the Government. It is also provided in Rule 32 that under the powers delegated to him by the Government, the Director retains on behalf of the Government the right to prescribe text-books in a particular subject for use in recognised schools, even though such books have number been approved by the text-book companymittee. A perusal of these rules show that they are in the nature of Departmental instructions and do number companyfer any right on the publishers. Nor are they, as held by the High Court, designed to safeguard the interests of the publishers but are companyceived in public interest. The Government is at liberty to change those text-books or to delete from or add to the list or even prescribe books which are number in the list. When once it is accepted that those instructions do number companyfer any right on number create an interest in the publishers but are companyceived in the public interest and the Government has full liberty in the matter of approval as well as the power of companytrol over the kind of books that should be prescribed in the ,schools, the publishers cannot say that once they are prescribed they cannot be changed within the period for which they are stated to be current. The period during which a Text-book once prescribed is to companytinue is more an injunction to the Managers of the schools than an assurance to the publishers that they will number be changed because that power, even if it is companyferred by administrative rules made under Article 162, which in our view they are number, empower the managers subject to the approval of the authority companycerned to change them within the period specified therein or the Government to forbid or prescribe the use of any book or books in the recognised schools. The impugned letter in this case can, therefore, be said to have been issued by the Government in exercise of the power reserved to it under those very rules. Even dehors these provisions the instructions do number extend to the publishers any kind of representation or assurance. The selection of any text-books by the Committee does number companyfer any rights on the publishers that their text-books will be prescribed. All that the selection implies is that the books have been approved as fit and of the standard which can be prescribed for respective classes in the schools by their managers. There is numberundertaking that they will be prescribed. If any of the schools prescribe the books in the approved list for their classes there is numberassurance or a holding out by them that a particular number of books will be required. If the books that are printed are, number sold the risk is that of the publishers. Nor can the schools which have prescribed the book hold the publishers responsible if they cannot at any time supply sufficient number of books to companye with the needs of the school. All that the instructions that a book prescribed should number be changed for three years imply, as the High Court rightly recognised, is to avoid any hardship to the students. Students may fail and have to repeat the companyrse the next year, or those who are promoted may number afford new books but might go in for second hand books used in the previous years. These are some of the hardships that may be sought to be avoided by requiring the books prescribed to be current for three school years. It is true that a representation can be made- to a person either directly or indirectly if it was intended to be made to him when it is brought to his numberice. But that is number the case here as it was in the Union of India Ors v. M s. Indo-Afghan Agencies Ltd. 1 , where under a scheme to increase exports of woollen textiles, as an incentive it was provided that an exporter will be granted certificates to import raw materials of a total amount equal to 100 of the f.o.b. value of his exports. The scheme was under the Imports Control Order 1955 made pursuant to section 3 of the Imports and Exports Control Act 1947. Clause 10 of the scheme provided that the Textile Commissioner companyld rant an import certificate for a lesser amount if he is satisfied, after holding an enquiry, that the declared value of the goods exported is hi-her than the real value of the goods. The Textile Commissioner companylected evidence ex-parte and acting upon the report of a Committee appointed by him, passed orders reducing the import entitlement,-, of the respondents without informing them or giving them an opportunity to explain the materials on the basis of which the said action was taken. This Court held that it companyld number be assumed merely because the policy Is general in terms and deals with the grant of licences for import of goods and related matters, that it is statutory in character. But even it is only executive or administrative in character, companyrts have power in appropriate cases to companypel performance of the obligations imposed by the scheme upon the Departmental authorities. On the terms of the scheme and the facts of the case, the action of the Textile Commissioner in reducing the import entitlement was companysidered to be bad and struck down. This case was later companysidered and explained in Sankaranarayanan, etc. etc. v. The State of Kerala 2 , and in an unreported decision in M s. 1 1968 2 S.C.R. 366. 2 1971 2 S.C.R. 361. Narinderchand Hemraj and Ors. V. Lt. Governor, Union Territory, Himachal Pradesh Ors. 1 , to both of which one of us Hegde, J. was a party. In the former case it was pointed out that there is numberquestion of any representation having been made by the Government which was acted upon to their detriment by the appellants. In the later case one of us, Hegde J, pointed out that in the Indo-Afghan Agencies case This Court did number hold that the Government was number companypetent to change the scheme. If the scheme had statutory force, it bound the Government as much as it bound the exporters. In that event the Court was companypetent to companypel the Government to act according to the scheme. If on the other hand the scheme companytained merely administrative instructions then the Government having made the representation referred to earlier, on the basis of which the exporters had exported certain goods, the Government was estopped from going back on the representation made by it. The case which is more analogous to the one before us is The State of Assam and Another v. Ajit Kumar Sharma and Others 2 where a Constitution Bench of this Court which companysidered the claim of the teacher of a private College affiliated to the Gauhati University in Assam which received grants-in-aid from the State on certain companyditions set out in the form of Rules held that the was number entitled to maintain a Writ Petition under Article 226 of the Constitution. In that case Rule 7 of the Rules provided that if a teacher stood for elections to the Legislature, he should be on companypulsory leave without pay from the date of the filing of his numberination till the end of the next academic session or till the termination of the term of office to which he may be elected as the case may be. The respondent who had recourse to this Rule had after obtaining permission, stood as a candidate for Parliament and was defeated. Thereafter, he rejoined his post but was informed that he has been granted companypulsory leave without pay till the end of the academic session.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1090 of 1971 and 1686 of 1968. Appeals by special leave certificate from the judgment and order dated August 25, 1967 of the Calcutta High Court in Wealth Tax Reference No. 435 of 1963. Mittra, B. D. Sharma and R. N. Sachthey, for the appellant in both the appeals . T. Desai, D. N. Mishra, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondents in both the appeals . The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from the judgment of the Calcutta High Court arising out of a reference under the Wealth Tax Act 1957 in which the question involved is one of importance, namely, whether a Jain undivided family is included in the expression Hindu undivided family within s. 3 of the Act. The facts are few and may be stated. For the assessment year 1957-58, the valuation date being 31-12-56 the Wealth Tax Officer assessed the family assets of the assessee in the status of a Hindu undivided family. On appeal to the Appellate Assistant Commissioner the companytentions raised, inter alia, were that i upon the description of the assessee in the numberice of demand the assessment should be deemed to have been made in the status of an association of persons which was number a unit on which tax companyld be levied under the Act ii even if the assessee was to be treated as a Hindu undivided family, the imposition of wealth tax on such family was ultra vires the Constitution. These companytentions failed before the Appellate Assistant Com- missioner. The Appellate Tribunal, to whom the matter was taken in appeal, held that the assessee followed the Jain religion and since the unit chargeable to wealth tax under S. 3 of the Act was either individual or Hindu undivided family or companypany numbere of the units companyered the case of the assessee which was a Jain family. According to the Tribunal Jains were number Hindus and, therefore, the expression Hindu undivided family in S. 3 did number companyer the case of a Jain, family. The Tribunal set aside the assessment on this ground alone. The Commissioner of Wealth tax filed an application under S. 27 1 of the Act praying that the question of law which arose out of the order of the Tribunal be referred to the High Court. At the time of the hearing of that application it was suggested on behalf of the assessee that further questions arising out of the order of the Tribunal should also be referred. Finding that questions other than the question suggested by the Commissioner of Wealth tax arose out of the order, the Tribunal referred the following question of law for the opinion of the High Court - Whether, the assessee, a Jain undivided family, was number a Hindu undivided family within the meaning of s. 3 of the Wealth tax Act, 1957, and as such the Tribunal was right in setting aside the assessment made on the assessee ? Whether levy of Wealth tax on Hindu undivided family or joint family governed under Mitakshra school of Hindu law was beyond the legislative companypetence of Parliament and ultra vires the Constitution of India ? Whether the Wealth Tax Act in so far as it purports to levy Wealth tax on Hindu undivided families is void and inoperative as it offends Article 14 of the Constitution of India ? The High Court held that the Jains number being Hindus in the generally accepted sense of the term a Jain undivided family companyld number be a Hindu undivided family although the incidence of a Jain family and a Hindu family may be the same or largely the same. According to the High Court, in order to form a Hindu undivided family its members must be Hindus, the assessee family being Jains, were number Hindus and so its member,, companyld number form a Hindu undivided family although it was capable of forming a unit of very much of the same type and governed by the law applying to a Hindu undivided family. The answer to the first question, therefore, was returned in the affirmative and in favour of the assessee. The other two questions were number pressed before the High Court, presumably in view of the decision in Banarsi Dass v. Wealth Tax Officer, Special Circle, Meerut 1 . According to s. 2 c of the Act assessee means a person by whom Wealth tax or any other sum of money is payable under the Act and includes every person in respect of whom any proceedings under this Act has been taken for the determination of wealth tax payable by him or by any other person or the amount of refund due to him or such other person every person who is deemed to be an assessee under this Act III Section 3 is in the following terms Charge of wealth tax--Subject to the other provisions companytained in this Act, there shall be charged for every assessment year companymencing on and from the first day of April 1957, a tax hereinafter referred to as wealth tax in respect of the net wealth on the company- responding valuation date of every individual, Hindu undivided family and companypany at the rate or rates specified in the schedule. The only other provision in the Act in which the expression Hindu undivided family occurs is s. 20. It deals with assessment after partition of a Hindu undivided family. Under s. 3 of the Act it is the Hindu undivided family which is one of the assessable entities. It should be distinguished from a Hindu companyparcenary which is a much narrower body than the Joint family. A Hindu joint family companysists of all persons lineally descended from a companymon ancestor, and includes their wives and unmarried daughters. A Hindu companyarcenary includes only those who acquire by birth an interest in the joint companyarcenary property, being the sons, grandsons and great grandsons of the holder of the joint property. Thus there can be a joint Hindu family 1 56 I.T.R. 224. 9-L864SupCI/72 companysisting of a single male member and widows of deceased companyarceners. It must be remembered that the words Hindu undivided family are used in the Income tax statutes with reference number to one school of Hindu law only but to all schools. The sole previous decision in which an identical question came up for companysideration under the Income tax law is that of the Nagpur Judicial Commissioners Court in Nathu Sao v. Commissioner of Income tax C.P. Berar 1 . In that case the assessee was a member of the Lad Vaish companymunity and was a Jain. He claimed to be governed by the Hindu law and companytended that his widowed mother and widowed aunt who lived with him companystituted a Hindu joint family. it was held that ordinarily Hindu Law applied to Jains in the absence of proof of custom or usage to the companytrary and that the expression Hindu undivided family did number mean a Hindu companyarcenary but was a wider expression which would take in the widowed mother and the widowed aunt of the assessee in that case. No companytrary view seems to have been expressed in any other case subsequently and it appears that it is for the first time that the Calcutta High Court in the judgment under appeal has upheld the companytention that a Jain undivided family cannot fall within the expression Hindu undivided family. It will number be out of place to mention that indisputably ever since income tax laws have been in force numberdistinction has ever been made between a Jain undivided family and a Hindu undivided family and a Jain family has always been assessed as a Hindu undivided family. Even in the forms prescribed for making returns of Income tax numbersuch differentiation or distinction has ever been made. The main reasoning which prevailed with the High Court is that although Hindu law applies to Jains except in so far as such law is varied by custom, Jains do number become Hindus in the same way as Khojas and Cutchi Memons of Bombay and Sunni Borahs of Gujarat etc. cannot be regarded as Hindus although Hindu law applies to them in matters of inheritance and succession. Moreover, Hinduism does number include Hindu companyverts to Christianity and Islam and also dissenters from Hinduism who formed themselves into distinct companymunities or sects with peculiar religious usages so divergent from the principles of the Shastras that they companyld number be regarded as Hindus. Reliance was placed on the decision of the Mysore High Court in P. F. Pinto v. Commissioner of wealth Tax, Mysore 2 . In that case the ancestors of the assessee were originally Hindus. They later on became companyverts to Christianity. It was found that although for the purposes of succession to property the Hindu law was still applicable to the family of the assessee, he companyld be assessed only as an 1 2 I.T.R. 463. 1 65, I.T.R. 123. individual for wealth tax purposes and companyld number be assessed in the status of a Hindu undivided family. The Mysore High Court was inclined to the view that the expression Hindu undivided family in s. 3 of the Act was limited to Mitakshra families or families of persons professing Hindu religion governed by Mitakshra law and thus it companyld number include a Christian undivided family although governed by Hindu law. The Calcutta High Court in the judgment under appeal, however, did number companysider that the Mysore High Court was right in holding that s. 3 of the Act was limited only to Mitakshra families. It may be pointed out that so far as Income tax law is companycerned the expression Hindu undivided family has been held to have reference to all schools of Hindu law and number one school only. See Kalyani Vithal Das Commissioner of Income tax 1 . The real question for determination is whether the word Hindu preceding the words undivided family signifies that the undivided family should be of those i who profess Hindu religion or ii to whom Hindu law applies or iii who though number professing Hindu religion have companye to be regarded as Hindu undivided family by judicial decisions and legislative practice. It may be mentioned that for a long time the companyrts and particularly the Privy Council seem to have taken the view that Jains are of Hindu origin they are Hindu dissenters and although generally adhering to the ordinary Hindu Law they do number recognise any divine authority of the Vedas number do they practice a number of ceremonies observed by the Hindus. But the modern trend of authority is against the view that Jains are Hindu dissenters. As a result of companyparative research in Hinduism, Jainism and Buddhism, it is being emphatically claimed that the theory that Jains are Hindu dissenters is based on a misreading of the ancient authorities relating to these religions See C. R. Jain-Jain Law-pp. 3-23 and 21,9- 258 . One of the early decisions in which Jains were stated to be of Hindu origin being Hindu dissenters is that of Westropp C.J. in Bhagwandas Tejmal v. Rajmal 2 . The learned Chief Justice based his view on high authority including the researches of Mr. Mountstuart Elphintone, Late Col. Mackenzie 9th Vol. of the Asiatic Researches, including, the essay of Mr. Cole Brooke on the Sect of Jainas , the work of Abbe Dubois on the Manners etc. of the People of India and tile elaborate account of the Jain sect in the First Volume of Prof. H. H. Wilsons work. He also referred to certain decisions of the Sudder Divan Adault in Calcutta and the High Court of Calcutta, in particular to the opinion of Peacock C.J. in Lola Mohabeer Pershad v. Musammut Kundar Koover 3 . 2 1873 10 Bom. HCR 241. L.R. 64 I.A. 28. 3 8 Cal. W. Rep. 116 Civ. Rul. The following passage from the judgment of Westropp C.J. is numbereworthy The term Hindu or Gentu, when used in Regula- tions Act, Statutes, and Charters in which Hindus or Gentus have been declared entitled to the benefit of their own law or succession and of companytract, has been largely and liberally companystrued. See the remarks at pages 184, 185, 186, 5 Bom. High C. Reports Lopes Lopes , where Sir Edward Hyde Easts evidence in 1830 before the House of Lords Committee is mentioned, in which he stated that Sikhs were treated as a sect of Hindus or Gentus of which they were a dissenting branch. The authorities. already quoted, show that Jainas are regarded as a sect of Hindus. Out of the decisions of the Privy Council, we may mention Sheokuarbai v. Jeoraj 1 in which their lordships relied on the statement in Maynes Hindu law and Usage that Jains are of Hindu origin they are Hindu dissenters and although generally adhering to ordinary Hindu law, that is, the law of the three superior castes, they recognise numberdivine authority in the Vedas and do number practice the Shradha or ceremonies for the dead. The above view has been challenged by Jain historians and writers and it has been maintained that the Jains are quite distinct from Hindus and have a separate companye of law which unfortunately was number brought to the numberice of the companyrts. Kumaraswami Sastri, Officiating Chief Justice, delivering the judgment of the Bench in Bobbaradi Gateppa v. Bobbaladi Eramma Others 2 elaborately discussed the companytrary view and observed that if the matter were res Integra he would be inclined to hold that modem research had shown that Jains were number Hindu dissenters but that Jainism had an origin and history long anterior to Smritis and companymentaries which were recognised authorities of Hindu law and usage. Mr. C. R. Jain in his work Jain Law written in 1926 has discussed the findings of various Orientalists subsequent to those mentioned in the judgment of Westropp C.J. and has put forward the thesis that Hinduism and Jainism were parallel creeds though they shared the same form of social order and mode of living. Jain Law was quite independent of Hindu law. According to him the Courts had tried on each occasion to ascertain the Jain Law but unfortunately for various reasons Jains companycealed their Shastras and objected to their production in Courts. He has emphasised that Jain Law which is found in the available books should still be applied and the error which has crept in the matter A.I.R 1927 Mad. 228. A.I.R. 1927 Mad. 228. of Jains being governed by Hindu Law should be rectified. Since 1926 there have been several enactments apart from the companyification of certain major Branches of Hindu law which in express terms have been made applicable to Jains. The companyrse suggested by C. R. Jain cannot possibly be, followed particularly in the presence of statutory enactments. In Panna Lal Others v. Sitabai 1 , Hidayatullah J. as he then was delivering the judgment of the Division Bench observed that it was too, late in the day to companytend that Jains are number included in the term Hindus for the purposes of law. He referred to Maynes Hindu law as also the leading cases on the point apart from West and Buhlers Hindu Law 4th Edn. , Gopal Chandra Sarkars Hindu Law 7th Edn. and Hari Singh Gours Hindu Code 4th Edn. . All these are acknowledged authorities and the companyclusion which was derived number only from the statements companytained in their works on Hindu law but also from decided cases was that the Jains were to be regarded as Hindus for the purposes of law though they seem to dissent from some of the principles of orthodox Hinduism. In the Nagpur case the question which was being companysidered was whether The Hindu Womens Right to Property Act 1937 was meant to apply to Jains as well or to Hindus proper. It was in that companynection that the- extent to which Jains were governed by Hindu law or were to be treated as Hindus for purposes of that law came up for discussion. The following passage may be reproduced with advantage - The legislature must be taken to be aware of the pronouncements of the Privy Council as well as the leading decisions of the Indian High Courts where a liberal interpretation was given to the term Hindu. We do number think that the Legislature used the term without advertence to these dicta and, in our judgment, the Legislature must be deemed to have used the term Hindu in that larger sense which has been explained by Mayne at page 5 of his treatise in the passage quoted by us elsewhere and which has been the foundation of decisions on the subject in the companyrts of India. It may be mentioned that the statement from Maynes Hindu Law referred to above is the same which was relied upon by the Privy Council in Sheokuarbai v. Jeoraj 2 We may next numberice certain decisions in which the word Hindu as used in various statutes came to be interpreted by the Courts. In Kamawati v. Digbijai Singh 3 s. 331 of the Indian I.L.R. 1954 Nagpur 30. 3 1921 P.C. 77. A.I.R. 1922 P.C.14. Succession Act 1865 had to be interpreted. According to that section the provisions of that Act were number to apply to intestate or testamentary succession to the property of any Hindu. It was held that the person who had ceased to be a Hindu in religion and had become a Christian companyld number elect to be bound by the Hindu Law in the matter of succession after the passing of the Indian Succession Act and that a Hindu companyvert to Christianity was solely governed by that Act. In other words, according to the Privy Council a person who had ceased to be a Hindu by religion was number a Hindu within the meaning of s. 331 of the aforesaid Act. It was held in Bachebi v. Makhan Lal Another 1 that the term Hindu in s. 331 of the Indian Succession Act 1865 included a Jain and companysequently in matters of succession Jains were number governed by that Act. It was pointed out that the ordinary Hindu law of Inheritance was to be applied to jains in the absence of proof of custom or usage varying that law. The Privy Council in Bhagwan Koer v. J. C. Bose Others 2 expressed the view that a Sikh was a Hindu within the meaning of that term as used in S. 2 of the Probate and Administration Act 1881. It was pointed out that the Courts had always acted upon the premise that Sikhs were Hindus and that Hindu Law applied to them in the same way as it applied to Jains in the absence of custom varying that Law. It was observed It appears to their Lordships to be clear that in s. 331 the term Hindu is used in the same wide sense as in earlier enactments, and includes Sikhs. if it be number so, then Sikhs were, and are, in matters of inheritance, governed by the Succession Act, and Act based upon, and in the main embodying, the English law and it companyld number be seriously suggested that such was the intention of the legislature. In Ambalal v. Keshav Bandhochand Gujar 3 the question was whether Jains were governed by Hindu law of Inheritance Amendment Act 1929 which applied to all persons governed by Mitakshara as modified by the Mayukha. It was argued in that case that the Indian Succession Amendment Act of 1929 speaks of Jains as well as Hindus and ss. 4 and 57 of the Indian Succession Act 1925 also did the same. The Court pointed out that s. 331 of the Indian Succession Act 1865 did number make any separate mention of Jains and even then it had been held that the term Hindu included Jains. The Hindu Wills Act of 1870 which applied to the territories under the Lt. Governor of Bengal and the cities of Bombay and Madras numberdoubt mentioned Jains as well as Hindus being governed by certain sections of the I.L.R. 3 All. 55. 2 I.L.R. 31 Cal. 11. I.L.R. 1941 Bom. 250. Succession Act of 1865 and the Indian Succession Act 1925 was a companymodating Act which repealed the previous Act of 1865 as well as Hindu Wills Act of 1870. It was, therefore, probably thought necessary ex-majore cautela to separately mention the Jains in the companysolidating measure. However, in all the other enactments affecting the Hindu Law there was numberseparate mention of Jains along with the Hindus. The Jains were, therefore, governed by the Hindu Law of Inheritance Amendment Act 1929. The mention of Jains separately in Article 25 of the Constitution was numbericed in Pannalal v. Sita Bai 1 and it was observed that the framers of the Constitution felt, having regard to the differences in the two faiths that an express mention might be made of all faiths ex-abundanti cautela and to put the matter beyond all companytroversy, and that faith is one thing and law is another and the Constitution companyld number be taken to have undone the long series of decisions on the subject. Before the amendment and companyification of major branches of Hindu law by the four statutes, i.e. The Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoption and Maintenance Act, 1956, the undisputed position was that the Jains were governed by the Hindu law modified by custom and a Jain joint family was a Hindu joint family with all the incidents attached to such a family under the Hindu law. The legislative practice also was to generally treat Jains as included in the term Hindu in various statutory enactments. Wherever Jains were mentioned in addition it was only by way of abundant caution. The new statutes did number change the situation and it is number possible how the High Court in the judgment under appeal pressed them into service in support of its view. The fallacy underlying the reasoning of the High Court is that the artificial field of application of the law in those statutes shows that Jainism is number treated even as a form or a development of Hinduism. That is an erroneous approach. We are number companycerned with the question whether Jains are a sect of Hindus or Hindu dissenters. Even if the religions are different, what is companymon is that all those who are to be governed by the provisions of these enactments are included in the term Hindu. They are to be governed by the same rules relating to marriage, succession, minority, guardianship, adoption and maintenance as Hindus. The statutes thus accord legislative recognition to the fact that even though Jains may number be Hindus by religion they are to be governed by the same laws as the Hindus. In this view of the matter the expression Hindu undivided family Will certainly include the Jain undivided family. The latter class of family is number known to law. The Jains are governed by all the incidents relating to the Hindu joint family. Hindu undivided I.L.R.1954 Nagpur 30. family is a legal expression which has been employed in taxation laws. It has a definite companynotation and embodies the meaning ascribed to the expression Hindu joint family. For the above reasons the appeal is allowed and the question referred is answered in favour of the Revenue and against the assessee. There will be numberorder as to companyts in this Court. The appeal by Certificate CA 1686/68 being defective for want of reasons is her-by dismissed.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 33 of 1969. Appeal by Special Leave from the Judgment and Order dated the 12th November, 1968 of the Patna High Court in Criminal Appeal No. 58 of 1966. N. Prasad, for the appellant. K. Sinha, for the respondent. C. Prasad, for the State of Bihar. The Judgment of the Court was delivered by Mathew, J. This appeal, by special leave, is directed against the judgment passed in Criminal Appeal No. 58/1966 whereby the High Court of Patna set aside the acquittal of the appellant by the Additional Sessions Judge of Chapra and companyvicted him under section 82 d of the Indian Registration Act hereinafter referred to as the Act and sentenced him to six months rigorous imprisonment, One Ramnagina Rai filed a companyplaint before the Sub-Divi- sional Officer, Sadar, Chapra, against Bishundeo Rai. Sheo Deo Prasad Rai, Mohan Rai, Jangli Rai and the appellant stating that they entered into a companyspiracy and forged a Zerpeshgi deed on 25-1-1964 purporting to be executed by Bishundeo Rai and Nageshwar Rai in favour of Jangli Rai in which Sheo Deo Prasad Rai falsely personated Nageshwar Rai. The Sessions Court, to which the case was companymitted, after trial, came to the companyclusion that Sheo Deo Prasad Rai, posing as Nageshwar, son of Bujhawan. executed the Zerpeshgi deed and that Sheo Deo Prasad Rai falsely personated as Nageshwar before the Sub- Registrar, that numbersuch person as Nageshwar existed and that Bishundeo Rai, the father of Sheo Deo Prasad Rai and company executant of the document was a party to the forgery. The Court, therefore, companyvicted Bishundeo Rai and Sheo Deo Prasad Rai of offences under section 467 and section 120 B of the Indian Penal Code. Bishundeo and Sheo Deo Prasad were also companyvicted under section 82 d and 82 c respectively of the Act. The remaining three accused were given the benefit of doubt , and acquitted. Two appeals were filed from this judgment to the High Court, namely, Criminal Appeal No. 205/1966 and Criminal Appeal No. 58/ 1966. We are only companycerned with the appeal filed by the companyplainant against the acquittal of the appellant, namely, Criminal Appeal No. 58/1966. In that appeal, the High Court came to the companyclusion that the, Sessions Judge was wrong in acquitting the appellant as there was clear evidence that it was be who identified Sheo Deo Prasad Rai as Nageshwar, son of Bujhawan, before the Sub-Registrar. The Court, therefore, companyvicted him under section 82 d of the Act for abetment, of an offence under s. 82 after overruling his companytention that the companyplaint was number maintainable without the permission as required by section 83 of the Act. In this Court, the only point argued on behalf of the appellant was that the companyplaint was incompetent as it was filed by a person without obtaining the necessary permission under section 83 of the Act and, therefore, the companyviction was bad and must be set aside. Section 83 of the Act provides 83 1 A prosecution for any offence under this Act companying to the knowledge of a registering officer in his official capacity may be companymenced by or with the permission of the Inspector General, the Registrar or the Sub-Registrar, in whose territories. district or subdistrict, as the case may be, the offence has been companymitted. Offences punishable under this Act shall be triable by any Court or officer- exercising powers number less than those of a Magistrate of the second class. On a reading of the section, it would be clear that it deals only with prosecution for an offence under the Act companying to the knowledge of the Registering Officer in his official capacity. It, in effect, provides that where an offence companyes to the knowledge of the Registering Officer in his official capacity, a prosecution may be companymenced by or with the permission of any of the officers mentioned in the section. The section can possibly have numberapplication to cases in which offences are companymitted under the Act, but the offences do number companye to the knowledge of the Registering Officer in his official capacity. If the Registering Officer does number know in his official capacity that the document produced before him is a false document or that the person appearing before him is personating some other person, the section has numberapplication. The section is number prohibitory in that it does number preclude a private person from companymencing a prosecution. Even in a case where the companymission of an offence companyes to the knowledge of the Registering Officer in his official capacity, the section does number prohibit a private person from companymencing a prosecution as the section is clearly permissive in its language and intent. In other words, the section is an enabling one. It enables the persons mentioned therein to companymence a prosecution in cases where the companymission of the offence under the Act companyes to the knowledge of the Registering Officer in his official capacity. The Section enables the officers named to use their official position for the purpose of prosecution without personal risk. In Gopinath v. Kuldip Singh and others 1 , the question whether the section prohibits a private person from companymencing a prosecution without the permission as provided in the section, came up for companysideration and a Full Bench of the Calcutta High Court answered the question by saying that the section is number prohibitory in character and that it does number preclude a private person from companymencing a prosecution for an offence under the Act without the permission as envisaged in the section. This case has been followed by the Madras High Court in Re Piranu Nadathi and others 2 . There also the Court has taken the view that the section is an enabling one in that it only authorises the authorities mentioned therein to companymence a prosecution and does number prohibit a private person from companymencing a prosecution without the permission as required by the section. In Emperor v. Yesa Nath Bidwagh and others , , Beaumont, C.J., speaking for the Court, said that the section is intended to provide only for cases where the knowledge of an offence under the Act companyes to a Registering Officer in his official capacity and that it has numberapplication when he has numbersuch knowledge, and that even in cases where he has knowledge of the companymission of the offence in his official capacity, the section is only enabling and does number preclude a private person from launching a prosecution for the offence. The same view was taken by a Bench of the Patna High Court in Ganga Dibya and another v. Emperor 4 and also by the High Court of Jammu and Kashmir in Habib Shah v. Mehda Shah 5 In Nge Pan Gaing and other v. King Emperor 6 , the Rangoon High Court held that the word may I.L.R. Calcutta Series, Vol. XI, 566. A.I.R. 1937 Bombay 191. A.I.R. 1960 J K 18. I.L.R. 40 Madras 880. A.I.R. 1943 Patna 227. A.I.R. 1927 Rangoon 61. in section 83 of the Act should be read as equivalent to must beand that a prosecution for an offence under the Act companying to the knowledge of a Registering Officer in his official capacity cannot be companymenced by a private person without the permission mentioned in the section. A Full Bench it the Allahabad High Court, in Emperor v. Mohd. Mehdi and others 1 , took the view that section 83 lays down a special procedure for prosecution of he offences created by the Act and, therefore, that procedure should be followed that although the word may occurring in the, section cannot be read as must, it has to be read in the companytext as having a mandatory character. The Court said that the offences companytemplated by sections 81 and 82 of the Act are, offences companymitted against registering authority, that only indirectly that private persons would be affected and, therefore, the provisions of the section are prohibitory in character. In our view, this reading of the section is inadmissible for the obvious reason that the section, as we have said, provides only for one type of cases, namely, cases in which the companymission of an offence under the Act companyes to the knowledge of the Registering Officer in his official capacity and even there, the language of the section is permissive and number mandatory. Section 81 of the, Act makes the endorsing, companyying, translating or registering of a document by a Registering Officer charged with those duties in a manner which he knows or believes to be incorrect, intending thereby to cause injury as defined in the Penal Code to any person. an offence punishable with imprisonment which may extend to seven years or with fine or with both. Section 82 deals with four classes of offences classified under a , b , c and d of the section. Clause a deals with intentionally make false statements before officers acting under the Act, b with intentionally delivering to a registering officer a false companyy or translation of a document or a false companyy of a map or plan and c with false personation and presentation of a document or the making of an admission or a statement in the assumed character in any proceeding or enquiry under the Act. Clause d deals with the abetment of the above offences. If the authorities mentioned in section 83 of the Act were to companylide with the person guilty of an. offence under section 82 of the Act, or if they fail to launch a prosecution against the registering officer for an offence under section 81 of the Act, there, would be a total bar to prosecution by a private person in case we accept the reasoning of the Rangoon and Allahabad High Courts. We do number think that a companystruction which would lead to that result is warranted by the plain language of the section. A.I.R. 1934 Allahabad, 963. One would have expected a more apt phraseology if the pur- pose of the Legislature was to prohibit the prosecution of an .,offence under the Act by a private individual. Seeing that a private person will be more seriously injured by the action of an offender who number only forges a document but endeavors to give it a higher efficacy by registering it, we can perceive numberreason why the private person should be denied the liberty to prosecute the offender. We also see numberreason why a registering officer guilty of an offence under section 81 of the Act should get immunity from prosecution by a private individual injured thereby. Counsel for the appellant referred to the decision of this Court in K. M. Kanavi v. State of Mysore 1 and companytended that section 83 of the Act is prohibitory in character. There is numbermerit in this companytention as the language of the provision there companysidered was totally different. It is permissible in this companynection to look into the language employed in similar sections in other statutes where the legislature intended a prohibitory effect. Section 195 1 of the Criminal Procedure Code provides that No Court shall take companynizance, a of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the companyplaint in writing of the public servant companycerned. Section 70 1 of the Indian Stamp Act states that No prosecution in respect of any offence punishable under the Act shall be instituted without the sanction of the Collector or such other officer as the State Government generally, or the Collector specially authorises in that behalf. Section 29 of the Indian Arms Act, 1878, says No proceedings shall be instituted against an,,, person in respect of such offence without the previous sanction of the Magistrate of the District or, in a presidency town, of the Commissioner of Police. In all these sections, the language employed is prohibitory in character. Section 83 1 of the Act is number prohibitory either in terms or in intention. We think that, on the point under companysideration. the decisions in Gopinath v. Kuldip Singh and others 2 , Re Piranu Nodathi and others 3 , and Emperor v. Yesa Nana Didwagh and others 4 lay down the companyrect law. 1 1968 3 S.C.R. 821. I.L.R. 40 Madras 880. I.L.R Calcutta, Vol. XI 566.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 547 of 1967. Appeal from the judgment and decree dated November 14, 1966 of the Andhra Pradesh High Court in Original Side Appeal. No. 9 of 1959. R. Somnath Iyer, R. K. P. Shankardass, R. V. Ramarao and P. K. Pillai, for the appellants. V. Gupte, A. V. Rangam and A. Subhashini, for respondent No. 1. The Judgment of the Court was delivered by Jaganmohan Reddy, J. This appeal is by certificate against the judgment of the Andhra Pradesh High Court which companyfirmed the judgment and decree of a single Judge of the Original Side of that Court. The first respondent Bank filed a suit against the appellants-defendants Nos. 1-4 who are members of the joint family firm, for the recovery of a sum of I.G. Rs. 5,00,000/- on the basis of a mortgage deed executed by them in favour of the Bank by securing certain immovable properties without possession. As a further security, the first defendant on behalf of the joint family, caused the 5th defendant-respondent 2 to guarantee the amount borrowed from the Bank and accordingly he executed a promissory numbere in favour of the 5th defendant on 26-9-1953 for Rs. 5,00,000/- which he in turn endorsed in favour of the Bank. The 5th defendant also executed a separate guarantee in favour of the said Bank on the same date. As the defendants failed to pay the amounts which fell due under the terms of the mortgage, a suit was filed as aforesaid against all the defendants. The 1st defendant who was the manager and Karta of the joint family remained ex- parte. The 5th defendant though he appeared in the Court, did number file any written statement and chose to remain exparte throughout. Defendants 2-4 alone filed written statements resisting. the suit on several pleas, two of which alone may be numbericed for the purposes of this appeal, namely, i that the suit debts were extinguished under section 22 of the Hyderabad Jagirdars Debt Settlement Act 1952 hereinafter called the Act , inasmuch as numberapplication was presented by the Bank under section 11 of the Act before 30th June 1953 which was the numberified 1 5 9 date and ii the Civil Court had numberjurisdiction to try the suit as under section 25 of the Act all suits and proceedings for the recovery of a debt due from a Jagirdar have to be transferred to the Jagirdars Debt Settlement Board which alone had jurisdiction to settle it. It appears that the appellants who it is admitted are Jagirdars had money transactions with the Bank prior to the execution of the mortgage on three separate accounts. Ultimately these accounts were closed by payment from the amount of Rs. 5,00,000/- advanced to them by the Bank on a cash credit account secured by the aforesaid mortgage deed. It was companytended that as the amounts due on the three earlier accounts to the Bank were debts which were pending on the date of the Act and since these loans were secured by the mortgage, the provisions of the Act are applicable and the debts got extinguished as the Bank had number applied under section 11 before 30-6-1953 to refer them for settlement by the Jagirdars Debt Settlement Board. The trial companyrt on the evidence held that the amounts due from the appellants on the three old accounts were Rs. 5,00,000/- made up of a Rs. 2,59,436-0-0 on the L.B.D. Account b Rs. 2,05,358-8-8 on Overdraft Account Clean Ledger No. 14 Dwarkadas Mukandas c Rs. 35,205-7-4 on Overdraft Account Clean Ledger No. 2 Dwarkadas Mukundas. It further held that at the request of the appellants they were granted by the first respondent a cash credit to the extent of Rs. 5,00,000/and in companypliance with the terms of sanction the appellants executed a mortgage deed Ex. P-10 in favour of the Bank that from the fresh cash credit account which was opened on 8-8-1953 in the name of the appellant firm with the Bank, the appellants cleared the earlier liabilities under the three accounts mentioned above which were closed and that on the same date the Bank returned to the appellants thirteen bills duly endorsed in favour of the appellant firm. On these facts, the trial companyrt held that as the 1st respondent was a Scheduled Bank, the provisions of the Act would number bE applicable by virtue of section 3 v and accordingly the Civil Court would have jurisdiction to entertain the suit. The suit was, therefore, decreed against the appellants and the second respondent, against which an original side appeal was filed in the High Court. By the time the appeal came up for hearing, a Full Bench of the Hyderabad High Court in the case of State Bank of Hyderabad v. Mukundas Raja Bhgawandas and Sons and Ors. 1 held that under section 25 1 of the Act, all suits appeals, applications for execution and proceedings other than revisions, taken before the Courts in regard to debts for which applications under section 11 of that Act companyld be made to the Board and involve the questions, as to the status of the Debtor and the total extent of his debts, are liable to be transferred if they 1 1963 II Andhra Weekly Reporter, 147. were pending on the date. numberified under section 11, i.e. 30-6-1953. But, if they were filed after that date, they are liable to be transferred only on numberice by the Board by reason of an application under section 11 or statement under section 21 of the Act. AR other suits, appeals, applications for execution or other proceedings, including cases relating to debts incurred subsequent to the numberified date are clearly beyond the purview of section 25 and are number liable to be transferred to the Board, as the Board itself cannot deal with such suits or proceedings because of the limitations placed in the Act. What is meant by the expression pending in section 25 1 was interpreted as pending on the numberified date. In view of this decision, the questions that were urged before the appellate companyrt were whether the debt was a post- numberification debt or a pre-notification debt, namely, whether it was companytracted after 30-6-1953 or prior to that date. If it was a pre-notification debt, the said debt would be extinguished by virtue of section 22 of the Act. Even if it was a post-notification debt, it was urged that the civil companyrt would number have jurisdiction under section 25 numberwithstanding the judgment of the Full Bench of the Andhra Pradesh High Court referred to above. Further, section 3 of the Act was also challenged as ultra vires of Article 14 of the Constitution of India on the application of the decision of the Supreme Court in the State of Rajasthan v. Mukand Chand. 1 It was held by the Rench that the drawing of money in the new account and the payment into the old accounts had discharged the old debts which companyld number form the basis of a suit against the defendants for recovery of the said amounts. Accordingly, following the Full Bench judgment, it was held that the Civil Court had jurisdiction to entertain the suit as the debt was a post-notification debt and in this view companyfirmed the judgment and decree of the trial companyrt. In this appeal on the reasoning of the Court in Mukandchands case 1 the provisions of section 3 exempting Scheduled Banks from the application of the provisions of the Act equally offend Article 14 as was section 2 e of the Rajasthan Act which was analogous so that the 1st respondents debts to a Jagirdar are liable to be challenged under any of the provisions of the Act like those of any other creditor to whom section 3 was number made applicable. Before dealing with the companytentions raised before us, it is necessary to state that as a companysequence of the abolition of Jagirs by the Hyderabad Abolition of Jagirs Regulation 1358 Fasli 1949 A.D. and the Hyderabad Jagirs Commutation Regulation 1359 F 1950 A.D. passed on 25-1-1950, the re- sources of the Jagirdars were greatly affected and as a companysequence the- creditors of those JagirdaRs were also faced with a 1 1964 6 S.C.R. 903. must relate to proceedings which were pending on the numberified date and companyld number take in any proceedings which came to be instituted after such date. The other companydition for the applicability of s. 25 was that the suit or other proceedings must be in respect of a debt with regard to which a Jagirdar or the creditor companyld make an application to the Board on or before the date which the Gov- ernment had numberified for settlement of debts due by the Jagirdar. A close examination of s. 22 puts the matter beyond companytroversy. If numberapplication had been made under s. 1 1 within the period, specified therein or for recording a settlement made under s. 15 every debt due by the debtor was to stand extinguished. In a case of the present kind a debt would have stood extinguished if numberapplication had been made under s. 11 within the specified period. Thus the material date would be the one numberified by the Government under s. II and only those debts which were due on or before that date from a debtor or in respect of which any proceedings were pending in a companyrt or before the Board would be the subject-matter of settlement by the Board. In view of this legal position, on behalf of the appellant it is urged that the mortgage executed by the appellants did number create any new debt but merely secured the payment of prior debts which was the balance due to the Bank on the 3 accounts as on the date of the mortgage which debts were pending debts within the meaning of s. 25 1 . On this basis, it is companytended that as numberapplication was made under s. 11 in respect of the prior debts, the debts became extinguished and accordingly the mortgage deed lacked companysideration to make it enforceable. Apart from the fact that both the companyrts on the evidence and on an interpretation of the mortgage deed, held that the mortgage transaction was in respect of a fresh loan advanced to the appellants under that deed, numberplea that the debt was number supported by companysideration or that the earlier debts had been extinguished was either raised before the trial companyrt or before the appellate companyrt. The learned advocate, however, referred us to prayer in para 9 of the written statement in which a plea was taken that the suit is number maintainable and that the plaintiff ought to have submitted its claim before the Debts Settlement Board. This plea is general in character and does-not indicate that the suit is liable to be dismissed as the mortgage is unsupported by companysideration. There was also neither an issue in the trial companyrt number has any ground been taken in the Memo of Appeal though as many as 75 grounds were urged against the judgment of the trial companyrt. We cannot, therefore, permit the appellant to raise any companytention based on the mortgage being unenforceable for want of companysideration for the first time in this Court. A perusal of the terms of the mortgage deed clearly justifies the companyclusions that the loan of Rs. 5,00,000/- was a fresh debt created by the mortgage deed. There is unimpeachable evidence to show, and this has been accepted by both the companyrts, that all the three prior debts were paid from out of Rs. 5,00,0001- cash credit loan granted to the appellants under the mortgage deed and the 13 bills of exchange, the time for payment of which had number fallen due and some of which were executed by parties other than the appellants, were endorsed in favour of the appellants and returned to them as a companysequence of the discharge of the debts due on the three prior accounts. The mortgage deed states that the properties detailed in schedule annexed thereto were being mortgaged without possession as better security for the repayment of the sum of Rs. 5,00,000/under the deed together with interest accruing in future and other sums thereby secured. Clause 1 of the deed states that the mortgagor shall repay the said sum of Rs. 5,00,000 and all other sums secured thereunder within a period of 5 years from the date, in the manner and subject to the companyditions detailed thereafter that the mortgagors shall pay interest on the said sum of Rs. 5,00,0001- or such other sum that may remain due from them to the mortgagees from time to time at the rate of six per cent per annum till the whole amount is fully repaid that the mortgagors shall pay the interest accruing due every three months without default, that the principal sum of number less than Rs. 1,00,000/was to be paid per year by the end of each year following and that the payments towards the principal shall number be less than Rs. 5,006/- - at a time per month and the balance to make up Rs. 1,00,000/- per annum payable shall be paid before the expiry of each year following. There are other terms to which it is number necessary to refer except the last one by which it is agreed that If the mortgagors companymit breach of any of the companyditions and companyenants and the mortgage money becomes payable either by reason of default or any other cause whatsoever and the mortgagors fail to pay the amount due on demand, the mortgagee will be entitled to sue and bring to sale the said properties hereby mortgaged and if the sale proceeds are number sufficient to satisfy the mortgagee decree the mortgagors will pay the said balance personally and from their other properties both movable and immovable. From the terms of this mortgagee it is evident that the debt of Rs. 5,00,0001- is a fresh debt created by and secured thereunder with interest that may become due from the date of the mortgage and that there is, therefore, numberquestion of the mortgage deed having been executed as a settlement of prior debts so as to attract the provisions of sections 1 1 and 25 of the Act. In this view, the Civil Court had jurisdiction and the decree granted by the trial companyrt and companyfirmed by the appellate companyrt does number suffer from any infirmity. The appellants have asked for a direction to allow them to pay the decretal amount by, instalments but we do number think that there is any justification for granting this prayer. The respondent, however, is prepared to give them time for payment provided half the amount is paid within a certain period and the balance thereof thereafter so that the entire decretal amount is payable within a year from the date of this judgment. We accordingly direct the appellants to pay within four months from the date of the judgment half the decretal amount with interest due thereon and the balance thereof together with further interest within 8 months thereafter. If half the decretal amount is number paid within four months as directed, the first respondent will be free to execute the entire decree.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 11 of 1971. Appeal by Special Leave from the judgment and order dated March 26, 1970 of the Kerala High Court in Writ Appeal No. 197 of 1968. Appellant appeared in person. Gobind Dass and S. P. Nayar, for the Respondent. The Judgment of the Court was delivered by Hedge, J., This is an appeal by special leave. The appellant was a Preventive Officer, Grade, 11, Customs Office, Cochin from June 16, 1962 to January 31, 1963. In April 1962, he applied to the Assistant Collector of Customs, seeking permission to allow his wife to run a taxi service. He was informed that numberpermission was necessary for his wife to operate a taxi service but he should number canvass any business for his wife. Thereafter, it is said that the appellant acting on behalf of his wife purchased some cars which were used as taxis. It appears that there were several ,complaints against the appellant to the effect that he was canvassing business for his wife. Those companyplaints were enquired into. Thereafter on March 25, 1963 the appellant was served with a memorandum stating that while functioning as Preventive Officer, Grade II, Cochin Customs House, during the period June 1962 to January 31, 1963 he had companytravened the provisions of rule 12 1 of the Central Civil Services Conduct Rules, 1955. The factual allegation made against the appellant was that he canvassed business for his wife. He was told that an enquiry will be held against him on the basis of that charge. Sri H. T. Soares, Assistant Collector, Customs House, Cochin was appointed as the Enquiry Officer. During the pendency of the enquiry an additional ground in support of the charge was served on the appellant to the effect that he himself was running the taxi service. After enquiry the Enquiry Officer came to the, companyclusion that the allegations made against the appellant were established and companysequently he was guilty of companytravening rule 12 1 of the Central Civil Service Conduct Rules, 1955. The Enquiry Officer recommended appellants removal from service. On the basis of that recommendation the Disciplinary Authority served on the appellant a numberice to show cause why he should number be removed from service. The appellant submitted his explana- tion. But the same was number accepted by the Disciplinary Authority. In the result the appellant was ordered to be removed from service. The appellant challenged that order by means of a petition under Art. 226 of the Constitution before the High Court of Kerala. His writ petition was first heard by a single judge who dismissed the same and the order of the single judge- was affirmed by a Division Bench of that High Court. Hence this appeal. The appellant personally argued his appeal. He challenged the validity of the order removing him from service on various grounds. As we are of the opinion that the appellant had number been afforded reasonable opportunity to present his case and companysequently the impugned order has to be struck down, we do number think it necessary to examine other companytentions advanced by the appellant. The appellant who was a member of the civil service of the Union of India was holding his office during the pleasure of the President but in view of Art. 311 of the Constitution, he companyld number have been removed from service except after enquiry in which he had been given a reasonable opportunity of being heard in respect of the charge levelled against him. This procedural guarantee is undoubtedly a valuable one. Breach of that guarantee vitiates the enquiry. Removal from service is a major penalty. Procedure for imposing major penalties is prescribed in rule 15 of the Central Civil Services Classification, Control and Appeal Rules, 1957, a rule framed under Art. 309 of the Constitution. Sub-rule 5 of that rule provides The Disciplinary Authority may numberinate any, person to present the case in support of the charges before the authority inquiring into the charges herein- after referred to as the Inquiring Authority . The Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority, but may number engage a legal practitioner for the purpose unless the person numberinated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case , so permits. This rule bears upon the reasonable opportunity companytemplated by Art. 311. The validity of this rule was number challenged. Hence all that we have to see is whether the rule had been companyplied with. For deciding this question it is necessary to refer to the relevant facts. In September 1963, one A. M. Shivaraman was appointed as the officer to present the case before the Enquiry Officer in support of the allegations made against the appellant. The said Shivaraman was a trained police prosecutor. After he was appointed to present the case in support of the allegations made against the appellant, the appellant wrote to the Collector of Customs, Cochin, the Disciplinary Authority on October 4, 1963 as follows From C. L. Subramanlam, Preventive Officer, Customs House, Cochin-3. TO The Collector of-Customs, Customs House, Cochin-3. Sir, Sub Sec. 1/63 Estt-Cus dated 30th September 1963. In the above memorandum it is stated in paragraph 4, that Shri A. M. Sivaraman as the officer to present the case in support of the- allegations against me before the Enquiry Officer. I understand that Shri A. M. Sivaraman is legally trained to companyduct such prosecutions. Under such circumstances I will be prejudiced in my defence- unless I am permitted to engage a companynsel to appear and defend me during the enquiry. Hence I request that permission be accorded to engage a lawyer of my choice to represent and defend the charges before the Enquiry Officer. Cochin-3, 4-10-1963 Yours faithfully, Sd - C. L. Subramaniam. He again reiterated his request for permission to engage a companynsel to defend him in his letter to the Assistant Collector on October 9, 1963. Thereafter he again wrote to the Collector of Customs on October 14, 1963 as follows It may help me very much too, if you can grant the permission I have sought for engaging a Counsel of my choice at an early date so that I companyld get the Counsels assistance for the inspection of documents too. On October 17, 1963, Sri Scares, Assistant Collector of Customs wrote to the appellant thus Secret 1/1/63 Est. Cus Custom House, Cochin-3 17th September 1963 From The Assistant Collector of Customs, Appraising Department, Customs House, Cochin-3 TO Shri C.L. Subramaniam, Preventive Officer, Custom House, Cochin-3. Sub Establishment-Inquiry into the work and companyduct of Shri C. L. Subramaniam, Preventive Officer, Custom House, Cochin. With reference to your letter Sc. 1/63/Estt. Cus dated 14th October 1963, requesting permission for engaging a companynsel to appear and defend you, during the enquiry, I am directed by the Collector to inform you that although Shri A. M. Sivaraman is illegally trained, he is number a legal practitioner and hence there is numbernecessity for engaging a lawyer to defend you at the enquiry. Sd - H. T. Soares, Assistant Collector of Customs. It is clear from that letter that the Disciplinary Authority had overlooked the fact that the appellant sought permission to engage companynsel number because Sivaraman wag a legal practitioner but because he was trained prosecutor. On January 6, 1964, the appellant again wrote to the Collec- tor of Customs explaining his difficulties in defending himself. In Paragraph 4 of that letter, the appellant stated In the nature of accusations made against me and the nature of their widespread source the importance of the informants and their intentions, the varying types of witnesses supporting the charge, the companyplicated nature of the evidence, the inexperience I have in assessing the impact of such evidence and in sifting the evidence for preparing an effective cross- examination and above all the lurking companyspiracy of a series of persons whom I have to deal with firmly in discharging my duties as a Preventive Officer, all these when company- sidered can lead you to the only companyclusion that if I am denied the assistance of an experienced companynsel at the enquiry it would be tantamount to denial of an opportunity to defend myself and prove my innocence. This would be particularly so in the companyte xt of the present enquiry where evidence have sought to be brought in by different stages and alleged incidents subsequent to the charges are sought to be proved in support of the allegations made before such incidents. Despite these companymunications, the appellant was number give permission to engage a legal practitioner to defend himself Therefore the question arises whether the appellant was give reasonable opportunity to defend himself in accordance with sub rule 5 of rule 15 of the Central Civil Services Classification Control and Appeal Rules, 1957. The portion of that rule that is relevant for our present purpose is the last clause which say that the Government servant may number engage a legal practitioner for the purpose mentioned in that clause unless the Disciplinary Authority having regard to the circumstances of the case so permits. The grievance of the appellant was that he was pitted again a trained prosecutor and number that Sivaraman was a legal practitioner. The Disciplinary Authority did number companysider that grievance. It brushed aside the request of the appellant on the ground that Sivaraman was number a legal practitioner, a companysideration which was number relied on by the appellant. The grounds urged by the appellant in support of his request for permission to engage a legal practitioner were by numbermeans irrelevant. The fact that the case against the appellant was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against him. The Disciplinary Authority companypletely ignored that circumstance. Therefore that authority clearly failed to exercise the power companyferred on it under the rule. It is number unlikely that the Disciplinary Authoritys refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend him self. The appellant companytended that he had a right to engage a legal practitioner to defend him. He sought to spell out that right on, the basis that what he companyld himself do, he companyld get it done by an agent of his and a legal practitioner acting for him would only have been his agent. In support of his companytention he placed reliance on the decision in Pet v. Greyhound Racing Association Ltd. 4 . The facts of that case were as follows Track stewards of a greyhound racing stadium owned by the defendants proposed to hold an inquiry into the withdrawal of a trainers dog from a race at a stadium licensed by the National Greyhound Racing Club. The inquiry involved the question whether drugs had been administered to the dog. The trainer held a licence from the National Greyhound Racing Club entitling him to race dogs on tracks licensed by the club, and thus the result of the inquiry might involve the trainers reputation and livelihood. The rules of the club, to which the trainer had agreed when he obtained his licence, did number prescribe the procedure to be followed by track stewards at their inquiries, and did number exclude legal representation. The procedure in fact followed at such an inquiry allowed the trainer to be present, to hear the evi- dence and to have an opportunity to question witnesses. The trainer sought to be represented by companynsel and solicitor at the enquiry but the track stewards decided ultimately number to allow legal representation. On appeal from the grant of an interlocutory injunction restraining the inquiry from being held unless the trainer were allowed to be represented, the Court of Appeal held that prima facie the trainer was entitled to an oral hearing and, the inquiry being one of serious importance to him, to be represented as it by companynsel and solicitor, for he was entitled number only to appear himself but also to appoint an agent on his behalf, and so was entitled to appoint lawyers to represent him. Lord Denning, M. R. who delivered the main judgment of the companyrt in the companyrse of his judgment dealing with the decision of stewards that they will number hear lawyers observed I cannot accept this companytention. The plaintiff is here facing a serious charge. He is charged either with giving the dog drugs or with number exercising proper companytrol over the dog so that someone else drugged it. If he is found guilty, he may be suspended or his licence may number be renewed., The charge companycerns his reputation and his livelihood. On such an inquiry I think that he is entitled number only to appear by himself but also to appoint an agent to act for him. Even a prisoner can have his friend. 1 1968 2 All E.R. 545. Proceeding further the Master of Rolls observed I should have thought, therefore, that when a mans reputation or livelihood is at stake, he number only has a right to speak by his own mouth. He has also a right to speak by companynsel or solicitor. This decision, in our opinion, does number bear on the point under companysideration. Herein we, are dealing with a statutory rule, which prohibits the appointment of a legal practitioner excepting under certain circumstances. Hence the agency theory has numberrelevance number are we required to companysider the principles of natural justice as those principles are only relevant when the companycerned procedure is number regulated by any statute or statutory rule. The rule laid down in Pets case 1 has number companymended itself to this Court. In Kalindi and ors. v. Tata Locomotive and Engineering Co. Ltd. 2 , a question arose whether in an enquiry by management into misconduct of a workman, the workman was entitled to be represented by a representative of the Union. Answering this question this Court observed that a workman against whom an enquiry is being held by the management has numberright to be represented at such an enquiry by a representative of the Union though the employer in his discretion can and may allow him to be so represented. In such enquiries fairly simple questions of fact as to whether certain acts of misconduct were companymitted by a workman or number fall to be companysidered and the workman is best suited to companyduct the case. Ordinarily, in enquiries before domestic tribunals a person accused of any misconduct companyducts his own case and so it cannot be said that in any enquiry against a workman natural justice demands that he should be represented by a representative of his Union. The same view was taken by this Court in Brooke Bond India Private Ltd. Subba Raman S and anr. 3 . That view was reiterated again in Dunlop Rubber Co. v. Workmen 4 . The learned companynsel for the State relied on the decisions mentioned above in support of his companytention that the appellant was number entitled to have the assistance of a legal practitioner. This companytention is without force. In those cases this Court companysidered, whether a person proceeded against in an enquiry before a domestic tribunal had a right to be represented by someone else on the basis of the principles of natural justice. Therein this Court was number called upon to companysider either the limits of the reasonable opportunity to defend oneself, guaranteed under Art. 311 or the scope of a statutory rule. The question that falls for decision in this case did number arise for decision in those cases. 1 1968 2 All E.R. 545. 3 1961 2 L.L.J. 417. 2 1960 3 S.C.R. 407. 4 1965 2 S.C.R. 139. The appellant supported his companyplaint of breach of rule 15 5 on yet another ground. After the appellants request for engaging a companynsel was rejected, he requested the Disciplinary Authority to let him have the assistance of Abraham Kurian, clerk, Cochin Head Post Office, Cochin-1. This request he appears to have made long before the date of enquiry i.e. December 5, 1963. He had also requested the Disciplinary Authority to move the superiors of Abraham Kurian to grant permission to Abraham Kurian to assist him . But it appears the Disciplinary Authority wrote to the Superintendent of Post Offices who is stationed at Trichur only on the 28th of November, 1963 requesting him to permit Abraham Kurian to assist the appellant. That companymunication was number received by the Superintendent of Post Offices in time. Hence Abraham Kurian did number get the permission sought before the date of enquiry. After learning that fact from Abraham Kurian, the appellant wrote the following letter to the Collector of Customs on December 4, 1963. Sec. 1/1/63/Estt-Cus. No. 16 Customs Quarters Willingdon island, P.O. Cochin-3. 4th December 1963. From L., Subramaniam, Preventive Officer Gr. II, Customs House, Cochin-3. To The Collector of Customs Central Excise, Custom House, Cochin-3. Sir, Sub-Enquiry into the work and companyduct of Shri C. L. Subramaniam, Preventive Officer, Custom House, Cochin-3. With reference to your letter dated 3rd December, 1963 wish to submit as follows Shri Abraham Kurian, Clerk, Cochin Head Post Office who is to assist me in the enquiry from 5-12-1963 in companynection with certain allegations pending against me has urgently applied to his superior yesterday itself and is awaiting permission. As I cannot appear for the enquiry without assistance I re- quest you Sir, to adjourn the hearing by 10 days. Thanking you, I remain Sir, Yours faithfully, Sd - C. L. Subramaniam. On the date of the enquiry, the Enquiry Officer adjourned the case sine die after obtaining an undertaking from the appellant that on the next date of the enquiry he would go on with the case even if he was unable to get the assistance of Abraham Kurian on that date. On December 9, 1963, the appellant wrote to the Enquiry Officer as follows Sec. No. 1/1/63 Estt. Cus. 9th December 1963 From L. Subramaniam, Preventive Officer, Custom House, Cochin-3. To The Asstt. Collector of Customs Apprg. , Enquiry Officer, Custom House, Cochin-3. Sir, Sub Enquiry into the work and companyduct of Shri C. L. Subramaniam, Preventive Officer, Custom House Cochin. I understand from a companymunication from the Senior Super- intendent of Post Offices, Trichur addressed to the Assistant Collector of Customs Apprg. , Custom House, Cochin with companyy endorsed to Shri Abraham Kurian, that your companymunication informing that the enquiry was to have been held from 5-12-1963 was received by the Senior Superintendent of Post Offices only on 5th December, 1963, and therefore the relief arrangement companyld number be made by him. Now that the enquiry is adjourned it is requested that you may be good enough to inform the Senior Superintendent of Post Offices, Trichur Superior Officer of the Government who assists me sufficiently early as to the date of the enquiry, so that he may relieve the Government servant in time. It is humbly pointed out that unless your goodself take necessary action in time in this regard it may number be possible to get me the assistance I have requested for. Yours faithfully, Sd - 9-12-63 L. Subramaniam Even after getting this letter, the Enquiry Officer did number fix the date of the enquiry. It appears that on December 30, 1963 the Enquiry Officer fixed January 8, 1964 as the date of enquiry. It is only thereafter he wrote to the Superintendent of Post Offices requesting him to permit Abraham Kurian to assist the appellant. It is number known when that letter was received by the Superintendent of Post Offices but Abraham Kurian did number get the permission sought, before the date of enquiry. Therefore he was unable to assist the appellant in the enquiry. Hence the enquiry went on without the appellant having anybodys assistance. From the facts set out above, it is clear that the Enquiry Officer did number afford the appellant necessary facility to have the assistance of another Government servant in defending him which assistance he was entitled to under the rule. He was deprived of that assistance solely because of the indifferent attitude adopted by the Enquiry Officer. Therefore we have numberhesitation in companying to the companyclusion that the Enquiry Officer had clearly breached rule 15 5 . It is needless to say that rule 15 is a mandatory rule. That rule regulates the guarantee given to Government servants under Art. 311. Government servants by and large have numberlegal training. At any rate, it is numberodys case that the appellant had legal training. Moreover when a man is charged with the breach of a rule entailing serious companysequences, he is number likely to be in a position to present his case as best as it should be. The accusation against the appellant threatened his very livelihood. Any adverse verdict against him was bound to be disastrous to him, as it has proved to be. In such a situation he cannot be expected to act calmly and with deliberation. That is why rule 15 5 has provided for representation of a Government servant charged with dereliction of duty or with companytravention of the rule by another government servant or in appropriate, cases by a legal practitioner. For the reasons mentioned above, we think that there had been a companytravention of rule 15 5 . We are also of the opinion that the appellant had number been afforded a reasonable opportunity to defend himself. Hence the impugned order is liable to be struck down and it is hereby struck down. The facts of this case are number such as to justify any fresh enquiry against the appellant. Hence we direct that numberfresh enquiry shall be held against the appellant and he be restored to the position to which he would have been entitled to but for the impugned order. The appeal is accordingly allowed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 1067 of 1971. Appeal by special leave from the judgment and order dated October 30, 1970 of the-Delhi High Court in F.A.0. O.S. No. 40 of 1970. A. Palkhivala, D. Mukherjee, R. H. Dhebar and A. J. Rane, for the appellants. M. Tarkunde, G. L. Sanghi, B. R. Agarwala and Janendra Lal, for respondent No. 1. K. Sen, G. L. Sanghi and B. R. Agarwala, for respondent No. 2. The Judgment of the Court was delivered by Jagammohan Reddy, J. This appeal is by special leave. The question for companysideration is whether there is a binding, valid and companycluded companytract between the appellants and the respondents. On an application filed by the respondents under section 20 of the Arbitration Act a single Judge of the Delhi High Court directed the appellants to file the arbitration agreement to refer the disputes between the parties arising under the companytract to arbitrators. An appeal against that order to a Division Bench was dismissed. In order to understand the scope of the companytroversy, a few facts may be stated. On the 21st March 1968, a numberice of Global Tender No. 1 of 1968 was issued by the President of India, therein referred to as the Government of India, Ministry of Railways Railway Board proposing to sell 80,000 tones of surplus released serviceable and scrap rails, as per details given in the schedule thereto, to established buyers abroad or their accredited agents. It invited offers in respect thereof to be addressed to the President of India and sent to Shri R. No. Mubayi, Director, Railway Stores, Railway Board. With this numberice were enclosed the general companyditions of tender, special companyditions of tender, instructions to tenderers, including proforma for performance guarantee and deed bonds as in clauses 4A and 4B, shipping terms and schedule of stocks available as on 1st March 1968. In the general companyditions the seller was defined to mean the President of India acting through the Director, Railway Stores, Railway Board, unless the companytext otherwise provided. The delivery F.O.B. Free an Board /F.A.S. Free Alongside Ship invoices and freight were dealt with in clause 9. The default clause in clause 11 provided that where a buyer fails to execute the companytract the seller was to have power under the hand of the Director, Railway Stores, Railway Board, to declare the companytract at an end at the risk and companyt of the buyer. The special companyditions of tender dealt with prices, quotations, payments, terms of shipment, weighment, basis of sales and handling at ports, force majeure, arbitration, legal jurisdiction, acceptance of offers and title and risk. In the instructions to tenderers, the tenderers were requested to quote their highest offer indicating the price per metric tonne inclusive of export incentive of 5 of F.O.B. value currently applicable as guarantee by the Government of India which will always be to, the sellers benefit for handing over of the rails F.O.B. docks F.A.S. F.O.B. Indian Port or I.F. destination port. The tenderer was required to offer companyments clause by clause on the general companyditions of tender and the special companyditions of tender either companyfirming acceptance of the clauses or indicating deviation therefrom, if any. It was further provided that the companytract will companye into force from the date the buyers letter of credit is accepted by- the sellers numberinee. In 4A of these instructions the proforma deed bond was given which was to be signed by the tenderer and the acceptance was to be signed for and on behalf of the President of India by the person designated for that purpose. Similarly, para 4B. gave the proforma performance guarantee bond to be addressed to the President of India executed by the tenderer and accepted for and on behalf of the President of India by the ,person so designated. The terms and companyditions also set out the shipping terms in detail, though a few of them were also mentioned in the special companyditions under the headings Shipment, Terms of Shipping and Receiving Notice. It appears that the terms and companyditions enclosed with the tender numberice annexed to the petition filed in companyrt were number full and companyplete. Consequently the appellant has annexed a true companyy of the enclosures with the special leave petition and prayed that this may be admitted in evidence. As there was numberdispute in respect of the companytents thereof, we have allowed this prayer because without them it is number possible to arrive at a just companyclusion. Pursuant to this tender numberice, the respondents, by their letter, Ex. B, dated 21-5-1968, offered to buy 80,000 tonnes of rails at 45.1 per tonne F.O.B. Indian Ports on the term and companyditions set out therein. In reply thereto, by a letter dated 25-5-1968, the Dy. Director, Railway Stores, Railway Board, P.C. Oak in para 1 6 categorically. stated by reference to para 14 of the companyditions of the letter of the respondents that as shipping terms have finan- cial implications they were requested to indicate with reference to the tender which particular clauses they desire to re-negotiate and settle. In para 2 it was stated that the offer of the respondents was number addressed to the President of India as required under clause 1 3 of the Instructions to the Tenderers and, therefore, the Respondents were required to companyfirm that their offer was deemed to nave been addressed to the President of India and is open for acceptance on behalf of the President, it was further stated in para 4 that they should send the reply addressed to the President of India through the Director of Railway Stores, Railway Board companyering all the points indicated therein, to reach them number later than 28-5-1968. No reply was, however, received by the time indicated in the letter of the appellants and while so stating another letter was addressed to the Respondents on 3-6-68 by C. Parasuraman for Secretary, Railway Board, seeking further clarification in respect of items Nos. 26 and 27 of the offer companytained in the aforesaid letter of the Respondents dated 21-5-1968. There were also two other clarifications in respect of the weight of the tonne for which 45.1 was quoted and the option to transfer the companytract in the name of the foreign principles which it was stated, companyld number be agreed to straightaway unless and until they knew the names of the foreign principles and their willingness to enter into a legal binding guarantee of all the terms and companyditions of the companytract. The Respondents wrote subsequently to the Director, Railway Stores on the 15th June, 29th June, 8th July and the three letters on 10th July and one on the 15th July 1968, some of which were written after a discussion with the Director of Railway Stores in the presence of the Director of Finance, Mr. Datta. On the same day as the letter of 15th July was sent by the Respondents, P. C. Oak signing for the Secretary of the Railway Board, addressed the following letter of acceptance, No. 68/RS G /709/10 to the Respondents Subject-Tender No. 1 of 1968 for Export sale of used re-rollable and repayable steel rails. Reference-Your letter Nos. Nil dated 21-5- 68, 15-6-68, 29-6-68, 8-7-68, 10-7-68 and 15-7-68. Kindly be advised that your offer at 39 per long ton F.O.B. Indian Port for export and Rs. 458/- per long ton for indigenous companysumption with terms and companyditions referred to in your above letters is hereby accepted. Formal companytract will be issued shortly. Kindly acknowledge receipt. Yours faithfully, Sd. - P. C. Oak. for Secretary, Railway Board. Thereafter, it is alleged that several draft agreements were. exchanged regarding which there is a dispute but ultimately be, fore us it is number companytested that a draft agreement, which the appellants say is the 5th draft, but according to the Respondents is the final draft, was handed-over to the Respondents by P. C. Oak on 27-8-68 but this, however, was number signed. Clause 2 of this draft agreement states. that the companytract has been companycluded by the issue of sellers letter No. 68/RS G /709/10 dated 15-7-68 to the buyers that the term of the companytract shall be three years from 1-11-1968 to 31-10-1971 that the buyers reserve the right to act upon the companytract any time before 1-1 1-68 and start inspection and take delivery of the goods but this will number in any manner effect the terms of the companytract. Even thereafter there was further companyrespondence between the parties. By letter dated 18-9-68 the Respondents wrote to the Director, Railway Stores, agreeing to several other matters to be included in the final draft and requested him to issue the final. companytract without delay. On the 21st September 1968 the Respondents again wrote to the Director, Railway Stores, companyplaining that the information provided by the various Railways was number companyplete and requested him to companytact the various Railways and obtain the required information as soon a-, possible. After the receipt of this letter the Joint Director, Railway Stores G , wrote to the general Manager S , All Indian Railways with a companyy to the respondents calling for the required information. In that letter the Joint Director stated thus - the Board have finalized an export-cum- internal sale companytract with M s. N. K. p Ltd., New Delhi for a period of 3 years, entitling them to export stock of such surplus rails available with the Railways. The de- tailed terms and companyditions of the companytract will be apprised to you when finalized. On the 23rd October 1968, C. Parasuraman, for Secretary., Railway Board, replied to the letter of the Respondents of the 21st September 1968, stating that it was number companyrect that their officehas assured them that it would arrange to get the missing details from the companycerned C.O.Ss. After this letter two other letters were written by the Respondents to the Director, Railway Stores, dated 7th and 23rd November 1968. In the first letter it was stated thus In pursuance of your invitation we submitted our tender for purchase of used relayable and re-rollable steel rails on 21-5-68. After some negotiations the terms of the companytract were finalized and the Secretary, Railway Board by his letter No. 68/RS G 70910 dated 15-7-68,. accepted our offer and companycluded the companytract. We were informed that the formal companytract will be issued shortly. A draft of the formal companytract was handed over to us on 27-8-68. In our letter of 18-9-68, some agreed terms were set out which had to be incorporated in the formal companytract. Since the acceptance of our- offer we have made all arrangement for the sale of the material- We beg to inform you that out of the total quantity of 88,936 tonnes of Rails already offered to us for our approval we approve and shall take delivery of 53,807 Tonnes as per list enclosed herewith. The above quantity may kindly be reserved for us and arrangement be made for their delivery in terms of the companytract. . . . In the second letter, the respondents companyplained that though the companytract for sale of used rerollable and relayable steel rails was companycluded on 15-7-68 they regretted that they had number received the formal companytract so far and requested that it should be sent without any further delay. In the last paragraph of that letter, the Respondents companyplained that they came to know that some of the Railways who were. holding storks are selling the steel rails which they have numberright to do and requested them to stop such sales. To this, P. C. Oak for Secretary, Railway Board, replied Kindly refer to companyrespondence resting with your letters dated July 26, 1968, 18th September 1968 and No. RB Rails/68/1/114, dated 2nd December 1968. Your companytention companytained in your letter No. RB Rails 68/1 dated 23-11-68 that the Railway Board is number authorized to sell rails to other parties because of their having companycluded a companytract with you is factually incorrect. No doubt, letter No. 68/RS G /709/10 dated 15-7-68 indicated an intention to enter into a company- tract with you, but subsequent to this, discussions had been held with you over a number of sittings on 20-7-68, 12-8-68, 26-8- 68, 27-8-67 culminating in your letter dated 18-9-68. This would amply indicate that numberagreement had been reached on vital terms and companyditions, and the question of the existence of a companycluded companytract does number arise. . . . The Respondents replied to this letter by their letter dated 25-1-1969 expressing surprise and companytesting the stand taken by the Railway Board. In the petition of the Respondents filed in Court after setting out the relevant companyrespondence leading upto the letter of acceptance of P. C. Oak dated 15th July 1968, it was stated that that letter was a definite acceptance of the offer and companystitutes a binding and valid companytract between the parties. With respect to the draft agreement of the 27th August 1968 handed over to the Respondents embodying the agreement between the parties, the averment was that the then Acting Director of Railway Stores desired certain additional terms to be embodied in the terms that were agreed to. The additional terms were agreed to by the plaintiffs Respondents by their letter to the Director, Railway Stores, dated 18-9-1968. In para 16 it was further alleged that after the letter of acceptance by the appellants the then Acting Director of Railway Stores and the Director of Finance proposed to the plaintiffs that the price offered by them should be increased or in the alternative certain alterations be made in the agreed terms, but the plaintiffs having justly refused to do so, the 2nd defendant C. Parasuraman falsely wrote to the plaintiffs on 15-1-1969 that numberconcluded companytract had taken place and that the Railway Board was, therefore, number precluded from selling rails to other parties. The appellants in their written statement, raised a prelimi- nary objection, namely, that the petition was misconceived as there was numberarbitration agreement between the parties and so the question of enforcing the arbitration clause in the alleged companytract did number arise. It also reiterated its stand earlier taken that the letter dated 15-7-68 written by Oak on behalf of the Secretary, Railway Board, was number a letter of acceptance of the offer of the Respondents so as to amount to a companycluded companytract binding on the Union of India number companyld it be companystrued as such in view of the mandatory provisions of Article 299 of the Constitution of India. The companytention was that unless and until a formal instrument of companytract was executed in the manner required by Article 299 of the Constitution and by the relevant numberifications, there would number be a companytract binding on the Union of India and at any rate numbersuch agreement was entered into as it was. alleged that though interviews had taken place at various times between the plaintiffs and the several officers of the Railway Board, numberagreement had been reached on vital terms and companyditions. Two submissions were urged on behalf of the appellants, namely 1 that apart from the companytention relating to Art. 299 of the Constitution, there was numberconcluded companytract between the parties, because a the essential terms were number agreed to between them on the date when the acceptance letter was issued by P. C. Oak on 15-7-68, and b even it there was an acceptance as alleged, that acceptance was companyditional upon a formal companytract being executed by the appellants 2 that the three mandatory requirements of Art. 299 of the Constitution for a valid and binding companytract made in exercise of the executive power of the Union have number been companyplied with namely, a that the companytract was number expressed to be in the name of the President, number b was it executed on behalf of the President, or c by a person authorized to execute it on his behalf. The crucial question which arises for determination is whether there was a companycluded companytract, and if there was one, whether the mandatory requirements of Article 299 of the Constitution for entering into a valid and binding companytract have been satisfied? It is number settled by this Court that though the words expressed and executed in Article 299 1 might suggest that it should be by a deed or by a formal written companytract, a binding companytract by tender and acceptance can also companye into existence if the accept- ance is by a person duly authorized on this behalf by the President of India. A companytract whether by a formal deed or otherwise by persons number authorized by the President cannot be binding and is absolutely void. We do number for the present companysider it necessary to go into the question whether and to what extent the requirements of Art. 299 have been companyplied with in this case. What we have to first ascertain is whether apart from the companytention relating to Article 299, a companycluded companytract has companye into existence as alleged by the Respondents. Before us detailed arguments were addressed on behalf of the appellants-to show that numberwithstanding the letter of acceptance of 15th July 1968, numberconcluded companytract had in fact companye into existence and though that letter accepted certain terms, there were other essential terms of the companytract which had to be agreed to and were the subject matter of further negotiations between the parties that it was the intention of the parties that all those terms were to be embodied in a formal companytract to be executed which companytract alone was to be binding between the parties and that in any case the letter of acceptance and the subsequent letters were number by the Director of Railway Stores but by the Secretary to the Railway Board who was number a person authorized to enter into the agreement between the President of India represented by the Ministry of Railways and the Respondents. On the other hand, the stand taken by the Respondents was that all the essential terms of the companytract were agreed to and the companytract was companycluded on 15th July 1968, though at the ins- tance of the Director, Railway Stores further terms with respect to the execution of the companytract were the subject- matter of negotiations between the parties and in any case these did number pertain to the essential terms and companyld number on that account detract from the binding nature of a companycluded companytract. It was also companytended that the letter of acceptance by P. C. Oak though signed on behalf of the Secretary, Railway Board was in fact on behalf of the said Board which was authorized to enter into such a companytract. It is in our view unnecessary to companysider the several companytentions as to whether all the essential terms of the companytract had been agreed to or that the companytract was companycluded by the acceptance letter of 15th July 1968 or whether the parties intended it to be a term of the companytract that a formal companytract should be entered into between them in order to bind the parties. In this case, we are of the view that the Secretary to the Railway Board, on whose behalf the offer of the Respondents was accepted, was number the person authorized to enter into a companytract on behalf of the President of India. As can be seen from the various documents already extracted that the tender numberice invited offers to be addressed to the President of India through the Director of Railway Stores, Railway Board. Under the general companyditions the seller was defined to mean the President of India acting through the Director, Railway Stores and in the default clause it was provided that where the buyer fails to execute the companytract, the seller shall have power under the hand of the Director, Railway Stores, Railway Board, to declare the companytract at an end. In the letter written by Oak on 25-5-68, as earlier numbericed, it was pointed out to the Respondents that their offer was number addressed to the President of India as required under clause 1 3 of the Instructions to the Tenderers and, therefore, the Respondents were required to companyfirm that their offer can be deemed to have been addressed to the President and is open for acceptance on behalf of the President and their reply should be addressed to the President of India, through the Director of Railway Stores, Railway Board. Even the draft companytract dated 27-8- 68 in terms of which the Respondents were insisting on a final companytract to be issued to them by the appellants was to be executed by the Respondents as buyers on ,the one part and the President of India acting through the Director, Railway Stores, Ministry of Railways Railway Board as the sellers, on the other. There is little doubt that the only person authorized to enter into the companytract on behalf of the President is the Director, Railway Stores. It is true that the numberification of the Ministry of Law issued in exercise of the powers under clause 1 of Article 299 of the Constitution shows that the President directed the authorities named therein to execute on his behalf the companytracts and assurances of property specified therein. But numberwithstanding this, the President is fully empowered to direct the execution of any specified companytract or class of companytracts on ad hoc basis by authorities other than those specified in the said numberification. This Court had in Seth Bikhraj Jaipuria v. Union of India, 1 earlier held that the authority to execute companytracts may be companyferred on a person number only by rules expressly framed and by formal numberifications issued in this behalf but may also be specifically companyferred. In this case the letter of ac- ceptance dated 15-7-1968 was on behalf of the Secretary, Railway Board, who is number authorized to enter into a companytract on behalf of the President. 1 1962 2 S.C.R. 880. It is companytended that clause 43 of part XVIII and Part XII empower the Secretary, Railway Board to enter into such company- tracts. Clause 43 of Part XVIII provides that all deeds and instruments other than those specified in that part may be executed by the Secretary or the Joint Secretary or the Deputy- Secretary or the Under, Secretary in the Railway Board or a Director, Joint Director, Deputy Director or Assistant Director in the Railway Board. It is submitted that as numberhing has been specified in Part XVIII relating to the companytract of the type we are companysidering, the Secretary, Railway Board is authorized to enter into a companytract on behalf of the President. This submission is untenable because clause 9 specifically provides for the companytracts companynected with the sale of scrap, ashes, companyl, dust, empty companytainers and stores. The tender, it will be observed, is for rails which are scrap as well as rerollable and relayable but it is urged that relayable rails are number stores number can they be companysidered as scrap and as these are number companyered by clause 9, the Secretary, Railway Board is fully empowered by the President to enter into a companytract on his behalf. We cannot accept this argument because in our view relayable rails are part of the stores. It may be that some of these rails which are part of the stores may be companysidered to be in a companydition which the authorities companycerned think should be disposed of. The companytracts relating to the goods of the nature specified in the tender numberice are, therefore, dealt with by clause 9, as such clause 43 will have numberapplication. Part XLI empowers the Secretaries to the Central Government in the appropriate Ministries or Departments to execute any companytract or assurances of property relating to any matter whatsoever and is in these terms - Notwithstanding anything hereinbefore companytained any companytract or assurance of property relating to any matter whatsoever may be executed by the Secretary or the Special Secretary or the Additional Secretary or a Joint Secretary or a Director or where there is numberAdditional Secretary or a Joint Secretary or a Director, a Deputy Secretary to the Central Government in the appropriate Ministry or Department and in the case of. . The companytention on behalf of the Respondents is that since Railway Board is a Department of the Government, the Secretary to the Department is authorized to enter into a companytract under the above provision. This submission in our view, is equally misconceived because reading the above requirement carefully it will appear that the persons there mentioned should be Secretary. Special Secretary etc., to the Central Government in the appropriate Ministry or Department and number that the Secretary to any Department or office of the Government of India is empowered thereunder. It is however companytended that the Secretary to the Railway Board is a Joint Secretary to the Government of India and as such under the above Provision the acceptance letter should be companysidered to have been executed on behalf of the president Even this submission lacks validity because as pointed out on behalf of the appellant, at the relevant time the Secretary to the Railway Board did number have any status as Secretary to the Central Government. The status of a Joint Secretary was only companyferred on him by a numberification by the Government of India in the Ministry of Railways for the first time on 15-9-1969 with effect from that date. An affidavit of the Deputy Secretary to the Railway Board Ministry of Railways has been filed before us setting out the above fact and enclosing the said numberification. Then again it was urged that the members of the Railway Board were Secretaries to the Central Government and hence the Board on whose behalf the Secretary companymunicated the acceptance companyld enter into a binding companytract. This submission also is without force because there is numbermaterial before us to companyclude that the Board was so authorized. In these circumstances, even if the companyrespondence shows that the formalities necessary for a companycluded companytract have been satisfied and the parties were ad item by the time the letter of acceptance of the 15th July 1968 was written, about which we do number wish to express any opinion, there is numbervalid or binding companytact because the letter of acceptance, on the evidence before us, is number by a person authorized to execute the companytracts for and on behalf of the President of India. On the evening before the day the judgment in the case was due to be delivered, an application dated 7-2-72 was filed enclosing an affidavit of R. N. Mubayi who was Director, Railway Stores, between 18-12-1965 to 30-9-1969 as also an affidavit of R. B. Lal, Managing Director of the Respondent No. 1 to take them in evidence and companysider the facts stated therein before judgment is delivered, and if necessary, to call for the file and give a re-hearing. The affidavit of Mubayi states that only after he recorded on the relevant file and issued instructions to his Deputy Director, Shri P. Oak to companyvey the acceptance of the offer of M s. N. K. Private Limited, that the acceptance was companyveyed by Shri P. Oak to the said companypany. The affidavit of R. B. Lal says that though the affidavit filed by P. Lal, Deputy Secretary, Railway Board stating that the Secretary, Railway Board, did number have the status of Secretary, Special Secretary, Additional Secretary, Joint Secretary or Deputy Secretary to the Government of India in the Ministry of Railway, he has number denied that the Secretary did number have the status of a Director. It is further submitted in that affidavit that the Secretary of the Board had the status of a Director at the relevant time and as mentioned in Part XLI of the Notification of the Ministry of Law, a Director is authorized to accept offers. Apart from the question whether we should admit additional evidence at this stage in this case and though we had rejected an earlier submission to call for the files, having regard to the facts stated by R. N. Mubayi, Director of Railway Stores during the relevant period that it was he who had asked P.C. Oak to accept the offer and had so endorsed it on the file, as also the affidavit of R. B. Lal that the Secretary to the Board was the Director of Railway Stores, we withheld the judgment and called for the file to satisfy ourselves. The file has been submitted to us by the appellants along with an affidavit of R. Srinivasan, Joint Director, Railway Board in which it is categorically averred that at the relevant time, namely, 15-7-68, the Secretary Railway Board did number have the status of the Director under Para XLI of the Notification of the Ministry of Law or at all. A perusal of the relevant file relating to the letter of acceptance would show that on 15-7-68, Shri Oak made the following endorsement Reference to Boards orders at page 38/N, draft letter accepting M s. N.K. P Ltd., offer is being issued today. D.R.S. may kindly see before issue, and this endorsement was merely signed by R.N. Mubayi. We are number here referring to the other proceedings on the file as to whether the execution of a formal companytract was a companydition precedent and as one of the terms of the companytract but even the above endorsement does number show that the letter of acceptance of 15-7-68 was issued on the orders and directions of Mubayi as alleged by him in the affidavit. What it in fact shows is that it is the Board that issued the orders of acceptance and that the acceptance letter was only to be seen by him. Even the draft letter issued does number companytain his initials or his signature in token of his having seen or approved it. The letter of acceptance number having been issued on the orders of the Director, Railway Stores, there was numberconcluded companytract as on that date, by a person authorized to enter into a companytract. There is also numberhing to show that the Secretary to the Board was the Director, Railway Board as further alleged in the affidavit of R. B. Lal. In this view the appeal is allowed and the application under section 20 of the Arbitration Act is dismissed but there will be numberorder as to companyts of the appellants.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 909 of 1971. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated May 21, 1971 of the Patna High Court in Election Petition No. 2 of 1970. Frank Anthony, A. T. M. Sampath and E. C. A Agrawala, for. the appellant. M. Singhvi, Basudeva Prasad, Ravinder Narain and P. C. Bhartari, for the respondent. The judgment of the Court was delivered by Grover, J. This is an appeal from a judgment of the Patna High Court holding that the numberination papers of the respondent Smt. Jahan Ara Jaipal Singh had been illegally rejected by the Returning Officer. For that reason the election of the returned candidate Shri N. E. Horo from the 51 Khunti Parliamentary Scheduled Tribe Constituency in the State of Bihar was set aside. On May 1, 1970 the Election Commission of India issued a numberification calling upon the above-named Parliamentary Constituency to elect a Member to the Lok Sabha in the vacancy caused by the death of late Shri Jaipal Singh. The last date for filing the numberination papers was May 8, 1970. The date for scrutiny was May 9, 1970. Several persons filed numberination papers including Theodore Bodra and others. Two numberination, papers were filed on behalf of the respondent who was a Congress Ruling candidate for the aforesaid by-election. According to the respondent she was the widow of late Shri Jaipal Singh and was a member of the Munda Scheduled Tribe in the State of, Bihar. She filed certain certificates to that effect. Bodra filed an objection petition to the numberination papers of the respondent. The Returning Officer, after hearing arguments, passed an order rejecting the numberination papers of the respondent. The numberination papers of all the other candidates were accepted. After the polling took place, the result of the election was announced on June 3, 1970 and the appellant Shri Horo was declared elected to the Lok Sabha. On July 8, 1970 the respondent filed an, election petition. In the election petition it was stated inter alia that the petitioner who is number respondent before us was the widow of Late Shri Jaipal Singh and belonged to the Munda Scheduled Tribe although she was a Christian by religion. It was averred in paragraph 3 of the petition that according to the Munda Customary Law when a Munda male married outside the Munda Tribe if his marriage is accepted by the Tribe he companytinues to be a member of that Tribe and his wife also acquires its membership. It was pleaded that the wife being a member of her husbands family had the right of succession to her husbands property as well. In para 4 of the petition it was stated that the petitioner was a Tamil by birth. She married late Shri Jaipal Singh in the year 1954 according to the rights and rituals of Mundas in the presence of Parha Raja, Parha Munda, Parha Pahan, relatives of the deceased and the members of the Tribe at Morabadi a Mohalla of Ranchi. In paragraph 5 the ceremonies which were performed according to Munda custom were mentioned. These ceremonies inter alia were the washing of the wifes feet by the elder sister of the husband and the holding of the feast of the male goat meat and drinks of Handia etc. A new name was given by her mother-in-law to the petitioner, that name being Lankashri. All these functions were witnessed by Parha Raja, Parha Munda, Parha Pahan and other members of the Tribe. In paragraph 6 more details were given of the various other ceremonies also which were performed in companynection with the marriage. After referring to the relevant provisions of the Representation of People Act 1951, hereinafter called the Act, it was stated that the Returning Officer had illegally allowed irrelevant personal aspersions to be .cast against the petitioner by her opponents. It was alleged that the Returning Officer had been influenced by Bodra who was the Chairman of the Bihar Legislative Council. The decision of the Returning Officer that the status of a Munda companyld be acquired only by birth and number by marriage and that the petitioner did number belong to the Munda Scheduled Tribe was challenged principally on the ground that the Returning Officer had number companysidered the custom by which if a Munda male marries a women number belonging to Munda Tribe and that is accepted by the Tribe the wife acquires the membership thereof. In his written statement the returned candidate Shri Horo maintained that even though the election petitioner might be iving as wife of late Shri Jaipal Singh she was never married in accordance with the custom of the Munda Tribe prevalent in Chhota Nagpur. It was denied that she was ever accepted as a member of the Munda companymunity as numbersuch custom is prevalent in that companymunity. It was denied that the ceremonies and rituals mentioned in the election petition had been performed in respect of the marriage of the election petitioner with the late Shri Jaipal Singh. In paragraph 25 of the written statement it was asserted that a number-Munda merely by virtue of the marriage with a Munda companyld number ipso facto become a Munda. If a person was number born of a father belonging to a Scheduled Tribe he or she companyld number legally claim to be a member of the said Tribe. It was asserted that since the election petitioner was number the daughter of a member of the Munda Tribe she companyld number claim to be a member of that Scheduled Tribe. The allegations of mala fides made against the Returning Officer were described as baseless and extraneous. During the pendency of the election petition the Lok Sabha was dissolved on December 27, 1970. A petition was filed before the High Court on behalf of Shri Horo that the election petition should be dismissed as having become infructuous. The companyrt made an order on January 14, 1971 holding that the election petition companyld number be dismissed on that ground. On the pleadings of the parties seven issues were framed. Issues 1, 2 and 3 which are material need be mentioned. Is the election petition maintainable ? Whether the petitioner was the legally married wife of late Shri Jaipal Singh according to the custom of Munda Tribe prevalent in Chhota Nagpur ? Whether the petitioner companyld legally acquire the status of a Munda by virtue of her marriage to late Shri Jaipal Singh and whether she had been accepted as a member of the Munda Tribe by the said Tribe ? It may be mentioned that so far as issue No. 1 was companycerned the objection taken was that the election petition was defective on account of the number-joinder of necessary parties. When the election petition was filed only Shri Horo the returned candidate was impleaded but subsequently a petition was filed on behalf of the election petitioner making a prayer that the other companytesting candidates were also necessary parties and should be impleaded. The companyrt directed that they be added as parties. Shri Bodra who was one of the companytesting parties was companysequently impleaded as a party. Later on it was prayed on behalf of the petitioner that on a further companysideration it was found that the persons who had been subsequently added were number necessary parties and their names might be deleted. Bodras name was therefore deleted. The argument raised before the High Court was that Bodra being a necessary party to the petition under cl. b of s. 82 of the Act the petition became defective as soon as his name was struck off at the instance of the election petitioner. The High Court was of the view that although in paragraph 21 of the election petition an allegation had been made that Bodra had influenced the Returning Officer, numberevidence was led on that point and the case of the election petitioner was based solely on the ground that the numberination paper had been illegally and improperly rejected. No relief had been sought on the ground that undue influence had been exercised on the Returning Officer by Bodra. The High Court was also of the view that the allegation made in the election petition that Bodra had exercised his influence in getting the numberination paper of the election petitioner rejected did number fall within the ambit and scope of sub-s. 7 of s. 123 of the Act. The companytention that the petition was number maintainable was companysequently rejected. On the main issues, namely 2 and 3 it was expressly stated in the judgment that the factum of the marriage of the elec- tion petitioner with the late Shri Jaipal Singh had number been disputed. The real companytroversy between the parties in the High Court centered round the point whether the marriage was in such form that the wife acquired the membership of the Tribe. According to the arguments on behalf of Shri Horo as the election petitioner was number a Munda she companyld number belong to the Munda Tribe and that by marriage such a status companyld never be acquired. The High Court examined the evidence relating to the question whether the marriage of the election petitioner with late Shri jaipal Singh had been performed in accordance with the Munda custom and was in such form that she was accepted and treated as a member of the Munda Tribe. The companyrt also companysidered the various authoritative books and other works relating to the Mundas and came to the companyclusion that on a survey of the entire, evidence and the circumstances there was numberreason to discredit the evidence which had been led on behalf of the petitioner that she was married according to the Munda custom and that it was with the approval and sanction of the Tribe that she had been accepted as a member of the Munda tribe. The first companytention raised by Mr. Frank Anthony on behalf of the appellant relates to issue No. 1. It has been maintained by him that Bodra was a necessary party. Apart from the fact that he was the only person who had filed a written objection to the numberination of the respondent the election petition filed by the respondent companytained serious allegations of companyrupt practice against Bodra. As he had been given up as a party although impleaded at one stage the petition became defective and was number maintainable. According to clause b of s. 82 of the Act the petitioner must join as a respondent any candidate against whom allegations of any companyrupt practices are made in the petition. Section 86 1 provides that the High Court shall dismiss any election petition which does number companyply inter alia with the provisions of s. 81. There can be little doubt that if the allegations made in the election petition against Bodra amounted to the companymission of a companyrupt practice by him it was obligatory on the part of the election petitioner to join him as a respondent to the petition. It is equally clear that in that event the petition would have become liable to dismissal. For finding out what a companyrupt practice is we have to turn to s. 123 of the Act. According to Mr. Anthony the allegations made against Bodra fell within sub-s. 7 of s. 123 which is in the following terms S. 123 The following shall be deemed to be companyrupt, practices for the purposes of this Act-- .lm15 The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the companysent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidates election, from any person in the service of the Government and belonging to any of the following classes, namely - a gazetted officers b stipendary judges and magistrates c members of the armed forces of the Union d members of the police forces e excise officers f revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmykhs or by any other name, whose duty is to companylect land revenue and who are remunerated by a share of, or companymission on, the amount of land revenue companylected by them but who do number discharge any police functions and g such other class of persons in the service of the Government as may be prescribed. Explanation 1 In this section the expression agent includes an election agent, a polling agent and any person who is held to have acted as an agent in companynection with the election with the companysent of the candidate. For the purposes of clause 7 a person shall be deemed to assist in the furtherance of the prospects of a candidatess election if he acts as an election agent of that candidate. The allegations against Bodra are companytained in para 21 of the election petition which may be set out That the Returning Officer, while hearing the objections illegally allowed irrelevant personal aspersions to be cast against the petitioner by her opponents and the aforesaid Shree Theodore Bodra even after protests made by and on behalf of the petitioner, Shrimati Jahanara Jaipal Singh, against the same. plain reading of the above paragraph shows that numbersuch alletion was made that Bodra had influenced the Returning Officer I-L887 Sup CI/72 for the purpose mentioned in S. 123 7 of the Act. The essential ingredient of that provision is to obtain, procure etc. by a candidate of any assistance other than the giving of a vote for the furtherance of the prospects of that candidates election from any person in service of the Government and belonging to the classes mentioned in the sub-section. There is absolutely numberallegation or suggestion in para 21 that the Returning Officer was influenced by Bodra for the purpose of rendering assistance for the furtherance of the prospects of the election of any candidate. All that has been stated in that paragraph is that while hearing the objection the Returning Officer allowed irrelevant personal aspersions to be cast against the election petitioner by her opponents and Bodra. It was further stated that on inquiry the election petitioner came to learn that the Returning Officer had been influenced by Bodra. This influence apparently can have reference only to the companyduct or act of the Returning Officer in allowing personal aspersions to be cast against the election petitioner. Even by stretching the language it is number possible to discover any of the ingredients which would companystitute a companyrupt practice under s. 123 7 of the Act. Faced with this situation Mr. Anthony sought to rely on sub- s. 2 of S. 123 the relevant part of which is as follows Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the companysent of the candidate or his election agent with the free exercise of any electoral right Provided that-- It is number possible to companyprehend how the allegation companytained in para 21 can be understood to amount to a suggestion of direct or indirect interference, or attempt to interfere on the part of the candidate etc. with the free exercise of any electoral right. We are accordingly satisfied that numberallegation of any companyrupt practice had been made in the election petition against Bodra and therefore he was number a necessary party within S. 82 of the Act. In this view of the matter it is number necessary to examine the criticism of Mr. Anthony of that part of the judgment of the High Court according to which one of the reasons given for deciding issue No. 1 in favour of the present respondent was that numberrelief had been sought on the ground that undue influence had been exercised on the Returning Officer by Bodra and that numberevidence was led on that point. On issues 2 and 3 Mr. Anthony has raised three main points The first was that the respondent who was a Christian by birth, was a divorcee and according to her own statement the decree nisi in the divorcee proceedings had been made absolute on May 6, 1954. According to her she got married to late Shri Jaipal Singh on May 7, 1954. This marriage was a nullity as under s. 57 of the Indian Divorce Act 1869 she companyld number enter into a second marriage until after the expiry of six months from the date the decree had been made absolute. Secondly the High Court had palpably erred in holding that the respondent had become a member of the Munda tribe by marrying Shri Jaipal Singh and set aside the order of the Returning Officer who had held that she was a Christian by birth and Munda tribe being an ethnic group its membership companyld number be acquired by marriage but companyld be acquired only by birth. Thirdly it has been strongly urged that the respondent failed to prove the custom that a number-Munda companyld be initiated into tribe as its full fledged member either by performance of certain rituals and ceremonies or by the acceptance as such by the tribe or its panchayat. As regards the first point it was never canvassed or argued before the High Court. No plea was taken by Shri Horo in the written statement that there companyld be numbervalid marriage between the respondent and late Shri Jaipal Singh owing to the provisions companytained in s. 57 of the Indian Divorce Act 1869 until after the lapse of. a period of six months from the date the decree of divorce was made absolute. None of the issues which was framed by the High Court involve the question number sought to be agitated based on the provisions of s. 57 of the Indian Divorce Act. It appears that advantage is sought to be taken from the statement of the respondent about the various dates when the decree absolute was granted and the date when the marriage took place between the respondent and the late Shri Jaipal Singh. In the absence of any pleadings or issues numbermaterial has been placed on the record to show that in view of the provisions of S. 57 of the aforesaid Act there companyld number be a valid marriage according to the Munda customary law. It must be remembered that the respondent companytracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and number as one Christian marrying another Christian. Nor was the matter pursued in cross-examination of the respondent and she was number asked as to how she companyld get over the bar of S. 57 in theway of remarriage before the expiry of the prescribed period.In these circumstances we do number companysider that such a pointcan be allowed to be agitated for the first time before this Court. On the second and the third points, a great deal of reliance has been placed on the following statement in the well known book of S. C. Roy Mundas and their companyntry, 1912 Edn. The Munda tribe is divided into a large number of exogamous groups called kilis. According to Munda tradition, all the members of the same Kili are descended from one companymon ancestor. But such a tradition may number be quite companyrect with regard to the original kilis. Though exogamous as regards the kilis, the Mundas are endogamous so far as other tribes are companycerned. Thus, there can number be numbervalid marriage, according to Munda custom, between a Munda and the member of any other kolarian tribe, such as the Santals, the Kharias the Asurs, or the Bir-hors. According to Roy the family came to be evolved from tribes and sub-tribes. Communal marriage was superseded by the individual marriage and Matriarchal Age was superseded by Patriarchal. Kinship came to be traced number as before, through a companymon female ancestor but through a male ancestor. D. N. Mazumdar in his work on the Ho tribe entitled Affairs of a Tribe, 1950 Edn. points out that the rule of endogamy has its base in superstitious belief. According to him villages which are closely allied by ties of marriage are those which share the same God and Spirits and the same Deonwa. The influence of Deonwas, in other words, the knowledge of the Bongas of an area, determines the limit of exogamy, for there is a risk in marrying in villages the Bongas of which are unknown pp. 237-238 . From the account given by S. C. Roy himself it appears that according to the Munda custom the rule of endogamy is number absolute for instance, in the case of Munda female married or unmarried found to have gone astray with a man of a different caste or tribe, it is said, that the latter is summoned before a Panchayat and a heavy fine is imposed on the lover and the fine, if realised, is paid as companypensation to the parents of the seduced maiden or the husband of the married female and the seducer is companypelled to take the girl or woman as a wife or a mistress and in case of refusal which is rare to submit to the orders of the Panchayat. The family of the seduced female remains outcaste until a purificatory ceremony is performed and thus restored to caste. The members of the family then companyk rice. and pulse and themselves distribute the food to the assembled relatives see pp. 544-545. The question that has to be enquired into is whether the strict rule of endogamy of the Munda tribe has been deviated from and whether custom has sanctioned such deviation. D. Mazumdar in his work Races and Cultures of India deals with tribal organisations in Chapter 17. According to him the definition that is found in the current literature on the subject is given in the Imperial Gazetteer which is, A tribe is a companylection of families bearing a companymon name, speaking a companymon dialect occupying or professing to occupy a companymon territory and is number usually endogamous though originally it might have been so. Endogamy is an essential feature of the tribe though intertribal marriages are breaking the limits of endogamy. It is further stated by him that the importance of the blood bond or the kinship group is forced to the background, the companymunal economy of the clan is superseded by individual desire for gain and property, money assumes an importance it seldom had before, and the ties of reciprocity and mutuality of obligation are reoriented to suit new companyditions. Tribal custom and practices which established social life lose their value and the choice of leader and of mate is guided by different companysiderations. The Munda tribe cannot be said to be immune from the above process of change in their social Organisation. Changes in their belief, customs, traditions and practices have taken place under the in- fluence of Hinduism, Christianity, and on account of the impact of western education, urbanisation, industrialisation and improved means of companymunication. The sense of individualism and lack of love for, the traditional companye of companyduct and social taboos ,ire stated to be apparent among the emerging urban-industrial oriented adivasi companymunities. N. Mazumdar has made an intensive study of the rule of endogamy among the Ho tribe which is an off-shoot of the Munda tribe. A reference to, the Ho practice may, therefore, help us in understanding the practice among the Mundas. According to D. N. Mazumdar A Ho does number marry outside the tribe as a rule but there is today numberlegal or social prohibition against his doing so. Though tribal companye has relaxed companysiderably those who work in the mining and industrial centers in and outside Kolhan companytract such alliances and when they companye back to their villages they are number outcasted by the society pp. 124125, Races and Cultures of India . At another place he records - The endogamy of the tribe is number sacred today, with the result that many marriages have taken place between the Hos and other tribes. Liaison between Diku men and Ho girls is increasing, and cases that have occurred in Chaibassa during the last ten years or so would fill a volume. Thus, there being numberlonger ,my deterrent to mating with strangers, social authority vested in the Killi punch has to exercise its prerogative to ensure a companypliance with social traditions. Killi exogamy has number led to an indiscriminate alliance between the different killis and as far as our knowledge goes, taboo on marriage outside a particular local area can be traced to a dread of unfamiliar Bongas, who were companyceived as hostile,. and therefore dangerous. p. 236 . P. Vidyarthi in his work mentioned before based on his study of the social life of the Oraon and Munda tribes living in the city of Ranchi points out that a good number of cases of marriage between tribals and number-tribals have occurred and that in his investigation he came across 53 cases of number-tribal males marrying tribal girls. He points out that greater percentage of love marriages and marriages by Kept have been socially disapproved while 83.3 and 100 of arranged and legal civil marriages have been approved. See pages 102-103 . We may how deal with the evidence produced by the parties on the above points. P.W. I who was working as District Wel- fare Officer in May 1970 at Ranchi and who belongs to the Munda tribe stated that if a Munda male married a number-Munda girl and such marriage was accepted by the society it would be a valid and proper marriage. The wife would, therefore, be accepted as a member of the tribe. He had himself married an Oraon girl and his wife though a number-Munda has been accepted as a member of the Munda tribe. He further deposed that if the Munda married a number-Munda a feast is given and if the elders of the society accept the marriage and participate in the feast that by itself would show that the tribal society has accepted the marriage and the wife has become a member of the tribe. P.W. 2 who is a nephew of the late Shri Jaipal Singh gave details of the ceremonies which were performed when the marriage between his uncle and the respondent took place. After the performance of those ceremonies the members of the tribe and the family declared that the respondent had been accepted as a member of the tribe. He himself is married to a number-Munda girl though he was married according to Munda marriage rights as well as according to Hindu law. P.W. 3 who was at the material time working as Assistant Director in Sociology, Bihar Tribal Welfare Institute, stated that he had been doing research on the subject of Bihar Tribal Marriage and Family Transformation with special reference to Family law. One of his major duties was to ascertain from the members of different tribes facts relating to the subject of his research. According to his evidence a Munda male can marry a number-Munda girl. After adopting a special procedure in some cases a number-Munda wife is accepted as a member of the tribe. A certain procedure or formality has to be gone through. The companyncil of elders of the tribal people has to be companysulted and the special reason for the marriage is to be stated. Then various rituals are gone through and the marriage is allowed by the elders. He gave instances where, a Munda male had married a number-Munda girl and their marriage had been accepted by the tribal people. One of these instances given by him related to persons belonging to the Santhals and Ho tribes. He maintained that the customs prevalent among these tribes were broad- ly the same as among the Mundas. In cross-examination he stated that he had met the members of the Munda elder companyncil and he had remained in touch with that companyncil since 1952. He had made special research of Jojo Hatu which was a Munda village. He claimed to have submitted a report to the government in which he had companylected hundreds of cases where a girl of a particular tribe had married outside her tribe. W. 4 was the Superintendent of the Anthropological Survey of India, Ministry of Education. As an Anthropologist he had to undertake full study in different parts of India mostly among the tribal companymunity. He had studied Munda tribal custom which assignment had been given to him in 1965-66. In companyrse of the research he found that a Munda companyld marry a number-Munda girl even before 1954. He gave three kinds of unusual marriages one of which was where a Munda male married a number-Munda female. The social companysequences of that marriage was called Jati Bora. That meant that the Munda male had companymitted an offence against the whole companymunity. Normally he would be ostracised along with his family but there was a process by which he and his wife companyld be admitted into the companymunity. This process was known Niyar which means to bring in or take in. The offending party invites the members of the Parha gives them a feast at which a white goat is sacrificed and the blood is smeared on the body of the boy and the girl along with Tarmolik and then they are allowed to sit along with the members of the companymunity in the same Pankti. After that they are formally companysidered as members of the companymunity. He was specifically asked a question with regard to the manner in which a Munda boy marrying a number-Munda girl would be accepted by the companymunity and his reply was that in his opinion the Parha was the ultimate authority in the matter of acceptance of a number-Munda girl in the companymunity. If a Parha accepted her that was final. in cross-examination he stated that if a marriage of the nature under discussion is number approved by Parha he did number think it would be accepted by the members of the society. It may be mentioned that the evidence of this witness has been subjected to a good deal criticism by Mr. Anthony for the reason that he was only expressing an opinion on the last matter and was number making a def inite statement of fact. P.W. 5, who was attached to the office of the Deputy Commissioner, Palamau, gave an ac- companynt of the ceremonies which were performed of the marriage between the respondent and late Shri Jaipal Singh. According to him the elders of the companymunity unanimously decided that since permission had been given by the elders they would be taken as members of the tribe. He denied the suggestion that it was on account of the influence of late Shri Jaipal Singh that Pahans had given sanction to the marriage. According to him there had been other cases also where such sanction had been given. W. 8 who claimed to be a Parha Raja of three Parhas, viz., Takara Parha, Sada Parha and Sagha Parha companyprising 36 vil- lages also gave evidence about the ceremonies which were performed at the marriage of late Shri Jaipal Singh with the respondent. After the performance of the ceremonies the Samaj of the Munda tribe accepted the marriage, according to him. He deposed to other instances where Munda had married number-Mundals. He had attended a marriage of a Munda who had married a Ho girl. Sanction was given by the elders to that marriage. It is unnecessary to refer to the evidence of W. 10 who is also a Pahan and who claimed to have been present at the time of the marriage in question. He made a statement which has been subjected to justifiable criticism by Mr. Anthony about the document Exht-3. His evidence, therefore, does number deserve companysideration. Out of the witnesses examined on behalf of the respondent mention may be made of the statement of Shri Horo himself who appeared as R.W. 6. After stating that the late Shri Jaipal Singh who was a leader of the Jharkhand Party and was an Adivasi and a Munda professing the Christian religion, he affirmed that the respondent did number have the right and status of a Munda on the basis of established custom. He admitted that there was a custom that a Munda who had been excommunicated from the tribe companyld be taken back but according to him that person must be a Munda and numbernon-Munda companyld be accepted as a member of the tribe. The Munda companyld of companyrse marry a number-Munda but in the manner in which the Munda usually married a Munda. The custom among the Mundas is changing and it is dynamic and number static. The other witnesses produced by Shri Horo are number impressive and do number afford much assistance in deciding the points under discussion. According to- the observations of the High Court Shri Horo did number examine any witness on his behalf who companyld say that he had made a special study and research of the marriage custom of the Munda tribe and that such a marriage was number acceptable in the present times in spite of all the changes which have taken place in the life and social structure of the companymunity owing to the impact of the various factors which have been mentioned in the authoritative studies of eminent Anthropologists mentioned before. Our attention ha,, been drawn by Mr. Anthony to certain decisions for the proposition that in a tribe which is endoganotus birth alone can companyfer the status of membership of the tribal companymunity. In V. V. Giri v. D. Suri Dora Others 1 one of the, questions raised, was whether respondent No. 1 in that case had ceased to be a member of the Schedule Tribe at the material time because be had become a Kshtriya. This companyrt observed that it 1 21 E. T. R. 188. was essential to bear in mind the broad and recognised features of the hierarchical social stricture prevalent amongst the Hindus. It was companysidered enough to state that whatever might have been the origin of the Hindu castes and tribes in ancient times, gradually status came to be based on birth alone. It was pointed out that a person who belonged by birth to a depressed caste or tribe would find it very difficult, if number impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status. We are unable to see how this case can be of any assistance in deciding the matter before us, namely, whether a number Munda can by marriage be recognised as a member of the Munda tribe in certain circumstances. The High Court, after discussing the evidence and referring to other authoritative books like Tribes and Castes of Bengal by H. H. Risley and Encyclopedia Mundarica by Rev. John Hoffman as also the statement in Encyclopedia Britannica, Vol. 15, and the Encylopaedia of Religion and Ethics by James Hastin ings, Vol. IX, apart from the work of J. Reid, I.C.S., on Chhota Nagpur Tenancy Act, observed that although originally very severe restrictions were imposed amongst the Mundas as far as marriage in their own Kili or seat was companycerned, the process of Munda assimilation to the larger Indian society facilitated by im- proved companymunications and the introduction of formal system of education was being accelerated under the independent Government of India. In Encyclopedia Britannica, Vol. 15 in the Chapter relating to Mundas it is also mentioned. The Munda speaking people, with the other Indian tribal groups, are being encouraged to adopt new customs and to become fully participating members of Indian society. page 991 . Similarly in the Encyclopedia of Religion and Ethics by James Hastings, Vol. IX, it has been stated as to how Munda customs are being changed with the impact of the influence of Christianity. Referring to the Chapter in Reids book it has been numbericed by the High Court that according to the Munda companyception a wife becomes a member of the Kili of her husband by legal fiction. The High Court further relied on the decision in Wilson Reads v. C. S. Booth 1 in which it was held that the question whether a person can be regarded as a member of the Khasi tribe was a question of fact depending upon the evidence produced in the case. It was said that the whole object of reserving a seat for a particular tribe was to afford the companymunity, is a whole, a right of representation and therefore the question of the membership of a particular individual of that companymunity companyld number be companysidered divorced from the very object of legislation. Thus the companyduct of the companymunity which had been given the right of special representation. the manner and how the A. T. R 558 Assam 128 companymunity regarded a particular individual and whether the companymunity as a whole intended to take the individual within its fold were all matters which would be relevant for companysideration of the question whether a particular person companyld be regarded as a member of the-Scheduled Tribe. The High Court was alive to the fact and this point of distinction has been greatly emphasised by Mr. Anthony-that in that case the appellant claimed to be a Khasi, his father being a European and his mother a member of the Khasi tribe. Even though the facts were different, the approach in such matters which companymended itself to the Assam High Court can hardly be regarded as unsound. It appears to us, on a full companysideration of the entire material. that the following matters stand established in the present case -- The Mundas are endogamous and inter- marriage with number-Mundas is numbermally prohibited. That a Munda male along with his family on marrying a number-Munda girl is often ex- companymunicated or outcasted. That the rule of endogamy is number so rigid that a Munda cannot marry a number-Munda after performing special ceremonies. That such marriages have been and are being sanctioned by the Parha Panchayat. That where a Munda male and his family are outcasted for marrying a number-Munda they are admitted to the tribe after certain special ceremonies are performed. Even in the account given by S.C. Roy as well as by P.W. 4 a Munda male is excommunicated for marrying a number-Munda girl but such excommunication is number automatic. It is left to the discretion of the panchayat. If the panchayat approved of a particular marriage with a number-Munda then numberquestion of excommunication arises. Thus several inroads appears to have been made on the rigid system of endogamy which might have existed at one time but over the companyrse of years several matters are left to be decided by the panchayat or elders of the tribe itself. There is numberevidence whatsoever that the late Shri Jaipal Singh was excommunicated or outcasted because he had married a number-Munda. On the companytrary there is abundant evidence that his marriage was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe. Reverting to the argument that a number-Munda women cannot become a member of the Munda tribe by marriage even if the marriage be valid because the Mundas are a patriarchical society and companystitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made, special research in the matter and even if we exclude the opinion of P.W. 4 who was Superintendent of Anthropological Survey of India that the Parha was the final authority in the matter of acceptance of an number-Munda girl in the companymunity but the rest of his evidence cannot be brushed aside. From all this evidence it is proved that once the marriage of a Munda male with a number- Munda female is approved or sanctioned by the Parha panchayat they become members of the companymunity. They companytention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception. We have already held that the rule of endogamy has number been proved to exist in the rigid or strict form canvassed by Mr. Anthony. That rule has number been strictly followed and the marriage of a Munda male with a number-Munda woman has been and is being approved and sanctioned by the Parha panchayat. If a number- Munda womans marriage with a Munda male is valid it is difficult to say that she will number become a member of the Munda tribe. The, companycept of a tribe is bound to undergo changes, when numerous social, economic, educational and other like factors in a progressive companyntry start having their impact. It is numbereworthy that a Hinduised Munda and a Munda companyverted to Christianity can inter-marry and companyversion to Christianity has number become an obstacle in the way of such marriage among the Mundas. Mr. Horo himself in all fairness affirmed that custom among the Mundas was number static but was dynamic and was changing. We do number find companyent or weighty reasons for disagreeing with the view of the High Court on the points under discussion. We may also refer to Article 330 of the Constitution accord- ing to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes. Under S. 33 2 of the Act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member. Article 342 1 empowers the President to specify the tribes or tribal companymunities or parts of or groups within tribes or tribal companymunities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be. In Parts 1 to 12 of the Schedule to the Constitution Scheduled Tribes Order 1952 are specified the tribes or tribal companymunities or parts of or groups within the tribes or tribal companymunities who are to be deemed to be Scheduled tribes. Munda is one of such specified tribes or tribal companymunities. It can well be said that the term tribal companymunity has a wider companynotation than the expression tribe. A person who, according to the strict custom of a tribe. cannot be regarded as a member of that tribe may well be regarded as a member of that tribal companymunity. Where a number- Munda woman is married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may number, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as number having been born in the tribe. She cannot, however, be excluded from the larger group, namely, the tribal companymunity. The High Court has taken the view that the use oil the term tribal companymunities in addition to the term tribes in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is number a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal companymunity to which her husband belongs on the anology of the wife taking the husbands domicile. Even without invoking the doctrine of domicile the respondents marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can be said that she became a me mber of the Munda tribal companymunity. We have number been shown any infirmity in the reasoning of the High Court on this point. When a person, in the companyrse of time, has been assimilated in the companymunity it is somewhat difficult to companyprehend how that person can be denied the rights and privileges which may be companyferred on that companymunity even though tribal by companystitutional provisions. In the result this appeal fails and it is dismissed but in view of the nature of the points involved we leave the parties to bear their own companyts in this Court.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1807 of 1971. Appeal by special leave from the judgment and order dated May 6, 1971 of the, Patna High Court in C.W.J.C. No. 41 of 197 1. M. Singhvi, S. C. Dingra and U. P. Singh, for the appellant. V. Gupte and B. P. Singh, for respondents Nos. 1 to 5. N. Prasad and D. N. Mishra, for respondent No. 6. The Judgment of the Court was delivered by Mathew, J. The appellant filed a writ petition before the High Court of Patnapraying for quashing an order passed by the Minister of Forest, Government of Bihar, on December 13, 1970, and for issue of a writ in the nature of mandamus directing the respondents 1 to 5 to give effect to the previous order of the Minister of Forest dated November 27, 1970. The writ petition was heard by a Division Bench of the Court and the petition was dismissed. This appeal, by special leave, is from that judgment. There is a bamboo companyp know as Bantha Bamboo companyp in Chatra North Division of Hazaribagh district. On July 22, 1970, the Forest Department of the Government of Bihar advertised for settlement of the right to exploit the COUP by Public auction The auction was held in the Office, of the Divisional Forest Officer on August 7, 1970. Five persons including the appellant participated in the auction. Though the reserve price fixed in the tender numberice was Rs. 95,000/-, the appellants bid of Rs. 92,001/-, being the highest, was accepted by the Divisional Forest Officer. The petitioner thereafter deposited the security amount of Rs. 23,800/- and executed an agreement. The Divisional Forest officer reported about the auction We servator of Forests, Hazaribagh Circle, by his letter dated August 25, 1970. As the price for which the companyp was provisionally, settled exceeded Rs. 50,0001-, the Conservator of Forests forwarded the papers regarding the auction sale to the Deputy Secretary to Government of Bihar, Forest Department, for companytion of the acceptance by the Government. Since the provisional settlement was made for an amount less than the reserve price, the matter was also referred to the Finance Department. The Finance Department invited companyments from the Divisional Forest Officer as to why the settlement was made for a lesser amount. The Divisional Forest Officer, by his letter dated October 30, 1 970. submitted his explanation for the provisional settlement at an amount below the reserve price. When the matter was pending before the Government, the appellant expressed his willingness to take the settlement at the-reserve price of Rs. 95,000 by his companymunication dated October 26, 1970. The appellant thereafter filed an application on November 3, 1970, praying for settlement of the companyp on the basis of the highest bid. The Minister of Forest, by his proceedings dated November 27, 1970, directed that the companyp may be settled with the highest bidder. namely the appellant, at the reserve. price. A telegram was sent by the Government to the Conservator of Forests, Hazaribagh Circle on November 28, 1970, with a companyy of the same to the Conservator of Forest, Bihar, companyfirming the auction sale to the appellant at the reserve price of Rs. 95,000/-. As numberintimation was received by the Divisional Forest Officer, he did number companymmunicate the proceedings of the Minister to the appellant. One Md. Yakub, Respondent No. 6, filed a petition on December 4. 1970, before the Government of Bihar, Respondent No. 1. offering to take the settlement of the companyp in question for Rs. 1,01,125/-. A telegram was sent by the Government on December 5, 1970, to the Divisional Forest Officer, directing him number to take any action on the basis of the telegram dated November 28, 1970, sent to him in pursuance of the proceedings of the Government dated November 27, 1970. That telegram was received by the Divisional Forest Officer on December 10, 1970. and the Divisional Forest Officer, by his letter dated December 10. 1970, informed the Government that the previous telegram dated November 28, 1970, was number received by him and so it companytent was number companymunicated to the appellant. The whole matter was there- after placed before the Minister of Forest and the Minister, by his proceedings dated December 13, 1970, cancelled the settlement of the companyp with appellant and settled the same with Respondent No. 6 for.Rs. 1,01,125/-. The Government thereafter sent telegrams on December 21, 1970, to the Conservator of Forests and the Divisional Forest Officer informing them that the companyp had been settled with Respondent No. 6. The Divisional Forest Officer. by his letter dated December- 23, 1970, directed Respondent No. 6 to deposit the security amount and to pay the first instalment. Respondent No. 6 deposited the same and executed an agreement. The companytention of the appellant in the writ petition was that there was a companycluded companytract when the bid of the appellant was accepted by the Divisional Forest Officer though that was subject to companyfirmation by the Government and that, when the Government companyfirmed the acceptance by its proceedings, dated November 27, 1970, it was numberlonger within the power of Government to make the settlement of the companyp upon the 6th Respondent by its proceedings dated December 13, 1970. It was also companytended in the alternative that the settlement of the companyp in favour of. the 6th Respondent was in violation of statutory rules and, therefore, in any event, that settlement was invalid. As already indicated, the High Court negatived these companyten- tions and upheld the validity of the settlement in favour of the 6th Respondent. The special companyditions in the tender numberice makes it clear that the Divisional Forest Officer has the right to, accept a bid of less than Rs. 5,0001-, that acceptance of a bid of more than Rs. 5,0001- by him is subject to companyfirmation by- the Chief Conservator of Forests and the Forest Department of the Bihar Goverment, that an auction sale for an amount of more than Rs. 5,0001- would number be recognised until it is companyfirmed by the companypetent authority, and that a bid made in auction and which has been provisionally accepted by the Divisional Forest Officer shall be binding on the bidder for two months from the date of auction or till the date of rejection by the companypetent authority, whichever is earlier. Counsel for the appellant companytended that there was a companydi- tional acceptance of the offer of the appellant by the Divisional Forest Officer, that on companyfirmation by the Government, that acceptance became unconditional and, therefore, there was a companycluded companytract when the Government companyfirmed the acceptance, even though the companyfirmation was number companymunicated to the appellant. In support of this, he relied on The Rajanagaram Village Cooperative Society v. Veerasami Mudaly 1 . There it was held that in the case of a companyditional acceptance in the presence of a bidder, the companydition being that it is subject to approval or companyfirmation by some other person, the acceptance, though companyditional, has to be companymunicated and when that is companymunicated, there is numberfurther need to companymunicate the approval or companyfirmation which is the fulfillment of the companydition. It was further held that a companyditional acceptance has the effect of binding the highest bidder to the companytract if there is subsequent approval or companyfirmation by the person indicated, that he cannot resile from the companytract or withdraw the offer, and if there is approval. or companyfirma- 1 1950 11 M.L.J.486. tion, the companytract becomes companycluded and enforceable. This decision was companysidered in Somasudaram Pillai v. provincial Government of Madras 1 where Chief Justice Leach, speaking for the Court said that, to have an enforceable companytract, there must be an offer and an unconditional acceptance and that a person who makes an offer has the right to withdraw it before acceptance, in the absence of a companydition to the companytrary supported by companysideration. He further said the fact that there has been a provisional or companyditional acceptance would number make any difference as a provisional or companyditional acceptance cannot in itself make a binding companytract. The question whether by an acceptance which is companyditional upon the occurrence of a future event a companytract will become companycluded was companysidered by Williston and this is what he says - A nice distinction may be taken here between 1 a so-called acceptance by which the acceptor agrees to become immediately bound on a companydition number named in the offer, and 2 an acceptance which adopts unequivocally the terms of the offer but states that it will number be effective until a certain companytingency happens or fails to happen. In the first case there is a companynteroffer and rejection of the original offer in the second case there is numbercounter-officer, since there is numberassent to enter into an immediate bargain. There is, so to speak, an acceptance in escrow, which is number to take effect until the future. In the meantime, of companyrse, neither party is bound and either may withdraw More over, if the time at which the acceptance was to become effectual is unreasonably remote, the offer may lapse before the acceptance becomes effective. But if neither party withdraws and the, delay is number unreasonable a companytract will arise when the companytingency happens or sti- pulated event occurs In this case, it is number the want of companymunication of the companyfirmation by the Government to the appellant that really stands in the way of there being a companycluded companytract, but rather the want of companyfirmation by the Government of the companyditional acceptance by the Divisional Forest Officer. The appellants bid was for Rs. 92,001/-. The, acceptance of the bid by the Divisional Forest Officer was, therefore, subject to companyfirmation by Goverment. The proceedings. of the Minister dated November 27, 1970, would show that he did number companyfirm the acceptance of the A.I.R. 1947,34 Madras, 366. Williston On Contracts, Vol. I, 3rd Ed. Section 77A, offer by the Divisional Forest Officer. What the Minister did was number to companyfirm the acceptance made by the Divisional Forest Officer, but to accept the offer made by the appellant in his companymunication dated October 26, 1970, that he would take the companyp for the reserved price of Rs. 95,000/-. There was, therefore, numberconfirmation of the acceptance of the bid to take the companyp in settlement for the amount of Rs. 92,001/-. If the offer that was accepted was the offer companytained in the companymunication of the appellant dated October 26, 1970, we do number think that there was any companymunication of the acceptance of that offer to the appel- lant. The telegram sent to the Conservator of Forest, Hazaribagh, by the Government on November 28, 1970, cannot be companysidered as a companymunication of the acceptance of that offer to the appellant. The acceptance of the offer was number even put in the companyrse of transmission to the appellant and so even assuming that an acceptance need number companye to the knowledge of the offeror the appellant cannot companytend that there was a companycluded companytract on the basis of his offer companytained in his companymunication dated October 26, 1970, as the acceptance of that offer was number put in the companyrse of transmission. Quite apart from that, the appellant himself revoked the offer made by him on October 26, 1970, by his letter dated November 3, 1970, in which he stated that the companyp may be settled upon him at the highest bid made by him in the auction. We are, therefore, of the opinion that there was numberconcluded companytract between the appellant and the Government. This takes us to the question whether the settlement in favour of the 6th Respondent was in violation of any statutory rule. The appellants companytention was that the settlement in favour of the 6th Respondent by a private treaty was in violation of the, rules of executive business made under Article 166 3 . Rule 10 of the Rules provides 10 1 No department shall, without previous companysultation with the Finance Department, authorise any orders other than orders pursuant to any general or special delegation made by the Finance Department which a either immediately or by their repercussion, will affect the finances of the State, or which, in particular, involve any grant of land or assignment of revenue or companycession, grant, lease or licence of mineral or forests, rights or a right to water power of any easement or privilege in respect of such companycession. 2 , Where on a proposal under this rule, prior companysultation with the Finance Department is required, but on which the Finance Department might number have agreed, numberfurther action shall be taken on any such proposal until the cabinet takes a decision to this effect. A companyy of the letter from the Deputy Secretary to the Government of the Accountant General, Bihar, dated November 22, 1967 would show that some relaxation of Rule 10 1 of the rules of executive business was made by the Finance Department relating, to lease of forest Coups or forest produce of the value of more than Rs. 50,0001-. That letter reads as under Subject Revision of procedure in issuing any order involving any grant of lease, sale or licence of minerals of forest rights if such order is issued by the Administrative Department at the, Secretariat level. Sir, I am directed to say that in relaxation of rule 10 of the Rules of Executive Business, Government have been pleased to decide that the Forest Department shall authorise orders sanctioning leases of Forest companyps or produce of the value of more than Rs. 50,0001- rupees fifty thousand each, subject to the following companyditions that - Reserve price of the companyp has been fixed before auction. Highest bid should be accepted. Highest bid should number be less than the reserve price. Any relaxation to the above companyditions may number ordinarily be allowed except with the prior companycurrence of the Finance Department. Before the High Court the companytentions of the 6th Respondent were, firstly, that the rule 10 1 is number a statutory rule and, secondly, that it did number companycern lease of forest land. The High Court, without deciding the question whether the rule is a statutory rule, held that the rule has numberhing to do with the lease of forest companyps and said that there was numberhing which prevented the Government from giving the companyp on lease by private treaty. The High Court, therefore, held that there was numberbar statutory or otherwise, to the settlement of the companyp in favour of Respondent No. 6 by private negotiation and as such the settlement in his favour was valid., Counsel for the appellant argued that the High Court went wrong in its companyclusion that rule 10 1 as relaxed, did number apply to the grant of the lease of the companyp in question and that it really prohibited a lease of forest land except by public auction., We are number satisfied that the companystruction companytended for is companyrect. Neither rule 10 1 number the rule as relaxed says that forest land can be leased only by public auction. Rule 10 1 in so far as it is relevant to the present case only says that numberdepartment shall, without prior companysultation with the Finance Department, authorise by any order, the lease or licence of mineral or forests. The relaxation made to rule 10 1 as evidenced by the letter from the Deputy Secretary to the Government is to the effect that in the case of lease of forest land of the value of more than Rs. 50,000/-, if made by public auction, it can only be made subject to the companyditions mentioned there. In other words, rule 10 1 as relaxed does number prohibit the grant of a lease by private treaty. The rule read in the companytext of its-relaxation as mentioned in the letter of the Deputy Secretary would only show that companysultation with the Finance Department is number necessary for a lease, if the lease is of of the value of more than Rs. 50,000/- and is granted in pursuance of a public auction held in companyformity with the companyditions mentioned in the letter of the Deputy Secretary. Now the question is whether the companyp in question was settled in favour of the, 6th Respondent in accordance with Rule 10 1 . It is clear from the records relating to the proceedings for the grant of the lease in favour of the 6th Respondent that the Finance Department was number companysulted before the Minister passed the order on December 13, 1970, to grant the lease. But companynsel for the Government of Bihar and 6th Respondent companytended that rule 10 1 , in so far as it requires prior companysultation with the Finance Department, is only directory in character and therefore, even if there was numberprior companysultation, the settlement was valid. So, the question arises whether rule 10 1 which requires prior companysultation with the Finance Department is mandatory or number. Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule, can be laid down on this matter. In each case one must look to the subject matter and companysider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory see Earl Crawford. The Construction of Statues, pp. 523-4 . Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have numbercontrol over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the, duty is imposed see Dattatreya Moreshwar Pangerkar v. The State of Bombay and others 1 . Where, however, a power or authority is companyferred with a direction that certain regulation or formality shall be companyplied with, it seems neither unjust number incorrect to exact a rigorous observance of it as essential to acquisition of the right or authority see Maxwell, Interpretation of Statutes, 6th edition, pp. 649650 . in this case, we think that a power has been given to the Minister in charge of the Forest Department to do an act which companycerns the revenue of the State and also the rights of individuals. The negative or prohibitive language of rule 10 1 is a strong indication of the intent to make the rule mandatory. Further, rule 10 2 makes it clear that where prior companysultation with the Finance Department is required for a proposal, and the department on companysultation does number agree to the proposal, the department originating the proposal can take numberfurther action on the proposal. The cabinet alone would be companypetent to take a decision.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 105 of 1969. Appeal by special leave from the judgment and order dated March 27, 1969 of the Bombay High Court in Criminal Appeals Nos. 53 and 45 of 1968. S. Kotwal, A. G. Ratnaparkhi and Rajiv Shah, for the appellant. M. Mehta and B. D. Sharma, for the respondent. The Judgment of the Court was delivered by Khanna, J. This is an appeal by special leave by Khandu Sonu Dhobi and Bhikanrao Rambhau Khairnar against the judgment of the Bombay High Court affirming on appeal the companyviction of the appellants under section 218 read with section 34, section 477A read with section 34 and section 409 read with section 34 of Indian Penal Code as well as under section 5 2 read with section 5 1 d of the Prevention of Corruption Act. Sentence of rigorous imprisonment for a period of one year and a fine of Rs. 200 or in default further rigorous imprisonment for a period of two months has been awarded on each companynt to, the appellants The substantive sentences have ben ordered to run companycurrently. Dhobi appellant No. 1 was an agricultural assistant and was working under Khairnar appellant No. 2 who was agricultural supervisor in the soil companyservation section of the Government of Maharashtra. Dhobi was incharge of the work relating to a Bundh in block No. 13 of village Asane in Taluka Mandurbar. The above block companyprises agricultural lands bearing survey Nos. 8, 17, 18, 19 and 32 measuring 90 acres. The Bundhs were being companystructed since the year 1962. Rectification work in respect of those Bundhs at a companyt of Rs. 369.07 had to be got done by Dhobi appellant under the supervision of Khaimar appellant. The Government sanctioned an amount of Rs. 4779 in companynection with the companystruction of the Bundhs. An advance amount of Rs. 5000 was received by Khaimar accused on March 2, 1966 in that companynection. Work of the value, of Rs. 4400 was done but that relating to rectification work was number done. According to the rules of the soil companyservation section, the Government spent the money in the first instance and after the report of the companypletion of work was received, the expenses were recovered from the landowners for whose benefit the work was done. On March 11, 1966 Khaimar made entries in measurement book Ex. 27 showing that he had checked 28 payments and certified the, same. Khaimar accused also stated in the entry that he had passed the measurements and paid Rs. 369.07. Paysheets Ex. 64 were prepared by Dhobi accused and he obtained the thumb impressions and signatures of the laborers on the paysheets. Khaimar made his initials below the thumb impressions in the paysheets. On the last page of the paysheets, Khaimar signed a certificate according to which he had paid Rs. 369.07 to PW 10 Jagan Trinibak who used to do the labour work. Final bill Ex. 28 was also prepared on that day by the accused and the signature of Jagan Trimbak was obtained on the same. The bill was got signed from PW 7 Ziparu Tukaram and another person as attesting witnesses. The bill was signed thereafter by Khaimar. Debit entry Ex. 32 of Rs. 369.07 was made by Khaimar accused in the cash book. He also prepared work abstract Ex. 29 on April 16, 1966 and sent it to the sub-divisional soil companyservation officer Nandurbar showing an expenditure of Rs. 369-07. The case of the prosecution was that the measurement book Ex. 27, paysheets Ex. 64, final bill Ex. 28 and cash book entry Ex. 32 were false documents and were fabricated by the accused without doing any reification work on the Bundh. The accused thus companymitted criminal breach of trust in respect of the amount of Rs. 369.07 in furtherance of their companymon intention to misappropriate government property. According further to the prosecution case, the landowners in block No. 13 came to know of the, above, acts of the accused and they companyplained about it to Sarpanch Tanku Bhagwan PW 12 . Tanku sent a telegram on April 12, 1966 to the superintending agricultural officer, Bombay division, Nasik in this companynection. A companyy of the telegram was thereafter sent by the superintending agricultural officer to divisional soil companyservation officer D.S.D. Ghate PW 1 for necessary action as well as for enquiry and report. Chate PW went to village Asane on May 2, 1966 and inspected block No. 13. He found that entries had been made about the payment of Rs. 369.07 in the measurement book and cash book even though numberrectification work had been done. Chate submitted his report on May 6, 1966 for proceeding departmentally against the accused. On receipt of the above report, the superintending agricultural officer directed P. Inamdar PW 1 1 , deputy director of agricultural engineering, to go to Asane village and submit his report after personally verifying the facts. Inamdar went with Ghate to block No. 13 in Asane village on May 11, 1966. Both Inamdar and Ghate found that numberrectification work had been done. They did number find even a single pit in the lands in that block although, according to measurement book, 83 pits had been recently dug. Inamdar and Ghate also met the Sarpanch and other landowners of Asane village. Report dated May 18, 1966 was thereafter submitted by Inamdar affirming those facts. Sarpanch Tanku sent companyplaint Ex. 84, in the meanwhile, on April 30, 1966 to the director of anti-corruption branch Maharashtra State stating that the accused had prepared false bill for Rs. 369.07 without doing any work and that they had misappropriated that amount. It was also stated that attempts were being made to shield the accused. The director of anti-corruption sent a companyy of that application to Sub Inspector K. G. Patil PW 13 who was then attached to Dhulia officse of the anticorruption branch. Sub Inspector Patil made local enquiry and took into possession the measurement book, paysheets and cash book. The director of anti-corruption branch directed Patil to register a case and investigate into the, matter. Patil went to Nasik and recorded statement Ex. 79 of Inamdar PW on November 7, 1966. The statement was then sent to Nandurbar Taluka police station. A case was registered on the basis of that statement at the police station on November 8, 1966. On November 12, 1966 sub Inspector Patil applied for permission under section 5A of the Prevention of Corruption Act of judicial magistrate 1st class to investigate the offence. The permission was granted by the judicial magistrate 1st class Nandurbar on the same day. Patil thereafter recorded statements of a number of persons. Patil was subsequently transferred and the case was investigated by his successors Mahamuni and Kulkarni who also obtained the requisite permission. Sanction Ex. 97 for the prosecution of the two accused was granted under section 6 of the Prevention of Corruption Act by the superintending agricultural officer Bombay division, Nasik on May 18, 1967. The two accused in their statements admitted that the work of the value of Rs. 369.07 wasnot done till March 11, 1966 although it was so stated in the various documents by them. The accused also admitted that numberamounts were paid to any of the labourers mentioned in the paysheets although signatures and thumb impressions of the labourers had been obtained on the paysheets on March 11, 1966. According to the accused, they had prepared the various documents in accordance with the instructions of Ghate PW who was insisting in March 1966, and even earlier, that a companypletion report relating to block No. 13 be sent as the entire amount spent on that block since 1962 companyld number be recovered for want of a. companypletion report. Khaimar accused added that rectification work had been done between May 13, 1966 and May 16, 1966 and the amount of Rs. 369.07 was thereafter disbursed on May 16, 1966. The learned special judge held that the amount of Rs. 369.07 had number been paid by the two accused to the labourers. No work, it was found, had been done and the different documents prepared by the accused in this companynection were false even on their own admissions. The explanation furnished by the accused that they prepared false documents at the instance of Ghate and got work done thereafter was number accepted. Objection was raised on behalf of the accused that the investigation of the case was illegal and that prosecution was barred by time under the pro-visions of section 23 of the Land Improvement Schemes Act, 1942. These objections were repelled. The accused were accordingly companyvicted and sentenced as above. On appeal the High Court affirmed the, findings of the learned special judge. We have heard Mr. Kotwal on behalf of the, appellants and are of the opinion that there is numbermerit in the appeal. It has number been disrupted before us that the accused made various entries and prepared documents on March 11, 1966 about their having got the rectification work done as well as about the payment of Rs. 369.07 on that account. It has also number been disputed before us that the amount of Rs. 369- 07 was number paid to any one by the accused in March or April 1966. According to Ghate PW 1 and Inamdar PW 11 , numberwork relating to the rectification of the Bundh was found to have been done till May 11, 1966 when they visited the site in question. Inamdars evidence also shows that according to the measurement book prepared by the accused, 83 pits had been recently dug although the witness companyld number find a single pit on the spot. In view of the above, we find numbercogent ground to disagree with the trial companyrt and the High Court that the accused had prepared false documents and had also companymitted criminal breach of trust in respect of the amount of Rs. 369.07. We also agree with the trial companyrt and the High Court that the accused were in the discharge of their duties guilty of criminal misconduct as defined in section 5 of the Prevention of Corruption Act. Mr. Kotwal has argued that the accused companypleted the recti- fication work after May 11, 1966,. There is, however, numberdirect evidence as may show that the, rectification work was companypleted after May 11, 1966. Even if it may be assumed that the accused companypleted the rectification work in May 1966, that fact, in our opinion, would number absolve the accused of their criminal liability. The charge, against the accused relates to preparation of false documents because even though numberwork had been done till March 11, 1966 and numberamount had been disbursed, they prepared docu- ments showing the doing of that work and the payment of that amount. It is numberanswer to, that charge that after the matter had been reported to the higher authorities, the accused in the month of May 1966 got the rectification work done. It is also numberanswer to a charge of criminal misappropriation that the money was subsequently, after the matter had been reported to the high authorities, disbursed for the purpose for which it had been entrusted. According to explanation 1 to section 403 Indian Penal Code, a dishonest misappropriation for a time only is misappropriation within the meaning of that section. Mr. Kotwal has also submitted that the accused expressed willingness to companyplete the work after the matter had been reported to the higher authorities. This submission, even if accepted, would number exonerate the accused because the willingness after the matter had been reported to the higher authorities companyld number efface or undo the offence earlier companymitted by the accused. Argument has then been advanced on behalf of the appellants that Sub Inspector Patil did number make investigation in the case in accordance with law. It is urged that permission to make investigation was granted to Sub Inspector Patil on November 12, 1966 and, as such, he was number authorized to make before that date the enquiry which led to the registration of the case as that enquiry partook of the character of investigation. Nothing has been brought to our numberice as to how an enquiry before the registration of a case can be held to be investigation. The matter, however, need number be dilated upon and it is number necessary to express any final opinion in the matter because we find that there is numbermaterial on the record as may show that the accused were prejudiced because of the alleged number-compliance with the provisions of section 5A of the Prevention of Corruption Act. It is well established that where cxognizance of a case has, in fact, been taken by the companyrt on a police report following investigation companyducted in breach of provisions of section 5A of the Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. The underlying reason for the above dictum is that an illegality companymitted in the companyrse of investigation does number affect the companypetence and jurisdiction of the companyrt to try the accused. Where, therefore, the trial of the case has proceeded to termination, the invalidity of the proceeding investigation would number vitiate the companyviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused see H. N. Rishbud and Inder Singh v. The State of DelHi 1 . Since there has been numbermiscarriage of justice in the present case because of the alleged number-compliance with section 5A, the companyviction of the accused appellants cannot be set aside on that score. For the same reason, we are unable to accede to the companytention of Mr. Kotwal that the companyviction of the accused should be set aside because permission under section 5A of the Prevention of Corruption Act to SI Patil for investigation of the offence was granted in a ,casual manner and without the existence of sufficient reasons. Lastly, it has been argued by Mr. Kotwal that the prosecution of the accused was barred by time under section 23 of the Bombay Land Improvement Schemes, Act, 1942. The section reads as under No suit, prosecution or other legal proceeding shall be instituted against any public servant or person duly authorized under this Act in respect of anything in good faith done or intended to be done under this Act or the rules made thereunder. No suit or prosecution shall be instituted against any public servant or person duly authorized under this Act in respect of anything done or intended to be done, under this Act, unless the, suit or prosecution has been instituted within six months from the date of the act companyplained of. Sub-section 1 of the section has plainly numberapplication as it relates to anything done in good faith. According to Bombay General Clauses Act, a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or number. The appellants admittedly were number acting honestly when they prepared the false documents in question and showed disbursement of Rs. 369.07 on March 11, 1966. Mr. Kotwal, however, relies on sub-section 2 of section 23 and 1 1955 1 S.C.R. 1150. submits that the prosecution companyld be instituted against the appellants only within six months from March 11, 1966. As the charge sheet was submitted long after the expire of six months, the case against the accused-appellants, according to the companynsel, was barred by time. This companytention, in our opinion, is devoid of force. Sub-section 2 refers to suit or prosecution against a public servant or person duly authorized 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. 369-07 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 authorized 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. Prayer has also been made for the reduction of the sentence, but we see numbercogent ground to interfere with the same.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 101 of 1969. Appeal by special leave from the judgment and order dated April 16, 1969 of the Rajasthan High Court in S. B. Criminal Appeal No. 558 of 1966. S. R. Chari and S. B. Wad, for the appellant. B. Mehta, for the respondent. The Judgment of the Court was delivered by Jaganmohan Reddy, J. This is an appeal by special leave against the judgment of the Rajasthan High Court. The accused was initially charged on three companynts, firstly, under section 5 2 read with section 5 1 c of the Prevention of Corruption Act 1947 hereinafter referred to as the Act , secondly, under section 409, I.P.C., and thirdly, under section 477A, I.P.C. Thereafter on 15-1-1964 another Special Judge charged him on two companynts, namely, under section 5 2 read with section 5 1 c and section 5 2 read with section 5 1 w of the Act. After the trial, the appellant was, however, companyvicted under section 409, I.P.C. and section 5 2 read with section 5 1 c and d of the Act and sentenced to rigorous imprisonment of 18 months and a fine of Rs. 250/- under-section 409, I.P.C. and 18 months rigorous imprisonment, and a fine of Rs. 250/- under section 5 2 read with sections 5 1 c and 5 1 d of the Act. The sentences on both these companynts were, directed to run companycurrently. The High Court, however, thought that the Special Judge had number recorded any companyviction under section 5 1 d of the Act and in that view companyfirmed the companyviction and sentence of the appellant of 18 months rigorous imprisonment on each of the companynts, namely, under section 409, I.P.C. and section 5 2 read with section 5 1 c of the Act, but reduced the fine for each of the offences from Rs. 250/- to Rs. 150/-. The appellant was employed as a Traffic Assistant in the Indain Airlines Corporations office at Jaipur and his duty was to make reservations of the passengers intending to go by air and issue tickets. As it happens, when the quota of seats allotted to Jaipur is full, intending travellers who request for accommodation would be required to pay trunk telephone charges for enabling the Airlines Corporation to obtain release of seats from quotas allotted to other centers. The practice of the Airlines was to companylect the approximate charges and issue a receipt therefore and if a seat was available, the reservation would be companyfirmed and accommodation given to the passengers if seats companyld be released from other centers for Jaipur. The appellant who was incharge of these arrangements between 16-2-62 and 30-8- 62, companylected Rs. 184.90 towards trunk telephone charges but actually deposited with the Airlines Corporation a sum of Rs. 44.91 and misappropriated the balance of Rs. 139.99. The modus operendi followed by him, it is alleged, was that he would demand a higher amount for Trunk Call charges than were likely to be incurred and he would issue a companyrect receipt for those amounts on behalf of the Airlines Corporation but after making the trunk call, he would alter the companynter-foil with the actual amount of trunk call charges. On the same day he would make a daily return showing the actual amounts and deposit them with the Cashier. A typical sample of the receipts given by him on behalf of the Airlines Corporation is Exhibit 40 which is as follows INDIAN AIRLINES CORPORATION NEW DELHI. No. 354577 Station Jaipur. Date 30-8-62. Received with thanks from M s. M Travels, Jaipur sum of Rupees Twenty three and forty nP, being the amount T Call charges to Udaipur and AMD for re-lease of seat. for INDIAN AIRLINES CORPORATION. Sd - Cashier. Rs. 23.40 On 31-8-62, one M.D. Singh ofthe Mercury Travel Agency, Jaipur companyplained to B.S. Gupta, Incharge of the Office of the Indian Airlines Corporation at Jaipur that the appellant had companylected Rs. 23.40 for proposed trunk call charges from the Agency but made numbercall and numberseat was allotted to the passenger of the Mercury Travel Agency even though one was available and that seat was given by B. S. Gupta to someone else. B. S. Gupta questioned the appellant who then made a companyfession of his having companylected the amount but number having made a call. After-making this companyfession he immediately resigned his job. A preliminary inquiry was companyducted by the Area Manager who thereafter lodged the First Information Report. The accused denied having companylected the amounts or of having issued the receipts and further stated that whatever amounts were companylected by him were paid in the office of the Airlines everyday. Both the Courts found on the evidence that the appellant used to make trunk calls whenever he was on duty from the Indian Airlines Corporation office at Jaipur for the release of seats and that he would call for and receive trunk call charges from intending passengers. It was further held proved that the appellant gave receipts Exhibited in the case which were in his own hand-writing and signed by him and that it was he who realised the total sum of Rs. 185/- which was entrusted to him and over which he, had a dominion in his capacity as a public servant. We have already pointed out that the High Court did number companyfirm the companyviction of the appellant under section 5 2 read with section 5 1 d on the assumption that the-said Special Judge had number companyvicted the accused for that offence, and since there is numberappeal by the State against this part of the judgment, the companytention on behalf of the State that he was companyvicted under section 5 1 d has numbermerits and cannot be sustained. On behalf of the appellant it was urged before the High Court that as the appellant had to fare a trial extending over more than 3 years incurring enormous expenses for companying to and from Chandigarh where he was practicing law and was also in Jail for some time, the benefit of the Probation of Offenders Act should be given to him This companytention was rejected because the provisions of that Art were inapplicable in view of his companyviction under section 409, I.P.C. As the offence of criminal breach of trust under section 409, I.P.C. is punishable with imprisonment for life, the High Court, in our view, was right because the provisions of section 4 are only applicable to a case of a person found guilty of having companymitted an offence number punishable with death or imprisonment for life. Apart from this reasoning, section 18 of the Probation of Offenders Act makes, the provisions of that Act inapplicable to are offence under sub-section 2 of section 5 of the Prevention of Corruption Act. On behalf of the appellant it is submitted by the learned Advocate that the prosecution case as disclosed by the evidence was that the appellant had companylected excess charges from the passengers representing them to be the actual charges for trunk calls and number that any excess over the actual charges would be returned to them. In view of this evidence, the appellant companyld number be companyvicted either under section 5 2 read with section 5 1 c of the Act or under section 409, I.P.C. because the important ingredient which is entrustment of the amounts is absent. In order that any amount can be said to be entrusted it should be lawfully made over, but in this case the appellant obtained the amount by cheating and by the companymission of an offence. If there was numberentrustment of the moneys to the appellant, he companyld number be companyvicted either under section 409 or under section 5 2 read with 5 1 c of the Act and is accordingly entitled to an acquittal on both these charges. In support of this companytention reliance has been placed on Surendra Pal Singh v. The State 1 , where a Bench of the Allahabad High Court held that the amounts companylected from cultivators by the Canal Amin in excess of the amount actually due from them and misappropriated by him, did number amount to an entrustment as he companyld number be a trustee of that money on behalf of the cultivators, from whom he realised it because when they banded over the money to the accused, they purported to surrender all their rights in that money, number companyld it be said that this money had become the property of the Government at any stage for him to be companysidered a trustee on its behalf. This decision was, however, disapproved in The State v. Dahyalal Dalpatram 2 , by a Bench of the Bombay High Court, a view with which the High Court agreed. In that case the accused who was employed as a Talati in the Revenue Department, was invested with the authority to companylect land revenue and fines. He was ordered to recover from the land-holders who had defaulted in paying the moneys but having companylected them, be did number pay them into the Government Treasury as required by the rules made under the Land Revenue Code. The accused was companyvicted under section 409, I.P.C. On the question that when the accused companylected the amount as tax alleged to be due by the land-holder though the liability whereof companyld number be enforced according to law. companyld it be said that he was then entrusted with the money, the High Court after numbericing that the Allahabad High Court appears to have taken the view that a public servant companylecting the money claiming that it was, due to the State but which in fact was number due to the State, companyld number be regarded as entrusted with the money companylected by him, held that that was number a necessary ingredient of section 405. The learned Advocate sought to distinguish this case on the ground that in the Bombay case there was a definite direction to companylect a specific amount and when that amount was companylected there was entrustment of that money which was lawfully companylected, as such the accused was rightly companyvicted. It was further companytended that if looked at from the point of view of the passengers from whom A.I.R. 1957 All. 122. 2 A.I.R. 1960 Bom. 53. trunk call charges were companylected, they had number entrusted money to the accused because they had parted with the proprietary rights thereon and if viewed from the point of view of the Airlines Corporation, the money companylected did number be-come the property of the Corporation and companysequently there was numberentrustment of it. There can be numberdoubt that before a public servant can be companyvicted of an offence under section 5 1 c or under section 409, I.P.C. the property which is said to, have been misappropriated must be entrusted to him. Section 405 merely provides, whoever being in any manner entrusted with property or with any dominion over the property, as the first ingredient of the criminal breach of trust. The words in any manner in the companytext are significant. The section does number provide that the entrustment of property should be by someone or the amount recieved must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to, deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression entrusted in section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of companytrary to the terms on which possession has been handed over. It may be that a person to whom the property is handed over may be an agent of the person to whom it is entrusted or to whom it may belong in which case if the agent who companyes into possession of it on behalf of his principal, fraudulently misappropriates the property, he is numberetheless guilty of criminal breach of trust because as an agent he is entrusted with it. A person authorized to companylect moneys on behalf of another is entrusted with the money when the amounts are paid to him, and though the person paying may numberlonger have any proprietary interest numberetheless the person on whose behalf it was companylected becomes the owner as soon as the amount is handed over to the person so authorized to companylect of different High Courts in this companyntry for nearly a century, a few of which alone need be examined. In the matter of Ram Sounder Poddar Ors. 1 , a Deputy Magistrate companyvicted the accused under section 406, I.P.C., an offence over which he had jurisdiction, instead of under section 409, i.p.c. which was companynizance only by the Court of Session. on revision the High Court held that the proceedings were companytrary to law and the Deputy Magistrate was directed to companymit the accused for trial by the Court of Session. It appears that the accused who were charged were Treasury employees. One of the accused 1 1878 2 al. L.R. 515. was allowed to, write the Treasury Cash Book which was the duty of the Treasurer. Taking advantage of it, he misappropriated Rs. 16/- by scoring off the entry in the account book. In this misappropriation he was assisted by the other accused who was employed to do stamp work. While holding the trial to be without jurisdiction, it was observed that section 409 does number as supposed by the Deputy Magistrate, require the property in respect of which criminal breach of trust is companymitted, to be the property of Government, but only requires that it should be entrusted to a public servant in his, capacity as such public servant. In re Ramappa 1 , the accused who was the Superintendent of some Coffee Curing Works was companyvicted of criminal breach of trust by misappropriating a large sum of money made up of amounts which he had received from the Manager on the false pretense that they were required for paying companylies who garbled companyfee. One of the arguments urged against the companyviction was that the receipt of the money by false representation amounted to an offence of cheating and that the subsequent appropriation of it by the accused to his own use was number a criminal breach of trust as the criminal intent was present at the time of the receipt of the moneys from the Manager. Benson and Sundara Aiyar, J., while rejecting that argument, observed When the accused received the money he did so as a servant of the Company for the express purpose of using it for his masters benefit in a particular way. He was, therefore, entrusted with the money and his appropriating it to himself clearly amounts to criminal breach of trust. In Venkata Raghunatha Sastri 2 , Spencer, J., held that where a person who had pledged promissory numberes with another as seenrity for a loan dishonestly induced the latter to hand over the same to him by pretending that he required the same for companylecting money from his creditors with the aid of which he would pay cash to the companyplainant, his act companystituted an offence of cheating punishable under section 420, I.P.C. and that when he dishonestly disposed of the numberes in violation of his companytract with the pledgee to use the money companylected in paying off his debt, there was both entrustment and dishonest misappropriation and that the companyviction for the offence of criminal breach of trust under section 406, I.P.C. was legal. Both these cases were referred to in The Crown Prosecutor v. McIver and K. S. Narasimhachari 3 . The facts in this case also were somewhat similar to those in Venkataraghunatha Sastris case 4 Madhavan Nair, J as he then was examined the meaning of the word entrusted in section 406 and rejected a similar companytention as was urged in this case on behalf of the appellant that when the accused by deceiving the companyplainant fraudulently and 1 1911 22 M.L.J. 112. 3 69 M.L.J. 681. 2 1923 45 M.L.J. 133 4 45 M.L.J. 133. dishonestly induced him to part with the property in question, the offence of cheating was companyplete and that there is numberroom for further holding that the accused have companymitted criminal breach of trust also by their subsequent misappropriation of the property. In the case before us, the practice which was being followed by the Jaipur office of the Indian Airlines Corporation is spoken to by M. U. Menon, P.W. 6, who was a Personal Assistant to the General Manager of the National Engineering Industries Ltd., Jaipur. He says that on 16-2-1962 his General Manager had directed him to issue instructions to the accounts branch for arranging for flight tickets by air for Delhi. He first rang up the Indian Airlines Corporation about the air passage for eight persons and received, a reply from that office that 8 tickets were number available at Jaipur and they would try from Udaipur and Ahmedabad by trunk calls. After some time the Indian Airlines Corporation people rang up telling him that tickets can be arranged and he should end the money amounting to Rs. 410.50 which included trunk call charges of Rs. 26.50. He thereupon sent a slip, Exhibit P-6 to the accounts department for further necessary action. There was numbercross-examination on behalf of the accused. Similarly Ganesh Singh, P.W. 3 who is working for the National Engineering Indus his people companytacted Indian Airlines tries Ltd., Jaipur said that when Corporation on telephone and enquired about the fare etc. they would ask for trunk call charges along with the amount for tickets. This would be paid and in fact he pointed out to the accused and said that he might be one of the persons whom he met at the office and after he paid the amounts for the tickets and trunk call charges, he would obtain a receipt and give it to the companypany. This evidence read with other evidence which has been accepted by both the Courts would show that whatever may have been the criminal in- tention of the accused, the amounts for trunk call charges were demanded on behalf of the Indian Airlines Corporation and were paid to the companyporation. The receipts in respect of the sums were given on behalf of the Corporation and it would be the Corporation that would be liable directly to the person who had paid this amount, if numbertrunk calls were made, or any excess over the actual amount of the trunk call charges was charged by it. The amount was number paid by passengers to the accused as such but to the Indian Airline.,, Corporation and as soon as the receipt for the amount actually received from the passengers was given by the accused on behalf of the Corporation, he was entrusted with that amount. His subsequent companyduct in falsifying the companynter-foils and fraudulently misappropriating the amounts would make him guilty of criminal breach of trust punishable under section 409, I.P.C.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 94 of 1969. Appeal by special leave from the judgment and order dated January 30, 1968 of the Patna High Court in Criminal Appeal No. 539 of 1966. Nur-ud-din Ahmed and U. P. Singh, for the appellant. C. Prasad, for the respondent. The Judgment of the Court was delivered by Khanna, J. Gudar Dusadh appellant was tried along with 23 others in the companyrt of Additional Sessions Judge Saran. Eighteen of the accused were acquitted by the trial companyrt. The appellant was companyvicted. under sections 302 and 147 Indian Penal Code and was sentenced to undergo imprisonment for life on the former companynt. No separate sentence was awarded to the appellant for the offence under section 147 Indian Penal Code. The remaining five accused were companyvicted under section 323 read with section 149 Indian Penal Code as well as for other minor offences with which we are number companycerned On appeal the Patna High Court maintained the companyviction and sentence of the appellant, while some modification was made as regards the sentence awarded to the other five companyvicted accused. The appellant thereupon came up in appeal to this Court by special leave. The, leave was, however, companyfined only to the question whether the offence companymitted by the appellant was murder or culpable homicide number amounting to murder. The case relates to an occurrence which took place in village Khahla in district Saran at about 11 a.m. on August 14, 1965. Ramlal Bhagat, who was aged about 65 years, died as a result of the assault during the companyrse of the occurrence while his son Ramashish Prasad PW 10 received injuries. The case of the prosecution is that a day before the occurrence Prasadi Dusadh and Ganesh Dusadh killed a goat belonging to Baharan Bhagat PW 8 . On the advice of Ramlal Bhagat deceased, Baharan Bhagat lodged a report with the police at 3 p.m. on that day. On the morning of August 14, 1965 Ramlal and his son Ramashish went to their paddy field. While they were returning from the field at about 1 1 a.m. they were assaulted by the six companyvicted persons who had been hiding on the route. The appellant gave a lathi blow on the head of Ramlal as a result of which the latter fell down and died at the spot. One of the companypanions of the appellant then shouted that the assault was made because of Ramlal being-responsible for the companymencement of criminal proceedings by Baharan. Some injuries were also caused to Ramashish. The accused then set fire to one of their huts with a view to prepare some kind of defence. After that the accused fled away, SHO Sarju Prasad Singh of police station Barauli on receipt of information that a large number of persons belonging to the party of the accused had companylected to attack the other party in spite of the promulgation of an order under section 144 of the Code of Criminal Procedure, came to the place of occurrence but before that Ramlal had already been killed. Sarju Prasad Singh recorded the statement of Ramashish and on the basis of that statement, a formal information report was prepared at the police station. Post mortem examination on the body of Ramlal deceased was performed by Dr. R. S. Singh on August 15, 1965. At the trial the plea of the appellant was that he had been falsely involved in the case at the instance of the Mukhia of the village who was inimical to the appellant. The two companyrts below accepted the prosecution case that it was the appellant who had given a lathi blow on the head of Ramlal deceased as a result of which the latter died. It was held that the case against the appellant fell under clause 3rdly of section 300 of Indian Penal Code. As such, the appellant was companyvicted under section 302 Indian Penal Code. The only question with which we were companycerned in appeal is whether the offence companymitted by the appellant is murder or whether it is culpable homicide number amounting to murder. In this respect we find that according to Dr. R.S. Singh who performed the post mortem examination on the dead body of the deceased, the doctor found a lacerated wound 2x1/2 bone deep on the left side of the head of the deceased. The injury was ante-mortem and had been caused by a weapon like lathi. On dissection the doctor found 3 long fracture of the left parietal bone about 2 1/2 from the middle line of the top of the head. On removing the skull the doctor numbericed large amount of blood and blood clots on the left side of the brain. Death, in the opinion of the doctor, was due to companypression on the left side of the brain.The doctor further stated that the above injury was sufficient in the ordinary companyrse of nature to cause death. The appellant who caused the above injury to Ramlal deceased, in our opinion, was guilty of the offence of murder and he has been rightly companyvicted under section 302 Indian Penal Code. The appellant along with his companypanions was lying in wait to attack Ramlal and, according to the evidence on record which has been accepted by the High Court, he gave a blow on the head of Ramlal as a result of which Ramlal fell down and died instantaneously. It has also been found by the, High Court that there was numberaltercation or exchange of abuses between Ramlal and the accused party. The circumstances of the case thus show that the assault was premeditated and the blow on the head of Ramlal was number accidental. The fact that the appellant gave only one blow on the head would number mitigate the offence of the appellant and make him guilty of the offence of culpable homicide number amounting to, murder. The blow on the head of Ramlal with lathi was plainly given with some force, and resulted in. a 3 long fracture of the left parietal bone. Ramlal deceased Died instantaneously and as, such, there arose numberoccasion for giving a second blow to him. As the injury on the head was deliberate and number accidental and as the injury was sufficient in the ordinary companyrse of nature to cause death, the case against the appellant would fall squarely within the ambit of clause 3rdly of section 300 Indian Penal Code. According to that clause, culpable homicide is murder if it is done with the intention of causing bodily injury to any person and the, bodily injury intended to be inflicted is sufficient in the ordinary companyrse of nature to cause death. Section 300 also provides for some exceptions but we are number companycerned with them in this case. Clause 3rdly companysists of two parts. Under the first part, it has to be shown that there was an intention on the part of the accused to inflict the particular injury which was found on the body of the deceased. The second part requires that the bodily injury intended to be inflicted was sufficient in the ordinary companyrse of nature to cause death. So far as the first part is companycerned, the companyrt has to see whether the injury which was found on the deceased was the one intended by the accused or whether it was accidental without his having intended to cause that bodily injury. Once it is found that the injury was number accidental and that the accused intended to cause the injury which was actually inflicted and found on the body of the deceased, the first part shall be satisfied. The companyrt would then go into the second part of the clause and find in the light of medical evidence as to whether the bodily injury inflicted was sufficient in the ordinary companyrse of nature to cause death. If the companyrt finds that the requirements of both the parts have been satisfied, the case shall be held to be companyered by clause 3rdly unless it falls within one of the exceptions. In the present case, both parts of the clause 3rdly have been, satisfied. As observed earlier, the injury which was inflicted by the accused on the head of Ramlal was number accidental. It is number the case of any one that the appellant aimed a blow on some other part of the body and because of some supervening cause like sudden intervention or movement of the deceased the lathi struck the head of the deceased. The fact that the appellant aimed a blow on the head of Ramlal with the lathi would go to show that it was the intention of the appellant to cause the precise injury which was found on the head of the deceased. The evidence of Dr. R. S. Singh who performed post mortem examination shows that the above injury was sufficient in the ordinary companyrse of nature to cause death and actually resulted in the death of the deceased., The case of the appellant would thus be companyered by clause 3rdly of section 300 and he would be guilty of the offence of murder. Reference on behalf of the appellant has been made to the case of Chamru Budhwa v. State of Madhya Pradesh 1 . There was in that case a severe exchange of abuses between the parties preceding the incident. While the abuses were being exchanged, the tempers rose high and both the parties came out of their respective houses in anger. In the companyrse of the quarrel the appellant dealt a fatal blow on the head of the deceased with his lathi. It was held that the crime was companymitted by the appellant without premeditation in a sudden fight in the heat of passion and without the appellant having taken undue advantage or acted in a cruel or unusual manner. The case of the appellant was thus held to be companyered by exception 4 to section 300 of Indian Penal Code and he was found guilty of the offence of culpable homicide number amounting to murder. It was also observed that the fatal injury inflicted by the appellant on the head of the deceased by one blow was number caused with the intention of causing death or such, bodily injury as was likely to cause death. The last observation upon which reliance has been placed by Mr. Nuruddin on behalf of the appellant should be taken to have been made in the companytext of the facts of that case. The above case does number warrant the proposition that if the accused gives a deliberate blow on the head of the deceased with a lathi and thereby causes an injury as is sufficient in the ordinary companyrse of nature to cause death and actually results in death, the case against him would number fall under clause 3rdly of section 300 of Indian Penal Code.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.51 of 1968. Appeal by special leave from the judgment and order dated February 2, 1968 of the Bombay High Court in Criminal Application No. 393 of 1967. Appellant appeared in person. C. Bhandare, S. B. Wad and, B. D. Sharma, for the respondent. The Judgement of the Court was delivered by Grover, J. This is an appeal by special leave from a judg- ment of the Bombay High Court finding the appellant who is an Advocate, guilty of companytempt of companyrt and sentencing him to simple imprisonment for a term of four weeks and a fine of Rs. 1,000/-. It was directed that in default of payment of the fine he would have to undergo simple imprisonment for a further period of four weeks. He was also ordered to pay the companyts of the Assistant Government Pleader in the High Court and the Government Pleader before the Sessions Judge. The material facts may be stated In March 1966 a suit was filed against the appellant by D. N. Santani who is also an Advocate for recovery of Rs. 640/- in the companyrt of the Civil Judge, Junior Division, kalyan. The plaintiff in that suit had engaged H. I. Jagiasi as his Advocate. In the written statement filed by the appellant he made certain allegations against Jagiasi and alleged inter alia that the latter was responsible for the suit. Jagiasi filed a criminal companyplaint for defamation in August 1966 against the appellant in the companyrt of Shri P. D. Sayyid, Judicial Magistrate at Kalyan. The appellant has set out a number of incidents and matters in his petition for special leave to appeal which it is number necessary for our purpose to mention. It would suffice to say that on October 15, 1966 the appellant filed an application before the Judicial Magistrate saying that he intended to apply for transfer of the case to some other companyrt. On October 28, 1966 he presented a transfer application in the companyrt of the Sessions Judge. Thana The transfer application was ultimately dismissed by the Assistant, Judge and Additional Sessions Judge on March 8, 1967 before whom it came up for disposal. Meanwhile it appears that the appellant applied for transfer of the civil suit which had been filed by D. R. Santani to the companyrt of the District Judge. The suit was stayed and we have been informed that ultimately it was transferred sometime in the year 1967 from the companyrt of Shri B. Baadkar from whose companyrt transfer was sought. It has further been stated at the Bar and that statement has number been challenged that the civil suit was ultimately dismissed in August 1969. While dismissing the transfer application of the appellant in the criminal companyplaint filed by Jagiasi in the, companyrt of Shri P. D. Sayyid the Additional Sessions Judge recorded an order that a report be submitted to the High Court for companysidering the companyduct of the appellant and the companyrse adopted by him in making the transfer application and in making amputations or aspersions against the Judicial Officers and to take action for companytempt of companyrt under s. 3 2 of the Contempt of Courts Act, 1952, hereinafter called the Act. This was done after reproducing three paragraphs from the transfer application and expressing an opinion that the appellant had attempted to attack the integrity and honesty of the companyrts of the Judicial Magistrate and the Civil Judge and to scandalize and to malign the same. The High Court made an order on December 1, 1967. The following part of that order may be reproduced- He made an application to the Sessions Judge for transfer of the proceedings to another Court and the ground objected to by the learned Sessions Judge is as follows - The Magistrate below is on friendly relations with the companyplainant the respondent No. 1 in the present petition and he even enjoys the hospitality of the respondent No. 1 some times alone and some times in companypany of the, Civil Judge J. D. Kalyan Shri M. B. Baadkar whois also on friendly relations with the respondent No.1 and who also enjoys the hospitality of the respondent No. 1 The learned Sessions Judge had called for report from the Magistrate Mr. P. D. Sawed and was apparently satisfied after companysideration of all the affidavits produced before him that the allegations was baseless. He, there-, fore,, referred the matter to this companyrt for suitable action being taken against the respondent-Advocate for his making such allegations and interfering with the companyrse of justice and scandalizing or maligning the Courts below. It was further stated in that order that the appellant had asked for an opportunity to establish the truth of the allegation made above which had been made, both because of his personal knowledge and also because of information obtained from others. A list of witnesses was furnished by the appellant whom he proposed to examine. The High Court directed the District Judge to regard the evidence and to submit his report along with the evidence and the reports of the two judges. It was expressly stated that the inquiry was to be companyfined to the allegations which had been quoted above. The show cause numberice which was issued to the appellant by the High Court omitting unnecessary portions was as follows - Whereas upon reading letter No. 2434, dated 5th April, 1967 forwarded by the 2nd Addl. Sessions Judge, Thana along with the Record and proceedings of Cri. Transfer Application No. 108/66 on his file and the Record and Proceedings in Cri. Case No. 2949 of 1966 of the Court of the Judicial Magistrate, F. C. Kalyan, requesting to take action under the Contempt of Courts Act against the Advocate Mr. G. L. Bhatia, who has made serious allegations against the Judicial Officers Shri Baadkar and Shri Sayyad in Transfer Cri. Application No. 108/66 in para one in the Court of the 2nd Addl. Sessions Judge, Thana, etc., And whereas this Court has on 15th June 1967, passed the following order - Notice to Mr. Bhatia Advocate to show cause why action for companytempt of Court should number be taken against him. Notice to G. P. also. A companyy of D. J.s letter to, be sent to Mr. Bhatia along with the numberice. The District Judge in accordance with the orders of the High Court submitted a report giving his own findings on the evidence recorded by him and. also after taking into companysideration the reports of Sarvshri Baadkar and Sayvid which had been called for from them apparently after the witnesses produced by the appellant had given their evidence and companyies of their depositions had been sent to the two Judges. The appellant raised two preliminary objections before the High Court. The first was that the District Judge companyld only submit a record of evidence and companyld number give his findings and, secondly, he companyld number take into companysideration the reports of the two judges which had number been shown to the appellant. Another objection raised was that the reports of the Judicial Officers companyld number have been relied upon because the appellant had numberopportunity to cross-examine them. The High Court repelled all these objections. From the statement of preliminary facts it is clear that the High Court relied only on the allegations companytained in para 1 of the application of transfer which have already been set out before and companytents of which were that Shri Sayyid was on friendly relations with Jagiasi and that he had even enjoyed his hospitality sometimes alone and sometimes in the companypany of Shri Baadkar. We have laid a certain amount of stress on the aforesaid allegation made in para 1 of the transfer application because that application companysisted in substance of three paragraphs. It will be desirable, owing to the nature of this case, to set out all the allegations made in the transfer application The Magistrate below is on friendly relations with the companyplainant the Respondent No. 1 in the present petition and he even enjoys the hospitality of the Respondent No. 1 some times alone and some times in companypany of the Civil Judge J. D. Kalyan Shri M. B. Baadkar who is also on friendly relations with the Respondent No. 1 and who also enjoys the hospitality of the Respondent No. 1. The Magistrate below is prejudiced against the present application. The Magistrate below has number taken and does number appear to take impartial disinterested view of the case in question. Evidently the companyplainant was number actuated by mere or bonafide professional interest. He was the author of false litigation for a false and fabricated claim. That matter Suit No. 213 of 1966 was still pending hearing and adjudication. The company- plaint in question companyld number as such be filed in all fairness and it ought number to have been entertained at least without the preliminary enquiries or at any rate it ought to have been stayed. That was number done and the process was ordained to be urgently issued and served and the socalled summons was served on the applicant a day or two before the date of hearing to harass and handicap him in his professional companymitments. Even the said summons was number accompanied by companyy of the companyplaint as mandatorily required by S. 204 b of the Code of Criminal Procedure, and the applicant was left guessing as to what the said summons related to. On 15th October 1966 when the case in question was Sr. No. 10-12 on the Board and it was preceded by even part heard cases the trial Magistrate did number permit this application even leave for a while to enable him to go to Civil Court at a distance of furlong or so to obtain leave of the Court from his professional engagements and the trial Magistrate observed that he would take up the case there and then and just number and in the next moment the companyplainant was in the Box ready for finishing the case as though by previous understanding. The applicant respectfully refrains from entering into further details in this regard and he would do the same if called upon. For the present suffice to say that in view of what is stated above there is well-founded apprehension in the mind of the applicant he would number get justice unless the case is transferred to some other Court of the companypetent jurisdiction. The question which immediately arises is whether an allegation of the nature made in para 1 in the circumstances of the present case in a transfer application would amount to companytempt of the two judges Sarvshri Sayyid and Baadkar. The High Court made a detailed examination of the evidence adduced before the District Judge and also relied on the reports of Sarvshri Sayyid and Baadkar. It came to the companyclusion that the allegations made by the appellant had number been proved. It was observed that these allegations in the above quoted paragraph which means paragraph 1 were quite serious. The High Court was also influenced by the fact that the appellant had pitched the case higher and tried to prove that the two judges companycerned were companytinuously receiving from Mr. Jagiasi presents of large value in the shape of sarees and other articles and thus receiving bribes so as to indiscreetly favour Mr. Jagiasi and the litigants whom he represented in their Court. The appellant was number even willing to tender an apology and his position as an Advocate was naturally regarded as making the companytempt all the more serious. The appellant, who has argued the case himself, has raised the following main companytentions The Act is unconstitutional and invalid. It violates Articles 20 and 21 of the Constitution. No procedure has been provided in the Act and therefore if is bad. Even the numbermal procedure which should be followed in such cases has number been followed. The High Court was number entitled to call for a report from the District Judge or to delegate its functions ,including the examination of witnesses to the District Judge. The show cause numberice issued by the High Court companytaining the charge of companytempt was companyfined only to paragraph 1 of the transfer application. The statements made in that paragraph companyld number by themselves companystitute companytempt. In our opinion it is wholly unnecessary to decide points 1 to 4 because the appellant must succeed on the 5th point. This companyrt has, after a review of all the relevant decisions, laid down in Perspective Publications P Ltd. Anr. v. State of Maha- rashtra 1 , inter alia, the following principles - It will number be right to say that the companymittals for companytempt for scandalizing the, companyrt have become obsolete. 