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ivil Appeal Nos. 4 132 4 133 (NCE) of 1986. From the Judgment and order dated 22.10.1986 of the Rajas : than High Court in S.B. Election Petition Nos. 1 and 9 of 1985. N.M. Ghatate, B.R. Dutta and S.V. Deshpande for the Appellant. Dr. Y.S. Chitale, M.R. Calla and Jitendra Sharma for the Respondents. The Judgment of the Court was delivered by SINGH,J. These two appeals under Section 116 A of the Rep resentation of the People Act, 1951 (hereinafter referred to as the Act) are directed against the judgment and order of the High Court of Rajasthan at Jaipur dated 22nd October 1986 setting aside the appellant 's election to the Legislative Assembly of the State of Rajasthan. Election to the Rajasthan Legislative Assembly Constituency No. (80 Karauli) was held in 1985. The appellant and 10 other candidates contested the election from the aforesaid assembly constituency. The Returning officer declared the appellant duly elected on his having obtained majority of valid votes. Chandra Bhan Singh, Respondent No. 1, filed Election Petition No. 1 of 1985 as an elector and another Election Petition No. 9 of 1985 was filed by Mukand Ram, Respondent No. 2, also an elector before the High Court of Rajasthan under Section 80 of the Act, challenging the validity of the appellant 's election to the legislative assembly on the ground that Kanhaiya Lal a contesting candidate was not qualified to contest election under Article 173(b) of the Constitution as he was below 25 years of age on the date of scrutiny of nomination papers and his nomination paper was improperly accepted by the Returning officer which materially affected the result of the election of the returned candidate. The appellant appeared and contested both the election petitions? and pleaded before the High Court the Kanhaiya Lal was qualified to be a candidate at the election as he had completed 25 years of age on the date of scrutiny of nomination papers and there was no improper acceptance of his nomination paper. He further pleaded that in any view, his election was not materially affected by the acceptance of Kanhaiya 717 Lal 's nomination paper. Both the election petitions were consolidated and tried jointly by the High Court. The issues framed were almost identical in the two election petitions and the election petitioners and the appellant produced evidence in support of their cases before the High Court. The High Court by its order dated 22nd October, 1986 held that Kanhaiya Lal was not qualified to be a candidate as he had not completed 25 years of age and that his nomination paper was improperly accepted by the Returning officer. The High Court further held that since the difference between the votes polled by the appellant and Roshan Lal an unsuccessful candidate who had obtained the next highest votes was only 4497 votes, the result of the election was materially affected. On these findings the High Court declared the appellant 's election void and directed the Election Commission to hold fresh election. Learned counsel for the appellant raised only one submission before us in challenging the correctness of the order of the High Court. He urged that the finding recorded by the High Court that the improper acceptance of the nomination paper of Kanhaiya Lal had materially affected the result of appellant 's election was based on conjectures and surmises and not on any legal evidence. Learned counsel further submitted that none of the two election petitioners had produced any cogent and reliable evidence to discharge the burden that the result of the election was materially affected on account of improper acceptance of the nomination paper of Kanhaiya Lal but on the other hand the appellant had produced large number of witnesses in support of his case, but the High Court had failed to consider the evidence of those witnesses. Dr. Chitale appearing on behalf of the Respondents urged that on the material on record and having regard to the number of votes polled by Kanhaiya Lal and the difference between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal the findings recorded by the High Court are sustainable in law and the same are in accordance with the law laid down by this Court in Chhedi Ram vs Jhilmit Ram & others. ; , In all eleven candidates contested the election. After counting, it was found that the total number of votes polled were 60815 out of which 821 votes were rejected being invalid by the Returning officer. Thus the total number of valid votes were 59994. The total valid. number of votes polled by each of the candidates was as under: H 718 1. Shiv Charan Singh (appellant) 21443 2. Kanhaiya Lal. 17341 3. Asphak. 275 4. Narayan. 1310 5. Prahlad 252 6. Puran Chandra Sharma. 1308 7. Mana Lal 198 8. Ram Swaroop. 102 9. Roshan Lal. 16946 10. Samanta. 271 11. Heera Lal 40 The High Court has held that Kanhaiya Lal 's nomination paper was improperly accepted, as he was not competent to contest the election for the reason of his being below 25 years of age. Since there was difference of only 4497 votes between the votes polled by the appellant and the next unsuccessful candidate Roshan Lal who had polled 16946 votes the High Court held that if Kanhaiya Lal had not contested the election the aforesaid number of votes polled by him could have gone in favour of Roshan Lal and other candidates, as a result of which Roshan Lal would have polled the majority of valid votes. In this view the High Court concluded that the result of the appellant 's election was materially affected and it accordingly declared the appellant 's election void. Since the learned counsel for the appellant did not challenge the finding recorded by the High Court that Kanhaiya Lal was not qualified to be a candidate on the date of his nomination as he was below 25 years of age and his nomination paper was improperly accepted by the Returning officer the said finding must be accepted as correct. The only question which survives for consideration is whether improper acceptance of Kanhaiya Lal 's nomination paper materially affected the result of the appellant 's election. Section 100 confers power on the High Court to declare the election of the returned candidate void if the grounds set out therein are made out. Section 100 (1) relevant for our purpose is as under: "100. Grounds for declaring election to be void. (1) Subject to the provisions of sub section (2) if the High Court is of opinion. (a) that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution or this Act or the Govern 719 ment of Union Territories Act, 1963 (20 of 1963)or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected: (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act. the High Court shall declare the election of the returned candidate to be void. " Section 100(1)(d)(i) provides for setting aside the election of the returned candidate on the ground of improper acceptance of any nomination paper provided the result of the election of the returned candidate is materially affected by reason of such improper acceptance of nomination of a candidate other than the returned candidate. Improper acceptance of nomination paper of any contesting candidate (other than the contesting candidate) does not ipso facto render the election of the returned candidate void. The election can be declared void only if it is found that the result of the election of the returned candidate was materially affected on the ground of such improper acceptance. The burden of proving the material effect on the result of election is always on the election petitioner challenging the validity of the election of the returned candidate. Unless this burden is discharged by the election petitioner the result of the returned candidate cannot be declared void. 720 The question as to how and in what manner the burden of Providing that the result of election was materially affected should be discharged is a vexed question which has been considered by this Court in a number of cases. In the leading case of Vashist Narain Sharma vs Dev Chandra and others; , this Court considered this question at length. In that case the nomination paper of one Dudh Nath a contesting candidate who had polled 1983 votes was found to have been improperly accepted. The returned candidate had polled 12860 votes while Vireshwar Nath Rai had polled 10996 votes being the next highest number of votes. There was thus difference of 1864 votes bet ween the votes polled by the returned candidate and the next unsuccessful candidate. The Election Tribunal set aside the election of the returned candidate on the finding that improper acceptance of the nomination paper of Dudh Nath had materially affected the result of the election. This Court set aside the order of the Tribunal on the ground that the election petitioner had failed to discharge the burden of proving that the result of the election had been materially affected. The Court observed as under: "But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes bet ween the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many of which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(l)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand. " Section 100 (l)(c) of the Act as it stood in 1952 was in pari materia with the present Section 100(l)(d)(1) of the Act. The 721 interpretation of Section 100 (1)(c) of the Act as given by the Court in Vashist Narain Sharma 's, case fully applies to the interpretation of Section 100(1)(d)(1) of the Act. In Vashist Narain Sharma 's, case this Court has categorically held that the result of the election of the returned candidate cannot be materially affected merely for the reason that the number of votes polled by the candidate whose nomination paper was improperly accepted was greater than the margin of votes polled by the returned candidate and the candidate securing the next highest number of votes, because it could not be predicated in what manner or proportion the voters would have exercised their choice in the absence of the improperly nominated candidate from the election contest. Proceeding further the Court considered the question whether any speculation, or conjecture could be made in a case where the number of votes secured by the candidate whose nomination paper was improperly accepted was higher than the difference between the votes polled by the returned candidate and the candidate who may have polled the next highest number of votes. The Court observed that in such a case it was impossible to foresee what the result would have been if the improperly nominated candidate had not been in the field. Since it was not possible to anticipate the result, the election petitioner must discharge the burden of proving that fact, and on his failure to prove that fact the election of the returned candidate must be allowed to stand. Then the question arose as to how and in what manner the burden could be discharged by the election petitioner. On behalf of election petitioner an attempt had been made to discharge burden by producing a number of electors before the Tribunal who had stated that all or some of the votes would have gone to the candidate who had polled the next highest number of votes in the absence of the improperly nominated candidate and he would have polled majority of valid votes. The Court held that the statement of the witnesses as to in what manner votes would have been distributed among the remaining contesting candidates could not be relied upon in determining the question of material effect on the election of the returned candidate. The Court observed: "It is impossible to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must 722 stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter entirely for the Legislature to consider. (Underlining by us) Tn Paokai Haokip vs Rishang Ors. , ; the Judicial Commissioner Manipur had set aside the election of the returned candidate to Lok Sabha on the ground that there was gross violation of the Act and the Rules framed thereunder in conducting the election as a result of which the result of the election was materially affected under Section 100(1)(d)(iv) of the Act on the findings that on the polling date a number of polling centres were changed without notice to voters and there was firing and riots at some polling stations, as a result of which a number of voters could not exercise their right to vote. In rendering the aforesaid findings the Judicial Commissioner had placed reliance upon the statement of witnesses who had testified before the Tribunal that if they had opportunity to cast their votes, they would have voted for the unsuccessful candidate. This Court, placing reliance on the decision in Vashist Narain Sharma 's case held that the statement of witnesses could not be taken at their word and it was a surmise and anybody 's guess as to how those people, who did not vote, would have actually voted. Then the question arose if witnesses could not be relied upon, in what manner the election petitioner, could discharge the burden. Referring to the decision in Vashist Narain Sharma 's case the Court observed as under: "How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way of determining the burden, the law should say it and not the courts. It is only in given instances that, taking the law as it is, the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not. We are satisfied that in this case this burden has not been discharged." (Underlining by us) 723 We are in respectful agreement with the view taken by this Court in the aforesaid decisions. The election of a returned candidate cannot be declared void on the ground of improper acceptance of nomination paper of a contesting candidate unless it is established by positive and reliable evidence that improper acceptance of the nomination of a candidate materially affected the result of the election of the returned candidate. The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes. In other words the result of the election of the candidate cannot be held to have been materially affected unless it is proved that in the absence of the candidate whose nomination paper was wrongly accepted in the election contest, any other candidate (other than the returned candidate) would have polled the majority of valid votes. In the absence of any such proof the result cannot be held to have been materially affected. The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof. But the difficulty in proving this fact does not alter the position of law. The legislative intent is clear that unless the burden howsoever difficult it may be, is discharged, the election cannot be declared void. The difficulty of proving the material effect was expressly noted by this Court in Vashist Narain Sharma 's and Paokai Haokip 's, cases and the Court observed that the difficulty could be resolved by the Legislature and not by the Courts. Since then the Act has been amended several times, but Parliament has not, altered the burden of proof placed on the election petitioner under Section 100(1)(d) of the Act. Therefore the law laid in the aforesaid decisions still hold the field. It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates. Legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election has to be discharged by the person challenging the election and the Courts cannot speculate on the question. In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures. In the instant case Shiv Charan Singh the appellant had polled 21443 votes and Roshan Lal had polled 16496 the next highest number 724 Of votes. There was thus a difference on 4497 votes between the votes polled by the appellant and Roshan Lal. Kanhaiya Lal whose nomination paper had improperly been accepted, had secured 17841 votes which were wasted. The election petitioners did not produce any evidence e to discharge the burden that improper acceptance of the nomination paper of Kanhaiya Lal materially affected the result of the election of the returned candidate. On the other hand the appellant who was the returned candidate produced 21 candidates representing cross section of the voters of the constituency. All these witnesses had stated before the High Court that in the absence of Kanhaiya Lal in the election contest, the majority of the voters who had voted for Kanhaiya Lal would have voted for Shiv Charan Singh the appellant. The High Court in our opinion rightly rejected the oral testimony of the witnesses in view of this Court 's decision in Vashist Narain Sharma 's, case. The High Court however having regard to the votes polled by the appellant Roshan Lal and Kanhaiya Lal held that the result of the election was materially affected. The High Court held that in view of the fact that difference between Shiv Charan Singh the appellant and Roshan Lal was only 4497 and Kanhaiya Lal, whose nomination was improperly accepted had secured 17841 votes therefore it could reasonably be concluded that the election was materially affected. In our opinion the High Court committed error declaring the appellant 's election void on speculations and conjectures. Indisputably, the election petitioners had failed to discharge the burden of proving the fact that the result of election of the appellant had been materially affected by reason of improper acceptance of the nomination paper of Kanhaiya Lal. In the absence of any positive evidence produced by the election petitioners, it was not open to the High Court to record findings that the result of the election was materially affected. The High Court 's findings relating to the material effect on the result of the election are based on conjectures and surmises and not on any evidence. The Legislature has, as noted earlier placed a difficult burden on the election petitioner to prove that the result of the election was materially affected by reason of improper acceptance of nomination paper of a candidate (other than the returned candidate) and if such burden is not discharged the election of the returned candidate must be allowed to stand as held by this Court in Vashist Narain Sharma 's and in Paokai Haokip 's case. It is true that the burden placed on the election petitioner in such circumstances is almost impossible to discharge. But in spite of the fact that this Court had highlighted this question on more than one occasion, Parliament has not amended the relevant provisions although the Act has been 725 subjected to several amendments. It is manifest that law laid down by this Court in Vashist Narain Sharma 's case and Paokai Haokip 's case holds the field and it is not permissible to set aside the election of a returned candidate under Section 100(1)(d) on mere surmises and conjectures. If the improperly nominated candidate had not been in the election contest, it is difficult to comprehend or predicate with any amount of reasonably certainty the manner and the proportion in which the voters who exercised their choice in favour of the improperly nominated candidate would have exercised their votes. The Courts are ill equipped to speculate as to how the voters could have exercised their right of vote in the absence of improperly nominated candidate. Any speculation made by the Court in the this respect would be arbitrary and contrary to the democratic principles. It is a matter of common knowledge that electors exercise their right of vote on various unpredictable considerations. Many times electors cast their vote on consideration of friendship, party affiliation, local affiliation, caste, religion, personal relationship and many other imponderable considerations. Casting of votes by electors depends upon several factors and it is not possible to forecast or guess as to how and in what manner the voters would have exercised their choice in the absence of the improperly nominated candidate. No inference on the basis of circumstances can successfully be drawn. While in a suit of proceedings it may be possible for the Court to draw inferences or proceed on probabilities with regard to the conduct of parties to the suit or proceedings, it is not possible to proceed on probabilities or draw inferences regarding the conduct of thousands of voters, who may have voted for the improperly nominated candidate. In the instant case there were 11 contesting candidates. If Kanaiya Lal whose nomination paper had been improperly accepted was not in the election contest, it is difficult to say in what proportion the voters who had voted for him would have voted for the remaining candidates. There is possibility that many voters who had gone to the polling station to cast their votes in favour of Kanaiya Lal may not have gone to exercise their vote in favour of the remaining candidates. It is probable that in the absence of Kanaiya Lal in the election contest, many voters would have voted for the returned candidate as he appeared to be the most popular candidate. It is difficult to comprehend that the majority of the voters who exercised their choice in favour of Kanaiya Lal would have voted for the next candidate Roshan Lal. It is not possible to forecast how many and in what proportion the votes would have gone to one or the other remaining candidates and in what manner the wasted votes would have been distributed among the remaining contesting candidates. In this view, the result of the returned candidate could not be declared void on the basis 726 of surmises and conjectures. The High Court placed reliance on the decision of this Court in Chhedi Ram 's case in holding that the result of the election was materially affected in view of the margin of difference between the appellant and Roshan Lal and the votes secured by Kanaiya Lal. The decision in Chhedi Ram 's case does not over rule earlier decisions of this Court in Vashist Narain Sharma and Paokai Haokip 's case and it does not lay down any different law. Instead the decision of the case turned upon the facts of that case. In Chhedi Ram 's case there were four contesting candidates. Jhilmit Ram the returned candidate had polled 17822 votes while Chhedi Ram had polled the next highest number of votes being 17449 votes. Thus the difference between the successful candidate and the candidate who had secured the next highest number of votes was 373 votes only. While Moti Ram whose nomination paper was found to have been improperly accepted had polled 6710 votes. The High Court had dismissed the election petition on the finding that the result of the election had not been materially affected as a result of the improper acceptance of the nomination paper of Moti Ram. This Court allowed the appeal and set aside the election of the returned candidate on the finding that if the number of votes secured by the candidate whose nomination was improperly accepted was not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, there was a reasonable probability that the result of the election had been materially affected and one may venture to hold that fact as proved. After making these observations the Court noted that in that case the candidate whose nomination was improperly accepted had obtained 6710 votes i.e. almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, in that situation the result of the election was held to have been materially affected. The decision in Chhedi Ram 's case rests on its own facts. Applying the principle laid down in Chhedi Ram 's case to the facts of the instant case it is not possible to hold that the result of the election of the appellant was materially affected. As already noted the appellant had polled 21443 votes while Roshan Lal had polled the next highest number of votes 16946 and the difference between the two was only 4497 votes while the votes polled by the improperly nominated candidate Kanaiya Lal was 17841 thus the proportion of difference was only four times, while 727 the difference in Chhedi Ram 's case was 20 times. Further in Chhedi Ram 's case there were only 4 contesting candidates while in the instant case there were 11 contesting candidates and in the absence of Kanaiya Lal other remaining 10 would have shared the wasted votes. On these facts even on the basis of Chhedi Ram 's case it is not possible to draw any inference or act on probability and to record a finding that the majority of wasted votes would have gone to Roshan Lal in such a way as to affect the result of the appellant 's election. In the circumstances, the findings recorded by the High Court that the result of the election of the appellant was materially affected is not sustainable in law. In the result, we hold that the election petitioners have failed to prove that the result of the election of the appellant was materially affected on the ground of improper acceptance of nomination paper of Kanaiya Lal. Therefore, the election of the returned candidate could not be declared void. We accordingly allow the appeals, set aside the judgment and order of the High Court, uphold the appellant 's election and dismiss the election petitions with costs throughout. N.P.V. Appeals allowed.

% The validity of the appellant 's election to the Legislative Assembly was challenged by two electors, Respondent Nos. 1 and 2, on the ground that improper acceptance by the Returning officer, of the nomination paper of one of the contesting candidates who was not qualified to contest the election under article 173(b) of the Constitution, had materially affected the result of the election of the returned candidate. The appellant contested the election petitions, contending that there was no improper acceptance of nomination paper of the candidate in question and that the appellant 's election was not materially affected. The High Court held that there was improper acceptance of the nomination paper, as the candidate in question was not competent to contest election for the reason that he was below 25 years of age. It also held that the election of the appellant was materially affected, because there was a difference of only 4497 votes between the votes polled by the appellant and the next unsuccessful candidate and if the candidate whose nomination paper had been improperly accepted had not contested, the votes polled by him would have gone in favour of the next unsuccessful candidate and other candidates, in which case the next unsuccessful candidate could have polled the majority of valid votes. It accordingly declared the appellant 's election void. In the appeals before this Court it was contended on behalf of the appellant that the finding recorded by the High Court that the improper acceptance of the nomination paper of the candidate in question had materially affected the result of the appellant 's election was based on conjectures and surmises and not on any legal evidence and that none of 714 the two election petitioners had produced by cogent and reliable evidence to discharge the burden that the result of the election was materially affected on account of improper acceptance of the nomination paper of the candidate in question. On behalf of the respondents, it was urged that on the material on record and having regard to the number of votes polled by the candidate whose nomination was improperly accepted and the difference between the votes polled by the appellant and the next unsuccessful candidate, the findings recorded by the High Court were sustainable in law and the same were in accordance with the law laid down by this Court. in Chhedi Ram vs Jhilmit Ram & ors. , [ ; Allowing the appeals, ^ HELD: l. The election petitioners have failed to prove that the result of the election of the appellant was materially affected on the ground of improper acceptance of nomination paper. Therefore, the election of the returned candidate could not be declared void. [717C D] 2.1 Improper acceptance of nomination paper of any contesting candidate (other than the contesting candidate) does not ipso facto render the election. Of the returned candidate void. The election can be declared void only if it is found that the result of the election of the returned candidate was materially affected on the ground of such improper acceptance. The burden of proving the material effect on the result of election is always on the election petitioner challenging the validity of the election of the returned candidate. Unless this burden is discharged by the election petitioner the result of the returned candidate cannot be declared void. [719F H] 2.2 The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidates (other than the returned candidate) would have polled the highest number of valid votes. In the absence of any such proof, the result cannot be held to have been materially affected. [732C D] The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof. But the difficulty in proving this fact does not alter the position of law. The 715 legislative intent is clear that unless the burden howsoever difficult it may be, is discharged, the election cannot be declared void. [719G H] 2.3 It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates. [723F] Legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election has to be discharged by the person challenging the election and the Courts cannot speculate on the question. In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures. [723F G] Casting of votes by electors depends upon several factors and it is not possible to forecast or guess as to how and in what manner the voters would have exercised their choice in the absence of the improperly nominated candidate. No inference on the basis of circumstances can successfully be drawn. [725D El The Courts are ill equipped to speculate as to how the voters could have exercised their right of vote in the absence of improperly nominated candidate. Any speculation made by the Court in this respect would be arbitrary and contrary to the democratic principles. [725B C] In the instant case, the election petitioners had failed to discharge the burden of proving the fact that the result of the election of the appellant had been materially by reason of improper acceptance of the nomination paper of the candidate in question. In the absence of any positive evidence provided by the election petitioners, it was not open to the High Court to record findings that the result of the election was materially affected. There were ll contesting candidates. If the candidate whose nomination paper had been improperly accepted was not in the election contest, it is difficult to say in what proportion the voters who had voted for him would have voted for the remaining candidates. Therefore, the result of the returned candidate could not be declared void on the basis of surmises and conjectures. [724E; 725E H] Vashist Narain Sharma vs Dev Chandra and others; , and Paokai Haokip vs Rishang & Ors., ; , relied on. 716 Chhedi Ram vs Jhilmit Ram 2 others, [1984] t SCR 966 distinguished and explained.

Civil Appeal No. 280 of 1988. From the Judgment and order dated 20.5.1987 of the Calcutta 820 High Court in Civil order No. 1344 of 1987. Somnath Chatterjee and Rathin Dass for the Appellants. S.N. Kacker, Badar Durrez Ahmed and Parijat Sinha for the Respondents. The Judgment of the Court was delivered by OZA, J. Leave granted. This appeal has been filed aggrieved by the judgment of the High Court of Calcutta dated 20th May 1987 wherein the learned Judge allowed a petition under Article 227 and quashed suo moto proceedings under Sec. 44(2a) of the West Bengal Estates Acquisition Act, 1953 ( 'Act ' for short) and also the appeal which was pending before the lower appellate court under the Act. The proceedings under Article 227 reached the High Court rather in an interesting situation. Suo moto proceedings in 1968 were started by the Revenue officer Tollygunj under Sec. 44(2a) of the Act. There were also proceedings under Sec. 6 clause 5 read with Sec. 47 of the same Act started by Revenue officer and the case was registered as Case No. 22 of 1968. A suit filed in 1969 between parties to which the State of West Bengal was not a party ended in a compromise decree on 6.8.70 and a decree in terms of compromise was drawn up. It was title suit No. 67 of 1969. After the final orders were passed by the Revenue officer in Case No. 22 of 1968 wherein the respondent Ashit Nath Das did not participate and against these final orders a petition was filed in the High Court of Calcutta where rule was issued and by orders of the High Court dated 1.4.81 the rule was made absolute quashing the orders in the said revenue case directing the settlement officer to issue proper notice to Ashit Nath Das as he claimed to be an interested party and dispose of the matter after giving him opportunity of hearing. As a result of this order passed by the High Court on 22.1.82 the proceedings under Sec. 44(2a) of the Act was re opened according to the orders passed by the High Court and on 9.2.82 final orders were passed in these proceedings by the special revenue officer. Against this order Ashit Nath Das preferred an appeal before the 9th Additional District Judge, Alipore who is the competent authority to hear an appeal under this Act which was registered as EA Appeal No. 2 of 1982. On 1.12.83 it appears that Ashit Nath Das obtained an opinion 821 Of the Advocate General of West Bengal regarding the aforesaid proceedings pending in Appeal No. 2 of 1982 before the 9th Additional District Judge, Alipore and filed that opinion with an application in the Court of Additional District Judge. The Additional District Judge passed an order on 25.2.86 rejecting the prayer of the respondent by saying that the opinion of the Advocate General could only be looked into as the ground of appeal on behalf of the appellant and the prayer of the appellant before the Additional District Judge the present respondent that the appeal be disposed of in accordance with the opinion of the Advocate General was rejected. It is interesting to note that such a strange prayer was made and the learned Additional District Judge by his order rejected that prayer. The relevant part of the order reads as under: "It is his case that after the order of the R.O. now impugned in this appeal, his client had made a reference of the matter to the Adv. General, Govt. Of West Bengal and sought for his opinion. It is alleged that the Adv. General had given his opinion that the order of the R.o. was wrong on the basis of this the appellants now want that the appeal should be disposed of as per opinion of the Adv. General because all relevant papers were submitted to him and copy of his opinion and the copy of the petition and copies of the papers were handed over to the State lawyer. " As the learned Judge observed that it could only be considered as a ground. The date of hearing of the appeal was fixed on 19.4.86 to suit the convenience of the advocates of parties. It is against this order that a petition under article 227 was filed before the High Court. Learned counsel appearing for the appellants read through the petition which was filed before the High Court to contend that in fact there was nothing in the order of the Additional District Judge which could be said to be an order against the respondent of which a grievance could be made in a petition under article 227. As regards the date of hearing the learned Additional District Judge had observed in his order that to suit the convenience of advocates appearing in the case 19.4.86 is fixed as the date of hearing Learned counsel for the appellants referred to us paragraph No. 14 of the petition under article 227 in which a ground was specifically raised saying. "It was further contended that the Advocate General had 822 given his opinion that the order of the Revenue officer was wrong and as such on the basis of the said opinion the petitioner wanted that the appeal should be disposed of as per opinion of the Advocate General. " A grievance also was made in this petition that the learned Additional District Judge refused to look into the opinion of the Advocate General except as a ground of appeal on behalf of the appellants. In the grounds in this petition under article 227 one ground urged was that the learned Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General and that should have fixed an early date for the hearing of the appeal and it is significant that nothing on the merits or the validity of the proceedings under Sec. 44(2a) of the Act were challenged in this petition under article 227. The manner in which the petition was entertained in the High Court and the impugned order was passed also is rather interesting. on 18.4.86 it appears that this petition was presented and orders were passed. The presence of the counsel of both the parties is mentioned, thereafter it is stated that further proceedings before the appellate tribunal be stayed and it is further stated that Advocate General is also directed to appear on Friday next (25.4.86) at the first sitting of the Court. Apparently from this what appears is that after asking the Advocate General to remain present the learned Judge kept the matter to be taken up on 25.4.86. It appears that thereafter the case did not appear in the list for hearing as is apparent from the order dated 18.4.86 when rule was not issued and the matter was kept on 25.4.86. It is alleged that this was contested by the State Govt. but neither the parties were called upon to file affidavits nor any rule was issued and subsequently on 13.6.86 this case was shown in the list of the Hon 'ble Judge for judgment but on 13.6.86 the judgment was not delivered and thereafter the case appeared in the list on 20.5.87 for judgment and on this date the judgment was delivered although the file had no number as it appears that rule was not issued and the petition was not even numbered and it is this impugned judgment which is challenged by the State of West Bengal in this appeal in special leave. In this order the learned Judge has treated this petition under article 227 as a revisional application of the petitioner challenging the order passed by Additional District Judge on 25.2.86 which has been referred to above. 823 The learned Judge has reproduced the contention advanced by the counsel for the respondents that the appellate court i.e. 9th Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General and about this contention the learned Judge of the High Court has made the following observation in his impugned judgment: "It is most regretable to note the stand taken by the State in the matter in disregarding the written opinion given by no loss person that the Advocate General of West Bengal showing such scant respect or no respect at all to such opinion and I hudder to think that if such disrespect is shown to the opinion of the Advocate General of West Bengal what should be the position of the Advocate General before the court and also to the State Government". However the learned Judge did not agree that the Additional District Judge should have decided in accordance with the opinion of the Advocate General and we are happy that the 9th Additional District Judge, Alipore did not accede to such a prayer but after the above quoted observation the learned Judge has decided matters which were not raised before the High Court in the petition under article 227. No ground about the validity of 44(2a) proceedings on the basis of Amending Act not getting the assent of President was raised. When the case was fixed for 25th April Friday next directing the Advocate General to remain present, there after it was never heard and it only ultimately resulted in the impugned order. It is not contended even by the learned counsel for the respondents that any additional grounds were urged in the petition under article 227 inviting the Court to consider the matter as to the effect of the Amendment Act, 1969 not receiving the assent of the President and the subsequent Amendment Act receiving the assent of the President and the effect thereto. Unfortunately the learned Judge of the High Court lost sight of the fact that the only grievance against the order of the Additional District Judge was that he refused to decide the appeal in accordance with the opinion of the Advocate General and that he did not give an early date of hearing. This question about the suo moto proceedings under Sec. 44(2a) and the validity of the Amendment Act and its effect were neither considered by the appellate authority and in fact the appeal was still pending before the 9th Additional District Judge which was yet to be heard and disposed of but it appears that the 824 learned Judge of the High Court after examining these legal aspects without having been raised before it decided the matter so that neither appeal remains nor any proceedings remain and in doing so the learned Judge went on without their being proper grounds before it and without giving an opportunity to the present appellant State of West Bengal to have their say in the matter. Under these circumstances it is apparent that the order passed by the learned Judge of the High Court dated 20.5.87 is completely without jurisdiction and on matters which were not before it and also without giving adequate opportunity of hearing and therefore the order deserves to be quashed and is quashed. Apparently therefore the appeal filed by the respondent before the 9th Additional District Judge which was pending when the learned Judge of the High Court passed the impugned order revives and it could not be said that the appeal is disposed of as observed by the learned Judge of the High Court. Consequently it is directed that the appeal which was pending before the 9th Additional District Judge Alipore shall be heard by the learned Additional District Judge in accordance with law. The learned Additional District Judge while hearing and disposing of the appeal shall not be bound or obsessed by any observation made by the learned Judge in the impugned order. In the circumstances of the case parties are directed to bear their own costs. N. V. K. Appeal allowed.