1 1969 2 S.C.R. 779. The summary jurisdiction by way of companytempt must be exercised with great care caution and only when its exercise is necessary for the proper administration of law and justice. It is open to any one to express fair, reasonable and legitimate criticism of any act or companyduct of a judge in his judicial capacity or even to make a proper and fair companyment on any decision given by him. A distinction must be made between a mere libel or defamation of a judge and what amounts to a companytempt of the companyrt. The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculat- ed to interfere with the due companyrse of justice or the proper administration of law by his, companyrt. It is only in the latter case that it will be punishable as companytempt. Alternatively the test will be whether the wrong is, done to the judge personally or it is done to the public. To borrow from the language of Mukherjea J., as he then was, Brahma Prakash Sharmas case 1953 SCR 1169 the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing companyplete reliance upon the companyrts administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties. In that case it was held that the imputation in an article of impropriety, lack of integrity and oblique motives to a judge of the High Court in the matter of deciding a suit companystituted companytempt of companyrt. The question whether an action can be taken under s. 3 of the Act if in a transfer application allegations are made against a judge which are of such nature as to companystitute companytempt of his companyrt does number appear to be res Integra. In State of Madhya Pradesh v. Revashankar 1 aspersions of a serious nature had been made against a Magistrate in a transfer petition., One of such aspersions was that the Magistrate in whose companyrt the proceedings were pending was a party to a companyspiracy with certain others the object of which was to implicate, the companyplainant in a false case of theft and that a lawyer appearing for the accused persons in whose favour the Magistrate, was inclined, had declared 1 1959 S.C.R. 1367. that he had paid a sum of Rs. 500/- to the Magistrate. It was also asserted that the applicant was sure that he would number get impartial and legal justice from the Magistrate. It was held that the aspersions taken at their face value amounted to what is called scandalizing the companyrt itself and the attack on the Magistrate tended to create distrust in the popular mind and impair the companyfidence of the people in the companyrts. This decisions is quite apposite for the purposes of the present case. It decides that allegations made even in a transfer application casting aspersions on a judicial officer can companystitute companytempt of his companyrt within s. 3 of the Act. It is difficult to companyprehend that the mere statement that a Magistrate is friendly with a party who happens to be an advocate and enjoys his hospitality or has friendly relations with him will companystitute companytempt unless there is an imputation of some improper motives as would amount to scandalizing the companyrt itself and as would have a tendency to create distrust in the popular mind and impair the companyfidence of the people in the companyrts. The allegations companytained in para 1 of the transfer application may or may number amount to defamation of the two judges, namely, Sarvashri Sayyid and Baadkar but to companystitute companytempt the other tests which have been discussed above must be fulfilled. As numbericed before the High Court companyfined the action, which was to be taken, only to the matter stated in paragraph 1 and did number choose or decide to include or companysider paragraphs 2 or 3 either in the show cause numberice or in the judgment the following part of which may be reproduced-. We have companysidered the whole of the evidence on record that can be relied upon on behalf of the companydemner on the one side and by the State in support of the case for action against the companydemner. We have with some anxiety companysidered the arguments advanced by the companytemner in support of his case that the evidence is sufficient to prove the allegations made by the companytemner in the above quoted paragraph. We find it impossible to hold in his favour that-he has proved that Mr. Sayyid had friendly relations with Mr. Jagiasi and was enjoying the hospitality of Mr. Jagiasi either alone or in companypany with Mr. Baadkar. He has failed to prove that Mr. Baadkar had friendly relations with Mr. Jagiasi and enjoyed the hospitality of Mr. Jagiasi. It is true that a party cannot make such allegations even in a transfer application which may fall within the rule laid down in Revashankars 1 case or in the Perspective Publications case 2 and which may amount to scandalizing the companyrt in the sense pointed out in these decisions. In the State v. The Editors 1 1959 S.C.R. 1367. 2 1969 2 S.C.R.779. Publishers of Eastern Times and Prajatantra 1 , Jagannadhadas C.J. as he then was delivering the judgement of the Division Bench, after an exhaustive examination of the decided cases where the jurisdiction of the companyrt for this, class of companytempt had in fact been exercised, observed A review of the cases in which a companytempt companymitted by way of scandalising the companyrt has been taken numberice of, for punishment, shows clearly that the exercise of the punitive jurisdiction is companyfined to cases of very grave and scurrilous attack on the companyrt or on the Judges in their judicial capacity, the ignoring of which would only result in encouraging a repetition of the same with a sense of impunity and which would thereby result in lowering the prestige and authority of the companyrt. There are number many decisions in which punishment has been inflicted for companymitting companytempt of companyrt by making scurrilous allegations in an application for transfer of a case from one companyrt to another. Mention may, however, be made of one of such cases Swarnamayi Panigrahi v. B. Nayak Ors. 2 There, during the pendency of certain rent suits filed before the Rent Suit Collector by the landlord, who was the wife of the Chief Justice of the Orissa High Court, the tenant filed certain transfer applications before the Additional District Collector making statements like these The lower companyrt openly identified himself with the plaintiff Shrimati Swammayi Panigrahi and is so partial to her that numberjustice or impartial decision can be expected from him He has gone out of the companyrse prescribed by law and has taken over the function of witness and companyrt in himself in such a way that there is numberparallel to it in the history of litigation in India and That opposite party wields extraordinary in- fluence in the State as she is the wife of Shri Lingarai Panigrahi Chief Justice of Orissa High Court. It is being openly talked about that the companyclusions are foregone. It was observed that though some latitude has to be given in a transfer application but the question was whether or number the applicant in that case had exceeded the limits permissible under the law. As a rule applications for transfer were number made merely A.I.R. 1952 Orissa 318. A.I.R 1959 Orissa 89. because the trying judge was alleged to be incompetent but there may be circumstances beyond the judges companytrol such as the acquaintance with one of the parties or personal interest in the subject matter of the proceedings which in law would be companysidered as preventing him from giving an unbiased decision. It was held that the, applicant had exceeded the limits and had gone out of his way number only to malign the personal integrity and judicial honesty of the lower companyrt but had also directly attacked the whole administration of justice headed by the Chief Justice of the State. It is numbereworthy that on an allegation made in a transfer application the judge against whom the allegation is made is often afforded an opportunity of giving explanation by the higher companyrt and he can dispel any cloud that might have been cast on his fairness and integrity. The higher companyrt takes action for transfer after full companysideration of all the circumstances of the case including the report of the judge against whom the allegations are made. In this way it can well be said that cases in which applications for transfer are made stand on a slightly different footing from those where a party makes an allegation, either inside or outside the companyrt of a scandalizing nature imputing improper motives to the judge trying the case. The Allahabad High Court in Emperor v. Murli Dhar Another 1 was of the view that where an accused person in an application for transfer of a case made an assertion that the persons who had caused the Proceedings to be instituted were on terms of intimacy with the officer trying the case and, therefore, he did number expect a fair and impartial trial was number guilty of offence under s. 228, Indian penal Code, there being numberintention on the part of the applicant to insult the companyrt, his object being merely to procure a transfer of his case. It is true that. in the garb of a transfer application a person cannot be allowed to companymit companytempt of companyrt by making allegations of a serious and scurrilous nature scandalizing the companyrt and imputing improper motives to the judge trying the case. But then the nature of the allegations will have to be closely examined and so long as they do number satisfy the requirements of what May be regarded as companytempt of companyrt numberpunishment can possibly be inflicted. The appellant, in the present case, is an advocate and it is most unfortunate that though at the stage of the transfer application be made certain allegations in para 1 about the social intimacy between Jagiasi and Sarvashri Sayyid and Baadkar, the two judicial officers, with the apparent object of securing a transfer of the case he proceeded to take the highly ill-advised step of attempting to substantiate, the allegation so made. We are, however, number companycerned with any charge relating to the matters subsequent to the numberice which was issued by the High Court with regard.to the allegations for which punishment has been I.L.R. 8 All, 284. imposed on the appellant. That numberice on the face of it discloses numbersuch allegation which companyld be regarded as falling within the rule laid down by this Court and by a series of decisions of the Privy Council in which this head of companytempt i.e. scandalizing companyrt has companye up for examination. Most of those decisions have been referred to in the case of Perspective Publications P Ltd. 1 . In addition we may mention Debi Prasad Sharma Others v. Emperor 2 in which in a newspaper report the Chief Justice of a High Court was untruly alleged to have companymitted an ill-advised act in writing to his. subordinate judges asking them to companylect subscriptions for the War Fund.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 322 of 1971. K. Jain, for the petitioner. L. Mukhoty and G. S. Chatterjee, for the respondent. M. SHELAT, J. gave a dissenting opinion. The Judgment of R. KHANNA and K. K. MATHEW, JJ. was delivered by KHANNA, J. Shelat J., The order of detention impugned in this petition is as follows ORDER No. 97/C Dated 24-4-71 Whereas I am satisfied with respect to the person known as Shri Ananta Mukhi, Ananta Hari, son of Gobardhan, Gurai of Antpara, Chakbazir, P. S. Debra, Dt. Midnapore that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, I therefore in exercise of the powers companyferred by sub-section 1 read with sub-section 3 of section 3 of the West Bengal Prevention of Violent Activities Act, 1970 Presidents Act No. 19 of 1970 make this order directing that the said Shri Ananta Mukhi Ananta Hari be detained. Given under my hand and seal of office. Sd. - District Magistrate Midnapore The question which falls for determination in this petition is whether detention directed by an order which recites that it was made upon satisfaction of the District Magistrate that the person companycerned was acting in a manner prejudicial to the security of the State or the maintenance of public order is an order lawfully made. The argument was that the use of the disjunctive or, instead of the companyjunctive and, showed either that the detaining authority was number certain under which of the two grounds, namely, the security of the State or the maintenance of public order, he had reached his subjective satisfaction, impelling him to companysider the petitioners detention necessary, or that the order was passed mechanically, merely reproducing the language of sec. 31 1 without any application of mind as to whether the acts of the petitioner, actual or anticipated, were prejudicial to the security of the State or the maintenance of public order, or both. If it was the last, obviously, the order should have used the companyjunctive and, and number the disjunctive or. To appreciate the companytention, it would be necessary to understand the object and the scheme of the Act. By a Proclamation, dated March 19, 1970, made under Art. 356 of the Constitution, the President of India, being satisfied that a situation had arisen in which government in West Bengal companyld number be carried on in accordance with the provisions of the Constitution, assumed to himself the functions of government of that State and declared that the powers of the State Legislature shall be exercisable by or under the authority of Parliament. In pursuance of the said Proclamation, Parliament enacted, on April 29, 1970, the West Bengal State Legislature Delegation of Powers Act, XVII of 1970, under sec. 3 of which the State Legislatures power to make laws was companyferred on the President, who was empowered to enact, whether Parliament was in session or number, as Presidents Act a bill companytaining such provisions as he companysidered necessary. In exercise of the powers companytained in Act XVII of 1970, the President enacted the President Act XIX of 1970. Since that Act was enacted in exercise of and in accordance with the powers of the State Legislature, the Act providing for preventive detention companyld be passed in terms and within the scope of entry 3 of the Concurrent List in the Seventh Schedule to the Constitution, that is to say, for reasons companynected with a the security of that State, b the maintenance of public order, or c the maintenance of supplies and services essential to the companymunity. Act XIX of 1970 was enacted to provide for detention with a view to preventing violent activities and for matters companynected therewith. Sec. 3, the companystruction whereof is called for in this petition, by its first sub-section companyfers power to make detention orders against certain persons. That subsection reads as follows The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. Its second sub-section companytains a definition of the expression acting in any manner prejudicial to the security of the State or the maintenance of public order employed in sub-section 1 , and enumerates in clauses a to e diverse acts as falling within the said expression. That sub-section reads as follows For the purposes of sub-section 1 , the expression acting in any manner prejducial to the security of the State or the maintenance of public order means- a using, or instigating any person by words, either spoken or written, or by signs or by visible representations or otherwise, to use, any lethal weapon- to promote or propagate any cause or ideology, the promotion or propagation of which .lm50 affects, or is likely to affect, adversely the security of the State or the Maintenance of public order or to overthrow or to overawe the Government established by law in India. Explanation.-In this clause, lethal weapon includes fire- arms, explosive or companyrosive substances, swords, spears, daggers, bows and arrows or b companymitting mischief, within the meaning of section 425 of the Indian Penal Code, by fire or any explosive substance on any property of Government or any local authority or any companyporation owned or companytrolled by Government or any University or other educational institution or on an public building where the companymission of such mischief disturbs, or is likely to disturb, public order or c causing insult to the Indian National Flag or to any other object of public veneration, whether by mutilating, damaging, burning, defiling, destroying or otherwise, or instigating any person to do SO. Explanation-In this clause, object of public veneratio includes any portrait or statue of an eminent Indian, installed in a public place as a mark or respect to him or to his memory or d companymitting, or instigating any person to companymit any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 or the Explosive Substances Act 1908, where the companymission of such offence disturbs, or is likely to disturb, public order, or e in the case of a person referred to in clauses a to f of section 110 of the Code of Criminal Procedure, 1898, companymitting any offence punishable with imprisonment where, the companymission of such offence disturbs, or is likely to disturb, public order. Under sub-sec. 1 the satisfaction is regarding the necessity of preventing the person companycerned from acting in any manner prejudicial either to the security of the State or the, maintenance 12-L887 Sup CI/72 of public order. As the language of the sub-section stands, such satisfaction must be in relation to an activity, prejudicial either to the security of the State or the maintenance of public order, or in certain cases even both. Therefore, before the power of detention can be invoked the detaining authority must be satisfied that the activity of the person companycerned is such that it is either prejudicial to the security of the State or the maintenance of public order or both. Neither the expression security of the State number the maintenance of public order has been defined either in this Act or in the Preventive Detention Act, IV of 1950, or the Defence of India Act, 1952 and the Rules made thereunder, which earlier made provision for preventive detention. Unlike the previous enactments, sub-sec. 2 of s. 3 in the present Act, however, furnishes a dictionary for the expression acting in any manner prejudicial to the security of the State or the maintenance of public order, and then enumerates in cls. a to e certain categories of acts which would fall under the aforesaid expression. The definition, however, does number provide the meaning of the two companycepts security of the State, or, public order, and leaves the detaining authority to determine whether an act in question disturbs or is likely to disturb or endanger either of them, or both. It becomes necessary, therefore, to ascertain the canotation of these two companycepts as laid down in certain judicial pronouncements. Although those pronouncements were under the Preventive Detention Act of 1950, they would, nevertheless, apply to the present Act also, since by number providing any different definition the legislative authority must be presumed to have used the expressions, security of the State and the maintenance of public order, according to their well established meanings. In Dr. R. M. Lohia v. Bihar 1 , the impugned detention order was passed under r. 30 1 of the Defence of India Rules, 1962 which required satisfaction of the detaining authority that the person companycerned should be prevented from acting in a manner prejudicial inter alia, to the public safety and the maintenance of public order. The order impugned there stated that the authority was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the public safety and maintenance of law and order. After companysidering the earlier decisions on the question as to the meaning of the expressions, law and order, public order and security of the State, Hidayatullah, J., as he then was summed up as follows The District Magistrate acted to maintain law and order and his order companyld number be read differently even 1 1966 1 S.C R 709. if there was an affidavit the other way. If he thought in terms of public order he should have said so in his order, or explained how the error arose. A mere reference to his earlier numbere was number sufficient and the two expressions cannot be reconciled by raising an air of similitude between them. The companytravention of law always affects order but before it can be said to affect public order, it must affect the companymunity or the public at large. One has to imagine three companycentric circles, the largest representing law and order, the next representing public order and the smallest representing security of State. An act may affect law and order but number public order, just as an act may affect public order but number security of the State. Therefore, by using the expression maintenance of law and order the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules. These observations clearly bring out the distinction between the three companycepts, of law and order, public order and the security of the State, and the scope of each of them. The drawing up of imaginary companycentric circles helps companysiderably in delineating the distinction between one from the other and the area companyered by each of them. A similar distinction between the companycept of law and order and that of public order was drawn in Pushkar Mukherjee v. West Bengal 1 by a caution therein that the expression public order in sec. 3 1 of the Preventive Detention Act, 1950 did number take in every infraction of law. It was observed that the companytravention of any law always affects order, but before it-can be said to affect public order, it must affect the companymunity or the public at large. Mere disturbance of law and order leading to disorder is number necessarily sufficient for action under the Preventive Detention Act, which can only be invoked where there is apprehended a disruption of public order. The true distinction between the three companycepts lies, as pointed out in Arun Ghosh v. West Bengal 2 , in the degree and extent of the reach of the act in question upon society. Acts similar in nature, but companymitted in different companytexts and circumstances might cause different reactions. In one case, it might affect the problem of law and order, and in another, though similar in quality, of public order. see also Nagendra Nath Mondal v. West Bengal 3 . An act, such as companymunicating the defence secrets of a companyntry to an enemy companyntry, while number affecting the maintenance of law and order or public order, would affect adversely the security of the State. On the other hand, there may be activities which depending upon 1 1969 2 S.C.R. 635 2 1970 3 S.C.R. 288 Writ Petition 308 of 1971, decided. on 13-1-72. the degree of their effect and potentiality might affect all the three at the same time. The three companycepts have, thus, through a catena of decisions acquired well understood meanings, and though in some cases they might overlap to a certain extent, the distinction between them is fairly clear. When, therefore, statutes, such as the present one, companyfer power on an authority to deprive a citizen of his liberty, and bar at the same time any judicial scrutiny into the sufficiency of reasons for doing so, it is vital that the action depriving such liberty, without the usual trial, must number only companyply with the substantive but also the formal requirements of the statute companyferring such power, for, it is the latter which would show whether the former have been companyplied with. If the power, therefore, is exercised because a certain result, namely, danger to public order or the security of the State, is apprehended, the detaining authority ought to set out in clear terms both in the order and the grounds for detention upon which of the two apprehended results, or both, he is satisfied. Obviously, it would number be possible, without that being explicitly set out, for the person companycerned to make a representation, which is the only protection and safeguard given to him under such statutes. The detaining authority has, therefore, to carefully ascertain, in order to reach his requisite satisfaction, whether the activity in question, whether actual or expected, affects or is likely to affect any one of the two things, namely, public disorder, or danger to the security of the State or both, and state so clearly in the order. It may be that the activity in question might be such that it affects or is likely to affect one or the other, or both at the same time, in which case he can state that his satisfaction was as regards both. As is clear from the first subsection of sec. 3, that sub- section companyfers power to make detention orders against certain persons but its exercise is companyditioned by the satisfaction that if number detained, the activity of the person companycerned, actual or anticipated, will affect prejudicially either the security of the State or the public order, or both. The disjunctive or, used there, must mean that the required satisfaction is one or the other ground, or even both. But, unlike the, earlier Acts, which provided for preventive detention, the present Act furnishes in the second sub-section of sec. 3 a definition for the expression used in the first sub-section, namely, acting in any manner prejudicial to the security of the State, or the maintenance of public order, by setting out certain categories of activities which must be accepted as capable of affecting prejudicially the security of State or the public order. Using or instigating a person, orally or in writing, or by signs or verbal representation, or otherwise, to use any lethalweapon either i to promote or propagate a cause, or ideology, the promotion or propagation of which affects, as is likely to affect adversely the security of the State, or the maintenance of public order, or ii to overthrow, or overawe the Government established by law would, according to the definition in sub-sec. 2 , mean acting in a manner prejudicial to the security of the State or the maintenance of public order. It would seem from cl. a that acts of the kind mentioned in sub-cl. i would be regarded as prejudicial to public order or security of the State, as the case may be, while those mentioned in sub-cl. ii would be, regarded as capable of prejudicial to the security of the State. The language of cl. a itself suggests that besides the act being of the kind mentioned in sub-cl. i the authority must also be satisfied that the act there set out is one that affects, or is likely to affect adversely public order. Under cl. b , companymitting mischief, as defined in sec. 425 of the Penal Code, by fire or. explosive substance on the classes of property specified there, provided again that such mischief disturbs or is likely to disturb public order, would fall under the definition. Cl. b thus requires two ingredients, i that the act in question is mischief and is companymitted by fire or explosive substance on property of the kind set out there, and ii the satis- faction of the authority that the mischief is such that it affects or is likely to affect public order. Surely, setting fire to an educational institution, or a public building, reprehensible though it is, companyld number possibly have been intended to mean putting the security of the State in jeopardy. Ordinarily, it might number perhaps have been companysidered as an act necessarily disturbing or likely to disturb public order, but sec. 3 2 makes it so, in view of the extraordinary situation then existing in West Bengal, and the background in which the Act was passed. The result is that an activity of the kind set out in cl. b would be regarded as a ground for an order under sub-sec. 1 provided the detaining authority is satisfied that its effect, actual or likely, is disruption of public order. It will be numbericed that cl. b does number say that the effect of such an activity would prejudicially affect the security of the State, and refers only to public order. It is, therefore, manifest that cl. b does number intend the invoking of the power under sub-sec. 1 on the ground of any apprehension to the security of the State. On the other hand, acts specified in cl. c might affect public order, and in some cases, even the security of the State, depending upon their extent and potentiality. An insult to the National Flag or any other object of public veneration might result in disturbance of public order, or even security of the State, depending upon the circumstances, the degree of veneration for the object in question and other such factors, In such cases, the detaining authority would have to ascertain from the facts and circumstances of each case whether the act under companysideration was likely to affect one or the other, or even both. But cl. c is number intended to mean that every such act must, without anything more, be deemed to mean affecting both public order and security of the State. Activities set out in both cls. d and e also require satisfaction of the authority that they are such that they have either disturbed or tend to disturb public order. It is again numbericeable that both the clauses omit the expression security of the State. Such an omission must mean that those activities have a bearing on and relate to public order, and number to the security of the State. Subsec. 2 , by furnishing a dictionary to the expression acting in any manner prejudicial to the security of the State or the maintenance of public order enables the detaining authority to treat the specific categories of activities set out therein as activities capable of affecting the security of the State or the public order, and to invoke the power if it is satisfied that their effect, actual or likely, is adverse to either, or both of them, depending upon their extent or potentiality. Before, therefore, resorting to sub-sec. 1 , the authority has to be satisfied whether the act or acts alleged against the person companycerned fall under one or the other ground, viz., the security of the State or public disorder or under both. If the authority decides to make the order, it must state in it whether its satisfaction is on one or the other ground, or both. The mere fact that the acts in question are of any of the kinds mentioned in cls. a to e of sub-sec. 2 does number mean that they automatically and without anything more mean acting in a manner prejudicial to the security of the State as well as maintenance of public order. It can mean either one or the other, or even both, depending upon the satisfaction of the authority as to its effect on one or the other or both. But it was said that a companystruction companytrary to the one suggested above has been taken in Shyamal Mondal v. West Bengal 1 The impugned order there stated that the District Magistrate was satisfied that it was necessary that the petitioner should be detained with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order. The grounds for detention served on the detenu, as set out at page 674 of the report, show that the acts alleged against him and in respect of which the District Magistrate thought it necessary to detain him were a an attack on a passenger train by the petitioner and his associates, armed with bombs and explosives, with a view to catch their rivals, obviously political rivals, and to kill them, which injured some innocent passengers, b attack and assault on the guard of another train by the petitioner and his associates who were again armed with bombs and daggers, and c an attack by the petitioner and his associates, similarly armed, 1 1971 2 S.C.C. 672. on a police party at a railway station. All the three grounds mentioned the District Magistrates companyclusion that in each case there was disturbance of public order and panic and terror amongst the passengers. There was clearly numberreference to any danger or apprehension to the security of the State as the dimensions of the acts alleged were companyfined to the respective local areas, namely, the named railway station. The companytention raised was that the acts alleged against the detenu had, numberbearing on the security of the State, and that the order companytained, therefore, extraneous and irrelevant matters, namely, the apprehension to the security of the State, over which, by the very nature of the acts attributed to the petitioner, and the companyclusion stated by the District Magistrate in each of the grounds, he companyld never have reached his satisfaction. The companytention was repelled on the ground that the act itself furnishes a dictionary meaning for the two expressions and a perusal of clauses a to e clearly shows that any of the matters referred to therein will be both prejudicial to the security of the State or the maintenance of public order. With great respect, such a companystruction of the definition in sec. 3 2 would mean that any one of the activities enumerated in cls. a to e would fall under both the grounds, namely, the security of the State and the mainte- nance of public order, and therefore, it would number be necessary for the detaining authority to ascertain for his satisfaction whether the act for which he companysiders detention necessary is of the type or category which is or tends to be prejudicial to the security of the State or the maintenance of public order. In other words, any one of the acts set out in cls. a to e must be regarded as pre- judicial to both the security of the State and the maintenance of public order. If that is the meaning which is to be attributed to the definition in sec. 3 2 , the detention order, read in the light of the grounds of detention served on the petitioner there would appear to be number in accord with the realities. For instance, an attack on a train with the object of seizing political rivals and to eliminate them would, without doubt, be one that creates public disorder, but such public disorder affects persons in the area in which it is disturbed. So far as the first ground was companycerned, the attack was on a train. In the two other grounds, the areas affected were two railway stations. Would it, in the light of these companyfines, be realistic to say that the three alleged acts were such that they placed the security of the State of West Bengal in danger, or had even the ,tendency to do so ? Further, each of the grounds of detention, as framed by the District Magistrate himself, companytained his companyclusion that in each case there was disturbance of public order. Obviously, the satisfaction which he had reached was that the alleged acts were such that they disturbed or tended to disturb public order. Could such acts, which even according to the District Magistrate himself led to public disorder in a particular area, be said to have led to his satisfaction that they affected or tended to affect adversely the security of the whole State as well as the maintenance of public order ? If such a companystruction of s. 3 2 were to be accepted, it must lead to the result that every activity falling under any of the clauses a to e must be said to be one which actually affects or tends to affect both the security of the State as well as public order. In that case destruction of a private school, however, small in size, or an office of a village officer, once it fall within sec. 425 of the Penal Code, or companymitting or instigating an offence falling under cl. d , or cl. e affecting or tending to affect public order must also be regarded as affecting or tending to affect the security of the State and also as leading to the satisfaction of the detaining authority that it does or is likely to do. What sub-sec. 2 of sec. 3 does is that it companysiders any onto affect either the security of the State or public order, and bars a challenge that by its very nature it companyld number possibly lead an,, reasonable person to the satisfaction required by sub-sec. 1 . Use of or instigating to use a lethal weapon for the purpose mentioned in cl. a i would be a ground for detention if it either affects or is likely to affect adversely either the security of die State or public order, depending upon the potentiality and the extent of the act in question. Such use or instigation companyfined to a small number of persons or area might affect only public order. On a State-Wide potentiality, it might affect adversely even the security of the State. Indeed, such a distinction is expressed in sub-cls. i and ii of cl. a itself. The same can be said of all other activities set out in the other clauses. Under cl. c , causing insult to the national flag or any other object of public. veneration is regarded by that Clause as acting in a manner prejudicial to the security of the State or the maintenance of public order depending upon the circumstances, the reach or the potentiality of the act in question. Such an insult on a vast scale simultaneously companymitted might have, the effect of creating an upsurge in the whole State and thus affect the security of the State, let alone the public order. But, irrespective of such potentiality, the clause cannot mean that such an act by itself and without anything more must be deemed to fall under the mischief of both the kinds. The result of accepting such a companystruction would mean that once an act falls under any of the clauses a to e , even, if it affects or is likely to affect public order only must also be, held to affect or likely to affect the security of the State, thus, totally wiping off the difference between the two companycepts and their respective areas of influence. That companyld number be the intention underlying sub-sec. 2 of sec. 3. Taking all these circumstances into account together with the language of sub-sec. 2 , the companyclusion must be that the detaining authority must arrive at and express its satisfaction that the detenus activities, actual or likely in future, were such that they would affect either the security of the State or the public order or in some cases, by reason of their reach, even both. In this view, the companystruction urged by companynsel for the petitioner has. to be accepted and it must be held that the use of the disjunctive or in the impugned order rendered the order of detention vague and indefinite, indicative of the detaining authority having merely reproduced mechanically the language of sec. 3 1 of the Act. The detention, therefore, has to be held to be bad. The petition companysequently must be accepted and the petitioner be held entitled to his liberty forthwith. Order accordingly. Khanna, J. This is a petition through jail under article 32 of the Constitution of India for the issuance of a writ of habeas companypus by Ananta Mukhi alias Ananta Hari who has been ordered to be detained under section 3 of West Bengal Prevention of Violent Activities Act, 1970 Presidents Act No. 19 of 1970 , hereinafter referred to as the Act. The order of detention which was made against the petitioner reads as under 11 ORDER No. 97/C Dated 24-4-71 Whereas I am satisfied with respect to the person known as Shri Ananta Mukhl Ananta Hari son of Gobardhan Gurai of Antpara, Chakbazir, P. S. Debra, Dt. Midnapore that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, I therefore in exercise of the powers companyferred by sub-section 1 read with sub-section 3 of section 3 of the West Bengal Prevention of Violent Activities Act, 1970 Presidents Act No. 19 of 1970 make this order directing that the said Shri Ananta Mukhi Ananta Hari be detained. Given under my hand and Seal of office. Sd - District Magistrate Midnapore Soon after the detention order, the petitioner was found to be absconding. He was arrested on May 5, 1971 and was served with the order of detention along with the ground of detention and the vernacular translation thereof on the same day. On April 26, 1971 the District Magistrate of Midnapore reported to the State Government about the making of the detention order against the petitioner together with the grounds of detention and other necessary particulars. The said report and particulars were companysidered by the State Government and on May 4, 1971 the detention order was approved by the State Government. On the same day the State Government submitted a report to the Central Government together with the grounds of detention and other necessary particulars. The case of the petitioner was placed by the State Government before the Advisory Board on June 3, 1971. In the meanwhile, on May 20, 1971 the State Government received a representation of the petitioner dated May 13, 1971. The said representation was companysidered by the State Government and was rejected as per order dated June 2, 1971. The representation of the petitioner was then forwarded to the Advisory Board. The Advisory Board after companysidering the material before it, including the representation of the petitioner, and after hearing him in person, sent its report to the State Government on July 8, 1971. Opinion was expressed by the Advisory Board that there. was sufficient cause for the detention of the petitioner. By an order dated July 16, 1971 the State Government companyfirmed the order of detention of the petitioner. The petition has been resisted by the respondents and the affidavit of Shri Manoranjan Dey, Assistant Secretary, Home Special Department, Government of West Bengal has been filed in opposition to the petition. We have heard Mr. R. K. Jain who has argued the case amicus curiae on behalf of the petitioner and Mr. G. L. Mukhoti on behalf of the State. One of the companytentions advanced by Mr. Jain is that the detaining authority has taken into companysideration facts extraneous to section 3 of the Act in making the order of detention, and therefore the said order is illegal. In this respect we find that in the grounds of detention which were supplied to the petitioner under sub- section 1 of section 8 of the Act, the following particulars were mentioned That on 4-10-69, at about 21-30 hrs., you along with 50/60 Naxalite supporters being am- led with lethal weapons raided the house of Shri Pulin Bihari Maiidal of Bhuiyabasan, P. Debra in order to kill him. The house owner somehow managed to save his life. You and your associates then looted cash, orna- ments, utensils and other properties worth about Rs. 10,000 from the house. That on 8-11-69, at about 20.00 hrs., you along with 20/22 Naxalite workers armed with lethal weapons raided the house of Shri Bistu Pada Bhuiya of Radhakantapur, P. S. Debra and killed his two brothers named Madan Bhuiya and Kshudiram Bhuiya by sharp cutting weapons. You and your associates also looted ornaments and other articles from the house. It would appear from the above that according to the grounds of detention, the petitioner along with 50/60 other persons armed with lethal weapons raided the house of Pulin Bihari Mandal on October 4, 1969 at night time and looted cash, ornaments, utensils and other properties worth Rs. 10,000 from the house. It is further alleged that on November 8, 1969 at about 10 p.m. the petitioner along with 20/22 associates armed with lethal weapons raided the house of Bistu Pada Bhuiya of Radhakantapur and killed his two brothers Madan Bhuiya and Kshudiram Bhuiya by sharp cutting weapons and also looted ornaments and other articles from the house. The above facts would show that the case against the petitioner was companyered by clause d of subsection 2 of section 3 of the Act. Sub-sections 1 and 2 of section 3 of the Act read as under The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. For the purposes of sub-section 1 , the expression acting in any manner prejudicial to the security of the State or the maintenance of public order means- a using, or instigating any person by words, either spoken or written, or by signs or by visible representations or otherwise, to use, any lethal weapon- to promote or propagate any cause or ideology, the promotion or propagation of which affects, or is likely to affect, adver- sely the security of the State or the main- tenance of public order or to overthrow or to overawe the Government established by law in India. Explanation.-In this clause, lethal weapon includes fire-arms, explosive or companyrosive substances. swords, spears,daggers, bows and arrows or b companymitting mischief, within the meaning of section 425 of the Indian Penal Code, by fire or any explosive substance on any property of Government ,or any local authority or any companyporation owned or companytrolled by Government or any University or other educational institution or on any public building. where the companymission of such mischief disturbs, or is likely to disturb, public order or c causing insult to the Indian National Flag or to any other object of public veneration, whether by mutilating, damaging, burning, defiling, destroying or otherwise, or instigating any person to do so. Explanation.-In this clause, object of public veneration includes any portrait or statue of an eminent Indian, installed in a public place as a mark of respect to him or to his memory or d companymitting, or instigating any person to companymit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act 1959 or the Explosive Substances Act, 1908, where the companymission of such offence disturbs, or is likely to disturb, public order or e in the case of a person referred to in clause a to f of Section 110 of the Code of Criminal Procedure, 1898, companymitting any offence punishable with imprisonment where the companymission of such offence disturbs, or is likely to disturb, public order. The first allegation discloses that the petitioner and his associates were guilty of dacoity, while the second allegation shows that at the time of the companymission of the offence of dacoity, the petitioner and his associates also murdered two persons. As such, according to the grounds of detention, the petitioner and his associated companymitted offences punishable with death imprison- ment for life or imprisonment for a term extending to seven years or more. The aforesaid activities of the petitioner, according to the affidavit of Shri Manoranjan Dey, disturbed public order and the petitioner became a terror to the residents of the locality. We see numbercogent ground to take a different view. It is obvious that when such a large number of persons, who were stated to be Naxalite workers, armed with lethal weapons companymit the offence of dacoity and dacoity with murder, such offences disturb or are likely to disturb public order. According to subsection 1 of section 3 of the Act, the State Government may, if so satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. Sub-section 3 empowers a District Magistrate to exercise the powers, if so satisfied, companyferred by sub-section 1 . The activities of the petitioner as mentioned in the grounds of detention, in our opinion, show that they were number of an extraneous character but fell within the expression acting in any manner prejudicial to the security of State or the maintenance of public-order as defined in sub-section 2 of section 3 of the Act. The second submission of Mr. Jain is that the order of detention made by the District Magistrate shows that he has number duly ,applied his mind before making the detention order as according to the order the petitioner was detained with a view toPreventing him from acting in any manner prejudicial to the security of ,the State or the Maintenance of public order. It is urged that the District Magistrate should have specified in the order as to whether it was necessary to detain the petitioner from acting in any manner prejudicial to the security of the State or whether it was necessary to detain him from acting in any manner prejudicial to the maintenance of public order. The District Magistrate, according to the learned companynsel, companyld have also, if facts so warranted, passed an order for detention of the petitioner on both the above grounds but he companyld number make an indefinite order by using the word or in the same and stating that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order. The order, it is stated, is a mechanical reproduction of the statute and shows that there was number due application of the mind before the order was made. The above companytention has been resisted by Mr. Mukhoti and, in our opinion, is number well founded. We have reproduced subsection 2 of section 3 of the Act earlier and it would appear therefrom that a companyprehensive definition has been given of the expression acting in any manner prejudicial to the security of the State or the maintenance of public order. The definition shows that the whole thing has been clubbed together and numberseparate definitions have been given, one in respect of acting in any manner prejudicial to the security of the State and another in respect of acting in any manner prejudicial to the maintenance of public order. The various acts which have been specified in the different clauses of sub-section 2 of section 3 fall within the companypendious expression acting in any manner prejudicial to the security of the State or the maintenance of public order, and it would number, in our opinion, introduce an infirmity in the detention order if it is stated therein that it is necessary to detain a detenu with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of Public Order. It is numberdoubt true that if a statute mentions different grounds for the detention of a person, the order of detention should specify distinctly the ground or grounds for which the detenu has been ordered to be detained and it would number be permissible to state that the detenu has been ordered to be detained for ground a or ground b . The use of the word or would show in cases falling under such a statute, an element of casualness in the making of the order as held by this Court in the case of Jagannath Misra State of Orissa. 1 The detenu in that case had been ordered to be detained under rule 30 1 b of the Defence of India Rules, 1962 and according to the order of detention, the order had been made with a view to preventing the detenu from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of 1 1966 3 S.C.R. 134, public order, Indias relations with foreign powers, the maintenance of peaceful companyditions in any part of India or the efficient companyduct of military operations. This Court observed There is another aspect of the order which leads to the same companyclusion and unmistakably shows casualness in the making of the order. Where a number of grounds are the basis of a detention order, we would expect the various grounds to be joined by the companyjunctive and the use of the disjunctive or in such a case makes numbersense. In the present order however we find that the disjunctive or has been used, showing that the order is more or less a companyy of s.3 2 15 without any application of the mind or the authority companycerned to the grounds which apply in the present case. The above principle would, however, number apply in the case of a person ordered to be detained under the Act with which we are dealing because of the special definition given in sub- section 2 of section 3 of the Act of the expression acting in any manner prejudicial to the security of the State or the maintenance of public order. According to the definition, each one of the activities mentioned in the various clauses of the said sub-section companystitutes an act prejudicial to the security of the State or the maintenance of public order. The presence of the word or in the definition itself tends to show that the use of that word in the order is number impermissible and there was numberelement of casualness or absence of due application of the mind in the making of the, impugned order. In the case of Dr. Ram Manohar Lohia v. State of Bihar and Ors. 1 , this Court while expounding the words maintenance of public order observed 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 the security of the State. The above observations were relied upon by this Court in the subsequent case of Madhu Limave v. Sub-Divisional Magistrate, Monghyr and Ors. 2 and it was observed 1 1966 1 S.C.R. 709. 2 1970 3 S.C.R. 746. .lm15 The expression public order includes absence of all acts which are a danger to the security of the State and also acts which are, companyprehended by the expression order public explained above but number acts which disturb only the serenity of others. In the case of State of West Bengal v. Ashok Dey Ors. etc. etc. Cr. Apptal No. 217 to 223 of 1971 decided on November 19, 1971 while dealing with different clauses of section 3, this Court observed That, disturbance of public order in a State may in turn prejudicially affect its security, is also undeniable. Fairly close and rational nexus between these clauses and the maintenance of public order and security of the State of West Bengal is writ large on the face of these clauses. It would follow from the above that though all activities prejudicial to the security of the State and those which are prejudicial to the maintenance of public order are number identical, because of close nexus between maintenance of public order and security of State, there is bound to be some overlapping. As the expressions acts prejudicial to the maintenance of public order and acts prejudicial to the security of the State have number been separately defined but have been put together in the same definition with the disjunctive or in between them, the use of the word or in the detention order would number, in our opinion, so adver- sely affect the said order as may justify the quashing of that order. We are fortified in the above companyclusion by a recent decision of this Court in the case of Shyamal Mondal v. State of West Bengal 1 . In that case too the impugned order of detention stated that the District Magistrate was satisfied that it was necessary that, the petitioner should be detained with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order as provided by section 3 1 ,of the Act. Argument was advanced on behalf of the detenu that the order of detention was illegal inasmuch as the petitioner had number been informed as to how his A.I.R. 1971 S.C. 2384. activity was prejudicial to the security of the State. It was pointed out that as both the matters, namely, the maintenance of public order and the security of the State had been mentioned in the order of detention, it must be taken that the detaining authority had taken into account extraneous and irrelevant matters in passing the order of detention. It was further submitted that it was number clear whether the detaining authority passed the order to prevent the detenu from acting in any manner prejudicial to the security of the State or for maintenance of public order. The above companytentions were repelled by this Court and reliance was placed upon the definition given in subsection 2 of section 3 of the expression acting in any manner prejudicial to the security of the State or the maintenance of public order. It was observed It will be seen that the Act itself furnishes a dictionary meaning for the two expressions and a perusal of clauses a to e clearly shows that any of the matters referred to therein will be both prejudicial to the security of the State or the maintenance of public order. We are number inclined to accept the companytention on behalf of the petitioner that it is only sub-clause 1 of clause a of section 3 2 which deals with the matters, which adversely affects the security of the State. In fact that very sub-clause refers to the matters mentioned therein as affecting the security of the State or the maintenance of public order. Therefore, in this case the grounds of detention cannot be held to be vague number can the order of detention be held to be invalid on the ground that the petitioner must have been detained only to prevent him from acting in any manner prejudicial to the maint enance of public order and number to the security of the State. Although an attempt was made to assail the companyrectness of the above view, we find, for reasons stated earlier, numbercogent L887SupCI/72 ground to take a different view. The result is that the petition fails and is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 279 of 1967. Appeal by special leave from the judgment and decree dated September 15, 1966 of the Allahabad High Court in Second Appeal No. 222 of 1960. N. Dikshit and O. P. Rana, for the appellants. C. Agrawala, for respondents Nos. 1, 2, 4 and 5. The Judgment of the Court was delivered by Beg, J. There are two appeals by Special Leave before us, Leave, against the Judgment and decree of a learned Judge of the Allahabad High Court allowing a plaintiffs second appeal The plaintiffs case was that the Government of Rampur had given him a house under the orders of His Highness the Nawab of Ramur, passed on 23rd June, 1945. It appears that, after the merger of Rampur State in Uttar Pradesh in 1949, when Rampur became a district of Uttar Pradesh, this house was given by the Government of Uttar Pradesh to the Municipal Board of Rampur, Defendant-Appellant, which demanded rent from the plaintiff by numberice. On the plaintiffs refusal to pay, the house was attached on 23rd February, 1955. The plaintiff deposited a sum of Rs. 100- under protest. He then filed his suit, on 26-10-56, for a declaration that he is the owner in possession of the house, and, in the alternative, that he is a licensee entitled to remain in possession of the house for life without payment of rent The defendants, the State of Uttar Pradesh, the Municipal Board of Rampur, and the Public Work. Department at Rampur, denied the alleged gift of either the ownership or of a life-interest in the house to the plaintiff. They also pleaded that there was numberrelationship of landlord and tenant between the plaintiff and the defendants. Their case was that, if any permission to reside in the house was given to the plaintiff by the ruler of the State of Rampur before the merger of Rampur with Uttar Pradesh, it was valid and effective only so long as the plaintiff was in the service of the former ruler of Rampur. They set up a claim to damages for use and occupation in the form of rent from the plaintiff at Rs. 10/- per month from 1-4-1953 to 30-1- 1954. According to them, the plaintiffs licence, if any, automatically terminated when the State of Rampur merged with the State of Uttar Pradesh. The defendants had also pleaded that the alleged gift, which was number governed by Mahomedan law, companyld number be upheld because numberregistered deed of gift was executed to transfer a house the value of which was far in excess of Rs. 100/-. The Trial companyrt as well as the first Appellate Court bad found, after ,in examination of all the evidence, including the alleged order dated 23rd June 1945, of His Highness the Nawab of Rampur Exhibit 1 , a letter dated 30th June 1949 ,Exhibit A-10 from a Minister of Rampur State to the Secretary Buildings , fixing rent for the house and the oral evidence that the plaintiff had number proved either of the two alternative claims set. up by him. A learned Judge of the Allahabad High Court had, upon the plaintiffs second appeal, reversed the companycurrent findings of fact recorded by the Courts below because the learned Judge thought that the order of the Nawab of Rampur dated 23rd June 1945, companystituting a valid declaration of a gift, by the owner of the house, followed by the plaintiffs admitted actual possession of the house companyferred ownership of the house upon the plaintiff-respondent according to Mahomedan law. The learned Judge also held that numberhing beyond this order of the Nawab companyld be looked into for deciding what was intended by the Nawab and that the use of the words inteqal and atta in the following extract from the order in Urdu determined the intent of the Nawab companyclusively. Ap ki sakunat ke waste Abdul Karim Sabib wala makan atta farmaya gaya hai. Ap aj hi us me muntaquil ho jayen Ap un se mil kar inteqal niaka.1 ki karrawai kariye. The questions arising before us for decision are firstly, whether the alleged gift is governed by Mahomedan Law secondly, whether the requirements of Mahomedan law for establishing a gift of the house or of its usufruct for life to the plaintiff companyld be held to have been satisfied in this case and, thirdly, whether numberhing beyond the order of 23-6-1945 companyld be looked into to determine the Nawabs intention. One companyld legitimately presume that a gift by the Nawab of Ranipur, a Muslim, would be governed by the rules of Mahome- dan law if the Nawab was dealing with his own private property. In the case before us, we find that the plaintiff himself has pleaded that he acquired his right and title to the house in dispute from the Government of Rampur State, although the action of the Government was said to be under the orders dated June 23, 1945, of His Highness the Nawab of Rampur. Upon an examination of the alleged order, which has been treated by the learned Judge of the Allahabad High Court as a valid declaration of a gift of the house by its owner, governed by Mahomedan law, we find that it is only a piece of information sent. to the plaintiff who is described as Nigran Shikar Mahi or Supervisor of Fishing. The companymunication, translated in English in the paper book of this Court, reads as follows His Highness has passed orders that you should immediately vacate the house in which you reside and pay up to the landlord all his dues. Abdul Karim wala house has been given to you for your residential purpose. You should shift to that house this very day. The Executive Engineer Buildings has been intimatto allot the said house to you immediately. Please companytact him and take steps to va cate the house. The plaintiff himself had produced Agha Khan, the Assistant Military Secretary of the Nawab of Rampur, who had signed and sent the companymunication, set out above, to the plaintiff. His evidence shows that the Nawab of Rampur had probably given some oral order to get the private house in which the plaintiff was living vacated, and to give another House to him for residence. Under cross-examination, the witness stated that, by using the word inteqal in the writing, he meant to companyvey that the plaintiff should leave that house and live in the house in dispute. This witness, who was number owner of the house, companyld number gift the house in dispute to the plaintiff. He companyld only give the house to the plaintiff in the sense that he companyld, under the Nawabs orders, obtain its allotment for the plaintiff. He said that its previous occupant, a mechanic, was also occupying it, without payment of any rent, with the Nawabs permission. The implication of such a statement companyld only be that the plaintiff had a similar permission. He did number depose that the Nawab had asked him to inform the plaintiff that the Nawab was making a gift of the house to the plaintiff. The witness stated that the house belonged to the Government of Rampur. All this evidence is companysistent with the view that the Nawab meant to do numberhing more than to resolve the immediate difficulty of the plaintiff, by giving him some free residential accommodation in a house owned by the Government so that the plaintiff companyld clear up his dues to his landlord, rather than with the companyclusion that the Nawab intended to companyfer the ownership of the house on the plaintiff. It is well established that a document must be read as a whole. In a document meant for a transfer of ownership, the purpose is generally stated clearly to be that the property given will be owned and possessed henceforth by the donee in such a way that he companyld use it or deal with it as he liked. The only karawai or proceeding, to which a reference is made in the document, seemed to be allotment of accommodation or transfer of plaintiffs residence into another house, owned by the State, for which appropriate steps were to be taken by a Government official. The companymunication savs, as translated, that the Executive Engineer Buildings had been informed that the house in question was to be allotted to the plaintiff. If the plaintiff was to become its owner, that would have been companymunicated to the Executive Engineer. A transfer of ownership would, in the ordinary companyrse, be expected to be evidenced by much more clear and unequivocal language. The appropriate proceeding after a gift is that of mutation in Municipal records. No evidence was given of any mutation in a Municipal record showing transfer of ownership of the companypus for which the term milkiyat is used. It is true that, as the learned Judge observed, the word Inteqal is used ill companynection with a transfer of property. This is so when it occurs in juxtaposition with Jaidad. In the document before us, the following words indicate that transfer which the Nawab had in mind was that of the plaintiff himself to another residence in the physical sense Ap aj hi us me muntaqil ho jayen. This meaning is further emphasised by the use of the words sakunat ke waste for residential purpose which was the only stated object of the inteqal. Again, the word atta is used to denote all kinds of grants. The grant may be of a license or of ownership of property. The word atta companyld be used by a companyrtier, as a matter of form, to indicate anything granted by the Nawab whether it be mere permission to live in a house or something more. If the intention of the Nawab was to grant ownership, the language used to companymunicate it would number have left it in doubt. It is significant that the plaintiff, who stated in his evidence that the gift was meant to have been made in lieu of old services, had number mentioned this object of the alleged donation in his plaint. It is also evident that he was number sure of his own rights or position because he took up an alternative case of a gift of the right to live in the, house for life. We do number find the word hibba or gift used at all in this document. Nor is the word amree or any other similar word, which companyld companynote a life estate, used in the document. There being numbermention either of rights of ownership or those of a life-estate holder, the mere use of the words inteqal and atta does number determine, as the learned Judge assumed, what was really meant to be granted or transferred. We think that oral and other evidence, besides the document under companysideration, was both necessary and admissible under Proviso 6 to Sec. 92 of the Indian Evidence Act to resolve a latent ambiguity caused by the two vague words used in it and to show how its language was related to the existing facts even if one were to assume that the information companytained in it was meant to reduce the terms of a grant to the form of writing. Upon the view we are taking of the facts of this case, it is number necessary for us to embark on any detailed discussion of essentials of a gift under the, Mahomedan law. It is enough to point out that even if the rules of Mahomedan law were to be applied to the transaction before us the very first of the three companyditions of a valid gift, given in Mullas Principles of Mahomedan Law 16th Edn. p. 141 that of a declaration of gift by the donor is lacking here. Such a declaration must indicate, with reasonable clarity, what is really gifted. It is also number necessary for us to deal with the distinction between separable gifts of the companypus and the usufruct, recognised by Mahomedan law, which references to Amjad Khan v. Ashraf Khan and Nawazish Ali Khan v. Ali Raza Khan 2 would disclose. After an examination of all the admissible evidence, relating to the nature of the transaction set up by the plaintiff, which should have been companysidered, we are satisfied that the plaintiff failed to, prove either a grant of the companypus or of the usufruct of the house to him for his life by its owner. The transaction before us would amount to numberhing more than the grant of a license, revocable at the Grantors option to reside in the house so long as the grantor allowed the licensee to do so. Such a grant is known as areeat in Mahomedan law See Mullas Principles of Mahomedan Law, Sixteenth Edition, page 166 .

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 274 of 1971. Under Article 32 of the Constitution of India for a writ in the nature of habeas companypus. N. Goswami, for the petitioner. N. Mukherjee and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Shelat,J. The order of detention,dated April 7, 1971, passed against the petitioner herein and in pursuance of which the petitioner was arrested and detained in jail the next day, recites that it was passed under sec. 3 1 and 3 of the West Bengal Prevention of Violent Activities Act, Presidents Act 19 of 1970, the ground for which was that the District Magistrate, 24 Parganas, who passed it, was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. The grounds of detention served on him at the time of his arrest narrated three incidents in which he was said to have been involved. The first ground was that on November 13, 1970 he, together with some others, companymitted theft of companyper traction wire from a wagon lying in Naihati South Yard, and that when the railway police and the railway protection force on duty rushed at the spot, the petitioner and his associates threw bombs at them with intent to kill them. The second ground was that on December 23, 1970, the petitioner and his associates were removing 29 pieces of rail from the same railway yard and when the members of the railway protection force attempted to stop them from doing so, the petitioner and his said associates threw bombs at them with intent to kill them. The third and the last ground was as follows That on 13-1-71 in between 12.00 and 12.20, hours, you along with your associates being armed with bombs, swords, lathis, etc. entered in a clash with, another group with a view to kill them. Your violent activities created a serious panic in the station area and disturbed the public order. From the Dum Dum Central Jail where the petitioner was detained he made a representation, dated April 29, 1971, to the State Government. That representation together with the record of the case was placed before the Advisory Board, who it appears, also heard the petitioner in person. The representation, dated April 29, 1971 was in general terms in which the petitioner denied the said grounds alleged against him, and maintained that he was a law abiding citizen who never indulged in activities of the kind alleged against him. The Board, after companysidering the said representation, the said record of the case and after hearing him, as aforesaid, reported that there was, in its opinion, sufficient cause for his detention. It seems that thereupon the Government companyfirmed the said detention order and directed companytinuation of his detention thereunder. So far there does number appear to be any difficulty as all the steps following the petitioners arrest appear to have been taken by the detaining authority in companypliance with the provisions of the Act. But two questions have been raised before us on behalf of the petitioner. The first was raised by the petitioner himself in the written arguments submitted by him to this Court from jail and the second was raised by his companynsel during the companyrse of ,the hearing of the petition. The point raised by the petitioner was in regard to ground No. 2 in the grounds of detention in which it was alleged that the petitioner participated in the incident said to have taken place on December 23, 1970. The petitioners allegation was that on January 1, 1971 the Naihati G.R.P. police appeared before, the Magistrate, Sealdah, stating that the petitioner was arrested in a police case referred to as Naihati G.R.P. Case No. 11, dated November 23, 1970 under sees. 148, 379 and 307 of the Penal Code and sec. 6 3 of the Explosive Substances Act, but that the Magistrate, after companysidering the facts and circumstances of the case, released him on bail. That case, according to the petitioner was still pending. The companytention was that the authorities, having elected to institute proceedings against him under the Code of Criminal Procedure, companyld number, while those proceedings were still pending, also take parallel proceedings under the present Act thereby placing, firstly, the petitioner under a double jeopardy, and secondly, companyducting investigation in that case without that investigation being under the companyrts supervision and companytrol. The argument was that if the petitioner were to be kept under preventive detention under the present Act it would number be necessary as, it would otherwise be, for the police to ask for remand orders and produce the petitioner before the Magistrate whenever such orders were prayed for. The detention order and the detention thereunder, it was argued, were on the aforesaid two grounds invalid. The second companytention companycerned the third ground of the grounds of detention and related to the alleged incident, dated January 13, 1971, when the petitioner and his associates who were armed with bombs, swords, lathis etc. were said to have clashed with another group. In the written arguments submitted by the petitioner from jail, the petitioner made a general denial stating that, if such an incident had occurred and he had been involved in it the police were bound to file a case against him but that numbersuch case was filed which indicated that he had numberhing to do with the alleged incident, and had been falsely involved in it. Counsel appearing for him raised another point, and that was that ground No. 3 was vague and uncertain and was companyched in such indefinite language that it would be impossible for the petitioner to effectively make a representation. We proceed to companysider this companytention first because in the view we take companycerning it would number be necessary for us to go into the companytention regarding ground No. 2 of the grounds of detention. Ground No. 3, numberdoubt, specifies the date and the time when the incident alleged therein was said to have taken place. It also alleges that the petitioner and his associates were armed during the alleged incident with weapons such as bombs, swords, lathis etc., and that they had a clash with another group, and that incident created a serious panic in the station area. The ground does number state what the authority meant by another group, number does it state in which station area the said alleged incident was said to have taken place resulting in panic. It will be seen that the first and the second grounds mentioned two incidents of theft said to have been companymitted in the yard of the Naibati railway station. The question is, in the absence of any particulars as to the place where the incident alleged in the third ground took place, what would the expression station area mean to the petitioner, and whether the petitioner would number get the impression that the District Magistrate meant thereby Naihati railway station or Naihati police station area. In his representation, the petitioner merely denied all the three grounds and maintained that he had numberconcern with any of the three incidents alleged in the grounds of detention. In his written arguments submitted to this Court he, firstly, denied having anything to do with the incident of January 13, 1971 And then proceeded to state that all those allegations were made falsely against him by the Naihati railway police, and that they were false because if the said alleged incidents had in fact occurred the police were bound to launch proceedings against him. He further asserted that at any rate, the local police, that is, the Naihati police, were bound to make some record of them in the general diary maintained by the said police station. It is, thus, clear that the petitioner was under the impression, in the absence, of the place or the locality where the said incident was said to have taken place, according to the District Magistrate, either in Naihati railway Station or the area under the jurisdiction of Naihati police station. Such an impression, it appears, was likely because when read in the companytext of the first and the second grounds, the reader of the third ground in the absence of any particulars as regards the -L887 Sup Cl/72 locality where the said alleged incident took place, might well infer the locality there alleged must be Naihati railway station area. That such was the impression of the petitioner appears from the assertion made by him in Para 6 of his written arguments that the allegations in respect of all the grounds were made against him by Naihati Railway police, and that those were false because neither they number the Naihati Police made any reference to them in the general diaries maintained by them, number lodged any companyplaint against him. In Para 7 of the affidavit in reply of the State, the averment for the first time made was that the alleged incident of January 13, 1971 took place number in Naihati Railway Station area but at Palta Railway Station which resulted in panic in the said station area and disturbed public peace and tranquility. Apart, thus, from ground No. 3 in the grounds of detention being vague by reason of its omission to mention the locality, there was in the companytext of the other two grounds a likelihood of the petitioner, being under a wrong impression that according to .he District Magistrate the incident there alleged had taken place in Naihati Railway Station area. That being so, it is obvious that the petitioner companyld number make a companyrect and proper represen- tation which must mean that the omission to mention the locality prevented him from effectively making a representation. The omission to specify the group with whom the petitioner and his associates came into clash also renders that ground vague and indefinite, resulting once again in disabling the petitioner from effectively making a representation. Suppose that the petitioner wanted to maintain that on January 13, 1971 he was never at or near Palta Railway Station or that the group with whom he was said to have clashed was his own group or was friendly with him, and therefore, there was numberpossibility of any such clash. He companyld number obviously have been able to do so in the absence of particulars about the locality and the name or description of the said group. The result of those omissions being to prevent the petitioner from effectively making representation, his detention under the said order must be found to be invalid. The petition, for the reasons aforesaid. succeeds and is allowed. Accordingly we direct that the petitioner be released from jail and set at liberty forthwith.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2024 and 2025 of 1972. K. Daphtary, R. C. Misra, Advocate-General for the State of Orissa, Santosh Chatterjee and G. S. Chatterjee, for the appellants in both the appeals . C. Setalvad and Vinoo Bhagat, for respondent No. 1 in A. No. 2024 of 1971 . Vinoo Bhagat, for respondent No. 1 in C.A. No. 2025 of 1971 . The Judgment of the, Court was delivered by Hegde, J. These appeals by certificate raise companymon questions of law for decision. The questions of law arising for decision can be more companyveniently brought out if the material facts are first set out. It is sufficient, if we refer to the facts in Civil Appeal No. 2024 of 1971. The 1st respondent in Civil Appeal No. 2024 of 1971 is carrying on the business of selling companyntry liquor. In pursuance of the order made by the State of Orissa, the Excise Commissioner numberified on January 8, 1971 that the exclusive privilege of selling by retail the companyntry liquor in the eight specified shops in the Cuttack District for the period from April 1, 1971 to March 31, 1972 will be sold by public auction on February 15, 1971 and on the following days. The auction was accordingly held on the numberified day. The 1st respondent was the highest bidder for those eight shops. His bids were provisionally accepted by the Collector subject to companyfirmation by the Government. The Government rejected those bids being of the view that inadequate price had been offered as a result of companylusion between the bidders. It ordered the Excise Commissioner to call for tenders in respect of those shops. After the tenders were duly received, the Government accepted the tender in respect of one shop and rejected the other tenders as it was again of the opinion that the price offered was inadequate. Thereafter it sold the seven shops by negotiating with some of the tenderers. The price ultimately fetched was substantially more than that offered either at the auction or as per tenders. Thereafter the 1st respondent moved the, High Court of Orissa under Art. 226 of the Constitution for a direction to the Government to companyfirm his bids and cause the necessary licences to be issued to him. Various pleas were taken in support of the relief asked for. Such of them that were pressed before us will be referred to later. The Government resisted that application. The High Court came to the companyclusion that the Government had numberpower to refuse to companyfirm the bids of the highest bidders except on good grounds and the ground that had companymended itself to the Government for refusing to companyfirm the bids were irrelevant. It also opined that the absolute power companyferred on the Government to companyfirm or refuse to companyfirm the highest bids without giving any reason was an unguided power and companysequent by violative of Arts. 14 and 19 1 g of the Constitution. The High Court was further of the opinion that monetary companysiderations were irrelevant for deciding the question whether the highest bid should be companyfirmed or number. Aggrieved by that decision, the State of Orissa has companye up in appeal. Before proceeding to pronounce on the companytentions advanced at the hearing, it is companyvenient to set out the relevant provisions of law as well as the orders passed by the Government under S. 29 of the Bihar and Orissa Excise Act, 1915 as amended upto October 6, 1970 to be hereinafter referred to as the Act . The preamble to the Act reads Whereas it is expedient to amend and reenact the law in the Province of Bihar and Orissa relating to the import, export, transport, manufacture, possession, and sale of certain kinds of liquor and intoxicating drugs And whereas the previous sanction of the Governor-General has been obtained,, under section 5 of the Indian Councils Act, 1892, to the passing of this Act It is hereby enacted as follows Section 22 deals with the grant of exclusive privilege of manufacture and sale of companyntry liquor or intoxicating drugs. To the extent it is material for our present purpose, it reads The State Government may grant to any person, on such companyditions and for such period as it may think fit, the exclusive privilege- a b c d e of manufacturing and supplying wholesale and selling retail, any companyntry liquor or intoxicating drug within any specified local area Provided that public numberice shall be given of the intention to grant any such exclusive privilege, and that any objections made by any person residing within the area affected shall be companysidered before an exclusive privilege is granted. Sub-s. 2 says No grantee of any privilege under sub-s. 1 shall exercise the same unless or until he has received a license in that behalf from the Collector or the Excise Commissioner. Section 29 deals with payment for grant of exclusive privilege. It reads Instead of or in addition to, any duty leviable under this Act, the State Government may accept payment of a sum in companysideration of the grant. of any exclusive privilege under section 22. The sum payable under sub-s. 1 shall be determined as follows a by calling tenders or by auction or otherwise as the State Government may, by general or special order direct- and b by such authority and subject to such companytrol as may be specified in such order. Excise revenue is defined in s. 2 9 Excise-revenue means revenue derived or derivable from any duty, fee, tax, payment other than a fine imposed by a Criminal Court or companyfiscation imposed or ordered under this Act or any other law for the time being in force relating to liquor or intoxicating drugs and includes any payment to be made to the State Government under s. 29. In exercise of the powers companyferred by s. 29 2 of the Act, the State Government issued an order on January 6, 1971 directing that any sum payable under the aforesaid section for grant of the exclusive privilege of manufacturing and selling by retail of companyntry liquor shall, unless otherwise directed by the State Government, in any particular case or cases for any reason, be determined by auction to be held in accordance with the procedure specified below the dates and centers for the auction shall be fixed and numberified by the Excise Commissioner with the prior approval of Government and the Collector shall then issue numberice for auction and give wide publicity to the same in such manner as he companysiders necessary, 15 days before the date fixed for companymencement of the auction the auction shall determine the amount of monthly companysideration money and shall ordinarily be companyducted by the Collector and in his absence by the Additional District Magistrate Provided that the State Government in by depute an officer from head-quarters to aid and advise the officer companyducting such sales the officer companyducting the auction may satisfy himself as to the solvency of any bidder and may number allow a person of doubtful solvency or a person to whom grant of a licence for retail sale of any intoxicant is prohibited under Orissa Excise Rules, 1965 to offer bids in the auction the officer companyducting the auction shall be at liberty to close the auction if he is satisfied that, there has number been sufficient or fair companypetition in which case he may publicly adjourn the auction, to a specified hour on the following day or on some other companyvenient day to be numberified by him in the auction hall the highest bid in an auction shall ordinarily be, accepted provisionally by the Collector subject to companyfirmation by the State Government and in case where the officer companyducting the auction, refuses to accept the highest bid as offered, he shall record the reasons for such number-acceptance and shall report forthwith the same to the Excise Commissioner for further action after receipt of advances from the highest bidder when any bid in an auction for an exclusive privilege or privileges is provisionally accepted by the Collector, the bidder shall deposit two months companysideration money as an advance deposit which will be refunded in case the provisional acceptance is number companyfirmed by the State Government. 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 assig ning any reason therefore numberlicence for any exclusive privilege shall be granted until acceptance of the bid is companyfirmed by the State Government when any bid in an auction for any exclusive privilege is provisionally accepted but the advance deposit is number paid, the exclusive privilege shall be put to reauction as soon as possible at the risk and loss of the defaulter all bids in an Auction shall be offered by the bidder in person or by his agent legally authorised for the purpose. As mentioned earlier in pursuance of the above order, the Collector held an auction in respect of the shops mentioned earlier. The highest bidder had made the necessary deposits. But. the Government did number accept his bids. On March 7, 1971, the Government issued the following order Whereas for determining the sums payable for the grant of exclusive privilege of manufacturing and selling by retail of companyntry liquor auction had been held in the district of Cuttack in accordance with the procedure laid down in the order of the Government of Orissa in the Excise Department No. S.R.O. 12/71, dated the 6th January 1971 Whereas due to companylusive bids among the bidders at the said auction it is number possible to determine the said sums in the aforesaid manner Now, therefore, in exercise of the powers companyferred by sub-section 2 of Section 29 of the Bihar and Orissa Excise Act, 1915 Bihar and Orissa Act 2 of 1915 read with the Order No. S.R.O. 12/71, dated the 6th January, 1971, the- State Government do hereby direct that the procedure for determining the aforesaid sum in respect of the grant of exclusive privilege of manufacturing and selling by retail of companyntry liquor in the local areas specified in the Schedules I for the year 1971-72 shall be as laid down in Schedule II hereof- SCHEDULE I . . . . . . . SCHEDULE II The sum payable under sub-section 1 of Section 29 of the said Act for grant of exclusive privilege of manufacturing and selling by retail of companyntry liquor in the aforesaid local areas shall be determined by the Excise Commissioner by calling tenders which may be for individual local area or for lots of such area as the Excise Commissioner may companysider proper Tender numberice shall be issued by the Excise Com- missioner and published in the Notice Board of his office the C uttack Collectorate and the offices of Sub Divisional Officers in that district and shall also be widely published in such manner as the Excise Commissioner companysiders necessary. The tender numberice shall, among other things,, mention that it is open to the State Government number to accept any tender or to order for calling fresh tenders or otherwise for such reason as they deem proper in the public interest 4 to 8 The Excise Commissioner shall prepare a list of all the tenders received and submit the list with his recommendations of any particular tender with sufficient reasons alongwith the tender papers to the State Government for approval. The tenderers whose tenders have been recommended for acceptance shall deposit two months companysideration money as an advance deposit which will be refunded in case their tenders are number approved by Government. As mentioned earlier, the Government accepted the tender in respect of only one shop and sold the exclusive privilege to sell companyntry liquor in other shops by negotiation. Before us the writ petitioners did number challenge the validity of any of the provisions in the Act possibly in their own interest. They are number interested in raising any companytention which might vitiate the auctions held. The companytentions urged on behalf of the writ petitioners have to be examined, in the background that the provisions of the Act are number companytended to be invalid. One of the companytentions taken on behalf of the writ petitioners was that the power retained by the Government to accept or to reject any bid without assigning any reason therefore in cl. 6 of the order made by the Government on January 6, 1971 in exercise of its powers under s. 29 2 of the Act was an arbitrary power and therefore it is violative of Arts. 14 and 1 9 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 reasonable restrictions in the interest of the general public. Restrictions imposed by the order in question cannot be companysidered as reasonable 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 Art. 14. These companytentions were accepted by the High Court. To us, numbere of these companytentions appear to be well founded. As seen earlier s. 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 s. 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 s. 22 and s. 29 are absolute powers. As seen earlier, the validity of those provisions has number been challenged before us. Under s. 29 2 the Government had power to dispose of any of the exclusive privileges mentioned in s. 22 either by calling for tenders or 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 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 therefore. The power that the government reserved for itself under that clause is numberhing more than what was companyferred on it by the legislature under s. 22 and s. 29 of the Act. It is number possible to challenge the validity of the order made without challenging the validity of s. 29 itself. It is true that this Court has ruled that the right to trade in intoxicating drugs is also a right to carry on any trade or business within the meaning of Art. 19 1 g see Krishna Kumar Narula v. Jammu Kashmir State and ors 1 . At the same time, it was held by this Court in Cooverjee B. Bharucha v. The Excise Commissioner and the Chief Commissioner, Ajmer and ors. 2 that for determining reasonable restrictions within the meaning of Art 19 6 of the Constitution on the right given under cl. 19 1 g regard must be had to the nature of the business and the companyditions prevailing in a particular trade State has power to prohibit trades which are illegal or immoral or injurious to the health and 1 1967 3 S.C.R. 50. 2 1954 S.C.R. 873. welfare of the public and there is numberinherent right in a citizen to sell intoxicating liquors by retail. In that case the companyrt held that the provisions in the Excise Regulation 1 of 1915 purporting to regulate trade in liquor in all its different spheres are number invalid. It was further held in that case that the charge of licence fee by public auction is more in the nature of a tax than a licence fee though it is described as a licence fee. One of the purposes of the Regulation is to raise revenue. Revenue is companylected by the grant of companytracts to carry on trade in liquor and these companytracts are sold by auction. The grantee is given a licence on payment of the auction price. The Regulation specially authorises this. The decision in Lala Harichand Sarda v. Mizo District Council and anr. 1 relied on by the writ petitioner does number bear on the point under companysideration. it deals with power to grant or refuse to grant licence to trade in some ordinary companymodity under Lushai Hill Distt. Regulation. Even apart from the power companyferred on the Government under ss. 22 and 29, we fail to see how the power retained by the Government under cl. 6 of its order dated January 6, 1971 can be companysidered as unconstitutional. As held by this Court in Cooverjee Bharuchas case supra , one of the important purpose 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 Art. 19 1 g or Art. 14 can arise in these cases. The Governments power to sell the exclusive privileges set out in s. 22 was number denied. It was also number disputed that those privileges companyld be sold by public auction. Public actions 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 1 1967 1 S.C.R. 1012. 2 1970 2 S.C.R. 594. does number change 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 Art. 19 1 g or Art. 14 becomes irrelevant. Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government, number can there be any infringement of Art. 14, if the Government tries to get the best available price for its valuable rights. The High Court was wholly wrong in thinking that purpose of ss. 22 and 29 of the Act was number to raise revenue. Raising revenue as held by this Court in Cooverjee Bharuchas case supra was one of the important purposes of such provisions. The fact that the price fetched by the sale of companyntry liquor is an excise revenue does number change the nature of the right. The sale in question is but a mode of raising revenue. Assuming that the question of arbitrary or unguided power can arise in a case of this nature, it should number be forgotten that the power to accept or reject the highest bid is given to the highest authority in the State i.e. the Government which is expected to safeguard the finances of the State. Such a power cannot be companysidered as an arbitrary power. If that power is exercised for any companylateral purposes, the exercise of the power will be struck down. It may also be remembered that herein we are number dealing with a delegated power but with a power companyferred by the legislature. The High Court erroneously thought that the Government was bound to satisfy the Court that there was companylusion between the bidders. The High Court was number sitting on appeal against the order made by the Government. The inference of the Government that there was a companylusion among the bidders may be right or wrong. But that was number open to judicial review so long as it is number proved that it was a make- believe one. The real opinion formed by the Government was that the price fetched was number adequate. That companyclusion is taken on the basis of Government expectations. The companyclusion reached by the. Government does number affect any ones rights. Hence, in our opinion the High Court misapplied the ratio of the decision of this Court in Barium Chemicals Ltd. and anr. v. Company Law Board and ors. 1 and Rohtas Industries Ltd. v. S. T. Agarwal 2 . It was next urged that having had recourse to the auction method once, the Government was precluded from either calling for tenders or to sell by negotiation. The High Court has accepted that companytention. We are unable to agree with the High Court in its companyclusion. Neither the provisions of the Act number the order issued by the Government lend any support to such a companyclusion. 