% As a result of the order passed by the High Court, proceedings under section 44(2a) of the West Bengal Estates Acquisition Act, 1953 were re opened by the Special Revenue officer and final orders were passed on 9.2.1982. The Ist respondent preferred an appeal against this order before the 9th Additional District Judge, the competent authority to hear an appeal. On 1.12.83 the Ist respondent obtained an opinion of the Advocate General regarding the aforesaid proceedings, and filed that opinion with an application. The Additional District Judge passed an order on 25.2.86 rejecting the prayer of the Ist respondent that the appeal be disposed of in accordance with the opinion of the Advocate General, but observed that the opinion of the Advocate General could only be looked into as the ground of appeal on behalf of the Ist respondent. The date of hearing of the appeal was fixed on 19.4.86 to suit the convenience of the Advocates of the parties. A petition under article 227 was filed in the High Court against the 818 aforesaid order by the Ist respondent. The High Court treated this petition as a revision application challenging the order passed by the Additional District Judge on 25.2.86, and held that the Additional District Judge should have disposed of the appeal in accordance with the opinion of the Advocate General, and quashed the proceedings under Section 44(2a) as well as the appeal that was pending hearing before the Additional District Judge. Allowing the Appeal by the State this Court, ^ HELD: l. The High Court lost sight of the fact that the only grievance against the order of the 9th Additional District Judge was that he refused to decide the appeal in accordance with the opinion of the Advocate General and that he did not give an early date of hearing. The question about the suo moto proceedings under section 44(2a) and the validity of the Amendment Act, 1969 and its effect were not considered by the appellate authority and in fact the appeal was still pending before the 9th Additional District Judge which was yet to be heard and disposed of. [823G H] 2. The High Court after examining the legal aspect without having been raised before it decided the matter so that neither appeal remains nor any proceedings remain and in doing so the High Court went on without there being proper grounds before it and without giving an opportunity to the appellant State of West Bengal, to have their say in this matter. [824A B] 3. The order passed by the High Court dated 20.5.87 is, therefore, completely without jurisdiction and on matters which were not before it and also without giving adequate opportunity of hearing and, therefore, deserves to be quashed, and is quashed. [824B c] 4. The appeal that was filed by the Ist respondent before the 9th Additional District Judge was pending when the High Court passed the impugned order, revives. It could not be said that the appeal is disposed of as observed by the High Court. It is directed that the appeal which was pending before the 9th Additional District Judge shall be heard by the Additional District Judge in accordance with law. [824C D]

Civil Appeal No 1722 of 1986. From the Judgment and order dated 8 4 ]986 of the Madras High Court in W A. No. 173 of 1986. T.S Krishnamurthy Iyer, M.N. Krishnamani and V. Balachandran for the Appellant. Kailash Vasudev for the Respondents. The Judgment of the Court was delivered by 763 VENKATARAMIAH, J. The question for consideration in this case is whether it is appropriate for the High Court to interfere with an election process at an intermediate stage after the commencement of the election process and before the declaration of the result of the election held for the purpose of filling a vacancy in the office of the Chairman of a Panchayat Union under the provisions of the Tamil Nadu Panchayats Act, 1958 (Act XXXV of 1958) (hereinafter referred to as 'the Act ') on the ground that there was an error in the matter of allotment of symbols to the candidates contesting at such election. The appellant S.T. Muthusami, respondent No. 1 K. Natarajan, respondent No. 6 M. Thangavelu and two others were nominated as candidates at the election held to the office of the Chairman, Panchayat Union, Madathukkulam, Udamalpet Taluk, Coimbatore District in the State of Tamil Nadu. The date of scrutiny of the nomination papers was 31st January, 1986 and the last date for withdrawal of nominations was 3rd February, 1986. The election was to take place on the 23rd February, 1986. On the date of the scrutiny of the nomination papers, the nomination papers of the appellant, respondent No. 1. respondent No. 6 and of two others were found to be valid by the Returning officer, respondent No. 5. As regards the allotment of symbols to the candidates the order made by the State Government on 8.1.1986 in exercise of the powers under rule 17(1) of the Tamil Nadu Panchayats (Conduct of Election of Chairmen of Panchayat Union Councils and Presidents and members of Panchayats) Rules, 1978 (hereinafter referred to as 'the Rules ') directed that the Returning officer shall assign to the candidates set up by the National and the State parties the symbols reserved for the purpose by the Chief Election Commissioner. The symbol reserved for the Indian National Congress (I) was 'hand '. Similarly the symbols were also reserved for the All India Anna Dravida Munnetra Kazhagam and Dravida Munnetra Kazhagam. 15 other symbols were also notified by the Returning officer which could be assigned to the independent candidates contesting the elections. Under the procedure prescribed by the Government where a candidate was set up by a national party who could claim the symbol which was reserved for such national party, the said national party had to send an intimation to the State Election Authority, namely, the Director of the Rural Development, Madras (respondent No. 3) intimating in Form 'A ' annexed to the order of the Government the names and the specimen signatures of not more than two representatives of the party who had been authorised to send intimations of the names of the candidates set up by the party in respect of the election to the office of the Chairmen of the Panchayat Union 764 Councils and the Presidents of Town Panchayats. These representatives of the parties, whose names were intimated to the Director of the Rural Development were then either singly or generally required to intimate the names of the persons, whom the party concerned had authorised to contest as its official candidates in order of priority in Form 'B ' annexed to the Government order. If the support to a candidate was withdrawn an intimation was required to be sent to the Returning officer not later than 3.00 P.M. On the last date fixed for withdrawal of the nomination papers. If no intimation was received before 3.00 PM. On the last date fixed for withdrawal the Returning officer was directed not to consider any candidate as a candidate set up by the political party and not to assign the symbol for which the priority was given to the concerned party. This order also stated that symbols should be assigned only by drawing lots when there were conflicting claims between two or more candidates and that no priority could be given to any candidate. In the case before us intimation was received by the Returning officer showing the appellant as the official candidate of Indian National Congress (I) under the signature of the President of the Tamil Nadu Congress (I) Committee by 12.00 noon on the 3rd of February, 1986. A similar letter was handed over by respondent No. 6 at 12.45 P.M. On that date showing that he was also the official candidate of the Indian National Congress (I). That letter also appeared to have been signed by the President of the Tamil Nadu Congress (I) Committee. Having found that two persons were claiming to be the official candidates of the same party, the Returning officer declined to grant the symbol 'hand ' to any one of them. These two candidates, i.e., the appellant and respondent No. 6 then gave in writing their choice of symbols belonging to the unreserved category giving three alternative choices. Accepting the first choice of each of them, the Returning officer allotted at 4.30 P.M. On 3.2.1986 the symbol 'glass tumbler ' to the appellant and the symbol 'fish ' to respondent No. 6. The Returning officer then proceeded to publish the list of the candidates nominated as per rule 17(2) of the Rules with the symbols allotted to each of the three candidates, whose nomination papers had been found to be valid. Immediately after the publication of the said list of the nominated candidates, the President of the Tamil Nadu Congress (I) Committee who was alleged to have signed both the letters given to the Returning officer representing that the appellant and respondent No. 6 were both official candidates wrote to the Director of The Rural Development Department, respondent No.3, who was the Election Authority as well as the Secretary to the Government, Rural Development Department, Government of Tamil Nadu on 4.2.1986 stating that he had not given his approval to respondent 765 No. 6 being an official Congress (I) candidate and that the authorised candidate of the Congress (I) Party was the appellant, S.T. Muthusami. On receipt of the said letter respondent No. 3 the Director of the Rural Development Department, the Election Authority sent a telex message to the Collector of Coimbatore to treat the appellant as the official candidate of the Indian National Congress (I) Party and to assign the symbol 'hand ' to him. The Collector communicated this message to the Returning officer by sending telex message on 6.2.1986. In accordance with that direction the Returning officer issued an Errata Notification in Form VI assigning of the symbol 'hand ' which had been reserved for the Indian National Congress (I) to the appellant on that date itself and the copies of the said Errata Notification were sent by him to all the contesting candidates through special messengers. This action of the Returning officer was challenged by respondent No. 1 K. Natarajan, who was a validly nominated candidate with 'bow and arrow ' as his symbol by filing a petition in Writ Petition No. 1178 of 1986 on the file of the High Court of Madras under Article 226 of the Constitution of India contending that the issuing of the Errata Notification was an abuse of power committed on extraneous and irrelevant considerations and there was undue interference with the actual conduct of the election. He prayed before the High Court that the Errata Notification dated 6.2.1986 should be quashed and the election should be directed to be proceeded with in accordance with the notification issued on 3.2.1986 under which the 'glass tumbler ' symbol had been allotted to the appellant. The above Writ Petition came up for consideration before the learned Single Judge of the High Court on 17.2.1986. The learned Single Judge dismissed the Writ Petition holding that respondent No. 1 K. Natarajan, who had filed the Writ Petition, could not be considered as an aggrieved party since he did not claim to be the candidate sponsored by the Indian National Congress (I) and that the dispute could be, if at all, between the appellant and respondent No. 6. Aggrieved by the order of the learned Single Judge, respondent No. 1 filed an appeal in Writ Appeal No. 173 of 1986 before the High Court of Madras. The said appeal was heard by a Division Bench and it was allowed on 8.4.1986. The Division Bench quashed the Errata Notification issued by the Returning officer and directed him to hold the election on the basis of the symbols originally allotted, treating 'glass tumbler ' as the symbol of the appellant and 'fish ' as the symbol of respondent No. 6. The Returning officer was further directed to proceed immediately with the election process from that stage as provided by the Rules. Aggrieved by the order of the Division Bench, the appellant has filed this appeal by special leave. 766 In this appeal there is no dispute about the tacts which have been set out above. The point urged by the appellant before us is that the Division Bench was in error in setting aside the Errata Notification issued by the Returning officer in exercise of its jurisdiction under Article 226 of the Constitution of India before the declaration of the result of the election in view of the existence of an alternative remedy under the Rules framed under section 178(2)(ii) of the Act entitled Decision of Election Disputes Relating to Panchayat Union Councils ' have provided a machinery for the settlement of the election disputes relating to Panchayat Union Councils. The relevant parts of rule ] and rule 11 of the said Rules read thus: "I(1) Save as otherwise provided, no election held under the T.N Panchayats Act, 1958 whether of a member, chairman or vice chairman of a panchayat union council shall be called in question except by an election petition presented in accordance with these rules to an election court as defined in sub rule (2) by any candidate or elector against the candidate who has been declared to have been duly elected (hereinafter called the returned candidate) . (2) The election court shall be (i) except in cases falling under clause (ii) in the case of districts other than the Nilgiris, the District Munsif having territorial jurisdiction over the place in which the office of the panchayat union council is situated, or if there is more than one such District Munsif, elections governed would and in the case of Nilgiris district the Subordinate Judge, Ootacamund: and (ii) where the Government so direct, whether in respect of panchayat union councils generally or in respect of any class of panchayat union councils or in respect of panchayat union councils in the same district or taluk, such ( ' officer or officers of Government as may be designated by the Government in this behalf by name or by virtue of office: Provided that an election petition may, on application, be transferred 767 (a) if presented to a District Munsif under clause (i), by the District Judge concerned to another District Munsif within his jurisdiction; and (b) if presented to an officer of Government under clause (ii), by the Government to another officer of Government: Provided further that where an election petition is transferred to any authority under the foregoing proviso, such authority shall be deemed to be the election court. . . . . . . . . 11. If in the opinion of the election court . . . . . . . . . (c) the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any non compliance with the provisions of the Act or the rules made thereunder, the election of such returned candidate shall be void. . . . . . . . . The Government order No 1677 L.A. dated 8. 10. 