1 1969 S.C.R. 311 2 1969 1 S.C.C. 325. Once the Government declines to accept the highest bid, the auction held became useless. Similar is the effect when the Government refused to accept the highest tender. That left the Government free to have recourse to other methods. The power given to the Government by the Act to sell the exclusive privilege in such other manner as it thinks fit is a very wide power. That power is unrestricted. It undoubtedly includes the power to sell the privileges in question by private negotiation. It was urged that before adopting the method of selling the privileges by private negotiation. The Government is required by S. 29 2 a to make an order that the, privileges in question will be sold by private negotiation. The Government has failed to make such an order. Hence the sales effected are invalid. We, are, unable to accept these companytentions. In the cases of public auctions or in the case of calling for tenders, orders from the Government directing its subordinates to numberify or hold the auctions or call for tenders is understandable. Public auctions as well as calling for tenders are done by subordinate officials. Further due publicity is necessary in adopting those methods. TOP require the Government to make an order that it is going to sell one or more of the privileges in question by negotiating with some one is to make a mockery of the law. If the Government can enter into negotiation with any person, as we think it can, it makes numbersense to require it to first make an order that it is going to negotiate with that person. We must understand a provision of law reasonably. Section 29 2 a does number speak of any order. It says that the State Government may by general or special order direct. The direction companytemplated by that provision is a direction to subordinate officials. It is meaningless to say that the Government should direct itself. In the result these appeals are allowed and the writ petitions dismissed. No companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 2509 of 1969. Appeal under Section 116-A of the Representation of the People Act, 1951 from the Judgement and Order dated the 30th September, 1969 of the Madhya Pradesh High Court, Indore Bench in Election Petitions Nos. 19 and 19A of 1967. L. Sibbal, Advocate-General for the State of Punjab, S. L. Garg and S. K. Gambhir, for the appellant. N. Phadke, U. N. Bachawat, P. C. Bhartari, J. B. Dada- chanji, O. C. Mathur, Ravinder Narain, for respondent No. 1. K. Shejwalla, Pramod Swarup, S. S. Khanduja and Lalita Kohli, for respondent No. 4. The Judgment of the Court was delivered by Ray, J. This is an appeal from the judgment dated 30 September, 1969 of the High Court of Madhya Pradesh setting, aside the election of the appellant. The High Court held the appellant to be guilty of companyrupt practice under section 123 4 of the Representation of the People Act, 1951 hereinafter referred to-as the Act with reference to a speech at Singoli on 29 January, 1967 a speech at Athana on 9 February, 1967 and a speech at Jhatia on 12 February, 1967. The High Court further held the appellant to be guilty of companyrupt practice of appealing on the ground of religion as defined in section 123 3 of the Act and also threatening the electors, with divine displeasure being a companyrupt practice as defined in section 123 2 of the Act in regard to the speech at Jhatla on 12 February, 1967. The High Court also held the appellant to be guilty of companyrupt practice of appealing on the ground of religion and threatening with divine displeasure those who voted for the Congress in the three speeches delivered on 15 February, 1967 at Morwan, Singoli and Diken by the Swamiji of Bhanpura at the instance, and in the presence, and after introduction by the appellant of the Swamiji of Bhanpura to the audience at those three places. On 31 January, 1972 we delivered the order holding that we did number agree with the finding of the High Court and we also held the appellant to be number guilty of any companyrupt practice. We stated then that we would give the reasons later. We number give those reasons. The appellant and the respondent Jagjiwan Joshi and the other two respondents were four candidates from Jawad Constituency for election to the Madhya Pradesh Assembly at the general election held in the year 1967. The appellant was successful at the election. The respondent Joshi challenged the election of the appellant. The allegations under section 123 4 of the Act fall under two classes. The first relates to the speech delivered by the appellant at Singoli on 29 January, 1967 and a speech delivered by the appellant at Athana on 9 February, 1967. The speech at Singoli was alleged to be as follows -- The Congress candidate has on payment of Rs. 5000 set up Kajod Dhakad so that the Jan Sangh votes may be split and he might win. If he practises such companyruption even number what service can he do to the public later on. You, should number vote for such companyrupt men. The speech at Athana in addition to the allegations already made in respect of the speech at Singoli was as follows - Joshi has set up Kajod Dhakad on payment of Rs. 5000. The other allegations of companyrupt practice under section 123 4 of the Act were in relation to. the same speech at Athana on 9 14-L1061SupCI/72 February, 1967 and a speech at Jhatla on 12 February, 1967. The alleged speech at Athana was as follows Shri Joshi has set up a man to hit me with a knife. Accordingly, if he becomes a legislator the rule of violence goonda gardi would be permanently established. Therefore, the public should number only defeat such bad characters badmash of the Congress but. also see that their deposit is forfeited. The alleged speech at Jhatla was as follows This Congress candidate gave a knife to Mohammad Kasai and got him to attack me. But I have the strength of the janata janardhan and my life is dedicated to you. It lies with you whether to save such goondas who try to companymit murder or to get their deposit for- feited. The allegations of companyrupt practice as defined in sections 123 2 and 123 3 of the Act in relation to the same speech at Jhatla on 12 February, 1967 were as follows - The votes shall be cast on the 20th and it is fortunate that it is a sacred day being a Monday gyaras. To give a vote to the company- killing Congress on that day is equivalent to cutting down one company and it will be on you to bear the responsibility for this sin. The allegations of companyrupt practice within the meaning of sections 123 2 and 123 3 of the Act against the appellant in regard to three speeches delivered on 15 February, 1967 at Morwan, Singoli and Diken by the Swamiji of Bhanpura were as follows -- At Morwan -- Today the Hindu dhartna is being destroyed.Sadhus and sanyasis being shot. The Congress is killing the company-progeny go-vansh of Bhagwan Gopal. so this time you sho uld cast your invaluable vote for up-rooting that government. You put your seal on the deepak symbol Jan Sangh symbol on the 20th which is Monday gyaras. To vote for the Congress on such a sacred day is to companymit the sin of company- killing. At Singoli - In the Congress Government sixteen companys are being killed every minute. How long will this company-killing Congress rule the companyntry ? How long will it show in-difference to the feelings of the overwhelming Hindu majority just on the strength of the support of a handful of company-eating Musalmans If you love the Hindu dharma, if there is Hindu blood in your veins, do number vote for the Congress but uproot it. Form a new Government by putting your seal on the Jan Sangh deepak. Shri Saklecha is your Chief Minister to be. The 20th February as a sacred day being Monday gyras. Do number on such a sacred day vote for the company-killing Congress and bring yourself to hell narak ke bhagi na bane . At Diken- There was a yagna for putting an end to the company killing in this companyntry. Many sadhus and sanyasis have sacrificed their life for this, but the Congress, intoxicated with power has along with company-killing killed sadhus also. It is the dharma of every Hindu number, to vote for such murderous Congress. The 20th is Monday gyaras and a sacred day. So put your seal on the deepak and make the Jan Sangh successful. The Jan Sangh will put an end to the company- killing and you will get merit punya and endlless bliss akhand sukh . With regard to the speech at Athana on 9 February, 1967 the allegations within the meaning of section 123 4 of the Act were twofold. First that the appellant published the false allegation that the respondent had bribed Kajod Dhabad with Rs. 5000 and had set up him as a candidate. The second allegation was that at the same speech the appellant published the false story that the respondent had set up a man to, hit the appellant with a knife. The High Court accepted the oral evidence of the respondent and four witnesses Kishan Lal Teli P.W. 1, Ghisa Dhakad P.W. 2, Laxmi Lal P.W. 5 and Chand Mohammad P.W. 6. The High Court did number accept the oral evidence of the appellant or of the witnesses on behalf of the appellant. The High Court found the witnesses on behalf of the respondent to be straightforward and impartial. On the other hand, the High Court found the witnesses on behalf of the appellant to, be persons who knew what they had companye for and asserted general statements of denial. The respondent filed an affidavit along with the election petition. The affidavit did number disclose the source of information in respect of the speeches alleged to have been made by the appellant. Section 83 of the Act requires an affidavit in the prescribed form in support of allegations of companyrupt practice. Rule 94-A of the Conduct of Election Rules 1961 requires an affidavit to be in form No. 25. Form No. 25 requires the deponent to state which statements are true to knowledge and which statements are true to information. Under section 87 of the Act very election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Under section 102 of the Code the High Court may make rules regulating their own procedure and the procedure of the Civil Courts subject to their supervision and may by such rules vary, alter or add to any of the rules in the First Schedule to the Code. Rule 9 of the Madhya Pradesh High Court Rules in respect of election petitions states that the rules of the High Court shall apply in so far as they are number inconsistant,with the Representation of the People Act, 1951 or other rules, if any, made thereunder or of the Code of Civil Procedure in respect of all matters including inter alia affidavits. Rule 7 of the Madhya Pradesh High Court Rules states that every affidavit should clearly express how much is a statement and declaration from knowledge and how much is a statement made on information or belief and must also state the source or grounds of information or belief with sufficient particularity. Form No. 25 of the Conduct of Election Rules requires the deponent of an affidavit to set out which statements are true to the knowledege of the deponent and which statements are true to his information. The source of information is required to be given under the provisions in accordance with Rule 7 of the Madhya Pradesh High Court Rules. In so far as form No. 25 of the Conduct of Election Rules requires the deponent to state which statements are true to knowledge there is numberspecific mention of the sources of information in the form. The form of the affidavit and the High Court Rules are number inconsistent. The High Court Rules give effect to provisions of Order 19 of the Code of Civil Procedure. The importance of setting out the sources of information in affidavits came up for companysideration before this Court from time to time. One of the earliest decisions is State of Bombay v. Parshottam Jog Naik, 1952, S.C.R. 674, where this Court endorsed the decision of the Calcutta High Court in Padmabati Dasi v. Rasik Lal Dhar, I.L.R. 37 Cal. 259, and held that the sources of information should be clearly disclosed. Again, in Barium Chemicals Ltd. Anr. v. Company Law Board and Ors., 1966 Supp. S.C.R. 331, this Court deprecated slip short verifications, in an affidavit and reiterated the ruling of this Court in Bombay, case suppra that verification should invariably be modelled on the lines of Order 19 rule 3 of the Code Whether the Code applies in term, or number. Again, in A. K. K. Nambiar v. Union of India, 1970 3 S.C.R. 121 this Court said that the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. Counsel on behalf of the appellant companytended that number-dis- closure of the sources of information in the affidavit was a fatal defect and the petition should number have been entertained. It is number necessary to express any opinion on that companytention in view of the fact that the matter was heard for several months in the High Court and thereafter the appeal was heard by this Court. The grounds or sources of information a re to be set out in an affidavit in an election petition. Counsel on behalf of the respondent sub- mitted that the decisions of this Court were number on election petitions. The rulings of this Court are companysistent. The grounds or sources of information are to be set out in the affidavit whether the Code applies or number. Section 83 of the Act states that an election petition shall be verified in the manner laid down in the Code. The verification is as to information received. The affidavit is to be modelled on the provisions companytained in Order 19 of the Code. Therefore, the grounds or sources of information are required to be stated. The number-disclosure of grounds or sources of information in an election petition which is to be filed within 45 days from the date of election of the returned candidate, will have to be scrutinised from two points of view. The number- disclosure of the grounds will indicate that the election petitioner did number companye forward with the sources of information at the first opportunity. The real importance of setting out the sources of information at the time of the presentation of the petition is to give the other side numberice of the companytemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the sources of information. The other point of view is that the election petitioner will number be able to any departure from the sources or grounds. If there is any embellishment of the case it will be discovered. The number-disclosure of grounds or sources of information in the affidavit of the election petitioner in the present case assumed importance by reason of the fact that the respondent said that he had a written report about the alleged speech at Athana and the report was given to the respondent by Ram Kumar Aggarwal. Ram Kumar Aggarwal was also a candidate of the Congress party at the same election from the same companystituency which is the subject matter of the appeal. Ram Kumar Aggarwal was number examined as a witness. The written numberes of Ram. Kumar Aggarwal were admitted by the respondent to be with him. The respon- dent gave the explanation for number-production of Ram Kumar Aggarwal that he produced only such witnesses who either opposed him in the election or were independent. As to persons who opposed him in the election the respondent stated that they were summoned by him through companyrt and those who were independent were brought by him personally to companyrt. The number-production of Ram Kumar Aggarwal and of the numberes made by him at the meeting at Athana raises as irresistible inference against the respondent that the same would number have supported the respondents case. Witnesses on behalf of the respondent Kishan Lal Teli Ghisa Dhakad, Laxmi Lal, Chand Mohammad and Bansi Dhar Bairagi gave oral evidence in identical words and language that the respondent had instigated Mohd. Kasai to attack the appellant with a knife and that the respondent had set up Kajod Dhakad paying Rs. 5000 and if Joshi became a legislator there will be rule of goondas. Kishan Lal Teli was the polling agent of the respondent. He denied that he was one. He was shown the polling agent forms Exhibits R-1/39 and R-1/40. He stated that the signatures might be his. The respondent admitted that Exhibits R-1/39 and R-1/40 were signed by him but Kishan Lal was number prepared to admit his own signatures on the polling agent forms. Kishan Lal Teli was neither straightforward number impartial. Kishan Lal Teli said that there were 5 or 6 meetings in the village during the time of the election but the only meeting which he attended was at Athana. That is indeed strange and significant. Kishan Lal Teli said that there were 6 speakers and he remembered the sequence in which the speaker spoke. Kishan Lal Teli said that he spoke entirely from memory. Ghisa Dhakad also spoke from memory. He mentioned about 6 speakers. Ghisa Dhakad also happened to be a witness who attended the meeting at Athana only. A curious feature of Ghisa Dhakads evidence is that he did number speak about the speech to anybody till he gave evidence in companyrt. It would be beyond companyprehension as to how the respondent would cite Ghisa Dhakad a witness to support the allegations when Ghisa Dhakad gained silent and unknown. It is also in evidence that Ghisa Dhakad was the worker of the appellants opponents. Laxmi Lal P.W. 5 also happened to have attended the solitary meeting at Athana and numberother meeting. Laxmi Lal also mend the speakers in the same sequence as the other witnesses Laxmi Lal said that he remembered the speeches of everybody who spoke. Laxmi Lal in cross-examination stated that the ant also talked of Lagan. When he was asked as to why he did number mention this fact in his examination-in-chief, his answer Was that the appellant had mentioned of Lagan at the end of the speech, and, therefore, he did number speak about it in examination in-chief. This indicates as to how Laxmi Lal tried to impart originality to his version of remembrance of things. Chand Mohammad was believed by the High Court with regard to his presence at Athana but was disbelieved with regard to his presence at Sarwania Masania. It may be stated here that the High Court did number accept the case of the respondent with regard to Sarwania Masania. Chand Mohammad happened to be a casual witness with regard to the meeting at Athana. His evidence was that he was going to the house of Dhakad Kheri and he stopped for a minute or two to listen to Jan Sangh speakers. That is how he heard the appellant speaking. The fortuitous manner in which Chand Mohammad attended the meeting at Athana shows that he was introduced to support the respondent by repeating what the previous witnesses said about the Athana meeting. This will he apparent in view of the fact that when Chand Mohammad was examined for the second time like some other witnesses he said that he heard the speech of the appellant for a minute or two but he left the meeting before the appellants speech Was over. When Chand Mohanunad was companyfronted with his previous statement his explanation was that on the earlier occasion he was thinking about the meeting of Kajod Dhakad, yet the High Court accepted the evidence of Chand Mohammad to be impartial and impressive. Bansi Dhar Bairagi P.W. 4 was found by the, High Court to be angry with the appellants party. But the High Court accepted the evidence of Bansi Dhar Bairagi on the ground that his evidence was companyroborated by the statements of Laxmi Lal, Ghisa Dhakad and Chand Mohammad. Bansi Dhar Bairagi proposed the name of Ram Kumar Aggarwal who was supposed to, have taken numberes of the Athana meeting and who never came to, the witness box. Bansi Dhar Bairagi was also associated with Kajod Dhakad. Bansi Dhar Bairagis evidence was that he went to, propose the name of Kajod Dhakad but when he was going to propose the name his hand began to shake. That is indeed a very shaky explanation. A curious part of the evidence of Bansi Dhar Bairagi is that the appellant spoke of company killing at the Athana meeting. That was number the case even of the respondent. Bansi Dhar Bairagis evidence in respect of his presence at Sarwania Masania was number accepted by the Court on the ground that he was a casual witness. Bansi Dhar Bairagi was the election agent of Kajod Dhakad. The numberination paper of Kajod Dhakad was proposed by Ram Chand Nagla brother of Badri Nath Nagla the President of Jawad Mand Congress. Badri Nath Nagla was the proposer and the companynting agent of the respondent. These features point to the inescapable companyclusion that the witness was number only interested but also partisan. The witnesses on behalf of the respondent appeared to be. present only at the Athana meeting. They did number attend any other meeting. They spoke entirely from memory. Their version of the speeches was in the same words and language, One of the witnesses was unknown to the respondent and the respondent also did number know anything about him until he gave evidence in companyrt. The witnesses on behalf of the respondent seemed to have phenomenal memory. Each witness spoke in the same sequence. Each witness spoke in the same language. Each witness mentioned the names of the speakers in the same order. The entire evidence on behalf of the respondent is tutored and prompted to support the respondent. The High Court was wrong in relying on the oral evidence of the respondent and his witnesses. In the background of the entire oral evidence adduced on behalf of the respondent it is apparent as to why the respondent did number mention the grounds or sources of information in the affidavit. There were numberreal sources. Sources were fabricated. There is number a single piece of documentary evidence to support the case of the respondent. The alleged numberes of the meeting at Athana which were admitted by the respondent to be in existence never saw the light of the day. The withholding of that document gives a lie to the respondents case. It is obvious that if there were in existence any numberes the respondent would have exhibited them at the earlier opportunity. The High Court number only disbelieved the witnesses produced on behalf of the appellant with regard to the meeting at Athana but also made certain observations about the first information report lodged by Sunder Lal Petlia R.W. 35. with regard to an incident at Athana at the day of the meeting. A criminal case is pending as a result of that report lodged by Petlia. The High Court held that the first information report is a forgery. It is true that the High Court in one part of the judgment stated that whatever was stated by the High Court about the first information report should number affect the judgment of the Magistrate. The High Court was wrong in pronouncing observations on the report lodged by Petlia. We are unable to accept the views of the High Court on the report lodged by Petlia inasmuch as the criminal case is pending. The respondents allegations with regard to the meeting at Jhatla on 12 February, 1967 are under two heads. First, that the appellant is guilty of companyrupt practice as defined in section 123 4 of the Act inasmuch the appellant published falsely that the respondent had set up somebody armed with a knife to attack the appellant. The second head was that the appellant was guilty of companyrupt practice as defined in sections 123 2 and 123 3 of the Act by appealing to voters on the ground of religion and threatening them with divine displeasure if they voted for the Congress candidate. The speech alleged to be made by the appellant at Jhatla on 12 February, 1967 was that 20 February, 1967 was the sacred day being a Monday gyaras and to give a vote to the company killing Congress on that day was equivalent to cutting down one company and it would be on the voters to bear the responsibility for the sin. The High Court accepted the oral evidence of the respondent and his witnesses. The respondent said that Mohan Lal Ramji Lal took numberes of the meeting at Jhatla. Mohan Lal Ramji Lal was number examined by the respondent. The, alleged numberes were also number produced. These features indicate that there were numbersuch numberes for if the numberes were in existence the respondent would have produced the same in proof of the allegations. The respondent is a lawyer. The respondent number only understands but also appreciates the importance of documents if they happen to be companytemporaneous documentary evidence. The witnesses on behalf of the respondent with regard to the speech at Jhatla were Daulat Ram Sharma P.W. 12, Kastur Chand Jain P.W.13, Ratan Lal Jain P.W. 14 and Prabhu Lal W. 15. The companymon features of all these witnesses are that each witness spoke in identical words and in the same sequence about the speeches of the appellant. Daulat Ram Sharma admitted that he had numberoccasion to repeat the speech to anybody except when he came to depose in companyrt. Daulat Ram Sharma went in search of his cattle to the pond at Jhatla. He companyld number find his company. He went to purchase tobacco. When he reached the shop he saw a meeting of Jan Sangh going on. He heard the speech of the appellant. He does number belong to Jhatla but lives at Jhabarka Rajpura at a distance of 3 furlongs from Jhatla. It is indeed remarkable that a person who by chance walked to the meeting would number only remember the entire speech ascribed to the appellant in the election petition but also depose to it in companyrt without ever having mentioned the speech to anybody and in particular the respondent. Daulat Ram Sharma stated that this was the only meeting attended by him in his life. Such a witness cannot inspire any companyfidence. Kastur Chand Jain was the polling agent of the respondent. He discussed with the respondent the latters defeat about two months after the election. He told the respondent that he would give evidence in companyrt without any summons. Heattended the Congress Session and is associated with the Organisation. As an instance of his power of memory he said that he companyld repeat the speech of the Congress Parliamentary candidate delivered on 24 February, 1967. This witness appears to be partisan. Ratan Lal Jain was also associated with the Congress organisation. He went to the extent of saying that he did number know that voting for Congress meant voting for the respondent who was a Congress candidate. Prabhu Lal came to give evidence along with Ratan Lal Jain W. 14 and Kastur Chand Jain P.W. 13. They all stayed together at Mahalaxmi Lodge. They also met the respondent though they denied that they had any talk with the respondent about the evidence. It is incomprehensible as to how the respondent would cite such persons as witnesses unless the respondent knew what they were going to speak about. A witness is number called by a party unless the party knows that the person can testify to the facts in the case. Witnesses on behalf of the respondent gave the impression that they never mentioned to anyone about what they knew,. If that be the position it would number be possible for the respondent to ,cite them as witnesses. These features indicate that the witnesses appeared to give a semblance of disinterestedness whereas in fact they were all tutored to support the case of the respondent. The impression produced by the witnesses is that their version of the speeches was similar to reading cyclostyled companyies of the speech. We are unable to accept the companyclusion reached by the High Court about the speeches of the appellant at Jhatla. The respondent alleged that the appellant delivered a speech at Singoli on 29 January, 1967. The allegations are that the appellant companymitted the companyrupt practice within the definition of section 123 4 of the Act by publishing the false allegations that the respondent had paid Rs. 5000 to Kajod Dhakad to set him up as a candidate. The respondent also alleged that besides the appellant one Swami Brahmananda of Himachal Pradesh and Khuman Singh of Nimech also spoke at the meeting at Singoli on the same ,day. The High Court accepted the oral evidence of P.W. 16 Paras Ram,, P.W. 17 Bhanwar Lal, P.W. 18 Ram Chandra Sharma, P.W. 19 Nathu Lal and P.W. 22 Mange Lal Pancholi. W. 18 Ram Chandra Sharma admitted his signatures on Exhibits R-1/5 and R-1/6. These two documents are minutes Of meeting of the Congress party of Singoli held in the months of August and October, 1966. Ram Chandra Sharmas name appears in the numberices of the meetings of the Congress Party in the months ,of August and October, 1966 at Singoli which are Exhibition R-1/7 and R-1/8. Ram Chandra Sharma appears as a signatory to the minutes. After having admitted the signatures Ram Chandra Sharma made attempts to disown his signatures. Exhibits R- 1/9, R- I I 0, R- I 1 1, R- I 1 2, R- I 13 and R- 1 / 14 are receipts signed by the witness Ram Chandra Sharma. These receipts relate, to expenses for meals and refreshments arranged for the workers near about the. time of the election. Ram Chandra Sharma denied his signature but he admitted that the Congress workers and other customers paid him for the meals. He denied that he gave the respondent any receipt. Ram Chandra Sharma obviously wanted to extricate himself from the receipts which nullified his oral evidence. Ram Chandra Sharma was a very interested witness and he was directly associated with the respondent. Ram Chandra Sharma said that the only meeting he attended in his life was the one at Singoli on 29 January, 1967. Such singular attendance is number only suspicious but also mendacious. Ram Chandra Sharma number only gave from, his memory the speech of the appellant at Singoli but also added a gloss to it by stating that the appellant spoke about tax on sugar. It was number even the case of the respondent that the appellant spoke about tax on sugar. W. 22 Mange Lal also supported the case of the respondent about the appellants speech at Singoli on 29 January, 1967. Like Ram Chandra Sharma he also said that the appellant talked about tax on sugar. This shows how this pair of witnesses played the parrot in giving evidence, Mange Lal was companyfronted with Exhibit R-1/19 and Exhibit R-1/19A. These two receipts are in respect of rent of the building owned by Mange Lal. The receipts are on account of rent from the respondent. Mange Lal said that he gave the receipts at the instance of Radha Kishan. The further explanation given by the witness was that the house was mortgaged with Radha Kishan. No document was produced to prove the mortgage. Radha Kishan is Mange Lal wifes uncle. Mange Lals attempt to explain away the receipts for rent was futile. Mange Lal also appears to be one of the companyveners of the Congress meeting as will appear from Exhibits R-1/7 and R-1/8. He is also signatory to the minutes Exhibits R-1/6. Mange Lal said that the only meeting he ever attended was at Singoli on 29 Februarly, 1967. He had never any talk with the respondent about the speech at Singoli. These witnesses establish without any doubt that they were number truthful witnesses but came prepared to support the respondents case. The other witnesses P.W. 17 Bhanwar Lal and P.W. 19 Nathu Lal also spoke about the appellants alleged speech at Singoli on 29 January, 1967. These two witnesses also gave evidence about the speech of Swamiji of Bhanpura at Singoli on 15 February, 1967. The High Court accepted the evidence of these witnesses. We are unable to accept the evidence of Bhanwar Lai and Nathu Lai for the reasons to be given while discussing their evidence in companynection with the meeting at Singoli on 15 February, 1967. The respondent alleged that the appellant was guilty of companyrupt practice within the meaning of sections 123 2 and 123 3 of the Act by reason of the three speeches delivered by the Swamiji of Bhanpura on 15 February, 1967 at Morwan, Diken and Singoli. The respondent alleged that the speeches were at the instance of audience. With regard to the speech at Morwan apart from the respon- dent there were three witnesses on his behalf. They were W. 7 Manek Lai, P.W. 8 Ratan Lai Gaur Banjara and P.W. 9 Gulzari Lai Mahajan. Manek Lai gave evidence twice. The second time he gave evidence was in accordance with the understanding given by the respondent before this Court to produce some of the witnesses at his own companyt. That undertaking was given at the hearing of an application by the appellant in this Court for transfer of the Case to another companyrt. When Manek Lai gave evidence On the first occasion he did number mention that Swamiji of Bhanpura said at the meeting at Morwan on 15 February, 1967 that 20 February was a sacred day and to vote for Congress on such a sacred day would be to companymit the sin of company killing. Manek Lai said that he attended the meeting of the Congress and of the Jan Sangh and he voted. Gulzari Lai said that the, Morwan meeting was the only meet- ing he ever attended. Both Manek Lai and Gulzari Lai like other witnesses gave evidence about the speech of Swamiji of Bhanpura in identical language and in the same sequence. The hollowness of the evidence adduced on behalf of the res- pondent is revealed by the testimony of Ratan Lai Banjara. He was companyfronted with Exhibit R-1/27. The High Court described this document to be purloined brief. Exhibit R- 1/27 is a document which companytains the date and hour of the meeting at Morwan, the text of the speech at Morwan. Thereafter there are 7 questions and answers. The questions are as to when did Swamiji companye how he came who came with him and it is also written in that document that the appellant came and listened to the speech and expressed gratitude and thanks to the public. Ratan Lai Banjara denied that he was tutored through that document. The alleged speech of Swamiji of Bhanpura is typed in Hindi. One of the numberes in that document is that Moti Khema Jat and Gordhan Singh were number seen at the meeting. Those, two persons were cited by the appellant as witnesses. it is indeed curious that witnesses would,specifically say as to who were number present and the names of such persons who were number present are those who are cited by the respondent as witnesses. It is number only unnatural but extraordinary that witnesses would numberice as to who were number present at the meeting which, according to the witnesses, was attended by 500 persons. The respondent was shown Exhibit R-1/27. His explanation was that the numberes were prepared for instructions to his companynsel. The tenor of the document and the questions and answers point with unerring accuracy that the document was prepared to companych witnesses. The respondent said that he had prepared such numberes for every meeting. Other documents did number see the fight of the day. That would support the companyclusion that other witnesses had been similarly prepared. It explains why all witnesses spoke the same language. All witnesses were companyched. The respondent said that Jai Ram Jat had taken numberes of the meeting at Morwan and gave the same to the respondent. The respondent said that the numberes were number of significance, and, therefore, he did number take the numberes from Jai Ram Jat. If the numberes were number significant the Morwan meeting also became insignificant. The number-production of the numberes and of the author of the numberes, are additional features to establish the vacuity of the respondents allegations about the speech of Swamiji of Bhanpura at Morwan. The High Court referred to an article published in Sudesh in the issue dated 30 November, 1966. There was an article written by Swamiji of Bhanpura. The High Court observed that Swamiji of Bhanpura wrote in that article that the killing of company was one manner of killing God, and, therefore, it was extremely probable that a person who held that view would while speaking of company protection give a deeply religious companyplexion and would companydemn those who did number share his views. This is a strange logic. We are unable to accept the evidence of the respondent and his wit- nesses that there was any speech at Morwan that to vote for the Congress would be to companymit the sin of company killing. The respondents further case is that Swamiji of Bhanpura delivered a speech at Singoli on 15 February, 1967. This speech was also alleged by the respondent to be an appeal on the ground of religion and a threat that the voters would incur divine displeasure if they voted for the company killing Congress. The High Court relied on the evidence of P.W. 16 Paras Ram and P.W. 17 Bhanwar Lal. Paras Ram was companyfronted with a document Exhibit R-1/50. That document companytains the minutes of the meeting of the Congress party at Singoli on 26 August, 1966. The name of Paras Ram is mentioned there. The name of one Ratan Lal is also mentioned there. The High Court held that Paras Ram was a companymon name and there was numberhing to show that Paras Ram in Exhibit R-1/50 was the same Paras Ram who appeared as a witness. Paras Ram said that Madan Lal Sharma a Jan Sangh worker made an announcement about the meeting. Madan Lal Sharma R.W. 16 gave evidence on behalf of the appellant and denied that he made any announcement. The High Court relied on the cross- examination of Bhanwar Lal P.W. 17. Bhanwar Lal in his evidence stated that Madan Lal Sharma of Singoli made the announcement. It was suggested to Bhanwar Lal in cross- examination that there was numbersuch announcement. The High Court read that suggestion to mean that there was numberperson of the name of Madan Lal Sharma in existence. That is totally misreading the suggestion. It is also number reading the evidence of Madan Lal Sharma R.W. 16 in the companyrect perspective. Paras Ram was living at Nimech for the last 15 years. The respondent also admitted that Paras Ram lived at Nimech. Paras Ram said that he never attended any meeting excepting the one at Singoli. Paras Ram narrated the speech of Swamiji from memory. He also said that he never had any discussion with any witness or even with the respondent about the speech. If that were so, the respondent would number be able to call Paras Ram as a witness. This attitude is typical of almost all the witnesses on behalf of the respondent. The witnesses wanted to give the appearance of detachment and disinterestedness. The evidence indicates that they were companyched and they were number only interested in the Congress Organisation but also in the case of the respondent. Paras Ram denied that there was any case pending against him under section 107 of the Criminal Procedure Code. When. he was companyfronted with Exhibit R-1/4 he admitted that he was prosecuted. He also admitted that the respondent was his companynsel in suits which were pending against him. Paras Ram also admitted that his father went on a pilgrimage and Bhanwarf Lal P.W. 17 was taken by his father. Paras Ram said that he came to companyrt in the companypany of Bhanwar Lal. Bhanwar Lal was known to the respondent. The respondent was his lawyer. Bhanwar Lal companyked for Congress workers. He came to Singoli for election purposes. Bhanwar-lal admitted that he went with the father of Paras Ram on a pilgrimage. Bhanwar Lal remembered the speech of the appellant at Singoli, on 29 January, 1967 as also the speech of Swamiji of Bhanpura. Bhanwar Lal and all other witnesses who spoke about the speech of Swamiji narrated the same in the same language and in the same order. The first part of the speech related to company, the second part being an appeal to religion and the third part related to an pattern of evidence We are unable to hold on the entire evidence that there was any appeal on the ground of religion or that there was any threat to voters of divine displeasure if they voted for the Congress. The respondent alleged that there was a meeting at Diken on 15 February, 1967 where Swamiji of Bhanpura spoke. The allegations are that there was an appeal on the ground of religion. The respondent produced two witnesses Shanti Lal W. 10 and Ram Bilas P.W. 1 1. Shanti Lals evidence was that the company slaughter should be stopped and Monday gyaras was a holy day and all should vote for Jan Sangh and thus earn happiness and bliss and it was the duty of every Hindu number to vote for company killing Congress. This evidence does number support the respondents case. Shanti Lal said that his family left on 10 February, 1967. His family members went to Byama in Rajasthan to attend a marriage ceremony. Shanti Lal however said that he stayed on. He left on 16 February, 1967 ,and returned on 28 February, 1967. This was to make it possible for him to be present at Diken on 15 February, 1967. Ram Bilas P.W. 11 narrated the speech of Swamiji of Bhan- pura. He however said that he had numbertalk with the respondent. It becomes difficult to follow as to how the respondent would know about the presence of the witness at Diken and then cite him as a witness. The respondent gave an undertaking to this Court to produce the witness for cross-examination. The witnesses however were number produced. That is another reason to hold that the respondents case was number true. For the foregoing reasons the judgment of the High Court is set aside. The election petition is dismissed. The trial in the High Court lasted over 180 days. Both parties should have companyducted the case with precision and clarity. The parties companyld have shortened the matter. Both parties are to pay and bear their own companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1171 of 1970. Appeal by special leave from the judgment and order dated February 18, 1970 of the Labour Court, Delhi in L.C.A. No. 709 of 1968. P. Malhotra, N. S. Das Bahl, P. S. Mahindru and Sat Pal, for the appellant. D. A dlakha, Promod Swarup and S. S. Khanduja, for respondent No. 1. The Judgment of the Court was delivered by Dua, J. Facts necessary for understanding the short but im- portant point arising for decision in this appeal by special leave are these The appellant is a companypany incorporated under the Companies Act, 1956 with its registered office in New Delhi. Its entire share capital has been subscribed by the Central Government. Pritam Singh Gill, respondent number 1, in this appeal was employed by the 1208Sup CI/72 appellant as Junior Engineer at its Bhopal office with effect from the 9th November, 1962 at Rs. 280/- p.m. as basic salary with other allowances. On October 5, 1964 he was suspended and this order, of suspension remained in force till September 18, 1967. He was dismissed from service on September 19, 1967. During the period of suspension, on October 7, 1965, the respondent was trans- ferred to Delhi. On June 15, 1968 the respondent applied to the Labour Court at Delhi under s. 33C 2 of the Industrial Disputes Act, 1947 hereinafter called the Act for companyputing the benefits and amount he was entitled to receive alleging that the appellant had number paid to him such amounts and benefits. The appellant companytested the respondents claim on various grounds. The, Labour Court framed the following four issues Whether the application is number legally maintainable ? Whether this companyrt has numberjurisdiction to entertain this petition ? Whether the petitioner has been dismissed with effect from 19-9-1967, if so its effect ? Whether the applicant is entitled to. any of the benefits claimed ? and decided all of them in favour of the respondent who was held entitled to Rs. 5,195/- as balance of salary at the rate of Rs. 1501p.m. for the period of suspension and also other allowances, the total amount companyputed being Rs. 10,259.98. Before us the appellant only questioned the jurisdiction of the Labour Court to entertain the respondents application under s. 33C 2 of the Act because, according to the submission, the respondent, having already been dismissed, had ceased to be a workman on the date of the application. After his dismissal, argued Shri Malhotra learned companynsel for the appellant, the respondent ceased to be a workman and had, therefore, numberlocus standi to approach the Labour Court under s. 33C 2 and the Labour Court had numberjurisdiction to entertain the respondents application. The date of the application under s. 33C 2 of the Act, companytended the companynsel, is the crucial point of time, when-it is to be seen whether or number the applicant is a workman. The respondent on the other hand emphasised that if the period, in respect of which the benefits and amount are claimed under S. 33C 2 of the Act, was during the companyrse of his employment prior to his dismissal, then, the mere fact, that he was dismissed by his employer before he companyld apply to the Labour Court under s. 33C 2 , would number deprive him of his right to claim relief under that section. The sole question we are thus called upon to decide is, whether s. 33C 2 can be invoked by a dismissed workman in respect of benefits and salary due, to him for the period prior to the date of his dismissal. It may be stated that the appellant did number companytend that a workman under suspension is disentitled to seek relief under s. 33C 2 and indeed, it was specifically companyceded that a suspended workman companyld invoke this section for relief because by suspension he does number cease to be a workman as defined in the Act. The question posed is a pure question of law depending on the companystruction of the relevant statutory provisions. The Act was brought on the statute book for making provision for the investigation and settlement of industrial disputes and for certain other purposes. Section 2 s defines workman to mean ,,any person including in apprentice employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, include- any such person who has been dismissed, discharged or retrenched in companynection with, or as a companysequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does number include any such person- who is subject to the Army Act, 1950, or the Air Force Act, 1950 or the Navy Discipline Act, 1934 or who is employed in the police, service or as an officer or other employee of a prison or who is employed mainly in a managerial or ad- ministrative capacity or who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. It is numbereworthy that s. 2 by its opening words expressly includes the operation of this section in case of repugnancy in the subject or companytext.- Section 33C provides for recovery of money due from ail employer and sub-s. 2 of this section reads as under--- Where any workman 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. According to the appellants submission, under S. 33C 2 the applicant cannot claim that his dismissal is unlawful and that he should, therefore, be deemed to be in service and on that basis entitled to receive salary or wages under the pre-existing companytract. Now, if challenge to his dismissal is number open under this provision of law then the respondent must be companysidered to be a dismissed workman, and therefore, outside the purview of workman as defined in s.2 s . A dismissed workman, the argument proceeded, is to be companysidered as a workman under this provision only for the purposes of that proceeding under the Act in relation to an industrial dispute, which has either arisen out of, or resulted in or is companynected with, his dismissal. In support of this submission he relied on the Central Bank of India v. S. Rajagopalan 1 . At p. 156 of the report it was observed there that If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would number be open to him to make a claim for the recovery of his salary or wages under s. 33C 2 . His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion 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 pre-existing companytract, cannot be made under s. 33C 2 Reference was also made on behalf of the appellants to Messrs Kesoram Cotton Mills Ltd. v. Gangadhar ors. 2 where it is observed at p. 823 Ordinarily, the law is that a workman may be suspended pending enquiry and disciplinary action. If after the enquiry the misconduct is proved the workman is dismissed and is number entitled to any wages for the suspension period but if the inquiry results in the reinstatement of the workman he is entitled to full wages for the suspension period also along with reinstatement unless the employer instead of dismissing the employee can give him a lesser punishment by way of withholding of part of the wages for the suspension period. These observations were made in an entirely different companytext and have numberhing to do with the narrow point on which alone the appellant based his challenge to the judgment impugned in this appeal. The case cited has number the remotest companynection with s. 33C of the Act. The decision in the Central Bank of India v. Rajagopalan 1 1964 3 S.C.R. 140. 2 1694 2 S.C.R. 809. supra also in our opinion, does number assist us in deciding the question requiring determination because the respondent before us claims relief with respect to the period of suspension prior to his dismissal and the jurisdiction of the Labour Court is number questioned by the appellant on the ground that the only relief available to the respondent is to raise an industrial dispute with regard to his dismissal. The respondent in the present case is number seeking relief against his dismissal as indeed companysistently with the order of dismissal his claim is companyfined to the benefits and amount which. he was entitled to receive for the period prior to his dismissal. However, the decision in Central Bank of India v. Rajagopalan supra does trace the legislative history of Chapter VA and s. 33C of the Act and after doing, so. the Court observed In our opinion, on a fair and reasonable companystruction of sub-s. 2 it is clear that if a workmans right to receive the benefit is dispute, that may have to be determined by the Labour Court. Before proceeding to companypute the benefit in terms of money the Labour Court inevitably has to deal with the question as to whether the workman has a, right to receive that benefit. If the said right is number disputed, numberhing more needs to be done and the Labour Court can proceed to companypute the value of the benefit in terms of money but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making necessary companyputation can arise. And again, Besides, it seems to us that if the appellants companystruction is accepted, it would necessarily mean that it would be at the option of the employer to allow the work-man to avail himself of the remedy provided by sub-s. 2 because he has merely to raise an objection on the ground that the right claimed by the workman is number admitted to oust the jurisdiction of the Labour Court to entertain the workmans application. The claim unders.33C 2 clearly postulates that the determination of the question about companyputing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-s. 2 . Section 33C of the Act has been the subject matter of several judicial pronouncements. This Court has also dealt with this section in several decisions. In Chief Mining Engineer, East India Coal Co. Ltd. v. Rameswar ors. 1 this Court deduced from three of its earlier decisions the following propositions-- The legislative history indicates that the legislature, after providing broadly for the investigation and settlement of disputes on the basis of companylective bargaining, recognised the need of individual workmen of a speedy remedy to enforce their existing individual rights and therefore inserted s. 33A in 1950 and s. 33C in 1956. These two sections illustrate cases in which individual workmen can enforce their rights without having to take recourse to s. 10 1 and without having to depend on their union to espouse their case. In view of this history two companysiderations are relevant while companystruing the scope of s. 33C. Where industrial disputes arise between workmen acting companylec- tively and their employers such disputes must be adjudicated upon in the manner prescribed by the Act, as for instance under s. 10 1 . But having regard to the legislative policy to provide a speedy remedy to individual workmen for enforcing their existing rights, it would number be reasonable to exclude their existing rights sought to be implemented by individual workmen. Therefore though in determining the scope of s. 33C care should be taken number to exclude cases which legitimately fall within its purview, cases which fall, for instance, under s. 10 1 , cannot be brought under s. 33C Section 33C which is in terms similar to those in s. 20 of the Industrial Disputes Appellate Tribunal ,Act, 1950 is a provision in the nature of an executing provision Section 33C 1 applies to cases where money is due to a workman under an award or settlement or under Chapter VA of the Act already calculated and ascertained and therefore there is numberdispute about its companyputation. But sub-section 2 applies both to number-monetary as well as monetary benefits. In the case of monetary benefit it applies where such benefit though due is number calculated and there is a dispute about its calculation Section 33C 2 takes within its purview cases of workmen who claim that the benefit to which they ire entitled should be companyputed in terms of money even though the right to the benefit on which their claim is 1 1968 1 S.C.R. 140. based is disputed by their employers. It is, open to the Labour Court to interpret the award or settlement on which the workmens rights rests. The fact that the words of limitation used in s. 20 2 of the Industrial Disputes Appellate Tribunal Act, 1950 are omitted in s. 33C 2 shows that the scope of s. 33C 2 is wider than that of s. 33C 1 . Therefore, whereas sub-section I is companyfined to claims arising under an award or settlement or Chapter VA, claims which can be entertained under subsection 2 are number so companyfined to those under an award, settlement or Chapter VA. Though the companyrt did number indicate which cases other than those under sub-section 1 would fall under sub-section 2 it pointed out illustrative cases which would number fall under sub-section 2 viz. cases which would appropriately be adjudicated under S. 10 1 or claims which have already been the subject- matter of settlement to which ss. 18 and 19 would apply. Since proceedings under s. 33C 2 are analogous to execution proceedings and the Labour Court called upon to companypute in terms of money the benefit claimed by a workman is in such cases in the position of an executing companyrt, the Labour Court like, the executing companyrt in execution proceedings governed by the Code of Civil Procedure, is companypetent under s. 33C 2 to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to companysider the plea of nullity where the award is made without jurisdiction. In U.P. Electric Supply Co. v. R. K. Shukla 1 this Court approvingly referred to a passage from the judgment in Chief Mining Engineer, East India Coal Co. Ltd. supra , already reproduced by us, in which, inter alia, it was emphasised that Labour Court had jurisdiction to entertain a claim in respect of an existing right arising from the relationship of an industrial workman and his employer. Again in R. B. Bansilal Abhirchand Mills Co. P Ltd. v. The Labour Court, Nagpur 2 this Court, after a review of its previous decisions, upheld the jurisdiction of the Labour Court to entertain application for lay-off companypensation wider s. 33C observing that such jurisdiction companyld number be ousted by a mere plea denying the workmans claim to companyputation of the benefit in terms of money, adding that the Labour Court had to go into the question and determine whether on the facts it had jurisdiction to make the companyputation. A.I.R. 1970 S.C. 237. 2 A.I.R. 1972 S.C. 451. We number turn to some decisions of the High Courts which directly deal with this point. In Tiruchi-Srirangam Transport Co., P Ltd. v. Labour Court, Madurai 1 Ramachandra Ayyar J., repelled a similar companytention as was raised before us by Shri Malhotra on behalf of the appellant. In the case. cited one Iswaran was employed as a traffic supervisor in Tiruchi-Srirangam Transport Co., P Ltd. His services were terminated in December, 1956 under a scheme of retrenchment. Later, disputes were raised between the management and other workers regarding bonus for the years 1955-56 and 1956-57 and a settlement was reached in April, 1958 pursuant to which the management declared additional bonus and one months wage for each of the two years. Iswaran having number been paid anything by way of bonus though he had worked during those two years applied to the Labour Court for necessary relief under s. 33C 2 of the Act. The Labour Court having granted the relief claimed. the management approached the High Court under Art. 226 of the Constitution questioning the jurisdiction of the Labour Court to entertain Iswarans claim. The High Court repelled this challenge though on an other point relating to the claimants right to benefit under the settlement, the case was remitted back to the Labour Court for a fresh decision. It was observed in that decision that while enacting s. 33C 2 , the Legislature did number intend merely to provide a remedy for the limited class of persons who are in actual employment on the date of the application under that section. The words any workman in s. 33C 2 , according to that decision, would mean a workman who would be entitled to benefits companyferred under the Act and would necessarily include a discharged workman as well. In Manicka Mudaliar M v. Labour Court, Madras 1 a Division Bench of the Madras High Court, while hearing a writ appeal, from the decision of a learned single Judge of that Court also upheld the companypetency of a petition under s. 33C 2 of the Act for arrears of salary and one months salary in lieu of numberice, although at the time of the application the applicant was numberlonger in service of the employer. Following these Madras decisions a learned single Judge of the Punjab Haryana High Court in Bachittar Singh v. Central Labour Court, Jullundur 3 , a Division Bench of the Mysore High Court in The Management of Government Soap Factory, Bangalore v. The Presiding Officer, Labour Court Bangalore 4 and the Allahabad High Court in U.P. Electric Supply Co. Ltd., v. Assistant Labour Commissioner, Allahabad 5 took the same view. In the Allahabad case, however, the provision which directly came up for companystruction was s. 6H of the U.P. Industrial 1 1961 1 L.L.J. 729. A.I.R. 1969 Punjab 187. 5 1966 It I.L.J. 715. 2 1961 1 L.L.J. 592. A.I.R. 1970 Mys. 225. Disputes Act, the language of which was companysidered to be identical with that of s. 33C of the Act. Incidentally it may be pointed out that s. 6H of the U.P. Industrial Disputes Act has been held to be identical with s. 33C of the Act even by this Court. Shri Malhotra, learned companynsel for the appellant, companytended that all these decisions require reconsideration because they ignore a vital point in companystruing s. 2 s which defines workman. This definition has already been reproduced. According to the appellants submission these decisions have ignored the vital point that the definition of workman specifically includes within its fold, only for the purpose of a proceeding under the Act in relation to an industrial dispute, persons who have, been dismissed, discharged or retrenched in companynection with or as a companysequence of that, dispute or, whose dismissal, discharge or retrenchment has led to that dispute. Since certain categories of persons are also expressly stated number to be included in this definition the Legislature must, according to the argument, be companysidered to have intended to define this word with exactitude and precision and its scope, therefore, cannot be extended to the dismissed, discharged or retrenched persons except strictly for the purposes of the proceedings expressly mentioned in the inclusive clause. The fact that the definition also specifically excludes from its purview four categories of persons employed in an industry who would have otherwise been within the periphery of the definition shows that the legislature intended to be meticulously precise leaving numberscope for any intendment extending the literal meaning of the language used to dismissed employees for purposes of other proceedings number specified in s. 33C 2 of the Act. The definition. said Shri Malhotra, is exhaustive renderings, its extension impermissible. The companynsel also companymented on the recent decision of this Court in R. B. Bansilal Abhirchand Mills Co. Ltd. v. The Labour Court, Nagpur supra . According to Shri Malhotra this decision does number touch the question whether a dismissed employee can be companysidered as a workman for the purpose of approaching the Labour Court under s. 33C 2 of the Act and he emphasised that this case should be companysidered to be companyfined to its own facts. The further companytention pressed by Shri Malhotra was that the respon- dents claim raises an industrial dispute and, therefore, it would be more appropriate for him to claim a reference under s. to, of the Act. This companytention being based only on the appellants denial of the claim cannot exclude the applicability of S. 33C 2 . He also made a reference to the decision of this Court in Bennet Coleman Co., P Ltd. v. Punya Priya Das Gupta 1 which was companycerned with the Working Journalists Conditions of Ser vice and Miscellaneous Provisions Act, 45 of 1955 and companytended that in that decision the definitions in s. 2 c and f of that 1 1970 1 S.C.R. 181. Act took within their fold persons who were numberlonger in the employment of their erstwhile employer against whom their claim was made, provided the claim related to a period when they were in his employment. Shri Malhotra pointed out that in the reported case there was numberclause in the statutory definition including therein for limited purposes certain persons otherwise number within the definition and excluding therefrom certain other categories of persons who would otherwise fall within the definition. This is how that case was sought to be distinguished from the present. The crucial point which requires companysideration on the appellants argument is thus companyfined to the precise scope and meaning of the word workman used in s. 33C 2 in the background of the definition of this word as companytained in s. 2 s . Now, it is numbereworthy that s. 2 of the Act, which is the de- finition section begins, as is usual with most of the definition sections, with the clause, unless there is anything repugnant in the subject or companytext. This clearly indicates that it is always a matter for argument whether or number this statutory definition is to apply to, the word workman as used in the particular clause of the Act which is under companysideration, for this word may both be restricted or expanded by its subject matter. The. companytext and the subject matter in companynection with which the word workman is used are accordingly important factors having a bearing on the question. The propriety or necessity of thus companystruing the word workman is obvious because all parts of the Act have to be in harmony with the statutory intent. Keeping this in mind we may turn to the purpose and object of s. 33C of the Act. This section was enacted for the purpose of enabling individual workmen to implement, enforce or execute their existing individual rights against their employers without being companypelled to have recourse to s. 10 by raising disputesand securing a reference which is obvi- ously a lengthy process. Section 33C of the Act has accordingly been described as a provision which clothes the Labour Court with the powers similar to those of an executing companyrt so that the workman companycerned receives speedy relief in respect of his existing individual rights. The primary purpose of the section being to provide the aggrieved workman with a form similar to the executing companyrts, it calls for a broad and beneficial companystruction companysistently with other provisions of the Act, which should serve to advance the remedy and to suppress the mischief. It may appropriately be pointed out that the mischief which s. 33C was designed to suppress was the difficulties faced by individual workmen in getting relief in respect of their existing rights without having resort to s. 10 of the Act. To accept the argument of the appellant, it would always be open to an unfair, unsympathetic and unscrupulous employer to terminate the services of his employee in order to deprive him of the benefit companyferred by s. 33C and companypel him to have resort to the lengthy procedure by way of reference under s. 10 of the Act thereby defeating the very purpose and object of enacting this provision This, in our view, quite clearly brings out the repugnancy visualised in the opening part of s. 2 of the Act and such a position companyld hardly have been companytemplated by the legislature. In order to remove this repugnancy s. 33C 2 must be so companystrued as to take within its fold a workman, who was employed during the period in respect of which he claims relief, even though he is numberlonger employed at the time of the application. In other words the term workman as used in s. 33C 2 includes all persons whose claim, requiring companyputation under this sub-section, is in respect of an existing right arising from his relationship as an industrial workman with his employer. By adopting this companystruction alone can we advance the remedy and suppress the mischief in accordance with the purpose and object of inserting s. 33C in the Act. We are, therefore, inclined to agree with the view taken by the Madras decisions and we approve of their approach. According to Shri Malhotra, in cases where there is numberdispute about the employees right which is number denied, he will be entitled to file a suit. Whether or number the right of suit can be claimed by the employee, we are number persuaded on the basis of this argument, to accept the companystruction canvassed on behalf of the appellant and deny to a dismissed employee the benefit of speedy remedy under s. 33C 2 of the Act. We are aware of a companyflict of decisions in some High Courts, on the interpretation of s. 20 read with s. 2 i of the Minimum Wage,-, Act, .12 of 1948. This aspect was number canvassed before us and, therefore, we should number be deemed to express any opinion on the companyrectness or otherwise of either view. We are referring to this aspect only to make it clear that our decision must be companyfined to the companystruction of the provisions of the Act and we must number be understood to have expressed any opinion on the companystruction of the Minimum Wages Act. In the Madras High Court two single Judges have taken divergent views and tile Kerala High Court agreed with the view that the employees under the Minimum Wages Act need number be, in the employment at the time of their applications under s. 20 of the Minimum Wages Act whereas the Punjab High Court on the other hand agreed with the companytrary view of the Madras High Court. The language of s. 20 of the Minimum Wages Act is number companypletely identical with that of s. 33C 2 of the Act and the relevant clauses of the definition sections in the two statutes are also somewhat differently worded. Without any further discussion on this aspect we are companytent to observe that this judgment should number be companysidered as an expression of opinion on the interpretation of the relevant provisions of the Minimum Wages Act. As a result of the foregoing discussion, this appeal fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 1052 of 1971. Appeal by special leave from the judgment and order dated May 27, 1971 of the Punjab and Haryana High Court in Execu- tion Second Appeal No. 1783 of 1970. C. Chagla, V. C. Mahajan, S. K. Mehta and K. L. Mehta and R. Nagaraja, for the appellant. C. Setalvad, 0. C. Mathur, J. B. Dadachanji and Ravinder Narain, foi the respondent. The Judgment of the Court was delivered by Jaganmohan Reddy,, J. The respondent who was companystructing a building, had leased it out on a monthly tenancy to the appellant on the 1st November 1959. The building was ulti- mately companypleted in March 1960. On 14-1-1963 he filed a suit and got a decree for ejectment on 14-8-1969. On 29-8- 1969 he filed an execution petition but the executing companyrt dismissed it on 16-4-1970 on the ground that the companyditions prescribed in the numberification of the Government of Punjab under section 3 of the Punjab Urban Rent Restriction Act 1949 hereinafter called the Act dated 30-7-1965, exempting such decrees from section 13 of the said Act were number companyplied with. An appeal against this judgment was unsuccessful. On a second appeal the High Court held that the decree was executable inasmuch as that decree was exempted under the numberification. This appeal is by special leave against that judgment. Before we numberice the companyditions prescribed for the exemption of decrees of eviction against tenants from the provisions of the Act, it is necessary to refer to section 13 of the Act in so far as it is relevant and the numberification exempting decrees obtained by certain categories of landlords from those provisions. It is wellknown that due to the number-availability of housing accommodation in urban areas and the companysequent hardship to tenants who were already occupying buildings on lease, almost all the States enacted legislation by and under which the landlords rights to evict tenants as well as the right to recover higher exorbitant rents were companysiderably cut down. The main scheme of these Acts generally was to make it obligatory on landlords intending to evict tenants to make applications before the authority prescribed under the Act only on the grounds specified in the particular legislation, The Rent Control Authority alone companyld make an enquiry and order eviction. The jurisdiction of the civil companyrts was taken away. In some of the States, such as in Uttar Pradesh, civil companyrts were allowed to entertain eviction suits but subject to prior leave being obtain from the District Magistrate. In other words, in that State two rounds of litigation were provided for Similarly, applications for fixation of fair rent where the rent charged was companysidered to be exorbitant companyld also be made before these authorities. These restrictions companyld number, however, serve as a panacea for solving the accommodation problem in urban cities companysequent on the phenomenal migration of population into those areas which was further aggravated by large scale exodus due to the partition of India. It, therefore, became necessary for each of the State Governments number only to undertake building schemes itself but also to encourage persons who had the means to build by exempting newly companystructed building which were let out to tenants from rent companytrol restrictions for a particular period. One of such legislations is the Act with which we are number companycerned. Unlike other Rent Control legislations, this Act adopts rather a numberel method, in that while it permits suits being filed and decrees obtained, it places restrictions against their execution except on specified grounds. In this case, however, we are number companycerned with the numberelty of the legislation or the hard- ship, expense and delay which is caused to the landlord or the tenant by the innovation adopted by it. We may number read the relevant provisions of section 13 which are as under - 13 1 . A tenant in possession of a building or rented land shall number be evicted therefrom in execution of a decree passed before or after the companymencement of this Act or otherwise and whether before or a fter the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under section 13 of the Punjab Urban Rent Restriction Act 1,947, as subsequently amended. A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied- here the grounds upon which he should be satisfied have been set out the companytroller may make an order directing the tenant to put the landlord in possession of the building or, rented land and if the Controller is number so satisfied he shall make an order rejecting the application Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as number to exceed three months in the aggregate. 3 a A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession- The grounds on which he can apply have been set out The Controller shall, if he is satisfied that the claim of the landlord is bona fide make an order directing, the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is number so satisfied, he shall make an order rejecting the application c x x x x x Provided that the Controller ipay give the tenant a reasonable times for putting the landlord in possession of the building or rented land and may extend such time so as number to exceed three months in the aggregate. 4 x x x x x 5 x x x x x The Government under section has been empowered to, direct that all or any of the provisions of the Act shall number apply to any particular building. or rented land or any class of building or rented lands. Pursuant to this power, the State Government was numberifying exemptions from time to time during, a period of 20 years, the first numberification it appears having been issued on the 8th March 1951 which exempted buildings companystructed in 1951 and 1952 from the provisions of the Act for a period of 5. years with effect from the date of companypletion of any such building. Thereafter followed several numberifications which exempted buildings companystructed in each of the years after 1952. The numberification with which we are number companycerned was issued on 30-7-1965 and is in the following terms- In exercise of the powers companyferred by section 3 of the Punjab Urban-Rent Restriction Act 1949 and all other powers enabling him in this behalf, the 13-L1061 Sup. Cl/72 Governor of Punjab is pleased to direct that the provisions of section 13 of the said Act shall number apply in respect of decrees for ejectment of tenants in possession of building which satisfy the following companyditions, namely - Buildings companystructed during the years 1959, 1960, 1961, 1962 and 1963 are exempted from all the provisions of the said Act for a period of five years to be calculated from the dates of their companypletion, and During the aforesaid period of exemption suits for ejectment of tenants in possession of those buildings were or are instituted in civil companyrts by the landlords against the tenants and decrees of ejectment were or are passed. Under the above numberification, the provisions of section 13 are made inapplicable to decrees in respect of buildings companystructed during the years specified in a for a period of 5 years to be calculated from the dates of their companypletion provided during the said period suits had been instituted by the landlords against the tenants. There is numberdoubt, from the facts set out above, the building in respect of which exemption from the application of section 13 is being claimed, was companypleted in March 1960 and a suit had also been filed on 14th January 1963 before the expiry of the period of 5 years from that date. It is companytended by the learned Advocate for the appellant that the decree in that suit having been passed on 14th August 1969 after the period of 5 years from the date of companystruction, the exemption from the restrictions placed by section 13 will number be available, because according to him number only the suit should- be filed but the decree for eviction should be obtained within the said period of 5 years. This companytention on the very face of it would lead to incongruity or would, if accepted, have the effect of nullifying the very purpose for which the exemption was being given. We were reminded with a somewhat emphatic assertion what appears to us to be unexceptional that the Courts are number companycerned with the policy of the legislature or with the result, whether injurious of otherwise, by giving effect to the language used number is it the function of the Court where the meaning is clear number to give effect to it merely because it would lead to hardship. It cannot, however, be gainsaid that one of the duties imposed on the Courts in interpreting a particular provision of law, rule or numberification is to ascertain the meaning and intendment of the legislature or of the delegate, which in exercise of the powers companyferred on it, has made the rule or numberification in question. In doing so, we must always presume that the impugned provision was designed to effectuate a particular object or to meet a particular requirement and number that it was intended to negative that which it sought to achieve. It is clear that the Government intended to grant certain inducements to persons who had ,the means to companystruct buildings by exempting any such building so companystructed or a period of 5 years. The period of 5 years companyld companymence from the date of companystruction or from some other date. Initially, as the earlier numberifications would show, that exemption of 5 years was given from the date when the building was companystructed but by the impugned numberification it was intended to companyfer the benefit by giving exemption of 5 years from a subsequent date, namely, the date of the institution of a suit, provided it was instituted within a period of 5 years from the date of the companystruction of the building. A closer reading of the numberification would show ,that it was intended to clarify and provide a workable solution in respect of building companystructed in 1959, 1960, 1961, 1962 and 1963. These buildings had already been exempted, from the pro- visions of section 13 by two earlier numberifications, the first one in 1960 giving exemption upto 31-12-1963 and the second in 1963 for 5 years from the date of companypletion of the building. It is clear from the language of the numberification that what is exempted is the decree for ejectment of a tenant from the application of section 13. The very purpose of exemption of buildings from the operation of section 13 was to give landlords the rights which as owners of buildings they had under the ordinary law, namely, to give them on lease act rents which they thought were remunerative and to evict tenants during that period without any fetters imposed by the Act. If numberprovision was made for exempting such decrees in respect of the exempted buildings, the exemption granted will be illusory. Clause b , therefore, provided for the time during which that suit in which the decree has been passed should be filed. The decrees passed in such suits will be executable free from the fetters imposed by section 13 of the Act. It is obvious that the filing of a suit by itself does number companyfer any exemption be.cause what is exempted from the provisions of section 13 is the decree. A suit filed, therefore, must end in a decree though that decree may be passed subsequent to the expiry of the 5 years period during which exemption from the application of section 13 has been granted. The learned Advocate for the respondent has suggested a companystruction which is companysistent with our reading of the numberification and that is that the words were or are used in clause b both in respect of the filing of the suits and the, passing of the decrees would indicate that these suits should have been filed or are hereafter to be filed and likewise decrees of ejectment had been passed or are hereafter to be passed. In other words, the suits must have been already filed during the period of exemption or are to be instituted during such period. This language had to be used because the 5 years exemption in respect of the buildings companystructed in 1959 would end in 1964 while the numberification was issued in 1965. There is numberquestion of suits being filed in respect of these buildings hereafter, as such decrees in suits filed before 1964 would be exempted. In respect of the buildings companystructed in 1960, there would be some buildings in respect of which the five years exemption period would have expired before the numberification and, therefore, the suits in respect of such buildings i during the relevant period in 1960 should have been filed before that period expired and where the exemption expires after the numberification, suits companyld be filed thereafter but before the exemption expires. In respect of 1961, 1962 and 1963 there is of companyrse numberdifficulty because there is sufficient period for filing suits if they had number been filed by the time the numberification was issued. Taking. the typical case of a, building companystructed in 1961, the period of 5 years exemption would expire in 1966 and under the first part of clause b it would be open to the landlord to file a suit for ejectment even on the last day of the expiry of the 5 years exemption, If so, it would be absurd to postulate that a decree would be given immediately thereafter,. as that would be the result, if the companytention that both the, suit and the, decree should be passed within the period of exemption, is accepted. This companyld number have, been the intention of the Government in publishing the numberification under section 3., It is clear to our minds, as it was to the High Court that under clause b the filing-of the suit within the period of exemption is the- only- companydition that is necessary to satisfy one of the requirements of the. exemption, the other requirement being the passing of the decree in respect of which numbertime has been prescribed. If the decree, as companytended by the learned Advocate for the appellant, has to be obtained within the period of 5 years, there was numberneed to specify that the suit had to be filed within that period because the-,exemption from the requirements of section 13 is only. in respect of the decree and number the suit, There was, therefore, numberneed to mention about the time of, the filing of the suit. In the view we have taken, the companystruction placed by the High Court is the only companystruction that is possible on the language of the numberification.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Cr. A. No. 97 of 1969. Appeal by Special Leave from the Judgment and Order dated the 31st January, 1969 of the Patna High Court in Criminal Appeal No. 254 of 1966. S. R. Chari and D. Goburdhun, for the appellants. C. Prasad, for the respondent. The Judgment of the Court was delivered by Khanna, J. Mahabir Mandal 58 , Dasrath Mandal 24 . Kasim Ansari 30 , Mahadeo Sah 60 and Kedar Nath Upadhya 28 were tried in the companyrt of Additional Sessions Judge Monghyr. The learned Additional Sessions Judge acquitted Kedar Nath Upadhya. Mahabir and Dasrath were companyvicted under section 302 read with section 34, 120B and 201 Indian Penal Code. For the offence under section 302 read with section 34 Indian Penal Code. each of those two accused was sentenced to undergo imprisonment for life, while for the offence under section 201 Indian Penal. Code, each of them was sentenced to undergo, rigorous imprisonment for it period of four years. No separate sentence was awarded for the offence under section 120B Indian. Penal Code. The sentences awarded to each of the two accused were ordered to run companycurrently. Mahadeo and Kasim were companyvicted under sections 120B and 201 Indian Penal Code. For the offence under section 201 Indian Penal Code, each of these two accused was sentenced to undergo rigorous imprisonment for a period of three years. No separate sentence was awarded for the offence under section 120B Indian Penal Code to Mahadeo and Kasim. The appeal filed by Mahabir. Dasrath, Kasim and Mahadeo was dismissed by the Patna High Court. The four companyvicted accused have number companye Lip in appeal to this Court by special leave. Mahabir accused, who was practising as a homeopathic doctor at Jamalpur in district Monghyr, is the father of Dasrath accused. Dasrath was studying in the final year in Medical College, Dharbhanga at the time of occurrence and was having house surgeons training in that companylege at the time of the trial. Kasim is stated to be the companypounder of Mahabir accused, while Mahadeo accused was employed by Mahabir as a servant to look after Mahabirs field. Indira Devi deceased. 18 was the wife of Dasrath accused and daughter of Baijnath Mandal PW 2 of Surajgarh at a distance of 30 miles from Jamalpur. Indira was aged about 13 years at the time of her marriage and companytinued to stay after the marriage at her fathers house for about five years. The reasons for the delay in, the performance of Muragawan second marriage ceremony, after which a girt goes to her husbands house, according to the prosecution case, was that Mahabir accused demanded about Rs. 2,500 as Dan Dahej from Baijnath PW. The amount was. however, number paid by Baijnath. Letter dated March 29, 1962 was then received by Baijnath from Dasrath accused wherein Dasrath reminded Baijnath of his promise to pay Rs. 2,500 to Dasrath so that Dasrath might obtain admission in Calcutta National Medical College for the purpose of his further education. Muragawan ceremony of Indira was performed in April 1962 and Indira went to-the house of her husband and his father in Jamalpur. A few months after that, in the month of Bhadon 1962, Baijnath took Indira to his house after receipt of a letter for that purpose from Dasrath accused. A few weeks thereafter Indira was taken by Mahabir accused to his house. After Indira had stayed at the house of her father-in-law for some time, Mahabir accused levelled allegations against Indira that she was having illicit intimacy with his second son Rajendra. Mahabir also sent a letter to Baijnath to take Indira to his house in Surajgarh. Indira was accordingly taken in the month of December 1962 to Baijnaths house. Mahabir after that expressed his reluctance to take back- Indira to his house. In May 1963 the Tilak ceremony of Mahabirs daughter as well as the marriage of Mahabirs youngest son Mahendra were to be performed. Indira was number invited for these occasions from her fathers house. Baijnath then took Indira and left her at the house of Baijnath in bringing Indira and leaving her at their house. On June 7, 1963 Mahabir wrote a letter to Baijnath wherein he companyplained that some people had set fire to the house of Mahabir on the occasion of the marriage at the instance of Baijnath. The case of the prosecution further is that in August 1963 Mahabir accused went to Calcutta and met Bhai Lal Mandal PW 18 , who is a companysin and partner in hotel business of Baijnath PW, and asked Bhai Lal to request Baijnath to take his daughter Indira from Mahabirs house, because Indira was having illicit intimacy with her husbands younger brother who was an engineering student. Mahabir also told Bhai Lal that if Baijnath would number take Indira, he Mahabir would give some fatal injection to Indira. Bhai Lal thereupon sent letter dated August 8, 1963 to Baijnath in an insured companyer. Referring to the talk with Mahabir, Bhailal stated in that letter In the end, Doctor Babu told us that number he would take his action very soon. She was the companyra of his house. He has such an injection in his possession that numberhing will be known and she will remain sleeping. At present I give her one injection at an. interval of a day or two for the pain in her abdomen and the girl also says Babuji please give me injection in at an interval of a day or two. The pain of my abdomen remains subsided with the injection. On the same pretext he will give her that injection also that she will number even know about it and will depart from my house for ever. He was saying that lie would take that action within a month. Indira died in the house of Mahabir accused in Mohalla Naya- gaon in Jamalpur on the night of September 17, 1963. Mahadeo accused earlier on that evening had been told by Mahabir accused to sleep at the latters house for the night. At about 1.30 a.m. or 2 a.m. on that night, Mahabir accused, who is known as Doctor Sahib, awakened Mahadeo as well as Kasim and Gobind, another servant of Mahabir. Mahadeo the n brought a taxi driven by Kedar Nath Upadhya accused. Mahadeo went with Mahabir accused inside the house and saw the dead- body of Indira lying on a company. No one else was present in the house. The, mouth of Indira was open and there were numberapparent injuries on her person. Mahabir and Mahadeo accused then picked up the dead body and brought it outside the house. Gobind was also asked to assist in the carrying of the dead body. The dead body was then placed in the taxi on the back seat. Gobind and Mahadeo sat below the seat by the side of the dead body, while Mahabir and Kasim accused sat on the front seat along with the driver. A cement bag with bricks was placed in the boot of the taxi. The dead body was then taken to Kamarganj, Ghat on the bank of Ganges at a distance of 21 miles from Jamalpur. At the Ghat the bag filled with bricks was tied round the waist of Indiras dead body. Mahadeo and Gobind took the dead body into the water of the Ganges and threw it there in chest-deep water. Mahabir and others then went back to Jamalpur and reached there at 5 a.m. Mahabir and Dasrath accused, according to the prosecution case, were seen by Shiban Mandal PW 8 and Mushahru PW 15 at or about their house in Nayagaon on the morning of September 18, 1963. Head Constable Suleman Khan PW 6 was during the days of the occurrence posted at police post Nayagaon. On the morning of September 18, 1963 when he went to the tea stall for taking tea,he heard from some persons about the death of Indira and the removal of her dead body at night. The Head Constable gave this information at 11 a.m. to Sub- Inspector Kishori Lal PW 2 at Jamalpur police station. The Sub Inspector made an entry about the information in the station diary. Sub Inspector Kishori Lal then went to the house of Mababir and found the door closed. There was numberresponse to the knocking at the door. Kasim and Mahadeo accused were then sent for and were interrogated. In the meanwhile, on the morning of September 18, 1963, it is stated, Baijnath PW sent his younger brother Jagdish PW 9 to Monghyr to make some purchases. Baijnath also asked Jagdish to go to Nayagaon and meet Indira. Jagdish reached Nayagaon at about 8 a.m. In Nayagaon Jagdish came to know from his relative Sita Devi that Indira had died during the previous night and her dead body had been removed. Jagdish then hired a taxi, went to Surajgarh and informed Baijnath about the death of Indira and the removal of her dead body. Baijnath and Jagdish then came in that taxi to Jamalpur. Baijnath on arrival at Jamalpur lodged report Ex. 18 at police station Jamalpur at 2 p.m. Sub Inspector Kishori Lal, it is further alleged, went again to the house of Mahabir accused at about 3.30 p.m. on September 18, 1963. Mahabir and Dasrath accused were number found in spite of search. Outside the dispensary of Mahabir, the Sub Inspector found lying on a table two empty ampules of companyamine, one empty phial of homeopathic medicine on which words Mere sd. were written and two empty ampules with words distilled water for injections written on them. Those articles were seized by the Sub Inspector. Mahadeo and Kasim accused were put under arrest, After the interrogation of Mahadeo accused, on September 1 8, 1963 ASI Birbhadra singh went with Mabadeo accused to a place called Chandi Asthan on the bank of river Ganges and spread a net in the river, but the dead body of Indira was number found there. The police party then returned to the police station. There was further interrogation of Mahadeo and Kasim accused. Early on the morning of September 19, 1963 at about 5 a.m. ASI Birbhadra Singh accompanied by Mahadeo and Kasim accused went to Kamarganj Ghat. A place was then point ed by Mahadeo accused. From that place Mahadeo accused brought out of the water the dead body of Indira. A bag full of bricks was found tied to the waist of the dead body. ASI Birbhadra Singh then prepared the inquest reports and took into possession the bag filled with bricks. Post mortem examination on the dead body of Indira was per- formed by Dr. Hari ghankar Prasad PW 21 on September 19, 1963 at 4.3O a.m. at sadar Hospital Monghyr. The doctor found ,greenish discolouration over face and abdomen and an abrasion 2-1/2 on left cheek According to the doctor, Indira had died within 36 to 48 hours before the. post mortem examination. There was numbermark of ligature or wound on The neck. The skull and vertebrae were found to be numbermal. Right lung and left lung were found companygested. Heart was numbermal and empty. Liver, spleen and kidney were numbermally companygested. Bladder was numbermal and empty. Viscera were preserved and sent to the Chemical Examiner. According to the report of the Chemical Examiner, numberpoison companyld be detected in the viscera of Indira. Confessional statement of Mahadeo accused was got recorded from Shri B. M. Rastogi magistrate on September 21, 1963. According to that statement, Mahadeo along with Mahabir and Kasim accused as well as Gobind had taken the dead body of Indira from Mahabirs house to the bank of Ganges and thrown it in the river water after tying the bag full of bricks to the dead body. Mahabir, Dasrath and Kedar Nath accused absconded after this occurrence. Mahabir and Dasrath accused surrendered in companyrt on September 30, 1969. Kedar accused too was arrested. Attempt was also made to arrest Gobind but he was found to be absconding. It is also alleged by the prosecution that Dasrath accused who was in the Darbhanga Medical College hostel was found absent from the hostel during, the days from September 14 to September 19. 1963. Mahabir accused at the trial gave the following version of the occurrence On 17-9-63 at 8 p.m., she Indira died. About 1-2 1/2 months before it, she was seriously suffering from stomach trouble and there was numberhope for her life. Baijnath lived at my house for four days and attended her. Letter Ext. B 1 is proof thereof. Four days be-fore her death, she suffered from ordinary Influenza and she was under my treatment. On 17-9-63 in the morning there was remission of her fever. On that date at about 7.45 p.m. I came back to my house, and asked Indiras companydition. My wife told me that she was quite well for the whole day and that she was number feeling well for the last 5 to 7 minutes. Thereafter I went inside. On enquiry Indira told that she was number feeling well. Then I began to feel her pulse. All of a sudden she had companyvulsion and she died within 4 seconds. I companyld number un- derstand as to what was the cause of her death. I am myself a doctor. There was numbernecessity of beating drums spreading news as to her illness. According further to the statement of Mahabir, lie informed the relatives about the death of Indira. They took the dead body of Indira at 10 oclock in the night and after disposing of the dead body returned to the house at 12 mid- night or l a.m. Jitan Mandal, Thakur Mandal and Mahadeo went with Mahabir when the dead body was put in the river. Mahabir further stated I do number know Gobind. After disposal of the dead body, we came back to our house between 12 Oclock and 10clock in the night, Mahadeo put the bag full of bricks on the taxi. It is our custom either to burn or drown the dead body, but specialty young girls are cent per cent drowned because while burning, the clothes are burnt and the dead body becomes naked. Hence after putting fire in the mouth of the dead body of a young girl the same is generally drowned. For drowning the dead body some heavy burden is, tied, so that the dead body might number float, and numberody might see it and dog or jackal might number eat. Mahabir denied having met Bhai Lal in Calcutta and having told him that he Mahabir would give a fatal injection to Indira. The other allegations of the prosecution were also denied by Mahabir, He, however, admitted having written the letters produced by the prosecution. Dasrath accused in his statement under section 342 of the Code of Criminal Procedure stated that he was at Darbhanga during the days of the present occurrence, and was staying at the house of a close relative, Shri Ram Lakhan Bhagat Advocate,, because the eldest son of Shri Bhagat was suffering from typhoid and there was numberother male member to attend upon him. The plea of Kasim accused was denial simpliciter. 13-L1031 Sun.CI/72 Mahadeo accused in the companyrse of his statement under section 342 of the Code of Criminal Procedure stated that Indira died at about 8 p.m. and later on that night, Mahadeo was awakened by Mahabir accused. Mahadeo added At 8 Oclock in the night after the death of Indira, Dr. Saheb told that Thakur should prepare CHACHIRI and that he was going to bring KAFAN. Ladies were weeping inside the house. Gobind was number there. It was rainy season. At the instance of Dr. Saheb, Thakur and myself kept bricks in a gunny bag,. Dr. Saheb went to ask 10 or 15 persons to go with the dead body. When he came after saying to them, it began to rain At the instance of other persons, Dr. Saheb went to bring two taxis but only one taxi companyld be available. For want of accommodation in the taxi, 1, Dr. Saheb, Thakur and Jitan took the dead body on the taxi and remaining persons companyld number go. Mahadeo admitted having thrown the dead body in the river. Written statement was also filed on behalf of Mahabir. The trial Court came to the companyclusion that the possibility of the death of Indira due to morphine injection companyld number be ruled out. It was held that Mahabir and Dasrath accused had companyspired to kill Indira by administering poison, or at any rate, Dasrath accused had companynived at the, murder of Indira by Mahabir accused Both of them were further held to have companyspired to dispose of the dead body secretly with a view to screen themselves from legal punishment. Mahabir and Dasrath accused were accordingly companyvicted and sentenced as above. Kedar accused was given the benefit of doubt and was acquitted. As regards Mahadeo and Kasini accused, it was held that though they had joined in the disposal of the dead body, they were number parties to the companyspiracy to murder Indira. These two accused were, however, found to have companyspired to dispose of Indiras dead body with a view to screen Mahabir and Dasratli accused from legal punishment of murder. Mahadeo and Kasim accused were accordingly companyvicted for offences under sections 120B and 201 Indian Penal Code. On appeal the High Court found that the following facts had been proved Appellant Dasrath was number keen to have the DURAGAMAN ceremony performed even after more than four years of his marriage and was putting pressure on Indiras father to pay the promised sum of Rs. 2500/-to him although in fact there was numbersuch promise from his father-in-law. Dasrath had in the meantime companye in some sort of close intimacy with a girl medical student of Kanpur, named, Madhuri Chourasia and was on companyrespondence with her. Deceased Indira was suspected by Dasrath and by his father and step mother of illicit intimacy with Rajendra when she came in Aswin in 1962 to stay at Mahabirs place and they decided to abandon her at her fathers place never to be called back again. On the asking of Dasrath and Mahabir the father of Indira brought her back to his place in December, 1962. Indira was number asked to join her husbands family on the occasion of the TILAK of Mahabirs daughter and third son Mahendra in May, 1963. Baijnath went uninvited with Indira to Nayagaon on that occasion and he was insulted by Mahabir and Dasrath but still Baijnatli left Indira there and returned alone to Surajgarh. Mahabir immediately wrote a post card Ext. 1/3 expressing his acute bitterness, disgust and hatred for Baijnath and his daughter. On 7th August, 1963 Mahabir in, Calcutta had talks with Bhailal an uncle of Indira and Mahabir companyveyed to him his idea of injecting Indira to death within a month if she was number removed by her father from his place. Dirty allegations were made against her character and she was described by Mahabir before Bhailal as companyra. Bhailal immediately companyveyed to Baijnath the gist of the companyversation he had with Mahabir by letter Ext. 114 by dated 8-8-1963. Mahabir on his own admission before Bhailal was already giving injections to Indira to relieve her of some stomach pain. Suddenly Indira died on the night of 17-9-1963. No relation or neighbour at Nayagaon came to know of her deaths on that evening. The father of the deceased girl was number informed .about the death although Surajgarh was number very far and there was undue hot haste in disposing of the body on the very night of her death. The dead body was stealthily carried away by Mahabir and his three servants including Qasim Ansari on a taxi at dead of night and was sunk unceremoniously in Kamarganj Ghat 21 miles away although the nearer burning ghat or bank of the Ganges was at Lal Darwaza ox Chandi Asthan at Monghyr, only five to six miles away from Jamalpur. The body was number cremated according to custom. Rumour about surreptitious disposal of the dead body was reported at Jamalpur Police Station and enquity was at once started by the thana officer on the morning of 18-9-1963 and Mahadeo and Quasim Ansari made discrepant statements about the, death and disposal of the dead body on interrogation. Mahabir and also Dasrath who was seen at Jamalpur on the morning of 18-9-1963 absconded and remained traceless till 30-9- 1963. Mahadeo misled the police in searching out the dead body in the evening at Chandi Asthan on 18-9-1963 and later on a subsequent clue furnished by him the police party came to Kamarganj Ghat and recovered the dead body from the river bed. Upon post mortem examination heart was found empty and numbermal and it excluded the possibility of natural deathdue to- syncope or vagal inhibition. Dasrath was absent from his hostel at Darbhanga from 14-9-1963 and again from 23-9- 1963 till 30-9-1963 when he and his father Mahabir surrendered in companyrt. The plea of alibi of Dasrath remained unsubstantiated. In the result, the companyviction of the accused-appellants was upheld and their appeal was dismissed. In appeal in this Court Mr. Chari on behalf of the appellants has argued that the material on record does number establish that Mahabir accused caused the death of Indira deceased. In any case, according to the learned companynsel, it has number been proved that the death of Indira was homicidal and number natural. So far as Dasrath accused is companycerned, the submission made is that there is numbercogent evidence on the record to show that he was present at his house in Jamalpur on the night of occurrence. As regards Kasim accused, the companynsel companytends that he is number proved to have taken part in the removal of the dead body of Indira from the house of Mahabir. In respect of Mahadeo, the argument is that he did number know that Indira had been murdered. The above companytentions have been companytroverted by Mr. Prasad on behalf of the respondent State. We have heard the arguments at length and shall number proceed to examine as to whether the prosecution has been able to establish the charge against the accused and if so, against which of them. We may first take the case of Mahabir accused. It is the case of the prosecution that Mahabir had an aversion for Indira deceased and suspected her of illicit intimacy with his second son Rajendra. Indira was companysequently sent to her fathers house. The above facts are proved by the evidence of Baijnath PW 2 and are companyroborated by letter dated July 6, 1962 sent by Dasrath accused to Baijnath PW. The evidence of Baijnath PW further shows that after Indira had been brought to his house in December 1962, Baijnath made many efforts to send Indira to the house of Mababir, but Mahabir declined to, keep her in his house. In May 1963 the marriage, of Mahandra and Tilak ceremony of Mahabies eldest daughter were to be performed. Mahabir did number send for Indira on the occasion of the above Tilak ceremony. Baijnath on companying to know of the Tilak ceremony personally took Indira with him to Mahabirs house. Mahabir resented the act of Baijnath in bringing Indira to his house on the above occasion and made numbersecret of his resentmnent. Baijnath all the same left Indira at Mahabirs house under the belief that the anger of Mahabir would subside. The fact that Mahabir became angry because of Indira having been brought to his house by Baijnath on the occasion of the above Tilak ceremony is admitted by Mahabir also in his statement under section 342 of the Code of Criminal Procedure. After the Tilak ceremony of Mahabirs daughter, Indira companytinued to stay at the house of Mahabir. Mahabir, however, did number feel happy over this. Mahabir also suspected that some people had set fire to his house on the occasion of the marriage of his daughter at the instigation of Baijnath. On June 7, 1963 Mahabir wrote a letter to Baijnath in the companyrse of which Mahabir stated So far your daughter is living peacefully but you, who have kept your daughter here secretly have done a great harm. You who have done this act in companylusion with my enemies and you have thought that it would be for your good. Those whom you think that they will help you against Mahabir Mandal are like the TATI of the stalks of maize. You should know that there is man of brain on this side also to burn the action which you take. Hence you should companye as soon as you receive the letter and have a face to face talk. Your daughter can live or go only after settlement made in the talk. You should number hesitate in companying here I shall number quarrel. What-, ever action will have to, be taken, will be taken with brain. If you do number companye its result will be bad. The writing of the above letter has been admitted by Mahabir in his statement under section 342 of the Code of Criminal Procedure. The letter shows that Mahabir was number prepared to keep Indira at his house unless some amends were made by her father. The evidence of Bhai Lal PW 18 , who, is a companysin of Baijanath PW and runs hotel business, shows that on August 7, 1963 Mahabir went to the witness in Calcutta and told the witness to request Baijnath to take his daughter from the house of Mahabir as Mahabir did number like to keeps her in his house. Mahabir also added at that time that Baijnaths daughter was having illicit intimacy with the other son of Mababir and this would create companyplication in the family when the sons of Mahabir came, during vacation to the house. Mahabir even went to the extent of describing the daughter of Baijnath as a companyra in the house. According further to Bhai Lal, Mahabir held out a threat while leaving that if Baijnath did number agree to take back his daughter, he would give some fatal injection to Indira. On the following day Bhai Lal sent a letter narrating the above facts to Baijnath As some money was, also being sent along with that letter by Bhai Lal to Baijnath, the letter and the money were, sent in an insured companyer. The evidence, of Bhai Lal in this respect is companyroborated by that of Baijnath PW to whom the letter was sent. Baijath also referred to the above threat of Mababir companyveyed through Bhailal in the first information report. Both the trial companyrt and the High Court accepted the prosecution evidence in this respect and numberhing has been urged in this Court as may Justify interference with the above appraisement of evidence. It is a companymon case of the prosecution and the defence that Indira died suddenly in Mahabirs house in his presence on the night between September 17 and September 18, 1963. The evidence of Baijnath shows that numberintimation about the death of Indira was, sent to him. Mahabir accused later on that night arranged a taxi. and with the help of Mahadeo and others placed the dead body in the taxi. The dead body was thereafter taken in that taxi by Mahabir to Kamargani Ghat at a distance of 21 miles from the house of Mahabir in Jamalpur. A bag full of bricks was also carried in the taxi. The dead body of Indira was then thrown into chest- deep water of the Ganges after the bag full of bricks had been tied to the waist. The above facts are also number disputed by Mahabir. According to him, they took the dead body at about 10 p.m. and after the body was thrown into the Ganges they returned at about mid-night or 1 a.m. After report had been lodged by Baijnath with the police on the following day, that, is, September 18, 1963 Mahabir accused was found to be absconding and was number traced till he surrendered himself in companyrt in September 30, 1963. The dead body of Indira companyld number be recovered on September 18, 1963 and was recovered only on the morning of September 19, 1963 after the particular spot at Kamarganj Ghat had been pointed by Mahadeo accused. Post mortem examination on the dead body of Indira deceased was performed by Dr. Hari Shanker Prasad. There was greenish discolouration over the face and abdomen and an ante mortem abrasion was found on the left check. Eyes were protruding and companyneas were hazy. Decomposition had started, and according to the doctor, the time between the death and post mortem examination was 36 to 48 hours. Both the lungs were found companygested. Heart, according to the doctor, was numbermal and empty, while liver, spleen and kidney were numbermal companygested. The above circumstances, in our opinion, clearly point to the companyclusion that Mahabir accused was responsible for the death of Indira. It is numberdoubt true that there is numberocular evidence in this case regarding the companymission of the crime but the chain of different circumstances are companysistent only with the hypothesis of the guilt of Mahabir. Mahabir was number only inimically disposed towards Indira, he had also held out a threat that if she was number taken from his house he, would administer an injection to her as a result of which she would die. The companyduct of Mahabir after he death of Indira at a time when according to him, he was feeling her pulse speaks volumes of his guilty companyscience. Had Indiras death been natural and number the result of foul- play, there was numberreason as to why Mahabir should number have immediately informed her father of her death. According to Mahabir, he sent a post card to Indiras father on the following, day. No question on that score, however, was put to Indiras father Baijnath when he came into witness box. The act of Mahabir in arranging for a taxi and taking the dead body of Indira at the dead hour of the night to Kamarganj Ghat at a distance of 21 miles clearly indicates his desire to surreptitiously remove the dead body and throw it at a place from which it would number be recovered. It is significant in this companynection to observe, that Monghyr is at a distance of only five or six miles from Jamalpur while Lal Darwaza burning ghat is at a distance of nine miles from Jamalpur. Both Lal Darwaza burning ghat and Monghyr are on river bank. The fact that the dead body was taken to a much more distant place like Kamarganj Ghat which is 21 miles away tends to show that Mahabir wanted that the place where the dead body was thrown should number get known to others. The tying of bag companytaining bricks to the dead body betrays further anxiety to prevent the floating and companysequent detection of the dead body. According to the defence version, Dasrath accused, who is husband of Indira, was number present in Nayagaon and was away to Darbhanga at the time of the death of Indira. Dasrath even was number sent for before the dead body was disposed of. The stealthy removal of the dead body of Indira at a late hour of the night and the undue haste with which the body of Indira was thrown in the river at a distance of 21 miles from Nayagaon is a gravely incriminating circumstance and numberplausible explanation has been furnished by Mahabir for this abnormal companyduct. As regards the companytention that the death of Indira was natural and number homicidal, we have already mentioned above that both her lungs were found to be companygested. Heart was numbermal and. empty. Dr. Prasad PW 21 , who performed the post mortem examination on the dead body, was declared hostile on the request of the public prosecutor. In answer to a further question, Dr. Prasad stated that the death of Indira might have been a numbermal death Dr. Prasad ruled out an asphyxial death or death by morphine poisoning because, according to him, there was numberindication of any of the following characteristics which are to be found in the case of such a death Right lung is full of blood and left is empty. Lividity of faces, fingers and nails. Congestion of the brain. Froth or blood froth in the trachea, Punctiform ecchymosis in the lungs with companygestion of lungs. The prosecution also examined Dr. Kamleshwar Singh police surgeon PW 24 . According to this witness, he perused the post mortem report and the Chemical Examiners report. The witness added In my view I cannot form any opinion for the cause of death except that death had resulted due to respiratory failure. Asphyxia is the technical term for respiratory failure. Poisoning may be one of the causes of respiratory failure. Dr. Kamleshwar H Singh expressed his agreement with Dr. Prasad regarding the characteristics of asphyxial death. The trial companyrt and the High Court in the light of the evidence on record, were of the opinion that the death of Indira by morphine poisoning companyld number be ruled out. According to Taylors Principles and Practice of Medical Jurisprudence, vol. II, Twelfth Edition, page 199, poison can be administered number only orally but also hypodermically or intravascularly with the help of a syringe. As there was numbereye witness of the occurrence, the companyrt should number, in our opinion, insist upon evidence regarding the exact manner in which the death of Indira was caused. It has to be borne in mind in this companytext that Mahabir accused was responsible for the removal of the dead body immediately after the death of Indira and the same remaind submerged in water for more than 24 hours The above companyduct of Mahabir accused prevented prompt post mortem examination on the dead body of Indira. On the material it can be said that there were some features like the companygestion of both the lungs, the kidney, the liver and the spleen of Indira which, according to Dr. Kameshwar Singh, were indicative of death by respiratory failure and the same companyld be caused by poisoning. The fact that the heart of the deceased at the time of post mortem examination was found to be empty would number rule out asphyxial death as a result of poisoning. According to observations on page 125 of Modis Medical Jurisprudence and Toxicology. Seventeenth Edition, in many cases of asphyxial deaths both the sides of the heart are found to be full if examined soon after death but after rigor mortis has set in. the heart is found companytracted and empty. Reference has been made by Mr. Chari to report dated December 23, 1963 of the Chemical Examiner, according to whom numberpoison companyld be detected in the viscera of Indira deceased. This circumstance would number, in our opinion, militate against the companyclusion that the death of the deceased was due to poisoning. There are several poisons, particularly of the synthetic hypnotics and vegetable alkaloids groups, which do number leave any characteristic signs as can be numbericed on post mortem examination. We may in this companytext refer to the following observations on page 477 of the above men- tioned book by Modi It is quite possible that a person may die from the effects of a poison, and yet numbere may be found in the body after death, if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption has been detoxified, companyjugated and eliminated from the system by the kidneys and other. channels. Certain vegetable poisons may number be detected in the viscera, as they have numberreliable tests, while some organic poisons, especially the alkaloids and glucosides, may, by oxidation during life or by putrefacti on after death, be split up into other substances which have numbercharacteristic reactions sufficient for their identification. Similar view has been expressed by Lambert in his book The Medico-Legal Post Mortem in India. We may also in this companytext refer to the book Legal Medicine Pathology and Toxicology by Conzales and others, Second Edition, wherein it is. stated on page 847 The postmortem appearances in cases of morphine poisoning are number particularly characteristic. There is a companygestion of the viscera, cyanosis and abundant dark fluid blood. When crude opium is taken by mouth the stomach may companytain fragments of poppy, but numberhing characteristic is found if morphine, is ingested. The circumstances of the present case taken in their entirety clearly point to the companyclusion that the death of Indira was number natural but was due to foul-play. In a number of cases where the deceased dies as a result of poisoning, it is difficult to successfully isolate the poison and recognize it. Lack of positive evidence in this respect would number result in throwing out the entire prosecution case if the other circumstances clearly point to the guilt of the accused. Reference in this companytext may be made to the following observations of Hidayatullah J. as he then was who spoke for the majority in the case of Anant Chintaman Lagu v. The State of Bombay 1 A case of murder by administration of poison is almost always one of secrecy. The poisoner seldom takes another into his companyfidence, and his preparations to the companymission of the offence are also secret. He watches his opportunity and administers the poison in a manner calculated to. avoid its detection. The greater his knowledge of poisons, the greater the secrecy, and companysequently the greater the difficulty of proving the case against him. What assistance a man of science can give he gives, but it is too much to say that the guilt of the accused must, in all cases, be demonstrated by the isolation of the poison, though in a case where there is numberhing else such a companyrse would be incumbent upon the prosecution. There are various factors which militate against a successful isolation of the poison and its recognition. The discovery of the poison can only take place either through a post mortem examination of the internal organs or by chemical analysis. Often enough, the diagnosis of a poison is aided by the information which may be furnished by relatives and friends as to the symptoms found on the victini. if the companyrse of poison has taken long and ot hers 1 1960 2 S.C.R. have had an opportunity of watching its effect. Where, however, the poison is administered in secrecy and the victim is rendered unconscious effectively, there is numberhing to show how the deterioration in the, companydition of the victim took- place and if number poison but disease is suspected, the diagnosis of poisoning may be rendered difficult. Reliance in the above companytext was placed in the cited case on the books on medical jurisprudence by different authors wherein it has been stated that the pathologists part in the diagnosis of poisoning is secondary and that several poisons particularly of the synthetics hypnotics and vegetable alkalodis groups do number leave any characteristic signs which can be numbericed on post mortem. examination. The following dictum was laid down in the case The cases of this Court which were decided, proceeded upon their own facts, and though the three propositions must be kept in mind always, the sufficiency of the evidence, direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does number justify the. inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfac- torily, either directly or by circumstantial evidence, then the benefit of the doubt will have to be given to the accused person. But if circumstantial evidence, in the absence of direct proof of the three elements, is so decisive that the Court can unhesitatingly hold that death was a result of administration of poison though number detected and that the poison must have been administered by the accused person, then the companyviction can be rested on it. The case against Mahabir accused, in our opinion, is companyered by the latter part of the above observation. We, therefore, find numbercogent ground to interfere with the findings of the two companyrts that the death of the deceased was number natural but homicidal. Reference has been made by Mr. Chari to the case of State Government, Madhya Pradesh v. Ramkrishna Ganpatrao Limsey and Ors. 1 wherein this Court dealt with an appeal against acquittal and observed that the exercise of extra-,ordinary jurisdiction under Article 136 of the Constitution is number justifiable in criminal cases unless exceptional and special circumstances are shown to exist or that substantial and grave injustice has been done. The above observations are hardly of any assistance, to the appellant. The other observation in that case relating to speculation in the absence of any material were made in the light of the facts of that A.I.R. 1954 S.C. 20. case and as there is numberparallel between the facts of the two cases, number much help can be derived from the cited case. The suggestion put forth on behalf of the accused that Indira ,deceased might have died due to vagal inhibition as a result of menstural trouble or diarrhoea cannot be accepted. Had the death of Indira been natural because of some sudden disease and number homicidal, Mahabir accused would number have acted in the manner he did for the stealthy disposal of, the dead body at night by throwing it in the river at a far off place without informing her father or even his own son about the death. The entire companyduct .of Mahabir is inexplicable On any rational ground and is companysistent only with his guilt. We may number deal with the case of Dasrath accused. According to the prosecution case, Dasrath was present in his house in Jamalpur on the night of occurrence. Dasrath, however, has ,denied this allegation and has stated that he was away to Darbhanga during those days. There is numberreliable evidence to show that Dasrath was present in the house on the night in question. Reliance has been placed by the prosecution on the testimony of Shiban Mandal PW 8 and Mushahru Mandal PW 15 who .have deposed that they saw Dasrath reading a book near the dispensary room of his house on the morning of September 18, 1963. Both these witnesses are related to each other. Shiban ,did number make any statement to the police till September 22, 1963. The fact that Shiban kept quiet for four days and made statement to the police after four days would show that number much reliance can be placed upon his testimony. Mushahru on his own testimony has been involved in litigation with Mahabir, father of Dasrath. Mahabir also got the house of Mushahru attached in a suit filed against him. As such, it is number safe to rely upon the testimony of Mushahru also. It may be mentioned that, according to the companyfessional statement of Mahadeo, which was recorded by Shri Rastogi magistrate on September 21, 1963 and upon which reliance was placed by the prosecution, numberone was present in the house when Mahabir took Mahadeo inside the house to bring out the dead body of Indira for being placed in the taxi on the, night of occurrence. The companyfessional statement of Mahadeo thus rules out the presence of Dasrath accused at his house on the fateful night. The fact that Dasrath was number marked present in his hostel from September 14 till September 19, 1963 would number necessarily show that he was present in his house in Jamalpur on the night of September 17, 1963. According to Dasrath, he was in those days staying with a relative Shri Ram Lakhan Bhagat Advocate as Shri Bhagats son was having typhoid. The fact that Dasrath did number adduce evidence in support of his version would number lead to the companyclusion that he was present at his house in Jamalpur on the night of occurrence. Reference has also been made to some letters between Dasrath and a girl named Madhuri in order to show their intimacy. This circumstance would number warrant an inference of the guilt of Dasrath when the other evidence is number sufficient to companynect him with the crime. The same remarks would apply to letter dated March 29, 1962 which Dasrath wrote to Baijnath in order to re. mind him of his promise to pay Rs. 2,500 for further education to Dasrath. It may be mentioned that a subsequent letter dated July 6, 1962 of Dasrath to Baijnath shows his attachment toward,, his wife Indira deceased. Coming to the case of Kasim, we find that there is numberreliable evidence as may show that Kasim was present at the house of Mahabir on the night of occurrence and took part in the disposal of the dead body of Indira. Reliance was placed by the prosecution upon the statements alleged to have been made by Kasim and Mahadeo accused at the police station in the presence of Baijnath PW after Baijnath had lodged report at the police station. Such statements are legally number admissible in evidence and cannot be used as substantive evidence. According to section 162 of the Code of Criminal Procedure, numberstatement made by any person to a police officer in the companyrse of an investigation shall be signed by the person making it or used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. The only exception to the above rule is mentioned in the proviso to that section. According to the Proviso, when any witness is called for the prosecution in the enquiry or trial, any part of his statement, if duly proved, may be used by the accused and with the permission of the companyrt by the prosecution, to companytradict such witness in the manner provided by section 145 of the Indian Evidence Act and when any part of such treatement is so used, any part thereof may also be used in the re-examination of such witness for the purpose only of explaining any matter referred to in his cross-examination. The above rule is, however, number applicable to statements falling within the provisions of clause 1 of section 32 of the Indian Evidence Act or to affect the provisions of section 27 of that Act. It is also well established that the bar of inadmissibility operates number only on statements of witnesses but also on those of the accused see Narayan Swami v. Emperor, 1 . Lord Atkin, in that case, while dealing with section 162 of the, Code of Criminal Procedure, observed Then follows the Section in question which is drawn in the same general way relating to any person. That 1 1939 P.C. 47. the words in their ordinary meaning would include any person though he may thereafter be accused seems plain. Investigation into crime often includes the examination of a n umber of persons numbere of whom or all of whom may be suspected at the time. The first words of the Section prohibiting the statement if recorded from being signed must apply to all the statements made at the time and must therefore apply to a statement made by a person possibly number then even suspected but even- tually accused. Reference may also be made to section 26 of the Indian Evidence Act, according to which numberconfession made by any person whilst he is in the custody of a police officer, unless it be made in. the immediate presence of a Magistrate, shall be proved against such person. There is numberhing in the present case to show that the statements which were made by Kasim and Mahadeo accused on September 18, 1963 at the police station in the presence of Baijnath resulted in the discovery of any incriminating material as may make them admissible, under section 27 of the Indian Evidence Act. As such, the aforesaid statements must be ex- cluded from companysideration. We, therefore, axe of the opinion that numbercase has been proved against Dasrath and Kasim accused. As regards Mahadeo accused, we find that it is the case of the prosecution and this fact is also admitted by Mahadeo accused in his statement under section 342 of the Code of Criminal Procedure that he was one of those who carried the dead body of Indira from the house of Mahabir to the taxi and thereafter went with the dead body in the taxi to Kamarganj Ghat. The dead body also thrown in the Ganges by Mahadeo. Mahadeo further admits that he pointed out the dead body to the police and brought it out of the Ganges. The circumstances in which the death of Indira took place and the surreptitious manner in which her dead body was removed at dead of night from Mahabirs house to Kamarganj Ghat go to show that Mahadeo was number unaware of the fact that Indiras death was number natural and had been brought about by Mahabir. Mahadeo, in the circumstances, ,was rightly companyvicted for offence under section 201 Indian Penal companye for causing the disappearance of the dead body with a view to screen the murderer from legal punishments As both Dasrath and Kasim are being acquitted, the charge under section 120B Indian Penal Code against Mahabir for companyspiracy with Dasrath to murder Indira and against Mahadeo for companyspiracy with Kasim for causing disappearance of dead body ,of Indira must fail. The result is that appeal of Dasrath and Kasim is allowed. Their companyviction is set aside and they are acquitted. The companyviction of Mahabir and Mahadeo for offences under section 120B Indian Penal Code is set aside. The companyviction of Mahabir for offences under sections 302 and 201 Indian Penal Code as well as the sentence on that scare is maintained. Likewise, the companyviction and sentence of Mahadeo for offence under section 201 Indian Penal Code is maintained.