1960 provides that for all the purposes of the Act, the District Collector and the Division Development officer in respect of panchayat constituted under the said Act under the area within their respective jurisdiction, the District Collector in respect of every panchayat union council constituted under the Act in the District under his charge and the Additional Development Commissioner, Madras in respect of every said panchayat union council under the said Act shall be the election authorities. The expression 'election authority ' is defined by section 2(9) of the Act as such authority? not being the president or vice president or a member of the panchayat or the chairman or vice chairman or a member of the panchayat union council as may be prescribed. Rule 5 of the Rules provides that subject to the superintendence, direction and control of the election authority the Returning officer shall be responsible for the proper conduct of the election 768 under the rules. Instructions issued by the Election Authority to the Returning officer regarding the allotment of the symbols cannot, therefore, be construed as interference with the election process by an authority unconnected with the process of election. Even if there is any mistake committed by either the election authority or the Returning officer in the allotment of symbol to the appellant the said mistake can only amount to a non compliance with the provisions of the Act or the Rules made thereunder. It is clear from clause (c) of rule 11 of the Rules made for the purpose of providing a machinery for the decision of election disputes relating to panchayat union councils that every action amounting to such non compliance with the provisions of the Act and the Rules made thereunder would not automatically vitiate an election. It is only when the election court on a consideration of the entire material placed before it at the trial of an election petition comes to the conclusion that the result of the election has been materially affected by such non compliance with any of the provisions of the Act or the Rules made thereunder the election of the returned candidate can be declared void. Rule 1 of the said Rules provides that an election held under the Act whether of a member or chairman or vice chairman of a panchayat union council can be called in question only by an election petition and not otherwise. In these circumstances it has to be seen whether the Division Bench of the High Court was justified in setting aside the Errata Notification issued by the Returning officer with regard to the allotment of symbols. It is no doubt true that rule (1) of the Rules made for the settlement of election disputes which provides that an election can be questioned only by an election petition cannot have the effect of overriding the powers of the High Court under Article 226 of the Constitution of India. It may, however, be taken into consideration in determining whether it would be appropriate for the High Court to exercise its powers under Article 226 of the Constitution of India in a case of this nature. In N.P. Ponnuswami vs Returning officer, Namakkal Constituency and others; , dealing with the question whether a writ petition was a proper remedy which can be availed of by (, a person aggrieved by any irregularity in the conduct of an election before the result of the election is declared, Fazal Ali, J. On a consideration of the nature of litigation in respect of elections observed thus at page 234: "The conclusions which I have arrived at may be summed up briefly as follows: 769 (1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the 'election '; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed would have the effect of vitiating the 'election ' and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress." Having laid down the above principles, the Court further held that Article 329(b) of the Constitution of India had the effect of ousting the jurisdiction of the courts with regard to the matters arising between the commencement of the polling and the final selection. Repelling the argument that Article 329(b) of the Constitution ousted the jurisdiction of the courts only with regard to matters arising between the commencement of the polling and the final selection and that questions relating to nominations could be agitated under Article 226 of the Constitution this Court observed thus: "The question which has to be asked is what conceivable reason the legislature could have had to leave only matters connected with nominations subject to the jurisdiction of the High Court under Article 226 of the Constitution. If Part XV of the Constitution is a code by itself i.e., it creates rights and provides for their enforcement by a special tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule of the elections The more reasonable view seems to be that Article 770 329 covers all 'electoral matters." ' lt is thus seen that in the above decision (which was rendered by the Full Court) this Court first laid down as a matter of general principle that interference with an election process between the commencement of such process and the stage of declaration of result by a court would not ordinarily be proper and next laid down that Article 329(b) of the Constitution had the effect of taking away the jurisdiction under Article 226 of the Constitution also in respect of the disputes arising out of election during the said period. Following the above decision in N. P. Ponnuswami 's case (supra) in Nanhoo Mal & Ors. vs Hira Mal & Ors., ; this Court held that the right to vote or stand for election to the office of the President of a Municipal Board is a creature of the statute, that is the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Accordingly, this Court held that the election to the office of the President of the Municipal Board could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of that Act and in no other way. The Court further held that the said Act provided only for one remedy, that remedy being an election petition to be presented after the election was over and there was no remedy provided at any intermediate stage. Referring to the decision in N.P. Ponnuswami 's case (supra) this Court observed in the above decision at page 814 thus: "These conclusions follow from the decision of this Court in Ponnuswami 's case (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 of the Constitution in relation to elections it is not now necessary to consider. All the considerations applied in coming to the conclusion that elections to the legislatures 771 should not be delayed or protracted by the interference of A Courts at any intermediate stage before the results of the election are over applied with equal force to elections to local bodies. " In the above passage this Court clarified that the conclusions in N.P. Ponnuswami 's case (supra) had been arrived without taking the provisions of Article 329 of the Constitution into account and that the provisions of Article 329 of the Constitution were relevant only to the extent that even the remedy under Article 226 of the Constitution was barred as a result of the provisions. Earlier in the course of the decision in Nanhoo Mal 's case (supra) this Court observed at page 811: "After the decision of this Court in N P. Ponnuswami vs Returning officer, Namakkal Constituency & Ors. there is hardly any room for Courts to entertain applications under Article 226 of the Constitution in matters relating to elections. A Full Bench of the High Court of Madhya Pradesh expressed the same view in the year 1971 earlier in Malam Singh vs The Collector, Sehore, M.P. and others, AIR 1971 MP 195. In the above decision the High Court of Madhya Pradesh was called upon to consider the controversial question whether it was proper that the High Court should exercise its powers under Article 226 of the Constitution in election matters arising under the Madhya Pradesh Panchayats Act, 1962 at intermediate stages, that is, to interfere with individual orders passed during the process of election and thus impede that process or should it decline to exercise that power and leave the parties to their remedy of an election petition to be presented after the election was over. The provision that fell for consideration before the Full Bench of the Madhya Pradesh High Court in that case was section 375(1) of the Madhya Pradesh Panchayats Act, 1962, the language of which was identically the same as that of section 80 of the Representation of the People Act, 1951. It was pointed out that the Court in N.P. Ponnuswami 's case (supra), having regard to the words 'Notwithstanding anything in this Constitution ' used in Article 329(b) held that they G were sufficient to exclude jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress Nevertheless, the decision of the Court in N.P. Ponnuswami 's case (supra) did not entirely turn on the language of Article 329(b) of the Constitution but the Court also enunciated certain well settled principles applicable to election cases in general. In particular, the Court H 772 interpreted section 80 of the Representation of the People Act, 1951. The Full Bench observed that though it was not concerned with Article 329(b) of the Constitution, it was bound by the principles laid down in N.P. Ponnuswami 's case (supra). In delivering the judgment of the Full Bench, one of us (Sen, J.) observed: "9. First of all, their Lordships rejected the contention that the post election remedy of an election petition was inadequate to afford the relief which the petitioner sought. On the strength of the observations of Wallace, J., in Sarvothama Rao vs Chairman, Municipal Council, Saidapet, ILR , it was urged before them that to drive him to that remedy would be an anomaly, which their Lordships more appropriately described as hardship or prejudice. It was further urged that the Court could not stultify itself by allowing the wrong which it was asked to prevent to be actually consummated. While rejecting the contention, their Lordships noticed with approval the following observations of Wallace, J. in Desi Chettiar vs Chinnasami Chettair, AIR 1928Mad 1271: The petitioner is not without his remedy. His remedy lies in an election petition which we under stand he has already put in. It is argued for him that remedy which merely allows him to have set aside an election once held is not an efficacious as the one which would enable him to stop the election altogether and certain observations at page 600 of ILR (supra), are quoted. In the first place, we do not see how the mere fact that the petitioner cannot get the election stopped, and has his remedy only after it is over by an election petition, will in itself confer on him any right to obtain a writ. In the second place, these observations were directed to the consideration of the propriety of an injunction in a civil suit, a matter with which we are not here concerned. And finally, it may be observed that these remarks were made some years ago when the practice of individuals coming forward to stop elections in order that their own individual interest may be safeguarded was not so common. It is clear that there is another side of the question to be considered, namely, the inconvenience to the public 773 administration of having elections and the business of A Local Boards held up while individuals prosecute their individual grievances. These observations of Wallace, J. were made in regard to elections to Local Boards. It thus follows that the alternative remedy of an election petition is not less convenient beneficial and effectual. " It was then observed: "Next, their Lordships re stated the principle that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Their Lordships relied on the dictum of Willes, J., which has become classical: It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J., in Wolverhampton New Water Works Co. vs Hawkesford, ; , at p. 356, in the following passage: E There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and a peculiar form of remedy different from F the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it . The 774 remedy provided by the statute must be followed, and A it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to The rule laid down by this passage was approved by the House of Lords in Neville vs London Express News paper Ltd., i , and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago vs Gordon Grant & Co., 119351 AC 532 and Secy. Of State vs Mask & Co., 44 Cal. WN 709 AIR 1940 PC 105, and it has also been held to be equally applicable to enforcement of rights (see Hurdutrai vs Off. Assignee of Calcutta, at p. 349. Further it was observed: "Lastly, their Lordships stated that the law of election in this country does not contemplate that there should be two attacks on matters connected with election proceedings, in the following passage: In my opinion, to affirm such a position would be contrary to the scheme of . the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner be fore a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance, which the rejection of a nomination paper has, consists in the fact that it can be used as a ground to call the election in question." In the ultimate analysis, the Full Bench laid down: " 12. There is no constitutional bar to the excise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities, Panchayats and the like. However, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the Court in the exer 775 cise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if the alternative remedy of an election petition is available. So, their Lordships of the Supreme Court in Sangram Singh vs Election Tribunal, Kotah, ; stated: . though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of cases. " We are inclined to accept this view which lays down a salutary principle. The Division Bench of the High Court against whose decision the present appeal by special leave is filed was of the view that the issuing of the Errata Notification by the Returning officer amounted a very serious breach and interference under Article 226 of the Constitution of India was called for. Taking into consideration all the aspects of the present case including the fact that the person who filed the writ petition before the High Court was not one of the candidates nominated by the Indian National Congress (I) and the fact that the President of the Tamil Nadu Congress (I) Committee had written that he had authorised the appellant to contest as the candidate on behalf of his party and he had not given his approval to respondent No 6 contesting as a candidate on behalf of his party, we feel that the exercise of the jurisdiction by the High Court in this case under Article 226 of the Constitution cannot be supported. The parties who are aggrieved by the result of the election can question the validity of election by an election petition which is an effective alternative remedy. We are of the view that the Division Bench of the High Court committed a serious error in issuing a writ under Article 226 of the Constitution quashing the Errata Notification allotting the symbol 'hand ' to the appellant by its judgment under appeal. We, therefore, set aside the judgment of the Division Bench of the High Court and dismiss the writ petition filed in the High Court. The Returning officer shall proceed with the election in accordance with law from the stage at which it was interrupted by the order of the High Court. The appeal is accordingly allowed. No costs. S.L. Appeal allowed.