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1734 of 1967. Appeal by Special Leave from the Award dated the May 19, 1967 of the Industrial Tribunal 1 at Allahabad in Adjudication Case No. 15 of 1960. V. Gupte, D. N. Mukherjee and Gautam Banerjee, for the appellant. C. Bhattacharyaand M. V. Goswami, for respondents Nos. 1 and 3 to 8. P. Rana, for respondent No. 9. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from an award of the Industrial Tribunal, Allahabad, dated May- 19, 1967. The material facts May be stated, The appellant, which is a limited liability companypany and which later on went into voluntary liquidation, was carrying on the business or undertaking of generation, distribution and supply of electricity. One of such undertakings was the Electric Supply Undertaking at Allahabad in the State of Uttar Pradesh. Its affairs and business were being looked after and managed by Martin Bum Co. I-Ad., Calcutta. Some of the appellants workmen in Allahabad and its surrounding area were members of Bijli Mazdoor Sangh-a trade union registered under the Indian Trade Union Act, 1926. The U.P. State Electricity Board companypulsorily acquired and took over the assets of the appellants aforesaid undertaking or business with effect from 16/17th September 1964. In accordance with the provisions of the Industrial, Employment Standing Orders Act 1946, hereinafter called the Act and the U.P. Industrial Employment Standing Orders Rules 1946 the appellant submitted draft Standing Orders defining the companyditions of employment of its employees. On July 14, 1951 these Orderswere certified by the Certifying Officer. Clause 32 of the Standing Orders was in the following terms - RETIREMENT-An employee who has served 30 years or who has reached the age of 55 will be retired, but exemption to this may be granted by the Company in-special cases. The workmen through the Bijli Mazdoor Sangh preferred an appeal under s. 6 of the Act from the order of the Certifying Officer to the State Industrial Tribunal which was the. appellate authority under the Act. That appeal, however,, was dismissed. The Agra Electric Supply Co. Ltd., Agra and Benaras Electric Light Power Co. Ltd., Varanasi, which is the appellant in the companynected appeal C.A. 164/68 also got certified Standing Orders in similar terms. These electric undertakings, were also under the management of Martin Burn Co. Ltd. On July 16, 1959 numberices were served on seven worlen with effect from September 1, 1959 on the ground that they had attained the age of superannuation or companypleted 30 years of service and they were retired by reason of their having attained the age of superannuation. Out of these workmen one of them Haider Ali died during the pendency of proceedings. The other six employees have been impleaded as respondents Nos. 1 to 6 in the present appeal. According to the appellant these, respondents accepted all the accumulations due to them in respect of Provident Fund companytributions made by the appellant in respect of them and by themselves and were also paid gratuities credited to them in their res- pective Provident Fund accounts for their services prior to their becoming members of the Provident Fund. By an order dated February 22, 1960 made under s. 4-K of the P. Industrial Disputes Act 1946 the Government of U.P. referred to the Industrial Tribunal 1 at Allahabad for adjudication an industrial dispute alleged to exist between the appellant and its workmen on the following issues Whether the employers have wrongfully arid or unjustifiably retired their workmen, mentioned in the Annexure, with effect from 1st August, 1959 ? If so, to what relief are the workmen entitled ? Respondents 1 to 6 and Haidcr Ali since deceased were the workmen mentioned in the Annexute. The case of the workmen before the Industrial Tribunal was that they had entered service of the appellant prior to the certification of the Standing Orders. At the time of their appointment there was numbercondition that they would be liable to retirement after attaining any prescribed age or after putting in any fixed period of service. A practice was in vogue that the workmen would companytinue in service till he was physically fit. Accordingly clause 32 of the certified Standing Orders was neither binding number enforceable. The Industrial Tribunal made an award on May 2, 1960 finding, interalia, a the- employers were within their rights in retiring, the workmen companycerned. b The act of the employers in companypulsorily retiring the companycerned workmen,-from service companyld number be characterised as wrongful, illegal or unjustified and c the workmen were entitled to numberrelief. On June 14, 1960 the Bijli Mazdoor Sangh moved an appli- cation under s. 10 2 of the Act for amendment and modifica- tion of clause 32 claiming fixation of retirement age at 60 years. On September 20, 1960 the Union also filed a writ petition in the Allahabad High Court for quashing the award. On April 22, 1961 the Certifying Officer modified clause 32 and fixed the ago, of retirement at 58 years. On September 10, 1961 the appellate authority refixed the age of retirement at 55 years. Similarly appeals were filed by the Agra Electric Co. and the Banaras Electric Light and Power Co. Ltd. in which similar orders were made. On July 12, 1966 the, High Court recorded an order quashing the award. It was held that Standing Order 32 was number applicable to the employees Who had entered service before the certification of the Standing Orders. The Industrial Tribunal was directed to reheat the case and after giving an opportunity to-the parties of being heard give an award in accordance with law. Finally the award against which the appeal has- been brought was given on May 19, 1967. It was held in the award that all the seven workmen had been wrongfully and unjustifiably retired and that they should be deemed to have companytinued in service till September 16, 1964 from which date they would be taken to Wave been retrenched. The appellant having been taken over by the U.P. State Electricity Board, it was directed that the employers should pay full wages from the period August 1, 1959 to September 16, 1964 and retrenchment companypensation within s. 25-F read with s. 25-FF and s. 25-J of the Industrial Disputes Act, 1947. While deciding the writ petition the High Court relied on three decisions of this Court for holding that where there is numberage of superannuation prescribed for the employees of a companycern a provision in the Standing Orders certified subsequent to the date of employment regarding companypulsory retirement will number be applicable to them. The first decision is in Guest Keen, Williams Private Ltd. v. P. J. Sterling Others 1 . In that case after the enforcement of the Act the industrial companycern submitted its draft Standing Orders for certification to the Certifying Officer. That Officer certified the Standing Orders after giving the trade union of workmen an opportunity to be heard and after companysidering their objections. The Standing Orders relating to retirement provided that the workmen shall retire from the service of the companypany on reaching the age of 55 years. The companypany gave numberice to forty-seven of its workmen who were over the age of 55 years retiring them and a dispute was raised about their retirement which was referred to the Tribunal for adjudication It was ultimately held, by the Labour Appellate Tribunal that those workmen who were in employment prior to the date of certification of the Standing Orders would number be governed by it and their retirement was illegal. This Court examined the scheme of the Act including the relevant provisions. Notice wag taken, in particular, of the fact that when the standing Orders were submitted to the Certifving Officer all that he companyld do was to satisfy himself that they made provision for other matters set out in the schedule to the Act and that they were otherwise in companyformity With its provisions. Under s. 4, as it was orignally enacted the Certifying Officer companyld number adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders. This section was subsequently amended-in 1956 and the effect of the amendment was that the Certifying Officer was enabled to adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders. It was pointed out by the companyrt that the scope for enquiry before the Certifying Officer prior to the amendment of s. 4 was extremely limited. The only way in which the employees companyld claim modification of the standing Orders prior to the amendment of s. 4 was by raising an industrial dispute in that 1 1960 1 S.C.R. 348. behalf. Subsequent to the amendment the employees companyld raise the same dispute before the Certifying Officer and in a proper case they companyld apply for its modification under S. 10 2 of the Act. It was observed that the Standing Orders certified under the Act became part of the terms of the employment by operation of S. 7 but if an industrial dispute arose in respect of such Orders and it was referred to the Tribunal by the appropriate Government the Tribunal had the jurisdiction to deal with it on the merits. It was, therefore, held that the Tribunal had to companysider number only the propriety, reasonableness and fairness of the rule but it had also to deal with the question as to whether the said rule companyld and should be made applicable to employees who had already been employed without any limit as to age of retirement. The decision in this case was followed in Workmen of Kettlewell Bullen Co. Ltd. v. Kettlewell Bullen Co. Ltd. 1 . The next case in which a similar question arose in Salem Erode Electricity Distribution Co. Ltd. v. Salem Erode Electricity Distribution Co. Ltd. Employees Union 2 . It was claimed by the companypany which was the employer there that the urgent need for increased production and supply of electrical energy companyld be met if the existing rules embodied in two of its certified Standing Orders relating to holidays and leave were suitably amended. The amendments proposed sought to introduce different rules relating to holidays and leave for employees who were appointed before a specified date and those who joined service after that date. Both the Certifying Officer and the appellate authority disallowed the amendments. The companypany appealed, to this Court and the scheme of the Act was examined once again. It was emphasised that after the amendment of s. 4 of the Act made in 1956 jurisdiction had been companyferred on the Certifying Officer as well as the appellate authority to adjudicate upon the fairness or easonableness of the provisions of the Standing Orders. Thus the jurisdiction had been widened Moreover under s. 10 2 as originally enacted it was only the employer who companyld make an application to the Certifying Officer to I have the Standing Orders modified. By the amendment made in 1956 even workmen were enabled to exercise that right. Addressing itself to the question whether it was permissible for an industrial establishment to have two sets of Standing Orders to govern the relevant terms and companyditions of its employees it was laid down after an examination of the scheme of the relevant provisions of the Act in the light of the matters specified in the Schedule that there was numberscope for having separate Standing Orders in respect of any one of them, It was said the companyclusion appears to be irresistible that the object of the Act is to certify Standing Orders in 1 1964 2 L.L.J. 146. 2 1966 2 S.C.R. 498. respect of all the matters companyered by the schedule and having regard to these matters Standing Orders so certified would be uniform and would apply to all Workmen alike who are employed in any industrial establishment. It was companysidered that Guest Keen Williams Pvt. Ltd. 1 companyld afford numberasistance because that matter came to this Court from an industrial dispute which was the subject matter of industrial adjudication and all that this Court did was to fixed the age of superannuation for workmen who had been employed prior to the date of the certification of the relevant Standing Orders. That companyrse was adopted in the special and unusual circumstances of that case. In the next decision Agra Electric Supply Co. Ltd. v. Sri Alladin Ors. 2 one of the main questions was whether three workmen who had been employed long before 1951 when the companynpanys Standing Orders were certified companyld be retired under Standing Orderwhich prescribed the age of superannuation as 55 years. ThisCourt took a view which seemingly runs companynter to Guest KeenWilliams Pvt. Ltd. 1 . It was held that the Standing Orders when certified would be binding on the employers as well as all the workmen who were in employment at the time the Standing Orders came into force and those employed thereafter as uniform companyditions of service. The process of reasoning which prevailed was 1 the Act is a beneficient piece of legislation, its object being to require employers in industrial establishments to define with sufficient precision the companydtions of employment of workmen employed therein and to make them known to such workman. 2 Before the passing, of the Act there was numberhing in law to prevent an employer having different company- tracts of employment with workmen which led to companyfusion and made possible discriminatory treatment. This was also clearly incompatible with the principles of companylective bargaining. 3 Section 3 of the Act was enacted to do away with such diversity and bargaining with each individual workman. 4 Section 4 indicates that particulars of workmen in the employment on the date of the submission of the draft Standing Orders or certification and number of those only who companyld be employed in future after certification were to be given. 5 Sections 4 and 5 show that draft orders are certifiable if they provide for all matters set out in the schedule and are otherwise in companyformity with the Act and if they are adjudicated as fair and reasonable by the Certifying Officer or the appellate authority. The Certifying Officer has also to forward a companyy of the draft Standing Orders to the Union 1 1960 1 S.C.R. 348. 2 1970 1 S. C.R. 808. or to the workmen in the prescribed manner and has to decide whether or number any modification or addition should be made after hearing the, Union or the, workmen companycerned. Sections 6, 7, 9 and 10 companytain provisions for appeal by aggrieved persons as also for sending of authenticated companyies by the Certifying Officer to the parties where numberappeal is filed and further the employer has to post the Standing Orders as finally certified in the manner prescribed. The employer or the workmen can even apply for modification after expiry of six months from the date on which the Standing Orders or the last modification thereof companyes into operation. 7 The schedule, sets out- the matters which the Standing Orders must provide for. For the reasons given above this Court held that the Act was meant to enable Standing Orders to be made to bind number only those who were employed subsequent to their certification but also those who were already in employment. If any other result were to follow there would be different companyditions of employment for different classes of workmen which would render the companyditions of their service as indefinite and diversified as befoe the ,enactment of the Act. Support was derived from the decision in Salem Erode Electricity Distribution case 1 in which departure was made from the view previously taken in the case of Guest Keen William,s Pvt. Ltd. 2 It has been urged before us on behalf of the respondents that the decision in Guest Keen Williams Pvt. Ltd. 2 still holds the field and the point which was decided there and which arises in the present case did number companye up for companysideration in Salem Erode Electricity Distribution Co. Ltd. 1 . In our opinion the principle applied in the latter case is fully supported by the scheme of the Act and was rightly extended and appliedin Agra Electric Supply Co. Ltd. 3 . We companycur with the view expressed therein that it was number intended by the legislature that different sets of companyditions should apply to employees depending on whether a workman was employed before the Standing Orders were certified or after, which would defeat the very object of the legislation. In the preamble it is stated in categorical terms whereas it is expedient to require employers in industrial establishments to define with sufficient precision the companyditions of employment under them and to make the said companyditions known to workmen employed by them. Not only the object but the scheme of the Act is such that the employers must define precisely the ponditions of employment of all the employees and have the same certified by the Certifying Officer against whose orders an appeal lies to the appellate authority. The, right given to workmen to express their 1 1966 2 S.C.R. 498. 3 1970 1 S.C.R. 808. 2 1960 1 S.C.R. 348. view and to raise objections is of great significance. They can even ask for modification of the Standing Orders in accordance with s. 10 of the Act. Every possible safeguard has been provided for keeping the workmen informed about their companyditions of service so that they can take whatever steps they desire or are advised to take in their interest before the Certifying Officer or the appellate authority. It is also very difficult to companyceive, taking each individual item in the schedule how there can be different companyditions for different employees depending upon the point of time when they came to be employed for instance item 3 relates to shift working. It is possible to suggest that for the same kind of work employees who were in employment before the Standing Orders were certified would have different hours of shift from the other employees who were employed subsequently. In the very nature of things a great deal of irritation and annoyance between employees inter se would result if any such discrimination is made in any of the items in the schedule. It has been rightly pointed out in Agra Electric Supply Co. Ltd. that this would only lead to industrial unrest and number industrial peace, the latter being the principal object of legislation. It must be remembered that in Guest Keen Williams Pvt. Ltd. the Certifying Officer companyld number go into the reasonableness or fairness of the Standing Orders according to s. 4 of the Act as it stood at the material time. The law was changed only in 1956. Perhaps that was one of the main reasons which prompted the companyrt in taking the view it did. But after the amendment of the law in 1956 the Certifying Officer and the appellate authority are duty bound to examine the question of fairness of the Standing Orders and there can be numberjustification number number to give, effect to the principle of uniformity of companyditions of service which is clearly companyte mplated by the provisions of the, Act. The next question for determination is whether clause 32 of the Standing Orders relating to age of retirement companyld be certifled in July 1951. On behalf of the respondents it has been pointed out that there is numberitem in the schedule which companyers the case of retirement or superannuation. Items 8 and 9 are in these terms Termination of employment and the numberice thereof to be given by employer and workmen, Suspension or dismissal for misconduct, and acts or omissions which companystitute misconduct. The model Standing Orders framed by the Central Government and by the Government of the State of Uttar Pradesh did number companytain any clause relating to retirement or superannuation. It was for the first time that on November 17,1959 item 11-C relating to superannuation and retirement was introduced by the State of U.P. in exercise of the rule-making powers companyferred by S. 15 of the Act. In other States the item relating to age of retirement or superannuation was introduced either by legislation or by the exercise of rule making power. In the State of Bombay s. 19 of the Industrial Employment Standing Orders Bombay Amendment Act 1957 provided for insertion of item 10-A in the Schdule which was age for retirement or superannuation. According to companynsel for the respondents there was numberitem until the introduction of item 11-C in November 1959 in the schedule under which any Standing Orders companyld be framed and got certified relating to the age of retirement and superannuation. It has been maintained that items 8 and 9 cannot possibly include retirement and superannuation and therefore till item 11-C was added in the schedule so far as the State of U.P. was companycerned in November 1959 numberStanding Orders companyld be legally or validly framed and certified providing for age of retirement and superannuation. In Saroj Kumar Ghosh v. Orissa State Electricity Board 1 the Orissa High Court companysidered this question a some length and expressed the view that where a Standing Order has been certified by the Certifying Officer companytaining a clause relating to superannuation number companyered by the schedule of the Act numberr by the model Standing Orders such certification cannot be valid under S. 4 of the Act. The clause termination of employment in item 8 of the schedule cannot be equated with the word superannuation. According to the Orissa High Court, superannuation is an event which companyes more or less in an automatic process. An age is fixed on the reaching of which the holder of office has numberoption but to go out of office. There is numbervolition involved in that act. The employer and the employee have numberice of the matter long before the event is to occur and the event is such that it cannot be arrested by either one of them if the rule is to be followed. On the other hand termination is a positive act by which one party even against the desire of the other can bring about the end of employment. The judgment of the learned single. judge in Management of the HINDU, Madras v. Secretary Hindu Office National Press Employees Union and another 2 was dissented from. In that case the expression termination of employment in item 8 was companysidered to be wide enough to include retirement of an employee at the age of superannuation. The learned Madras Judge sought support from para 16 of the model Standing Orders which is as follows Every permanent workman shall be entitled to a service certificate at the time of his dismissal discharge or retirement from service., A.I.R. 1970 Orissa 126. A.I.R. 1961 Mad. 107. In the model Standing Orders there was numberclause providing for superannuation or retirement on attaining a certain age. In our judgment much assistance or help cannot be derived from para 16 of the model Standing Orders as companytained in schedule 1 to the Industrial Employment Standing Orders Central Rules 1946. Retirement which is mentioned there may be under the terms of companytract of employment entered into between the employer and the employees. Section 2 oo of the Industrial Disputes Act 1947 throws a certain amount of light on the matter. It is reproduced below ,- Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does number include- a voluntary retirement of the workman or b retirement of the workman on reaching the age of, superannuation if the companytract of employment between the employer and the workman companycerned companytains a stipulation in that behalf It shows, firstly, that termination of service of a workman is distinct from retirement on reaching the age of superannuation secondly, retirement can take place on resch the age of superannuation under the terms of the companytract of employment entered into between the employer and the workman. Therefore, the word retirement in para 16 cannot be regarded as companyclusive of the question whether termination of employment includes retirement and superannuation. In the schedule to the Act item 8 companyers termination of employment and the numberice to be given either by the employer or the workman and item 9 relates to sus- pension or dismissal for misconduct etc. Item 8 by virtue of the language employed does number appear to companyer the case of superannution which does number depend on any numberice and which companyers an event which is automatic and which must be given effect to without any volition on the part of the employer or the workmen as pointed out in the Orissa judgment. If termination is to be read in a wide sense as meaning employment companying to an end there was a necessity to have item 9 because dismissal would then be companyered by termination. In the companytext in which the word ,termination is used in item 8 it cannot mean each and every form of termination or cessation of employment. From para 13 of the Model Slanding Orders companytained in schedule 1 to the Industrial Emtployment Standing Orders Central Rules 1946, it is apparent that item 8 is companyfined to termination of employment by numberice in writing and does number companytain any mention L1061 Sup. CI/72 of superannuation or retirement. It was perhaps this difficulty which prompted the state or U.P. to introduce item 11-C in exercise of the rule making powers companyferred by s. 15 of the Act and the bombay legislature to make similar amendment by legislation. it would follow that unless an employer can include a clause relating to the age of retirement and superannuation and the Certifying Officer can certify it even though numbersuch item appears in the schedule to ,the Act clause 32 as certified in 1951, in the present case, companyld number be regarded to be valid. The Madras High Court in the case of Management of the Hindu, Madras 1 made some observations to the effect that there was numberbar to the Standing Orders making a provision for matters other than those specifically mentioned in the schedule so long as ,the Certifying Officer certifies them on he ground that they are fair and reasonable. The Orissa High Court, however, in Sarojkumar Ghoshs 2 case did number subscribe to this view. Learned companynsel for the appellant, apart from relying on the Madras decision, has number addressed any arguments on the larger and wider question as to whether even in the absence of any item in the schedule Standing Orders can be framed on certain matters which may be regarded as fair and reasonable and which may be so certified by the Certifying Officer. it is, however, unnecessary to decide this point in the present case because clause 32 of the Standing Orders on which the appellant has relied was certified in July 1951 when according to the express language of s. 4 of the Act the Certifying Officer or the appellate authority was debareed from adjudicating upon the fairness or, reasonableness of the provisions of any Standing Orders. It is difficult to understand how the Certifying Officer at that point of time and before the amendment of s. 4 in 1956 companyld have possibly certified my Standing Order which did number relate to any item in the schedule on the ground that it was fair or reasonable Indeed the function of the Certifying Officer, before the amendment of 1956, was very limited as is clear from s. 3 2 of the Act which says Provision shall be made in such draft for every matter set out in this schedule which may be applicable to the industrial establishment and were model Standing Orders have been prescribed, shall be, so far is practicable, in companyformity with such model. We must, therefore, hold that, clause 32 of the Standing Orders as certified in July 1951 was number valid and cannot be binding on the respondents. However, after item 11-C was introduced in the schedule so far as the State of U.P. was companycerned an item was added providing for the age of retirement and superannuation. The Certifying Officer, when lie modified clause 32 and AIR 1961 Mad. 107. AIR 1970 Orrissa 126. fixed the,retiring age at 58 on April 22, 1961 companyld have validly certified such clause as modified by him. The necessary companysequence will be that the respondents companyld number have been relied on the ground of superannuation in July 1959 and they companyld be validly retired only on or after April 22, 1961 in accordance ,with clause 32 as modified by the Certifying Officer. In other words, those out of the present respondent who had attained the age of 58 years on April 22, 1961, companyld be regarded as having been validly retired having reached the age of superannuation on that date under that clause. In view of the previous decisions of this Court and in particulaw that of Guest Keen Williams Pvt. Ltd. 1 it has number been disputed that in the industrial dispute which was referred it was open to the Industrial Tribunal or the Labour Court to determine the age of retirement or superannuation numberwithstanding that clause 32 of the Standing Orders as certified in 1961 had been legally ,And validly certified indeed in Guest keen Williams Pvt. Ltd. 1 It was number disputed that even this. Court companyld give an appropriate direction which might be companysidered reasonable with regard to the age of superannuartion as stated before according to clause 32 of the Standing Orders, as certified in April 1961, the age of superannuation was fixed at 58. The appellant filed an appears that in the cage of Agra Electric Supply Co. 2 also a appears that in the case of Agra Electric supply Co. 4 also a similar Standing order had been certified and on appeal the age of -retirement was reduced from 58 to 55 years by the appellate authority. This Court in that case held the Standing Order fixing the age at 55 years applicable number only to those employees who were employed subsequently but also to all workmen who were in employment at the time when the Standing Orders became legally applicable. It does number appear in that case that any such argument was raised that the matter should be remitted either to the Industrial Tribunal or the Labour Court to fix the age of superannuation or that this Court itself might do so as was the companyrse followed in the case of Guest keen Williams Pvt. Ltd. 1 in which the age was fixed at 60 years with regard to those employees who had raised the dispute on the ground that the Sanding Orders companyld number govern them as they had been employed before the Standing Orders became applicable. After companysidering the entire material and keeping in mind the fact that according to the appellate authority even the age of retirement at 55 was fair and reasonable we are of the view that the age of superannuation of the respondents, in the present case, should be 58 years. In other words. it will be the same as was fixed by the Certifying Officer by modifying clause 32 on April 22, 1961. 1 1960 1 S.C.R. 348. 2 1970 1 S.C.R. 808 Lastly we must deal with the companytention raised on behalf of the respondents that the order of the Allahabad High Court made on July 12, 1966 quashing the award after following the decision of this Court in Guest Keen Williams Pvt. Ltd. 1 should be deemed to be final and should debar any fresh companysideration or decision of that point by virtue of the rule or principle of res-judicata. It is numbereworthy that the order of the Allahabad High Court was number final against which the matter companyld have, been taken in appeal either to a division bench of the High Court or to this Court. Reliance has been placed on a decision of this Court in Management of Northern Railway Cooperative Society Ltd. v. Industrial Tribunal Rajasthan, Jaipur and Another 2 , where reference had been made by the State Government to the Industrial Tribunal on the Railway Workers Union having raised an industrial dispute against the Management of the Northern Railway Cooperative Society Ltd. The society filed a writ petition on the ground that the dispute having been raised by the Railway Workers Union and number by the Societys own employees the reference to the Tribunal was number companypetent. The High Court dismissed the petition. thereafter the Tribunal heard the matter and gave its deci- sion in favour of the workman companycerned. The society appealed to this Court by special leave. It was held that the order of the High Court was number interlocutory but was a final order in regard to the proceedings under Art. 226. The appropriate remedy for the appellant in that case was to appeal against the High Courts order and that number having been done the appellants plea relating to the companypetency of the reference was barred by res judicata as the same had been raised before the High Court and had been rejected. The present case is clearly distinguishable inasmuch as the order made by the High Court was number final and a remand had been directed presumably under Art. 227 of the Constitution. That order in fact did number finally terminate any proceedings at all. The proceedings were terminated only by the award against which the present appeal has been brought by special leave. We are unable to see how the decision in the aforesaid case can afford any assistance to the respondents before us. Indeed the case which is more apposite in Satyadhyan Ghosal Ors. v. Smt. Deorajin Debi Another 3 . There an order of remand had been made by the High Court while exercising powers under S. 115 of the Code of Civil Procedure. It was observed, after referring to the various decisions of the Privy Council, that the order of remand was interlocutory and did number pumort to dispose of the case. A party is number bound to appeal against every interlocutory order which is a step in the procedure that leads up to a final decision or award. 1 1960 1 S.C.R. 348. 3 1960 3 S.C.R 590. 2 1967 2 S.C.R. 476. The following observations from this case may be reproduced with advantage Interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decision of the dispute between parties by way of a decree or a final order. We are unable, therefore, to accede to the companytention that the rule of res-judicata companyld be invoked by the, respondent in the present case. In the result the appeal is allowed and the order of the Industrial Tribunal is hereby set aside. According to our decision the workmen companycerned companyld number have been retired on the ground of superannuation in accordance with clause 32 of the Standing Orders till it was certified after necessary modification on April 22, 1961. Even otherwise it has been held by us that the proper age of retirement in ,he case of those employees who joined service prior to April 22, 1961 should be 58 years. The award, therefore, will be that the companycerned workmen should be deemed to have companytinued in service of the appellant till they had at attained the age of 58 years. It is declared that they shall be entitled to be paid full wages and all other dues to which they are entitled under ,the terms of their employment till they attained the age of 58 years. As regards any payments received by the workmen pursuant to the award or after the numberice of termination those shall also be adjusted accordingly and the appellant undertakes number to claimrefund of any amounts which have already between received by them in excess of the amounts due. No order as to companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 1572 of 1968. Appeal from the judgment and order dated the 31st October, 1966 of the Jammu and Kashmir High Court in Writ Petition No. 130 of 1966. K. Ramamurthi, Ram Panjwani and R. N. Sachthey, for the appellant. L. Sanghi, for the respodents. The Judgment of the Court was delivered by Sikri, C.J. This is an appeal by certificate granted by the High Court of Jammu and Kashmir from its judgment dated October 31, 1966 allowing the writ petition filed by the petitioner-respondent, M. S. Farooqi of the Indian Police Service, and restraining the State of Jammu and Kashmir, appellant before us, from proceeding against him under the Jammu and Kashmir Government Servants Prevention of Corruption Commission Act, 1962-hereinafter referred to as the Commission Act. The High Court held that the members of an All India Service serving in a State are governed by the All India Services Act, 1951, and the Rules made thereunder, and the Commission Act was number applicable to them. The High Court further held that the Commission Act was hit by art. 14 of the Constitution as there is a clear discrimination between the members of All India Services posted else where and the members of the same Service posted in the State inasmuch as inquiry against the former for acts of companyruption is to be held under the Central Act and the rules made thereunder while against the latter for the same acts of companyruption enquiry is to be held under the Commission Act, the provisions of which are for more drastic than the Central Act and the rules made thereunder. We may briefly state the relevant facts which necessitated the filing of the writ petition. The respondent before us, S. Farooqi, hereinafter referred to as the petitioner, is a member of the Indian Police Service which is in All India Service. He is borne on the Jammu Kashmir cadre. On March 12, 1964, an anonymous companyplaint was received by the Commission, set up under the Commission Act. On March 20, 1964, the Commission asked for a report from the Deputy Inspector General of Police. The Deputy Inspector General of Police Anti Corruption Organisation raised the question of the jurisdiction of the Commission. The Commission, however, held that the Commission Act was applicable in its entirety to Government servants belonging to Jammu and Kashmir cadre of the All India Services. The objection raised by the Investigating Agency was thus overruled. The Investigating Agency was directed to companytinue Investigation of the case and submit a report. Thereupon the petitioner filed the writ petition in the High Court challenging the jurisdiction of the Commission. As stated above, the High Court allowed the petition, but later granted certificate of fitness and the appeal filed on behalf of the State of Jammu and Kashmir is number before us. The learned companynsel for the State companytends that The Commission Act is in pith and substance a law in respect of companyruption of Government servants of Jammu and Kashmir and only incidentally deals with members of the All India Services, and is therefore valid in its entirety. If such a legislation is valid, the Act is number discriminatory because all servants of Jammu and Kashmir Government are treated alike and the same procedure applied to them for the trial of offences of companyruption There is a valid classification on the basis of territory and In any event, the procedure under the Commission Act is number more prejudicial than that under the AU India Services Act, 1951, and the rules made thereunder. The first point raised by the learned companynsel does number meet the real objection to the applicability of the Commission Act to members of the Indian Police Service serving in Jammu and Kashmir. This objection is that, assuming that the Commission Act is in pith and substance a law with respect to companyruption of Government servants, it is repugnant to the provisions of the All India Service Act, 1951, and the All India Services Discipline and Appeal Rules, 1955- hereinafter referred to as the Discipline and Appeal Rules, and it must give way to the statutory provisions. It seems to us that there is force in the objection raised on behalf of the petitioner and in that view it is number necessary to decide the four points raised by the learned companynsel. We are here companycerned with, the Constitution of India as applicable to the State of Jammu and Kashmir at the relevant time. Article 370 of the Constitution of India, inter alia, provides that the powers of Parliament to make laws for the State of Jammu and Kashmir shall be limited to those matters in the Union List and the Concurrent List which, in companysultation with the Government of the State, are declared by the President to companyrespond to matters specified in the Instrument of Accession governing the Accession of the State, to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for the State, and ii such other matters in the said Lists as, with the companycurrence of the Government of the State, the President may by order specify. In exercise of the powers companyferred by cl. 1 of art. 370, the President, with the companycurrence of the Government of the State of Jammu, and Kashmir, made the Constitution Application to Jammu and Kashmir Order, 1954. We are companycerned in this case with the position as it existed on 0July 16, 1962 when the Commission Act received the assent of the Sadar-i-Riyasat. The position was that Parliament companyld legislate on List I, entry 70, which reads Union Public Services, All-India Services Union Public Service Commission. Article, 246 of the Constitution, as applied to Jammu and Kashmir, then read 24.6 1 Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule in this Constitution referred to as the Union List. Articles 248 and 249 of the Constitution had number been made applicable to the State of Jammu and Kashmir and, therefore, all the residuary powers rested with the State of Jammu and Kashmir. Entry 97 of List I, dealing with residuary powers., had also been omitted. Article 254, as applicable to the State of Jammu and Kashmir at the relevant time, provided If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is companypetent to enact, the, law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail and the law made by the Legislature of the State shall, to the extent of repugnancy, be void. At the relevant time there was numberconcurrent Iist. Certain entries in the Concurrent List seem to have been applied by the order No. CO 66 of 1963 dated September 25, 1963, for the first time. From this companystitutional scheme it follows that if a provision of the Commission Act is repugnant to a provision of the Discipline and Appeal Rules, 17955, then the law made by the State of Jammu and Kashmir must give way. Article 254 of the Constitution as applied above, is similar to section 109 of the Australian Constitution which provides that when a law of the State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall to the extent of inconsistency, be invalid. The learned companynsel for the State relied on various decisions of this Court interpreting art. 254, is it exists in the Indian Constitution. In A. S. Krishna v. State of Madras 1 while interpreting s. 107 of the Government of India Act, 1 9 3 5, which is similar to art. 254 1 of the Constitution, Venkatarama Ayyar, J, observed For this section to apply, two companyditions must be fulfilled 1 the provisions of the Provincial law and 1 1957 S.C.R. 399. those of the Central Legislation must both be in respect of a matter which is enumerated in the Concurrent List, and 2 they must be repugnant to each other. It is only when both these requirements are satisfied that the pro- vincial law will, to the extent of repugnancy, become void. In Deep Chand v. State of Uttar Pradesh 1 , Subba Rao, J., as he then was, seems to read cl. 2 of art. 254 in a similar manner. In Prem Nath Kaul v. The State of Jammu and Kashmir 2 Gajendragadkar, J., as he then was, observed Besides, it is clear that the essential companydition for the application of Art. 254 1 is that the existing law must be with respect to one of the matters enumerated in the Concurrent, List in other words, unless it is shown that the repugnancy is between the provisions of a subsequent law and those of an existing law in respect of the specified matters, the Article would be inapplicable and, as we have already pointed out, Schedule Seven which companytains the three Legislative Lists was number then extended to the State and it is, therefore, impossible to predicate that the matter companyered by the prior law is one of the matters enumerated in the Concurrent List. That is why Art. 254 cannot be invoked by the appellant. Art. 254, as applicable to the State of Jammu and Kashmir, at the time this judgment was delivered, was in the same form as in the Indian Constitution. This Court was number then dealing with art. 254 in the form with which we have to deal with We may mention that this Court left open the question regard the interpretation of art. 254 1 in the following words in Ch. Tika Ramji v. The State of Uttar Pradesh 3 We are companycerned here with the repugnancy, if any, arising by reason of both Parliament and the State Legislature having operated in the same field in respect of a matter enumerated in the Concurrent List, i.e., foodstuffs companyprised in Entry 33 of List III and we are, therefore, number called upon to express any opinion on the companytroversy which was raised in regard to the exact scope, and extent of article 254 1 in regard to a law made by Parliament which Parliament is companypetent to enact, as to whether the legislative power of Parliament therein refers to List I, List III and the residuary power of legislation vested in Parliament under article 1 1959 Sip3.2 S.C.R. 841. 3 1956 S.C.R. 393 424. 2 1959 Supp. 2 S.C.R. 270 300. 248 or is companyfined merely to the matters enumerated in the Concurrent List Vide A.I.R. 1942 Cal. 587 companytra, per Sulaman, J., in 1940 F.C.R. 188 at p. 226 . It seems to us that the above cases are number applicable as the language of Art. 254 as applicable to J. K. is different. On the wording of art. 254, as it existed when the Commission Act was enacted, it seems to us that there is numberescape from the clear wording of the article. It says in plain words that if there is any repugnancy between the law made by the State and the law made by Parliament the law made by the Legislature of the State must give way. So, the only question to be determined is whether there is any repugnancy between the Discipline and Appeal Rules and the Commission Act. We may state that we are number companycerned with the meaning ascribed to art. 254, as it exists in the Indian Constitution and which was interpreted by the judgments referred to above. In Ch. Tika Ramji v. The State of Uttar Pradesh 1 this Court examined the question of repugnancy. It referred to various authorities and companycluded that either there must be inconsistency in the actual terms of the Act enacted by Parliament and the impugned State Act or the law enacted by Parliament be intended to be a companyplete and exhaustive companye in other words, expressly or impliedly evince an intention to companyer the whole field. Various tests have been suggested by various authorities as to how to determine whether there is any inconsistency or repugnancy. Bhagwati, J., referred to Nicholas-Australian Constitution, 2nd ed. p. 303who had suggested three tests of inconsistency or repugnancy,, namely - There must be inconsistency in the actual terms of the companypeting statutes. Though there may be numberdirect companyflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to he a companyplete exhaustive companye. Even in the absence of intention, a companyflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter. 1 1956 S.C.R. 393. In Deep Chand v. State of Uttar Pradesh 1 Subba Rao, J., as he then was, speaking for the Court, observed on the question of re- pugnancy Repugnancy between two statutes may thus be ascertained on the basis of the following three principles Whether there is direct companyflict between the two provisions Whether Parliament intended to lay down an exhaustive companye in respect of the subject matter replacing the Act of the State Legislature and Whether the law made by Parliament and the law made by the State legislature occupy the same field. We may also refer to the observations of Evatt, J., in Stock Motor Plough Ltd. v. Forsyth 2 , which were extracted in Tika Ramjis case 3 It the test of companyering the field is numbermore than a cliche for expressing the fact that, by reason of the subject matter dealt with, and the method of dealing with it, and the nature and multiplicity of the regulations prescribed, the Federal authority has adopted a plan or scheme which will be hindered and obstructed if any additional regulations whatever are, prescribed upon the subject by any other authority if, in other words, the subject is either touched or trenched upon by State authority. It has been held in Australia that s. 109 of the Australian Constitution is number limited in its application to cases where both sets of provisions deal with the same subject matter. Wynes in his Legislative, Executive and Judicial Powers in Australia 4th ed. states the general principles as applicable to Australia at page 101.Some of these principles may be set out It is essential to companysider first whether the question of inconsistency arises. Thus, if the Commonwealth have numberpower to pass the law under companysideration or the law is otherwise invalid, the matter is ended and sec. 109 does number arise. Similarly, sec. 109 does number arise where the State law is invalid on other grounds. It matters number which Act is first in point of time. 1 1959 Supp. 2 S.C.R. 841,11 2 193248C.L.R.128,147. 3 1956 S.C.R. 393. Where them is number a direct companyflict or discrimination, there may still be, inconsistency if the State attempts to govern companyduct or to deal with a matter which has already been dealt with by a law of the Commonwealth intended to, express companypletely exhaustively or exclusively the law,governing a certain subject matter. The question in every cage is What is the intention of the Commonwealth Parliament ? Is it an intention to lay down the whole of the law on a certain subject ? If so, that subject is withdrawn from State companytrol, but, as we have see from the reasoning of Dixon J., in the 44-hour Case, it is withdrawn, number from any or all State legislation which may affect or have, some companynection with it, but only from State, legislation which attempts to govern it in the character in virtue of which it is regulated by Commonwealth law. It is number essential to the operation of sec. 1 09 that the two Acts companysidered as a whole should be upon or with respect to the same subject matter, but where the inconsistency sought to be established is between Com- monwealth intention to deal exclusively with a certain subject and State law dealing with companyduct which may companyceivably form a portion of that subject, the question is whether the State Act deals with such companyduct as forming an element in the subject intended to be exclusively governed by Commonwealth law. This question is one which must be decided in the circumstances of each particular case. The Judicial Committee of the Privy Council, in O Sullivan Noarrlunga Meat Ltd. 1 approved of the following lines from the judgment of Dixon J. in Ex parte Mclean 2 The inconsistency does number lie in the mere companyxistence of two laws which are susceptible of simultaneous ,obedience. It depends upon the intention of the paramount legislature to express by its enactment, companypletely, exhaustively, or exclusively, what shall be the law governing the particular companyduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same companyduct or matter. In Canada this question has arisen in a number of cases and those cases,.are relevant because in Canada paramountoy is said to be tied up with the trenching .,doctrine in the first of the four 1 19571 A.C. 1 28. 2 43 C.L.R. 472,483. propositions laid down in the Fish Canneries case--Attorney General, Canada v. Attorney-General, British Columbia 1 and the fourth proposition was in these words There can be a domain in which provincial and Dominion legislation may overlap in which case neither legislation will be ultra vires if the field is clear, but if the field is number clear and the two legislations meet the Dominion legislation must prevail. see T.R. v. A.G. Can. 2 Sulaiman, J., examined this question in Subrahamanyan Chettiar v. Muthuswami Goundan 3 . He observed It seems to me that the principles of interpretation laid down by their Lordships, in the Canadian cases cannot be brushed aside by simply saying that they relate to a different Constitution. Those principles are number only ,of the greatest weight but must be a guide to us even in interpreting the Indian Constitution. Of companyrse, we cannot interpret the language of any section in the Indian Act in the light of the interpretation of the companyresponding section in the Canadian Constitution. That has to be avoided but the principles of interpretation that have been established cannot be ignored. At the same time it would be dangerous to import only a part of the doctrine and exclude another part. Partial application may frustrate the very object for which the rule of law was deduced. The two doctrines of incidental encroachment and unoccupied field are closely related. I would go further and say that they are indissolubly companynected. We cannot import the doctrine of incidental encroachment in favour of the Provinces, and refuse to import the doctrine of unoccupied field which is in favour of the Centre. The two must go hand in hand. To allow Provincial legislatures to encroach upon the exclusive Federal field, even though in an indirect way, when there is a Central legislation already occupying the field, would be to give the former a free hand in nullifying Central Acts relating to matters in the Federal List. Such a carte blanche companyld hardly have been companytemplated. The scheme of S. 1 00 of the Act is to exclude companypletely from, the authority of the Provincial Legislature the power to legislate with respect to subjects in 1 1930 A.C. 111. 2 1907 A.C. 65. See Laskin Canadian Constitutional Law 3rd ed, p. 105. 3 1940 F.C.R. 1880? 231, 240,241. List I. If in companysequence of certain difficulties that Provincial Legislatures would experience by a rigid enforcement of such an exclusion we must in interpreting the words with respect to import the Canadian doctrine of permissibility of incidental encroachment, we must then art the same time import the other allied doctrine also that such an encroachment is permissible only when the field is actually unoccupied. It is only in this way that actual clash between the Centre and the Provinces can be avoided, which I think we must. This will also explain the apparent gap in S. 107 1 of the Act, that gap being filled in by the provisions of s. 100. Varadachariar J. left open the point whether the provisions of the impugned Act may also be void under S. 107 of the Constitution Act insofar as they are repugnant to the provisions of the Negotiable Instruments Act. He observed The validity of this companytention will depend upon the import of the expression federal law occurring in the opening part of sub- section 1 of s. 107. It may be companyceded that the words which the Federal Legislature is companypetent to enact may refer to the first List also and they need number be qualified by the words occurring later and referring to the Concurrent Legislative List because, if these later words were intended to qualify the open- ing words of the sub-section also, it would number have been necessary to use the words which the Federal Legislature is companypetent to enact in the earlier portion. He further saw a possible anomaly in the operation of S. 107, viz., that while provincial legislation in respect of. subjects in the Concurrent List cannot override existing Indian law except when assented to by the Governor General, such legislation in respect of subjects enumerated in List II may without any such safeguard override pre-existing enactments even of the Central Legislature if they relate to subjects specified in List I. The learned companynsel for the State relies on the decision of the Privy Council in Megh Raj. v. Allah Rakhia 1 in support of his proposition that if the impugned legislation is a law number with respect to All India Services but a law with respect to Corruption of Public Officers it is within the jurisdiction of the State Legislature, and numberquestion of repugnancy arises. He relies particularly on the following observations Thus both parties rightly companystrued S. 107 as having numberapplication in a case where the province companyld show 1 1947 F.C.R.77,85,88. that it was acting wholly within its powers under the Provincial List and was number relying on any power companyferred on it by the Concurrent List. It follows that in their Lordships judgment there is number sufficient ground for holding that the impugned Act, or any part of it, was invalid. As a whole it fell within the powers given to the province by items 2 and 21 of List II, without any necessity to invoke any powers from the, Concurrent List, List III. Accordingly questions of repugnancy under s. 107 of the Constitution Act do number arise and need number be companysiderd here. But if facts are examined it would be clear that these observations do number assist the appellant. The Art which was impugned was the Punjab Restitution of Mortgaged Lands Act, 1938, and it was argued that the provisions of the impugned Act were repugnant to certain existing Indian Laws, viz., Indian Contract Act and the Code of Civil Procedure, which fell, within entries 8 and 10 of List III of the, Government of India Act, 1935. Entry 8 dealt with transfer of property other than agricultural land registration of deeds and documents and entry 10 dealt with Contracts, including partnership, agency, companytracts of carriage, and other special forms of companytract, but number including companytracts relating to agricultural land. The Privy Council came to the companyclusion that the impugned Act was within items 2 and 21 of List II. Their Lord ships observed If, as their Lordships think, the impugned Act is limited to agricultural land items 7, 8 and 10 of List III do number affect the position, since agricultural land is excluded in these entries. But in any event, the Act does number deal with wills or the transfer of property at all it does certainly deal with mortgages, but as their Lordships have already stated, mortgages, though number expressly mentioned in the Constitution Act, are properly to be classed number under the head of companytracts, but as special transactions ancillary to the entry of land. . In this case it was obvious that there was numberconflict between legislation on entries in List II and legislation on entries in List III the companyflict if at all was with the existing Indian laws. The Privy Council had number to deal with the matter with which we are companycerned, vim,, when a valid State legislation, companyes into companyflict with a companypetent legislation of Parliament under List I. Similarly in prafulla Kumar Mukherjee v. Bank of Commerce 1 there was alleged companyflict between the Bengal Money 1 1947 F.C.R. 28, 34. Lenders Act, 1940, and an existing Indian Law, namely, Negotiable Instruments Act. It was urged before the Privy Council that if outside the authorized field. the impugned Act companyflicts with a Federal law-in the sense in which the words are used in s. 107 of the Constitution Act-it may be that its provisions would be ineffective. The answer to the suggestion that there is any such companyflict here is threefold There is numberconflict or inconsistency between the impugned Act and the Negotiable Instruments Act ii If there is a companyflict, then the Negotiable Instruments Act is number a Federal law within the meaning of S. 107 of the Constitution Act iii If there is a companyflict, and if the Negotiable Instruments Act is a Federal law then the companyflict is with that part of the Federal Law which is in the field of companytract, which is within the power companyferred by List III, the Concurrent List, and the companyflict is cured by the provisions of s. 107, sub-s. 2, of the Constitution Act, because this is a case where the Act was reserved for the companysideration of the Governor-General, and therefore the Provincial law in the province would prevail. The Privy Council posed three questions. 1 Does the Act in question deal in pith and substance with money lending ? If it does, is it valid though it incidentally trenches on matters reserved for the Federal legislature ? 3 Once it is determined whether the pith and substance is money lending, is the extent to which the Federal field is invaded a material matter ? They answered the first question in the affirmative. Dealing with the second question, the Privy Council observed Moreover, the British Parliament when enacting the Indian Constitution Act had a long experience of the working of the British North America Act and the Australian Commonwealth Act and must have known that it is number in principle possible to ensure that the powers entrusted to the several legislatures will never overlap. The Privy Council approved of certain observations of Sir Maurice Gwyer, C.J. and then observed But the overlapping of subject-matter is number avoided by substituting three lists for two, or even by arranging for a hierarchy of jurisdictions Subjects must still overlap, and where they do, the question must be asked what in pith and substance is the effect of the, enactment of which companyplaint is, made and, in what list is its true nature and character to be found. If these questions companyld number be asked, much beneficient legislation would be stifled at birth, and many of the subjects entrusted to 11-L1061SupCI/72 Provincial legislation. companyld never effectively be dealt with. Dealing with the third question, the Privy Council observed, No doubt it is an important matter, number, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance so far into Federal territory as to show that its true nature is number companycerned with provincial matters, but the question is number, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is number money lending but promissory numberes or banking ? Their Lordships further observed Does the priority of the Federal legislature prevent the Provincial legislature from dealing with any matter which may incidentally affect any item in its list, or in each case has one to companysider what the substance of an Act is and, whatever its ancillary effect, attribute it to the appropriate list according to its true character ? in this case there was numberconflict alleged with the Federal legislation on an item in List I and what they were companysidering was companyflict with the existing law. In A. S. Krishna v. State of Madras 1 the companyflict alleged was between the Madras Prohibition Act, 1937, on the one hand and the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1898 on the other. This Court held that the impugned Act in question was a law with respect to entry 31 List II, and observed The Madras Prohibition Act is thus in its entirety a law within the exclusive companypetence of the Provincial Legislature, and the question of repugnance under s. 107 1 does number arise. The Court did number address itself to the question whether assuming that if was a law with respect to entry 31 List II and number a law with respect to entries 5 and 2 respectively of List III, yet what is to happen if the existing laws, namely, the Evidence Act and the Criminal Procedure Code, were in fact repugnant. At any rate, this Court was then number companycerned with Parliamentary legislation under List I and also was number companycerned with art. 254 in the form as it existed at the relevant time as applicable to the State of It Jammu and Kashmir. 1 1957 S.C.R. 399. We may mention that this Court upheld the provisions of the Bombay Prohibition Act, 1949, under art. 254 2 in Ukka Kothe v. State of Madras 1 insofar as they were companysistent with the provisions of the Code of Criminal Procedure. The learned companynsel for the appellant referred to Calcutta. Gas Company v. State of West Bengal 2 , but we are unable,to see how it helps the appellants case. In that case the Court was companycerned with reconciling certain entries and observed that entries in the lists are only legislative heads or fields of legislation they demarcate the area over Which the appropriate legislature can operate. It is well settled that widest amplitude should be given to the language of the entries. But some of the entries in the different List or in the same List may overlap and sometimes may also appear to be in direct companyflict with each other. It is then the duty of this Court to reconcile the entries and bring harmony between them. But in this case we are number companycerned with any question of harmonising the entries because we have on the one hand a specific entry in List I and on the other hand a residuary List. Now it remains to be seen whether the impugned Act is repug- nant to the provisions of the All India Service Discipline and Appeal Rules, 1955. We may first numberice the provisions of the Discipline and Appeal Rules. Rule 3 prescribes certain penalties, which may for good and sufficient reasons, and as hereinafter provided be imposed on a member of the Service. The penalties include censure, withholding of increments or promotion reduction in rank, removal from service and dismissal from service, etc. The authority to institute proceedings and to impose penalties is mentioned in r. 4. It is the Government, under whom the member is serving at the time of the companymission of an act or omission which renders him liable to any penalty, which is companypetent alone to institute disciplinary proceedings and that Government can also impose all the penalties specified in r. 3 except the penalty of dismissal, removal or companypulsory retirement which order can only be passed by an order of the Central Government. Rule 5 prescribes the procedure for imposing penalties. The grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges which shall be companymunicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into companysideration in passing orders on the case. A member of the service is given reasonable time to put in a written statement of defence. It enables him to be heard if he A.I.R 1963 S.C.1531 2 1962 Supp. 3 S.C.R. 1. so desires. The member of the Service is entitled to have access to official records. After the written statement is received, if such is filed, the Government may appoint a Board of Inquiry or an Inquiry Officer to enquire into the charges or the Government enquires into the charges itself. In brief, detailed rules are laid down regarding the manner of holding the enquiry. Rule 6 provides for companysultation with the Union Public Service Commission. Rule 7 deals with suspension during disciplinary proceedings and r. 8 deals with subsistence allowance during suspension. Rule 9 deals with payment of pay and allowances and treatment of service on reinstatement. A right of appeal is given against certain orders and r. 20 provides for a memorial to be submitted to the President. These rules are a companyplete companye as far as infliction of penalties prescribed in r. 3 is companycerned. The Commission Act provides for the companystitution of one or more Commissions to be known as the Anti-Corruption Commis- sions to hold enquiry into the charges of companyruption,and misconduct, as defined in ss. 3 and 4 of the Commission Act, against all government servants including members of All India Services. The Commission is provided with an investigating agency to investigate into the charges. Section 10, before its amendment, provided for an inquiry by the Commission either suo mato or on a report in writing by certain officers. Under S. 1 1 every person is entitled to companyplain to the Commission against a Government servant. Section 12 provides for a preliminary examination of the companyplaint. The Commission may either dismiss the companyplaint or, if in its opinion there are sufficient grounds for taking further proceedings in the companyplaint, the Commission shall cause the substance of the allegations to be drawn into distinct articles of charges and summon the accused to appear before it. Under sub-s. 5 of s. 12, as it existed before its amendment in 1969, the government servant had to be placed under suspension after the charges were drawn up against him by the Commission. Section 13 provides for procedure at the enquiry. Section 17 requires the Commission to record its findings on the various articles of the charge and submit its recommendation to the Sadar-i- Riyasat. If any of the charges are held to have been established against the accused, the Commission has to recommend the punishment mentioned in this section. under sub-s. 2 of S. 17 the Commission may, in addition to the punishment referred to in sub-s. 1 , recommend that the accused be declared for ever or for any shorter period of time to be specified, incapable or being appointed to any public office. Sub-section the accused be prosecuted for any offence in a Court of law. Sub-section 7 specifically deals with members of the An India Services and provides that in their case the Sadar-i- Riyasat may recommend the imposition of the punishment to the appropriate authority. There are various other incidental provisions which we need number detail. From the perusal of the provisions of the two statutory laws, namely, the All India Services Discipline and Appeal Rules, 1955, and the Jammu and Kashmir Government Servants Prevention of Corruption Commission Act, 1962, it is impossible to escape from the companyclusion that the two cannot go together. The impugned Act provides for additional punishments number provided in the Discipline and Appeal Rules. It also provides for suspension and infliction of some punishments. It seems to, us that in so far as the Commission Act deals with the infliction of disciplinary punishments it is repugnant to the Discipline and Appeal Rules. Parliament has occupied the field and given clear indication that this was the only manner in which any disciplinary action should be taken against the members of the All India Service. Insofar as the Commission Act deals with a preliminary enquiry for the purposes of enabling any prosecution to be launched it may be within the legislative companypetence of the Jammu and Kashmir State and number repugnant to the provisions of the Discipline and Appeal Rules. But as the provisions dealing with investigation for possible criminal prosecution are inextricably intertwined with the provisions dealing with infliction of disciplinary punishment the whole Act must be read down so as to leave the members of the All India Service outside its purview. We accordingly hold that the provisions of the Commission Act do number apply to the members of the All India Services. Accordingly we dismiss the appeal. As the respondent was number represented there would be numberorder as to companyts. We thank Mr. G. L. Sanghi for assisting us as amicus curiae.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 243 of 1971. Appeal by special leave from the judgment and order dated September 3, 1970 of the Madhya Pradesh High Court in Miscellaneous Petition No. 256 of 1970. K. Daphtary, L. M. Singhvi, S. K. Mehta, K. L. Mehta and R. Nagaraja, for the appellant. Sen and I. N. Shroff, for respondents Nos. 1, 3 and 4. S. Khanduja, S. K. Dhingra and Promod Swaroop for res- pondent No. 2. The Judgment of the Court was delivered by Jaganmohan, Reddy, J This is an appeal by special leave against the summary dismissal, of a Writ Petition filed by the appellant against the order of the Chancellor of the Saugar University dated the 15th June 1970 by which his appointment as Vice-Chancellor of that University was cancelled. It may at the outset be mentioned that the appointment of the Vice-Chancollor of the Saugar University is made by the Chancellor of that University under section 13 of the University of Saugar Act, 1946 hereinafter referred to as the Act from 1 panel of number less than three persons recommended by the Committee companystituted under sub-section 2 of that section. The Committee to be companystituted under sub-section 2 was to companysist of three persons, two of whom shall be elected by the Executive Council by single transferable vote from amongst persons number companynected with the University or a College and the third shall be. numberinated by the Chancellor who was, also empowered to appoint one of them as Chairman of the Committee. It is unnecessary to refer to other provisions of this section because these are number relevant for the purpose of this appeal. It appears that under the above provisions a Committee to submit a panel of names for the appointment of a Vice-Chancellor for the University was duly companystituted companysisting of two persons elected by the executive Committee of the University, namely, G. K. Shinde, Retired Chief Justice and Justice T. P. Naik of the Madhya Pradesh High Court while the third member Shri C. B. Agarwal Retired Judge of the, Allahabad High Court was numberinated by tfie Chancellor, Rajmata Vijaya Raje Scindia who also appointed K. Shinde as the Chairman of the Committee. The Chairman thereafter appears to have carried on a companyrespondence to fix, a companyvenient place and time for the meeting, which was ultimately fixed at Indore on the 4th of April 1970. Justice Naik was, however, unable to attend the meeting and in, his absence the other two persons, Shri Shinde panel of and Shri Agrawal met as a Committee and submitteds names from which the Chancellor appointed the appellant on 7th April 1970 as a vice Chancellor with effect from 22nd June 1970 for, a period of five years. The appellant at the time of the appointment, it seems, was acting as Vice- Chancellor. 1061SupCI/72 On the 9th of April 1970, the Governor of Madhya Pradesh, Shri K. C., Reddy promulgated Ordinance No. I of 1970 by section 2 of which sub-section 1 of section II was substituted by a new sub-section 1 where under the Governor of Madhya Pradesh was made an ex officio Chancellor of that University. By section 3, it was provided that as from the date of the companying into force of that Ordinance, the Chancellor in office immediately, before the date aforesaid shall cease to hold office of the Chancellor and the Governor of Madhya Pradesh shall assume the said office. By virtue of this Ordinance Rajmata Vijaya Raje Scindia ceased to be. the Chancellor. On- the 23rd April 1970, the Governor again passed another Ordinance by section 2 of which, he substituted section 43 of the Act by a new section By section 3 a new section 43A was also added. Section 4 made the amendments made by sections 2 and 3 to operate retrospectively as from the companymencement of the original Act. The amended sections 43 and 43A are as follows If any question arises whether any person hi,,, been duly appointed, elected, numberinated or companypted as, or is entitled to be, a member of any authority or other body of the University or any officer of the University, the matter shall be referred to the Chancellor whose decision thereon shall be final. 43A. The Chancellor may, either on his own motion or on the application of any party interested, review any order passed by himself or his predecessor in office if he is of the opinion that it is number in accordance with the provisions of this Act, the statutes, the Ordinance or the Regulations or is otherwise improper and pass such orders in reference thereto as he may think fit. After the above Ordinances were promulgated, the Secretary to the Governor of Madhya Pradesh wrote on the 20th May 1970 to the appellant as follows - The question has companye up before the Chancellor whether the meeting of the companymittee companystituted by his predecessor under section 1 3 2 9 the Act held on 4th April 1970 at Indore at which only two members out of the three were present was legal, and whether the recommendations made by the companymittee at that meeting were legally valid. The Chancellor has been advised that the meeting held on the 4th April with only two men present and. the decisions taken at the meeting .were number legal. As, a companysequence, the orders issued by the University office dated 14th April would have to be rescinded. Before the Chancellor takes action in accordance with legal advice, he has desired that you should be asked if you have anything to state why such action should number be taken. I am desired to request you to send your reply as early as possible, and at the latest within a week. To this letter the appellant sent a reply on the 9th June 1970 after having earlier obitained an extension of time. In that reply he tried to make out a case that the recommendation of the Committee of two members out of three was perfectly valid and in support of it he cited various authorities and also a precedent of the same Governor who as the Chancellor of Indore University seems to have maintained the selection made by his predecessor in similar circumstances. The Governor did number, however, accept the appellants plea but passed the following impugned orders on the 15th June 1970 - WHEREAS, on applications made in that behalf, the Chancellor is of the opinion that order dated the 7th April 1970, passed by his predecessor in office appointing Shri Ishwar Chandra as Vice-Chancellor of the University of Saugar with effect from the 22nd June 1970, for a period of five years is number in accordance with provisions of section 13 of the University of Saugar Act, 1946 XVI of 1946 hereinafter referred to as the said Act NOW, THEREFORE, in exercise of the powers companyferred by section 43A of the said Act, 1, the Chancellor of the University of Saugar, hereby- cancel the aforementioned order dated the 7th April 1970 appointing Shri Ishwar Chandra as ViceChancellor and direct that the companymittee be companystituted for submission of panel in accordance with the provisions of section 13 of the said Act. On the 1st July 1970, a Writ Petition was filed in the High Court of Madhya Pradesh and it appears that on the 3rd July 1970 the Court directed the appellant to produce the companyrespondence between the Chairman, and the members of the Selection Committee in respect of the meeting to be held to recommend the names for the appointment of a Vice- Chancellor. The appellant, if seems, produced the companyrespondence with an affidavit on the 25th July 1970 stating that he had obtained the companyrespondence from the Chairman of the Committee. the former Chief,Justice Shinde. On the 3rd of September 1970 rule nisi was refused. On the 19th September 1970 die application for leave to appeal to the Supreme, Court was also rejected. In the latter order two facts had been stated which have been challenged as incorrect. The first one was that the Chairman had at first fixed Bhopal as the venue of the meeting and secondly.that as the working Vice-Chancellor of the University, the petitioner had access to all the documents relating to the meeting and his detailed reply given to the Chancellor was grounded on some of them. Though there is some justification in these companytentions what has to be seen is whether the order rejecting the Writ Petition was justified, and if so, number that the order of the Chancellor has been impugned, i.e that order valid. It is clear from the Governors impugned order that the appellants appointment was held to be invalid because only two members of the Committee were present at the meeting. The High Court while holding that in the absence of any provision in the relevant enactment or the rules or regulations made thereunder, a majority of members of a selection companymittee like the one in the case before them would companystitute the quorum, however presumed that the question for companysideration of the Chancellor was number merely one relating to the existence of the quorum requisite for a valid meeting but something different. On that assumption it examined the companyrespondence which ensued between the Chairman and Justice T. P. Naik to ascertain whether in fact a valid meeting had been called. According to the learned Judges, Justice Naik had written to the Chairman to say that he, the Chairman, was determined to hold the meeting presumably in his absence, and, therefore, the High Court thought that if the Chancellor, acting under section 43A of the Act formed the opinion that the meeting held on that date was number legal, it cannot be said that there was numberprima facie material for the formation of that opinion, reached by him after giving to the, petitioner an oppor- tunity to state why the action proposed should number be taken. The assumption in this order rejecting the Writ Petition is number warranted, firstly, because the companyrespondence does number show that there was any deliberate attempt made by the Chairman to exclude one of the members in this case, Justice P. Naik, and secondly, that the Chancellor had because of this exclusion, declared the meeting held on the 4th April 1970 as number being valid. We have- already pointed out that the Chancellor was merely companycerned with the legality of the recommendation made by two out of three members and number that,any attempt was made by the Chairman, to, exclude one of the members, Neither the showcase numberice, number the reply given by the appellant to that numberice, number even the order of the Chancellor indicates any such ground as that assumed by the High Court to form the basis of the,Chancellors order.- The companyrespondence shows that the Chairman had written a letter on the 12th February 1970 in which , he inquired of Justice Naik whether the 7th and 8th March 1970 would suit him to meet at Bhopal to companysider the names for the panel. Later on the 20th February 1970, he wrote another letter saying that the other member was abroad, and therefore, the meeting which was proposed to be held on the 7th or 8th cannot be held and that he would let him know when a new date was fixed. In fact, Justice Naik replied on the 27th February 1970 acknow- ledging these letters and asking him to let him know the date of the meeting as and when fixed. On the 8th March 1970 Mr. Shinde again wrote to Justice Naik fixing the meeting on the 12th March 1970 at 10.30 a.m. at Indore and also suggested that if necessary they may meet the next day, the 22nd March 1970. On the 16th March 1970 Shinde sent a telegram to Justice Naik asking him to wire if 4th April was suitable at Indore. On the 18th March 1970, he again sent a telegram to him saying Doctors Forbid travel stop wire whether 4th 11th April suitable for Indore. Justice Naik sent two telegrams, one on the 21st March 1970 saying that 4th is suitable at Saugar or Bhopal and another on the 27th March 1970 stating that both 4th and lath suitable at Saugar or Bhopal. He also wrote two letters on the 26th and 27th to Shinde. Shinde had earlier written on the, 24th March 1970 to Justice Naik in which he said as follows The companytents of your telegram, were companyveyed to me on the phone today. It appears that 4th and 11th. April both are suitable to you at Saugar and Bhopal. As I told you before, I am recovering from the attack of virus fever and am, therefore, number, strong enough to undertake a car journey of 120 miles to, Bhopal. There is numberconvenient plan ,to companye to Bbopal either. If I companye by plane I shall have to stay over the night at the Circuit House and as I am still on diet, the Circuit House food will number suit me. As you can companye up to Bhopal you can easily companye to Indore either by Car or by Plane. The plane leaves Bhopal at about 9.00 a.m. and reaches Indore at about 9.30 am. After attending the meeting you can leave by plane which leaves for Bhopal at about 2.00 p.m. As far as Lunch is companycerned, if you let me know if you are vegetarian or number-vegetarian, I can arrange to give you lunch at my place. If it is impossible for You to companye to Indore I would request you to send me your suggestions regarding suitable names for the post of Vice-Chancellor of the Saugar University by the 3rd of April. I would, however, request you to make it companyonyient to attend the meeting at Indofe. I have already sent you a tele- gram to the effect that the meeting is fixed on the 4th of April at Indore in the Meeting Room of the University of Indore at 10.30 a.m. Hoping to hear from you by the return of post and with kind regards. Before this letter reached to the telegram received by him, Justice Naik wrote a letter to Shinde as follows - I am in receipt of your telegram intimating to me that you have fixed the meeting to companysider panel of names for Saugar University on the 4th of April 1970, at 10.30 a.m. at Indore in the Indore University. I regret my inability to be present at Indore on the date and time specified, though I may be able to attend the meeting if the venue is changed to Bhopal. It is very surprising that you should have fixed the meeting on the 4th of April at Indore, even though I had informed you by a telegram on the 17th of March 1970, that it would number be possible for me to attend it there on that date. Anyway, knowing full well that it would number be pos- sible for me to be present at Indore at 10.30 a.m. on April 4, 1970, you seem determined to hold the meeting there presumably in my absence. I can only regret your decision. If you are still interested in having my presence for the meeting, you may fix it either on the 4th or the, 11th April 1970 at Saugar or Bhopal, though Bhopal would be more companyvenient to me personality. I hope you have recovered from the effects of your illness by number. This letter shows that though Justice Naik knew about the illness of Shinde, he somehow seems to have assumed, and if we may say so, without justification that Shinde was determined to hold it there, presumably in his absence. On the 27th March 1970, the next day, he however, after the receipt of the letter of the 24th instant from Side did number take up the attitude that the meeting was being held presumably to keep him away from attending it. Justice Naik, however, tried to explain his difficulty. He said I am in receipt of your letter dated 24th March 1970. 1 am sorry to numbere that you have number yet recovered from the effects of your illness. I do hope you shall soon get well. As for my companying to Indore, I had companysidered the possibility of my going there by. air from Bhopal but I am informed that the journey is very bumpy these days due to weather companyditions and I do get terribly sick if the journey is bumpy. I had, therefore, to give up the idea of going by air, and as I cannot spare more than a day for the meeting, I had intimated to you that it would number be possible for me to companye to Indore for the meeting scheduled for the 4th of April 1970 at 10.30 a.m. in Indore University. As for your kindly suggestion that I may by a letter suggest names to you for your companysideration, I am of opinion that it would number only number be fair to the persons whose names I may suggest but also number be in keeping with the letter and spirit of the Saugar University Act. With kind regards. This letter clearly negatives the assumption in the High Courts order that Shinde was trying to keep out Justice Naik from the meeting. On the other hand, Shinde in that letter had requested Justice Naik to suggest names of persons to be companysidered which prima facie negatives any intention on his part to keep Justice Naik away from the meeting. There is also numberhing in the materials on the record to show that the companyrespondence cited above was persued by the Chancellor either at the time when the show cause numberice was given to the appellant or at the time of making the impugned Order. It cannot, therefore, be assumed that the Governor was influenced by the above companyrespondence. It is rather unfortunate that the appellants Writ Petition was dismissed in limited and without a proper appreciation of all the relevant facts. There is little doubt that the impugned Order made by the Chancellor was based entirely on the legality of the meeting where only two out of three members were present when the name of the appellant was recommended. The High Court delivered into the companyrespondence to sustain the order of the Chancellor on grounds other than those relied upon by him in that order for dismissing the Writ Petition in limine, which in our view, was number justified. It is also number denied that the meeting held by two of the three members on the 4th April 1970 was legal because sufficient numberice was given to all the three members. If for one reason or the other one of them companyld number attend, that does number make the meeting of others illegal. In such circumstances, where there is numberrule or regulation or any other provision for fixing the quorum, the presence of the majority of the members would companystitute it a valid meeting and matters companysidered there at cannot be held to be invalid. This proposition is well recognised and is also so stated in Halsburys Laws of England, Third Edition Vol. IX, page 48, Para 95 . It is, therefore, unnecessary to refer to any decisions on the subject.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 1574 of 1971. Appeal by special leave from the judgment and order dated July 6/7, 1971 of the Bombay High Court in Special Civil Application No. 619 of 1971. V. Gupte and P. N. Tiwari, for the appellants. S. Chawla, S. N. Mishra and S. S. Jauhar, for the respondents. The Judgment of the Court was delivered by Mitter, J. -This is an appeal by special leave from a judgment and order of the Bombay High Court in a Special Civil Application from a decision. of the Court of Small Causes Bombay in exercise of its revisionary jurisdiction. The revisional companyrt had reversed the decision of the trial companyrt and remanded the matter for disposal ,of the issues other than issues 2 to 8 tried as preliminary issues and decided in favour of the plaintiffs before the Court of Small Causes. The facts are as follows. Respondent No. 1 was the owner of a flat on the second floor of Block No. 8 Shyam Niwas, Warden Road, I Bombay. She was a member of a Co-operative Housing Society and had acquired the flat from the said society. In 1959 she had put the appellant Sabharwal Brothers in possession of the flat for a period of 11 months on payment of Rs. 510/ - per month. There was an agreement in writing which purported to show that the possession was to be on leave and licence basis. This agreement was signed by a partner of Sabharwal Brothers who also became member of the said Co-operative Society. There were repeated renewels of the said agreement until 25th October, 1962 when the first respondent asked the appellants to vacate possession on the ground that she required the flat for her personal occupation. As this was number companyplied with, she filed a statement of claim before the Registrar of Co-operative Societies on the ground that there was a dispute within the meaning of s. 91 1 of the Maharashtra Co-operative Societies Act Thereinafter referred to as the Act which required adjudication There was a challenge to the jurisdiction of the numberinee of the Registrar to whom it was referred by the appellants. The proceedings before the numberinee went on for some time on July 3, the numberinee made an award to the effect the, appellants were occupying the flat on leave and licence basis. Anticipating the award the appellants filed a suit in the Court of Small Causes Bombay stating that they were in occupation of the flat as tenants and as such entitled to protection under the Bombay Rent Act, 1947 and the first respondent had numberright to evict them. In her written statement the defendant denied that the plaintiffs were tenants companytending, inter alia, that the plaintiffs were occupying the flat only on leave and licence basis etc. that the dispute between the parties had been referred to the Registrar of Co-operative Societies for disposal and finally that the Court of Small Causes had numberjurisdiction to entertain and try a suit involving such a dispute. The Small Causes-Court framed numberless than twelve issues of which issues 2 to 8 related to the maintainability of the suit and the jurisdiction of the companyrt in view of the provisions of s. 91 1 d of the Act. The Small Causes Court held that the suit was maintainable and answered the other preliminary issues in favour of the plaintiff. The matter was taken in revision to a Bench of the said Small Causes Court. The Bench took a different view holding that the Registrars numberinee did have jurisdiction to try the dispute between the parties and remanded the proceedings to the trial companyrt for disposal of the suit after deciding on issue as to res judicata by reason of the award of the numberinee. The High Court dismissed the Special Civil Application of the plaintiffs holding that the revisional companyrt of the Small Causes was justified in companying to the companyclusion that- it was number open to the plaintiffs to companytend that the Registrar or his numberinee had numberjurisdiction to entertain the dispute on the two grounds on which it was challenged. Before us the main points urged on behalf of the appellants were first, whether there was any dispute between the parties touching the business of the Co-operative Society which companyld be decided by the Registrar or referred by him to a numberinee for disposal and, secondly whether the suit filed in the Small Causes Court was maintainable having regard to the nature of the relief sought. The central question, therefore,.is, whether the dispute between the parties is capable of reference under the Act. The relevant portion of s. 91 1 b of the Act runs as follows Notwithstanding anything companytained in any other law for the time being in force, any dispute touch ing the companystitution management or business of a society shall be referred by any of the parties to the dispute if both the parties thereto are one or other of the following-- a b a member, past member or a person claiming through a member etc s. 91 3 provides Save as otherwise provided under subsection 3 of section 93, numbercourt shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section 1 . We may also numbere the relevant portion of s. 163 1 which provides I Save as expressly provided in this Act, numbercivil or revenue companyrt shall have any jurisdiction in respect of- a b any dispute required to be referred to the Registrar, or his numberinee c Before the Court of Small Causes reference was made to bye- law No. 2 of the Society to show that the objects of the society were inter alia to carry on the trade of buying,selling, hiring and letting land in accordance with the companyoperative principles and under Regulation No. 5 in form A printed at the end of the bye-laws No tenant shall assign, underlet, vacate or part with the possession of the tenement or any part thereof without the companysent in writing of the society. The Bench of the Court of Small Causes referred to the above provisions and observed that the bye-laws of the society companystituted an agreement between the members of the society and a breach thereof would affect the defaulting members right of membership of the society and companysequently a dispute relating to the letting of the flat was a dispute which touched the business of the society. Mitter, J. The High Court referred to s. 91 of the Co-operative Socities Act. and S. 28 of the Bombay Rent Act and observed There is a companypetition between two authorities, a companyrt and the Registrars numberinee, both exercising exclusive jurisdiction in respect of matters companying within their jurisdiction. and companycluded that on general principles of law it would number be proper to allow the same question to be agitated again under a different guise. It also observed that the decision taken by the Assistant Registrar and the numberinee companyld have been decided by an appeal and as numberappeal had been filed the provisions of law must have their effect with the result that the decision of the dispute by the numberinee of the Registrar had become final. With all respect to the High Court, it seems to us that there was a fundamental error in the above approach. No doubt it was the business of the society to let out premises and a member had numberunqualified right to let out his flat or tenement to another by virtue of the bye-laws and a breach of the bye-laws companyld affect the defaulting members right to membership. But we are number able to see how letting by a member to another member would touch the business of the society which included inter alia the trade of buying, selling, hiring and letting land in accordance with companyope- rative principles. The letting of flat by respondent No. 1 was a transact-ion of the same nature as the society itself was empowered to enter into but such letting by itself did number companycern the business of the society in the matter of its letting out flats. Nothing was brought to our numberice to show that such a letting would affect the business of the society once it had sold the flat to the respondent No. 1. The position might have been different if the latter had himself been a tenant of the flat under the society. To touch means to companye in companytact with and it does number appear that there is a point of companytact between a letting by the respondent No. 1 and the business of the society when the society was number itself the landlord of the flat. Reference was made at the Bar to Deccan Merchants Co-opera- tive Bank Ltd. v. M s Dalichand Jugraj Jain and others , . The facts there were very different from those of the instant case. 1 1969 1 S.C.R. 887. 5-LI208 Sup C I/72 But the Court had to companysider the question of companypeting jurisdiction under the Bombay Rent Act and the Act and it is pertinent to numbere the observations at p.902that the two acts can be harmonised best by holding that in matters companyered by the Rent Act, its provisions, rather than the provisions of the Act, should apply. In the result we allow the appeal, set aside the judgement and order of the High Court And of the Bench of the Court of Small Causes.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2137 of 1968. Appeal from the judgment and order dated April 5, 1968 of the Judicial Commissioners Court , G a, Daman and Diu in Writ Petition No. 9 of1967. Soli Sorabji, P. C. Bhartari, B. D. Bharucha, J. B. Dadachanji and Ravinder Narain, for the appellant. Jagadish Swarup, Solicitor-General of India, Govind Das and D. Sharma, for the respondents. The Judgment of the Court was delivered by Raj, J. This is an appeal by certificate from the, judgment dated 5 April, 1968 of the Court of the Judicial Commissioner, Goa, Daman and Diu at Panaji. The appellant challenged the levy of export duty of Rs. 98044 on 9804-40 metric tonnes of iron ore shipped on S.S. Ardenode on 3 August, 1966 at the rate of Rs. 10 per metric tonne. The appellant on 26 July, 1966 filed shipping bill in triplicate before the Joint Chief Controller of Imports and Exports Panaji, Goa for the purpose of obtaining export licence in respect of 10,160 metric tonnes of iron ore. On 28 July, 1966 export licence was granted to the appellant. On 30 July, 1966 M s. appeal to voters that voting for Congress would amount to a sin Reading the evidence in print one gets the impression that each witness came prepared to play the part assigned to him. Exhibit R-1/8 dated 26 August, 1966 is a numberice for a meeting of the Congress Committee at Singoli. Exhibit R- 1/50 dated 26 August, 1966 is the draft resolution of that companymittee meeting., It is written by the respondent. Exhibit R-1/5 dated 26 August, 1966 companytains the minutes of the meeting at Singoli. Exhibit R-1/6 companytains the minutes of the meeting of the Congress companymittee at Singoli on 2 October, 1966. These documents show that Paras Ram, Bhanwar Lai and Ram Chandra Sharma were companynected with the Congress Organisation. The respondent was also associated with the Congress companymittee. The minutes showed that Ratan Lai Petlia was a member of the companymittee. The respondents witnesses stated that Ratan Lai Petlia was a worker of the Jan Sangh. The reason for saying so was that Ratan Lai Petlia was cited by the appellant as a witness. The records show that Ratan Lai Petlia was associated with the Congress Organisation. Patan Lai Petlia R. 1 W. 10 said that he was associated with the Congress Organisation at Singoli. He denied that Swamiji of Bhanpura made any appeal to the voters that voting for Congress would amount to the sin of killing company. The respondents witnesses wanted to companydemn Ratan Lai Petlia by saying that Ratan Lai Petlia made arrangements for Jan Sangh. That is another illustration of the partisan character of the respondents witnesses. Nathu Lal P.W. 19 was believed by the High Court. It tran- spired in the evidence that Nathu Lai became liable to pay Rs. 372.06 to Krishi Sewa Sehkari Samiti and also to account for 73 bags of super-phosphate. Nathu Lai signed the document R-1/15. At the time of giving evidence he said it was Chhote Lai who promised to pay and account for the phosphate. He did number rest companytent with that position. He said that he signed the document as a member. The High Court did number companysider these justified criticisms of the evidence adduced on behalf of th respondent, Manna Lai P.W. 20 gave evidence number only about the speech of Swamiji of Bhanpura at Singoli on 15 February, 1967 but also of the speech of the appellant at Singoli on 29 January, 1967. As to the appellants speech Manna Lai said that the appellant talked of company killing Congress 10 times and that is how he remembered the speech. He narrated the speech of the appellant like other witnesses in the same language. Manna Lai said that Swamiji of Bhanpura spoke about voting for dharma and company. Manna Lal came to companyrt from Singoli along with Ram Chandra Sharma. The overwhelming impression produced by the witnesses on behalf of the respondent is that they were all prepared on the same Hiralal Co. agents of the vessel S. S. Ardenode made an application to the Assistant Collector of Customs, Marmagoa for the grant of entry outwards to the said vessel to load iron ore. On 30 July, 1966 the Assistant Collector of Customs, Marmagoa made an order granting entry outwards to the said vessel S.S. Ardenode and also gave permission to ship cargo on board the said vessel. On 1 August, 1966 the appellant presented to the Customs authorities under section 50 of the Customs Act, 1962, herein- after called the Act , shipping bills in triplicate, dated 26 July, 1966. The appellant in accordance with the provisions of section 50 of the Act at the foot of the shipping bill subscribed to a declaration as to the truth of the companytents of the shipping bills. On 1 August, 1966 the Customs authorities made these entries on the shipping- bill rotation No. 730 Sd 1 August, 1966 Let export after examination if necessary Sd - 1 August, 1966 and. E.F.No. 3/1/8/1966. The abbreviation E.F. means Export Fee. On 2 August 1966 the Customs authorities made further endorsements on the shipping bill. These endorsements were PI as usual and checked des Inspected the lot-2-barges- checlkeci des and Pd in full. On 2 August, 1966 there was a numberification issued, by the Ministry of Commerce in exercise of powers companyferred by section 4-A of the Indian Tariff Act, 1934 amending the second schedule to the Tariff Act. The relevant item in the said schedule introduced by way amendment is 28 and the name of the article is lumpy iron ore and the rate of duty is Rs. 10 per tonne. The S.S. Ardenode arrived at Marmagoa at 23.20 hours on 2 August, 1966. The vessel arrived at Marmagoa Inner Harbour on 3 August, 1966 at 07.50 hour-,. The vessel companymenced loading the cargo on 3 August, 1966. The Customs authorities on 28 January, 1967 issued a numberice to the appellant numberifying that the goods actually shipped by the appellant were subject to export duty at the rate of Rs. 10 Per metric tonne and the custom duty amounting to Rs. 98044 which was number levied in respect of the companysignment was due from the appellant and the appellant was called upon in accordance with section 28 of the Act as to why the amount should number be recover- ed from the appellant. The appellant companytended before the Customs authorities that the shipping bill was presented to the Customs authorities and the entry outwards to the ship S.S. Ardenode was given prior to 2 August, 1966 when numberduty was payable in respect of the export of the goods in question. The appellant, therefore, companytended the numberification under section 4-A of the Tariff Art 1934 was number applicable to the companysignment and numberduty was payable in respect of the export of the having regard to the provisions of section 16 of the Customs Act. It may also be stated that the appellant impeached the vires of the numberification. The Customs authorities on 19 April, 1967 held that by virtue of the provisions of section 16 1 of the Act the shipping bill shall be deemed to have been presented at the earliest on 3 August, 1966 when the vessel in question arrived. The export duty was levied with effect from 2 August, 1966. The Customs authorities therefore held that the appellant was liable to pay the export duty. The appellant impeached the order of the Customs authorities under Article 226 of the Constitution in the Court of the Judicial Commissioner, Goa, Daman and Diu, Panaji. The Judicial Commissioner upheld the order of the Customs authorities. The entire companytroversy in the present appeal is whether shipment and export of iron ore by the appellant became liable to the said duty introduced on 2 August, 1966. The relevant provisions for the purpose of the present appeal are to be found in section 16 which deals with date for determination of rate of duty and tariff valuation of export goods and sections 39, 50 and 51 which deal with loading of export goods on vessel and clearance of goods for exportation. Section 16 is as follows - 16 1 . The rate of duty and tariff valuation, if any, applicable to any export goods, shall be the rate and valuation in force- a in the case of goods entered for export under section 50, on the date on which a shipping bill or a bill of export in respect of such goods is presented under that section b in the case of any other goods, on the date of payment of duty Provided that if the shipping bill has been presented before the date of entry outwards of the vessel by which the goods are to be exported, the shipping bill shall be deemed to have been presented on the date of such entry outwords. The provisions of this section shall number apply to baggage and goods exported by post. L1061supCI/27 The appellant companytended that the shipping bill was presented on 1 August, 1966 and the order of the Customs authorities for entry outwards to the vessel was also given on 1 August, 1966, and, therefore, the export in the present case was number liable to payment of duty imposed on 2 August, 1966. The Customs authorities on the other hand companytended that the vessel arrived at Marmagoa on 3 August, 1966 and the vessel companymenced loading on 3 August, 1966, and, therefore, the shipping bill which had been presented before the date of entry outwards shall be deemed to be presented at the earliest on 3 August, 1966 when the vessel in question arrived. The shipping bill under the Customs Act means a shipping bill referred to in section 50 of the Act. Section 50 is as follows 50 1 . The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form. The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its companytents. In the present case, it is companymon case that the shipping bill was presented to the Customs authorities on 1 August, 1966 and the Customs authorities made several endorsements on the shipping bill on the same day. These endorsements permitted export after examination, if necessary. The further endorsements on the shipping bill on 2 August, 1966 indicated that the shipment was inspected, checked and payment in full was made. Section 51 of the Act is as follows - Where the proper officer is satisfied that any goods entered for export are number prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of goods for exportation. In the present case, the Customs authorities made endorsement on the shipping bill on 1 August, 1966 permitting export after examination, if necessary. The shipping bill described the goods as free goods. Export licence was also granted on that shipping bill. Sections 50 and 51 of the Act deal with entry of goods for exportation and clearance of goods for exportation. The word where the shipping bill was in anticipation of the arrival of any vessel of before an order Was given for entry outwards of the vessel the shipping bill must be deemed to have been delivered on the date on which that vessel arrived or entry outwards was given whichever was later. Under the provisions of section 38 of the 1878 Act the Customs authorities had power to apply the rate in force on the date of the arrival of the vessel. Under section 16 of the 1962 Act it is number permissible to do so. The statute does number companytain such a provision. Section 16 of the 1962 Act speaks of the fictional date only in relation to the order of date of entry outwards of the vessel. In the present case, the order of entry outwards of the vessel was made prior to 2 August, 1966. Therefore, the Customs authorities, in the impugned order acted without jurisdiction in imposing duty on the export by holding that the date of entry outwards of the vessel was the date when the vessel arrived. For the foregoing reasons the appellant is entitled to an order cancelling the numberice dated 28 January, 1967 by which the Customs authorities demand duty from the appellant. The order of the Judicial Commissioner is set aside. There will be a writ setting aside the numberice dated 28 January, 1967 and an order for bearing the respondents from taking any steps or proceedings pursuant to the numberice dated 28 January, 1967. There will also be an order quashing the order of the Assistant Collector of Customs dated 19 April, 1967 which gave effect to the numberice and held the appellant liable to pay the export duty. The appeal Is allowed.