% The question for consideration in this case was whether it was appropriate for the High Court to interfere with an election process at an intermediate stage after its commencement and before the declaration of the result of the election held for filling up a vacancy in the office of the Chairman of a Panchayat Union under the Tamil Nadu Panchayats, Act, 1958 (The Act), on the ground that there was an error in the matter of allotment of symbols to the contesting candidates. The appellant. the respondent No. 1, the respondent No.6 and two others were nominated as candidates at the election held to the office of the Chairman. Panchayat Union, Madathukkulam. On scrutiny of the nomination papers, the nomination papers of the appellant, respondents Nos. 1 and 6, and the two others were found to be laid by the Returning officer. Under rule 17(1 ) of the Tamil Nadu Panchayats (Conduct of Election of Chairman of Panchayat Union Councils & Presidents and members of Panchayats) Rules 1978.(The Rules), the Returning officer was directed by the State Government to assign to the candidates of the National and State parties the symbols reserved by the Chief Election Commissioner. The symbol reserved for the Indian National Congress (I) was 'hand '. Under the procedure prescribed by the Government, intimation was received by the Returning officer showing the appellant as the candidate of the Indian National Congress (I) under the signatures of the President of the Tamil Nadu Congress (I) Committee on the 3rd February, 1986. A similar letter was handed over by respondent No. 6 on that date showing that he was also the official candidate of the Indian National Congress (I) Committee. That letter also appeared to have been signed by the President of the Tamil Nadu Congress (I) Committee. Faced with two persons claiming to be the official candidates of the same party, the Returning officer declined to 760 assign the symbol 'hand ' to either of the two. These two candidates, i.e., the appellant and respondent No. 6, then gave in writing their choice of symbols belonging to the unreserved category. The Returning officer allotted the symbol of 'glass tumbler ' to the appellant and the symbol 'fish ' to respondent No. 6. The Returning officer then published the list of the candidates nominated with the symbols allotted to each of the three candidates whose nomination papers had been found to be valid. Immediately, on publication of the said list, the President of the Tamil Nadu Congress (I) Committee, who was alleged to have signed the letters in favour of both the appellant and respondent No. 6 as the official candidates, wrote to the respondent No. 3, the Election Authority as well as the Secretary to the Government, Rural Development Department, Government of Tamil Nadu, on 4.2.86 stating that he had not given his approval to respondent No. 6 being the official Congress (I) candidate, and the authorised candidate of the Congress (I) Party was the appellant. On receipt of the letter, the respondent No. 3 sent a message to the Collector of Coimbatore to treat the appellant as the official candidate of the Indian National Congress (I) Party and to assign the symbol 'hand ' to him. The Collector communicated this message to the Returning officer on 6.2.86. The Returning officer issued, in accordance with that direction, an Errata Notification in Form IV assigning the symbol 'hand ' reserved for the Indian National Congress (I) to the appellant on that date itself and sent copies of the said Notification to all the contesting candidates. This action of the Returning officer was challenged by respondent No. I a validly nominated candidate with 'bow and arrow ' as his symbol, by a writ petition in the High Court, contending that the issuing of the Errata Notification was an abuse of power on extraneous and irrelevant considerations and there was undue interference with the actual conduct of the election, and praying that the Errata Notification dated 6.2.86 should be quashed and the election, directed to be proceeded with in accordance with the Notification issued on 3.2.86 under which the 'glass tumbler ' symbol had been allotted to the appellant. The High Court (Single Judge) dismissed the writ petition holding that the petitioner respondent No. I could not be considered as an aggrieved party and that the dispute could be, if at all, between the appellant and respondent No. 6. The respondent No. I filed an appeal before the High Court. A Division Bench allowed the appeal, quashed the Errata Notification issued by the Returning officer and directed him to hold the election on the basis of the symbols originally allotted, treating 'glass tumbler ' as the symbol of the appellant, etc. Aggrieved by the order of the Division Bench, the appellant filed this appeal by special leave. 761 Allowing the appeal, the Court, ^ HELD: The appellant contended that the Division Bench was in error in setting aside the Errata Notification issued by the Returning officer in exercise of its jurisdiction under Article 226 of the Constitution of India before the declaration of the result of the election in view of an alternative remedy under the Rules framed under section 178(2)(iii) of the Act, entitled "Decision of Election Disputes Relating to Panchayat Union Councils". [766A B] Rule 5 of the Rules provided that subject to the superintendence, direction and control of the Election Authority the Returning officer should be responsible for the proper conduct of the election under the Rules. The instructions issued by the Election Authority to the Returning officer regarding the allotment of the symbols could not, therefore, be construed as interference with the election process by an authority unconnected with the process of election. Even if there was any mistake committed by either the Election Authority or the Returning officer in the allotment of symbol to the appellant the said mistake could not amount to a non compliance with the provisions of the Act or the Rules made thereunder. It was clear from clause (c) of rule II of the Rules made for the purpose of providing a machinery for the decision of the election disputes relating to panchayat union councils that every action amounting to such non compliance with the provisions of the Act and the Rules made thereunder would not automatically vitiate an election. It was only when the election court on a consideration of the entire material placed before it at the trial of an election petition came to the conclusion that the result of the election had been materially affected by such non compliance with any of the provisions of the Act or the Rules made thereunder the election of the returned candidate could be declared void. Rule I of the said Rules provided that an election held under the Act whether of a member or Chairman or Vice Chairman of a Panchayat Union Council could be called in question only by an election petition and not otherwise, but the rule could not have the effect of overriding the powers of the High Court under Article 226 of the Constitution of India [767H:768A F] In N.P. Ponnuswami vs Returning Officer, Namakkal Constituency and Ors., 11952] S.C.R. 213 (decided by the Full Court) this court first laid down as a matter of general principle that interference with an election process between the commencement of such process and the stage of declaration of the result by a court would not ordinarily be proper, and next laid down that Article 329 (b) of the Constitution 762 had the effect of taking away the jurisdiction under Article 226 of the Constitution also in respect of the dispute arising out of election during the said period. The view of this Court in the above case laid down a salutary principle. [770A B] Taking into consideration all the aspects of the present case. including the fact that the person who filed the writ petition before the High Court was not one of the candidates nominated by the Indian National Congress (I) and the fact the President of the Tamil Nadu Congress (I) Committee had written that he had authorised the appellant to contest as the candidate on behalf of his party and had not given his approval to respondent No. 6 contesting as a candidate on behalf of his party, the exercise of the jurisdiction by the High Court under Article 226 of the Constitution in this case could not be supported. The parties who were aggrieved by the result of the election could question the validity of the election by an election petition which was an effective alternative remedy. [775D F] The Division Bench of the High Court committed a serious error in issuing a writ under Article 226 of the Constitution quashing the Errata Notification allotting the symbol 'hand ' to the appellant. Judgment of the Division Bench was set aside writ petition filed in the High Court was dismissed and the Returning officer was directed to proceed with the election in accordance with law from the stage at which it was interrupted by the order of the High Court. [775G H] N. P. Ponnuswami vs Returning officer, Namakkal Constituency and Ors. , ; Nanhoo Mal & Ors. vs Hira Mal & Ors., [1976]1 S.C.R. 809; Malam Singh vs The Collector, Sehore, M.P. & Ors., A.I.R, 1971 M .P. 195, referred to.

Civil Appeal No. 2860 of 1987. From the Judgment and order dated 8.7.1987 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 1311 of 1983 and Suppl. A. No. 1798 of 1987 BI. Soli J. Sorabjee, S.R. Grover and K.J. John for the Appellant. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is a statutory appeal from the decision and order of the Customs Excise and Gold (Control) Appellate Tribunal (briefly referred to as 'CEGAT ') under section 35L of the Central Excise and Salt Act, 1944 (hereinafter called 'the Act '). It appears that the appellant is a manufacturer of Hospital and Pharmaceutical Appliances and Heavy Duty Industrial Canteen Equipment. The following 14 items were classified by him under Tariff Item No. 68 of the said Act in his Classification List No. 106 dated 27:3.1979: "(1) Storage Tank, (2) Cooking Range (Electric opera 734 tion and gas operated), (3) Baking oven, (4) Deep Fat Fryer, (5) Bain Mafie, (6) Sterilizing Sink, (7) Expresso Coffee Machine, (8) Steam Jacketed Vessel (Steam operated), (9) Bread Toaster, (10) Bulk Cooker & Fryer, (11) Chappatty Plate/Chappatty Puffer and Chappatty Plate/Puffer, (12) Dish Washing Machine, (13) Potato Pooler and (14) Masala Grinder. " The Assistant Collector held the view that products 2 to 14 were classifiable under Tariff Item No. 33C in view of the Explanation thereof. After giving notice the Assistant Collector demanded differential duty amounting to Rs.1,91,622.20 for the period Ist of March, 1979 to 30th June, 1980. The Assistant Collector confirmed the demand except in respect of Item No. 8, namely, Steam Jacketed Vessel. Being aggrieved from these orders, the appellant filed appeals before the Collector. The Collector accepted the appellant 's contentions and came to the conclusion that these were to be classified under Tariff Item No. 68 and not under Tariff Item No. 33C. Tariff Item 33C at the relevant time contained the Explanation I, which is as follows: "Explanation I 'Domestic electrical appliances ' means electrical appliances normally used in the household and similar appliances used in hotels, restaurants, hostels. offices, educational institutions, hospitals, train kitchens. aircraft or ship 's pantries, canteens, tailoring establish ments, laundary shops and hair dressing saloons". The revenue went up in appeal before the CEGAT. The Tribunal noted that the equipments in question were used in industrial canteens, Five Star Hotels, big hospitals etc. The nature of the items such as deep fat fryer, Expresso coffee machine, bread toaster, chap patty plate, etc. were all electrically operated machines. The Tribunal further noted that Tariff Item 33C was in respect of "domestic electrical appliances not elsewhere specified". According to the Tribunal the intention of the legislature in respect of "domestic electrical appliances" was clear from the Explanation. It is apparent that the above named items are specially designed for use in big canteens attached to industrial units, big hotels, hospitals etc. where food in bulk quantity for hundreds of people is required to be prepared and served. These required electric power exceeding 230 volts in order to have considerable capacity for preparing and serving food. Their prices ranged from 735 Rs.7,000 to Rs.1.5 lakhs. It was submitted that these are important and relevant factors for distinguishing the said items as distinct and different from those appliances which are used normally in the household. It was submitted that these heavy duty items fall outside the purview of Tariff Item No. 33C. The Tribunal was of the view that though considerable space is required for these items but space was not any criteria for determining this question. According to the Tribunal that these items could not be classified under Tariff Item No. 68. We are of the opinion that the Tribunal is right. It is manifest that these equipments were electrical appliances. There was no dispute on that. It is also clear that these are normally used in household and similar appliances are used in hotels etc. The expression "similar" is a significant expression. It does not mean identical but it means corresponding to or resembling to in many respects; somewhat like; or having a general likeness. The statute does not contemplate that goods classed under the words of 'similar description ' shall be in all respects the same. If it did these words would be unnecessary. These were intended to embrace goods but not identical with those goods. If the items were similar appliances which are normally used in the household, these will be taxable under Tariff Item No. 33C. It appears that the Gujarat High Court in the case of Viswa & Co. vs The State of Gujarat, (17 Sales Tax Cases 581) had occasion to consider whether electric fans are domestic electrical appliances for the purpose of Bombay Sales Tax Act, 1953. Bhagwati, J. as the learned Chief Justice then was, speaking for the Gujarat High Court observed as follows: "A domestic electrical appliance, in our opinion, would be an electrical appliance of a kind generally used for domestic purposes. It may also be used at places other than the home or the house, but that would not destroy the character of a domestic electrical appliance which attaches to it by reason of its being a kind of an electrical appliance generally used for the household. There are several electrical appliances which are generally used in the household, such as electric irons, electrical sewing machines and electrical cooking ranges which are also used in other establishments. But these electrical appliances do not therefore cease to be domestic electrical appliances. It is of course not necessary that an electrical appliance, in order to 736 satisfy the description of a domestic electrical appliance, must be actually used in the home or the house. What is necessary is that it must be of a kind which is generally used for household purposes and if that test is applied, there is no doubt that electric fans are domestic electrical appliances and the Tribunal was therefore right in holding that they fall within entry 52 of Schedule B." We agree that it is not necessary to be a domestic electrical appliance that it must be actually used in the home or the house. It must be of a kind which is generally used for household purposes. It appears to us that the types of items concerned in this appeal are generally used for household purposes and that is sufficiently good test for classification in the light of the explanation to Tariff Item No. 33C. In view of the fact that the Tribunal recognised that the appellant had set out all the details in the classification list and the revenue had assessed him under Tariff Item 68, the Tribunal came to the conclusion that there was no intention to evade payment of duty. Therefore, the Tribunal directed that the modification of the classification list could only be prospective and not retrospective. The Tribunal was just and right in so doing. The Tribunal was also right in holding that in the absence of any proof of suppression of fact, section 11 A of the said Act would not be applicable. The show cause notice raising a demand of duty was issued on 8th of September, 1980 and the Tribunal sustained the demand for the period 9th March, 1980 to 30th June, 1980 in respect of items 3 to 7 and 9 to 14. We are of the opinion that the Tribunal was right and the decision of the Tribunal therefore, does not call for interference. In that view of the matter the appeal is rejected. There will be no order as to costs N.P.V. Appeal dismissed.