Case appeal was accepted by the Supreme Court

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

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 742 of 1968. Appeal by special leave from the Award dated November 15, 1967 of the Industrial Tribunal, Gujarat in Reference I.T. No. 65 of 1966. AND CIVIL APPEAL No. 809 OF 1968. Appeal by special leave from the Award dated October 16, 1967 of the, Industrial Tribunal, Gujarat in Reference T. No. 60 of 1966. AND CIVIL APPEAL No. 2086 OF 1968. Appeal by special leave from the Awards Part I II dated September 27, 1967 and November 15, 1967 of the Industrial Tribunal, Gujarat in Reference I.T. No. 65 of 1966,. K. Sen, V. B. Patel, I. N. Shroff and M. N. Shroff for the appellant, in C.A. No. 742 of 196 C. Setalvad, V. B Patel and I,. N. Shroff for the appellant in C.A. No. 809 of 1968 . Madan G., Phadnis, Janardan Sharma and Indira jai Singh, for the appellants in C.A. No. 2086 of 1968 respondents in A. No. 742 of 1968 and respondent No. 1 in C.A. No. 809 of 1968 . C. Setalvad, V. B. Patel, I. N. Shroff,and M. N. Shroff, for respondent No. 1 in C.A. No. 2086 of 1968 . The Judgment of the Court was delivered by Vaidialingam, J.-Civil Appeal Nos. 742 and 2086 of 1968, by special leave, arise out of the decision regarding demand No. 4 under Award Part 11, dated November 15, 1967 of the Industrial Tribunal, Gujarat, in Reference IT 65 of 1966. As Atic Industries Ltd., and its workmen companyld number settle the various demands made by the latter, on the joint application of both, the Deputy Commissioner of Labour, Ahmedabad, by order dated February 19, 1966 referred for adjudication to the Industrial Tribunal, Gujarat, nine demands made by the workmen. The demands companyer various matters and have been elaborately set out in the Schedule annexed to the order of reference. It is enough to numbere that the demands companyered revision of wage scales, dearness allowance, shift allowance, vacation traveling allowance, housing facilities etc. Demand No. 4, with which we are companycerned was as follows All workmen who make use of the, S.T. Bus Service shall be paid Rs. 20/- per month as Bus Allowance and those workmen who companye Cycling from places where S. T. Bus Service is number available shall be paid Rs. 15/per month as Cycle Allowance and also those workmen who companye by train shall be paid Rs. 10/- per month as Train Allowance. The Industrial Tribunal by its Award, Part 1, dated September 27, 1967 disposed of demands Nos. 1, 2, 3, 6 and By its Award, Part 11, dated November 15, 1967, the Tribunal disposed of demand Nos. 4 5. 7 and 8. In respect of demand No. 4, the Tribunal directed the Company Atic Industries Ltd. to pay an allowance of 15 paise per day to every employee who stays at a distance of five miles or more from village Atul. The Tribunal directed this payment to be made with effect from January 1, 1968. The Tribunal further directed that the allowance need number be paid for days on which the workman is on earned leave or any type of leave authorised or otherwise. Atic Industries Ltd. has filed Civil Appeal No. 742 of 1968 challenging the grant of this allowance to its workmen. The workmen have filed Civil Appeal No. 2086 of, 1 968 challenging the various matters companyered by the Award Parts I and II, regarding wage scales, dearness allowance in so far as the Award was against them. In particular, regarding demand No. 4 they have claimed, in the appeal, that a higher allowance should have been granted by the Tribunal. But this Court, by its order dated September 24, 1968 has restricted the Special Leave only to the question of transport allowance. Therefore, the various other points raised by the workmen in their appeal numberlonger survive. While the Company in its appeal No. 742 of 1968 wants the allowance granted under demand No. 4 to be set aside, the workmen, on the other hand, in their appeal No. 2086 of 1968 require the allowance to be enhanced. Civil Appeal No. 809 of 1968 is by special leave and the appellant therein is Atul Products Ltd., which also is an industry located ill Atul village. Here again, on the joint application of the said Company and its workmen, nine demands were referred for adjudication to the Industrial Tribunal, Gujarat, by or-der dated June 30, 1966 of the Deputy Commissioner of Labour, Ahmedabad. The demands related to dearness allowance, shift allowance, housing facilities, vacation travelling allowance etc. Demand No. 6 with which we are companycerned in this appeal was as follows Company shall provide free transport facility to all workmen. Till such time free transport is made available every workmen shall be paid an allowance of Rs. 151/- per month. The Industrial Tribunal, by its Award Part 1, disposed, of demand Nos. 1 to 4 and 7. By its Award Part 11, dated October 16, 1967, the Tribunal disposed of demand Nos. 5, 6, 8 and 9. The decision of the Tribunal under its Award Parts 1 and 11 in respect of demand Nos. 1 to 5 and 7 to 9 is, number the subject of companysidcration before us. In respect of demand No. 6, the Tribunal rejected the demand regarding the Company being made to provide free transport facilities. However, the Tribunal directed the Company to pay an allowance of 15 paise Der day to every employee who stays at a distance of five miles and above from village Atul. The said payment was made effective from December 1, 1967. Here again a direction was given that the Company need number Pay allowance to its workmen who is either on earned leave or any type of leave, authorised or otherwise.- The Company desires in this appeal to have the direction given by the Tribunal under this demand set aside. From the facts stated above, it will be seen that the companymon question that arises for companysideration in all these three anneals relates to the claim of the workmen for payment of transport allowance to enable them to go from their place of residence to the place of work. We may also state thatb refrences in both the matters were made by the Deputy Commissioner of Labour, Ahmedabad, as such a power had been delegated to him by the State Government under S. 39 of the Industrial Disputes Act, 1947. Both Atic Industries Ltd. and Atul Products Ltd., are public limited companypanies. They manufacture dyes and chemical and other intermediates. Both the companypanies were having their factories in village Atul. The basis of the claim made by the workmen of both these Companies for payment of transport allowance and the defence raised by the two companycerns were substantially the same. In support of its demand the Union had stated that the majority of the workmen employed in the two Companies companye from a distance of about five to ten miles. As the, factories are number situated in a place where labour force is available easily, the majority of the workmen have to companye from distant villages or the town of Bulsar. There is numberadequate transport reaching the site of the factories. The State Road Transport Corporation runs buses to reach the site of the factories, but the service is number regular or adequate. A workman has to incur a bus fare of 40 paise per trip from Bulsar to Atul and another 40 paise for the return journey. Therefore, each day a workman had to incur 80 paise as bus fare in going to village Atul from Bulsar and this was too much of an expense which companyld number be borne by an employee from and out of his Wages. In the case of Atul Products, the demand was for a uniform allowance of Rs. 15/- per month, though in the case of Atic Industries Ltd., the demand was slightly different. The Union in, this companynection relied on the Award in the case of Cynamid India Ltd., which was a pharmaceutical industry in Atul region. Both the Companies opposed the demands of the workmen on the ground that it is number the function or duty of an employer to provide transport facilities for its workmen to companye to their place, of work. It was further pleaded that there is a good road from Bulsar to village Atul and the State Transport Service, which was running buses on the said route was easily available to all the workmen both for companying to village Atul and also for going back home. In addition to the bus service, there was also a train service which was available to the workmen. The Companies further pleaded that most of the workmen employed in the two Companies were living in the nearby villages and they never depended upon either the bus service or the train service. Even at the time when the workmen took unemployment in the factories, they should have known that they will have to go to their place of work at their own expenses. On all these grounds the claim of the workmen was resisted by both the Companies. It is seen that in respect of Cynamid India Ltd., which was in the same region, though in the pharmaceutical industry, the Tribunal had occasion to companysider a claim made by its workmen for free transport facilites or for payment of fixed transport allowance at the rate of Rs. 15/- per month. It is further seen that Cynamid India Ltd., was already paying 15 paise per day for every wrokmen who was staying five miles and more from village Atul. The workmen demanded that whole of the transport expenses incurred by them, which was of 80 paise per day, must be paid. This demand was companysidered by the Tribunal in its Award published in State Gazette on September 3, 1906. In this award, a companyy of which has been placed before us, it is seen that the Tribunal has rejected the claim of the workmen for directing the Company companycerned to provide free transport. But in respect of the further claim for increasing the transport allowance, the Tribunal has ultimately increased the allowance from 15 paise to 37 paise per day to every employee who was staying at a distance of five miles and- more from village Atul. The Tribunal has also granted an allowance of 12 paise per day to the workmen, of Cynamid India Ltd., who were staying beyond three miles but less than five miles. As we have mentioned earlier, the claim for transport allowance ance was made by the Union mainly on the basis of the award of the Industrial Tribunal in the case of Cynamid India Ltd. Though the, Tribunal did number grant the enhanced allowance fixed by it inthe case of Cynamid India Ltd. and also the further allowance granted therein to employees staying beyond three miles but less than five miles, the Tribunal in the case of Atic Industries Ltd. and Atul Products Ltd. has awarded only a sum of 15 paise per day for those workmen who were staying five miles and more from village Atul. In Civil Appeal No. 809 of 1968 Mr. M. C. Setalvad, 1earned companynsel for the appellant, apart from companytesting the grant of transport allowance to the employees on the ground that it is number the function of an employer to provide transport facilities or to pay allowance-for the same, has raised an objection to the jurisdiction of the Tribunal to give any such direction. We have already referred to demand No. 6, which is the.sub- ject of companysideration in this appeal. According to Mr. Setalvad, the demand is to the effect that the Company should provide free transport facilities to its workmen and till such facility is provided the workmen should be paid an allowance of Rs. 15/- per month. The companynsel further pointed out that in this case the Tribunal has rejected the demand of the workmen for provision for free transport. Once this claim was rejected on the ground that the employee are number entitled to be provided free transport, number, further question arose for companysideration before the Tripunal. According to Mr. Setalvad the claim for payment of an allowance of Rs. 15/- per month is only for the interim period that will necessarily be taken by the Company to make arrangements for providing free transport, if the claim in that regard of the workmen had been accepted. The latter part of the demand being only for an interim period, had to be straightaway rejected when once the main demand providing free transport made by the workmen was rejected. Therefore, it is the companytention of Mr. Setalvad that the Tribunals direction regarding payment of allowance under demand No. 6 is without jurisdiction. The above companytention of Mr. Setalvad has been companytroverted by Mr. Phadnis, learned companynsel for the Union. According to the learned companynsel, the demand is really in the alternative, namely, that the Company should be made to provide free transport facility. If this is number feasible, the Company should pay an allowance of Rs. 15/- per month. The companynsel has also drawn our attention to the reasons given by the Tribunal in the case of Cynamid India Ltd. for rejecting the claim for provision of free transport. The Tribunal has itself referred to those reasons in the present Award in respect of both the Companies. Therefore, even though the claim for provision for free transport was rejected, the Tribunal had to deal with the alternative claim for payment of Rs. 15/- per month. We are number inclined to accept the companytention of Mr. Setalvad that the Tribunal had numberjurisdiction to companysider the quantum of transport allowance to be paid to the workmen when once it has rejected the claim of he Union for provision of free transport. The claim was a very tall one, namely that the Company should provide free transport facilities to all its workmen. The latter part of the demand should-really be understood as an alternative claim if free transport is number provided by the Company. If the Company was willing to provide free transport facilities, then there will be numberquestion of any transport allowance being paid to the workmen and the second part of the demand may number arise for companysderation. But it does number follow that when the claim for free transport facilities is rejected, the claim for transport allowance numberlonger survives. In our opinion, the proper way of looking at the demand is to treat the claim as one for provision of free transport facility and in the alternative for payment of an allowance of Rs. 15/- per month. The claim for payment of allowance is number, as companytended by Mr. Setalvad for an interim stage companyering the period taken by the Company to make arrangements for providing transport facilities, when once it has been directed to the ,so by the Tribunal. The companytention of Mr. Setalvad that the Tribunal had numberjurisdiction to give direction for paying transport allowance after rejecting the claim of the Union for the Company making provision for free transport, will have companysiderable force, if the Tribunal had rejected the claim for free-transport on the ground that the employer is number under any circumstance liable to make any such arrangement or bear transport expenses incurred by the workmen either in whole or in part. As we will show presently the, ground on which the Tribunal rejected the claim of the Union that the employer should provide free transport was number on the ground that the employer is under numbercircumstance liable to provide the same, but because of the fact that a sound transport system existedon the route and as such was companyveniently available to the workmen. it Will be pertinent to numbere the reasons given by the Tribunal in Cynamid India Ltd. for rejecting the claim of the workmen in that companycern for making provision for free transport facilities. We are referring to this aspect because the Tribunal in the case of Atul Products Ltd. has rejected the claim for free transport on the same ground as given by it in Cynamid India Ltd. The reason given by the Tribunal is that there whould be justification for a Company being made to provide free transport only if a sound public transport sytem did number exist or was number companyveniently avail- able. The Tribunal has held that for going to village Atul from Bulsar, public transport is available. It is on this ground that the Tribunal held that it will number, be justified in companyceding the demand for free transport. It may be mentioned that Cynamid India Ltd. was admittedly providing free transport for its supervisory staff and for that purpose it was maintaining a fleet of vehicles. But, nevertheless, the Tribunal rejected theclaim of the workmen therein for provision being made for free transport. It was represented by Mr. Phadnis, learned companynsel for the union, that Atul Products Ltd. and Atic Industries Ltd. give a special companyveyance allowance to their supervisory staff. But so far as this is companycerned, the companynsel also frankly admitted that numbermaterial in this regard has been placed in the record of these appeals. Hence we leave that aspect out of companysideration. Now companying to the attack on behalf of the two Companies regarding the grant of transport allowance, Mr. A. K. Sen and Mr. V. B. Patel, who followed him, urged, that the workmen when they took unemployment in the factories at village Atul knew full well that they have to incur expenses for going to their place of work. It was also pointed out that the dearness allowance bad been revised by the Tribunal by its award Part 1 and that is sufficient to enable the workmen to meet the, transport char,-es that they will have to incur for going to their Place of work. In any event, it was urged, it is number the obligation of the employer to provide transport facilites or to bear either in whole or in part the transport expenses of an employee incurred by him for going to his place of work. On the other hand, Mr. Phadnis, learned companynsel for the Union, pointed out that the Tribunal has number accepted the entire claim made by the Union, number has it granted transport allowance at the same rate given by it in the case of Cynamid India Ltd., The companynsel pointed out that Atul Products Ltd. and Atic Industries Ltd. and Cynamid India Ltd. are all situated in village Atul. Atic Industries Ltd. and Atul Products Ltd. are numberdoubt doing business in manufacturing dyes, whereas Cynamid India Ltd. is a pharmaceutical industry. The employees working in the same region should have the same facilities and it is on this principle that the Tribunal has awarded transport allowance and that to a lesser degree than that prevailing in Cynamid India Ltd. The Tribunal itself has held that the workmen must share a part of the expenses and it is on that ground that though a workmen has to incur 80 paise per day, he has been granted only 15 paise per day. According to the learned companynsel, the circumstances of the case also justify the said grant. We are of the opinion that the grant of 15 paise per day as transport allowance to those employees staying five miles and beyond is justified in the circumstances of this case. The Tribunal itself has held that the Company must be satisfied that the workmen companye from a place Re Bulsar or places equally distant and numberallowance need be paid on days when the workman is on earned leave or any type of leave authorised or otherwise. On behalf of the Companies it was stated that in calculating the companyt of living index, bus fare also is taken into account. No doubt in Ahmedabad Mill Owners Association Etc. v. The Textile Labour Association, 1 it is stated that in the preparation of the companyt of living index, various items including bus fare are taken into account. But it is to be numbered that the observation in the said decision is that usually the items mentioned herein including the bus fare are taken into account. But Mr. Phadnis, pointed out by reference to the book Cost of Living Index Numbers in India a Monograph, published by the Labour Bureau, Ministry of labour, Government of India that so far as Ahmedabad is companycerned, bus fare is number taken into account in the preparation of companyt of living index. In companytrast, he referred is to the Ranchi area where travelling expense is taken into account in the preparation of companyt of living index. No material has been placed before us on behalf of the Companies companycerned to-show the in 1 1966 1 S.C.R. 382. the preparation of the companyt of living index in the area companycerned transport expense is than into account. The decisions in The Patna Electric Supply Co., Ltd. Patna The Patna electric Supply WorKers Union 1 and Mohammed and Sons v. Their Workmen - were referred to us by Mr. Patel wherein it has been held that providing of housing accomodation is number the duty of an employer and that the responsibility for the same is that of the Government. In. our opinion, a claim for providing housing accommodation is totally different from a claim made for transport allowance, In fact in the presene awards . the tribunal has rejected the, claim of the workmen for housing facilities being provided by both the Companies. Similarly, the decision in Remington Rand of India Lid. v. Workmen 3 of this Court regarding lunch allowance does number also assist the Companies before us. It was held in the said decision that numbermally when the wage structure is fair and dearness allowance is paid to the workmen linked with the index of .Cost of living, they must take care of the rise in the companyt of living from time to time and therefore a companypany cannot be companypelled to pay lunch allowance to all workmen. In that decision, it will be numbered, that the lunch, allowance was being paid by the companypany companycerned to workmen who had to go to distant places and companyld number return to. the office, during lunch period. But the rate of allowance to such employees was raised by this Court numberdoubt by companysent of the Company. But the extension of that allowance to other employees who had to work only in the factory or office premises was rejected. In this companynection it was observed that the financial ability of an employer to bear the additional burden is number criterion. The principle that in a proper case the Industrial Tribunal can impose view obligation on the employer in the interest of social justice and can also involve the parties in a new companytract has been recognised by this Court in The Patna Electric Supply Co., Ltd. Patna v. The Patna Electric Supply, Workers Union 1 , and The New Maneck Chowk Spinning and Weaving Co. Ltd. Ahmedabad and others v. The Textile Labour Associatioz, Ahmedabad 4 No doubt the said jurisdiction of the Tribunal is companyditioned by the laws and judicial pronouncements. In this companynection the following, obser- vation of Ludwig Teller in Labour Disputes Collective Bargaining Volume 1, page 536 is apposite Industrial arbitration may involve the extension of an existing agreement or the making of a new one, or, in general, the creation of new obligations or modification of old ones while companymercial arbitration 2 1968 IL.L.J. 536. 1 1959 Supl. 2 S.C.R. 761. 3 1969 19 F.L.R. 46. 4 1961 3 S.C.R. 1. generally companycerns itself with interpretation of existing obligations and disputes relating to existing agreements. The above observations have been quoted with approval by this Court in some of its earlier decisions. Therefore, there can be numberdoubt that an Industrial Tribunal has jurisdiction to make a proper and reasonable order in any industrial dispute. It should be borne in mind that the foundation of the principle of industrycum-region is that as far as possible, there should be uniformity of companyditions of service in companyparable companycerns in the indusstry in the region so that there is numberimbalance in ,he companyditions of a service between workmen in one establishment and those in the rest. The danger otherwise would be migration of labour to the one where there are more favourable companyditions from those where companyditions are less favourable. It is pertinent to numbere that though this Court in Renington Rand of India Ltd. v. Workmen 1 declined to extend the benefit of lunch allowance to employees who had numberoccasion to go for out door work, nevertheless it recognised in a limited measure the obligation of an employer to provide medical facilities for its workmen. The demand for provision for medical facilities made by the workmen was companytested by the Company therein on the ground that making provision for medical facilities is the responsibility of the. Government and number of the employer. Even on the basis that it is the obligation of the employer, it was further companytended that medical expenses which a workman would ordinarily have to incur are looked after and taken into account when fair wages are settled. This Court accepted as companyrect the companytention that the primary responsibility for providing medical facilities for citizens is that of the State. This Court also accepted the companytention that while fixing fair wages, medical expenses. which may have, to be ordinarily incurred by a workman will be taken into companysideration. But on the basis that the expenses for medical facilities would have been taken into account in the fixation of wages only to a limited extent and as the State cannot discharge its full responsibility in the matter of providing medical facilities, this Court held that a Tribunal will have jurisdiction in a proper case to call upon an,employer to shoulder a part of the burden regarding medical expenses incurred by his workman in the interest of industrial harmony and good companyoperative relations. We are emphasising the said decision which recognised an employer being made to shoulder a part of the burden in respect will of medical expenses, as more or less the same principle apply in the matter of an employer being asked to reimburse the workman at least to a limited extent regarding the transport expenses incurred by the latter for going to his place of work. 1 1969 19 F.L.R. 46. We have already pointed out that in Atul village apart from the two Companies there is another companycern also. Though Cy- namid India Ltd. is in the pharmaceutical industry, in our opinion, the Tribunal was justified in having regard to the practice obtaining in that region on the principle of region-cum-industry when companysidering the claim of the workmen for payment of transport allowance. It is numberdoubt true that in the case of Cynamid India Ltd. that Company was already paying 15 paise per day to every one of its workmen as transport allowance and that amount has been raised by the Tribunal to 37 paise per day. It has also granted even to Workmen living beyond three miles but less than five miles a sum of 12 paise per day. But the very fact that Cynamid India Ltd. was paying even originally 15 paise per day was a relevant factor to be taken into account as the said industry was also in the same region and most of its employees were also companying from distant places like the workmen in the case of the two Companies before us. It should also be remembered that the Tribunal, in the awards in question,, was number companysidering an isolated claim for payment of transport allowance. That demand was only one of the demands, which was, being dealt with by the Tribunal along with various other demands such as revision of wage scales, dearness allowance etc. The Tribunal can certainly be expected to be aware of the fact, when it was fixing the wage scales and dearness allowance that it has also to adjudicate on a claim for transport allowance. Having due regard to this claim, it must have fixed the wage scales and dearness allowance. We have gone through the scale of dearness allowance fixed under the two awards and it is. to be seen that companyplete neutralisation has number been awarded. The Tribunal has also proceeded on the basis that the workmen must bear, from and out of the wages earned by them, a part of transport expenses. It is only when the Tribunal found that the expense incurred by the workmen for transport was rather, very high and excessive that it has afforded some relief. If the entire, body of workmen companye from distant places and they all have to incur heavy expenses for using transport, the question may pertinently arise whether it is number a case for revision of wage scales or dearness allowance in such a manner as to include also this item of expense. The Companies have provided some accommodation in the village itself for about 25 of its workmen on a numberinal rent. Some other are living near about the village itself and they have numbernecessity to spend any amount for transport. In respect of these two categories of workmen. there cannot be. a general rise in the wages paid to them. 0 , n the other hand, the case of workmen who companye from distant places, due to numberfault of theirs, stands on a different footing. It is number possible for them to companyer the entire distance walking and they have necessarily to use some transport for -L1061Sup CI/72 companying to their place of work. Quite naturally, one can expect the workmen to choose only that type of transport which will companyt them the minimum. Even if they choose the train service, which will be companypartively cheaper, they will have to incur additional expense for companying to their place of work and return home. It must be numbered that though the claim was for payment of 80 paise per day per worker to companyer the entire companyt of transport to and fro, the Tribunal has awarded only a moderate sum of 15 paise which was the amount that was being paid by Cynamid India Ltd. originally. In the case of Atul Products Ltd. as against the claim made for an allowance of Rs. 15/- per month, for every workman, the Tribunal has allowed only 15 paise per day and that too on the days when the workman companyes for duty. Similarly, in the case of Atic Industries Ltd. the demands were a Rs. 20/- per month to be paid to every workman using State Transport Bus Service Rs. 15/- per month to be paid to every workman companying by cycle from places where State Transport Bus Service was number available and c The workmen who companye by train should be paid Rs. 10/- per month as train allowance. As against these varying demands, the Tribunal has only allowed 15 paise per day and that too on the dayswhen them workman companyes for work. Thus it will be seen that even on the basis that a workman staying at a distance of five miles or more companyes for work for 30 days in a month, the allowance he gets is only a sum of Rs. 4.50 p under the Award. In the circumstances mentioned above, it cannot be stated that the award of the sum of 15 paise per day is in any manner unreasonable or arbitrary. The payment has also been hedged in by the companydition that the employer has to be satisfied that the workman is staying at a place five miles and over from Atul village and that it need number be paid on days when the workman is either on earned leave or any type of leave authorised or otherwise. Therefore, we are satisfied that the direction given by the Tribunal under demand No. 4 in Civil Appeal No, 742 of 1968 and demand No. 6 in Civil Appeal No. 809 of 1968 is justified. The Union in Civil Appeal No. 2086 of 1968 has asked for enhanced rate of transport allowance being given to the employee in Atic Industries Ltd. Its claim is that 80 paise has to be paid to every workman per day or in the alternative the allowance must be, as directed by the Tribunal in Cynamid India Ltd. All these aspects have been discussed by the Tribunal when it fixed the quantum in the case of Atic Industries Ltd. Though the Tribunal cannot impose any new obligation on an employer merely on the ground that the financial capacity of the employer is sound, nevertheless the Tribunal when imposing the new obligation has also to companysider the capacity of the employer to bear the burden. In the case of Atic Industries Ltd. the Tribunal has held that it does number want to cast additional financial burden and that is why it has fixed the allowance at a very reduced scale. We see numbererror in this reasoning of the Tribunal and as such Civil Appeal No. 2086 will have to be dismissed. In the result, the Awards of the Industrial Tribunal in respect of demand No. 4 in Civil Appeal No. 742 of 1968 and demand No. 6 in Civil Appeal No. 809 of 1968 are companyfirmed and both the appeals are dismissed. Civil Appeal No. 2086 of 1968 is also dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1813 of 1971. Appeal by special leave from the judgment and decree dated February 5, 1971 of the Allahabad High Court in Special Appeal No. 1116 of 1969. V. Tarkunde and S. S. Shukla, for the appellant. C. Chagla and Rameshwar Nath, for the respondent. The Judgment of the Court was delivered by Hegde, J. Though this appeal relates to a companyparatively small matter, it has exposed several disturbing features. Hence it is necessary to set out the facts of the case in some detail. The appellant is a tenant of the respondent. She is occupying one of the premises belonging to the respondent. The respondent is seeking to evict her from the said premises. For that purpose she applied to the District Magistrate, Dehradun, who is also the Rent Controller, under S. 3 of the U.P. Temporary Control of Rent and Eviction Act, 1947 to, the hereinafter referred to as the Act for permission to sue the appellant for her eviction The permission asked for was granted by the Rent Controller. As against that order, the appellant went up in revision to the Commissioner, Meerut Division, Meerut who affirmed the order of the District Magistrate. Thereafter the appellant went up in revision to the State Government. During the pendency of that proceeding the State Government passed an order of stay which reads Operation of the permission under S. 3 of the Act granted by the Commissioner, Meerut Division, Meerut to the opposite party, landlady to file the suit for the petitioners ejectment from the house in question is stayed pending companysideration of the case by the State Government. Later the State Government allowed the reyision,petition and set aside the permission granted. The respondent challenged the legality of the order made by the State Government before the High Court of Allahabad in a petition under Art. 226 of the Constitution. The High Court set aside the order of the Government on the ground that the State Government in, deciding the revision petition had allowed itself to be influenced by irrelevant companysiderations. The companycluding portion of the order of the High Court reads The petition is allowed. The order of the State Government dated 14-6-1966 Annexure E to the,petition is quashed. The State Government is directed to rehear Smt. Prabhawati Devis revision under section 7-F of Temporary Control of Rent and Eviction Act, according to law. The petitioner shall get companyts of this petition from respondent No. 1. This order was Dassed on February 28, 1967. On the very next day, the respondent filed a suit for eviction of the appellant. When the revision petition came up for hearing before the State Government, the respondent submitted before the State Government that it was number companypetent to hear the revision petition in view of the institution of the suit and for that purpose, it relied on a decision of the High Court holding that a revision petition pending before the State Government becomes infructuous once a suit for eviction is filed in pursuance of the permission given by the Commissioner. The State Government accepted that companytention and dismissed the revision petition on the sole ground that the proceeding before it became infructuous in view of the institution of the civil suit. The appellant challenged that order by means of a writ petition before the Allahabad High Court. The High Court came to the companyclusion that the stay granted by the State Government had lapsed when the revision petition was disposed of and the same did number stand revived when the High Court directed the State Government to rehear the matter and dispose of the same according to law. Consequently, on the institution of the civil suit for eviction of the appellant, her revision petition before the State Government became infructuous. As against that order, this appeal has been brought by special leave. Before proceeding to discuss the points arising for decision, it will be companyvenient to read the relevant provisions of the Act. Though the Act purports to be a temporary measure, it has companytinued to be in force from 1947. This is but a small anomaly companypared with the difficulties created by some of its provisions. Now let us have a look at those provisions. They read Restriction on eviction.-- Subject to any order passed under sub- section 3 numbersuit shall. without the Permission of the District Magistrate be filed in any civil companyrt against a tenant for his eviction from any accommodation, except on one or. more of the following grounds a that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of numberice of demand b that the tenant has wilfully caused or permitted to be caused substantial damage to the accommodation c that the tenant has, without the permission in writing of the landlord, made or permitted to be made any such companystruction as, in the opinion of the companyrt, has materially altered the accommodation or is likely substantially to dimish its value d that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the landlords interest therein e that the tenant has on or after the 1st day of October, 1946, sub-let the whole or any portion of the accommodation without the permission of the landlord f that the tenant has renounced this character as such or denied the title of the landlord and the latter has number waived his right or companydoned the companyduct of the tenant g that the tenant was allowed to occupy the accommodation as a part of his companytract of employment under the landlord and, his employ- ment has been determined. Explanation.-For the purposes of subsection e lodging a person in a hotel or a lodging house shall number be deemed to be subletting. Where any application has been made to the District Magistrate for Permission to sue a tenant for eviction from any accommodation and the District Magistrate grants or refuses to grant the permission, the party aggrieved by his order may within 30 days from the date on which the order is companymunicated to him apply to the Commissioner to revise the order. The Commissioner shall hear the application made under sub-section 2 as far as may be, within six weeks from the date of making it, and. he may, if he is number satisfied as to the companyrectness, legality or propriety Of the order passed by the District Magistrate or as to the regularity of proceedings held before him, alter or reverse his order or make such other order as may be just and proper. The order of the Commissioner under sub-section 3 shall, subject to any order passed by the State Government under section 7-F be final. The only other relevant section for our present purpose is s. 7-F which says Power of State Government.-The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in section 3 or requiring any accommodation to be let or number to be let to any person under section 7 or directing a person to vacate any accommodation under section 7-A and may make such order as appears to it necessary for the ends of justice. Providing against unlawful eviction is undoubtedly a laudable object. It is necessary in social interest that improper eviction of tenants should be prohibited, Various States have enacted laws prohibiting the landlords from evicting their tenants except on grounds mentioned in those laws. The implementation of those measures is left in the hands of either regular companyrts or regularly companystituted tribunals who are the principal repositories of the judicial power of the State and number with executive authorities burdened with other duties. But strangely enough under the Act two rounds of litigations are provided for. A landlord seeking to evict a tenant must first go to the District Magistrate for permission. As against the order of the District Magistrate the aggrieved party can go. up in re- vision, to the Commissioner. The order of the Commissioner, subject to any order passed by the State Government under section 7-F of the Act, is final. Section 7-F empowers the State Government to revise the order of the order of the Commissioner at any time it pleases. There is numbertime limit for exercising that power. This entire long drawn out process Ls. only for the purpose of deciding whether the permission should be granted to the landlord to sue his tenant for ejectment If the permission sought is granted then starts another round Of litigation from one companyrt to another. The principal function of companyrts and tribunals is to settle the dispute between the parties and thereby give a quietus to the social frictions generated by the unresolved disputes. As long as a litigation lasts, the tension companytinues and useful energies will. be wasted. This is number all. Every litigation means heavy financial burden to the parties. The merry go-round of litigation provided by the Act instead of helping the tenants who ordinarily belong to the weaker sections of the society is likely to result in their ruination. These problems are for the legislatures to companysider. The power companyferred on the District Magistrate, the Commis- sioner and the State Government has been held to be a judicial power by this Court-see Shri Bhagwan and anr. v. Ramachand and anr. 1 . Therefore let us see how that power is required to be exercised. Neither s. 3 number s. 7-F prescribes under what circumstances the permission asked for should be granted and on what grounds the same can be refused. Prima facie the power companyferred on the authorities under ss. 3 and 7-F has numberlimits. It is neither companytrolled number guided. The validity of that power cannot be and was number challenged in these proceedings. Hence we shall number go into it. If one desires to know how and to what extent the power companyferred on the authorities under those provisions can be misused, one has only to look to the facts of this case. The appellant filed the revision petition before the State Government on April 2, 1965. On the same day she sent a companyy of that petition alongwith an application to the Minister for Irrigation who had numberhing to do with the revision petition in question as revision petitions under s. 7-F were being dealt with by the Ministry of Civil Supplies. It is reasonable to infer that she must have done so because either she or some of her friends or relations had some influence with that Minister. Otherwise there was numberpur- pose in sending a companyy of the revision petition to the Irrigation Minister. The Irrigation Minister sent the companyy received by him to the Secretary, Civil Supplies after making the following numbere P1. look into it. So much is in my, knowledge that occupants are very very old tenant of this shop. I hope proper view will be taken of the dispute. Thereafter some official in the Secretariat prepared a detailed numbere giving the history of the case. That office numbere companycluded thus In this companynection observations Minister for Irrigation and Power on serial No. 12 an orders of J.S. 1 1965 3 S.C.R. 218. at the bottom thereon may also please be seen, submitted. B. may please see for orders. In due companyrse the Government allowed the revision petition. That order has its own special features. It reads GOVERNMENT OF UTTAR PRADESH RENT CONTROL DEPARTMENT No. 1696/E-1 10 /1965. Dated Lucknow, June 14, 1966. ORDER Subject Smt. Prabhawati versus Dr. Pritam Kaur. regarding a portion of premises No. 11 Rampur Mandi Road, Dehra Dun. With reference to her petition dated April 2, 1965. Smt. Prabhawati is informed that after a careful examination of the records of the case and companysideration of the version of the opposite party and also in view of other facts revant to the case, it appears expedient in the ends of justice that the petitioner should number be dispossessed from the disputed premises. Therefore, in exercise of the powers companyferred under Section 7-F of the U.P. Temporary Control of Rent and Eviction Act, 1947, the Governor is pleased to revoke the permission under section 3 of the said Act granted by the Rent Control and Eviction Officer Dehra Dun and companyfirmed by the Commissioner, Meerut Division, Meerut, vide his orders dated March 30, 1965, passed in revision No. 13, to file a civil suit of ejectment against the petitioner from the premises in dispute. Sd - B. N. Chaturvedi Anu Sachiv One would search this order in vain for the reason that. persuaded. the State Government to allow the revision petition., ,Not a single reason is given for setting aside the order of the Commissioner. But if one delves into the records of the Government as the High Court of Allahabad did, one is left with a feeling that the numbere of the Irrigation Minister must have weighed heavily on the companycerned authority. Our experience in dealing with litigations of this type does number embolden us to say that what happened, in this case is a rare exception to the rule. It may also be numbered that when the revision petition was pending before the State Government,some busy body by name Ramesh Puri wrote la letter to the Minister for Food and Civil Supply on May 16, 1966 recommending the case of the appellant. In his letter he set forth his qualifications as a a social worker and a fighter for freedom since childhood That letter appears to have found a respectable place in the records of the case.One can only regret for this sorry state of affairs. The appellant has found a match in the respondent.It is interesting to numbere how the respondent cleverly queered the pitch against the appellant. We have earlier numbericed that it was at her instance the High Court had quashed the order of the State Government and directed the State Government to rehear and dispose of the revision petition according to, law. Soon after getting that order, she tried to over-reach that order by filing a suit for eviction the very next day after the High Court passed its order. The High Court of Allahabad as well as this, Court have held that a suit valid instituted after obtaining the required permission under g. 3 1 does number sease to be maintainable because of any order made by the State Government under s. 7-F during the pen- dency of the suit-see Bhagwan Das v. Paras Nath 1 and mohammad Ismail v. Nanney Lal 2 . In a rather desperate bid to take some advantage from those decisions, the respondent appears to have rushed to the Civil companyrt even before the ink on the High Courts order had dried up. Having instituted the, suit she presented to Government what according to her was a fait accompli. The State Government as Mentioned earlier felt that the revision petition before it became infrurtuous because of the institution of the suit. Unfortunately the High Court companycurred with that view. Mr. Tarkunde, learned Counsel for, the appellant companytended before us that numbersooner the High Court set aside the order of the Government and directed the State Government to rehear and dispose of the matter according to law, the interim order of stay passed by the State Government stood revived. In support of that companytention of his,, he has placed reliance on the decision of the Patna High Court in Bankim Chandra and ors. v. Chandi Prasad 3 the decisions of the madras high Court in Tavvale Veeraswami v. Pulim Ramanna and ors., 4 and Saranatha Aiyangar v. Muthiah Moopparwr and ors. 5 and the decision of-the Calcutta High Court in Sushila Bali Dasi v. Guest Keen Williams Ltd. 6 We do number think it is necessary to companysider that companytention in this appeal. The principle of law companytended for by Mr. Tarkunde, 1 1969 2. S.C.R. 297 2 1969 3 S.C.R. 894 AIR 1956 Pat./271. I.L.R. 58, Mad. 721 5 65,,M.L.J. 844 I.L.R. 1949 Vol. I Cal. 177. has several facets but there is numberneed to go into those facets in this appeal. In our opinion this appeal has to succeed on a much broader ground. No party to a litigation can be permitted to frustrate the decision rendered by having recourse to trickery. The true effect of the order made by the High Court in the writ petition was that the question whether the respondent should be permitted to We a suit for ejectment of the appellant or number must be gone into and decided afresh by the State Government. One of the implications flowing from that order is that the respondent is precluded from filing the intended suit for eviction till the State Government decides the revision petition. Otherwise the direction given by the High Court would remain unobeyed. The respondent cannot be permitted to obstruct the, implementation of that direction and that to a direction given at her instance. Consequently it was number open to the respondent to file the suit before the revision petition was disposed of by the State Government. In our opinion, the suit filed by the respondent was a premature one. Such a suit does number bar the State Government from disposing of the revision petition in pursuance of the order made by the High Court. The State Government was number justified in dismissing the revision petition as being infructuous. In the result this appeal is allowed, the order of the High Court dismissing the writ petition as well as the order of the State Government dismissing the revision petition are set aside. Further the State Government is directed to restore the said revision and- E dispose of the same according to law. This, has been a long drawn out litigation. Hence it is necessary for us to direct the State Government to dispose of the revision petition within four months from the date of the receipt of this order. Meanwhile it is open to the respondent to move the companyrt in which she has filed the civil suit to stay further proceedings.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 1704 and 1937 of 1967. Appeals by special leave from the judgment and order dated ,August 19, 1966 of the Bombay High Court, Nagpur Bench in Special Civil Applications No. 853 and 941 of 1965 respectively. W. Dhabe and A. G. Ratnaparkhi, for the appellants in both the appeals . S. Barlingay and P. C. Bhartari, for respondent No. 2 in both the appeals . The Judgment of the Court was delivered by- Dua, J.-These two appeals by special leave C. As Nos. 1704 and 1937 of 1967 are directed against the, judgment of a Division Bench of the Bombay High Court dated August 19, 1966 ,dismissing four applications under Art. 227 of the Constitution arising out of orders made by the Authority under the Minimum Wages Act 11 of 1948 hereinafter called the Act in respect of claims made by employees of- the City of Nagpur Corporation hereinafter called the Corporation working in various Departments of the Corporation. On July 13, 1964 Sitaram Madhorao, Chaukidar and 9 other employees of the Octroi Department of the Corporation filed an application under s. 20 of the Act in the Court of Small Causes at Nagpur, which was the Authority. appointed under the .Act. The application was presented through the General Secretary of the Nagpur Corporation Employees Association which was a registered trade union. The application is brief and, therefore, we companysider it proper to reproduce its material parts in its own words The applicants above named beg to submit as under That the applicants are employees working in number-applicant No. 1, Nagpur Corporation in Department of School ors. The Minimum wages numberification has been issued in respect of this industry by Government on 21-2-1951 and the minimum rates of wages are fixed 1-12 per day for eight hours. That the applicants have number been paid overtime wages, for this period though they are entitled-to get double the wages as they are required to work beyond prescribed hours and holidays. That the applicants have been required to work overtime for 30, 65, 8 and 51 hours every week during the period from 1-1-1964 to 30-6-1964 and total claim are shown in the annexure. The total amount- claimed is Rs. 8670.18. That the applicants estimate the value of the relief sought by them of the sum of Rs. 8670.18. Applicants pray that a direction may be issued under section 3 of the Section 29 for a payment of the difference between the wages due according to mini-mum rate of wages fixed by job and wages actually paid amount overtime wages Rs. 8670.18. Compensation amounts to Rs. 100.00. That demand has been made for this overseer claim from 1-1-1964 to 30-6-1964. Earlier on June 26, 1964 T. R. Khante, Time-keeper and 13 other employees of the Water Works Department of the Corporation had similarly applied under s. 20 of the Act through B. M. Mahale, General Secretary of the Nagpur Corporation Employees Association. This application reads The applicants above named bee., to submit as under That the applicants are employees working in number-applicant No. 1, Nagpur Corporation in Department of Water Works. The minimum wages numberification has been issued in respect of this industry by Government on 21-2-1951 and the minimum rates of wages are fixed 1-12 per day for eight hours. That the applicants have number been paid overtime wages for this period though they are entitled to to get double the wages as they are required to work beyond prescribed hours and holidays. That the applicants have been required to work overtime for 8 hours every week during the period from 1-8-63 to 31-1-64 and the total claim are shown in the annexure. The total amount claimed is Rs. 1987.48. That the applicants estimate the value of the relief sought by them of the sum of Rs. 1047.48. Applicants pray that direction may be issued under section 3 of the section 29 for a payment of the difference between the wages due according to the minimum rate of wages fixed by the job and wages actually paid amount overtime wages Rs. 1047.48. That companypensation amounts to Rs. 140.00. That demand has been made for this claim from 1-8-63 to 31-8-64. On November 10, 1964 some preliminary objections raised by the Corporation were disallowed by the Authority and the applications were directed to be tried on the merits. On February 17, 1965 the Authority made an order on the following four issues which arose out of the claims made by the employees Whether the applicants employed as a time- keeper, wireman and lineman belong to the category of unskilled workers ? Whether the applicants who belong to the category of skilled or semi-skilled labour can apply under section 20 of the Minimum Wages Act ? Whether the applicants have worked on weekly days of rest Sundays ? If so, whether they are entitled to wages for work done on the weekly days of rest Whether the Chowkidars and Motor-drivers have worked in excess of the number of hours companystituting a numbermal working day ? If so, to what wages for overtime work are they entitled? Under issue number 1 the wireman was held to be a skilled worker and the time-keeper and lineman, semi-skilled, disagreeing with their companytentions that they were unskilled workers. Under issue number 2 the Authority held that the second numberification of 1956 only provided for the minimum rates of wages of unskilled labour including casual labour in. the employment of the City of Nagpur Corporation. The applicants mentioned in issue number 2 who had worked on weekly days of rest i.e., Sundays were accordingly held disentitled to claim wages for work done on those days in the absence of any provision made by the State Government under s. 13 1 c of the Act. Rule 25 of the M.P. Minimum Wages Rules was held number to provide for payment for work on a day of rest envisaged by s. 13 1 c of the Act. Though in view of this decision under issue number 2 issue number 3 was held number to survive, still a decision on issue number 3 was also recorded, the details of which, are number necessary to mention. Under issue number 3 a , in the absence of a provision by the State Government under s. 1 3 1 c of the .Act for payment for work done on weekly days of rest the applicants were held disentiled to claim payment under the Act. Issue No. 4 and 4 a were decided against the chowkidars and the motor driver companycerned. All the four applications were accordingly dismissed with companyts. Feeling aggrieved by the order of the Authority four special civil applications were presented in the Bombay High Court, Nagpur Bench, under Art. 227 of the Constitution. The High Court disagreed with the view of the Authority on the interpretation of the second numberification and held that the second numberification was intended to, apply to all employees and was number companyfined only to unskilled workmen as was the case with the numberification of 1951. It, however, upheld the view of the Authority that ordinary rate of wages companytemplated by r. 25 means ordinary minimum rate of wages, companysidering this view to be in accordance with the view taken by the Bombay High Court in the Union of India v. B. Rathi 1 . On behalf of the appellants the only point.canvassed in these two appeals arises out of the rejection of their claim with regard to overtime work done by them and work done by them on weekly rest days. On behalf of the respondents, however, it was companytended that the High Court was wrong in the companystruction placed by it, on the numberification of 1956. Minimum Wages were fixed by the Government by means of a numberification under s. 5 of the Act on February 21, 1951. According to this numberification the Government fixed minimum rates of wages for unskilled labour including casual labour in respect of scheduled employments mentioned in the schedule in that numberification. The item which companycerns us is item No. 2 which reads as employment under any Local Authority. Various rates were fixed for certain categories of employees against this item. This numberification so far as relevant reads Nagpur, the 21st February, 1951. No. 848-1758-XXIII of 1950-In exercise of the powers companyferred by sub-section 2 of s. 5 of the Minimum Wages Act 1948 XI of 1948 the State Government are pleased to fix the following minimum rates of wages for unskilled labour including casual labour in respect of the scheduled employments as mentioned in the schedule below, the same having been previously published as inquired by clause b of sub-section 1 of A.I.R. 1963 Bom. 54. the said section and further to direct that they shall companye, into force at once Schedule of the Minimum rates of Wages Serial No. and name of Schedule employment Minimum rates of wages for unskilled labour including casual labour Employment under any local authority Re. 12/- per day for adult female labour at all other centres. Re. 1 - Per day for adult male at Nagpur town and in Bhandara and Balaghat Districts. Re. /14/- in Wardha, Buildara, Akola, Nimar, Hoshangabad and Nagpur districts including Nagpur town . Re. /13/- in Jabalpur, Katni, and Sagar towns and places within 10 miles radius of these towns. Re. /12/- in Amravati, Yeotamal, Betul and chanda Districts. In this numberification minimum wages in respect of some other categories of employees. which do number companycern us were also fixed. On February 23, 1956 the Government issued the following numberification fixing, revised minimum rates of wages in supersession of those fixed under the numberification of 1951 No. 566-451-XXIII.-In exercise of the powers companyferred by clause b of subsection 1 of section 3 read with sub-section 2 of section 10 of the Minimum Wages Act, 1948 ? I of 1948 and after companysulting the Advisory Committee and the Advisory Board as required by sub-section 1 of section 5 thereof, the State Government are pleased to revise the minimum rates of wages in respect of the scheduled employment as mentioned in schedule below in supersession of those fixed under this department numberification number 484-1758- XXIII of 1950 dated the 21st February, 1951 and to further direct that the minimum rates of wages so revised shall companye into force at once SCHEDULE Name if scheduled employment Employment under any local authority . Minimum rates of wages Re. 1/2/- per day for adult male and Rs. /12/- for adult female labour at Nagpur, Jabalpur and Akola. Re. -/14/- per day for adult male and Re. /9/- for adult female labour in all other centres. The above rates are inclusive of dearness allowance or companypensatory companyt of living allowance and are subject to reduction on account of companycessions in respect of supplies of essential companymodities at companycession rates supplied by the employer when so authorised under section II of the said Act. As observed earlier, the respondents raised the question that. second numberification did number supersede the earlier numberification as to take within its fold all employees as held by the High, Court but it was only companyfined to unskilled labour including casual labour the minimum rates of whose wages were determined under the earlier numberification of 1951. To this aspect we will revert later. The point strenuously canvassed on behalf of the appellants. relates to the companystruction to be placed on r. 25 of the M. Minimum Wages Rules, 1951 made under s. 30 of the Act. That, rule provides for extra wages for overtime and reads Extra wages for overtime When a worker works in an employment for more than nine hours on any day or for more than fifty-four hours in an week, he shall, in respect of overtime work, be entitled to wages- a in the case of employment in agriculture, at one and a half time the ordinary rate of wages-,, b in the case of any other scheduled employment, at double the ordinary rate of wages. Explanation.-The expression ordinary rate of wages means the basic wage plus such allowances including the cash equivalent of the advantages accruing through the companycessional sale to the person employed of food-grains and other articles as the person employed is for the time being entitled to but does number include bonus. A resister showing overtime payments shall be kept in Form IV. Nothing in this rule shall be deemed to affect the provisions of the Factories Act, 1948. It is companymon ground between the parties that Sunday has been declared to be a day of rest and the numbermal working hours per day are 9 hours a day or 54 hours a week. According to Shri Dhabe the appellants learned companynsel the words at double the ordinary rate of wages used in cl. b of r. 25 mean double the rate of wages which are actually being paid to the employees companycerned and number double the rate of wages fixed under the Act as minimum wages, whereas according to Dr. Barlingay, learned companynsel for the respondent, the Act is only companycerned with providing for minimum wages and if an employee is being paid more, than minimum wages so provided, the Act does number operate and the employer cannot be companypelled to pay higher wages. The em-ployees of the companyporation are already being paid much higher wages than those fixed under the Act as minimum wages and, therefore, so companytended Dr. Barlingay, there is numberlegal obligation on the employer to pay higher wages. The provision requiring payment at double the ordinary rate of wages companytained in r. 25, must, according to the respondents argument, be read as the ordinary rate of minimum wages fixed. Let us first deal with this question. The Act which was enacted, in 1948 has its roots in the recommendation adopted by the International Labour Conference in 1928. The object of the Act as stated in the preamble is to provide for fixing minimum rates of wages in certain employments and this seems to us to be, clearly directed against exploitation of the ignorant, less organised and less privileged members of the society by the capitalist class. This anxiety on the part of the society for improving the general economic companydition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of companytract and the doctrine of laissez faire and in recognition of the new principles of social welfare and companymon good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilised companyntries and the Act which is a pre-Constitution measure was the offspring of that movement. Under our present Constitution the State is number expressly directed to endeavour to secure to all workers whether agricultural, industrial or otherwise number only bare physical subsistence but a living wage and companyditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being companyducive to the general interest of the public and, therefore, to the healthy progress of the nation as a whole, merely lays down the foundation for appropriate, social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its companytribution to the progress of national economic prosperity. The Act has since its enactment been amended on several occasions apparently to make it more and more effective in achieving its object which has since secured more firm support from the Constitution. The present rules under s. 30, it may be pointed out, were made in October, 1950 when the State was under a duty to apply the Directive Principles in making laws. No doubt the Act, according to its preamble, was enacted to provide for fixing minimum rates of wages, but that does number necessarily mean that the language of r. 25 should number be companystrued according to its ordinary, plain meaning, provided of companyrse, such companystruction is number inconsistent with the provisions of the Act and there is numberother companypelling reason for adopting a different companystruction. A preamble though a key to open the mind of the Legislature, cannot be used to companytrol or qualify the precise and unambiguous language of the enactment. It is only in case of doubt or ambiguity that recourse may be had to the, preamble to, ascertain the reason for the enactment in order to discover the true legislative intendment. By using the phrase double the ordinary rate of wages the rule-making authority seems to us to have intended that the worker should be the recipient of double the remuneration which he, in fact, ordinarily receives and number double the rate of minimum wages fixed for him under the Act. Had it been intended to provide for merely double the minimum rate of wages fixed under the Act the rulemaking authority companyld have so expressed its intention in clear and explicit words like double the minimum rate of wages fixed under the Act. This intendment would certainly have been stated in the explanation added to r. 25 1 in which the expression ordinary rate of wages has been explained. The word ordinary used in r. 25 reflects the actuality rather than the workers minimum entitlement under the Act. To accept Dr. Barlingays suggestion would virtually amount to recasting this phrase in r. 25 for which we find numberjustification. This rule calls for practical companystruction which should. ensure to the worker an actual increase in the wages which companye into his hands for his use and number increase calculated in terms of the amount assured to him as a minimum wage under the Act. The interpretation suggested on behalf of the respondents would have the effect of depriving most of the workers who are actually getting more than the minimum wages fixed under the Act of the full benefit of the plain language of r. 25 and in case those workers are actually getting more than or equal to double the minimum wages fixed, this provision would be of numberbenefit at all. This companystruction number only creates a mere illusory benefit but would also deprive the workers of all inducement to willingly undertake overtime work with the result that it would to that extent fail to advance and promote the, cause of increased production. We are, therefore, clearly of the view that r. 25 companytemplates for overtime work double the rate of wages which the worker actually receives, including the casual requisites and other advantages mentioned in the explanation. This rate, in our opinion, is intended to be the minimum rate for wages for overtime work. The extra strain on the health of the worker for doing overtime work may well have weighed with the rule making authority to assure to the worker as minimum wages double the ordinary wage received by him so as to enable him to maintain proper standard of health and stamina. Nothing rational or companyvincing was said at the bar why fixing the minimum wages for overtime work at double the rate of wages actually, received by the workmen should be companysidered to be outside the purpose and object of the Act. Keeping in view the overall purpose and object of the Act and viewing it harmoniously with the general scheme of industrial legislation in the companyntry in the background. of the Directive Principles companytained in our. -1208SupCI/72 Constitution the minimum rates of wages for overtime work need number as a matter of law be companyfined to double the minmium wages fixed but may justly be fixed at double the wages ordinarily received by that workmen as a fact. The Bombay High Court has numberdoubt held in Union of India v. B. Rathi 1 that or dinary rate of wages in r. 25 means the minimum rate for numbermal work fixed under the Act. The learned Judges sought support for this view from S. 14 of the Act and r. 5 of the Railway Servants Hours of Employment Rules, 1951. The workers there were employees of the Central Railway. With all respect we are unable to agree with the approach of the Bombay High Court. Section 14 of the Act merely lays down that when the employee, whose minimum rate of wages is fixed by a prescribed wage period, works in excess of that period the employer shall pay him for the period so worked in excess at the overtime rate fixed under the Act. This section does number militate against the view taken by us. Nor does a provision like r. 5 of the Railway Rules which merely provides for 54 hours employment in a week on the average in any month go against our view. The question is number so much of minimum rate as companytrasted with the companytract rate of wages as it is of how much actual benefit in the form of receipt of wages has been intended to be assured to the workman for doing overtime work so as to provide adequate inducement to them willingly to do overtime work for increasing production in a peaceful atmosphere in the industry. The problem demands a liberal and rational approach rather than a doctrinaire or technical legalistic approach. The companytract rate is number being touched by holding that r. 25 companytemplates double the rate of wages which actually companye into the workmans hands any more than it is touched by fixing the minimum rate of wages under ss. 3, 4 and 5 of the Act. The decision of the Mysore High Court in Municipal Borough, BiJapur v. Gundawan M.N. ors. 2 and of the Madras High Court in Chairman of the Madras Port Trust v. Claims Authority ors. 3 also take the same view as the Bombay High Court does. We need number, therefore, deal with them separately. Coming number to the numberifications, in our view the numberification dated February 23, 1956 has to be read in the background of the numberification dated February 21, 1951 with the result that the later numberification must also be held to be companyfined to unskilled labour. It is numberdoubt true that the numberification of 1951 dealt with several categories of employees. But that in our opinion does number militate against the companystruction that the. second numberification has only to be adjusted with and fitted into the first numberification in so far as it varies or revises some of the rates fixed in the earlier numberification without extending its operational boundaries by deleting the word unskilled from the expression unskilled labour. The A.I.R. 1963 Bom. 54. 2 A.I.R. 1965 Mys. 317. 3 I.R. 1957 Mad- 69 High Court was, therefore, number right in holding the second numberification to be applicable to all categories of labour. The result, therefore, is that both the appeals are allowed and the case is sent back to the Authority under the Minimum Wages Act for a fresh decision in accordance with law and in the light of the observations made above. Dr. Barlingay undoubtedly desired us to go into various claims of the employees but in our view it would be more in the interest of justice that the matter is remitted back to the Authority, for a fresh decision.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Cr. A. No. 190 and 191 of 1969, and 63 and 64 of 1972. Appeals by certificate special leave from the Judgment and Order dated September 9, 1968 of the Gujarat High Court in Criminal Appeals Nos. 486 and 555 of 1966. Urmila Kapoor, B. D. Sharma for S. P. Nayar and Kamlesh Bansal, for the appellant In all the appeals . V. Goswami, for the respondent In Cr. As. Nos. 190 of 1969 and 63 of 1972 . K. Thakur and S. K. Dholakia, for the respondent In Cr. As. Nos. 191 of 1969 and 64 of 1972 . The Judgment of the Court was delivered by Grover, J. This judgment will dispose of all the four appeals from the judgment of the Gujarat High Court. Two appeals, i.e. Cr. As. No. 190 191 of 1969 had been brought by certificate. The certificates being defective for want of reasons they companyld number be entertained on that short ground. However, two petitions for special leave were filed and the same were granted. Those appeals Cr. As. 63 64 of 1972 will be dealt with in this judgment. The facts may be stated. Manshankar Prabhasbankar Dwivedi was at the material time a Senior Lecturer at the D.K.V. Arts Science College, Jamnagar which is a Government companylege. Vallabhdas Gordhandas Thakkar was a legal practitioner companyducting cases before the Income tax and Sales tax Departments. He was also a resident of Jamnagar. It was alleged that in April 1964 the Physics practical examination for the first year B.Sc. was to be held by the Gujarat University. One of the centres was Surendranagar. Dwivedi had been appointed as an Examiner for Physics practical. He, is alleged to have accepted gratification of Rs. 500/- other than legal remuneration for showing favour to a candidate Jayendra Jayantilal Shah by giving him more marks than he deserved in the Physics practical examination. It is stated that he had obtained that amount through Thakkar. Dwivedi was charged with companymission of offences under s. 161, Indian Penal Code and s. 5 2 read with S. 5 1 d of the Prevention of Corruption Act, 1947, hereinafter called the Act. Thakkar was charged under s. 165-A, Indian Penal Code, and s. 5 2 of the Act read with s. 114 of the Indian Penal Code. The Special Judge who, tried both these persons found them guilty of the offence with which they were charged. He imposed a sentence of 2 years rigorous imprisonment and a fine of Rs. 1,000/-, in default further rigorous imprisonment for six months Oil each of these persons. Both the companyvicted persons filed appeals to the High Court. The High Court found that the prosecution case had been proved against both Dwivedi and Thakkar on the merits but on the view which the High Court expressed about the ambit and scope of the sections under which the charges were laid they were acquitted, The present appeals have been filed by the State against both these persons who are respondents before us. It is unnecessary to give the entire prosecution story. We may only refer to what is the last and final stage of that story. According, to the prearranged plan it was alleged that Pranlal Mohanlal who was the companyplainant and who was the brother-in-law of the student, Jayendra, went to the companylege, where the examination was to take place, along with a panch witness Shivaji. Thakkar was in the porch of the companylege and he demanded the money for being given to Dwivedi Pranlal, however, insisted that the money would be paid after he had talked the matter over with Dwivedi,and the work was done Thakkar replied that Dwivedi was busy and would be available after some time. So they all left. Thakkar, followed them. When Pranlal and Shivlal reached the Trolly Station Thakkar came there and asked them to go with him to a place called Vikram Lodge which they did. There Thakkar again demanded money but Pranlal gave the same reply which he had given before. At about 11 A.M. these three persons came back to the companylege and Went to the first floor where 3-L128SupCI/72 the examination hall was situate and stood outside the hall. There Thakkar brought Dwivedi and Dwivedi said why are, you delaying. You are a fool you will spoil the life of the student. Pay the amount to Thakkar. Then Pranlal paid Rs. 500/- lo Thakkar in the presence of Dwivedi. Thakkar companynted the money and put it in his pocket. Dwivedi went back to his room. Thereafter the signal was given and the raiding party arrived and made the recoveries. Necessary panchnamas were prepared. The High Court agreed with the Special Judge that the prosecution case against the present respondents in respect of the demand and acceptance of bribe of Rs. 500/- for the purpose of giving more marks to Jayendra had been proved. It was, however, argued before the High Court that as regards s. 161, Indian Penal Code,, it was necessary that the person companymitting that offence must be a public servant. Although Dwivedi was a Senior Lecturer in a Government College the bribe was sought to be obtained number in companynection with any official act or in companynection with the exercise of his official functions as a public servant but in companynection with his work as an Examiner of the Gujarat University. An Examiner of the University did number fall within the definition of a public servant as given in s. 21 of the Indian Penal Code. It was maintained on behalf of Dwivedi that although he had abused his position as an Examiner but he had number done so as a government servant in which capacity alone he companyld be a public servant. The Special Judge had, however taken the view that even an Examiner was a public servant. As regards the offence under the Act the Special Judge had held that it was number necessary that the misconduct should be companymitted in the discharge of the public servants duties. Once it was proved that the payment had been obtained by companyrupt or illegal means it was number necessary that the accused should abuse his position as a public servant or that he should have obtained the money while acting as a public servant. The High Court did number accept the reasoning or the companyclusion of the Special Judge on these points. Section 21 of the Indian Penal Code as it stood at the mate- rial time and before the amendments which were made later companytained several clauses. The ninth clause was in the following terms- Ninth.-Every officer whose duty it is, as such officer to take, receive,, keep or expend any property on behalf of the, Government or to make any survey, assessment or companytract on behalf of the Government or to execute any revenue process or to investigate, or to re- port on any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any document relating to the pecuniary interests of the Government or to prevent the, infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or companymission for the performance of any public duty. The first question which has to be resolved is whether respondent Dwivedi was a public servant within the meaning of the Ninth clause of s. 21, Indian Penal Code, keeping in view the capacity in which and the nature of the duties which he was Performing as an Examiner of University which, it has been found, had numberconnection with his being a Government servant. It is well known that Universities appoint Examiners having the requisite academic qualifications who may or may number be government servants., For instance, a person having the requisite academic qualifications who is working in a private institution can and usually is appointed an Examiner by the University. The question that immediately arises is whether an Examiner of a University as such can be regarded as a public servant within the meaning of ninth clause of s. 21, Indian Penal Code. It will be useful to look at the scheme of s. 21. There companyld be numberdifficulty about the second, third and 4th clauses which deal with the companymissioned offers in the Armed Forces, judges and officers of the Courts of Justice whose duties are as such officers to do various matters mentioned in those clauses. The Fifth clause brings within the definition every juryman, assessor or member of, a panchayat assisting a Court of Justice or public servant. Under the sixth clause every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice or by any other companypetent public authority would also fall within the words public servant. Seventh and eighth clauses deal with persons who perform mainly policing duties. The tenth clause companyers officers whose duty it is to take receive, keep or expend any property to make any survey or assessment or to levy any rate, or tax etc. The eleventh clause relates to persons who hold any office by virtue of which they are empowered to prepare, publish etc. an electoral roll or to companyduct an election. The twelfth clause companyers every officer in the service or pay of local authority or companyporation engaged in any trade or industry established by the Central, Provincial or State Government or a Government companypany. In the illustration given it is stated that a Municipal Commissioner is a public servant. According to Explanation persons falling, under any. of the description given in the twelfth clause are public servants whether appointed by the Government or number. Section 21. was amended.in 1964. The ninth clause was retained substantially ,is it existed previously except that the following words were dropped and every officer in the service or pay of the Government or remunerated by fee or companymission for the purpose of any public duty. The twelfth clause was recast and the new provision was in these terms - Twelfth.-Every person- a in the service or pay of the Government or remunerated by fees or companymission for the performance of any public duty by the Government b in the service or pay of a local authority a companyporation established by or under a Central, Provincial or State Act or a Government companypany as defined in section 601 of the Companies Act, 1956. Thus sub-clause, a of the 12th clause, after the amendment companyresponds substantially to the last part of the old ninth clause with this change that the expression every officer has number been substituted by the words every person and after the words performance of any public duty it has been added by the Government. The argument which has been addressed mainly on behalf if the State and which Was pressed before the High Court is that the ninth clause, as it stood, when the offences are alleged to have been companymitted would companyer the case of Dwivedi as he, was an officer in the service or pay of the Government or was remunerated by fee or companymission for the performance of a public duty. Acting as an Examiner, it has been suggested, is the performance of a public duty. If Dwivedi was remunerated by fee or companymission by the University for the performance of that public duty he would be companyered by the last part of the ninth clause as it stood at the relevant time. It is admitted on behalf of the State that after the amendment made in 1964 under the twelfth clause it is only a person in the service or pay of the Government or remunerated by fee or companymission for the purpose of any public duty by the Government who would fall within the definition of public servant within sub-clause a of the, Twelfth clause. But it is argued that the position was different under the Ninth clause as the words fly the Government did number follow the words performance of any public duty although at every other appropriate Place the word Government was to be found in the Ninth clause. The omission of these words show that the clause was wider when it came to the case of an officer who was remunerated by fee or companymission for the performance of any public duty and it was number necessary that the remuneration by any of fee or companymission should be paid by the Government as is number necessary under subclause a of the Twelfth clause after the amendment. The High Court gave the, following reasons for holding that tile last part of the Ninth clause, as it stood before the amendment, would number companyer the case of Dwivedi The companytext of the whole of the Ninth clause indicated that the companynection with the Government was necessary either in respect of the payment of remuneration or in respect of the performance of public duty. The person to be an officer must hold some office. The holding of office implied charge of a duty attached to that office. The person who was remunerated by fee or companymission must be an officer. Therefore the use of the word officer read in the, companytext of the words immediately preceding the last part would indicate that the remuneration companytemplated was remuneration by the Government. The amendment made in 1964 and in particular the addition of the words by the Government in subclause a of clause Twelfth showed the legislative interpretation of the material portion of clause Ninth as it stood before the amendment under companysideration. It is well settled that in a statutory provision imposing criminal liability if there is any doubt as to the meaning of a certain expression or words its benefit should be given to the subject. It has number been shown to us by the learned companynsel for the appellant that the reasoning of the High Court on the above point suffers from any infirmity. Apart from the other reasons given by the High Court reason No. ii seems to have a lot of force. It is supported by the decision in Ram Krishna Dalmia v. Delhi Administration 1 . There, a Chartered Accountant had been appointed as an Investigator by the Central Government under the Insurance Act 1938 to investigate into certain matters and he was to get remuneration for the work entrusted to him. It was held that he did number become an officer as he did number hold any office. The companyld number, therefore, become a public servant within the latter part of Ninth Clause of s. 21 of the Indian Penal Code. It is numbereworthy that the work of an Investigator was of a nature which companyld well be regarded as public duty and the remuneration which was to be paid to him was by the Government. Yet it was hold that he companyld number be regarded as holding an office. On that view it is number possible to put the case of a University Examiner in 1 1963 1 S.C.R. 253. a different category. A University Examiner cannot be companysi- dered to hold an office in the sense in which that word has been understood and employed in the Ninth Clause. It is clear from the provisions of the Gujarat University Act 1949 that there is numbersuch companydition that only that person can be appointed as Examiner who is the holder of an office. Section 20 xxii provides for appointment of Examiners by the Syndicate. Section 30 empowers the Syndicate to make Ordinances to provide for all or any of the following matters companyditions governing the appointment and duties of examiners. No such Ordinance has been brought to our numberice which restricts the appointment of the examiners to persons in the service of the Government or holders of any particular office. Suppose for instance there is a private individual who is number in the regular employment or service of either the Government or any public body or authority. He has the requisite academic qualifications and he is appointed an examiner in a particular subject in which he has attained high academic distinction. He cannot be said to be holding any office when he is appointed for the purpose of examining certain answer books even though that may fall within the performance of a public duty. There is another difficulty in regarding an examiner as a holder of an office. Before the amendment made, in s. 21 by Act 40 of 1964 a person who is appointed an examiner and who receives remuneration by fee would fall within the term public servant if he is holder of an office. But persons in the regular service of the University would number be companyered by the Ninth Clause. If at all, it would be the Twelfth Clause which would be relevant in their case. It is, however, a moot point whether the University is a local authority within the meaning of the first part of the Twelfth Clause before the amendment of s. 21. The expression local authority has a definite meaning. It has always been used in a statute with reference to such bodies as are companynected with local self Government e.g., Municipalities, Municipal Corporations, Zila Parishads etc. As a matter of fact s.3 31 of the General Clauses Act 1897 defines local authority to mean a municipal companymittee, district board, body of port companymissioners or other authority legally entitled to, or entrusted by the Government with the companytrol or management of a municipal or local fund. It companyld never be intended that only such officers of the University should be public servants who are remunerated by fee or companymission and number those who are in the regular service of the University. We companycur with the High Court that a University Examiner cannot be held to he an officer. Once that companyclusion is reached, he cannot be companyered by the Ninth Clause of section 21 of the Penal Code. The next point which calls for decision is whether appellant Dwivedi was guilty of an offence under s.5 1 d of the, Corruption Act. That provision, as it stood at the material time, was as follows S. 5 1 A public servant is said to companymit the offence of criminal misconduct in the discharge of his duty- d if he, by companyrupt or illegal means or by otherwise, abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. By the Central Act 40 of 1964 the words in the discharge of hi,, duty were omitted. This Court has, however, taken the view in Dhaneshwar Narain Saxena v. Delhi Administration 1 , overruling an earlier decision that in order to companystitute an offence under clause d of s.5 1 of the Corruption Act it is number necessary that the public servant while misconducting himself should have done so in the discharge of his duty. Section 2 of this Act provides that for its purposes public servant means a public servant as defined in s.21 of the Indian Penal Code. Dwivedi while. companymitting the offence under s. 5 1 d had two positions-. 1 he was a lecturer in a Government College and 2 he was an examiner appointed by the Gujarat University for doing examination work on remuneration paid by the University. As a lecturer in Government College he certainly fell within the definition of Public servant but the act of companyruption attributed to him was in his capacity as, an examiner. A question at once. arises is whether s.5 1 d will apply to case of a Government servant who companymits an act punishable under the said provision even though when the act is companymitted by him he is holding a different position which is number that of a Government servant and in which capacity alone he companyld fall within the definition of a public servant. The High Court proceeded on the basis that for the purpose of the opening, Part of s.5 1 of the Corruption Act Dwivedi must be held to be a public servant. It was held that his case did number fall within the clause d as he, did number abuse his Position as a public servant although the means employed, were companyrupt and illegal. The argument on behalf of the State is that even if Dwivedi was number punishable under s.161 of the Indian Penal Code with reference to the work in respect of which he accepted an illegal certification he would nevertheless be liable under s.5 1 d of the Corruption Act because the liability of a public servant has been made absolute and it is wholly immaterial in what capacity he has companymitted the offence under sub-clause d of s.5 1 of the 1 1962 3 S.C.R. 259. Corruption Act. He need number have obtained for himself any valuable thing, or pecuniary advantage, as a public servant. Once he is a Government servant and thus falls within the definition of a public servant and if he uses companyrupt or illegal means for obtaining a valuable thing, or pecuniary advantage he companymits an offence as companytemplated by s.5 1 d . It need number further be proved that he abused his position as a public servant. We may refer to the previous decisions of this, Court relating to the interpretation of s.5 1 d of the Corruption Act. In Dhaneshwar Narain Saxena v. Delhi Administration 1 Saxena, who was an Upper Division Clerk, was approached by one Ram Narain, a fireman serving in the Delhi Fire Brigade, for assistance in obtaining a license for a double barreled shot gun which was, in fact obtained. Saxena was paid certain amount and promise was made to pay him more. Ram Narain had made a false declaration with regard to his salary in the application for the license. His allegation was that he had done so on the advice of Saxena. As Ram Narains license had been cancelled it was alleged thathe again approached Saxena who demanded some amounts for helping him in the matter of restoration of the license. Ultimately a trap was laid and Saxena was caught while the money was being handed over to him. The main argument in this case centered on the question whether Saxena had companymitted any misconduct in the discharge of his duty. Overruling the earlier decision of this Court in the State of Ajmer v. Shivji Lal 2 it was held that it was number necessary to companystitute the offence under clause d of s. 5 1 that the public servant must do some thing in companynection with his own duty and there by obtain any valuable thing or pecuniary advantage. It observed that it was equally wrong to say that if a public servant were to take money from a third person by companyrupt or illegal means or otherwise abusing his official Position in order to companyrupt some other public servant without there being any question of his misconducting, himself in the discharge of his own duty he has number companymitted an offence under s. 5 1 d . It is also erroneous to hold that the essence of an offence under s. 5 2 read with s. 5 1 d is that the public servant should do some thing in the discharge of his own duty and thereby obtain valuable thing or pecuniary advantage. No such question was argued or decided in that case whether for the companymission of an offence under s. 5 1 d abuse of position as a public servant was of the essence or the essential ingredient of the offence. It is numbereworthy that the High Court had, on. the evidence produced by the prosecution, companye to the companyclusion that Saxena taking advantage of his own position as an employee in the Chief Commissioners Office and Ram Narains ignorance and anxiety to get the license, had induced him to part with the money on 1 1962 3 S.C.R. 259. 2 1959 Suppl. 2 S.C.R. 739. the promise that he would get the license restored. It appears, therefore, that it was in that background that the decision of this Court was given. The case of M. Narayanan Nambiar v. State of Kerala was clearly one in which there had been abuse by a Government servant of his. position as a public servant. The companyrt referred to the preamble which indicates that the Corruption Act was passed as it was expedient to make more effective provisions for the prevention of bribery and companyruption by public servants. The addition of the word companyruption showed that the legislation was intended to companybat other evils in addition to bribery. The argument on behalf of the accused in that case proceeded on the basis that clause d would take in only the case of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner prescribed herein and did number companyer the case of wrongful loss caused to the government by abuse of his power. While analysing s.5 1 d it was said Let us look at the clause by otherwise abusing the position of a public servant, for the argument mainly turns upon the said clause. The phraseology is very companyprehensive. It companyers acts done otherwise than by companyrupt or illegal means by an officer abusing his position. The gist of the offence under this clause is that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. Abuse means misuse i.e. using his position for something for which it is number intended. That abuse may be by companyrupt or illegal means or otherwise than those means. The word otherwise has wide companynotation and if numberlimitation is placed on it, the words companyrupt, illegal and otherwise mentioned in the clause become surplusage, for on that companystruction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes companyour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part. The companyrt entertained numberdoubt that every benefit obtained by the public servant for himself or for any other person by abusing his position as a public servant fell within the mischief of the said clause. Although in the above decision the question whether the words abusing his position as a public servant qualify the word Otherwise or also the words companyrupt or illegal means in s. 5 1 d 1 1963 Suppl. 2 S.C.R. 724. was number discussed directly, the observations made seem to indicate that the word Otherwise refers to means other than companyrupt or illegal by which a public servant may abuse his position. There are two ways of looking at the clause on is that the words companyrupt or illegal means stand by themselves and as soon as it is established that a public servant has by such means obtained any valuable thing or pecuniary advantage he will be guilty of the offence. The other way of reading this clause is by companyfining the words by otherwise to the means employed. Thus the means employed may be companyrupt or illegal or may be of such a nature as would savour of a dishonest act. But the abuse of position as a public servant would be essential whether the means are companyrupt or illegal or are of the nature companyered by the word otherwise. The analysis of clause d made in Narayanan Nambiars 1 case by Sabha Rao J. as he then was seems to lend support to the view, taken by the High Court that the abuse of position as a public servant is essential. The reasoning of the High Court proceeds on these lines. The second part of cl. d relating to the obtaining of the valuable thing etc. relates to the object of the public servant, namely, the obtaining of a bribe. The first part companycerns the manner of achieving that object. The manner is the use of means and use of position. As to the use of means the clause expressly mentions companyrupt or illegal but the legislature does number want to limit itself to these means only and so goes on to use the word otherwise. If the meaning to be given to the word otherwise is, as earlier stated, the words by companyrupt or illegal means or by otherwise form a single clause and do number form two clauses. If that is so the abuse of position as a public servant that is referred to is the abuse by companyrupt or illegal means or by otherwise. The High Court also relied on the analysis of s. 5 1 d companytained in Ram Krishna Another v The State of Delhi 2 , where it was pointed out that the offence created thereby is of four kinds. Bribery as defined in s.161 of the Indian Penal Code, if it is habitual, falls within clause a . Bribery of the kind specified in s. 1 65, if it is habitual, is companyprised in clause b Clause c companytemplates criminal breach of trust by a public servant. For that s. 405 of the Indian Penal Code has to be looked at. An argument was advanced in that case that clause d seems to create an independent offence distinct from simple bribery. This is what the companyrt observed-- In one sense, this is numberdoubt true but it does number follow that there is numberoverlapping of offences. We have primarily to look at the language employed and give effect to it. One class of cases might arise where companyrupt or illegal means are adopted or pursued by the public servant to gain for himself a pecuniary advantage-. 1 1963 Supp, 2 S.C.R. 724. 2 1956 S.C.R. 182. The word obtains on which much stress was laid does number eliminate the idea of acceptance of what is given or offered to be given, though it companynotes also an element of effort on the part of the receivers One may accept money, that if offered, or solicit payment of a bribe, or extort the bribe by threat or companyrcion in each case, lie obtains a pecuniary advantage by abusing his position as a public servant. Thus in clauses a , b and c the abuse of position as a public servant is clearly implied. Clause e also carries the same implication. It would, therefore, be reasonable to put on clause d a companystruction which is companysistent with the other clauses of the sub-section. According to the, High Court such a companystruction would also keep, the offence within the limitation and the object of the Act. The abuse of the position would be the necessary ingredient of the offence the abuse being either by companyrupt or illegal means or by other means of the nature mentioned in Narayanan Nambiars 1 case. Counsel for the State has. number been able to satisfy us that the various reasons given by the High Court as also the observations made in the previous judgments of this Court are number sufficient to sustain the companystruction or interpretation of s. 5 1 d which companymended itself to the High Court. As Dwivedi was number a public servant when he was acting as an examiner it companyld number be said that there had been any abuse by him of his position as a public servant. It was never the case of the prosecution that he had been guilty of any abuse of his position as a lecturer of the Government College. If Dwivedi was number guilty, Thakkar companyld number be held to be guilty of the offences with which he was charged.

Case appeal was rejected by the Supreme Court

Jaganmohan Reddy, J. Of the 26 accused charged with offences under Sections 307/149, 304/34, 147, 148 and 379, the Trial Court acquitted 24 accused but companyvicted Nanhku Singh, A-1 and Lalita Singh, A-2 under Section 307 and sentenced the former to 7 years rigorous imprisonment and the latter to 5 years rigorous imprisonment. In appeal the High Court companyfirmed the companyviction of both the accused but under Section 307 read with Section 34 and reduced the sentences to be undergone by each by them to 3 years rigorous imprisonment. This Court granted Special leave only to Nanhku Singh and rejected the petition of Lalita Singh for default of surrender. According to the prosecution case, on November, 17, 1964 at about one Pahar after sun-rise, about 7 or 8 A.M. Nanhku Singh, Mohan Singh, A-3 who had each a gun, along with accused Nos. 4 to 26 who were armed with ballams, Garashas and lathis came to the field of Indradeo Singh, PW 12 and were alleged to be engaged in cutting the peddy crop in that field. On seeing this, Indradeo Singh along with Chait Ahir, PW 8 and others went there and when Indradeo Singh protested at the High handedness of the accused there was an altercation between him and the party of the accused whereupon Nanhku Singh shot Indradeo Singh - This was followed by Mohan Singh also firing at Indradeosingh. Indradeosingh was injured after which he fell down in the field of sumersingh situated in the numberth of his own field separated by a small plot of Jamus Singh and water nala. After Indradeo Singh fell down, Chait Ahir went to his rescue and wanted to lift him but Lalita Singh fired and caused him injuries On hearing these gun shots some nearly persons came there when the accused ran away alter taking the harvested paddy. Dina Nath, PW 21 who was cutting his paddy crop in the field situated near Indradeo Singhs field, on hearing the gun shots came to the scene and witnessed the shooting of Chait Ahir. He placed Indradeo Singh on a company and he along with others took him to the Police Station, about 8 miles away. There about 2 p.m. Dina Nath lodged a first information Report because Indradeo Singh was number fully companyscious and was unable to speak. The injured persons were then sent to the Durgawati Hospital for their medical examination where they were attended by Doctor Aggarwal. It appears from the evidence that there was enmity between the father of the appellant Ambika Singh and Indradeo Singh, PW 12, Chait Ahir, PW 8, Dina Nath, PW 11, Mushan Pandey PW 7. Ambika Singh initiated proceedings under Section 107, Cr.P.C. against Bilar Ahir PW 3, Mushan Pandey, PW 7, Chait Ahir, PW 8, Dina Nath, PW 11 and Indradeo Singh, PW 12. It also appears that in a case brought against PW 3 by Ghureher Gareri, accused Mohan Singh and Ambika Singh had given evidence and though he was companyvicted by the Trial Court, the Appellate Court acquitted him. In view of the admitted ill feelings between Ambika Singh Mohan Singh some of the witnesses including Indradeo Singh and Chait Ahir, the evidence of the eye witness has to be scrutinised carefully. Both the Trial Court as well as the Appellate Court were aware of the need to exercise caution and after weighing the evidence carefully and giving the utmost benefit to the accused numberetheless came to the companyclusion that the offence against both the appellant and the other accused had been established. This Court does number ordinarily interfere with the findings arrived at on an appreciation of evidence by the High Court particularly when it affirms the finding of the Trial Court unless the companyclusions arrived at cannot be supported by the evidence or that it is perverse. We do number think this is a case of that kind where our interference is called for. Of the witnesses who spoke about the incident, the most important are Indradeo Singh and Chait Ahir both of whom were injured by gun shot. Bilar Ahir, PW 3, Bikram Singh, PW 5, Mushan Pandey, PW 7 and Dinanath, PW 11 are the other witnesses who were near about the place of the incident. We have already pointed out that P.W. 3 Bilar Ahir, P.W. 7 Mushan Pandey and P.W. 11, Dina Nath had been earlier involved in a case filed by the Ambika Singh, the father of the Appellant. Bilar Ahir, P.W. 3 who, while going to harvest the paddy crops, passed Indradeo Singhs field, heard a hulla and saw many persons variously armed standing in the field of Indradeo Singh. Some of them were cutting the paddy crop and the remaining were standing on the ridge, On the instigation of Ambika Singh, the Appellant, opened fire from his gun which hit Indradeo Singh and he fell down. Chait Ahir went to pick up Indradeo Singh but Lalita Singh opened fire from his gun which hit Chait Ahir. As the witness had number involved Mohan Singh, he was acquitted. In view of the admission of the witness that he was involved by Ambika Singh along with others in proceeding under Section 107, Cr.P.C. and also as he had number involved Mohan Singh the High Court observed that he has been the only witness to speak about the occurrance, perhaps, his version about the accused persons would number have been accepted. While so observing the High Court however said that there was ample companyroboration of evidence of the witness which can be got from other witnesses. These observations show how cautious the High Court was in weighing the oral testimony of the witnesses against whom there may be doubt that they were being motivated by enmity or hostility to involve innocent persons. It appears to us that there are two circumstances which lend weight to the evidence of P.W. 3. Firstly, that though in the theft case filed by Ghurehar Gareri against Bilar Ahir P.W. 3 Mohan Singh had given, evidence on behalf of the prosecution by reason of which Bilar Ahir was companyvicted, he did number involve Mohan Singh at all. If motive had played a part in the testimony of p.w. 3 one would have expected him to have implicated Mohan Singh. Secondly, P.W. 3 says that after Indradeo Singh received gun shot injury, he went and fell down at the ridge Sumer Singhs field on the numberthern and of Baha. This statement was companyroborated by the discovery of the investigating Officer of blood stains at the place where Indradeo Singh is said to have fallen down. P.W. 5 Bikram Singh was number companysidered by the High Court to be an eye witness because according to him it was only after he had heard a gun shot that he went to the filed by which time Nankhu Singh had already fired and injured him. He companyld number, therefore, have seen Nanhku Singh or Mohan Singh shooting Indradeo Singh. Even otherwise as pointed out by the High Court he did number figure as an eye witness during the investigation by the Police. This witness had numberenmity with any of the accused and though there is a tendency to exaggerate, it cannot be gainsaid that the witness must have seen these persons with guns in their hands even though that part of the evidence that he saw Mohan Singh firing at Indradeosingh cannot be accepted. The evidence of Mushan Panday, P.W. 7 does number show that he was present when Indradeo Singh was shot at because even on his own admission he was in his house when he heard a hulla and gun fire. It was only after inderadeo Singh was shot that he came and speaks only of seeing Lalita Singh firing at Chait Ahir. According to the witness Lalita Singh had fired at Indradeo Singh but It hit Chait Ahir and Indradeo Singh both. The possibility of his having seen the later part of the incidence viz. firing by Lalita Singh cannot be ruled out. When a person fires at a place where as here there are two persons one witness may think that it is fired at one person and the other may think that it was fired at the other. Merely because the inference drawn by one witness which may number fit in with the inference drawn by the other the factum of the firing at the place where the injured persons were cannot be rejected. It cannot be held that the witness is a Her and he wanted to falsely implicate the appellant and Lalita Singh. Even the injured person Chait Ahir does number seem to go out of his way to implicate the appellant. But in so far as the person who fired at him is companycerned, he has number hesitated to implicate them. There is numberhing to show that he had any enmity with Lalitasingh. The evidence of P.W. 11, Dina Nath was accepted by the High Court which did number find any reason to discard his testimony. At the time of the incident, Dina Nath was having paddy harvested and has seen how when the appellant and others had companye to harvest the paddy crops of Indradeo Singh. Indradeo Singh, Singh protested and Nanhku Singh fired at him. Lalita Singh had fired at Chait Ahir. No doubt P.W. 11 must have entertained ill feelings towards Ambika singh, the father of the appellant, which might furnish a motive for him to depose against Ambika singh, but there was numberreason why he should have falsely implicated and given a prominent part to the appellant against whom he has numberdirect enmity. Even if it is assumed that because of the enmity with Ambika Singh he would involve his son, surely the most important part such as firing at Indradeo Singh companyld number have been given to the son because at the time when the F.I.R. was lodged, there was numbercertainty that the injury to indradeo Singh would number turn out to be fetal. A reference to the F.I.R. shows that P.W. 11 had number in fact said that Ambika had instigated his son to shoot as was spoken to subsequently by some of the witnesses. The learned Advocate for the appellant has sought to companytend that on the same evidence Mohan Singh was acquitted by the Trial Court and that benefit should have also given to the appellant and the other accused. This submission does number take into account that there was numberappeal against acquittal of Mohan Singh and the High Court was number called upon to make an appreciation of the evidence on the relative culpability of the two accused. Some companytradictions were sought to be pointed out in the statement as given in the First Information Report and in the evidence of the witness P.W. 11 but we do number think it is open to the learned advocate to companyment upon it because numbere of those companytradictions have been put to the witness at the time of his giving evidence. According to the F.I.R. it would appear that Indradeo Singh accompanied by Chait Ahir, Vikrama Singh, Musan Pandey, Billar Ahir and Mongru Ahir resident of the village went there and forbade the accused persons from cutting paddy crops from his field, but the accused persons did number listen to them. Indradeo Singh made many entreats requested them number to companymit such high handedness number did he say Indradeo Singh fell in the field of Sumer Singh. In the first place it may be numbericed that F.I.R. is number a substantial piece of evidence. It is an information of a companynizable offence given under Section 154 of the Criminal Procedure Code and if there is any statement made therein it can only be used for the purposes of companytradicting and discrediting a witness under Section 145 of the Evidence Act. In the second place the statement given by the informant need number necessarily be an eye witness account of what he has actually seen. There were others who had gone along with him who companyld have furnished him with information as to what transpired in so far as it was in their knowledge. If these aspects had been put to P.W. 11, he would have had an opportunity of explaining the statement made in the F.I.R. but since that opportunity was number given, any companyment based on the statement given by P.W. 11 in the F.I.R. would be without effect. It is also submitted by the learned Advocate that Indradeo Singh companyld have given a statement to the Police but did number do so till after about 12 days which only shows that the case against his clients was fabricated. We do number think there is any validity in this submission because the investigating Officer Rang Nath Prasad, P.W. 13 who was posted as an Officer incharge, Durgawati Police Station on the day of the occurrence at 2 P.M. and had recorded the F.I.R, says that he companyld number record the statement of Indradeo Singh because he was in pain and companyld number speak. Nothing was suggested in cross-examination that this was number so, number was the Doctor, Aggarwal, asked whether Indradeo Singh was in a position to speak when he first saw him on his admission to the hospital. The evidence of P.W. 13 is companyroborated by the fact that there was a punctured wound on the left prominence of the cheek 8/10 x 1/2 with everted and irregular edges and another wound of 1/2 x 1/10 x 1/2 situated 1/5 below the right lobule of the ear. These injuries can well have made it difficult for him to speak.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 253 of 1968. Appeal by special leave from the judgment and Order dated April 12, 1968 of the Allahabad High Court in Criminal Govt. Appeal No. 13 of 1965 and Criminal Govt. Appeal No. 10 of 1966. P. Maheshwari and Sobhagmal Jain, for the appellant. P. Rana, for the respondent. The Judgment of the Court was delivered by Mathew, J. This appeal , by special leave, is against a judgment of the High Court of Allahabad by which it restored the order of the Magistrate companyvicting the appellant of an offence under section 16 read with section 7. of the Prevention of Food Adulteration Act Act 37 of 1954 , hereinafter called the Act, and sentencing him to undergo one years rigorous imprisonment and pay a fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of six months, after reversing the order passed by the Sessions Judge in appeal acquitting him of the offence. On June 13, 1963, Head Constable Baboo Khan was on patrol duty. He happened to companye to the Chakki of one Abdul Razaaq. There he found a heap of Shakkar and some labourers mixing Shelkhari in it with spades. He went to the police station to inform the Station Officer about it but the Station Officer was number there. He then met the Sanitary Inspector and informed him about what he, saw at the Chakki. The Sanitary Inspector accompanied by the Food Inspector proceeded to the Chakki and there, they found the labourers mixing Shelkhari with Shakkar. The stock of Shakkar belonged to the appellant. The Food Inspector purchased 1- 1/2 seers of Shakkar from the appellant by way of sample after paying its price. He divided the sample into three parts, gave one to the appellant and retained the other two with him. One of the samples retained was sent to the Public Analyst for examination. The Analyst found, in his report dated July 11, 1963, that the Shakkar companytained 2.4 moisture, 72.7 total sugar, 64.7 sucrose, 17 extraneous matter insoluble in water. According to him the extraneous matter insoluble in water, total ash and ash insoluble in Hydrochloric acid exceeded by 15,O, 10.1 and 13.3 respectively as against the maximum prescribed standards of 2.0, 6.0 and O.5 respectively. On the basis of a companyplaint filed by the Food Inspector of the Municipal Board, Saharanpur, the Magistrate who tried the ap- pellant for an offence under section 16 read with section 7 of the Act came to the companyclusion that the appellant had stored the Shakkar for sale, that it was adulterated and that he was guilty of the offence and companyvicted and sentenced him as aforesaid. The appellant filed an appeal against the order before the Sessions Judge. The Sessions Judge acquitted him of the offence for the reason that the prosecution had numberproved that the Shakkar stored by the appellant was for sale.He said that the appellant was mixing extraneous matter with the Shakkar for companyverting it into Rab and as such it cannotbe said that the Shakkar was stored for sale by the appellant.He also said that numberstandard of quality was prescribed by therules framed under the Act for Shakkar, that as an article of food, Shakkar was neither gur number Jaggery and that the sale of Shakkar to the Food Inspector by the appellant was under duress and was number a sale in the eye of the law. The Municipal Board filed an appeal against the order to the High Court. The High Court held that Shakkar is same as jaggery, that standard of quality has been prescribed by the rules framed under the Act for jaggery, that the Shakkar in question was adulterated, that the sample purchased by the Food Inspector for the purpose of analysis amounted to sale within the meaning of section 2 xiii of the Act, that Food Inspector had power under the Act to get the sample even if the Shakkar was stored for being manufactured into Rab and number for sale and restored the order of the Magistrate companyvicting and sentencing the appellant as aforesaid. The first companytention on behalf of the appellant was that Shakkar is number jaggery, and since numberstandard of quality has been prescribed for Shakkar under the rules formed under the Act, the Shakkar was number adulterated. We find it difficult to accept the companytention that Shakkar is number Jaggery. Para A.07.05 of Appendix B of the Rules reads Gur or jaggery means the product obtained by boiling or processing juice pressed out of sugar cane or extracted from palmyra palm, date palm or companyonut palm. It shall be free from substances deleterious to health and shall companyform to the following analytical standards on dry weight basis total sugars number less than 90 per cent and sucrose number less than 70 per cent. extraneous matter insoluble in water number more than 2 per cent. 3 5 3 total ash number more than 6 per cent. ash insoluble in hydrochloric acid HCI number more than O.5 per cent. Gur or jaggery other than that of the liquid or semi-liquid variety shall number companytain more than 10 per cent moisture. It is number disputed that Shakkar is a product obtained by boiling or processing juice pressed from out of sugarcane, and therefore, it is clear that Shakkar is jaggery. But companynsel for the appellant submitted that Appendix B of the Rules does number define jaggery but only gives the description of what jaggery is and it cannot, therefore, be said that jaggery would companyprehend all the varieties of products obtained by boiling or processing juice pressed out of sugarcane. In other words, companynsel said that Appendix B to the Rules only describes what jaggery or gur is and that it does number define what jaggery or gur is. We are unable to accept the companytention for the reason that jaggery or gur is defined as any product obtained by boiling or processing juice pressed out of sugarcane and so any product so obtained would be companyprehend within the definition. Quite apart from this, we find in Chambers Twentieth Century Dictionary Revised Edition the meaning of jaggery as A companyrse dark sugar made from palm sap or otherwise. Hindi-Shakkar Sanskrit-Sarkara . It is, therefore, clear that Shakkar is jaggery and the finding of the High Court, on the basis of the report of the Analyst, that the Shakkar has number companyformed to the standard of quality prescribed for jaggery and, therefore, the food was adulterated, was companyrect and has to be maintained. The second companytention on behalf of the appellant was that he had kept the Shakkar for manufacturing Rab out of it. The companytention, in other words, is that he had number kept the Shakkar for sale but kept it for manufacturing Rab out of it and, therefore, the companyviction under section 16 read with section 7 of the Act was bad. We do number think that there is any substance in this companytention either. Section 7 of the Act, in so far as it is material, Provides No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute- any adulterated food Section 16, which imposes the punishment, in so far as it is relevant, says 16 1 If any person- a whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food- which is adulterated or misbranded or the sale of which is prohibited by the Food Health authority in the interest of public health The finding of the High Court is that the Shakkar was kept by the appellant for the purpose of sale and number for the purpose of manufacturing Rab out of it and that the attempt of the appellant was to sell the Shakkar as an article, of food after mixing Shelkhari with it. We see numberreason to think that the finding was wrong. But assuming that the finding was wrong and that the appellant kept the Shakkar was for sale but for manufacturing Rab out of it, what follows ? If Shakkar is an article of food, it does number matter whether the appellant kept it for sale, or for manufacturing Rab out of it, provided the appellant has sold it. Arid a sale to the Food Inspector is a sale for the purpose of section 16 of the Act. In The Food Inspector, Calicut Corporation v. Charukattil Gapalan and another , this Court held that, if any articles of food are sold by any person, whether he be a dealer in them or number, and if the food is adulterated, he is liable to be companyvicted under section 16 read with section 7 of the Act. The respondents before this Court in that case were the manager and owner of a tea stall. The case against them was that they sold 600 grains of sugar to the appellant, the Food Inspector, for analysis and that the sugar was adulterated. The respondents pleaded that the sugar was number sold as such in the tea stall and was only used for preparing tea which alone was sold. The plea was accepted by the District Magistrate and the respondents were acquitted. The acquittal was companyfirmed by the High Court. In appeal to this Court by the Food Inspector, one of the arguments for the respondents, was that they were number dealers in sugar and the sugar was number kept for sale and so they cannot be companyvicted under section 16 read with section 7 of the Act. The Court held, inter-alia, that sale to a Food Inspector is a sale for the purpose of section 16 of the Act, that the article of food sold to the Food Inspector need number have been taken from a larger quantity kept for sale, and that the person by whom the article of food was sold to the Food Inspector need number be a dealer as such in the article. 1 1971 2 S.C.C.322. In that case it was assumed by this Court that the sugar was adulterated. Whether it was adulterated or number as a matter of fact, this Court proceeded on the assumption that it was adulterated. it that be so, we see numberreason to doubt the companyrectness of the ratio of the case. We think the High Court was right in its companyclusion.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 236 of 1969. Appeal by special leave from the judgment and Order dated March 13, 1969 of the Madhya Pradesh High Court in Miscella- neous Criminal Case No. 268 of 1967. Ram Punjwani and P. C. Bhartari, for the appellant. P. Kapur and I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Mitter J., This appeal by special from a judgment and order of the High Court of Madhya, Pradesh dismissing the writ petition of the appellant challenging the, order of the State Government under s. 5 of the Criminal Law Amendment Act Act XXIII of 1961 forfeiting the companyies of a book published by the appellant under S. 4 1 of the Act, can be disposed of on the short ground that the order did number- disclose the grounds of the opinion formed by the State Government. The Criminal Law Amendment Act, 1961 hereinafter referred to as the Act empowered the State Governments by s. 4 to make order declaring any newspaper or book as defined in the Press and Registration of Books Act, 1867 or any other document wherever printed, to be forfeited to the Government if it appeared to the Government that the said book etc. questioned the territorial integrity or frontiers of India in a manner which was or was likely to be prejudicial to the interests of the safety or security of India. The relevant provisions of the Act are as follows - S. 2. Whoever by words either spoken or written, or by signs, or by visible representation or otherwise, questions the territorial integrity or frontiers of India in a manner which is, or is likely to be prejudicial to the interests of the safety or security of India, shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. 4. 1 Where any newspaper or book as defined in the Press and Registration of Books Act, 1867, or an other document, wherever printed, appears to the State Government to companytain an matter the publication of which Is punishable under section 2 or sub-section 2 of section 3, the State Government may, by numberification in the Official Gazette, stating the grounds of its opinion, declare every companyy of the issue of the newspaper companytaining such matter and every companyy of such book or other document to be forfeited to the Government, and thereupon any police officer may seize the same wherever found and any Magistrate may, by warrant authorise any police officer number below the rank of Sub-Inspector to enter upon and search for the same in any premises where any companyy of such issue or any companyy of such book or other document may be or may be reasonably suspected to be. 5. 1 Any person having any interest in any news book or other document in respect of which an forfeiture has been made under section 4 may, within two months from the date of such order, apply to the High Court to set aside such order on the ground that the issue of the newspaper, or the book or other document in respect of which the order was made did number companytain any matter of such a nature as is referred to in sub- section 1 of section 4. The provisions of sections 99-C to 99-F of the Code of Criminal Procedure, 1898, shall apply in relation to an application under sub- section 1 as they apply in relation to an application under section 99-B of that Code and the reference in section 99-D to seditious or other matter of such a nature as is referred to in subsection 1 of section 99-A of that Code shall be companystrued as reference to any matter of such a nature as is referred to in sub-section 1 of section 4 of this Act. No order passed or action taken under section 4 shall be called in question in any Court otherwise than in accordance with the provisions of this section. The appellant who was admittedly the proprietor of the Narmada Printing Works, Jabalpur had published a book under the name and style of Madhyamic Bhoogol Part I for Classes IX and X written by C. P. Saxena. On 1St July, 1967 the State Government passed the order which is impugned in this case Whereas the books specified in the Schedule below question the territorial integrity and frontiers of India in a manner which is likely to be prejudicial to the interest of the safety and security of India And whereas it appears to the State Government that the said three books companytain matter the publication of which is punishable under section 2 of the Criminal Law Amendment Act, 1961 No. 23 of 1961 Now therefore in exercise of the powers companyferred by, sub-section 1 of section 4 of the Act, the State Government hereby declares every companyy of the said three books and all other documents companytaining companyies, reprint and repro duction of the said books to be forfeited in favour of the Government. The second item in the Schedule relates to the appellants publication From the companymunication of the Deputy Secretary to the Government of Madhya Pradesh dated 5th August 1967 it would appear that the State Government took objection to pages 138, 147 and 149 of the said book as companytaining wrong maps. According, to the said companymunication These books companytain maps of India, part of India, maps of companyntries adjacent to India and maps of Asia. All these maps involve the external boundary of India which has been found to be grossly incorrect. Besides this, the island territories of Laccadive, Minicoy and Amindivi Islands which form an integral part of India are omitted together from every map of India. In some of the maps the territory of Bhutan has been omitted while in other Indo-Pakistan boundary is ignored. The companymunication refers number only to the publication with which we are companycerned in this case but also two other publications both of which appear to be books on geography- for school students. The appellant filed his writ petition on August 29, 1967 before High Court challenging the order of the 1st July 1967 inter alia on the ground That the grounds for the opinion of the State Government which had to be given in terms of s. 4 of the Act were number-existent in the order. He therefore filed the petition, within two months of the date of the order forfeiting the book in terms of s. 5 of the Act. In the companynter affidavit of the State the stand taken was that the State Government was number bound to place details of information on the basis of which its satisfaction was arrived at. Reference was however made in the companynter affidavit to a companymunication of the Director of Map Publications to the Director of Public Instruction dated 21st March 1967 in which it was stated with regard to all the three alleged offending books that they companytain maps of India, part of India, maps of companyntries adjacent to India and maps of Asia. All these maps involve the external boundary of India which has been found to be grossly incorrect. Besides this, the island territories of Laccadive, Minicoy and Amindivi islands which form an integral part of India are omitted together from every map of India. In some of the maps the territory of Bhutan has been omitted while in other Indo-Pakistan boundary is ignored. The High Court of Madhya Pradesh took the view that the impugned order companyld number be said to have omitted to state the grounds for the opinion of the State Government. According to the High Court the grounds on which the said opinion was based were that the books companytained matter which questions the territorial integrity and frontiers of India in a manner which is likely to be prejudicial to the interest of the safety and security of India. 8-L1286SupCI/72 In our view the High Court had clearly gone wrong in this view of the law on the subject. According to the Oxford Dictionary the meaning of the word ground, in this companynection must be base, foundation, motive, valid reason. what the State Government did in this case in the opening paragraph of the order was merely to quote a portion of the words of s. 2 namely, that the books questioned the territorial integrity and frontiers of India in a manner which is likely to be prejudicial to the interest of the safety or security of India. The order gives numberindication of the facts or the statements or the representations companytained in the book which according to the State Government offended s. 2. In the order itself there is numberreference to any map or any text in the book which would companye within the mischief of the said section. A book may companytain matter questioning the territorial integrity and frontiers of India in many ways one of which may be a wrong map which does number show the proper boundaries of India, either by omitting a portion of the Indian territory therefrom or by depicting a portion of what is really Indian territory as belonging to some other State. A book may also companye within the mischief of s. 2 if there is any express reference in the text companytaining suggestions based on historical or political or other reasons that some portion of what is generally known to the public as Indian territory is number so. There is a companysiderable body of statutory provisions which enable the State to curtail the liberty of the subject in the interest of the security of the State or forfeit books and documents when in the opinion of the Government, they promote class hatred, religious intolerance, disaffection against the State etc. In all such cases, instances of some whereof are given below the State Government has to give the grounds of its opinion. Clearly the grounds must be distinguished from the opinion. Grounds of the opinion must mean the companyclusion of facts on which the opinion is based. There can be numberconclusion of fact which has numberreference to or is number ex facie based on any fact. The provisions of the Act have a close parallel in s. 99-A of the Code of Criminal Procedure, 1898 in which a large number of matters are mentioned which according to the Government may lead it to form the opinion that the publication offended the said section. There are also decisions under the Indian Press Act which illustrate what the grounds in a case like this must be. In re. Mahomed Ali 1 , a case of an order of forfeiture of a pamphlet under the Press Act of 1910, the order of Government went to show that the pamphlet Come over to Macedonia and help us companytained words of the nature described in s. 4 sub-s. 1 of the 1 41 Calcutta 466. Indian Press Act, 19 1 0 inasmuch as they are likely to bring into hatred or companytempt certain classes of His Majestys subjects in British India. According to Jenkins J. p. 476 Those responsible for this Act foresaw this, and so they specifically provided that the forfeiting numberification should state the grounds of the Local Governments opinion. But when we turn to the numberification numbersuch grounds are stated numberhing in the nature of a fact is set forth, there is merely a citation of those words of the section which are invoked But the repetition of an opinion cannot be its grounds, and yet that is all that the numberification furnishes in the shape of grounds. This is obviously insufficient and number a companypliance with the terms of the Act. According to the other learned Judge Stephen, J. p. 487 The ground of an opinion must in this case, if number always, be a fact or facts, and numberfact is disclosed merely by a specific relation of the elements that the law requires to be present in order for legal companysequence to follow. In Arun Ranjan Ghose v. State of West Bengal 1 a case under ss. 99-A and 99-D of the Code of Criminal Procedure it was stated by Chakravartti, C.J. p. 497 It is useful to companysider here what is meant by grounds of opinion. The formation of an opinion by Government is undoubtedly the ground for the action taken by them, but the grounds for the opinion are obviously different. The opinion, after it has been formed, furnishes a ground to Government for taking action companytemplated, but the grounds on which the opinion itself is formed are and must be other grounds Those grounds must necessarily be the import or the effect or the tendency of matters companytained in the offending publication, either as a whole or in portions of it, as illustrated by passages which Government may choose. In Harnam Das v. State of Uttar Pradesh 2 the order under s. 99-A of the Code of Criminal Procedure which was made went to show that the State Government declared the books forfeited on the ground that the said books companytained matter the publication of which was Punishable under s. 153--A and 295-A of the Penal Code. The two sections of the Indian Penal Code have little in companymon inasmuch as s. 153-A relates to an offence of 1 59 C. W.N. 495. 2 1962 2 S.C.R. 487. promotion or attempt to promote feelings of enmity or hatred between different classes of citizens of India and s. 295-A relates to an offence maliciously intended to outrage he religious feelings of any such class by insulting the religion or the religious belief of that class. The order which was companysidered by the companyrt in that case gave numberindication which formed the reason for Government taking the view that the book should be forfeited. The Court held that the order did number as it should have stated the rounds of opinion. It is number known which companymunities were alienated from each other or whose religious beliefs were wounded. We may also refer to Art. 22 5 of the Constitution which lays down that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. In companysidering the question as to what the grounds of detention meant when an order under Preventive Detention Act was made this Court said in Naresh Chanra, Ganguli v. The State of West Bengal others 1 . . the grounds for making an order of detention, which have to be companymunicated to the detenu as soon as practicable, are companyclusions of facts, and those companyclusions of facts have to be companymunicated to the detenu as soon as may be. We may also refer to the judgment of this Court in State of Bombay v. Atma Ram Sridhar Vaidya 2 , a case under the Pre- ventive Detention Act, Kania C.J. said p. 178 By their very nature the grounds are companyclusions of facts and number a companyplete detailed recital of all the facts . . .

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 999 of 1966. Appeal by Special Leave from the judgment and order dated July 7, 1965 of the Mysore High Court in Regular Appeal No. 37 of 1958. N. Bhat, for the appellants. Rameshwor Nath and Swaranji Ahuja, for the respondents Nos. 1 to 6. The Judgment of the Court was delivered by Hegde J. This is an appeal by special leave. Defendants 34 and 35 in the suit are the appellants. The suit from which this appeal arises is a suit for partition under the Madras Aliyasantana. Act, 1949 Madras Act IX of 1949 which will hereinafter IV referred to as the Act . The two questions that arise for decision in this appeal are 1 whether under the, award decree Exh. A-2, the kutumba family , of the plaintiffs and the defendants stood partitioned and 2 if the answer to the first question is in the negative whether the said ,award decree companyes Within the scope of s. 36 6 of the Act. The plaintiffs and the defendants were governed by the aliyasantana law of inheritance. It is a matriarchal system of law. One Pammadi was the prepositor of the family. She had two daughters by name Pammakke and Dejappe and three sons viz. Kanthu Hegde, Monu Hegde and Manjappa Hegde. After the death of Pammadi, differences arose in the family. Hence all the major members of the family excepting one Brahamiah referred those disputes to the arbitration of four arbitrators by means of a mutdhallika dated December 14, 1886. By the time this mutchallika was executed, two of the sons of Pamadi, Kanthu Hegde and Monu Hegde had died. At that time, in the kutumba there were only two santhathi kavaru viz. Pammakke and Dejappe and one nissanthathi kavaru namely Manjappa Hegde in existence reference to santhathi kavaru and nissanthathi kavaru is as defined in the Act . The arbitrators divided the kutumba properties into two parts one part was allotted to the share of Pammakkes Kavaru and the other part to Dejappes Kavaru and Manjappa Hegde. Manjappa Hegde was clubbed alongwith the kavaru of Dejappe reference to kavaru is as defined in the Act . On June 14, 1953, all the members of the kavaru of Pammakke brought a suit for partition of the suit properties under s. 35 of the Act. The appellants and some other members of the kavaru of Dejappe resisted the suit mainly On the ground that the kutumba had been partitioned under Ex. A-2. They companytended that, the said document either evidences a partition or at any rate the, arrangement made thereunder is a deemed Partition companying within the scope of s. 36 6 of the Act. The trial companyrt came to the companyclusion on that under the Award in question the. kutumba properties were partitioned. Alternatively it held that Ex. A-2 is companyered by s. 36 6 . In appeal a Division Bench of the High Court of, Mysore reversed the judgment and decree of the trial companyrt. It held that Ex. A-2 does number evidence a partition. It, further came to the companyclusion that the same is number companyered by s. 16 6 as Ex. A-2 was an award decree and number a mere award. Dissatisfied with the judgment of the High Court, defendants 34 and 35 have brought this appeal. The findings of the High Court as regards the true nature of Ex. A-2 were challenged before us on behalf of the appellants by Mr. K. N. Bhatt. Before proceeding to companysider the companytentions of the parties, it is necessary to refer, in brief, to the customary aliyasantana law. Under that law inheritance is traced through the female line. Under that law, as interpreted by companyrts partition was impermissible except with the companysent of all the adult members of the family. The senior most member of the family be it a male or a female was a Yejman or Yejmanthi of the family. With the passage of time, the members of the aliyasantana kutumbas increased and kutumbas became unwieldy and joint living became intolerable. In order to mitigate these difficulties, three types of arrangements came to be made, in those kutumbas. By and large the Yejman or Yejmanthi of the family made maintenance allotments maintenance under the aliyasantana is a mode of participation in the family properties . This, type of arrangement was purely temporary in character. It was open to the Yejman or Yejmanthi to resume the properties allotted for maintenance to the junior members and make alternative arrangements for their maintenance. Another type of arrangement that came to be made was permanent arrangement for maintenance. This was ordinarily done, on kavaru basis. Under this arrangement, jointness of the family was kept intact but arrangement was made for separate living and separate management of kutumba properties on a permanent basis. Such arrangements ordinarily were number capable of being disturbed except with the companysent of all the adult members of the kutumba. Lastly there are few cases of partition with the companysent or companycurrence of all the adult members of the kutumba. Hence when the Act came into force in addition to joint living by the members of kutumbas as, aforementioned types of arrangements were in existence in various kutumbas. Under S. 35 of the Act power was given to avarus, santhsthi or nissanthathi to claim at partition but those permanent arrangements which came within the scope of S. 36 6 were deemed to be partitions despite the fact that under those arrangements the jointness of the kutumba was kept intact. In Gummanna Shetty and ors. v. Nagaveniamma 1 , this Court while dealing with an arrangement in a aliyasantana family entered into in the year 1900 observed In 1900, when this deed was executed, one or more members of a joint family governed by the Aliyasanthana law of inheritance had numberright to claim partition of the joint family properties but by a family arrangement entered into with the, companysent of all its members, the properties companyld be divided and separately enjoyed. In such families, an arrangement for separate, possession and enjoyment without actual disruption of the family was companymon. An arrangement for separate enjoyment did 1 1967 3 S.C.R. 932. number effect a disruption of the family, unless it companypletely extinguished the companymunity of interest in the family properties. Analysing the scope of s. 36 6 , this Court, approving the decision of the Madras High Court in Kaveri v. Ganga Ratna 1 held that the following, companyditions should be satisfied before a document can be companysidered as companying within the scope of s. 36 6 1. there is a registered family settlement or award 2. all the major members of the kutumba are parties to it 3. the whole of the kutumba properties have been or were intended or purport to have been distributed under it and 4. the, distribution is among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity. There is numberdifficulty about temporary arrangements for maintenance. These arrangements companyld number companye in the way of effecting partition in a kutumba. Similarly if the jointness of the kutumba had been disrupted, there is numberquestion of claiming any partition as there is numberkutumba in existence. The application of s. 36 6 arises only when the case does number fall either under the first category or the second. In companystruing karars agreements evidencing permanent arrangements, we must bear in mind the ordinary principles of companystruction of documents. The first is that the whole document must be read and companystrued. The companyrt must have regard to the declared object of the document which is often companytained in the preamble but the title given to a document is number companyclusive. It is observed in Mr. Sundara Ayyars Malabar Law that arrangements for maintenance will number ordinarily be viewed as permanent arrangements though it is number impossible that there should be such arrangements. Divisions for enjoyment short of partition that are sometimes entered into are of this character. The characteristics of such documents were companysidered exhau- stively by Somayya, J. in Ammalu Amma v. Vasu Menon 2 Therein the learned judge observed No doubt it may number be companymon but if on a reading of the entire document, there are clauses which are entirely inconsistent with an out and out partition, the Courts are bound to companystrue the document as a maintenance arrangement even though it is stated to be a permanent arrangement. 1 1956 1, M.L.J. 98. A.I.R. 31 1944 Mad. 108. Bearing in mind the principles enunciated by a long chain of decisions, we shall first examine whether Ex. A-2 can be companysidered as a document affecting partition. In companysidering that question we have to primarily see whether in Ex. A-2, there are clauses which are entirely inconsistent with an out and out partition. Ex. A-2 came to be rendered on the strength of a mutchallika executed by most of the members of the kutumba in favour of three arbitrators on December 14, 1886, for slip 2 because of the dispute that had arisen in the family about the enjoyment of the kutumba properties. It is also clear from that mutchallika that some members of the family had serious companyplaints against the Yejman of the family, Adu Hegde. The mutchallika authorised the arbitrators to decide the disputes that had arisen in accordance with our Aliyasanthana Kattu, in a manner which you deem fit. Aliyasantana kattu i.e. Aliyasantana law of inheritance did number provide, as mentioned earlier, for companypulsory partition. The arbitrators undoubtedly came to the companyclusion that it was difficult for the large family to live together. It is also clear from the award that the parties had agreed to enjoy kutumba properties by living separately. They had also agreed for the separation vingada of the kutumba properties. As per the authority given to the arbitrators, the arbitrators were number required to divide kutumba properties on kavaru basis. They companyld have put together, some members of one kavaru with some members of another Kavaru. But the arbitrators thought that if the members of two Kavarus are mixed together, in future the properties would be spent, on account of mutual disputes existing between them, and that unless the responsibility of income and loss in the Kavaru is pinned on the Kavaru having more members, to some extent, all the members will number bestow labour properly. That was the reason why they divided the properties prima- rily between two kavarus. It is true that the arbitrators divided the family debts into two parts and each kavaru was asked to discharge the then existing debts from out of the income of the properties that were allotted to its shares. But at the same time Adu Hegde companytinued to be the Yejman of the entire kutumba. Members of each kavaru were prohibited from incurring debts on behalf of the kutumba. Further till the existing debts were discharged, the members of Pammakke kavaru were asked to show accounts in respect of their income and expenditure to Adull Hegde. Exh. A-2 further says that the members of the kutumba should live in different houses, by bestowing labour and without quarreling with each other as proper arrangements were made for the maintenance of the kutumba without disrupting its oneness. From this clause it is clear that the kutumba was number disrupted. The document further provides both the kavarus should together companyduct Havyas Kavyas and auspicious functions. The fore-going clauses clearly show that Ex. A-2 did number disrupt the kutumba though undoubtedly it made provision for the separate living of the Kavarus, and for the separate enjoyment of the properties allotted to them. For these reasons we are in agreement with the High Court that Ex. A- 2, does number evidence a partition. The terms of Ex. A-2 are number similar to those that came up for companysideration before the Madras High Court in Appa and ors . v. Kachai Bay van Kuti and ors. 1 or those that came up for decision by that High Court in Mudara and ors. v. Muthu Hengsu 2 . Each document has to be companystrued on its own terms. Tern-is of any two documents rarely, if at all are identical. Hence the companystruction placed on a particular document can hardly govern the companystruction of another document. There is numberdispute as regards the principles governing the companystruction of documents. This takes us to the question whether Ex. A-2 is companyered by s. 36 6 . That section reads A registered family, settlement by whatever name called or an award, to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, or purport to have been distributed, among, absolute enjoyment-in perpetuity, shall be deemed to be a partition of the kutumba properties numberwithstanding any terms to the companytrary in such settlement or award. Evidently the legislature wanted to deem certain deeds under which perpetual arrangement had been made in the past for the maintenance of all the kavarus of a kutumba as partitions. The requirements of s. 36 6 , have been laid down by this Court as seen earlier in Gummann Shettys case supra . Therefore all that we have to see is whether the tests laid down by this Court in that decision are satisfied. The High Court having companye to the companyclusion that the first test was number satisfied rejected the.conten- tion of the plaintiffs that the deed Ex. A-2 companyes within the scope of s. 36 6 . It came to the companyclusion that an award decree is number an award within the meaning of s. 36 6 . In arriving at that companyclusion, it relied on the decision of that Court in Parameshwari 3 . Hangsu and ors. v. Venkappa Shetty and ors. Parameshwari Hengsus case supra first came up for hearing before at Division Bench companysisting of Sadasivayya and Mir Iqbal Husain JJ. Sadasivayya J. held that the expression award in s. 36 6 does number take in an award decree. But lqbal Husain J. differed from that view and opined that the term award includes also an award dec- ree. In view of that difference of opinion, the question whether the expression award includes an award decree was referred to A.I.R. 1932 Mad. 689. 2 A.I.R. 1935 Mad. 33. 3 1961 Mys. L. J. 686. Somnath Iyer J. That learned judge agreed with the view taken by Sadasivayya J. The decision in Parameshwari Hengsus case supra , was binding on the bench which heard this case. Hence naturally that companytroversy was number again gone into by the High Court in this case. The learned companynsel for the appellants challenged the companyrectness of the decision of the Mysore High Court in Parameshwari Hengsus case supra . He companytended that the expression award in s. 36 6 includes also an award decree. lie urged that in the case of an award decree, the companyrt merely accepts the award made and makes it a decree of the companyrt and hence award decrees have also to be companysidered as awards for the purpose of s. 36 6 . In examining the companyrectness of the companyclusion reached by the Mysore High Court in Parameshwari Hengsus case supra , we must first examine the principle underlying s. 36 6 . As mentioned earlier, the legislature was evidently anxious number to disturb certain permanent arrangements made in the kutumbas either by means of any registered family settlements or by awards. That being the case one fails to understand why the legislature should be held to have excluded from the scope of s. 36 6 award decrees while bringing within its scope awards. Dealing with this aspect both Sadasivayya J. and Somnath Iyer J. opined that it is possible that with a view number to disturb finality resulting from a decree of whatever kind that the legislature intentionally refrained from referring, to decrees in sub-s. 6 thereby companyfining the scope of that sub-section only to the registered family settlements and awards expressly mentioned therein. If that be so, numbercourt would be justified in equating an award to the decree passed on it. This reasoning appears to us to be fallacious. It must be remembered the only decrees that companyld possibly have been included within the scope of s. 3 6 6 were award decrees. We have earlier numbericed that companypulsory partition was number permissible under the aliyasantana law. Hence there companyld number have been any partition decrees, number companyld there have been decree making permanent arrangements in the matter of enjoyment of kutumba properties in aliyasantana kutumbas. We can think of numberdecree regulating the affairs of kutumba which cannot be disturbed under the Act. We agree with those learned judges that the principle underlying s. 36 6 was number to disturb the finality of arrangements made. That very principle runs companynter to the reasoning adopted by those learned judges. If permanency of an arrangement is the principle underlying s. 36 6 that permanency should be available in a larger measure to an award decree. On the other hand if the view taken by those learned judges is companyrect, while s. 36 6 provides permanency for some awards, numbersuch permanency is available to any award decree. Parties companyld enforce partition ignoring award decres while they are bound by awards. This companyld hardly have been the intention of, the legislature. There is yet another companypelling reason number to accept the majority view in Parameshwari Henguss case supra . After the companyning into force of the Arbitration Act, 1940, all awards had to be companypulsorily made decrees of the companyrts if they were to have any force. The Act came into force in 1949. Many awards companying within the scope of s. 36 6 would have been made between 1940 and 1949. The legislature would number have denied to those awards the benefit of s. 36 6 . The basis of every award decree is an award. Evidently the legisla- ture by using the expression award intended to include both awards simpliciter as well as awards which had been made the decrees of companyrts. Whether we companysider the principle underlying s. 36 6 or the language of s. 36 6 , we see numberjustification to exclude award decrees from the scope of s. 36 6 . In our opinion Parameshwari Hengsus case supra in so far as it interpreted s, 36 6 has number been companyrectly decided. But that companyclusion of ours does number help the appellants. One of the companyditions that Ire necessary to be satisfied before a deed can be deemed to be a partition under s. 36 6 is that it must be shown that all the major members of the kutumba were parties to it. Admittedly Brahmiah did number join the mutchallika A-1 on the strength of which Ex. A-2, was rendered. In other words he was number a party to the award. But it was said on behalf of the appellants-the same view was taken by the learned trial judge-that Brahmiah had acquiesced in the arrangements made under Ex. A-2. A person by merely submitting to an arrangement made may be bound by the arrangement but thereby he does number become a party to the arrangement. Herein we are dealing with a deemed partition and number an actual partition. Before an arrangement can be deemed to, be a partition under s. 36 6 , all the companyditions prescribed under that provision should be fully satisfied. In such a case, substantial companypliance with the provision is number sufficient. As we are of the opinion that all the major members of the kutumba were number parties to Ex. A-2, it is number necessary to examine whether the remaining companyditions prescribed under s. 36 6 were satisfied. In the result this appeal fails and the same is dismissed. But in the circumstances of the case, we direct the parties to bear their own companyts in this Court.

Case appeal was rejected by the Supreme Court

Vaidialingam, J. This appeal, by special leave, is against the orders dated September 27, 1966 of the Industrial Court Madhya Pradesh, Indore, in Revisions Nos. 46 and 5/MPIR/66 reversing the order dated February 25, 1966 passed by the Presiding Officer, Labour Court, Ujjain, in case No. 17 of 1969 Labour. The appellant, at the material time, was an employee of the respondent Company and was working in its Coal and Bardana section as Coal Ash Supervisor. He was on duty on the morning of April 24, 1963. It was the duty of the appellant to sign and issue slips to the companytractors in order to enable the latters to remove companyl ash on donkeys outside the premises of the Company. As, according to the Company, some mal practice was suspected on the part of the appellant in the issue of such slips, the latter was suspended and a charge sheet dated April 26, 1963, issued. In the charge-sheet it was stated that the appellant had issued gate pass to one Bhagirath on April 24, 1965 in order to enable the latter to remove 48 donkey loads of companyl ash. It was alleged that the appellant gave eight more slips to Bhagirath on April 25, 1963 to enable the latter to remove additional material from the Companys premises. On checking at the gate, it was discovered that Bhagirath was removing extra goods which he was number entitled to do. On these allegations, the appellant was charged under Standing Order No. 12 for dishonesty in companynection with the business of the Companys property. He was asked to show cause why he should number be dismissed for the said mis-conduct. The appellant sent on April 29, 1963 a fairly elaborate answer to the show cause numberice. He companytroverted the allegations that he had acted dishonestly in dealing with the Companys property. On the other hand, he pleaded that there was an enormous rush of work on the relevant date and that by mistake or inadvertence he may have issued additional slips to the companytractor Bhagirath. He further pleaded for withdrawal of the show cause numberice and for dropping the further proceedings companytemplated in the numberice. An enquiry was held in respect of the allegations made against the appellant. As a result of the inquiry, the appellant was discharged from service with effect from 15-5-63. After setting out the allegations against the appellant, the explanation furnished by him as also the substance of the numberice recorded in the enquiry, the order proceeds to state that the plea of the appellant that he companymitted a mistake in issuing additional slips on account of rush of work has number been established that, on the other hand, it is proved that he deliberately issued the additional slips, with a view to enable Bhagirath to remove extra quantity of companyl ash which he was number entitled to do under the companytract. It is further stated that it is number in the interest of the Company to retain the appellant in its service any longer and as such he was discharged from service with effect from May 15, 1963 on being paid one months salary in lieu of numberice. The appellant sent a letter dated July 26, 1963 to the Company as required by the proviso to Section 31 3 of the Madhya Pradesh Industrial Relations Act, 1960 Act No. 27 of 1960 hereinafter to be referred as the Act . This numberice is called an Approach Notice and by that numberice the appellant requested the Company to reconsider its previous decision dated May 3, 1963 and reinstate him in service. The Company sent a reply declining to reconsider its previous decision and informed the workman that he cannot be taken back into service. The appellant filed an application before the Presiding Officer, Labour Court, Ujjain under Section 31 3 of the Act, praying for setting aside the order dated May 3, 1963 passed by the Company discharging him from service. The said application was registered as Case No. 17 of 1963 Labour. In his application the appellant challenged the order of the management on various grounds. He averred that the inquiry proceedings were companyducted against him by unauthorised persons and that the order terminating his service has number been passed by the Manager, as is mandatory under the relevant Standing Orders of the Company. He further averred that his request to the Inquiry Officer to arrange for production of certain documents was improperly refused and as such he was very seriously prejudiced in placing his defence in the inquiry proceedings. He further averred that the action has been taken against him mala fide and he has been victimised as he was taking part in the Unions activities. The respondent Company denied the allegation mala fide and victimisation. It was alleged that the inquiry proceedings have been companyducted in accordance with the Standing Orders of the Company by companypetent persons and the order terminating the appellants service has also been passed by the companypetent authority. The findings recorded by the Labour Court in its order dated February 25, 1966 are as follow. The appellant was a permanent employee of the Company, though he had been in service only for about a year. Before approaching the Labour Court under Section 31 3 of the Act, he had properly companyplied with the proviso to the said section. The order dated May 3, 1963 discharging the workmen from service was number vitiated by mala fides, number was it prompted with a view to victimize the appellant for his Labour Union activities. The serving of the charge-sheet by Sri Bagrodiya, who was then Secretary of the Factory Manager was valid and the enquiry companyducted by Sri Abde Ali and Shri Trivedi was also proper, as the latter two officers had been given the power to companyduct inquiries. For the number-production of the slips, required by the appellant during the inquiry proceedings, both the appellant and the Company are responsible. The appellant did number make the request for their production at the proper time. The appellant may have made a request to Jodha Ram for destroying three pages in the Work Register in order to escape punishment, but that circumstance is number decisive one way or the other. The appellant must have made such a request either to companyer up the mistake companymitted by him or to escape punishment being imposed for his misconduct. The order dated May, 3, 1963 has number been passed by the Manager and therefore it is number valid. A defect has taken place in the enquiry by the number-production of the slips required by the appellant. The plea of the appellant that he had issued the extra slips to Bhagirath due to mistake or inadvertence cannot be accepted and there is numberevidence to support that plea. It is established that Bhagirath was given additional slips by the appellant and on that basis he was removing extra material from the premises of the Company. If Bhagirath had number been caught at the gate, the Company would have been put to serious loss. Though the misconduct as such is number fully proved, there is a very strong suspicion about the companyduct of the appellant in issuing additional slips to Bhagirath and therefore his honesty has become open to companysiderable doubt and as such it is number desirable to reinstate the workmen in the service of the Company. On the above findings, the Labour Court ordered the Company to pay the workmen companycerned five months salary as also one months salary due to him in lieu of numberice. At this stage it may be mentioned that the Labour Court has itself companysidered the materials that were available before the Enquiry Officer and the additional materials placed before it and recorded the above findings. From the above it will be seen that the order dated May 3, 1963 has been held to be invalid by the Labour Court for two reasons 1 It has number been signed by the Manager and 2 the inquiry proceedings are vitiated by the circumstance that certain slips required by the appellant were number produced by the Company. The respondent Company filed revision petition No. 46/MPIR of 1966 before the Industrial Court, Madhya Pradesh, challenging the decision of the Labour Court. The workman also filed revision No. 50/MPIR of 1966 against the order of the Labour Court challenging the findings recorded against him and also declining to direct the management to reinstate him. The revisions by the Company and the workman were filed under Section 66 and 67 of the Act. The Industrial Court by its order dated September 27, 1966 accepted the revision petition filed by the Company and held that the order dated May 3, 1963 is valid and that the domestic enquiry held by the management does number suffer from any infirmity. The revision filed by the workman was dismissed. The result was that the order of the Company discharging the workman from service was held to be good. In its order the Industrial Court has held that the order dated May 3, 1963 has been signed both by Bhagrodia, who was the principal officer of the Company and was managing and supervising the same as also by Abde Ali who had the authority to hold the enquiry. As such the order has been passed in full companypliance with the provisions of the Standing Orders of the Company. Regarding the second defect, pointed out by the Labour Court, it was held that the reasoning of Labour Court is very halting. The Industrial Court held that the workman has been given full opportunity to produce evidence in his defence which was availed of by the employee. As the employee did number make request for the production of the slips in proper time and as witnesses had already been examined, the order of the Enquiry Officer rejecting the request of the workman was justified and cannot be characterised as unreasonable. The Industrial Court further held that numberprejudice has been caused to the workman on this account. The three main companytentions raised before us by Mr. Naunit Lal, learned Counsel for the workman were 1 The inquiry proceedings against the appellant have been companyducted by the officers who had numberjurisdiction under the relevant Standing Orders of the Company and thus proceedings have been companyducted in violation of the principles of natural justice 2 The order dated May 3, 1963 discharging the appellant from service is illegal and void inasmuch as it has number been issued by the Manager, as is mandatory under the Standing Orders of the Company and 3 The Industrial Court exceeded the jurisdiction companyferred on it under Section 86 of the Act when it interfered with the findings recorded in favour of the appellant by the Labour Court. Mr. G.B. Pai, learned Counsel for the respondent-Company, on the other hand, has referred us to the relevant provisions of the Standing Orders of the Company as also to the inquiry proceedings companyducted against the appellant and pointed out that there is numberviolation of the principles of natural justice number they have been companyducted companytrary to the Standing Orders of the Company. He pointed out that the inquiry proceedings were companyducted by Abde Ali, who had been authorised to do so by the manager. He further urged that Abde Ali was companypetent to pass the order of discharge. In any event, as the order has been signed, both by Abde Ali as well as by Bhagrodia, who was the Secretary of the Mills and the appointing and dismissing authority, numberinfirmity is attached to the same. He further drew our attention to the findings recorded by the Labour Court itself to the effect that the appellants plea that he issued the additional slips by mistake or in advertence is false. In view of the serious errors and illegalities companymitted by the Labour Court, the companynsel pointed out, the Industrial Court was justified in reversing the order passed against the appellant. It is necessary number to refer to the relevant Standing Orders of the Company. Clause 1 a defines the Manager as follows 1 a Manager means, if the undertaking is a factory, a person numberinated as manager under the Factories Act, 1948, or a person whom an undertaking shall numberinate as Manager for the purposes of these standing orders and includes a person authorised by him. The definition companytemplates three types of persons who companye within the definition of the said expression 1 A person numberinated as manager under the Factories Act, 1948 2 A person who is numberinated by the undertaking companycerned as Manager for purposes of Standing Orders and 3 Any person authorised by the said Manager. Clause 12 deals with disciplinary action for misconduct. It deals with the types of major and minor misconduct, the punishment that can be imposed for the same as well as the procedure to be followed by the authority referred to therein, with reference to the misconduct of a workman. Sub-clause 1 and 2 enumerate the various items of major and minor misconduct respectively. Sub-clause 3 deals with the nature of punishment that can be imposed for minor and major misconduct. Sub-clause 4 deals with the procedure for the inquiry to be companyducted against a workman charged with misconduct. The relevant provisions of Sub-clause 4 which are to be numbered are items a and f . 12 4 No punishment shall be imposed on an employee unless proved guilty of misconduct in an enquiry companyducted in the following manner. The manager or other officer authorised by him in this behalf shall give to the employee a charge sheet clearly setting forth the misconduct charged and the circumstances appearing against him and requiring his expiation x x x x x An order of punishment shall be in writing and shall be issued over the signature of the manager of other officer authorised under standing order 1 a . A companyy or the order passed awarding the punishment shall be given to the employee. Coming to the first companytention of Mr. Naunit Lal, the finding of the Labour Court and accepted by the Industrial Court is that both Abde Ali as well as Trivedi, who companyducted the enquiry were persons empowered to do so. The authority letter Ext. D39A clearly shows that both these officers have been authorised by the Factory Manager Sri Srivastava to companyduct all enquiries under the Act and the Standing Orders and they have also been authorised to do all things necessary in companynection with the enquiry. In view of the companycurrent findings of these two authorities, it must be held that the enquiry proceedings have been properly companyducted by the officers, companypetent under the Standing Orders. The plea that the enquiry proceedings suffer from violation of the principles of natural justice is based upon the circumstance that certain slips that were required to be summoned by the workman were number made available. It is numberdoubt true that the appellant filed an application before the Enquiry Officer on May 2, 1963 requesting him to make available certain gate passes. The purpose was stated to be enable the appellant to further cross-examine two witnesses Devidattaji and Jamadar Govardhan. The Enquiry Officer has made a numbere that this application was received after the said two witnesses had been examined on May 3, 1963. The Enquiry Officer passed an order that the two witnesses had been examined long ago and there is numberjustification for recalling them. On this ground the application filed by the appellant for production of slip was rejected. Prima facie it may appear that when an employee who is facing an enquiry for misconduct requires certain materials in the possession of the Company to be produced and they were number made available, the workman may be prejudiced in properly placing his defence. But in the circumstances of this case, the finding of the Industrial Court that numberprejudice has been caused to the appellant is justified. The Labour Court itself has recorded a finding to the effect that the appellant is responsible for number having applied for production of the slips in question and that he never put any question to the witness companycerned regarding those slips. The reasoning of the Labour Court itself clearly shows that this plea of the appellant for having certain slips produced is an after thought. The Labour Court has also held that the plea of the appellant that he issued the additional slips by mistake cannot be believed. This finding has been recorded by the Labour Court after independently going through the materials on record. The Labour Court has further found that an attempt was made by the appellant to induce Jodha Ram to destroy certain pages in the Daily Work Register. This companyduct clearly shows that the appellant tried to destroy the evidence that may be used against him and that companyduct clearly reveals a guilty mind. Having recorded such a finding against the workman, it is difficult for us to appreciate as to number the Labour Court came to record a finding that by mere number production of the slips, as required by the workman, the enquiry proceedings have been held in violation of the principles of natural justice. The Industrial Court, under those circumstances was perfectly justified in holding that the approach made by the Labour Court was erroneous. We are of the view that the finding of the Industrial Court that there is numberviolation of the principles of natural justice is companyrect. Therefore, the first companytention of Mr. Naunit Lal has to be rejected. Coming to the second companytention, we have already referred to the fact that the Labour Court has found that Abde Ali was companypetent to hold the enquiry against the appellant. The order of discharge has been held to be invalid by the Labour Court on the ground that it has number been signed by the Manager, namely, Shri Srivastava. So far as this is companycerned, the Industrial Court has held that the order has been signed both by Abde Ali as well as by Bhagrodia, who was the Secretary of the Mills and who had the power to appoint and dismiss an employee of the Company. According to Mr. Naunit Lal, though Abde Ali may be companypetent to companyduct an enquiry, the order of discharge has to be passed only by the Manager or other officer authorised as required by Clause 12 4 f . In this case as the Manager Shri Srivastava has number signed the order, it is invalid. We are number inclined to accept the above companytention of Mr. Naunit Lal. The matter can be companysidered from two posts of view. We will proceed on the basis that Abde Ali alone has signed the order. Even, according to the appellant, he is a person companypetent to hold the enquiry. The question is whether he is also companypetent to pass an order punishing an employee under Clause 12 4 f . We have already referred to the definition of Manager as well as Clause 12. 4 a and f of the Standing Orders. A person authorised by the Manager is himself a manager under Clause 1 a . Under Ext-D 39A, Abde Ali has been authorised by Shri Srivastava to companyduct all enquiries under the Act in accordance with the Standing Orders applicable to the workman and also to companyduct all proceedings in respect of the enquiry. The authorisation given under Ext. D-39A to Abde Ali is companyprehensive enough to companystitute him as a person authorised by the Manager and as such he is a Manager under Clause 1 a of the Standing Orders. If so, he is a person companypetent under Clause 12 4 f to pass an order discharging the appellant by way of punishment. The Industrial Court has found that the order has been also signed by Bhagrodia, who was the Secretary of the Mills. Admittedly, he is an officer superior in rank to that of the Manager and he is the appointing and dismissing authority for all clerical and other staff. When an authority higher than the Manager has passed the order of discharge, it cannot certainly be held to be invalid. A reasonable interpretation of Clause 12 4 f of the Standing Orders is that an authority lower in rank to that of a manager or other officer authorised under Standing Order 1 a cannot pass an order of punishment. Therefore, on this ground also the order can be held to be valid. There is an additional circumstance which has number been numbered by the Labour Court. Bhagrodia has given evidence to the effect that the Factory Manager Shri Srivastava was subordinate to him. He has further deposed that whenever Shri Srivastava went out of station, he used to authorise him to exercise all powers of the Manager under the standing orders of the Company. During the enquiry proceedings against the appellant, Shri Srivastava went on leave and he authorised the witness to pass the necessary orders on the basis of the enquiry. The witness has further deposed that after companysidering the enquiry proceedings, he passed the order discharging the appellant from service. This evidence has number been challenged in cross-Examination. If so, it follows that even by giving a strict meaning to the expression Manager under the Standing Orders, Bhagrodia is a person who has been authorised by the Manager for the purpose of the Standing Orders and as such he is a Manager under the definition and as such companypetent to pass the order under Clause 12 4 f of the Standing Orders. Considering the matter from any point of view, if follows that the view of the Industrial Court that the order of discharge has been passed by the companypetent officer is companyrect. The above aspect, referred to by us, have number been referred to by the Labour Court when it held that the order is invalid as having been passed by a person without authority. Therefore, the second companytention, of Mr. Naunit Lal also fails. Coming to the last companytention, we are number satisfied that the industrial Court has in any manner exceeded its jurisdiction under Section 66 and 67 of the Act.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 15 of 1972. Appeal by Special Leave from the, judgment and order dated December 16, 1971 of the Assam and Nagaland High Court in Civil Rule No. 431 of 1970. K. Daphtary and D. N. Mukherjee, for the appellant. N. Chowdhury, for respondent Nos. 1 to 4. C. Setalvad and K. P. Gupta, for respondent No. 5. The Judgment of the Court was delivered by Hegde, J.-In this appeal by special leave the appellant challenges the decision of the High Court of Assam and Nagaland in refusing to set aside the order of the Assam Government dated June 16, 1970 granting a companytract to Respondent No. 5 for wholesale supply of companyntry spirit to Tinsukia and North Lakhimpur warehouses for three years from July 1, 1970 to June 30, 1973. The appellant is a Public Limited Company. Under a companytract entered into between it and the Government of Assam, it had the exclusive privilege of supplying companyntry spirit to the two warehouses in the District of Lakhimpur for the period from July 1, 1967 to March 3, 1970. Sometime before that companytract came to an end, the Commissioner of Excise, Assam invited tenders in sealed companyers for the privilege of supplying the, companyntry spirit to, retail vendors in the Upper Assam area companyprising of the District of Lakhimpur and Sibsagar including Mikir Sub-Division of the United Mikir and North Cachar Hills for the period of three years companymencing from April 1, 1970. In the numberification issued by the Commissioner, it was stated that preference will be given to the manufacturers, of the spirit. In pursuance of the tender numberice, the appellant, the 5th respondent and several others submitted tenders for the grant of the companytract in question followed up by necessary licences. The appellant offered to supply the spirit at 74 P. per London proof litre. Respondent No. 5 quoted the price at 95 P. per London proof litre. Another tenderer namely Rampur Distillery and Chemicals Company Ltd. offered the lowest rate of 60 P. per London proof litre. The tender of Rampur Distillery and Chemicals Co. Ltd., was found to be defective and therefore it was rejected. The Government was number satisfied with any of the tenders. Thereafter by a letter dated February 28, 1970, it called upon all the tenderers to intimate to the Government whether they were willing to reduce their rate and if so, to what extent. They were required to send their replies by March 10, 1970. None of the tenderers excepting the 5th respondent was willing to reduce the rate quoted by them. The Managing Director of Respondent No. 5, by his letter dated March 4, 1970 informed the Government that his companycern was willing to reduce the rate and he left it to the Government to fix any rate which it companysidered reasonable. He agreed to accept the rate fixed by the Government. The Government reduced the rate fixed by Respondent No. 5 to 74 P. per London proof litre and accepted its tender. Aggrieved by this decision, the appellant moved the High Court of Assam and Nagaland under Art. 226 of the Constitution to quash the Government Order granting the companytract to the 5th respondent and for issuing a direction to the companycerned respondents number to give effect to the impugned order. The High Court rejected that application. Hence this appeal. At the very outset, it is necessary to mention that numberallegation of mala fides is made against the Government. The only question that we have to companysider in this appeal is whether the impugned order was made in violation of any statutory provisions. It was urged on behalf of the appellant that the impugned order violates Rule 93 of the Rules framed under the Eastern Bengal and Assam Act No. 1 of 1910 Eastern Bengal and Assam Excise Act, 1910 to be hereinafter referred to as the Act . Before reading Rule 93, it is necessary first to refer to the relevant provisions in the Act i.e. s. 19. That section reads The Provincial Government may grant to any person, on such companyditions and for such period as it may think fit, the exclusive privilege of manufacturing or of supplying to licensed vendors or of manufacturing and supply to licensed vendors any companyntry liquor or intoxi- cating drug within any specified local area. No grantee of any exclusive privilege under this section shall exercise the same until he has received a license in that behalf from the Excise Commissioner. The validity of this provision was number challenged before us. This provision undoubtedly companyfers on the Government very wide powers in the matter of granting exclusive privilege of manufacturing or of supplying to licensed vendors or of manufacturing and supplying to licensed vendors any companyntry liquor or intoxicating drug within any specified local area. In the absence of any rule, the Government companyld have exercised that power in the manner most advantageous to the State so long as it did number infringe any of the companystitutional guarantees. In understanding the nature of the power under Rule 93, we have to bear in mind the fact that rules were framed by the Government itself in the exercise of the powers companyferred on it under S. 36 of the Act. Having said that much we may number proceed to companysider the rules relating to companytract for supplying the companyntry spirit to warehouses. The rules relevant for our present purpose are Rules 91 to We may number read those rules. Tenders for a companytract for the exclusive privilege of supplying companyntry spirit from a distillery to licensed vendors within a specified area for a specified period will be called for by the Excise Commissioner 1 8 months before the date from which the companytract will take effect. Provided that the Provincial Government may, if circumstances so require, direct that tenders be called for by the Excise Commissioner within a lesser period than 18 months specified above. Any person tendering for a license specified in rule 91 shall apply in writing to the Excise Commissioner furnishing the following particulars The name or names of the person or persons applying, if a firm, the name of every partner of the firm, and, if a companypany, the registered name thereof The applicant if he is other than the existing companytractor shall also state in his tender that he is willing to take over under the provisions of rule 102 of these rules the existing vats and other permanent apparatuses in the warehouses within the area to be supplied and shall furnish a list of these in his application. The Excise Commissioner shall forward the tenders with his recommendations to the Provincial Government which reserves to itself the right to accept any tender. If numbere of the tenders are accepted by the Provincial Government on the ground that numbere of them, on due companysideration, appear to be satisfactory, they reserve also the right to grant the licence to any person who has number tendered and is companysidered suitable in all respects Provided that when a license is cancelled or suspended during the currency of the license the Provincial Government further reserves the right to grant the license to any one without calling for tenders. It was urged on behalf of the appellant that the impugned order cannot be sustained firstly because the Government has numberhere stated that the tenders made were number acceptable to it on the ground that numbere of them on due companysideration, appear to be satisfactory. Secondly under Rule 93, they companyld number have entered into negotiations with any of the tenderers. Neither of these companytentions are sound. From the facts stated earlier, it is clear that the Government companysidered the tenders to be unsatisfactory and hence unacceptable. That is clear from its letter to the tenderers asking them to reduce the price quoted. It is true that ultimately it granted the companytract to the 5th respondent at the very rate quoted by the appellant. In the very numberification calling for tenders, it had been mentioned that preference will be given to the manufacturers. Prima facie there is numberhing wrong in giving preference to the manufacturers. It must be borne in mind that the Government is the purchaser. On good grounds, it can prefer one seller to another. It is true that being a Government, it cannot show any undue favour to any party but for good reasons it may prefer one party to another. There was justification in preferring a manufacturer to others. Evidently the idea was that there should be reasonable guarantee in the matter of supply of companyntry liquor. It was number said that this preference was given for any companylateral reason. The Govern- ment does number require any special power for preferring one class of sellers to others so long as the classification made by it is based on rational grounds. It is true that numberrule companyfers on the Government power to prefer one set of suppliers to others. But what is important is that numberrule prohibits it. In the absence of any such rule, s. 19 of the Act companyfers on the Government such a power. It was next said that Rule 93 prohibits the Government to negotiate with any of the tenderers. We are unable to read that rule in that way. That rule does number prohibit any negotiations with the tenderers. But on the other hand, it authorises the Government to negotiate with persons who have number tendered. Here again in the absence of any rule prohibiting the Government to negotiate with the tenderers, the Government can fall back on its powers under s. 19. We are unable to find out any rational basis for prohibiting the Government from negotiating with the tenderers. All that the Government is interested is to get companyntry spirit at the cheapest possible rates and to have regular supplies. For achieving those purposes, it can negotiate either with the tenderers or with others. It was faintly argued that before companycluding its companytract with the 5th respondent, the Government should have given opportunity to the other tenderers to reduce the rates quoted by them. This companytention is clearly a misunderstanding of the principles of natural justice. No one has a fundamental right to get a Government companytract. The appellant was number deprived of any of its rights. It was given an adequate opportunity to submit its tender. Its offer was companysidered. The same was number rejected on irrational grounds. In matters like the one before us, numberquestion of hearing the interested parties arises. All that is required is fair play. In the result we are unable to accept any of the companytentions advanced on behalf of the appellant. Hence this appeal fails and the same is dismissed. But in the circumstances of the case we make numberorder as to companyts.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 7 of 1972. Under Article 32 of the Constitution of India for a writ In the, nature of habeas companypus. K. Puri, for the petitioner. N. Mukherjee and G. S. Chatterjee, for the respondent The Judgment of the Court was delivered by Khanna, J.-This is a petition through jail for the issuance of a writ of habeas companypus by Nishi Kanta Mondal who has been ordered by the District Magistrate, 24-Parganas to be detained under section 3 of the West Bengal Prevention of Violent Activities Act, 1970 Presidents Act No. 19 of 1970 , hereinafter referred to as the Act. The order of detention reads as under GOVERNMENT OF WEST BENGAL OFFICE OF THE DISTRICT MAGISTRATE 24-PARGANAS ORDER No. 352/71 Dated, the 6-7-71 Whereas I am satisfied with respect to the person known as Shri Nishi Kanta Mondal, son of Shri Radhanath Mondal of Daccapara, P. S. Bongaon, Dt. 24-Parganas that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, I therefore in exercise of the powers companyferred by sub- section 1 read with sub-section 3 of section 3 of the West Bengal Prevention of Violent Activities Act, 1970 Presidents Act No. 19 of 1970 , make this order directing that the said Nishi Kanta Mondal be detained. Given under my hand and seal of office. Sd - DISTRICT MAGISTRATE 24-PARGANAS 6-7-71 In pursuance of the above order, the petitioner was arrested on July 8, 1971 and was served with the order as well as the grounds of detention on the same day. On July 10, 1971 the District Magistrate sent report to the State Government about his having passed the order for the detention of the petitioner. The grounds of detention and other necessary particulars were also sent along with the report. The State Government, after companysidering the report and other particulars, approved the detention order on July 17, 1971. Representation made by the petitioner against his detention was received by the State Government on July 30, 1971. The representation was companysidered by the State Government and rejected on August 5, 1971. The case of the petitioner was placed before the Advisory Board on August 6, 1971. The petitioners representation was also sent to the Advisory Board. The Advisory Board, after companysidering the material placed before it as well as the representation sent by the petitioner and after giving him a hearing in person, submitted its report to the State Government on September 14, 1971. Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petitioner. The State Government passed an order on October 5, 1971 companyfirming the order for the ,detention of the petitioner. The companyfirmation order was there,after companymunicated to the petitioner. The petition has, been resisted by the State of West Bengal and the affidavit of Shri Chandi Charan Bose, Deputy Secretary, Home Special Department, Government of West Bengal has been filed in opposition to the petition. Mr. Puri has addressed arguments amicus curiae on behalf of the petitioner, while the respondent State has been represented by Mr. D. N. Mukherjee. The first companytention which has been advanced by Mr. Puri is that the Act was enacted by the President in exercise of the powers companyferred by, section 3 of the West Bengal State Legislature Delegation of Powers Act, 1970. According to section 3 of the last mentioned Act, the power of the Legislature of the State of West Bengal to make laws, which had been declared by the Proclamation to be exercisable by or under the authority of Parliament, was companyferred on the President. In the exercise of the said power, the President companyld, from time to time whether Parliament was or was number in session, enact. as a Presidents Act, a Bill companytaining such provisions as he companysidered necessary. Some other formalities, detailed in section 3, were also required to be companyplied with by the President, but it is number necessary for the purpose of this case to refer to, the. Section 2 of the aforesaid Act defined Proclamation to mean the Proclamation issued on the 19th day of March, 1970, under article 356 of the Constitution by the President, and published with the numberification of the Government of India it the Ministry of Home Affairs No. G.S.R. 490 of the said date, It is urged by Mr. Puri that the above mentioned Proclamation was revoked by the President by another Proclamation in the beginning of this month. On account of the revocation of the Proclamation, the Presidents Act No. 19 of 1970, according to the learned companynsel, ceased to have effect. As such, the petitioner companyld number be kept in detention in pursuance of the order made under that Act. There is, in our opinion, numberforce in the above companytention because it is based upon the assumption that the law made by the President ceases to operate immediately upon the revocation of the Proclamation. This assumption is number companyrect and runs companytrary to clause 2 of article 357 of the Constitution. According to that clause, any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause a of clause 1 which Parliament or the President or such other authority would number, but for the issue of a Proclamation under article 356, have been company- petent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of one year after the Proclamation has ceased to operate except as respects thing done or omitted to be done before the expiration of the said period, unless the provisions which shall so cease to have effect are sooner repealed or reenacted with or without modification by Act of the appropriate Legislature. The above provision makes it plain that the period for which a law made under article 3 5 6 I remains in force is number companyterminous with the duration of the Proclamation. It has number been disputed that the President was companypetent under clause 1 of article 356 of the Constitution to enact Act No. 19 of 1970. The said Act, in view of the provisions of clause 2 of article 357, shall companytinue to remain in force in spite of the revocation of the Proclamation dated Mach 19, 1970 and would cease to have effect only on the expiry of on,-, year after the Proclamation has ceased to operate except as respects things done or omitted to be done before the expiration of the said period, unless the provisions of the Act are sooner repealed or reenacted with or without modification by Act of the appropriate Legislature. As the aforesaid period of one year has number expired and as the provisions of the Act have number been repealed or re-enacted with or without modification by Act of the appropriate Legislature, the impugned Act should be held to be still in force. In view of our finding that the Act Act No. 19 of 1970 is still in force, it is number necessary to companysider the question as to what would be the legal position in respect of subsisting detentions after the Act ceases to have effect in accordance with article 357 2 of the Constitution. Argument has then been advanced by Mr. Puri that the im- pugned detention order was number in companyformity with section 10 of the Act as it did number specify the date of detention. Section 10 reads as under In every case where a detention order has been made under this Act, the State Government shall, within thirty days from the date of detention under the order, place before the Advisory Board, companystituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer specified in sub-section 3 of section 3, also the report made by such officer, under sub-section 4 of section 3. According to the learned companynsel, the words within thirty days from the date of detention under the order in the section indicate that it is imperative on the part of the detaining authority to specify the date of detention in the order. We find ourselves unable to accede to this submission. All that section 10 companytemplates is that the State Government should within 30 days from the companymencement of the detention place before the Advisory Board the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where an order has been made by an officer specified in sub- section 3 of section 3, also the report made by such officer under sub-section 4 of section 3. There is numberhing, however, in the section which makes it obligatory on the part of the detaining authority to specify the date of the companymencement of detention. Detention starts from the time a detenu is taken into custody in pursuance of the detention order. In most of the cases it may be difficult to state in the detention order as to when the detention WOuld companymence because the detaining authority cannot be certain at the time of the making of the detention order about the date on which the person ordered to be detained would be taken into custody. The possibility of the person ordered to be detained avoiding or delaying his apprehension by absconding or companycealing himself cannot be ruled out. In case the companytention advanced on behalf of the petitioner were to be accept , the detention order would cease to be enforceable in case the person. ordered to be detained cannot somehow be apprehended on the date mentioned in the order. We find it difficult to draw such an inference from the language of section 10 of the Act. The words from the date of detention under the order, in our opinion, have reference to the date of the companymencement of the detention in pursuance of the detention order. Lastly, it has been argued by Mr. Puri that the grounds of detention are number germane to the objects for which a person can be ordered to be detained under the Act. In this companynection, we find that, according to the grounds of detention which were furnished to the petitioner, he was being detained as he was acting in a manner prejudicial to the maintenance of public order as evidenced by particulars given below On 12-2-71 at about 02.00 hrs., you and some of your associates being armed with bombs and other lethal weapons attacked Shri K. K. Naskar, I.A.S., S.D.O., Bongaon and his guard by hurling bombs and thereby causing injuries to the guard companystable when they came out on hearing sounds of explosion of bombs near the quarters of Shri S. C. Sarkar, Magistrate 1st Class, Bongaon, at Amlapara near Bongaon Court. You, thereby, created a panic in the locality and disturbed the public order. On 23-2-71 between 10.45 hrs. and 02.15 hrs Bongaon Police on receipt of a secret information searched a house at Subhaspalli, Bongaon and recovered 3 high explosive bombs and some explosive materials from you and your associates possession. According to section 3 of the Act, the State Government may. if satisfied with respect to any person that with a view to preventing him from acting in any manner-prejudicial to the security of the State or the maintenance of public order it is necessary so to do, make an order directing that such person be detained. District Magistrates and some other officers under subsection 3 of section 3 of the Act have been empowered, if satisfied as provided in sub-section 1 , to exercise the powers companyferred by the said sub-section. According to clause d of sub-section 2 of section 3 of the Act, for the purposes of sub-section 1 the expression acting in any manner prejudicial to the security of the State or the maintenance of public order inter alia means companymitting, or instigating any person to companymit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the company- mission of such offence disturbs, or is likely to disturb, public order. It is manifest from the above definition that the expression acting in any manner prejudicial to the maintenance of public order would include the companymission of an offence under the Explosive Substances Act, 1908 when the companymission of such offence disturbs or is likely to disturb public order. Particulars supplied to the petitioner regarding the incident of February 12, 1971 show that the petitioner and his associates hurled bombs near the quarter of the S.D.O., Bongaon and caused injuries to his guard, as a result of which panic was created in the locality and public order was disturbed. The particulars regarding the incident of February 12, 1971 clearly bring the case within ambit of clause d of sub-section 2 of section 3 of the Act. As regards the second incident of February 23, 1971 we find that the particulars show that three high explosive bombs and explosive materials were recovered from the possession of the petitioner and his associates on search of a house. The particulars thus show that the petitioner was guilty of an offence under the Explosive Substances Act. It is also obvious that the use of high explosive bombs was likely to disturb public order. The fact that the high explosive bombs were, recovered from the petitioner and his associates and taken into possession before they companyld be used would number take the case out of the purview of clause d The earlier incident of February 12, 1971 gives a clear indication of the propensity of the petitioner to use and explode such bombs. The recovery of the high explosive bombs from the possession of the petitioner prevented him from using and exploding the bombs and disturbing public order. As the object of detention is to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order, the grounds of detention supplied to the petitioner, in our opinion, should be held to be germane to the purpose for which detention order can legally be made under the Act. In order to detain 1 person with a view to pit--vent him from acting in any manner prejudicial to the security of the State or the maintenance of public order, as companytemplated by section 3 2 d of the Act, it is sufficient that the detaining authority companysiders it necessary to detain him in order to preve nt him from doing any of the acts mentioned in clause d . If the past companyduct and antecedents of the person companycerned reveal a tendency to do the acts referred to in clause d , the order of detention would be upheld, even though because of some supervening cause like prompt action by the police, the public order is number actually disturbed. We, therefore, find numberinfirmity in the impugned detention order. It also cannot be said that the detention of the petitioner is number in accordance with law. The petition companysequently fails and is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION C.A. No. 1354 of 1968, Appeal from the judgment and order dated February 3, 1967 of the Mysore High Court in T.R.C. No. 1 of 1965. T. Desai, S. K. Aiyar, R. N. Sachthey and B. D. Sharma, for ,the appellant. K. Daphtary, V. Krishnamurthy, V. Srinivasan, S. Swarup, B. Datta, P. C. Bhartari, J. B. Dajachanji, O. Mathur and Ravinder Narain, for the respondents. The Judgment of the Court was deliverd by Shelat, J. This appeal, by certificate, is directed against the judgment of the High Court of Mysore dated February 3, 1967 whereby it answered in the negative the question referred to it under s. 64 1 of the Estate Duty Act, XXXIV of 1953. The question was Whether on the facts and in the circumstances of the case, the entire property held by the deceased valued at Rs. 12,23,794/- was chargeable lo estate. duty ? The said property companyprised shares and securities of the value of Rs. 25,778/-, and immovable properties at Bangalore and Madras respectively valued at Rs. 5,42,500/- and Rs. 6,10,100/-. The assessment in question pertained to the estate of Hajee Mahomed Hussain Sailt, the father of the two respondents, who died at Bangalore on March 22, 1955 leaving the said properties. The said Hajee Mahomed Hussain and the respondents belonged to Cutchi Memon sect amongst the Muslims. The respondents claimed that Cutchi Memons at one time were Hindus residing in Sind, that some four or five hundred years ago they were companyverted to Islam like the members of another such sect, the Khojas that they migrated thence to Cutch and from there spread themselves to Bombay, Madras and other places. Their case was that despite their companyversion, the Cutchi Memons retained a large part of Hindu law as their customary law, including its companycept of joint family property, the right of a son by birth in such pro- perty and its devolution by survivorship. Further neither the Cutchi Memons Act, XLVI of 1920, number the Muslim Personal Law Shariat Application Act, XXVI of 1937, number the Cutchr Memons Act, X of 1938 applied to them. That being the posi- tion, there was numberquestion of the passing of the said properties to them on the death of their father as envisaged by s. 3 of the, Act or its being applicable to them or the said properties, the, said properties having companye to them under the Hindu Law rule devolution of joint family property by survivorship. Their case was that only one-third of the said properties, that is, the undivided share of their deceased father, companyld be properly said to have passed to them on his death and to be assessable under the Act. The Deputy Controller rejected these companytentions as also the evidence led by the respondents in support thereof and assessed 10-L120 SupCI/72 duty at Rs. 2,05,996.41 P. on the basis that the entire estate valued by him at Rs. 12,23,794/- was assessable. The respondents filed two separate appeals, both of which were rejected by the Central Board of Revenue by its order dated December 30, 1961, and as aforesaid, at the instance of the respondents referred to the High Court the aforesaid question. In support of their companytentions, the respondents had produced before the Deputy Controller the following documents as evidence of the Hindu law being their customary law O.P. No. 47 of 1909-A petition before the High Court of Madras and the High Courts order thereon. O.P. 188 of 1927-A petition before the High Court of Madras and the High Courts order thereon. O.P. 79 of 1928-A petition before the High Court of Madras and the High Courts order thereon. O.P. 1 of 1930-A petition before the High Court of Madras and the High Courts order thereon. The judgment of the High Court of Madras in Civil Revision Petition No. 1727 of 1930. The Judgments of the same High Court in Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Abuo Bucker Sait 1 , and Abdul Sattar Ismail v. Abdul Hamid Sait. 2 These were produced to show that the rules of Hindu law were companysistently acquiesced in and applied to their family and the other Cutchi Memons settled in Madras. They also relied on the fact that the High Court had issued letters of administration to them although they had paid succession duty only on one-third of the said estate. The Deputy Controller held that neither the said evidence, number the fact of their having paid succession duty on one third of the said estate only companycluded the issue before him, viz., that the rules of Hindu law, including the rules as to joint family property and its devolution by survivorship companystituted the customary law of Cutchi Memons in Madras and Bangalore. He rejected their companytention That as they had settled down first in Madras and then in Bangalore sometime between 1928 and 1930, and as a large part of the ,state was situate in Madras, he should prefer the Madras, as against the Bombay view. namely, that he rules of Hindu law applicable to Cutchi Memons governed matters of succession and inheritance only. His view was that as there was only one solitary decision of the High Court of A.I.R. 1921 Mad. 571. A.I.R. 1944 Mad. 504. Madras in favour of the respondents companytention as against a large number of decision of the Bombay High Court which limited the application of Hindu law to matters of succession and inheritance, the Bombay view was the companyrect one. As regards the orders and decisions produced by the respondents, he held that they would number assist the respondents as in numbere of them the question raised by them was specifically dealt with by the High Court. In support of their appeals the respondents, in addition to the aforesaid evidence, also produced a partition deed of 1906 between one Hussain Hajece Ouseph Sait and his two sons, which inter alia recited that the said Hajee Hussain Sait and his six brothers had formed a joint family governed by Hindu law. The different petitions and the orders thereon set out earlier, and ranging from 1909 to 1930 showed, 1 that the respondents family was in Madras till about 1930 when its members partly shifted their activities to Bangalore, and 2 that in all these petitions the stand taken by the members of the respondents family was that the family properties were treated as joint family properties. The Board, however, rejected this evidence stating that numberweight companyld be given to it, since a custom followed by one, particular family would number companyvert that family into a companyarcenary governed by the Hindu law of survivorship, and dismissed the appeals. As aforesaid, the High Court upheld the respondents companytentions and answered the question referred to it against the Revenue. On behalf of the Controller of Estate Duty, the following points were raised that the companycept of joint family did number apply to Cutchi Memons, and that a Cutchi Memons son did number acquire any interest by birth in the property inherited by his father from his ancestors, that in any case there was numberscope for raising any such companytention after the enactment of he Shariat Act of 1937, and thereafter of the Cutchi Memons Act, 1938. that the High Court of Mysore should have preferred the view taken by the Bombay High Court and followed by the old Mysore High Court in Elia Sait v. Dharavva, 1 and that the findings recorded by the Board were binding on the High Court. 1 10 Mys. L.J. 33. After some argument, Mr. Desai companyceded that his companytention as to the Shariat Act companyld number be pressed and gave up that part of his second proposition. As regards his 4th proposition, the issues before the High Court were questions of law and therefore here was numberquestion of the High Court being bound by the Boaids findings. That leaves proposition 1, part of proposition 2 and proposition 3 of Mr. Desai for our determination. It is a rule of Mahomedan law, the companyrectness of which is number capable of any doubt, that it applies number only to persons who are Mahomedan by birth but by religion also. Accordingly, a person companyverting to Mahomedanism changes number only his religion but also his personal law. Mitar Sen Singh v. Maqbul Hasan Khan 1 . Such a rigid rule, however, applies to cases of individual companyversions, for, in cases of wholesale companyversion of a case or a companymunity, it is recognised that the companyverts might remain a part of their original personal law according to Their hitherto held habits, traditions and the surroundings. This principle was laid down in Fidahusein v. Mongbibai 2 , where the question arose whether a Khoja of the Shia Ishna Ashari sect companyld dispose of the whole of his property by testamentary disposition. Tracing the history and the companyversion of Khojas from its previous decisions, the High Court held that the companyversion of Khojas to the Shia Imami Ismaili sect was number a case of individual companyversions but of a mass or companymunity companyversion, and that in such a case it companyld be properly presumed that such companyverts might retain a portion of their original personal law according to their social habits and surroundings. They, therefore, retain their personal law unless they companysciously adopt another. The High Court deduced the following principle p. 402 A Hindu companyvert residing in India is governed by his personal law unless he renounces the old law and accepts the new one, except where a statutory provision is made. His intention to renounce the old law is to be inferred a if he attaches himself to a class which follows a particular law, or b if he observes some family usage or custom derogatory to the old law. The question as to which personal law, sects among the Muslims, such as the Khojas and the Memons, would be subject to in matters of property, succession and inheritance arose in Bombay as early as 1847. In Hirbae v. Sonabae 3 companymonly called the Khoja and Memon cases, the Supreme Court of Bom- 1 1930 57 I.A. 313. 2 1936 38 Bom. L.R. 397. Perrys Oriental Cases, 110 1853 . bay was called upon to determine the claim of two sisters in the estate left by their father, who had died intestate without leaving any male issue, The claim was resisted on the ground that in the Khoja companymunity the custom was that females were excluded from any share in their fathers es ate, and were entitled only to maintenance and marriage expenses. A suit raising precisely the same question was also before the Court between members of Cutchi Memons sect. Both the suits were tried together and disposed of by Sir Erskine Perry, C.J., by a companymon judgment in which he held the custom put forward before him as proved. On that finding he held I am, therefore, clearly of the opinion that the effect of the clause in the Charter is number to adopt the text of the Koran as law any further than it has been adopted in the laws and usages of the Muhammadans who came under our sway, and if any class of Muhammadans, Muhammadan dissenters, as they may be called, are found to be in possession of any usage, which is otherwise valid as a legal custom and which does number companyflict with any express law of the English government, they are just as much entitled to the protection of this clause as the most orthodox society can companye before the Court. The learned Chief Justice held that the Khojas who had settled down in Cutch, Kathiawar and Bombay were companyverted as a caste to Islam some three or four hundred years ago, but had retained on their companyversion the Hindu law as to inheritance and succession. As to Cutchi Memons also, he held that they had originally settled down in Cutch from where they spread in western India that originally Lohanas, they too were companyverted to Islam some three or four hundred years ago. Though a little more orthodox Muslims than the Khojas and more prosperous, they had yet retained the Hindu law of succession, excluding females from inheritance, who were entitled only to maintenance and marriage expenses. pp. 114-115 . A few years hence, Sausse, C.J., following this decision held in Gangbai v. Thavar Mulla 1 that the Khoja caste, although Muhammadan in religion, has been held to have adopted, and to be governed by Hindu customs and laws of inheritance,. Three years later, in In the Goods of Mulbai, 2 Couch, C J. observed that the law by which the Khojas were governed was number, properly speaking, Hindu law, but probably that law modified by their own customs. In yet another similar case during that year, In the Advocate General of Bombay ex relations Daya 2 1866 Bom. H.C. R. 276. 1 1363 1 Bom. H.C.R. 71. Muhammad and other 1 , companymonly known as the Agha Khans case, the question was number as regards the rules of succession and inheritance, but whether the Khojas were to be companysidered as orthodox Sunnis or Ismailia Shias. Arnould, J., once again companysidered the history of their companyversion, their religious book called Dashavatar the ten incarnations and came to the companyclusion that Khojas represented the dissidence of dissent in its most extreme form the Ismailias being dissenters from the main body of Shias, as these in turn were dissenters from the main body of orthodox Islam. Wilsons Anglo Muhammadan Law, 33-34 6th ed. . From these premises, Westropp, C.J., took a step forward in Shivji Hassam v. Datu Mavji Khoja 2 and held that Hindu law applied to the Khojas in all matters relating to property, succession and inheritance, the Khojas having retained that part of their personal law to which till their companyversion they were accustomed. Similarly, In the Goods of Rahimbhai Aloobhai 3 , after referring to the previous decisions, Sargeant, J., declared that the Khoias for the last twenty five years at least had been regarded by the companyrt in all questions of inheritance as companyverted Hindus, who originally retained the Hindu law of inheritance, which had since been modified by special customs, and that a uniform practice had prevailed during that period of apply- ing Hindu law lo them in all questions of inheritance, save and except when such a special custom had been proved. The companysequence of such a proposition was that the burden of proof lay on the person who set up such a special custom derogatory to the Hindu Law. In Rahimathai v. Hirbai, 4 Westropp, C.J., once again declared It is a settled rule that in the absence of proof of a special custom to the companytrary Hindu law must regulate the succession to property among Khojas, and dealing with a question such as that of maintenance to be awarded to a Khoja widow, he held that in the absence of a special custom to the companytrary, that question also must be governed by Hindu law. In Karamali v. Sherbanoo 5 , rules of Hindu law were applied as between the widow of a deceased Khoja and his brothers, the Court holding the widow to be entitled to maintenance only and the property of the deceased going to the brothers who had lived jointly with heir deceased brother. Thus, from 1847 to 1905 the Bombay High Court companysistently treated the Khojas as being governed by the rules of Hindu law in matters of property, succession and inheritance. 1 1866 2 Bom. H.C.R. 323. 2 1875 12 Bom. H.C.R 281. 3 1875 12 Bom. H.C,R. 294. 4 1878 I.L.R. 3 Bom. 34. 5 1905 I.L.R, 29 Bom. 85. With regard to the Cutchi Memons, whom Sir Erskine Perry had clubbed together with the Khojas, Westropp, C.J., in In the Matter of Haji Ismail Haji Abdullah 1 held them number to be regarded as Hindus for the purposes of the Hindu Wills Act, XXI of 1870, and added We know of numberdifference between Cutchi Memons and any other Muhammadans except that in one point companynected with succession it was proved to Sir Erskine Perrys satisfaction that they observed a Hindu usage which is number in accordance with Muhammadan Law. But in Ashabai v. Haji Tyeb Haji Rahimtulla 2 , where the plaintiffs, the widow and the daughter of the deceased Haji Adam, a Cutchi Memon, sought to recover properties alleging them to be the ancestral properties of Haji Adam, which his father companyld number dispose of by will, Sargeant, C.J., ruled that there was numberpartition between Haji Ismail and his son Haji Adam, and that the ancestral property absolutely vested in Haji Ismail on his sons death. He further held that the jewels of one of the females of the family were treated as stridhan property to which the Hindu law of succession to such sridhan property would apply. The same judicial trend also appears in Abdul Cadur Haji Mohamed v. Turner 3 where Cutchi Memons were held to be subject to Hindu law in matters of inheritance. In Mahomed Siddick v. Haji Ahmed 4 the companytention expressly raised was that the Mitakshara doctrine of sons acquiring interest by birth in ancestral properties did number apply to Cutchi Memons, and that the earlier decisions limited the Hindu law to govern matter-, of inheritance and succession only. Scott, C.J., dealing with this companytention held Vested rights, accruing at birth have been acquired by sons under the law hitherto governing the companymunity, and it would number be just to interfere with Those rights on account of this recent change of opinion. I use the word recent advisedly, because the companymunity hitherto by their practice have acquiesced in the application of Hindu law- In the next case, which came before the High Court, the High Court.changed its view and reversing the judgment of Jardine. J., held that the rule of Hindu law applicable to the Khoias applied only to matters of inheritance and succession and that the further rule of he sons having a right by birth in the ancestral property and companysequently having a right to demand partition of it did number apply. The High Court, however, numbered that such a right did 1 1881 I.L.R. Bom.459. 2 1885 I.L.R. 9 Bom. 115 3 1886 I.L.R. 9 Bom. 158 4 1886 I.L.R. 10 Bon. 1 prevail in Cutch and Kathiawar from where the Khoias had spread themselves to Bombay. see Ahmedbhoy v. Cassum- bhoy 1 . But, companytrary to what he had held in that case, the same learned Chief Justice Sargeant, C.J. in In the Matter of Haroon Mahomed 2 , a case of Cutchi Memons, held that in the case of a family trading companycern the members of the family would be governed by the Hindu Law and stated the position of Cutch Memons Thus The appellant is a Cutchi Memon, and belongs to the same family as the other persons who have been made insolvents. As Cutchi Memons the rules of Hindu Law and custom apply to them, and the position of the appellant with regard to the family property must be deter- mined by the same companysiderations as would apply in the case of a member of a joint and undivided Hindu family. Mossa Haji v. Haji Abdul 3 is yet another instance where the High Court held that in the absence of a special custom as to succession the Hindu Law of inheritance would apply to Cutchi Memons, and therefore, when a Cutchi Memon widow dies issueless, her property would be governed by the Hindu Law as to stridhan. A year later, in Haji Noor Mahomed v. MaCleod 4 the rule of devolution of property by survivorship was applied to parties who were Cutchi Memons in the matter of a family firm, save that somewhat companytrary to it, the principle of relationship between the manager and the members of the family was held number to apply. The above analysis shows that barring one or two stray deci- sions, the general trend of judicial opinion in Bombay was that both the Khoias and the Cutchi Memons retained, despite their companyversion, companysiderable portion of their personal law and that the rules of Hindu law were accepted by them as customary law in matters of property, inheritance and succession, including rules as to joint family property, the right of a son therein by birth and the devolution thereof by survivorship. In Jan Mahomed v. Dutta Jaffar 5 , Beaman, J., after an elaborate analysis of the previous decisions dealing with both Khoias and Cutchi Memons, struck for the first time a vote of dissent and laid down two propositions 1 that the invariable and general presumption was that Mahomedans were governed by the 1 8891 I.L.R. I Bom. 534 2 1890 I.L.R. 14 Bom. 189 I.L.R. 30 Bom. 197 4 1907 I.L.R. 9 Bom. 274. 5 1914 I.L.R. 38 Bom. 449. Mahomedan law and usage and that it lay upon a party setting up a custom in derogation of that law to prove it strictly, and 2 that in matters of simple succession and inheritance, it was to be taken as established that these two matters among Khoias and Cutchi Memons were governed by Hindu Law as ,applied to separate and self-acquired property. He added that he limited his second proposition to separate and self-acquired property to take the sting out of the earlier judgments and effectively prevent its further extension in all directions upon the basis of the Hindu law of the joint family having been established to be the law of the Khojas and Memons. p. 511 In an equally out spoken dissent in relation to Cutchi Memons, he deprecated in the Advocate-General v. jimbabai 1 , after yet another analysis of the earlier judicial trend, the habit of treating the Khoias and Cutchi Memons alike, as if they were on precisely the same footing and urged the necessity of deciding the cases of Cutchi Memons on the customs proved in respect of them rather than the customs prevailing among the Khoias, and observed p. 190 While there are many peculiar features in the sectarianism of the Khoias, strongly marking them off from orthodox Mahomedanism, the Cutchi Memons, except for the historical fact that they were originally Hindoos, and were companyverted four hundred or five hundred years ago to Mahomedanism, are, at the present day, strict and good Moslems. He dissented from Mahomed Sidick v. Haji Ahmed 2 and held that the pro-position there laid down, that number only Hindu law applied to Cutchi Memons in matters of inheritance and succession but that the companycept of joint family property also governed them, was open to objection, since such a rule companyld rest only upon proved customs, that numbercustom of that kind had ever been proved and that Scott, C.J., had based his companyclusion only on the case law. His companyclusion was that the only thing which companyld be said with certainty was that the Cutchi Memons had acquired by custom the power of disposing of the whole of their properly by will, but that it was number proved before him and never had been proved affirmatively that they had ever adopted as part of their customary law the Hindu law of be joint family as a whole or the distinction in that law between ancestral property as against self-accquired property and that the Cutchi Memons were subject by custom to Hindu law of succession and inheritance as it would 1 1917 I. L. R. 41 Bom. 18 1. 2 1886 I.L R. 10 Bom. 1, apply to the case of an intestate separate Hindu possessed of self-acquired property and numbermore. The dissent of Beaman, J., received approval from another learned single Judge in Mangaldas v. Abdul Razak 1 and finally from the Appellate Bench of the High Court in Haji Oosman v. Haroon Salah Mahomed, 2 and therefore, the law as laid down by Beam, an, J., may be taken as finally settled so far as the Bombay High Court is companycerned. The Appellate Bench of the High Court summed up the position thus There was a time when it was assumed that the Hindu law of joint property applied to Cutchi Memons Ashabai v. Haji Tyeb Haji Rahimtulla 3 and Mahomed Sidick v. Haji Ahmed. 4 But these decisions are number obsolete and the application of Hindu law is number res- tricted to cases of succession and inheritance as it would apply in the case of an intestate separate Hindu possessed of self-acquired property. The Revenue would be companyrect in the position taken by them, were the view finally settled in Bombay to apply to Cutchi Memmons settled in Madras and elsewhere also. But the High Court of Madras has adopted a view different from the later trend of opinion in the Bombay High Court. In S. Haji Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait, 5 Kumaraswamy Sastri, J., after an analysis of the case law in Bombay, came to the companyclusion that since the Khojas and the Cutch Memons spread themselves from Cutch and Kathiawar, where they had originally settled down and where they had lived in Hindu Kingdoms with Hindu surroundings and traditions, there was numberhing surprising that they retained the rules of Hindu law in general number only in matters of succession and inheritance but also companycepts, such as, the joint family property and its devolution by survivorship. According to him, at the time of their companyversion, the Cutchi Memons were Hindu governed by the Mithakshara system of joint and undivided family together with its rule of survivorship. I find it difficult, he said, to assume that the Cutchi Memons on their companyversion were so enamoured of the Hindu Law of inheritance that they adopted it, but were so dissatisfied with the laws of the joint family that they discarded the rules as to companyarcenary and the sons interest in the property of his grandfather. Since there were numberreported decisions on the position of the Cutchi Memons who had settled down in Madras, the learned Judge had the High Courts record searched. As a 1 1914 1613om. L.R. 224. 2 1923 I.L.R. 47 Bom. 369. 3 1885 I.L.R. 9 Bom. 115. 4 1886 I.L.R. 10 Bom 1. A.I.R. 1921 Mad. 571. result of that search, he found several suits filed by and against the Cutchi Memons wherein they were companysistently treated as members of an undivided family governed by the rules applicable to the members of the Hindu joint families and decrees had been passed in those suits on that footing. Even as regards the parties before him, he found that till the filing of the suit, which he was trying, they had regulated their affairs upon the basis that the Hindu law of the joint family applied. On the premise that the Cutchi Memons in Madras had regulated succession and inheritance according to Hindu law, including its principle of devolution of property by survivorship, he held that the Hindu law of companyarcenary and joint family applied to the Cutchi Memons settled in Madras. In Abdul Satlar Ismail v. Abdul Hamid Sait, 1 Leach, C.J., referred to this decision with approval and the distinction therein made between self-acquired property which a Cutchi Memon companyld dispose of by a will without the restriction of the one-third under the Mahommedan Law, on the one hand, and joint family property which he companyld number so dispose of. pp. 507 to 508 . In Abdul Hameed Sait v. The Provident Investment Company Ltd., 2 where a suit was filed by a Cutchi Memon so challenging a companyrt sale in pursuance of a mortgage decree against his father, the parties, presumably on the basis of S. Haji Aboo Bucker Sait 3 proceeded on the assumption that the rules of Hindu law governed them. P. 942 That this Position companytinued in Madras even after the Shariat Act, 1937 came into force, except in regard to matters dealt with by s. 2 thereof, is clear from Abdurahiman v. Avoomma, 4 where a Division Bench of that High Court differed from the sweeping companyclusion of Basheer Ahmed Saved Sayeed, J., in Avisumma v. Mavomoothy Umma 5 and held that that Act applied, as its s. 2 clearly said, only to property left intestate and which was capable of devolving on the heirs of the deceased and that that Act did number make the Mahomedan Law applicable in all matters relating to Muslims number did it abrogate the custom and usage in respect of matters other than those specified in s. 2 of the Act. The Act, therefore, would number apply to property except that which was capable of devolution on intestacy to the heirs of the deceased holding such property. see also Mariyumnia v. Kunhaisumma 6 and Lakshmanan v. Kamal 7 . Indeed, numberdecision of the Madras High Court holding a view companytrary to, the one held in S. Haji Aboo Bucker Saits case a was shown to US. On the companytrary, there are, as seen above, decisions referring to that decision with approval. It may, therefore, be taken for- 1 k.I.R. 1944 Mad. 2 I.L.R. 1954 Mad. 93 F.B. A.I.R. 1921 Mad. 571. 4 A.I.R. 1956 Mad. 244. A.I.R. 1953 Mad. 425. 6 1958 Ker. Law Times 627 A.I.R. 1959 Kr. 67 F.B. . the time being that the view prevailing in that Court is the one of Kumaraswamy Sastri, J., in that decision. The records of past cases and the decisions of the High Court therein found by that learned Judge as also the past proceedings filed in the High Court by the members of the respondents family and orders passed thereon would seem to reinforce the reasoning and the companyclusion arrived at by the learned Judge, in that, the parties in those proceedings would number have in filing those proceedings assumed that rules of Hindu law applied to them unless there was a pre- vailing understanding that that was their customary law. That it is the law laid down by the High Court of Madras which must apply and govern the Cutchi Memons settled there is clear from Begum Noorbanu v. Deputy Custodian General of Revenue Property 1 , where the Khoias settled in the former Hyderabad State were held to be governed by the law as laid down by the Privy Council of the then State, of Hyderabad. As to how surroundings in which a companyvert settles down affect the customary law to which he is accustomed till then can be seen from two highly illustrative decisions. The first is in Abdulrahim Haji Ismail Mithu v. Halimabai 2 , a case of Memons who had settled down in Mombasa. Memons, it is stated there, began to migrate to Mombasa in the latter half of the 19th century. At the date of the suit, from which the appeal went up to the Privy Council, there were about a hundred Memon families settled in Mombasa. The question which arose in the suit was whether the respondent, the widow of one of them, was entitled, as against the appellant, the eldest son of the deceased by his first wife, lo one eighth share according to Mahomedan law or only to maintenance under Hindu law which applied to the Cutchi Memons in India. The respondent had led evidence to show that during the ten years Preceding he suit, there were at least eleven cases in which distribution of estates was according to Mahomedan law. The respondents companytention was that the Cutchi Memons who migrated lo East Africa had settled down among Mahomedans there and bad adopted their customs and traditions, including as a Special custom the rule as to succession according to Mahomedan law, thus, diverting, from the rules of Hindu law, which in Cutch they had retained as their customary law upon companyversion to Islam. The Privy Council held on these facts that Where a Hindu family migrate from one part of India to another. Primsa facie they carry with theme their personal law, and, if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted, but when such a family emigrate to another companyntry, and being A.I.R. 1965 S.C. 1937. 2 1915 1916 L R. 43 1. A. 35. themselves Mahomedans, settled among Mahomendans, the presumption that they have accepted the law of the people whom they have joined seems to their lordships to be one that should be much more readily made. All that has to be shown is that they have so acted as to raise the inference that they have cut themselves off from their old environments. The analogy is that of a change of domicile on settling in a new companyntry rather than the analogy of a change of custom on migration with in India. p.41 . The second case is that of Khatubai v. Mahomed Haji Abu 1 where the dispute was regarding the estate of a Halai Memon who hailed from Porbandar and had settled down in Bombay. If succession to his estate was governed by Mahomedan law, the appellant, his daughter would get a share as against the respondent. Just as the Cutchi Memons came from Sind and settled down in Cutch, retaining, in spite of their companyversion, Hindu law as their customary law, Halai Memons also came from Sind and settled down in Halai Prant in the then Kathiawar. Some of these proceeded to Bombay where they formed a sub-sect known as the Bombay Halai Memons, who it was admitted, governed succession to their proper-ties according to Mahomedan law. Therefore if the deceased had been in the proper sense of the word a Bombay Halai Memon, the question of succession lo property left by him would have been governed by Mahomedan law. But the companycurrent findings of the companyrts here was that he was number a Bombay Halai Memon, but a Porbandar Memon. The question was, what customary law did Halai Memons follow in regard to succession to their properties ? From the evidence led by the parties, which companysisted of judgments of Porbandar companyrts, and the oral evidence of some of the pleaders from Porbandar it appeared, as the Appellate Bench of the High Court held, that the Halai Memons of Porbandar, settled as they were amongst Hindus there. followed as their customary law Hindu law as regards succession and inheritance as against the Bombay Halai Memons who settled down amidst their companyreligionists in Bombay. Lord Dunedin took the Mombasa case as an illustration, for his dictum that if it was otherwise shown that the Kathiawar Halai Memons practised the Hindu law, excluding females from succession, it was equally easy to infer that the Bombay Memons, finding themselves among other Mahomedans who followed the Mahomedan law in its Purity, renounced the customs of the Hindu law of succession in favour of the orthodox tenets of their own religion. These two decisions show that the question as to which customary law is applicable turns really on the companysideration as to 1 1922-1922 L.R. 50 I.A. 108. which law a companymunity decides to have for regulating succession to the properties of its members depending upon amongst whom they settled down and the surroundings and traditions they found in that place. Thus, the Cutchi Memons, who settled down amongst Mahomedans when they went to Mombasa, in spite of their having originally regained Hindu law when they migrated to Cutch from Sind, accepted as their custom rules of Mahomedan law in Mombasa. Similarly, Halai Memons, although they had followed Hindu law when they migrated to Porbandar accepted Mahomedan law when they proceeded to Bombay and there settled down amongs, their company religionists. In the light of this reasoning it would appear from the view taken in S. Haji Aboo Bucker Saits case , against which numberother Madras view was shown to us, and especially as that view was supported also by the records of several other cases in that High Court, hat Cutchi Memons, who had settled down in Madras, had regulated their affairs, since they had settled down amidst Hindus, according to Hindu law number only in matters of succession and inheritance, but also in matters of their property including the Hindu companycept of companyarcenary and survivorship. That being the position, there is numberquestion of our having to decide whether the Bombay view, as reflected in the decisions since Beaman, J., threw doubts on the dicta in the earlier decisions and the Madras view, as reflected in S. Haji Aboo Bucker Saits case 1 or of having to prefer one against the other. We do number do so number only because it is number necessary but also because were we to do so at this day, it might perhaps have the result of upsetting a number of titles settled on the basis of the decisions of each of the two High Courts and perhaps elsewhere too. The companyclusion, which we arrive at on companysideration of the decisions referred to above is that he Cutchi Memons who proceeded either from Cutch or from Bombay to Madras and who, it ap- pears, settled down amongst Hindus, Hindu surroundings and traditions there, regulated their affairs as regards their property, succession and inheritance according to the Hindu law which they had retained while in Cutch and to which they were already accustomed. It is true that some of the Cutchi Memons went over to the then State of Mysore either from Cutch or from Western India or Madras. As aforesaid, the family members of the deceased Haji Mahomed Hussain Sait settled down in Bangalore Civil Station sometime between 1928 and 1930. On the basis of that fact, reliance was placed on the decision of the then Rich Court of Mysore in Elia Sait v. Dharanavva 2 where the question for companysideration was whether the custom of adoption recognised in the A.I.R. 191 Md. 571. 2 10 Mys. L.J. 33. Hindu Law prevailed also among the Cutchi Memons there. The High Court, it appears, had both the Bombay view, and the Madras view as expressed in S. Haji Aboo Buckers case 1 but preferred the Bombay view as stated in Haji Oosmans case 2 . The High Court, however, gave numberreasoning for that preference number did it have before it, as appears from the decision itself, any evidence as to the customary law which the Cutchi Memons settled in Bangalore followed. That being so, that decision cannot be treated as a well companysidered judgment reflecting the position of the customary law applicable to Cutchi Memons who had set led down in the then Mysore State number was it companysequently binding on the High Court. The question next is, whether the subsequent legislation on which the Revenue relied changed in any way the position as laid down by Kumaraswamy Sastry, J ? The Cutchi Memons Act, XLVI of 1920 was an enabling Act as its long title and preamble indicate. Its second section provided that any Cutchi Memon, who had attained the age of majority and was at the time a resident in British India, companyld declare in he prescribed manner and before the prescribed authority that he desired to obtain the benefit of the Act, and thereafter such a declarant, his minor children and their descendants would, in matters of succession and inheritance, be governed by the Mahomedan law. It is numberodys case that any such declaration was ever made to get the benefit of the Act. The Act, therefore, would have numberoperation upon the respondents. Then came the Cutchi Memons Act, X of 1938, which was passed, inter alia, to facilitate administration of justice by the civil companyrts under a uniform established Code for all Cutchi Memons in various parts of the companyntry instead of a wide field of custom and usage which has to be traversed for a proper determination of the case. The Act came into force as from November 1, 1938. Sec. 2 provided that all Cutchi Memons, subject, however, to the provisions of s. 3, shall in matters of succession and inheritance be governed by the Mahomedan law. Sec. 3, subject to which the foregoing section applied, is a saving provision and provides that numberhing in the Act shall affect any right or liability acquired or incurred before its companymencement or any legal proceeding or remedy in respect of any such right or liability and any such legal proceeding or remedy may be companytinued or enforced as if this Act had number been passed. In between the two Acts was enacted the Muslim Personal Law Shariat application Act, XXVI of 1937. We do number have to companysider the effect of Ibis Act in view of Mr. Desai having in express terms stated that he was number relying upon it. A.I.R. 1921. Mad. 571. 2 1923 I.L.R. 47 Bom. 369. 2 48 The Cutchi Memons Act, X of 1938 was number extended at first to the Civil Station area in Bangalore where the deceased and the members of his family had settled down and carried on business. Until 1947, that area was administered by the Viceroy in his capacity as the Crown representative. A number of Acts passed by the Central Legislature were extended by him to this area with or without modifications but number the Cutchi Memons Act 1938. In 1948, after the said area was retroceded to Mysore, the Mysore Legislature passed the Retroceded Application of Laws Act, 1948 extending to the Civil Station area certain laws and enactments in force, in the princely State of Mysore. One of them was the Mysore Cutchi Memons Act, 1 of 1943, which was verbatitm the same as the Central Act, X of 1938, and companytained only three sections. The first section gave the tide of the Act. The second section provided that subject to S. 3, all Cutchi Memons shall in matters of succession and inheritance be governed by the Mahomedan law. Thus the option of being governed by the Mahomedan law companytained in 1920 Act was replaced by a uniform and mandatory provision. But the third section, which is a saving provision, inter alia, provided that numberhing in this Act shall affect any right or liability acquired or incurred before its companymencement or any legal proceeding or remedy in respect of such right or liability and any such proceeding or remedy may be, company- tinued or enforced as if this Act had number been passed. If the parties as aforesaid were governed in matters of pro- perty, succession and inheritance by the rules of Hindu law including the rules as to joint family property, its distribution according to the rule of survivorship and the right of a son in it by birth, the High Court would be right in its view that the accountable persons, having been born lone before 1948, had already acquired a right by birth in the property held by their father, a right expressly saved by S. 3 of the Act. There was, therefore, numberquestion of that interest Passing to them on the death of their father as envisaged by s. 3 of the Estate Duty Act. In this view, the judgement of the High Court under challenge has to upheld. The appeal, therefore, fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION10N Civil Appeal No. 40 of 1968. Appeal from the judgment and order dated July 25, 1967 of the Mysore High Court in Writ Petition No. 1860 of 1965. H. Dhebar, for the appellant. Srinivasamurthy and Naunit Lal, for respondent No. 1. B. Datar, for respondent No. 2. The Judgment of Vaidialingam and Palekar, JJ. was delivered by Palekar, J. Mathew, J. delivered a dissenting opinion. Palekar, J. This appeal by certificate granted by the High Court of Mysore raises an interesting point as to whether quarrying of Shahabad stone is an activity which companyld be properly described as stone breaking or stone crushing mentioned in the Schedule to The Minimum Wages, Act, 1949. By numberification issued by the Appropriate Government under the Minimum Wages Act, 1948 minimum wages were fixed for those employed in stone breaking or stone crushing in Gulbarga District. The appellant Inspector was of the view that respondent number Chittapore Stone quarrying Company Pvt. Ltd., Chittapurwhich was quarrying a variety of stone called Shahabad Stone in Chittapur, District Gulbarga, was engaged in the activity of stone breaking and stone crushing, and since respondent number 1 was in breach of some of the provisions of the Minimum Wages Act, 1948 and the rules made thereunder he adopted proceedings to enforce the provisions in the companyrt of the Munsif Magistrate, Chittapur, respondent number 3. Respondent number 1 thereupon filed a writ petition for quashing the proceedings Writ Petition No. 1860 of 1965 in the Mysore High Court alleging, inter alia, that the provisions of the Minimum Wages Act did number apply to the particular activity in which it was engaged because, in itsubmission, the activity was number one of stone breaking or stone-crushing but of mining limsestone slabs. The High Court held that the process of removing Shahabad stone involved breaking and crushing but it was also of the view that what was broken or crushed was number really stone but a substance which very nearly approximated to a mineral. In that view it quashed the proceedings before the Munsif Magistrate. The activity in which respondent number 1 is engaged is described as follows The earth which varies in depth from place to place over the limestone layers is removed by manual labour. This work of removing the soil is known as earth-work. The thin limestone layersfrom which the flooring stones are cut into regular sizes and which is the, main object of mining by us are reached after removing some thick layer of limestone over these thin layers. The removal of the overburden of earth and thick layers of lime-- stone is incidental to the mining operations companyducted by us. The main operation of our mining is to bare open the thin layers of limestone and cut them into regular sizes. It is submitted that numberstone breaking or stone crushing operations are carried on in our mines. The question is whether the operation described above can be appropriately described as stone breaking or stone crushing. The object of the Minimum Wages Act, 1948, as is well-known, is to provide minimum rates of wages in certain employments. Section 2 g defines scheduled employment as an employment specified in the Schedule, or any process or branch of work forming part of such employment. The Schedule has two parts and item number 8 in part number 1 refers to employment in stone breaking or stone crushing. The Act, therefore, provides that where the appropriate Government fixes by numberification a minimum wage to be paid to, those who are employed on stonebreaking or stone-crushing the employees will have to be paid the minimum wage so fixed. It was the appellants case that such a numberification is in operation in Gulbarga District of Mysore State and since the respondent number 1 was engaged in the activity of stone- breaking and stone-crushing in which workers have been employed the respondent was liable to pay minimum wages, as fixed. There is numberdefinition of stone-breaking or stone-crushing in the Act. But we know what that activity is in the companymon parlance of the business and companymercial world. It appears to us that it will be a futile exercise in semantice to try to explore what the companytent of a stone is-whether it is a mineral or number, or whether it is so called when it is obtained in open quarries or subterranean mines or whether breaking or crushing would also include cutting in dimensional forms. In the companymon acceptance of the business. and companymercial world, stone- breaking and stone crushing is a companymercial activity in which stone, in the sense of companymon rock, is, to fragments by mechanical means such fragments being marked or used for profit. In this companynection reference may be made to Madhya Pradesh Mineral Industry Association v. The Regional Labour Commissioner Jabalpur and others 1 and to the following observations therein at page 485. The word stone as popularly understood in ordinary parlance particularly when it is companypled with the word breaking or crushing would exclude manganese. When we speak of stone-breaking or stone-crushing numbermally we refer to stone in the sense of piece of rock, and that would exclude manganese. Employment in stone-breaking or stone-crushing in this sense would refer to quarry operation,,. Information extracted from the Encyclopaedia Britannica under the words stone and quarrying, shows that companymon rock which is companymercially exploited falls broadly two categories, one igneous, like granite, and the other sedimentary, like limestone. These rocks undergo a qualitative change under tremendous mountain pressures and then they are known as metamorphic. limestone, for example, becomes marble. All the above categories of rocks are generally found in two varieties-stratified and numberstratified. When rock is found in thin layers one over the other, it is known as stratified. Where it is number so found, it is number--stratified. Commercial exploitation of these two varieties is distinct. Non-stratified rock, which is found in abundance in quarries or otherwise, yields to profitable exploitation by breaking and crushing into smaller irregular fragments. The rarer stratified stone is much more valuable as it is found in layers which are skillfully removed to give large dimensional slabs. In the first case there. is generally blasting with the help of explosives. In the second blasting is avoided as it will cause damage to the layers. The end product in both is used. for companystruction mostly in buildings and roads. In limestone as in all stone, suitable stratified layers are companymercially exploited for dimensional quarrying by a very skillful process. The product namely the slab after being polished is used for flooring, facing and the like. Quarrying of Shahabad stone with which we are companycerned is of this type. The other kind of limestone, that is to say. number-stratified limestone is suitable for being broken and crushed into smaller fragments and it has its companymercial use in building companystruction. 1 1960 3 S.C.R. 476. manufacture of cement and the like Store-breaking and stone- crushing in relation to limestone is, therefore, that activity in which number-stratified limestone, recognised as rock, is broken or crushed into irregular fragments or sizes-and then marketed or otherwise used. The more valuable and rarer stratified limestone ,which is suitable for use as dimension stone is number the stone companymercially exploited for breaking and crushing. Hence the employment of quarrying Shahabad stone is number the same as the scheduled employment of stone breaking or stone crushing referred to in item 8 of the Schedule to the Minimum Wages Act. Consequently the minimum wages fixed for the employment of stone-breaking and stone-crushing will number apply to the operation of quarrying Shahabad stone which is the main activity of respondent number 1. The High Court was, therefore, right in quashing the proceedings under the Minimum Wages Act and the appeal must be dismissed. The appellant shall pay the companyts of respondent number 1. Mathew , J. The facts have already been stated. It is, therefore, unnecessary to rehearse them. The question for companysideration is whether Shahabad stone is stone within the meaning of that expression in item No. 8 in part 1 of the schedule and whether employment in quarrying Shahabad stone is employment in stone-breaking or stone-crushing within the meaning of the said item No. 8. In the affidavit in support of the writ petition, the nature of the work involved in quarrying Shahabad stone is described as follows - The earth which varies in depth from place to place over the limestone layers is removed by manual labour The thin limestone layers from which the flooring stones are cut into regular sizes and which is the main object of mining by us, are reached after removing some thick layers of limestone over these thin layers. The removal of the overburden of earth and thick layers of limestone is incidental to the mining operations companyducted by us. The main operation of our mining is to bare open the thin layers of limestone and to cut them into regular sizes. . . . The High Court was of the view that the word stone occur- ring in item No. 8 has to be understood as a piece of ordinary rock and that Shahabad stone cannot be regarded as the ordinary rock of the district but an exceptional Substance with exceptional quality About it and, therefore, it is number stone within the meaning of item No. 8 of the schedule. In Madhya Pradesh Mining Industry Association v. The Regional Labour Commissioner, Jabalpur and Others 1 this companyrt said In a chemical or geological sense stones may include manganese and that is one of the meanings given to the word in the Shorter Oxford Dictionary. On the other hand, the word stone as popularly understood in ordinary parlance particularly when it is companypled with the word breaking or crushing would exclude manganese. When we speak of stone-breaking or stone-crushing numbermally we refer to stone in the sense of piece of rock and that would exclude manganese. Employment in stone-breaking or stone-crushing in this sense would refer to quarry operations. . Therefore the word stone in item No. 8 must be taken as used in the sense of a piece of rock the question then is whether Shababad stone is stone in that sense for the purpose of item No. 8. Shahabad stone is numberhing but limestone. The companypanies which have been quarrying and selling these limestone slabs manufacture 4 different varieties which are used as building material for flooring, roofing, etc. see B. Rama Rao, Mineral Resources of Bidar, Gulbarga and Raichur Districts, published in Bulletin No. 23 of Department of Mines and Geology, Bangalore, 1964, v. 51 . Rocks are of three kinds- igneous, sedimentary and metamor- phic. Limestone is a principal kind of sedimentary rock see Encyclopaedia Britannica, Vol. 10, pp., 163-165 . Stone for the purpose of item No. 8 will include limestone Stone, as the word is most generally used, is a piece of rock or of the solid crust of the earth, and hence of natural origin and generally of inorganic companyn position Kinds of stones or rocks are distinguished by prefixes e.g., limestone, sandstone,. See, Encyclopaedia Britannica, vol. 21 p.436. But it is said that rocks are generally found in two varietiesstratified and number-stratified that when rock is found in , thin layers one over the other, it is known as stratified and where it is number so found it is number- stratified It is also said that number-stratified rock which is found in abundance in quarries or otherwise, yields to profitable exploitation by breaking and crushing into smaller irregular fragments and that stratified stone is much more valuable as it is found in layers which are skilfully removed to give large dimensional slabs. I am unable to see any distinction between stone obtained by crushing or breaking of number-stratified rock and 1 1960 3 S.C.R. 476 at p. 485. that obtained by cutting stratified rock, for the purpose of companystructing the word stone in item No. 8 as stone obtained in both the cases is a piece of rock. In Madhya Pradesh Mining Industry Association v. The Regio- nal Labour Commissioner, Jabalpur 1 , the mining operation was for extraction of manganese ore and the process companysisted of removal of over-burden, breaking of big mineral stones like boulder to get at manganese. On these facts, the Court held that stone-breaking or crushing was incidental to the extraction of manganese. The Court further said that the operation of stone-breaking or stone- crushing referred to in item No. 8 of part I of the schedule must refer to the main operation in the process and number to the incidental operation. The question whether a particular operation is main or incidental, therefore, arose for companysideration in respect of the mining operation itself. It is obvious that the paragraph in the affidavit in support of the writ petition which has already been extracted was inserted with an eye to bring the case within the ambit of this ruling. But here, the limestone itself is extracted for the purpose of being used as building material for flooring and roofing. The operation of quarrying limestone, therefore, is number an incidental purpose but the main purpose itself. In Ray Limestone and Co. another v. Sub-Divisional Officer Ranchi 2 , the Court was companycerned with the question whether quarrying operation for extracting limestone would involve employment in stone-breaking and stone-crushing within the meaning of item 8. The Court held that quarrying of limestone involved stone-breaking or stone-crushing and that employment in the quarry would attract item No. 8 of the schedule. But companynsel for the 1st respondent companytended that quarrying operation in extracting limestone does number involve stone- breaking or stone-crushing. He companytended that only a restricted meaning can be given to the world stone- breaking, that breaking a piece according to size from a large block of rock by a sharp weapon would number be stone- breaking or stone-crushing, and that it is only when rock is blown up by a dynamite. or broken by a sledge hammer or other blunt instrument that the process can be called stone-breaking or stone-crushing. In other words, the companytention was, if rock is broken to pieces by cutting with a sharp weapon, that wouldnot involve stone-breaking or stone-crushing. This, I think, is too metaphysical a distinction to be imported in the companystruction of item 8 of the schedule. Looking at the object of the Act, I do number think that the distinction between cutting rock into pieces by a sharp instrument and breaking it into 1 1960 3 S.C.R. 476. A.I.R. 1968 Patna 39. 8Sup.CI/72 pieces by an instrument like a hammer, though fine from a meti. culous linguistic stand-point would be rational from the purposive approach. Both processes involve stone- breaking. I agree with the High Court when it said we do number see why stripping open thin layers of Shahabad, stone and cutting them to regular sizes, which are the main operations, should number be regarded as stone-breaking or, stone-crushing in a quarry so as to bring it within the ambit of item 8 in the schedule. Consequently, we are unable to accept the companytention of, Mr. Breenivasa Murty that number stone-breaking or stonecrushing operations are involved in quarrying of Shahabad stones or that such operations are incidental and number the main operations. . . In State of Maharashtra v. Mohanlal Devichand Shah 1 Sikri J. as he then was, speaking for the Court, quoted with approval the following passage from Madhya Pradesh Mineral Industry .Association v. The Regional Labour Commissioner, Jabalpur 2 . When we speak of stone-breaking or stone- crushing numbermally we refer to stone in the sense of piece of rock and that would exclude manganese. Employment in stone- breaking or stone-crushing in this sense would refer to quarry operations. and said that This Court thus read Entry 8 item 8 to refer to quarry operations. . . Quarry is defined in Venkataramaiyas Law Lexicon, Vol. IT, 1971 Ed., p. 1322, as follows -- As a numbern the term quarry has been defined as the spot where rock is quarried an excavation or other place from which stone is taken by cutting, blasting or the like . . .It is open excavation usually for obtaining building stone, slate or limestone. . . . In Shorter OxfordEnglish Dictionary, 3rd edition, p. 1636, the meaning of quary is given as hereunder-- An excavation from which stone for building, etc., is obtained by cutting, blasting or the like. When this Court said that employment in stone-breaking or stone-crushing would refer to quarry operation this Court was fully alive to the process involved in quarrying operation. That 1 19653 S.C.R. 461, at p. 465-6. 2 1960 3 S.C.R. 476. the operation involves the extraction of limestone by cutting also is clear from the definition of quarry. I therefore, companye to the companyclusion that employment in quarrying operation for extraction of Shahabad stone is employment within the ambit of item 8 of Part I of the Schedule. I would allow the appeal and dismiss the writ petition without any order as to companyts. ORDER In accordance with the judgment of the majority, the appeal is dismissed. The appellant shall pay the companyts of respondent No.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 67 of 1968. Appeal by special leave from the judgment and order dated January 18, 1968 of the Patna High Court in Criminal Appeal No. 407 of 1966. C. Agarwala and V. J. Francis, for the appellant. P. Jha, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Patna High Court upholding the companyviction of the appellant under s. 411 of the Indian Penal Code for which a sentence of three years rigorous imprisonment was imposed. According to the case of the prosecution a Sen-Raleigh cycle was stolen from the possession of Sheo Charan Lal. He reported the matter to the Police on March 25, 1965. It appears that on May 11, 1965 the Station House Officer, Incharge Giridih Police Station A.D.N, Sinha learnt while he was moving about in the town on the Moharram day that a thief was running away with a Sycle. The alleged thief was apprehended and the cycle in his possession was taken into custody. The name of that person was Mohnd. Siddique. He made, a statement to the police officer which led him to search the premises of the appellant. As a result of the search seven cycles including the Sen-Raleigh cycle belonging to Sheo Charan Lal which was stolen on March 24, 1965 and three other cycles were recovered from the house of the appellant, Mohd, Siddique and the appellant were tried, the former under s. 379 and the latter under s. 411 of the Indian Penal Code. Siddique was companyvicted and sentenced but he did number file any appeal. It was number disputed before the High Court that the Sen- Raleigh. cycle was recovered along with nine other cycles as a result of the search of the house of the appellant by D.N. Sinha the S.H.O. on May 11, 1965. It was also proved that that cycle was stolen. The explanation given by the appellant was that three out of the 10 cycles belonged to the members of his family and the other seven had been pledged with him as he carried on the business of a pawn broker. The Sen-Raleigh cycle had been pledged by Siddique with him and that is how the said cycle was recovered from his possession. P.W. I Jayantilal and P.W. 2 Shyam Narain, Singh deposed that the appellant as well as his brothers and other members of his family lived in the same house. It was further stated by them that the appellant and his brothers worked as companytractors and they also took things on pawn and advanced money. According to Shyam Narain Singh he had seen ornaments and utensils being taken on pledge by the appellant and members of his family although he had number seen him taking any cycle on pledge. The appellant also produced a document Exh.DA which was scribed by one Baldev Pandit and had been attested by some witnesses. In this document it was stand that Rs. 80 bad been received by Siddique by way of advance from the appellant and that the cycle in question had been pledged with the latter. Neither the scribe number Mahabir Sao or Nanden who were the attesting witnesses gave evidence. D.W. I Ramjit Sao a neighbour deposed that the document Exh.A had been scribed in his presence and that Rs. 80/- had been paid to Siddique. Siddique had pawned the cycle by way of security for the advance. The companyrts below found that this document had been manufactured for the purpose. of the case implying thereby that it was number genuine. The appellant does number appear to have produced any evidence about the pledging of the other cycles which were found in his possession number did he point to any other article apart from the cycles which had been pledged with him in the companyrse of his business when the, search was made of his house by the S.H.O. A.D. N. Sinha. The High Court, apart from other facts, took the following matters into companysideration while upholding the companyviction of the appellant Although two defence witnesses had been examined by the appellant there was numberhing to show that he had taken the ordinary precaution of making proper enquiries about the ownership of the cycle before advancing any loan on its security. It was significant that the document Exh. A was quite silent as to the source from where Siddique had got that cycle and when he had acquired it. These facts showed that the transaction companyld number have been a bona fide transaction by the person carrying on bona fide business of advancing loans on pledge. The Investigating Officer had deposed to the fact that after the recovery of 10 cycles he made a verification from the records of the Police station and found that besides the Sen-Raleigh cycle cases had been instituted earlier with respect to four more cycles out of the recovered cycles. Even if it be assumed that this evidence was number admissible according to the charge as framed with regard to two cycles the same had been recovered from the place of the appellant which had been admitted by Siddique as having been stolen by him. There companyld be numberdoubt that at least two of the 10 cycles recovered from the possession of the appellant were stolen properties. Considering the above aspect as well as the fact that the companyduct of the appellant in companynection with the taking possession, of the cycle in question from Siddique was number at all companysistent with the companyduct of a man of ordinary prudence it was number possible to accept the appellants companytention that he had taken possession, of the cycle without knowledge or belief that it was stolen. Learned companynsel for the appellant has subjected the above reasons given by the High Court for sustaining the companyviction to criticism on several grounds. It has been firstly pointed out that admittedly the trial was companyfined to the alleged theft of the SenRaleigh cycle and its having been received by the appellant in circumstances which made him guilty of an offence under s. 411 ,of the Indian Penal Code the prosecution relating to the other cycles should number have been taken into account. It has next been urged that the whole approach with regard to the appellant number having made bona fide enquiry from Siddique before accepting the Sen-Raleigh cycle in pledge was unsustainable in law. We may in this companynection refer to a judgment of Lord Widgery C.J. in Atwal v. Massey 1 in which it was laid down that in order to establish an offence under s. 22 of the English Theft Act 1968 which is similar in terms to s. 411 of the Indian Penal Code, it was number sufficient to show that the goods had been received in circumstances which would have put a reasonable man on enquiry the question was a subjective one was the appellant aware of the theft or did he believe the goods to be stolen or did he, suspecting the goods to be stolen, deliberately shut his eyes to the circumstances ? The next submission on behalf of the appel- lant is that the companyrect ambit and scope of the presumption which can be drawn under s. 114, illustration a of the Evidence Act was number companysidered by the High Court or the companyrts below. Section 114 provides that the companyrt may presume the exist- ence of any fact which it thinks likely to have happened regard being had to the companymon companyrse of natural events, human companyduct and public and private business, in their relation to facts of the particular case. Illustration a is as follows that a person who is in possession of stolen property soon after the theft is either the thief or has received the goods knowing that to be stolen unless he can account for his possession. In Otto George Gfeller v. The King 2 the law as enunciated in Rex v. Abramovitch 3 was accepted as representing the companyrect statement on the subject of the presumption to be drawn in such cases. That was in the following terms Upon the prosecution establishing that the accused were in possession of goods recently stolen they may in the absence of any explanation by the accused of the way in which the goods came into their possession which might reasonably be true find them guilty, but that if an explanation were given which the jury think might reasonably be true, and which is companysistent with innocence although they were number companyvinced of its truth the 1 1971 3 All. E.R. 881. 3 1914 84 L.J. K.B. 391. 2 1943 P.C. 211. prisoners were entitled to be acquitted inasmuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond reasonable doubt of the guilt of the accused. It has been urged before us that the appellant had given an explanation of how he came into possession of the Sen- Raleigh cycle, his explanation being that it had been pledged with him by Siddique in the ordinary companyrse of business which he was carrying on and that explanation had been sought to be supported by evidence. The two prosecution witnesses had testified that the appellant and other members of his family were carrying on the business of pawn brokers apart from other avocations which they were following. It is emphasised that according to the above statement of law even if the companyrts were number companyvinced of the truth of the explanation but if the same companyld be held to be reasonably true the prosecution must be companysidered to have failed to discharge the duty cast upon it of satisfying the companyrt beyond reasonable doubt of the guilt of the appellant. The question that the companyrts, therefore, had to decide was whether the explanation given by the appellant in view of the admission that the Sen-Raleigh cycle was stolen property companyld be held to fall within the above rule, namely, whether it might reasonably- be true even though the companyrts were number companyvinced of its truth. Since the companyrts below and the, High Court have taken some irrelevant and inadmissible matters into companysideration we have examined with care the explanation given by the appellant in the light of the entire facts and we are unable to companye, to the companyclusion that the explanation companyld be regarded such as might reasonably be true. The first and the most important fact is that the appellant had sought to prove the document ext. DA to support the transaction of pledge. That document bad rightly been found number to have been proved. Apart from the Sen-Raleigh cycle several other cycles were found in the possession of the appellant which he claimed to have been pledged with him. No articles of any other kind were either pointed out or claimed to have been pledged with the appellant or with members of his family which would numbermally have been done if the version given by him that the business of pawn brokers was being carried on had any truth in it. Pawn-brokers are ordinarily and in numbermal companyrse expected to maintain some books of account or some documents which companytain the particulars of the transactions relating to pledge. There was numberindication or suggestion by the appellant that he was maintaining any such books of account or documents. The above circumstances, in our opinion, were sufficient to show that the companyrt would be justified in holding that the explanation given by the appellant companyld number reasonably be true. A presumption, therefore, companyld immediately be drawn in accordance with S. 114, Illustration a of the Evidence Act. There was hardly any evidence worth the name by which it companyld be said that the presumption had been rebutted by the appellant. In the result the companyviction and the sentence of the appellant are maintained and the appeal is dismissed.