% Words and Phrases: 'Similar description ' meaning of. The appellant, manufacturer of Hospital and Pharmaceutical Appliances and Heavy Duty Industrial Canteen Equipment, classified certain items like cooking range, deep fat fryer, express coffee machine, bread toaster etc. , numbering 14, under Tariff Item No. 68 of the Central Excise and Salt Act, 1944. The Assistant Collector held that products 2 to 14 were classifiable under Tariff Item No. 33C, in view of the Explanation thereof, and demanded differential duty for the period of 1st March, 1979 to 30th June, 1980. The Collector, on appeal, held that these items were to be classified under Tariff item No. 68 and not under Tariff item 33C . On appeal by the Revenue, the Central Customs Excise and Gold (Control) Appellate Tribunal, while noting that the equipment in question, some of which were electrically operated machines, were used in industrial canteens, five star hotels, big hospitals, etc. held that the intention of the Legislature was clear from the Explanation to Tariff Item No. 33C, and the items in question could not be classified under Tariff Item No. 68. Dismissing the appeal by the manufacturer. ^ HELD: The statute does not contemplate that goods classed under the words of "similar description" shall be in all respects the same. If it did, these words would be unnecessary. These were intended to embrace goods but not identical with those goods. If the items were 732 similar appliances which are normally used in household, these will be taxable under Tariff Item No. 33C. [73CD] It is not necessary, to be a domestic appliance, that it must be actually used in the home or the house. It must be of a kind that they are generally used for household purposes. [736B] The types of items concerned in the instant case are generally used for household purposes and that is sufficiently good test for classification in the light of explanation to tariff item No. 33C. The Tribunal was. therefore, right in holding that these items could not be classified under Item 68. [736C] Since the appellant had set out all the details and the Revenue had assessed the appellant under Tariff Item No. 68, the Tribunal was right in holding that there was no intention to evade payment of duty and in directing that the modification of the classification list could only be prospective and not retrospective. In the absence of any proof of suppression of fact, it was also right in holding that section l 1 A of the Act would not be applicable. [736D E]

N: Criminal Appeal No. 475 of 1983. From the Judgment and order dated 21/22 4 1982 of the Bombay High Court in Crl. Appln. No. 478 of 1980. A.K. Sanghi for the Appellant. A.M. Khanwilkar for the Respondents. The Judgment of the Court was delivered by 812 SHARMA, J. The point involved in this appeal is whether a Hindu woman who is married after coming into force of the to a Hindu male having a living lawfully wedded wife can maintain an application for maintenance under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). The appellant Smt. Yamunabai was factually married to respondent No. 1 Anantrao Shivram Adhav by observance of rites under Hindu Law in June, 1974. Anantrao had earlier married one Smt. Lilabai who was alive and the marriage was subsisting in 1974. The appellant lived with the respondent No. 1 for a week and there after left the house alleging ill treatment. She made an application for maintenance in 1976 which was dismissed. The matter was taken to the Bombay High Court, where the case was heard by a Full Bench, and was decided against the appellant by the impugned judgment. Section 125 of the Code by sub section (1) which reads as follows clothes the "wife" with the right to receive maintenance is a n summary proceeding under the Code: 125(1). If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: 813 Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child if married is not possessed of sufficient means. Explanation. For the purposes of this chapter: (a) "minor" means a person who, under the provisions of the (9 of 1875), is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. " According to the respondent the term 'wife ' used in the section means only a legally wedded wife, and as the marriage of the appellant must be held to be null and void by reason of the provisions of the , she is not entitled to any relief under the section. For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the (hereinafter referred to as the Act) have to be examined. Section 11 of the Act declares such a marriage as null and void in the following terms: " 11. Void marriages Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. " Clause (1)(i) of section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. It was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom. A reference was made to section 12 of the Act and it was said that in any event the marriage would be voidable. There is no merit in this contention. By reason of the overriding effect of the Act as mentioned in section 4, no aid can be taken of the earlier 814 Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. So far as section 12 is concerned, it is confined to other categories of marriage and is not applicable to one solemnised in violation of section S(1)(i) of the Act. Sub section (2) of section 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. The marriages covered by section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose. The provisions of section 16, which is quoted below, also throw light on this aspect: " 16. Legitimacy of children of void and voidable marriages. (1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties of the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child not withstanding the decree of nullity. (3) Nothing contained in sub section (1) or sub section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such 815 rights by reason of his not being the legitimate child of his parents. (Emphasis added). Sub section (1), by using the words underlined above clearly, implies that a void marriage can be held to be so without a prior formal declaration by a court in a proceeding. While dealing with cases covered by section 12, sub section (2) refers to a decree of nullity as an essential condition and sub section (3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively by sections 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception. The question, then arises as to whether the expression 'wife used in section 125 of the Code should be interpreted to mean only a legally wedded wife not covered by section 11 of the Act. The word is not defined in the Code except indicating in the Explanation its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b), which is not relevant in the present context. It has been contended on behalf of the appellant that the term 'wife ' in section 125 of the Code should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married in fact by performance of necessary rites or following the procedure laid down under the law. Relying upon the decision of this Court in Mohd. Ahmed Khan vs Shah Bano Beghum, [1985 ] 3 SCR 844, it was argued that the personal law of the parties to a proceeding under section 125 of the Code should be completely excluded from consideration. The relationship of husband and wife comes to an end on divorce, but a divorcee has been held to be entitled to the benefits of the section, it was urged, and therefore applying this approach a woman in the same position as the present appellant should be brought within the sweep of the section. We are afraid, the argument is not well founded. A divorcee is included within the section on account of clause (b) of the Explanation. The position under the corresponding section 488 of the Code of 1898 was different. A divorcee could 816 not avail of the summary remedy. The wife 's right to maintenance depended upon the continuance of her married status. It was pointed out in Shah Bano 's case that since that right could be defeated by the husband by divorcing her unilaterally under the Muslim Personal Law or by obtaining a decree of divorce under any other system of law, it was considered desirable to remove the hardship by extending the benefit of the provisions of the section to a divorced woman so long as she did not remarry, and that was achieved by including clause (b) of the Explanation. Unfortunately for the appellant no corresponding provision was brought in so as to apply to her. The legislature decided to bestow the benefit of the section even on an illegitimate child by express words but none are found to apply to a de facto wife where the marriage is void ab initio. The attempt to exclude altogether the personal law applicable to the parties from consideration also has to be repelled. The section has been enacted in the interest of a wife, and one who intends to take benefit under sub section (1)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. It is only where an applicant establishes her status on relationship with reference to the personal law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the personal law. The issue whether the section is attracted or not cannot be answered except by the reference to the appropriate law governing the parties. In our view the judgment in Shah Bano 's case does not help the appellant. It may be observed that for the purpose of extending the benefit of the section to a divorced woman and an illegitimate child the Parliament considered it necessary to include in the section specific provisions to that effect, but has not done so with respect to women not lawfully married. Lastly it was urged that the appellant was not informed about the respondent 's marriage with Lilabai when she married the respondent who treated her as his wife, and, therefore, her prayer for maintenance should be allowed. There is no merit in this point either. The appellant cannot rely on the principle of estoppel so as to defeat the provisions of the Act. So far as the respondent treating her as his wife is concerned, it is again of no avail as the issue has to be settled under the law. It is the intention of the legislature which is relevant and not the attitude of the party. 817 8. We therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of section 125 of the Code. The appeal is accordingly dismissed. There will be no order as to costs. During the pendency of the appeal in this Court some money was paid to the appellant in pursuance of an interim order. The respondent shall not be permitted to claim for its refund. N.P.V. Appeal dismissed.

% The appellant was married to the first respondent by observance of rites under Hindu Law in June, 1974, while the first respondent 's earlier marriage was subsisting and the wife was alive. After living with the first respondent for a week, she left the house alleging ill treatment. She filed an application for maintenance in 1976, which was dismissed by the trial Court. Her appeal to the High Court was dismissed by a Full Bench. In the appeal to this Court it was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recognised in law and custom and in any event, the marriage would be voidable under section 12 of the , that the term "wife" in section 125 of the Cr. P.C., 1973 should be given a wider and extended meaning so as to include therein not only a lawfully wedded wife but also a woman married, in fact, by performance of necessary rites or following the procedure laid down under the law, that the personal law of the parties to a proceeding under section 125 of the Cr. P.C. should be excluded from consideration, and since a divorcee has been held to be entitled to the benefits of the section, a woman in the same position as the appellant should also be brought within the sweep of the section, and since the appellant was not informed about the respondent 's earlier marriage, when she married him, who treated her as his wife, her prayer for maintenance should be allowed. 810 It was contended on behalf of the respondent that the term "wife" used in Section 125 of the Cr. P.C. meant only a legally wedded wife, and as the marriage of the appellant must be held to be null and void by reason of the provisions of the the appellant was not entitled to any relief under the section. Dismissing the appeal, ^ HELD: l. The marriage of a woman in accordance with the Hindu rites with a man having legal spouse, after coming into force of the is a complete nullity in the eye of law and she is not entitled to the benefit of Sec. 125 of the Criminal Procedure Code, 1973. [813D] 2.1 Clause (1)(i) of section 5 of the , lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage, and therefore a marriage in contravention of this condition is null and void, under section 11 of the Act. [813G] 2.2 By reason of the overriding effect of the Act, as mentioned in section 4, no aid can be taken of the earlier Hindu law or any custom or usage as a part of that law, inconsistent with any provisions of the Act. Section 12 is confined to other categories of marriages, and is not applicable to one solemnized in violation of section 5(1)(i) of the Act. Cases covered under section 12 are not void ab initio. [813H; 814A B] 2.3 The marriage covered by section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose. [814B C] The marriage of the appellant must, therefore, be treated as null and void from its verv inception. [815C] 3.1 Section 125 has been enacted in the interest of a wife, and one who intends to take benefit under sub section (l)(a) has to establish the necessary condition, namely, that she is the wife of the person concerned. This issue can be decided only by a reference to the law applicable to the parties. [815E] 811 3.2 It is only where an applicant establishes her status or relationship with reference to the Personal Law that an application for maintenance can be maintained. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to the Personal Law. [816D E] 3.3 For the purpose of extending the benefit of the section to a divorced woman, and an illegitimate child, the Parliament considered it necessary to include in the section specific provisions to that effect but has not done so with respect to women not lawfully married. [816F] 3.4 The word "wife" is not defined in the Cr. P.C. except indicating in the Explanation to section 125 its inclusive character so as to cover a divorcee. A woman cannot be a divorcee, unless there was a marriage in the eye of law preceding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties, subject to the Explanation (b). A divorcee is included in the section on account of cl. (b) of the Explanation. [815D E] 3.5 Principle of estoppel cannot be relied upon to defeat the provisions of the Act. So far as the first respondent treating her as wife is concerned, it is of no avail, as the issue has to be settled under the law. It is the intention of the legislature, which is relevant, and not the attitude of the parties. The prayer of the appellant for maintenance cannot, therefore, be allowed even if the appellant was not informed, at the time of her marriage to the respondent, about his earlier marriage. [816G H] Mohd. Ahmed Khan vs Skah Bano Beghum, ; , distinguished.

Civil Appeal No. 84 of 1975 From the Judgment and order dated 19.4 1974 of the Karnataka High Court in R S A. No. 741 of 1971. T.S. Krishnamurthy Iyers, ATM Sampath and Srinivasa Anand for the Appellants B.P. Halda, S.S. Javeli and Ranjit Kumar for the Respondents. The Judgment of the Court was delivered by DUTT? J. This appeal by special leave at the instance of the defendants is directed against the judgment and decree of a learned Single Judge of the Karnataka High Court whereby the learned Judge reversed the judgment and decree of the Additional Civil Judge, Mangalore, affirming those of the Munsif, Mangalore, dismissing the suit filed by the plaintiff respondents. The respondents, who are the members of the United Basel Mission Church (for short 'UBMC ') of South Kanara and Coorg, instituted a suit in the court of the Munsif, Mangalore, praying for a declaration that the resolution dated May 9, 1961 passed in the extraordinary meeting of the District Church Council of UBMC of South Kanara and Coorg proposing the merger of UBMC of South Kanara and Coorg with the Church of South India was void, illegal and ultra vires the Constitution of UBMC and also the provisions of the Religious Societies Act, 1880 and not binding on the respondents or other members of UBMC of South Kanara and Coorg. The respondents also prayed for a permanent injunction restraining the defendants appel 742 lants from implementing the said resolution. The Evangelical Missionary Society in Basel (Basel Mission), which is a religious Society, consisting of missionaries of different denominational churches of Switzerland and Germany constituted UBMC in South Kanara, Coorg, Malabar and North Karnataka for the purpose of spreading the Gospel. The UBMC has a written constitution (exhibit A 1). Under the Constitution, the UBMC is divided in three Ecclesiastical Districts, namely, the South Kanara and Coorg, Bombay Karnataka and Malabar. Each District had its own representative body known as the District Church Council to supervise the work of the churches. The District Church Board was the Executive body consisting of a few members of the District Church Council. The highest authority of UBMC is a body known as Synod which is constituted with the representatives of the District Church Councils, the Basel Mission and certain ex officio members. In 1905, a number of Congregational Churches under the London Mission Society united with the Congregational Churches and the Presbyterian Churches in South India and such union came to be called the South Indian United Church. Subsequently, the South India United Church and the Anglican Church in South India came to be united and this union brought into existence the Church of South India (for short 'CSI ') in 1941. After the creation of CSI, there had been a move that the churches in the three Districts of UBMC should join the CSI. Indeed in 1943, the Malabar District Church of UBMC joined the CSI with the approval of the Synod. Further, it appears that the Bombay Karnataka Unit of UBMC had also joined the CSI. The only Unit of UBMC that remained is the South Kanara and Coorg Unit. By the impugned resolution dated May 9, 1961, the majority of members of the District Church Council of UBMC of the South Kanara and Coorg decided to join the CSI. Being aggrieved by the said resolution and to get rid of the same, the respondents instituted the said suit in a representative character under order I, Rule 8 of the Code of Civil Procedure as representing the members of UBMC of South Kanara and Coorg. The case of the respondents is inter alia that they are Protestant Christians belonging to the Ecclesiastical Districts of South Kanara and Coorg of UBMC. Every member of UBMC has a right vested in him under its Constitution to be a member of a District Church Board 743 and District Church Council and to administer the properties vested in them and to manage their affairs. These rights guaranteed under the Constitution cannot be altered or abridged except under