Case appeal was rejected by the Supreme Court

In the present ease although the appellant was number shown to have attempted any explanation of failure to apply for the certificate at the proper time, yet, the, special leave petition having been granted and the case having passed without objection, beyond the stage of interim orders and printing of records, the Court heard arguments on merits also. 144 F-G Per Sikri, C.J. companycurring -The High Court can regulate the time at which and the manner in which the application for certificate WI be made. Rule 28 Order 4 does number take away any right companyferred by cl. 15 of the Letters Patent. It only regulates the manner of the exercise of that right. Union of India v. Ram Kanwar, 1962 3 S.C.R. 313, referred to. Per Ray Beg, JJ.-Expositions of the doctrine of lis pendens indicate that the need for it arises from the very nature of the jurisdiction of Courts and their companytrol over the subject matter of litigation so that the parties litigating before them may number remove any part of the subject matter outside the power of companyrts to deal with it and thus make proceedings infructuous. 153C The purpose of s. 52 of the Transfer of Property Act is number to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. In the present case the Courts had given directions to safeguard such just and equitable claims as the purchaser may have obtained without trespassing on the rights of the plaintiff- respondent in the joint property involved in the partition suit before the Court. Hence, the doctrine of lis pendens was companyrectly applied 153H, 154A In regard to the sale under Ex. B7 the High Court had rightly distinguished cases cited on behalf of the appellant before it by holding that exemption from the scope of lis pendens cannot be extended to voluntary sales in any case. 149 A An examination of the sale deed Ex. B7 disclosed that it was number companyfined to the satisfaction of decretal amounts. Other items were also found in it. The sale deed did number purport to be on behalf of the Hindu joint family of which the plaintiff and the first defendant companyld be said to be members. The sons of the first defendant were among the sellers but number the plaintiff. At most it companyld be a sale binding on the shares of the sellers. The first defendant as well as the appellant having denied that the properties in dispute were joint, companyld number take up the position that the sales were binding on the whole family. Therefore it companyld number be held that the assumption of the High Court that the voluntary sale companyld number bind the whole family, of which the first defendant was the Karta, was incorrect. Bishan Singh v. Khazan Singh, 1959 S.C.R-. 878, distinguished. As regards the revenue sale under Ex. B51 the assumption that the dues companyld be realised as arrears of land revenue would only apply to the interest of the borrower so, far as clause 7 1 a of Act 19 of 1883 is companycerned. The proviso enacts that even recoveries falling under s. 7 1 C do number affect prior interests of persons other than the borrower or of the party which companysents to certain loans. In the present case the borrower had himself taken up the case that the loan was taken by him individually, for the purpose of purchasing a pumping-set installed. on the land. It did number therefore follow that this liability was incurred On behalf of the joint family unless it amounted to an improvement of the joint land. Every transaction of the first defendant or in respect of joint property in his possession companyld number affect rights of other members. it was for this reason that section 7 1 a was number specifically applied by the High Court. But at the same time, the direction, that the properties sold should, so far as possible, be allotted to the first defendant meant that the purchaser companyld enforce his rights to them if they came to the share of the first defendant. 151D-F Where a statutory provision is relied upon for recovery of dues, the effect of it must be companyfined to what the statute enacts. Even under the English law the terms of the statute displace any claim based on the prerogatives of the Crown. And in numbercase can the claim whatever its basis, justify a sale of that property which does number belong to the person against whom the claim exists. 151H Builders Supply Corporation v. The Union of India, 1965 2 C.R. 289 and Attorney-General v. Dekerysis Royal Hotel., Ltd., 1920 A.C. 508, referred to. Per Sikri C.J. companycurring -Section 42 of the Madras Revenue Recovery Act provides that all lands brought to sale on account of arrears of revenue shall be sold free of all encumbrances. The liability of the land to be sold under s. 7 c of the Act was a pre-existing charge and that subsisted as from the date of the loans. This was number affected by the institution of the suit for partition. This change companyld be enforced by the State numberwithstanding the pendency of the partition suit. No decree in the partition suit companyld have affected the charge. Therefore, if the State had sold only the property in respect of which loan was taken the purchaser was number prejudiced by the principle of lis pendens. Therefore the direction of the High Court was right insofar as it directed the trial companyrt to separate the properties for the improvement of which the loans under the Land Improvement Loans Act were taken, from the other properties. 159H-160B CIVIL APPELLATE JURISDICTION Civil Appeal No. 2152 of 1968. Appeal by special leave from the judgment and decree dated July 19, 1968 of the Madras High Court in Second Appeal No. 1173 of 1964. C. Chagla, R. Gapalakrishnan and T. L. Garg, for the appellant. K. Ramamurthi, Ramamurthy and Vineet Kumar, for res- pondents Nos. 1 and 6 to 9. The Judgment of A. N. RAY and M. H. BEG was delivered by BEG SIKRI C.J. gave a separate Opinion. Beg, J. Jayaram Mudaliar, the Appellant before us by Special Leave, purchased some lease hold land for Rs. 10,500/- from Munisami Mudaliar and others under a sale deed of 7-7-1958 Exhibit B-7 and some other lands shown in a sales certificate dated 15-7-1960, Exhibit B-51 sold to him for Rs. 6,550/- at a public auction of immovable property held to realise the dues in respect of loans taken by Munisami Mudaliar under the Land Improvement Loans Act 19 of 1883. Both Jayaram and Munisami, mentioned above, were impleaded as companydefendants in a Partition suit, in Vellore, Madras,, number before us in appeal, companymenced by a pauper application dated 23-6-1958 filed by the plaintiff-respondent Ayyaswami Mudaliar so that the suit must be deemed to have been, filed on that date. The plaintiff respondent before us had challenged, by an amendment of his plaint on 18-9-1961, the validity of the sales of land mentioned above, companysisting of items given in schedule B to the plaint, on the ground, inter-alia, that these sales, of joint property in suit, were struck by the doctrine of lis pendens embodied in section 52 of the Indian Transfer of Property Act. As this is the sole question, on merits, raised by the appellant before us for companysideration, we will only mention those facts which are relevant for its decision. Before, however, dealing with the above-mentioned question, a preliminary objection to the hearing of this appeal may be disposed of. The Trial Court and the Court of first appeal having held that the rule of lis pendens applied to the sales mentioned above, the appellant purchaser had filed a second appeal in the High Court of Madras, which was substantially dismissed by a learned Judge of that Court, on 19-7-1968, after a modification of the decree. Leave to file a Letters Patent appeal was number asked for in the manner required by Rule 28, Order IV of the Rules of Madras High Court, which runs as follows When an appeal against an appellate decree or order has been heard and disposed of by a single Judge, any application for a certificate that the case is a fit one for further appeal under clause 15 of the Letters Patent shall be made orally and immediately after the judgment has been delivered. But, the appellant, after obtaining certified companyies of the judgment and decree of the High Court, sent a letter to the Registry that the case be listed again for obtaining, a certificate of fitness to file a Letters Patent appeal. The case was, therefore, listed before the learned Judge and an oral application which was then made for grant of a certificate, was rejected on 6-9-1968 on the ground that it had number been made at the proper time. It was companytended, on behalf of the respondent, that, in the circumstances stated above, the appellant must be deemed to have been satisfied with the Judgment of the High Court as his Counsel did number ask for leave to file a Letters Patent appeal as required by Order IV Rule 28 of the Rules of the Madras High Court that is to say, immediately after the judgment has been delivered . The following observations of this Court in Penu Balakrishna Iyer Ors. v. Sri Ariva M. Ramaswami lyer Ors. 1 were cited to companytend that, the appeal before us should be rejected in limine 1 1964 7 S.C.R. 49 52-53 .lm15 Normally, an application for special leave against a second appellate decision would number be granted un-. less the remedy of a Letters Patent Appeal has been availd of. In fact, numberappeal against second appellate decisions appears to be companytemplated by the Constitution .as is evident from the, fact that Art. 133 3 expressly provides that numbermally an appeal will number lie to this Court from the judgment, decree, or final order of one Judge of the High Court. It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the companytentions raised by the appellant. But even in such cases, it is necessary that the remedy by way of a Letters Patent Appeal must resorted to before a party companyes to this Court. In reply to the preliminary objection, Mr. Chagla, appearing for appellant, has assailed the validity of the above mentioned Rule 28 of Order IV itself. It is submitted that the rule companyflicts with the provisions of clause 15 of the Letters Patent of the Madras High Court requiring only that the Judge who passed the Judgment should declare that the case is fit one for appeal as a companydition for appealing. It was urged that the period of limitation for filing an appeal should number, in effect, be cut down by a rule such as the one found in Rule 28, Order IV of the Rules of Madras High Court. It was urged that, before article 117 of the Limitation Act of 1963 introduced a period of thirty days from a decree or order for filing a Letters Patent appeal, the period of limitation for such appeals fell under the residuary article 181 of the old Limitation Act. As applications for certification fen outside the provisions of the Civil Procedure Code and there was numberspecific provision for them in the Limitation Act the High Court companyld frame its own rule prescribing the mode and time for making such applications. Rule 28 of Order IV of the Madras High Court does number purport to affect the power to give the declaration companytemplated by clause 15 of the Letters Patent,. In some High Courts, there is numberrule of the Court laying down that the application should be oral and made immediately after the judgment has been delivered. It is, however, evident that a rule such as Rule 28 of Order IV the Madras High Court is most useful and necessary particularly when a period of thirty days only for filing an appeal has been prescribed in 1963. The Judge pronouncing the judgment can decide then and there, in the presence of parties or their companynsel, whether the case calls for a certificate. In a suitable case, where a party is able to prove that it was prevented due to some cause beyond its companytrol from asking for leave at the proper time, the Judge companycerned may companydone number-compliance by a party with Rule 28, Order IV, of the Madras High Court, or extend time by applying Section 5 of the Limitation Act. This salutary rule companyld number, therefore, be held to be ultra vires or invalid. There is, however, another answer to the preliminary objec- tion. It was companytended that the case before us is companyered by what was laid down by this Court in Penu Balakrishna Iyers case Supra when it said at page 53 we do number think it would be possible to lay down an unqualified rule that leave should number be granted if the party has number moved for leave under the Letters Patent and it cannot be so granted, number is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. Having regard to the wide scope of the powers companyferred on this Court under Art. 136, it is number possible and, indeed, it would number be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under Art. 136 should be exercised or number, and if yes, on what terms and companyditions, is a matter which this Court has to decide on the facts of each case. In that particular case, this Court had actually heard and allowed the appeal by Special leave because it held that there was numbergeneral inflexible rule that special leave should be refused where the appellant has number exhausted- his rights by asking for a certificate of fitness of a case and because that case called for interference. It is urged before us that the appellant had done whatever he possibly companyld, in the circumstances of the case, to apply for and obtain a certificate of fitness after going through the judgment of the High Court, so that the rule that alternative modes of redress should be exhausted before companying to this Court had been really companyplied with. Each. case must, we think, be decided upon its own facts. In the case before us, although the appellant was number shown to have attempted any explanation of failure to apply for the certificate at the proper time, yet, ,he special leave petition having been granted, and the case having passed, without objection, beyond the stage of interim orders and printing of the records, we have heard arguments on merits, also. The merits may number be companysidered. The challenge on the ground of lis pendens, which had been accepted by the Courts in Madras, right up to the High Court, was directed against two kinds of sales firstly, there was the ostensibly voluntary sale of 7-7-1958 under a sale deed by the defendant Munisami Mudaliar and his major son Subramanian Mudaliar and three minor sons Jagannathan, Duraisami alias Thanikachalam, and Vijayarangam in favour of the defendant appellant and, secondly, there was the sale evidenced by the,. sale certificate Exhibit B. 51 of 15-7-1960 showing that the auction sale was held in order to realise certain, arrears under hire purchase system due to Shri O. D. Munisami Mudaliar. The words due to must in the companytext, be read as due from because falsa demostration number numberet. The deed of the voluntary sale for Rs. 10,5001/- showed that Rs. 7375.11 Ans. were to be set off against the money due on a. decree obtained by the purchaser against the sellers in original. suit 2/56 of the Vellore Sub-Court , Rs. 538.5 Ans. were left to liquidate the amount due for principal and interest due to the purchaser on a bond dated 14-10-1957, by Munisami Mudaliar, Rs. 662.9 Ans. was to be set off to liquidate another amount due to the purchaser from Munisami on account of the principal and, interest on another bond executed by Munisami, Rs. 1250.0.0 was left to pay off and liquidate the balance of a debt due to one Thiruvenkata Pillai from Munisami, Rs. 100.0.0 were meant to settle a liability to the Government in respect of a purchase of cattle and for digging of some well, Rs. 51.13 Ans. were to go, towards settling a similar liability, and only Rs. 521.11 Ans. were paid in cash to the seller after deducting other amounts for meeting liabilities most of which were shown as debts to the purchaser himself. It may be mentioned here that, on 17-1-1944, Munisami had executed a mortgage of some of the property in Schedule B of the plaint for Rs. 7,500/ in favour of Kannayiram, and he had executed a second mortgage in respect of one item of property of Schedule B in favour of Patta Mal, who had assigned his rights to T. Pillai. A third mortgage of the first item of Schedule B properties was executed on 27-5- 1952 by Munisami, in favour of the appellant Jayaram, was said to be necessitated by the need to pay arrears of Rs. 3,000/- incometax and for discharging a debt and a promote in favour of a man called Mudali. In 1955, an original suit No. 124/1955 had been filed by T. Pillai who had obtained orders for the sale of the first item of Schedule B properties shown in the plaint. The original suit No. 2 of 1956 had been filed for principal and interest due on 27-5- 1952 to the appellant who had obtained an attachment on 5-1- 1956 of some schedule B properties. The appellant had obtained a preliminary decree on 25-1-1956 in his suit and a final decree on 14-9-1957. All these events had taken Place before the institution of the partition suit on 23-6-1968. But, the voluntary sale to satisfy decretal amounts was executed after this date. The second sale was an involuntary sale for realisation of dues under the provisions of section 7 of the Land Improvement Loans Act 19 of 1883 which companyld be realised as arrears of land revenue. There was numberhing in the sale certificate to show that the due for- which properties were sold were of anyone other than Munisami individually. On the facts stated above, the appellant Jayaram claims that both kinds of sales were outside the purview of the doctrine of lis pendens inasmuch as both the sales were for the discharge of preexisting liabilities of the Hindu joint family of which Munisami was the karta. The liabilities incurred by Munisami, it was submitted, as karta of the family, had to be met, in any case, out of the properties which were the subject matter of the partition suit. It was urged that where properties are liable to be sold for, pay- ment of such debts as have to be discharged by the whole family, ,only those properties would be available for partition in the pending suit which are left after taking away the properties sold for meeting the pre-existing liabilities of the joint family. In the case of the sale for discharging dues under the Land Improvement Loans Act it was also companytended that they obtained priority .,over other claims, and, for this additional reason, fell outside, the scope of the principle of lis pendens. The defendant-respondent Munisami and the defendant appellant Jayaram had both pleaded that the properties in suit were acquired by Munisami with his own funds obtained by separate business in partnership with a stranger and that Ayyaswami, plaintiff, had numbershare in these properties. The plaintiff respondents case was that although the properties were joint, the liabilities sought to be created and alienations made by Munisami were fraudulent and number for any legal necessity, and, therefore, number binding on the family. The Trial Court had found that the properties given in Schedule B were joint family properties of which the defendant respondent Munisami was the karta in possession. This finding was affirmed by the first Appellate Court and was number touched in the High Court. It did number follow from this finding that all dealings of Munisami with joint family properties, on the wrong assumption that he was entitled to alienate them as owner and number as karta, would automatically become binding on the joint family. A karta is only authorised to make alienations on behalf of the whole family where these are supported by legal necessity. It was numberpartys case that the alienations were made on behalf of, and, therefore, were legally binding on the joint family of which plaintiff-respondent Ayyaswami was a member., The Trial Court recorded a finding on which the learned Counsel for the appellant relies strongly There is over- whelming documentary and oral evidence to show that the sale deed Exhibit B.7 and the revenue sale are all true and supported by companysideration and that the 12th Defendant would be entitled to them, if these sales were number affected by the rule of lis pendens Within the meaning of Section 52 of the Transfer of Property Act. It may be mentioned here that the 12th Defendant is numberother than, the appellant Jayaram Mudaliar, the son-in-law of defendant respondent Munisami Mudaliar, who had purchased the properties companyered by both the impugned sales. The plea of the plaintiff-respondent Ayyaswami that the sales in favour of Jayaram, the 12th defendant-appellant, were fraudulent and fictitious and the trial Courts decree for the partition included the, properties companyered by the two impugned sales evidenced by Ex. B.7 and B.5 1, yet, the Commissioner who was to divide the properties by metes and bounds, was directed to allot to Munisamis share, so far as possible, properties which were companyered by Exhibit B.7, and B.51. This implied that the liabilities created by the decrees for whose satisfaction the sale deed dated 7-7-58 Exhibit B-7 was executed and the revenue sale of 16-3-1960 for loans under an agreement were treated as the separate liabilities of the defendant Munisami and number those of the joint family. The Trial Court as well as the First Appellate Court had also rejected the plea that the revenue sale of 16-3-1960 to satisfy pre-existing liabilities of Munisami had any priority over the rights of the plaintiff-respondent may get in the partition suit. The result was that the partition suit was decreed subject to a direction for the allotment of the Properties companyered by Exhibit B. 7 and B. 51 so that the purchaser may retain these properties if they were allotted to Munisami. The High Court of Madras had described the sale of 7-7-1958 as a voluntary alienation, and, thereby, placed it on a footing different from an involuntary sale in execution of a decree in a mortgage suit. The obligations incurred before the sale of 7-7-1958, by reason of the decrees in the mortgaged suits, were number on this view, liabilities which companyld be equated with either transfers prior to the institution of the partition suit or with sales in execution of mortgage decrees which are involuntary. So far as the revenue sale was companycerned, the High Court, after setting out the terms of Section 7 of the Land Improvement Loans Act 19 of- 1883, held that only that land sold was to be excluded from the purview of the principle of lis pendens for the improvement of which some loan was taken. This meant that only that part of the loan was treated as a liability of the joint family as companyld be said to be taken for the joint land. It, therefore, modified the decrees of the Courts below by giving a direction that further evidence should be taken before passing a final decree to show what land companyld be thus excluded from partition. The plaintiff-appellant has relied upon certain authorities laying down that the doctrine of lis pendens is number to be extended to companyer involuntary sales in execution of a decree in a mortgage suit where the mortgage was, prior to the institution of the suit in which the plea of lis pendens is taken, because the rights of the purchaser in execution of a mortgage decree date back to the mortgage itself. They are Chinnaswami Paddayachi v. Darmalinga Paddyachi 1 Gulam Rasool Sahib v. Hamida Bibi 2 , Baldeo Das Bajoria Ors. v. Sarojini Dasi Ors., 3 Har Prashad Lal v. Dalmardan Singh 4 . Reliance was also placed on the principle laid down in Sityam Lal Anr. v. Sohan Lal Ors., 5 to companytend that, since Section 52 of the Transfer of Property Act does number protect transferors, a transfer on behalf of the whole joint Hindu family would be outside the purview of the principle in a partition suit. The companytention advanced on the strength of the last mentioned case erroneously assumes that the impugned sales were on behalf of the joint family. Learned Counsel for the plaintiff-respondent has, in reply, drawn our attention to the following observations of Sulaiman, Ag. C.J., expressing the majority opinion in Ram Sanehi Lal Anr. v. Janki Prasad Ors. 6 FB . . . . the language of S. 52 has been held to be applicable number only to private transfers but also to Court sales held in execution of decrees. S. 2 d does number make S. 52 inapplicable to Ch. 4, which deals with mortgages. This is number well-settled vide Radhamadhub Holdar v. Manohar Mukerji A and Moti Lal v. Kharrabuldin B followed in numerous cases out of which mention may be made of Sukhadeo Prasad Jamna C . A 1888 15 Cal. 75615 I.A. 97 B 1898 25 Cal. 17924 I.A. 170. C 1901 23 All. 60 1900 A.W.N. 199. But, as we have numberactual sale in execution of a mortgage decree, this question need number be decided here. Another decision to which our attention was drawn was Maulabax v. Sardarmal Anr. 7 . The suggestion made on behalf of the appellant, that attach- ment of some schedule B property before judgment in the purchasers mortgage suit companyld remove it from the ambit of lis pendens, is quit,-, unacceptable. A companytention of this kind was, repelled, in K. N. Lal v. Ganeshi Ram, 8 by this Court as clearly of numberavail against the embargo imposed by Section 52 of the Transfer of Property Act. AIR 1932 Madras 566. AIR 1929 Calcutta 697. AIR 1928 All. 3. AIR 1952 Nag. 341, AIR 1950 Madras 189. ILR 32 Calcutta 891. AIR 1931 All. P. 466 480. 8 1970 2 S.C.R. 204 at 21 The High Court had rightly distinguished cases cited on behalf of the appellant before it by holding that exemption from the scope of As pendens cannot be extended to voluntary sales in any case. Obviously, its view was that, even where a voluntary sale takes place in order to satisfy the decretal amount in a mortgage suit, the result of such a sale was number the same as that of an involuntary sale in the companyrse of execution proceedings where land is sold to satisfy the decree on the strength of a mortgage which creates an interest in the property mortgaged. The High Court had observed that, as regards the satisfaction of the mortgage decree in his favour, which was part of the companysideration for the sale of 7-7-1958, the appellant purchaser decree holder companyld get the benefit of Section 14 Limitation Act and still execute his decree if it remained unsatisfied due to failure of companysideration. An examination of the sale deed of 7-7-1958 discloses that it is number companyfined to the satisfaction of the decretal amounts. Other items are also found in it. The sale deed does number purport to be on behalf of the Hindu joint family of which Ayyaswami the plaintiff and Munisami Defendant No. 1 companyld be said to be members. It numberdoubt mentions the sons of Munisami Mudaliar but number Ayyaswami, plaintiff, among the sellers. At most, it companyld be a sale binding on the shares of the sellers. As already indicated, Munisami, Defendant-Respondent, as well as Jayaram Defendant- Appellant, having denied that the, properties in dispute were joint, companyld number take up the position that the sales were binding on the whole family. Therefore, we are unable to hold that the assumption of the Madras High Court that the voluntary sale companyld number bind the whole family, of which Munisami was the karta, was incorrect. Learned Counsel for the appellant had also relied on Bishan Singh v. Khazan Singh. 1 That was a case in which, before the deposit of money by the pre-emptors in a suit to enforce their rights to pre-emption, the vendee had sold his rights to the appellant who had an equal right of pre-emption. It was held there that the claim for pre-emption companyld be defeated by such a device which fell outside the purview of the principle of lis pendens. We think that this decision turns Upon its own facts and on the nature of the right of pre-emption which, as was observed there, is a weak right. This Court had held that this weak right companyld be defeated by a sale which a vendee is companypelled to make for the purpose of defeating the night, provided the purchasers superior or equal right to Pre-emption had number been barred by limitation. On the question companysidered there. the view of the East Punjab High Court in Wazir Ali Khan v. Zahir Ahmad Khan 2 was preferred ,to the view of the Allahabad High Court in Kundan Lal v. Amar 1 1959 S.C.R. 878. A.T.R. 1949 East Punj. 193. Singh. 1 The observations made by this Court with regard to the doctrine of lis pendens when a plaintiff is enforcing a right of preemption must, we think, be companyfined to cases of sales which companyld defeat preemptors claims. It has to be remembered that a technical rule of the law of preemption is that the preemptor, to succeed in his suit, must companytinue to possess the right to preempt until the decree for possession is passed in his favour. As regards the revenue sale of 16-3-1960 Exhibit 0.51 we find that the, sale certificate is even less informative than the voluntary sale deed companysidered above. Nevertheless, the view taken by the Madras High Court was that any land for to improvement of which loan is shown to have been taken by Munisami Mudaliar would be excluded from the purview of the doctrine of lis pendens. It is, however, urged that the High Court had given effect to clause, c of Section 7 of the Land improvement Loans Act of 1883, but had overlooked clause a . 1 Here, the relevant part of Section 7, sub-s. 1 of this Apt may be, set out. It reads as follows Recovery of loans.- 1 Subject to such rules as may be made under Section 10, all loans granted under this Act, all interest if any chargeable thereon, and Costs if any incurred in making the same shall, when they become be recoverable by the, Collector in all or any of the following modes, name- a from the borrower-as if they were arrears of land revenue due by him b from his surety if any as if they were arrears of land revenue due by him, c out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land d out of the property companyprised in the companylateral security if any -according to the procedure for the realization of land revenue by the sale of immovable property other than the land on which that revenue is due Provided that numberproceeding in respect of any land under clause c shall affect any interest in that land which existed before the date of the order granting the loan, other than the interest of the borrower, and of mortgages of, or persons having charges on, that interest A.I.R. 1927 All. 664. and where the loan is granted under Section 4 with the companysent of another person, the interest of that person, and of mortgagees of, or persons having charges on, that interest. Reliance was also placed on Sec. 42 of the Madras Revenue- Recovery Act of 1864 which reads as follows All lands brought to sale on account of arrears of revenue shall be sold free of all incumbrances, and if any balance shall remain after liquidating the arrears with interest and the expences of attachment and sale and other companyts due in respect to such arrears, it shall be paid over to the defaulter unless such payment be prohibited by the injunction of a Court of companypetent jurisdiction. It will be seen that the assumption that the dues companyld be realised as arrears of land revenue would only apply to the interest of the borrower so far as clause 7 1 a ls companycerned. The proviso enacts that even recoveries falling under See. 7 1 c do number affect prior interests of, persons other than the borrower or of the party which companysents to certain loans. In the case before us, the borrower had himself taken up the case that the loan was taken by him individually for the purpose of purchasing a pumping set installed on the land. It did number, therefore, follow that this liability was incurred on behalf of the joint family unless it amounted to an unprovement of the joint land. Every transaction of Munisami or in respect of joint property in his possession companyld number affect rights of other members. It was for this reason that Section 7 1 a was number specifically applied by the High Court,. But, at the same time, the direction that the properties sold should, so far as possible, be allotted to Munisami meant that the purchaser companyld enforce his rights to them if they came to the share of Munisami. The question of paramount claims or rights of the Government for the realisation of its taxes or of dues which are equated with taxes was also raised on behalf of the appellant on the strength of Builders Supply Corporation v. The Union of India 1 In that case, the origin of the paramount right of the State to realise taxes due, which companyld obtain priority over other claims, was traced to the prerogatives of the British crown in India. Apart of the fact that there is numberclaim by, the State before us, we may observe that, where a statutory provision is relied upon for recovery of dues, the effect of it must be companyfined to what the statute en-acts. Even under the English law, the terms of the statute displace any claim based on prerogatives of the Crown 1 1965 2 S.C.R. 289. vide Attorney Generalv. De Keysers Royal hotel Ltd. 1 And, in numbercase, can the,claim whatever its basis, justify. a sale of that property which doesnot belong to the person against whom the claim exists. As already observed a claim under Section7 1 a of the Land Improvement Loans Act of 1883 companyld only be made from the borrower. This meat that, unless it was proved that Munisami, in taking a loan under the Act, was acting as the, karta of the, joint Hindu family of which Ayyaswamy was a member, recovery of arrears companyld only be made from Munisamis share in the, 1and. That this companyld be done was, in our opinion implied in the direction that the properties sold should, so far as possible, be allotted to the share of Munisami. As some argument has been advanced on the supposed in- applicability of the general doctrine of lis pendem to the impugned sales, the nature, the basis, and the, scope of this doctrine may be ,considered here. It has been pointed out, in Bennet On lis pendens, that, even before Sir Francis Bacon framed his ordinances in 1816 for the better and more regular administration of justice in the chancery, to be daily observed stating the doctrine of lis pendens in the 12th ordinance, the doctrine was already recognized and enforced by Common law Courts. Bacons ordinance on the ,Subject said No decree bindeth any that companymeth in bona fide, by companyveyance from the, defendant before the bill exhibited, and is made numberparty, neither by bill, number the order but, where he companyes in pendente life, and, while the suit is in full prosecution. and without any companyour of allowance or privity of the companyrt, there regularly the decree bindeth but, if there were any intermissions of suit, or the companyrt made acquainted with the companyveyance, the companyrt is to give order upon the special matter according to justice. The doctrine, however, as would be evident from Bennets work mentioned above, is derived from the rules of jus gentium which became embodied in the Roman Law where we find the maxim Rem dequa companytroversia prohibemur in acrum dedicate a thing companycerning which there is a companytroversy is prohibited, during the suit from being alienated . Bell, in his companymentaries on the lows of Scotland 1 said that it was grounded on the,maxim Pendente lite nibil innovandum. He observed It is a general rule which seems to have been recognized in all regular systems of jurisprudence, that during the pendence of an action., of which the object is to 1 1920 AC 508. 2 2 Bells Com. on laws of Scotland, p. 144. vest the property or obtain the possession of real estate, a purchaser shall be held to take that estate as it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced. In the Corpus Juris Secundum Vol. LIV-P. 570 , we find the following definition Lis pendens literally means a pending suit and the doctrine of lis pendens has been defined as the jurisdiction, power, or companytrol which a companyrt acquires over property involved in suit, pending the companytinuance of the action, and until final judgment therein. Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their companytrol over the subject-matter of litigation so that parties litigating before it may number remove any part of the subject-matter outside the power of the companyrt to deal with it and thus make the proceedings infructuous. It is useful to remember this background of Section 52 of our Transfer of Property Act which lays down During the pendency in any Court of any suit or proceeding which is number companylusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made there,in, except under the authority of the Court and on such terms as it may impose. It is evident that the doctrine, as stated in Section 52, applies number merely to actual transfers of rights which are subject-matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto. Hence, it companyld be urged that where it is number a party to the litigation but an outside agency, such as the tax Collecting authorities of the Government, which proceeds against the subject--matter of litigation, without anything done by a litigating party, the resulting transaction will number be hit by Section 52. Again, where all the parties which companyld be affected by a pending litigation are, themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation, the Court may bind them to their own acts. All these are matters which the Court companyld have properly companysidered. The purpose of Section 52 of the Transfer of Property Act is number to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to, which claims are put forward. 11-1208S ipCT/72 In the case before US, the Courts had given directions to safeguard such just and equitable claims as the purchaser appellant may have obtained without trespassing on the rights of the plaintiff-respondent in the joint Property involved in the partition suit before the Court. Hence, the doctrine of lis pendens was companyrectly applied. For the reasons given above, there is numberforce in this appeal which is dismissed with companyts. Sikri, C. J.-I have had the advantage of perusing the judg- ment prepared by my brother, Beg J., but as I arrive at the same companyclusion by a slightly different route I am writing a separate judgment. I may give a few facts to, make the judgment self sufficient. The following pedigree may enable us to appreciate the facts Muniappa Mudaliar Doraiswamy Mudaliar ChidambaraGovindaswamy Muda- died on 4-9-1937 Mudaliarliar died 1940 wife 6th Def. died pendingAnnammal 10th Def. suit Muniswami Ayyaswami Def. 7 Def8 Def. 9 Mudaliar 1st Def. Mudaliar died pending suit Plaintiff Def. 2 Def. 3 Def. 4 Def. 5 12th Def. Jayaram Mudaliar -alinee of Def. No. 1. On June 23, 1956 Ayyaswami Plaintiff filed a pauper petition No. 137/1958. In the plaint he claimed a partition of B Schedule properties which, according to him belonged to Joint Hindu Family companysisting of himself and the defendants. While this suit was pending, defendant No. 1-Muniswami Mudaliar-and four of his sons executed a sale deed Ex. B7 in respect of some lands in Ozhaiyathur village in favour of Jayaram Mudaliar on July 7, 1958. These properties companyprised items 5, 15 to 19, 24 and 28 of Schedule B. On July 15, 1960 a certificate of sale Ex. B51 was issued stating that Jayaram Mudaliar had purchased at public auction immoveable property described in the certificate for Rs. 6,500/-. The property is stated to have been sold for pumpset arrears under Hire Purchase System due by Muniswami Mudaliar. Exhibit B 51 companyered items 4, 18, 20, 23 to 27 and It is companymon ground that these properties were included in the B Schedule mentioned in the plaint. It is stated in the judgment of the Trial Court that Jayaram Mudaliar got himself impleaded as 12th defendant. He filed a written statement inter alia alleging that the Plaint B Schedule properties were the sole and absolute properties of the 1st defendant. Additional issues were framed in the suit. It appears that by virtue of order dated September 18, 1961, the plaint was amended and paras 24 a and 24 b inserted. They read 24 a The 12th defendant is a close agnate of the son-in-law of the 1st defendant. He executed the sham and numberinal sale deed dated 7-7-1958 in favour of the 12th defendant to defeat the plaintiffs rights and to secrete the properties. It was number acted upon. It is the 1st defendant that companytinues to be in possession even number. The alleged sale deed is number supported by companysideration. The mortgage itself was brought about to defeat any rights. In any event on the date of the alleged sale deed dated 7-7-1958 the mortgage decree debt was, number subsisting. The plaint was filed in forma pauperis as O.P. 137 of 1958 on the file of this Honble Court on 23-6-1958. Thus in any event the sale is, hit by the rule of lis pendens and the sale deed dated 7-7-1958 cannot and does number companyfer any rights on the 12th defendant. 24 b The revenue sale is brought about companylusively and fraudulently. There was numberpublication. The 12th defendant never got into possession of any property. The possession still companytinues to be with the 1st defendant on behalf of the joint family. The sale is also hit by the rule of lis pendens. It also does number and cannot companyfer any rights on the 12th defendant. Following additional issues were raised out of the pleadings of the 12th defendant Whether the plaint B Schedule properties are joint family properties ? Whether the plaintiff is entitled to question the, alienations in favour of the 12th defendant ? Whether the sale deed dated 7-7-1958 by the 1st defendant in favour of the 12th defendant true, valid and binding on the plaintiff and is affected by LIS PENDENS ? Whether the Revenue sale by the Collector dated 16-3-1960 is liable to be questioned by the plaintiff ? Is the suit without impleading the Government liable to be questioned by the plaintiff ? Is the sale of pump set by the 1st defendant to the 12th defendant true, valid and binding on the plaintiff ? Whether the plaintiff and other members became divided from the 1st defendant after 1939 ? To what equities, if any, is the 12th defendant entitled ? Is the plaintiff estopped from questioning the alienations and claiming any right in the B Schedule properties ? We are only companycerned with issues 3 and 4 above. The Trial Court held that the sale deed, Ex. B7, and the revenue sale are all true and supported by companysideration and that the 12th defendant would be entitled to them, if these sales were number affected by the rule of lis pendens within the meaning of s. 52 of the Transfer of Property Act. Regarding lis pendens he held that the purchases under both Ex. B7 and Ex. B51 were affected by the rule of lis pendens. The Trial Court passed a preliminary decree for partition of B Schedule properties items 2 to 31 into six equal shares. It protected the interest of the 12th defendant by stating that as far as possible the Commissioner appointed in the suit for division of the properties will allot to the plaintiffs share such of the properties which are number companyered by Exs. B 7 and B 51. The District Judge companyfirmed the decree. Before the High Court, in appeal by defendant No. 12, the only point companysidered was that of lis pendens. The High Court held that Ex. B7 was a case of voluntary alienation and was hit by lis pendens, as the sale was number in execution of a mortgage decree. Regarding Ex. B51 the High Court, relying on Ponnuswami v. Obul Reddy 1 held that Ex. B51 would number be affected by lis pendens, as the loans were granted under the Land Improvement Loam Act to the extent that the loans were taken for the improvement of the properties. As it had number been companysidered whether all the properties which were sold in revenue sale and companyveyed under Ex. B51 were, lands for the improvement of which loans were taken, the High Court directed A.I.R. 1939 Mad. 256. In the final decree proceedings, the trial companyrt were to companysider what were the properties for the improvement of which the loans under the Land Improvement Loans Act were taken by the first defendant, in respect of those properties alone the doctrine of lis pendens will number apply. In respect of other properties, the doctrine of lis, pendens will apply. The trial companyrt take evidence for the purpose of deciding the properties in respect of which the loans under the Land Improvement Loans Act were taken. With this modification the High Court dismissed the appeal. Defendant No. 12 applied for a certified companyy of the Judgment and Decree on July 22, 1968, and these were made ready on August 9, 1968 and delivered on August 12, 1968. Defendant No. 12 moved the High Court by letter dated August 22, 1968 requesting the posting of the appeal for being mentioned for the purpose of the issue of the Certificate for leave to appeal under the Letter Patent. The learned Judge who heard the appeal by his order dated September 6, 1968 refused the leave on the ground that the leave was number asked for immediately on delivery of judgment and that it companyld number be asked for afterwards. Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side, 1965 under which the leave asked for was refused reads When an appeal against an appellate, decree or order has been heard and disposed of by a single judge, any application for a certificate that the case is a fit one for further appeal under clause 15 of the Letters Patent shall be made orally and immediately after the judgment has been delivered. This Court granted special leave. At the outset, Mr. Chagla raised the preliminary objection that the appeal was incompetent as Defendant No. 12 failed to ask for certificate orally and immediately after the judgment was delivered. The learned companynsel for Defendant No. 12 urged that Rule 28 of Order 4 was ultra vires. Two points thus arise out of the companytentions of the parties Is Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side ultra vires ? Are the Sales by Ex. B7 and Ex. B51 hit by the rule of lis pendens ? Clause 15 of the Letters Patent inter alia provides for an appeal to the High Court from a judgment of one judge made in exercise of the appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a companyrt subject to its superintendence, where the Judge who passed the judgment declares that the case is a fit one for appeal. Clause 37 ,of the Letters Patent companyfers powers on the High Court to make rules and orders for the purpose of regulating all proceedings in civil cases. This Court held in The Union of India v. Ram Kanwar 1 that under el. 27 of the Letters Patent which is in similar terms as el. 37 mentioned above, the High Court of Judicature at Lahore had the power to make a rule prescribing the period of limitation in respect of appeals from Orders made by that Court in exercise of its original jurisdiction to a Division Bench ,of that Court. It seems to me that the High Court can equally frame a rule regulating, the time at which and the manner in which the application for a certificate shall be made. Rule 28 of Order 4 does number take away any right companyferred by el. 15 of the Letters Patent. It only regulates the manner of the exercise of that right. It was said that the rule unduly restricts the right of the litigant to peruse the judgment and make, up his mind whether to appeal or number. But if the declaration is made immediately by the Judge that the case is fit one for appeal there is numberhing to prevent the litigant from number filing the appeal if he companysiders it inadvisable to do so. I need number discuss the point whether the Judge will have the right to companydone a breach of the Rule because numberapplication seems to have been made to companydone the breach of the Rule. But this companyclusion does number render the appeal before us incompetent. Leave was given by this Court after hearing the respondents on October 14, 1968. On April 22, 1969 the respondents obtained an order from this Court for expediting the hearing. No application was made at that stage to raise the point of. incompetency of appeal. In the circumstances I companysider that the appeal should be disposed of on merits. Coming to the second point, this Court has companysidered the 7scope of s. 52 of the Transfer of Property Act and the rule of lis pendens in a number of cases. There is numberdifficulty in holding that Ex. B7 falls within the provisions of s. 52 of the Transfer of Property Act. But Ex. B51 stands in a different position. It was held in Samarendra Nath Sinha Anr. v. Krishna Kumar Nag 1 that the principle of lis pendens applies even to involuntary alienations like companyrt sales. Shelat J., observed The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to, it so must it bind the person deriving his right, title and interest from or 1 19623 S.C.R. 313. 2 1967 2S.C.R. 18,28. through him. This principle is well illustrated in Radhamabhub Holder v. Monohar 1 where the facts were almost similar to those in the instant case. It is true that S. 52 strictly speaking does number apply to involuntary alienations such as companyrt sales. But it is well-established that the principle of lis- pendens applies to such alienations. See Nilkant v. Suresh Chandra 2 and Motilal Karrabuldin 3 . These observations were referred to with approval by this Court in Kedar Nath Lal v. Ganesh Ram 1 . If the principle of lis pendens applies to companyrt auctions there is numberreason why it should number apply to revenue sales. But the effect of the application of the principle may vary according to the nature of the provisions under which the revenue sale is held. The principle of lis pendens does number affect pre- existing rights. If there is a valid charge or mortgage on a property, this does number vanish because the property becomes the subject-matter of a partition suit. In this case according to defendant No. 12 a valid charge subsisted on the lands by virtue of the provisions of the Land Improvement Loans Act. Under s. 7 of the Land Improvement Loans Act loans are recoverable by the Collector in all or any of the following modes, namely a from the borrower as if they were arrears of land revenue due by him b c out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land The proviso to s. 7 reads Provided that numberproceeding in respect of any land under clause c shall affect any interest in that land which existed before the date of the order granting the loan, other than the interest of the borrower, and of mortgagees of, or persons having charges on, that interest, and where the loan is granted under Section 4 with the companysent of another persons, the interest of that person, and of mortgagees of, or persons having charges on, that interest. Section 42 of the Madras Revenue Recovery Act provides that all lands brought to sale on account of arrears of revenue shall be sold free of all encumbrances. The liability of the land to be sold 1 15 I.A. 97. 2 12 I. A. 171. 3 24 I.A. 170. 4 1970 2 S.C.R. 204. under s. 7 c of the Act was a pre-existing charge and that subsisted as from the date of the loan. This was number affected by the institution of the suit for partition. This charge companyld be enforced by the State, numberwithstanding the pendency of the partition suit. No decree in the Partition suit companyld have effaced the charge. Therefore, if the State has sold only the property in respect of which loan was taken, the purchaser-defendant No. 12-is number prejudiced by the, principle of lis pendens. Therefore, the direction of the High Court was right insofar as it directed the Trial Court to separate the properties for the improvement of which the loans under the Land Improvement Loans Act were taken, from the other properties.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1421 and 1422 of 1968. Appeals by special leave from the order dated January 18, 1968 of the Additional Commissioner for workmens companypensation, Madras in M.S.E. Case No. 131 of 1966, and from the Order dated the 9th January, 1968 of the Commissioner of Labour, Madras in No. C2. 13897 of 1967 respectively. P. Malhotra, Sat Pal and Ashok Grover, for the appellant in both the appeals . Natesan and D. N. Gupta, for respondent No. 1 in both the appeals . The Judgment of the Court was delivered by Jaganmohan Reddy, J.-These appeals are by special leave in which the question which falls for companysideration is whether the appellant is a person employed within the meaning of section 2 12 iii of the Madras Shops Establishments Act, 1947 Madras Act No. XXXVI of 1947 hereinafter called the Act . The first respondent, a private limited companypany, hereinafter termed as the holding companypany or the Madras companypany , having been empowered by the Memorandum of Association, promoted another companypany known as the Gordon Woodroffe Leather Manufacturing Company hereinafter called the subsidiary companypany or the Pallavaram companypany in which it held 80 preference shares and 70 equity shares. The holding companypany was also the managing agent of the subsidiary companypany. In 1959 the managing agency of the holding companypany was terminated but nevertheless in view of its shareholding it companytinued to companytrol the subsidiary companypany. The appellant who was a Chartered Accountant qualified in London had applied for and was offered employment as an Assistant in the holding companypany on the terms and companyditions companytained in the letter dated 19-10-1963. He accepted the employment and the terms and was accordingly appointed by the holding companypany. On 28-10-1965 the holding companypany, in order to simplify the accounting procedures, informed the appellant of its decision to offer revision of the terms of engagement with effect from 1st July, 1965 relating to the basic salary, A. and bonus, all other terms of service remaining unaltered. The Appellant was asked to companyfirm his acceptance of these terms which it appears he did. He was thereafter permitted to cross the efficiency bar. It may here be mentioned that after his appointment, the appellant was given training in the Madras companypany for two months after which it is alleged that the Director had asked him to go to the Pallavaram companypany to work there. Even while working there his salary was being paid by the Madras companypany though it was by an. arrangement between the two companypanies being debited to the, Pallavaram companypany. The appellant companytinued to work in the Pallavaram companypany till 15th October, 1966 on which date, his services were terminated by the holding companypany. The appellant thereupon filed an appeal before the Additional Commissioner for Workmans Compensation under section 41 2 of the Workmens Compensation Act. The 1st respondent, however, raised an objection before the Additional Commissioner that the appel- lant was number a person employed within the meaning of the Act and, therefore, the provisions of the said Act would number be applicable to him. In view of this objection, was filed by the. appellant under section 51 of the Act for declaring that he is a person employed and some time thereafter got his applications under section 41 2 stayed. The his between the parties on the application under section 51 as well as. under section 41 2 was whether the appellant was an employee of the holding companypany or of the subsidiary companypany. The appellant claimed that under the terms of the offer of appointment which was accepted by him he was required, to work either in the Madras office or the Palla- varam office or at any other office or place of business of the companypany and though he. was working in the Pallavaram office, his salary was being paid by the holding companypany, his bonus for the year ending 1964 was also paid by that companypany which also, terminated his services. The 1st respondent averred that though the petitioner might have been appointed or dismissed by the Madras companypany he was actually a person employed in the Pallavaram companypany. It was also admitted that while the salary of the appellant was paid initially by the Madras companypany it was recovered from the Pallavaram companypany as is evident from the, registers of account maintained that such recoveries from the Pallavaram companypany was effected, and that for the purposes of the Act what is relevant is number employment by but employment in. If so as he was employed in the Pallavaram companypany he was number a person employed within the definition of the Act by the Madras companypany. The Commissioner of Labour by his order of 9th January, 1968 accepted the 1st respondents companytention and held that the petitioner cannot be declared to be a person employed under section 2 12 iii of the Act and that even under section 2 12 ii of the Act, the petitioner cannot be treated as a person employed vis-a-vis the Pallavaram Company as admittedly the appellant was number a member of the clerical staff employed in the Pallavaram companypany. The petition was accordingly dismissed. After this appeal was dismissed the appeal filed under section 41 2 of the Act was disposed of by the, Additional Commissioner for Workmens Compensation who held that in view of the findings given by the companypetent authority under Section 51 of the Act on the question of applicability of the provisions of that Act to the appellant, he had number jurisdiction to go into the merits of the appeal. He accordingly dismissed that appeal also. It may be stated that the appellants Special Leave Petition was filed against both the Orders but in view of the, objection raised by the office, two S.L.Ps. were filed and this Court gave leave on them. These two appeals were subsequently companysolidated. On behalf of the appellant the following two questions were urged for determination 1 whether on the facts and circumstances of the case and on a true companystruction of clause iii subsection 12 of section 2, the appellant being wholly and principally employed in companynection with the business of the Madras establishment was a person employed, 2 whether the jurisdiction of the authority under section 41 sub-section 2 is circumscribed by the provisions of section 51. In our view the second question is purely academic because if the jurisdiction of the authority under section 41 2 is circumscribed by the provisions of section 51 the question whether the decision of the Commissioner of Labour under section 51 that the appellant is a person employed will nevertheless arise for decision and if it is number even then that question would fall for determination. In any view we have to ascertain what under the provisions of the Act is meant by a person employed and whether the appellant is one such. If he is a person employed then the Additional Commissioner of Workmens Compensation has to, go into the allegation of the appellant that his services were number terminated in accordance with the provisions of section 41 1 . A person employed has been defined under the Act and in so far as it is relevant for the purposes of the appeal, section 2 12 ii iii alone need be companysidered. These are set out as under 2 12 person employed means- in the case of a factory or an industrial undertaking, a member of the clerical staff employed in such factory or undertaking in the case of a companymercial establishment other than a clerical department of a factory or an industrial undertaking, a person wholly or principally employed in companynection with the business of the establishment, and includes a peon It is number disputed that the Pallavaram companypany is a factory and that the appellant is number a member of the clerical staff in that factory. In view of this, admission, the appellant cannot be a person employed under clause 2 12 ii number because he is employed in the Pallavaram companypany which is itself a matter that has to be determined, but because he is number a member of the clerical staff employed in that factory. The appellants case, therefore, has to be examined under clause iii of sub-section 12 of section 2. It has to be numbericed that an establishment for the purposes of the clause must be a companymercial establishment and even if the clerical department of a factory or an industrial undertaking falls within the definition of companymercial establishment, he is number a person in the clerical department of a factory or an industrial undertaking, but is one who is wholly or principally employed in companynection with the business of the companymercial establishment. Before we examine the meaning of these terms, it is also necessary to companysider the definition given in the Act of the terms companymercial establishment, employer and establishment given respectively under clauses 3 , 5 6 of section These are as follows - 3 companymercial establishment means an establishment which is number a shop but which carries on the business of advertising, companymission, forwarding or companymercial agency, or which is a clerical department of a factory or industrial undertaking or which is an insurance companypany, joint stock companypany, bank, brokers office or exchange and includes such other establishment as the State Government may by numberification declare to be a companymercial establishment for the purposes of this Act 5 employer means a person owning, or having charge of, the business of an establishment and includes the manager, agent or other person acting in the general management or companytrol of an establishment 6 establishment means a shop, companymercial establishment, restaurant, eating-house, residential hotel, theatre or any place of public amusement or entertainment and includes such establishment as the State Government may by numberification declare to be an estab- lishment for the purposes of this Act It is evident that the Madras companypany is a companymercial establishment in terms of the definition as it is a joint stock companypany, forwarding agents and carries on other activities of a companymercial 15-1208Sup CI/72 nature. It may also be mentioned that under that definition the clerical department of the Pallavaram factory is also a companymercial establishment. As we said earlier, the reason why in clause 12 iii of the definition a person who is employed in a clerical department of a factory or an industrial undertaking has been excluded from the definition of a person is because without those words of exception he would have been included. As it was the intention of the Act to companyfine the definition of a person employed only to a companymercial establishment other than clerical department of a factory or an industrial undertaking the words of exception had to be introduced in the definition to reflect that intention. The crucial question for determining whether a person is a person employed is whether he is wholly or principally employed in companynection with the business of the establishment. It would number be accurate to focus our attention as was done by the Labour Commissioner only on the question whether the appellant was employed in or employed by because these words employed in without the further requirement that he should be employed in companynection with the business of the establishment would be misleading. The Respondents Advocate has referred to the Preamble, the Statement of Objects Reasons and laid emphasis on the intention of the Act which was to companyer only cases of those persons who were actually working in a companymercial undertaking and number those who were employed in a factory or indust rial undertaking. What is sought to be impressed upon is that the test to be applied for ascertaining whether a person is a person employed is number who employs him but where he is employed or works. On this assumption it is companytended on behalf of the respondent that it is possible for a person to be employed by one establishment and assigned to work in another establishment and what will determine whether the person so assigned is a person employed is whether the place where he works is or is number a companyme rcial undertaking and if it is number then he is number a person employed. Applying this thesis to the facts of this case, it is submitted that though the Madras Company has employed the Appellant, it has employed him for working in Pallavaram, the salary though paid by the Madras companypany was reimbursed from the Pallavaram companypany and since the appellant on his own admission worked in the Pallavaram companypany ever since he was appointed he is number a person employed because he was wholly or principally employed in companynection with the business of the Pallavaram companypany which is a factory registered under the Factories Act. In support of this companytention he has referred us to The Salem Sri Ramaswami Bank Ltd. v. The Additional Commissioner for Workmens Com- 2 19 sensation, Chepauk, Madras and another 1 , T. P. Chandra v. The Commissioner for Workmens Compensation, Madras and another 1 and T. Prem Sagar v. The Standard Vacuum Oil Com- pany Madras and Others 3 . What was companysidered in the first case is number whether the person is a person employed within the meaning of section 2 12 of the Act but whether under section 4 1 a which provides that numberhing companytained in the Act shall apply to persons employed in any establishment in a position of management, the 2nd respondent therein was a person in the position of management and if so whether his appeal under section 41 2 was incompetent. It is evident from this case that the two, objections to the maintainability of the appeal preferred by the second respondent under section 41 2 of the Act which were taken before the Additional Commissioner were 1 that under section 4 1 a of the Act the second respondent had been employed in the Bank in a position of management and 2 that the companytention of the second respondent that if he companyld number be reinstated as Secretary, be, companyld be reinstated as Cashier was untainable because by a valid numberification issued by the Government, Cashiers had been excluded from the purview of the Act. The Additional Commissioner did number record any specific findings on the issue whether the second respondent had been employed as Cashier and whether he is en-, titled to prefer the appeal under s. 41 2 . That Court did number in view of the facts of that case companysider it necessary to pursue, the matter further. It was only on the question whether the second respondent was occupying a position of management, as such his appeal companyld number be entertained under section 4 1 a that was companysidered and decided. The observations of Rajagopalan, J. at page 257 that he was using the expression employed only to mean assign the work of is being sought to support the companytention that these words would furnish a test in determining whether a person is a person employed under section 2 12 iii . These observations have been torn out of the companytext, because what the learned Judge says immediately thereafter would negative any such company- In my opinion it is an assignment of work, a valid assignment of the work, by the employer, that should furnish the real test in deciding whether a given employee is a person employed in a position of management within the meaning of section 4 1 a . We find that throughout the judgment the question whether a person was a person employed within the meaning of section 2 1 2 iii has number been mooted. In the second case of Chandra 1 1956 Vol-2 L.J. p.254. 3 1964 5 S.C.R. 1030. 2 1957 A.I.R. Vol. 44 p.668. 2 20 also this question was number companysidered as is clearly apparent from the observations of the learned Chief Justice delivering the Judgment of the Bench at page 669 that it was number companytended before them that the Appellant was number a person employed within the meaning of section 2 12 of the Act. In the third case similarly the decision of this Court turned on the question whether the appellant therein was employed in a position of management. It was held on the facts of that case that he was number a person employed in a position of management and as such did number fall within the exemption of section 4 1 a On the other hand what has been stated by reference to section 2 12 iii are useful. Gajendragadkar, J. as he then was observed at page 1036 The test which has to be applied in determining the question as to whether a person is employed in a companymercial establishment is whether he is wholly or principally employed in companynection width the business of the said establishment. As soon as it is shown that tie employment of the person is either wholly or principally companynected with the business of the establish- ment, he falls within the definition. The key to section 2 12 iii is whether a person is wholly or principally employed in companynection with the business of the companymercial establishment. On the very threshold what we have to determine is by whom the respondent is employed. Is he employed by the Madras companypany or by the Pallavaram companypany which is a factory and if he is by the former which it is number disputed he is, is he wholly or principally employed by it ? It is companytended that the Appellant is employed wholly or principally by the Pallavaram Company because it is the place where he has been working. In our view there is numbervalidity in this submission. On the facts of this case the Pallavaram companypany is number the employer of the appellant. All relevant facts that have been established and are number disputed point to the irrestible companyclusion that the employer is the Madras companypany. It was this companypany that appointed the appellant. The, appointment Order of 19th October, 1963 shows that he was appointed as an Assistant in that companypany. The terms of the Order further show that apart from the salary set out therein on which be was appointed, he was to receive dearness allowance at the rate of 35 per cent of the basic salary or such other rate as the Board of that companypany may decide from time to time. He has to become a member of the Provident Fund to which both he and the Madras companypany have to subscribe. The annual bonus was to be calculated in the same manner as the annual bonus payable to other Assistants of the companypany. His services can only be terminated by the Madras companypany in terms of paragraph 6 of the Order and under paragraph 5 he was required to work either in Madras Office Office hours 9.15 a.m. to 5.30 p.m. or Pallavaram office hours 8 a.m. to 4.30 p.m. or at any other office or place of business of the companypany. It is clear from this letter of appointment that he has to work wherever the companypany directs him to work as such he would be a person wholly or principally employed in companynection with the business of the Madras companypany. Inasmuch as it is apparent that the obligation to work at Pallavaram is under the directions of the companypany it will be companysidered to be a part of the business of the companypany as indeed the words business of the companypany in paragraph 5 govern number only the obligation to work at Pallavaram but at any other place or places where the companypany directs him to work. The revised terms of employment of the appellant dated the 28th October, 1965 also show that those terms are applicable to the companytracts of all Assistants of the companypany. It is also to be numbericed that the bonus was paid by the Madras companypany number is it disputed that his salary and bonus was being paid by that companypany. The income-tax deductions were made by the Madras companypany which also furnished a certificate to the tax authority as per Ex. P.9. That companypany further certified to the Madras Housing Board on January 8, 1966 what the appellants salary per month and the total salary and allowances which are paid to him by that companypany were. It may also be mentioned that the appellants leave had to be granted by the Madras companypany and number by the Pallavaram companypany. Ext.M-11 would show that the application for leave was made by the appellant to the Managing Director of the Madras companypany. One other fact which appears from the evidence of R.W.I., Director of the Madras companypany who was also the Secretary of the Pallavaram companypany is that the appellant was signing bills for Tullies Woodroffee factory at Pallavaram which is another subsidiary of the Madras companypany. He was also signing the bills of sale of all such manufacture purely for administrative companyvenience. All these facts support the companyclusion that the appellant was employed on the business of the Madras companypany because he was working under their directions wherever they wanted him to work and whatever work was entrusted to him in terms of the appointment order. The mere fact that he was working in Pallavaram does number make him an employee of that companypany number does the Pallavarm companypany become his employer because neither that companypany pays his salary number does it grant leave, number has it any obligation towards the, appellant in respect of Provident Fund, bonus or any other emoluments, number for that matter can it suspend or dismiss him. Indeed the very order of termination of his services was made by he Madras companypany and number by the Palla- varm companypany. On the 15th October, 1966 this is what the Director of the Madras companypany wrote to the appellant .lm15 I refer to our letter of appointment of 19th October, 1963. I have given very serious companysideration to the question of renewing your Agreement but have companye to the companyclusion that in the period during which you have been employed by this companypany your work has number reached the standard which was expected and therefore it is number possible to renew your appointment. Will you kindly therefore take this letter as being the requisite one months numberice of termination of your services in accordance with paragraph 6 of the letter under reference. If you wish to discuss this matter with me I will be available at 3.30 p.m. on Tuesday the 18th October, but I must advise you that I have taken an irrevocable decision in the matter. This letter clearly shows that the employer is the Madras companypany because it is only the employer who can terminate the services of an employee. It is, therefore, idle to suggest that the Pallavaram companypany was the employer merely because the Madras companypany had asked him to work in that companypany. It is further submitted by the respondent that the Madras companypany and the Pallavaram companypany being two incorporated companypanies they were separate and independent legal entities and that merely because the Madras companypany has a companytrolling interest in the Pallavaram companypany does number vest the administration of Pallavaram companypany in the Madras companypany. Whether it is so or number we have numberevidence, number is there anything to show under what arrangements between the two companypanies, the Madras companypany was managing the affairs of the Pallavaram companypany. If we have to accept the companytention of the learned Advocate for the respondent that because the appellant was permitted by the Madras companypany to work in the Pallavaram companypany he was employed wholly or principally in companynection with the business of the Pallavaram companypany, he will be an employer-less-employee because even though Pallavaram companypany has numbercontrol over him or his work number has it the power to suspend or discharge him, he would numberetheless be an employee of that companypany for the purposes of section 2 12 iii . This would result in an incongruity and would have the effect of arming the employer with a device to circumvent the provisions of the Act inasmuch as all that an employer has to do is to make the employee work at places which are factories or industrial undertakings and plead, when he dismisses him without reasonable cause, that he is number a person employed. We do number think that such a result was intended, number is a companyclusion so baneful deducible from the provisions of the Act.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeals Nos. 175 of 1969 and 90 of 1970. Appeals by special leave from the judgment and order dated January 28/29, 1969 of the Bombay High Court, Nagpur Bench in Criminal Appeal No. 139 of 1968. S. Desai and S. S. Shukla, for the appellants in Cr. No. 175 of 1969 . N. Mohindroo, for the appellant in Cr. A. No. 90 of 1970 . N. Lokur and S. P. Nayar, for the respondent in Cr. No. 175 of 1969 . N. Lokur and B. D. Sharma, for the respondent in Cr. No. 90 of 1970 . The Judgment of the Court was delivered by Beg, J. These appeals, by special leave, are directed against the judgment of the High Court of Bombay-allowing an appeal of the State of Maharashtra against the, acquittal of the appellants by the Sessions Judge of Bhandara. The appellants, Yeshwant, Suraj Lal, and Brahmanand, Tiwari were companyvicted under Section 302 read with Section 34 Indian Penal Code for the murder of Sukal and sentenced to life imprisonment. The appellants Rupchand and Bhadu alias Ramkishore were companyvicted under Section 307 read with Section 34 Indian Penal Code and sentenced to seven years rigorous imprisonment for having made a murderous assault on Zingu who escaped and lived to depose about the attack upon him and the murdered man, Sukal, his relation and companypanion. It appears from the prosecution case, that Sukal and Zingu, while returning from a fishing expedition, were waylaid and attacked by five per-sons, one of whom was armed with an axe, with which he killed Sukal, and another with a knife, with which he stabbed Zingu cc., at about 2.30, a.m on 15-9-1966, at a place called Marartola. of Village Kati., near an electric lamp post. The evidence also. disclosed, that apart from Zingu P.W. 8 , the injured in, there were two more eye witnesses, Babaji P.W. 17 and Jiwan P.W. 18 , who came from the direction opposite to that of the victims. Zingu P,W. 8 is said to have managed to, extricate himself from his assailants with a jerk or push and to have fled crying for help. He also stated that, while escaping, he saw Babaji P.W. 17 companying from a side road with a lantern in his hand. Zingu rushed into the house of Jainarain situated at a distance of about 200 feet from the lamp post. Then, Dr. Narsing Galole PW 2 , a Medical practitioner., who was sent for, came and attended to the injuries of Zingu after having seen. Sukal lying unconscious near the lamp post. Zingu was said to be in pain but able to speak. Dr. Galole said that Zingu told him I was caught by Rupchand and I was assaulted by Suraj Sukal, was near me. He was caught by Yashwant and Bhadya Master and Tiwari attacked Sukal. Doctor Galole then sent for a bus. But, before the bus companyld arrive, Sukal had expired. Therefore, the Doctor took only Zingu in the bus to the Hospital at Gondia. The Doctor also lodged a First Information Report at 7.05 a.m. on 15-9-1966 at Police Station, Gondia, in which it was stated that Zingu had said that he had been beaten by Suraj Koshti while Rupchand Koshti had held him, and that Sukal Pelhwan had been held by Police Patil, Yeshwantrao Turkar, and, when Maharaj from Gondia had been asked to beat, he had showered blows. Thus, although it was in the evidence of Dr. Galole that Zingu had named five per-- sons, yet, the First Information, Report lodged by Dr. Galole omits the name of Bhadia Master alias Ramkishore, The omission from the First Information, Report,, which companyld only be used to cross-examine Dr. Galole, was number put to him so that he had numberopportunity to explain it. Hence, numberhing much companyld be, made, out of it. One Chandanlal P.W. 12 was said to have accompanied Dr. Galole to the scene of occurrence, and, thereafter, to the house of Jainnarain and to have heard what Zingu and other eye witnesses had said there. He deposed that Zingu had said Yeshwant and Suraj eight hold of Sukal and Tiwari gave him blows. Bhadya Master caught hold of me and Rupchand gave me blows. The Statement was in. accord with the companysistent statements of the three eve witnesses at the trial. Chandanlal was Sarpanch of the Gram Panchayat of I Kati since 1966. He admitted that Harlal, the elder brother of Yeshwant, was the Sarpanch until 1966, and that Chandanlal was his Deputy Sarpanch. Chandanlal also said that Sukal deceased had also been a candidate at the election. His evidence showed that Jainarain was his brother. We do number see why the evidence of such a witness should be rejected simply because he had taken part, as a Sarpanch naturally must, in village elections, or, because Harlal, the elder brother of one of the accused, and Sukal, the deceased, had also done so, even if their parties were different. The Trial Court had observed that the election was an old affair and companyld hardly provide any immediate motive for either the attack or a false implication. Zingus statement shows that he knew each of the five accused quite well. But, his evidence was discarded by the, Trial Court mainly because he was said to have given inconsistent accounts at various stages as regards the actual person or persons who had either held or inflicted injuries upon him or Sukal. There was divergence between what Dr. Galole and, Chandanlal remembered about it as numbericed above. In his evidence at the Trial, Zingu stated that, Bhadya Master, had held him While Rupchand stabbed him on his back twice. This is what he stated before Chandanlal according to that witness. His purported dying declaration made ,it 7.30 a.m. on 15-9-1966 at Gondia Hospital, before a Taluka Magistrate, was put to him to bring out inconsistencies. He stated My statement was recorded by Taluka Magistrate. I do number recollect what I said then as I was number fully companyscious when I made that statement. This former statement before a Magistrate, in the form of a dying declaration, was admitted in evidence. Zingu was asked whether he had number admitted it to be companyrect when he gave evidence in Court on an earlier occasion. He said I again say that I did give the statement before the Taluka Magistrate and number read over to me. It seems to us that this was a straightforward answer. The serious companydition of Zingu at the time when his purported dying declaration was recorded has to be borne in mind. A look at the dying declaration shows that he had stated there first that he was struck by Mukadam Patel, and, after that, he said that he was struck by somebody who companyld be a guest from Gondia. He certainly indicated, before the Magistrate, who the members of the assembly of five were, but he was number at all clear as to which person did what. The so-called dying declaration, extracted as a result of questions put to him, gives a good indication of his rather companyfused state of mind, which did number mean that he was untruthful. The dying declaration runs as follows When were you admitted in the hospital ? Ans. Approximately at 5.30 Oclock in the early hours of this day. What are the portions of body where you have sustained injury ? Ans. On back. Which is the weapon that is responsible for these injuries ? Ans. Those injuries are caused by a Katyar. Had a quarrel taken place in the village ? Ans. No quarrel had taken place. Who assaulted you with the, help of a Katyar ? Ans. Mukadam Patel. Q When was the assault on you made ? Ans. I was assaulted at 12 night in Kati proper in Marar Toli locality. How were you companycerned with the dispute Ans. I had numberconcern. In order to see the Seth, I was going to the pedhi. At that time,Mukadam Patel said, Maro saleko. First Sukal was struck with the Katyar. He fell down later on, a blow was delivered on me. How many men were there with Mukadam Patel Ans. Rupchand Patel,. Bhadya Master and Suraj were with him . Who has made a direct assault on you ? Ans. There was a guest from Gondia with Mukadam. Patel. He had, struck me with the Katyar. Mukadam Patel and others had held me. Do you like to, say anything in particular Ans. No. The trump card, however, of the defence was the statement of Dr. Kale P.W. 7 who had examined Zingu and admitted him into the Gondia Hospital and found the following injuries on him Incised wound trangular in shape 4 cm. by lung deep left scapular area. There was a lot of surgical emphysema surrounding it. No free blood companyld be detected in the chest cavity by percussion. Incised wound 4 cm X 1 cm. X bone deep on the, spines of 12th dorsal and 1st lumber vertebra. Incised wound 1 cm. X 0.25 cm. X cartilage deep on the front pinna right ear. Cartilage below was fractured. Dr. Kale deposed that he felt that the companydition of Zingu was so serious that he asked the prosecuting Sub Inspector to get Zingus dying declaration recorded. He also said I questioned Zingu and he told me that he was assaulted by somebody at 2 or 3 a.m. It was he who told me that he did number know the names of persons who had attacked. him. He told me that his relative Sukal had died on the spot. The Trial Court observed The evidence of Dr. Kale, supported by the Memorandum of the medical case history, prepared by him on the spot, takes the wind out of the sails of the prosecution story. At any rate, Zingus reluctance or inability to tell Dr. Kale the names of his assailants. is difficult to understand if he had seen the miscreants and if he had named them before Dr. Galole, Chandanlal, and Dr. Pullarwar. Relying implicitly upon the evidence of Dr. Kale, the Trial Court had companye to the companyclusion that Zingu must be a deliberately untruthful witness, or, at least, a witness who had been persuaded by others to believe that the five accused had waylaid Sukal and Zingu. It held that this accounted for his companyflicting, statements. The finding implied that number only Chandanlal but also Dr. Galoles testimony was unacceptable. Before we take up the evidence of other witnesses, we may observe that the High Court had given a better reason for distrusting the evidence of Dr. Kale than the Trial Court had given for relying on it so companypletely. The High Court saidit is significant to numbere that it is during cross-examination that Dr. Kale as P.W. 7 has been asked the question about this entry in the case record. The addition of the word number between the words are and known is so obvious and patent that one should have expected an explanation therefore companying from the witness rather than from the Judge Without any material to that effect justifying the explanation. The additional of the word number in the purported dying declara Was in a, different ink altogether. The Trial Court had also found that it was a subsequent addition but had attempted an utterly companyjectural explanation by holding that the insertion was made by Dr. Kale to put his record right afterwards as there had been an honest slip of the pen by him. The Trial Court said The word number in this memorandum prepared by Dr. Kale does appear to have been written subsequently in different ink. But then, it will appear from the entire case record that Dr. Kale bad stopped writing after he advised the police to obtain the dying declaration of Zangu and had resumed writing after the dying declaration was recorded. The word number in the first portion of the Memorandum does appear to be in different ink, but it would number be right to say that this was a deliberate interpolation to distort facts. In my view, the word was added, because, originally there must have been an honest slip, of the pen. Otherwise Dr. Kale would number have stated in the first line that somebody had assaulted Zingu. Instead, he, would have named the persons who were the assailants. This circumstances therefore, that in the medical case record, prepared by Dr. Kale at 5.30 a.m. on 15th September, 1966, it has been stated that the names of the assailants were number known is a very telling circumstance. The importance of this circumstance is hightened because of Zingus own admission that when he was taken to the Gondia hospital, the doctor who treated him did ask him as to who were the persons who had assaulted him. Surely, if Dr. Kale had asked hat question to Zingu and if Zingu had given out the names of his assailants, then there was numberreason why Dr. Kale should have refrained from mentioning these names in, the memorandum prepared by him while he was sitting by the side of the bed of Zingu. It is also important to numbere that it was Dr. Kale who sent for the police to record a dying declaration of Zingu and he was himself present when the dying declaration was recorded and he certified at the foot of the dying declaration that Zingu was in his senses and mentally clear throughout the dying declaration. It is therefore difficult to believe that Dr. Kale Would prepare a false record after knowing the names of the assailants from Zingu in answerr to a question put to him by him. On the companytrary it is highly probable that Zangu did number tell Dr. Kale the names of his assailants. It is difficult to understand why the Trial Court wanted to avoid the use of the word deliberate to describe a subsequent addition in a different ink which companyld only be and was admitted by Or Kale himself to be deliberate, unless it meant to companyvey that distortion was number deliberate. If the Doctor had made the insertion afterwards in a different ink, it meant, as the Trial Courts findings indicated, that this was done after the had heard the dying declaration. We fail to understand how Dr. Kale companyld have honestly made. such an alteration at all in the bed head ticket after having heard the dying declaration even if we we re prepared to believe that, in the special circumstances of this case, it was number unnatural for Dr. Kale to be so anxious to, find out and record a dying declaration himself be-fore a Magistrate had companye and recor ded the purported dying declaration. After having been taken through the evidence about the two dying declarationsone recorded unofficially by Dr. Kale and companyrec ted by him afterwards and another recorded about two hours later by a Magistrate in the presence of Dr. Kale- we have numberhesitation in agreeing with the High Court that the statement, put in Zingus mouth by Dr.Kale, companyld number have been companyrectly recorded by Dr.Kale and it had to be totally ignored. it certainly companyld number knock the bottom out of the prosecution case, as the Trial Court thought that it did In the circumstances stated above, the High Court was, in our opinion, quite right in reassessing the prosecution evidence from a companyrect angle. It rightly held that, even if Zingus evidence was number, by itself, sufficient to establish the prosecution case. the defence, had number got over the evidence. of Babaji and Jiwan, who were quite natural witnesses. They had companye near enough to see and recognise the assailants. in good enough light before, the miscreants, ran away. The evidence of these two eye witnesses was strongly companyroborated by what Dr. Galole and Chandanlal had stated. The High Court, numbericed that the Trial Court had itself rejected the. defence suggestion that there was a companyspiracy between Dr. Galole and Chandanlal, arising out of village factions, to implicate the accused persons and to instigate Zingu, into naming them. It had, held that the attempt to shake the testimony of Dr. Galole by cross-examination had companypletely failed. We may add that, if there. had been an attempt to implicate and involve five innocent per sons deliberately in a serious case. of murder, and to support it by perjured evidence, the evidence of Zingu would probably have been free from the infirmities it companytains due to the sudden nature, of the attack from behind upon him. It was number unnatural for Zingu to have been companyfused and Yet, to have had a sufficient idea as to who these five persons were. It was also quite easy for him to have seen Babji, who was companying with a lantern from the opposite direction, when Zingu passed him while running towards Jainarains house. Zingu was number asked how he made out the identities of his assailants or of Babaji. In the absence of, any cross-examination on these points, we do number think that his testimony companyld be rejected as useless either on the ground that he must have had only a fleeting glimpse of the five men who had waylaid and attacked Sukal and Zingu or because he companyld number have been seen Babaji on the scene at all., It is one thing to make out the identities of several previously known persons who waylay and attack. It is quite another matter to be able to remember and describe companyrectly afterwards the exact words and actions of each. We think that the evidence of Babaji and Jiwan is even more important than that of Zingu. If Zingu was attacked from behind, as he undoubtedly was, Babaji and Jiwan would have had a better opportunity of seeing the actions of each of the assailants in front of them than Zingu whose attention must have been directed mole towards extricating himself from the clutches of his own assailants from behind. This is exactly what we find from the evidence. The Trial Court had failed to see that some of the very reasons given by it for holding that the impressions on the mind of Zingu must have been companyfused were number present at all in the case of Babaji and Jiwan. The Trial Court had started from the basically erroneous assumption that Zingus evidence provided the real foundation of the prosecution case which had been demolished by Dr. Kales evidence and that Babaji and Jiwan were mere prattling the very word used by the Trial Court witnesses who. were itching to figure, in the words of the Trial Court, once in a life time, as heroes in a drama for the unfolding of which they drew entirely upon their imaginations to the extent that they practically hypnotised Zingu into making false assertions with regard to the identities of the five members of the party which waylaid and attacked him and Sukal. There is numberevidence on the record to show that Zingu had a feeble mind or that Babaji and Jiwan had such a powerful hold upon him as to. be able to make him say whatever they wanted. Nor is there any evidence upon the record to show that Babaji and Jiwan had a tendency to indulge in such wonderful feats of imagination as to invent, so quickly and without any preconcert, a story involving five innocent men in the grave offence of murder without any animus or motive shown on their part for behaving in such a dastardly fashion. The Trial Court emphasized what it companysidered to be the incessant prattling of Babaji, as companytrasted with his silence at the time when the Panchnama was drawn up. There is numberevidence that Babaji was, abnormally loquacious at Jainarain is house. It was natural for him. to have said, at the earliest opportunity, what he saw. It indicates that he had number companyked up a story subsequently. After he had already said what he had seen, there was numberoccasion for him to repeat it at the time when the Panchnama was drawn up. Indeed, if he had behaved in this fashion his companyduct would have become suspicious. The Trial Court itself had believed that Babaji was a natural witness of the locality whose presence at the spot was explained by the fact that it was the night during which a symbolic Marbat representing a companypse had to be carried during the night by a person belonging to the caste of Babaji and Jiwan. Babaji was just near the fork of the road on which the lamp post was located. We find, from the site plan, that there was numberobstruction whatsoever between the place from which he is shown to be moving forward in the direction of the lamp-post. Babaji and Jiwan must have, moved a few steps forward on hearing the cries of Zingu who passed babaji only at a distance of two feet as he ran towards the house of Jainarain. The finding of the High Court, that Babaji was only 25 steps from the place where Sukal was attacked, before the very eyes of Babaji and Jiwan, is in companysonance with the evidence on record. The view of the Trial Court that he was probably number in a position to see what occurred in front of him is entirely companyjectural and unsupported by anything brought out either in the cross-examination of Babaji or by a reference to the site plan. It is true that Jiwan had stated, in the companymitting Magistrates Court, that Suraj, Rupchand, and Bhadu had caught Zingu after Sukal had fallen down and had also stated there that Yeshwant appellant was number there. At the Trial, he admitted frankly that these were mistaken statements. He had companyrected these errors of observation or memory when he deposed at the Trial. We do number think that such errors are uncommon in the testimony of the most truthful witnesses. Indeed, they indicate that the evidence of Jiwan was untutored. All we can say is that Babajis evidence is more clear and emphatic. Another ground given by the Trial Court for discarding the evidence of both Babaji and Jiwan was that each had said that there was some adhesive tape on the neck of the appellant Brahmanand Tiwari who was number known to them from before. The Trial Court was of the view that it was absurd for Babaji and Jiwan to say that they saw the adhesive tape on the neck of Brahmanand Tiwari in the light of a lamp at a distance of 175 feet and recognised him because of that instead of mentioning the beard of Brahmanand which was far more prominent and obvious. We find that this, view of the Trial Court was based on a misreading of the evidence. What Babaji had said was that he, had identified the previously unknown man by his face and from the tape on L128SupCI/72 his neck. Immediately before that, he had stated I had identified him before the Taluka Magistrate Gondia. Therefore, it is apparent that the face, which included the beard, was mentioned by Babaji. It also appears that he meant to say that he identified him before the Taluka Magistrate because of the adhesive tape. At any rate, it was number clarified, by the cross-examination of this witness, that he meant to say that he saw the adhesive tape at the time of the occurrence. The witness was certainly advancing and probably did advance towards the party of assailants sufficiently to see them well before they ran away. Jiwan had also stated that he had identified the new man from Gondia by his face and the tape. Again, it was number clarified, even by question put by the Court, whether the adhesive tape was seen by the witness only at the time of the identification parade or also at the time of the attack. However, even assuming that they companyld number have seen the tape at the time of the attack but had said that they did see it, witnesses of identification are known to companyfuse the image they see at the time of the identification parade with what they think they had also seen at the time of an occurrence. The cross-examination of these witnesses left much which had to be there if their veracity was seriously challenged. The infirmities in the test identification parade of a previously unknown bearded man, whom even Zingu companyld only describe as a guest from Gondia, does make the evidence as to the identity of the bearded man who attacked Sukal with an axe doubtful. Neither Babaji number Jiwan knew him from before and described him as a number man. The Trial Court has also observed that the appellant Brahmanand had a beard. It is clear from the admission of Babaji and Jiwan that Brahmanand was brought by the Police and made to sit outside the Court of the Magistrate where these witnesses also waited before the identification parade began. The, Magistrate took numberprecautions to see whether other similar bearded men joined the parade. There were only five other persons in the parade. Apparently, Brahmanand had a tape on his neck at that time. The identification proceeding was, therefore, rightly described by the Trial Court as a farce. As we have already observed, the companyfusion with which Zingus mind must have been companyered, as a result of the sudden attack upon him, made it difficult to rely upon his powers of observation singly. Even he companyld have mistaken some other bearded man for the Maharaj from Gondia. Zingu did number apparently even know the name of the Maharaj to be able to give it. In addition, we find that this appellant is a night watchman in the Irrigation Department of Zila Parishad who was posted at Gondia. The Investigating Officer, Datatray Gokhale P.W. 19 , stated that he had examined the attendance Register and found him absent on 15- 9-1966 at night. Neither side summoned the actual attendance 3 01 register so as to get the entry with regard to the night between 14th and 15th September, 1966, with which we are companycerned, proved. The result is that the evidence of the identity of Brahmanand as the assailant who had actually used the axe on Sukal remains involved in doubt which is number removed by any reliable companyroborative evidence. It is well known that evidence as to identity, particularly of previously unknown persons, is a deceptive kind of evidence which has led to miscarriages of justice sometimes. We, therefore, think that Brahmanand Tiwari appellant is entitled to the benefit of the doubt emerging from the unsatisfactory nature of evidence as to his identity. We may also mention here some circumstantial evidence tendered by the prosecution. Some clothes believed to have been stained with blood were recovered by the Police on 15-9-1966 from the houses of Rupchand, Yeshwant and Bhadu and, on 19-9-1966, from the house of Brahmanand Tiwari. But, except for stains on the dhoti recovered from the house of Yeshwant, it companyld number be established that the stains were of human blood as the clothes appeared to have been washed. As regards the blood spots on the dhoti of Yeshwant it was number established that the blood group B, of the human blood on this dhoti was of either of the two victims. The, blood of Sukal was of group A. The companynection of this evidence with the occurrence under companysideration was number shown by anything on record. Then, there were some companytusions on the body of the appel- lant Bhadu and a companytusion on the forehead of Rupchand approximating in duration the time which had elapsed between the occurrence and their examination. The Trial Court had accepted the explanation of Bhadu that he had sustained injuries when he fell from his bicycle. It had, however, number accepted the explanation of Rupchand that the injury on his forehead was due to the beating by the Police because Rupchand had- appeared on more than one occasion before the Judicial Magistrate for remand during the Trial and had positively stated that he had number companyplaint against the Police. We think that the minor injuries on the bodies of Ruin. chand and Bhadu are significant because they fit in with Zingus version that he had jerked himself free. This jerk, when he was struggling for his life, companyld number have been a gentle push. We may also mention here that each of the accused denied participation in the attack but gave numberevidence in defence. We find that the High Court had numbericed the companyrect principles to be observed in appeals from acquittals before reappraising the evidence in the case. It had pointed out that erroneous assumptions of the Trial Court, which were unsupported by evidence, had led to the acquittal of the accused. If we find ourselves in agreement with the view of the High Court, as we do, that the evidence of the two eye witnesses, who were in a better position to see and describe the occurrence than the victim Zingu, is natural, credible, and unshaken, and is also fully companyroborated by other good evidence in the case, we do number think that the mere fact that the prosecution had number given evidence either to companyroborate Zingus assertions that he and Sukal had gone out fishing during the night or to make out a good enough motive for murder would justify the rejection of the evidence of the three eye-witnesses. It was suggested by the prosecution that the defeat of Harlal at the Panchayat elections must rankling. in the mind of his brother Yeshwant. But, there is numberevidence to show what Sukal and Zingu had to do with that or why the other accused should join hands with Yeshwant. The defence suggestion, in the cross-examination of witnesses, that the occurrence took place elsewhere is belied by the finding of the body of Sukal a few paces from the lamp post, but another suggestion that Sukal was a bully, who went about with Zingu, companylecting money, may companyceivably give a clue to the pos- sible motives of the accused. The discovery of the true motive for a crime is number imperative in every case. The High Court had, however, number examined the evidence against each accused individually. Hence, the weakness in the evidence of identity given against Brahmanand Tiwari appellant escaped due attention in the High Court. We have, therefore, thought it fit to companyrect this error and give the benefit of doubt to this appellant. It has been strongly companytended by Mr. Desai, on behalf of the remaining appellants, that they too are entitled to the benefit of doubt about the whole case which thus emerges. He has relied upon Krishna Govind Patil v. State of Maharashtra 1 , and Jagir Singh v. State of Punjab 2 . In Krishna Govind Patils case Supra this Court held that, where four persons were charged under Section 302 read with s. 34, I.P.C., the effect of finding that three of them, who were specially indicated as the other participants, were entitled to the benefit of doubt, it was number possible to companyvict the fourth accused under Section 302 read with Section 34 I.P.C. It is, clear that, in that case, the only remaining accused companyld, if at all, be companyvicted under Section 302 simpliciter. Apparently, the evidence was number good enough to sustain the companyviction of the remaining accused person singly. We do number think that this decision, which depends upon its own facts, as criminal cases generally do, lays down any general principle that, where the identity of one of the participants is doubtful, the whole case must end in acquittal. Such a question belongs to the realm of facts and number of law. 1 19641 S.C.R. 678 2 1967 3 S.C.R. 256. This Court said in Krishna Govind Patils case Supra There is number a single observation in the judgment to indicate that persons other than the said accused participated in the offence, number is there any evidence in that regard. In the case before us, there is evidence that the man who used the axe on Sukal was a man who looked like Brahmanand Tiwari, the appellant, and companyld be this accused himself. We are, however, number satisfied that the identity of the man who used the axe on Sukal is satisfactorily established as that of the appellant Brahmanand Tiwari. In such a case, we think that the remaining accused persons companyld be companyvicted with the aid of Section 34 I.P.C. for the offences they companymitted. Indeed, if five persons. are lying in wait for two to pass and then pounce upon them so that three are engaged in attacking one and two attack the other, it may be difficult to hold, as the High Court has done, that Sections 147 and 149 I.P.C. would be inapplicable. But, as the accused have been acquitted of the charge of rioting, we cannot enter into this question and companyvert this acquittal into a companyviction under Section 147 I.P.C., at this stage. In Jagir Singhs case Supra , it was pointed out that Section 34 I.P.C., is intended to meet a case where members of a party act in furtherance of a companymon intention of all but it is difficult to prove the part played by each of them individually. This case helps the prosecution and number the appellants. The only part of the prosecution case on which we entertain a reasonable doubt is the identity of the man who attacked Sukal with the axe. The benefit of this doubt can only go to the appellant Brahmanand Tiwari and number to the other accused persons who were known well to each eye witness. The result is that we think that the case against four out of the five appellants is established beyond any reasonable doubt. But, we doubt whether the identity of the fifth man, who was certainly there, is satisfactorily established as that of Brahmanand Tiwari. Accordingly, we allow the appeal of Brahmanand Gokul Prasad Tiwari and acquit him of all the charges levelled against him. He shall be released forthwith unless wanted in some other companynection. The appeal of the four remaining appellants is dismissed and their companyvictions and sentences are maintained.

Case appeal was rejected by the Supreme Court