Rule 14 of the Constitution providing for amendment. According to the respondents, the CSI is fundamentally different in doctrine, faith, worship, tradition, heritage and practices from UBMC of South Kanara and Coorg. An important distinguishing fundamental principle is the principle of Episcopacy adopted by the CSI, but rejected by the UBMC, which cherishes as a great treasure the principle that priesthood is given to all believers. It is the case of the respondents that the Union of UBMC and CSI would be colourable one, since there can be no union of two bodies holding fundamentally different doctrines and believing in different declarations of faith. It is contended that the impugned resolution is ultra vires Rule 14 of the Constitution of UBMC. The resolution is also bad, since it is beyond the power of the District Church Council to dissolve the Constitution. It is alleged that the funds and properties of UBMC are held in trust for the propagation and advancement of the faith and doctrine of UBMC and, as such, they cannot be diverted to different purposes. It is contended that the majority who disagree with the doctrine and faith of UBMC cannot impose on the minority fl ritual, a ministry, and a Constitution opposed to the doctrinal faith of UBMC. Upon the said pleadings, the suit was instituted for the reliefs aforesaid. The suit was contested by the appellants by filing a written statement. It was contended that the suit was not one of a civil nature within the meaning of section 9 of the Code of Civil Procedure and, accordingly, it was not maintainable. Further, the contention of the appellants was that the respondents did not represent the members of UBMC and so the respondents were not entitled to sue the appellants in a representative capacity as representing the members of UBMC in South Kanara and Coorg. It was denied by them that there was any fundamental difference between UBMC and CSI in doctrine, faith, worship, tradition, heritage and practices. It was averred that the Constitution of the CSI and the doctrinal faith, the ministry and the form of worship adopted by the CSI were in no way fundamentally different from those adopted and practised by the UBMC. The Protestant Churches were not committed to any doctrine regarding historic Episcopacy. The constitutional Episcopacy adopted by the CSI was not contrary to the Presbyterian heritage and the ministers of UBMC were also ordained. The freedom of interpretation given with regard to the Creeds was not opposed to the union. The contention of the respondents that in case of merger, there would be diversion of the 744 properties of the UBMC was emphatically disputed by the appellants. It was averred that as the impugned resolution was passed by an overwhelming majority of the members of UBMC it was binding upon the respondents. They denied that the resolution was ultra vires Rule 14 of the Constitution of UBMC. The appellants, accordingly, prayed that the suit should be dismissed. The respondents examined the 4th plaintiff as P.W. 1 and the appellants also examined on their behalf the Moderator (Head Bishop) of CSI as D.W. 1. Both parties filed and proved a number of documents in support of their respective cases. The learned Munsif, after considering the evidences and the sub missions made on behalf of the parties, came to the findings that the suit was maintainable but the respondents were not entitled to file the suit in a representative character as representing the UBMC of South Kanara and Coorg. Further, the learned Munsif found that there was no fundamental difference between UBMC and CSI in matters of doctrine, faith, worship, tradition, heritage and practices. The impugned resolution was held by the learned Munsif to be legal and valid. Upon the said findings, the learned Munsif dismissed the suit. On appeal by the respondents, the learned Additional Civil Judge came to the same findings as that of the learned Munsif except that it was held by him that the respondents were entitled to file the suit in a representative character. The appeal preferred by the respondents was, consequently, dismissed by the learned Additional Civil Judge. Being aggrieved by the judgment and decree of the learned Additional Civil Judge, the respondents preferred a second appeal to the High Court. A learned Single Judge of the High Court took a contrary view and held that there were fundamental differences in doctrine, faith, worship, tradition, heritage and practices between UBMC and CSI. The impugned resolution was held by the learned Judge as illegal and void. The learned Judge, accordingly, allowed the appeal of the respondents and set aside the judgments and decrees of the first appellate court and of the trial court and dismissed the suit. Hence this appeal. The first point that has been urged by Mr. Krishnamurthy Iyer, learned Counsel appearing on behalf of the appellants, is that the dispute between the parties is not one of a civil nature and, as such, the suit was not maintainable. It has been already noticed that all the courts below including the High Court have concurrently come to the 745 finding that the suit was of a civil nature within the meaning of section 9 of the Code of Civil Procedure and, accordingly, it was maintainable It is the case of the respondents that if the impugned resolution is implemented or, in other words, UBMC of South Kanara and Coorg is allowed to merge in CSI, the right of worship of the members of UBMC will be affected. It is now well established that the dispute as to right of worship is one of a civil nature within the meaning of section 9 of the Code of Civil Procedure and a suit is maintainable for the vindication or determination of such a right. The question came up for consideration before this Court in Ugamsingh & Mishrimal vs Kesrimal, [1971 ] 2 SCR 836 where this Court observed as follows: "It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies alone cannot be adjudicated by Civil Courts if they are not essentially connected with Civil rights of an individual or a sect on behalf of whom a suit is filed " In the instant case also, there is a question as to whether the right of worship of the respondents will be affected in case of implementation of the impugned resolution. It must be made clear that maintainability of the suit will not permit a court to consider the soundness or propriety of any religious doctrine, faith or rituals. The scope of the enquiry in such a suit is limited to those aspects only that have direct bearing on the question of right of worship and with a view to considering such question the court may examine the doctrines, faith, rituals and practices for the purpose of ascertaining whether the same interfere with the right of worship of the aggrieved parties. In view of section 9 of the Code of Civil Procedure, the enquiry of the court should be confined to the disputes of a civil nature. Any dispute which is not of a civil nature should be excluded from consideration It is the case of the respondents that there is a fundamental difference in doctrine, faith, worship tradition, heritage and practices between UBMC of South Kanara and Coorg and the CSI and in case of implementation of the impugned resolution leading to the merger of UBMC with CSI, the right of worship of the respondents would be greatly affected. Both the Churches are Protestant Churches. The fundamental doctrines, faith and belief appear to be the same. Both UBMC and CSI believe in Jesus Christ, the Incarnate Son of God and Redeemer of the World. Both also believe that man is saved from sin through Grace in Jesus Christ, the Son of God. Both the Churches 746 believe in The Holy Spirit and in the Supreme power of the Holy Spirit and that there should be free access of man to God. One of the principal objections of the respondents to the merger of UBMC with CSI is that CSI believes in Episcopacy which is said to have been rejected by the UBMC. The High Court had devoted several pages relating to the origin, growth and other aspects of Episcopacy. It is not necessary for us to consider the origin or growth of Episcopacy and suffice it to say that Episcopacy means Church ruled by Bishops. UBMC is a Presbyterian Church and according to the respondents they do not believe in the concept of Episcopacy or apostolic succession which is associated with historic Episcopacy. Rule 11 of the Constitution of CSI (exhibit B 39) provides, inter alia, that CSI accepts and will maintain the historic Episcopacy in a constitutional form. Rule 11 further provides that as Episcopacy has been accepted in the Church from early times, it may in this sense fitly be called historic and that it is needed for the shepherding and extension of the Church in South India and any additional interpretations, though held by individuals, are not binding on the CSI. It is true UBMC is opposed to Episcopacy, but Episcopacy which has been adopted by the CSI, is not that historic Episcopacy, but historic Episcopacy in a constitutional form. In other words, the Bishop will be one of the officials of the Church under its Constitution performing certain duties and functions. The Bishops are appointed by election and there are provisions for the retirement of Bishops at the age of 65 years, and also for their removal. It is significant to notice that CSI believes that in all ordinations and consecrations the true ordainer and consecrator is God. From all this, the irresistible conclusion is that there is neither apostolic succession nor historical Episcopacy in CSI as contended on behalf of the respondents. The grievance of the respondents is that universal priest hoodthat is recognised in UBMC is not there in the CSI. In view of such universal priesthood, a layman can administer sacraments in UBMC. It is not disputed that there are two sacraments, namely (1) Lord 's Supper and (2) Baptism. It is urged that in the CSI a layman cannot administer these sacraments, and it is only the ordained minister who can administer the sacraments. It is contended that the absence of universal priesthood in the CSI is due to the fact that Episcopacy is still maintained there. The learned Judge of the High Court observes that Presbyters under the CSI are ordained persons whereas Presbyters in UBMC are all unordained elders. In the CSI, only the Bishops and the 747 Presbyters who are ordained ministers can administer sacraments of Lord 's Supper. But in UBMC, the sacraments can be administered by a layman. It is submitted on behalf of the respondents that in case of union of UBMC with the CSI, the form of worship will change and that the person doing the service of Holy Communion, that is Lord 's Supper, will be changed and only ordained persons will do the service. This, it is submitted, will affect the right of worship of the respondents. Much reliance has been placed on behalf of the respondents on the universal priesthood that is said to be prevalent in UBMC. The submission in this regard, however, does not find support from the Constitution of UBMC. Under the heading "The Local Church", paragraph 4 of the Constitution of UBMC (exhibit A 1) provides as follows: "Church workers are those either paid or honorary ordained or lay, who are appointed by the church for a definite piece of work under the supervision of the church. It is the duty of the Pastors appointed to shepherd the churches to teach the Word of God, to administer the sacraments and to propagate the Gospel among those who have not yet come to the saving knowledge of Christ Evangelists and lay preachers appointed to the charge of churches shall have no authority to administer the sacraments. In places where it is impossible for the pastor to administer the sacraments regularly, the District Church Board may give evangelists in pastoral charge authority to fulfil this duty. " It is apparent from paragraph 4 that Evangelists and lay preachers have no authority to administer the sacraments. It is only in exceptional cases where it is impossible for the Pastor to administer the sacraments regularly, the District Church Board may give Evangelists in pastoral charge authority to fulfil this duty. Thus, the universal priesthood which is said to be prevalent in UBMC, does not permit lay preachers and Evangelists to administer the sacraments. It is true that in the CSI the Presbyters are ordained persons, but in UBMC they are unordained, as has been noticed by the learned Judge. But nothing turns out on that distinction. In UBMC the Pastor is an ordained minister and paragraph 4 (exhibit A 1), extracted above, provides that it is the duty of the Pastors to shepherd the churches to teach the Word of God, to administer the sacraments and to propagate 748 the Gospel among those who have not yet come to the saving knowledge of Christ. While a Presbyter in the CSI is an ordained minister, in UBMC the ordained minister is a Pastor. In the CSI Presbyters have the authority to administer the sacraments and in UBMC the Pastors, who are ordained ministers, are authorised to administer the sacraments. There is, therefore, no distinction between a Pastor in UBMC and a Presbyter in the CSI. As the functions and duties of Presbyters and Pastors are the same and as both of them are ordained ministers, no exception can be taken by the respondents if the sacraments are administered by Pastors instead of by the Presbyters. No objection can also be taken to the Bishops administering the sacraments, for they do not emerge from the apostolic successsion which is the main characteristic of historical episcopacy. If the respondents or any of the members of UBMC have or has any objection to the administering of sacraments by the Bishops, the sacraments can be administered by the Presbyters. It may be recalled that units of UBMC, namely, Malabar and Bombay Karnataka units have already joined the CSI. The CSI has accepted the form of worship which used to be followed in UBMC before the union of the two units with CSI and such acceptance has been indicated in Rule 12 of Chapter II of the Constitution of CSI (exhibit B 39). Rule 12 specifically provides that no forms of worship, which before the union have been in use in any of the united churches, have been forbidden in the CSI, nor shall any wonted forms be changed or new forms be introduced into the worship of any congregation without the agreement of the Pastor and the congregation arrived at in accordance with the conditions laid down in Chapter X of the Constitution. Thus, the CSI has already accepted the form of worship which the members of UBMC used to follow before the union of UBMC with the CSI. In view of this specific provision in exhibit B 39, it is difficult to accept the contention of the respondents that in case of merger or the implementation of the impugned resolution, the right of worship of the members of UBMC will be affected. The learned Judge of the High Court has referred to the manner of consecration and ordination in the CSI. Clause (iv) of Rule 11, Chapter II of exhibit B 39, inter alia, provides that every ordination of Presbyters shall be performed by the laying on of hands by the Bishops and Presbyters, and all consecrations of Bishops shall be performed by the laying on of hands at least of three Bishops. Clause (iv) further provides that the CSI believes that "in all ordinations and consecrations the ordainer and Consecrator is God who in response to the prayers of His Church, and through the words and acts of its l representatives, commissions and empowers for the office and work to 749 which they are called the persons whom it has selected". It may be mentioned here that in UBMC the method of consecration and ordinar Action is also the same as in the CSI. After an elaborate discussion, the learned Judge of the High Court has come to the conclusion that the laying of hands on the person to be ordained in the case of Episcopal Church, meaning thereby the CSI, has a spiritual significance of a transfer of Grace, whereas it has no such spiritual significance in UBMC, but is a symbol of conferment of authority only. After a person is appointed a Bishop or a Presbyter in the CSI or a Pastor in UBMC, he has to be ordained in almost the same manner as indicated above. We do not think it is within the purview of the enquiry in this litigation whether such ordination in the CSI has a spiritual significance of a transfer of Grace or whether it is only a symbol of conferment of authority, so far as UBMC is concerned. The mode or manner of ordination or the underlying of such ordination has, in our opinion, nothing to do with the right of worship of the respondents. UBMC believes in Apostle 's Creed and Nicene Creed. Creeds are biographical sketches of Lord Jesus and they are the main items of all Church Services. Under its Constitution (exhibit B 39), the CSI also accepts the Apostle 's Creed and the Nicene Creed. The complaint of the respondents is that while the Shorter Catechism of Luther is placed on the same footing as the Apostle 's Creed and the Nicene Creed in UBMC, there is no reference to this in Constitution (exhibit B 39) of the CSI. The Shorter Catechism of Luther is the instruction in the form of a series of questions and answers to be learnt by every person before he is baptised. According to W 1, the Shorter Catechism of Luther is a statement of faith in the form of questions and answers based upon Scriptures and Creeds intended to be used in instructing those who are to be baptised. That statement of D.W. 1 has not been challenged in cross examination on behalf of the respondents. Both UBMC and the CSI believe in Apostle 's Creed and Nicene Creed. If Shorter Catechism, as stated by D.W. 1, consists of the Creeds in the form of questions and answers, we do not think that merely because there is no mention about Shorter Catechism the Constitution of the CSI (exhibit B 39), it can be said that there is a difference in the faith and doctrine of the two Churches as held by the learned Judge. Moreover, this has nothing to do with the right of worship of the respondents and, accordingly, we do not think we are called upon to consider the effect of non mention of Shorter Catechism in exhibit B 39. It is, however, urged on behalf of the respondents that the right of worship of the respondents will be greatly affected in case of union 750 of the two Churches, as the CSI uses in prayers Apocrypha, the meaning of which will be indicated presently. The Bible consists of 66 "Cannonical Books"39 books of the old Testament and 27 books of the New Testament. Later on 14 additional books were added to the old Testament. These 14 additional books are together named 'Apocrypha '. The Bible that CSI uses contains not only "Canonical Books", but also those 14 books known as 'Apocrypha '. It is apprehended by the respondents that in case of merger, there is a possibility of their being subjected to accept Apocrypha in their prayers stated to be prevalent in the CSI. It is submitted by the learned Counsel for the respondents that as Apocrypha has been eschewed completely and not at all used in Church Service by UBMC, it would affect the right of worship of the respondents by reason of merger, as Apocrypha would be imposed on them. In support of the contention, much reliance has been placed by the learned Counsel for the respondents on a decision of the Privy Council in Thiruvenkata Ramanuja Pedda Jiyyangarlu Valu vs Prathivathi Bhayankaram Venkatacharlu, In that case there was a dispute between two sections of the Vaishnavites, one known as Vadagalais and the other as Tengalais. The question that came up for consideration by the Privy Council was whether in the Vaishnavite temples, situate in Trimulai and in Tripatti, worship would be conducted exclusively in Tengalai order or the Vadagalai ritual would form part of the worship in these temples. The Privy Council came to the conclusion that Vadagalai community was not entitled to interfere with Tengalai ritual in the worship in those temples by insisting on reciting their own "Manthram" simultaneously with the Tengalai "Manthram". The suit instituted by the High Priest of the Tengalai community was decreed and the Vedagalai community was restrained from interfering with the Tengalai ritual in worship in those temples conducted by the appellant or his deputy by insisting on reciting their own "Manthram" simultaneously with the Tengalai "Manthram" . The above decision of the Privy Council only lays down that if the right of worship is interfered with, the persons responsible for such interference can be restrained by an order of injunction. Even if Apocrypha is followed in the CSI that would not interfere with the right of worship of the respondents. We have already referred to Rule 12, Chapter II of the Constitution of the CSI (exhibit B 39), inter alia, providing that no forms of worship, which before the union have been in use in any of the united churches, shall be forbidden in the CSI nor 751 shall any wonted forms be changed or new forms introduced into the worship of any congregation. There is, therefore, no cause for apprehension of the respondents that in case of merger, the Apocrypha will be imposed upon them which is repugnant to their religious faith. Moreover, in the liturgy of the CSI, the prayer from Apocrypha has been made optional which shows that there is no scope for the imposition of Apocrypha on the respondents in case of union of UBMC and CSI. It is vehemently urged on behalf of the respondents that in case of merger, the property held in trust by the United Basel Mission Church in India Trust Association, hereinafter referred to as 'UBMC Trust Association", for UBMC of South Kanara and Coorg will be diverted to the CSI and such diversion will be in complete breach of trust and the court should not allow such breach of trust taking place by the merger of UBMC of South Kanara and Coorg in the CSI. It is the case of the respondents in the plaint that the properties of UBMC have been vested by the Evenglical Missionary Societies in Basel (Basel Mission) in the UBMC Trust Association by a declaration of trust. It appears that by a deed dated September 18, 1934 (exhibit A 146), the Evenglical Missionary Society in Basel (Basel Mission) declared itself as the trustee seized of or entitled to the lands and premises mentioned in the schedule to the said deed, holding the same in trust, inter alia, for the benefit of the members of the Church founded by the Society in the districts of South Kanara, Bombay, Karnataka and Malabar known as UBMC in India. Further, it appears that the said Society appointed the UBMC Trust Association, a Company incorporated under the Indian Companies Act, 1913, the managers of the trust properties, which belong to the Society and not to the UBMC Trust Association. Indeed, it has been noticed that in the plaint the respondents also admit that the properties belong to the Society and the Society holds the same as the trustee for the benefit of UBMC in India. In case of merger, there cannot be any diversion of the properties held in trust by the Society and managed by the UBMC Trust Association. The properties will remain the properties of the Society which holds them only for the purposes as mentioned in the said deed (exhibit A 146). In other words, even though there is merger, the properties or the income thereof will be utilised only for the benifit of the memhers of the UBMC of South Kanara and Coorg. Although the UBMC Trust Association and the Society have been made parties in the suit as defendants Nos. 9 & l0 respectively, 752 no relief has been claimed against either of them and there is no prayer for restraining them from diverting the property upon merger. It may be inferred from the absence of such a prayer that it was known to the respondents that there would be no diversion of the properties upon such merger. It has been rightly observed by the learned Munsif that as the respondents have not prayed for any relief against the Society and the UBMC Trust Association, they cannot urge that UBMC of South Kanara and Coorg will lose their rights in the properties held by the UBMC Trust Association, if a merger is permitted with the CSI. There is no material to show that the UBMC Trust Association has agreed to transfer the properties to the CSI in case of merger. There is no allegation in that regard in the plaint. In the circumstances, it is difficult to accept the contention of the respondents that in case of merger there will be diversion of the properties in the hands of the UBMC Trust Association to the CSI in breach of trust. Much reliance has been placed on behalf of the respondents in the decision of the House of Lords in General Assembly of Free Church of Scotland vs Lord overtoun, which, in our opinion, has no application to the facts and circumstances of the instant case, in view of our finding that there will be no diversion of the trust properties in the hands of the UBMC Trust Association to the CSI. What happened in Free Church case was that majority of the members of Free Church of Scotland united and used the funds, of which they claimed to be the beneficial owners, for the use of the new united body. It was contended on behalf of the minority, who chose to be out of such union, that the user of such funds constituted breach of trust. The enquiry in that decision was consequently directed to the question whether there was a breach of trust or not and it was held by majority of the Law Lords that there was such a breach of trust. As there is no question of such breach of trust in the instant case, the Free Church case has no manner of application, even though the High Court had made elaborate discussions over the case and came to the finding that certain observations made by Lord Halsbury, L.C. were applicable. It appears that in considering the question as to whether there was a breach of the trust or not, Lord Halsbury made the following incidental observations: "My Lords, I am bound to say that after the most careful examination of the various documents submitted to us, I cannot trace the least evidence of either of them having abandoned their original views. It is not the case of two associated bodies of Christians in complete harmony as to 753 their doctrine agreeing to share their funds, but two bodies each agreeing to keep their separate religious views where they differ agreeing to make their formularies so elastic as to admit those who accept them according as their respective consciences will permit. Assuming, as I do, that there are differences of belief between them, these differences are not got rid of by their agreeing to say nothing about them nor are these essentially diverse views avoided by selecting so elastic a formulary as can be accepted by people who differ and say that they claim their liberty to retain their differences while purporting to join in one Christian Church. It becomes but a colourable union, and no trust fund devoted to one form of faith can be shared by another communion simply because they say in effect there are some parts of this or that confession which we will agree not to discuss, and we will make our formularies such that either of us can accept it. Such an agreement would not, in my view, constitute a Church at all, or it would be, to use Sir William Smith 's phrase, a Church without a religion. Its formularies would be designed not to be a confession of faith, but a concealment of such part of the faith as constituted an impediment to the union " The observations extracted above have been strongly relied upon by the learned Counsel for the respondents. According to the observations, no objection can be taken, if there be complete harmony as to their doctrine. As discussed above, there is little or no difference between the doctrines, faith and religious views of UBMC and the CSI. The objection of the respondents to historical Episcopacy has no solid foundation inasmuch as historical Episcopacy is not in existence in the true sense of the term in the CSI, and it is now in a constitutional form. In other words, as earlier pointed out, the Bishops are elected and apostolic succession which is associated with historical Episcopacy, is totally absent. Moreover, the observations in the Free Church case have been made in connection with the question whether there was breach of trust or not. Therefore, the said observations cannot, in any event, be applicable to the facts of the present case which are different from those in the Free Church case. We, accordingly, reject 754 the contention of the respondents that following the observations made by Lord Halsbury, the impugned resolution should be struck down and the appellants should be restrained from effecting any merger. Now the question that remains to be considered is whether the District Church Council had the authority to pass the impugned resolution for the union of UBMC of South Kanara and Coorg with the CSI. The impugned resolution dated 9 5 1961 (exhibit A 39) runs as follows: . "61.04. Afterwards Rev. S.R. Furtado moved the following resolution: Resolved that the suggestion, appearing in Minute 60.16 of the District Church Council held on 12 5 60 that our South Kanara and Coorg District Church should join the Church of South India, is adopted, confirmed and finally passed. Therefore, this District Church Council, besides resolving to accept the constitution of the Church of South India, authorises the District Church Board to proceed to correspond in connection with this matter with the authorities of the Church of South India after obtaining permission of the Synod of the United Basel Mission Church. " under the Constitution of UBMC (exhibit A 1), Item 9 is the District Church Council. Paragraph 1 of Item 9 provides as follows: 1. The governance of the United Basel Mission Church in India shall in each District be vested in a body called the District Church Council which shall be the final authority in all matters relating to the church except those of faith and order and the disciplining of pastors, evangelist and Thus, the District Church Council is the final authority in all matters relating to the Church except those of faith and order and the disciplining of Pastors, Evangelist and Elders. Rule 14 of the Constitution confers power on the District Church Council relating to the amendment of the Constitution. Rule 14 provides as follows: 755 Whenever an amendment to the constitution is found necessary any member of the Church Council may propose the same in the meeting of the Council and if it is duly seconded it shall be included in the minutes of the Council. When the Council meets again the proposed amendment shall once more be moved and seconded and if three fourth of the members present vote in favour of the amendment, it shall be passed and the fact be communicated immediately to the Synod. " It is, however, submitted on behalf of the respondents that Rule 14 only relates to the amendment of the Constitution, but in case of merger there will be a total abrogation of the Constitution of UBMC. The Constitution has not conferred any power on the District Church Council to abrogate the Constitution. It is contended that amendment of the Constitution and abrogation of the same are completely different and, as no such power of abrogation of the Constitution has been conferred on the District Church Council, it had no authority whatsoever to pass the impugned resolution which would mean the complete abrogation of the Constitution of UBMC. In support of their contention, the learned Counsel for the respondents has pressed into service the decision of the Special Bench of the Allahabad High Court in N.F. Barwell vs John lackson, AIR 1948 All. 146 SB. In that case, the members of unregistered Members ' Club owning certain properties passed a resolution by a majority vote that the Club should be dissolved. It was held by the Special Bench that in the absence of any provision in the Rules of the Club laying down the circumstances and the manner in which the dissolution of the Club could take place, the dissolution of the Club would not be brought about by a majority vote. The Club could be dissolved only if all the members unanimously agreed to such dissolution. We are afraid, this decision has no manner of application to the facts of the instant case. Here we are not concerned with the question of dissolution of UBMC of South Kanara and Coorg, but with the question of merger. Dissolution contemplates liquidation of the Club and distribution of all assets among the members, but in the case of merger, there is no question of liquidation or distribution of assets. Moreover, we have already discussed above that the properties held in trust for UBMC will not be diverted to the use of the CSI, but will continue to be held in trust by the UBMC Trust Association for the benefit of the 756 members of the UBMC of South Kanara and Coorg, even if a merger takes place. It is the contention of the appellants that the District Church Council had the authority to pass the impugned resolution. It is submitted that in any event the Synod of UBMC having permitted the. District Church Council of South Kanara and Coorg to join the CSI, the validity of the resolution is beyond any challenge. Our attention has been drawn on behalf of the appellants to Rule 13(2) of the Constitution of UBMC (exhibit A 1) which deals with the functions of the Synod. Rule 13(2) reads as follows: "R. 13(2). Its functions shall be: (a) to hear the reports of church and mission work of each District: (b) to suggest such measures of uniformity as may be necessary for the mission and church work in the three districts; (c) to give suggestions on problems pertaining to (1) the spiritual life and work of the different churches (2) the common evangelists activities of church and mission (3) the church union and (4) the administration of Church property, funds, etc; (d) to decide finally all questions of faith and order in the United Basel Mission Church of India, provided that all that all such decisions are arrived at by a majority of three fourths its total strength." One of the functions of the Synod, as contained in clause (c)(3), is to give suggestions on problems pertaining to the Church Union. Another function is that contained in clause (d), upon which much reliance has been placed on behalf of the appellants. Clause (c)(3) and clause (d) read together confer authority on the Synod to grant permission for union keeping in view the question of faith and order. It is the case of the appellants that Synod has accorded its permission for the merger of UBMC of South Kanara and Coorg in the CSI. It is also their case that the resolution has already been implemented. The learned Judge of the High Court has taken much pains in coming to the conclusion that there has been no such implementation as alleged by the 757 appellants. The question before us is not whether there has been any implementation of the resolution or not, but the question is whether the District Church Council had the authority to pass such a resolution. It is true that the District Church Council has only the power of amendment of the Constitution. No power has been conferred on it to pass a resolution relating to the union of UBMC of South Kanara and Coorg with the CSI. But the Synod is the highest authority and there can be no doubt that the Synod has the power to sanction merger of any unit of UBMC in the CSI. On 24 6 1968, the Synod of UBMC passed the following resolution: "Resolved unanimously that this Synod of the United Basel Mission Church permit the District Church Council of South Kanara and Coorg to join the Church of South India and that with effect from the date of affiliation this Synod cease to exist" The learned Judge of the High Court has also noticed in paragraph 19 of his judgment that such a resolution of the Synod according permission for the union was passed on 24 6 1968. The resolution was passed unanimously by all the members present on that date. It is, however, faintly suggested by the learned Counsel for the respondents that Synod was not in existence after the merger of Bombay, Karnataka and Malabar units of UBMC in the CSI. The suggestion is not correct, for the Synod that existed after the merger of the said two units in the CSI unanimously passed the resolution. As the Synod was a representative body of the units, it stood dissolved after passing the resolution sanctioning the merger of the only remaining unit of South Kanara and Coorg in the CSI. But, until such a resolution was passed, it did exist as the highest authoritative and administrative body of UBMC. Another ground challenging the validity of the resolution that has been urged on behalf of the respondents is that it violates the provision of section 6 of the Religious Societies Act, 1880. Section 6 provides as follows: "section 6. Provision for dissolution of societies and adjustment of their affairs. Any number not less than three fifths of the members of any such body as aforesaid may at a meeting convened for the purpose determine that such body shall be dissolved; and thereupon it shall be dissolved forthwith, or at the time when agreed upon; and all neces 758 sary steps shall be taken for the disposal and settlement of the property of such body, its claims and liabilities, according to the rules of such body applicable thereto, if any, and, if not, then as such body at such meeting may determine: Provided that, in the event of any dispute arising among the members of such body, the adjustment of its affairs shall be referred to the principal Court of original civil jurisdiction of the district in which the chief building o. such body is situate; and the Court shall make such order in the matter as it deems fit. " This challenge is misconceived. Section 6 deals with dissolution of Societies and adjustment of their affairs. It has been already observed by us that there is no question of dissolution of UBMC of South Kanara and Coorg and the disposal and settlement of its property and claims and liabilities etc. , consequent upon such dissolution as provided in section 6 and, as such, the provision of section 6 is not at all applicable to the facts and circumstances of the instant case. The contention made on behalf of the respondents is without any substance . We are unable to agree with the finding of the learned Judge of the High Court that the impugned resolution violates the provision of section 6 of the Religious Societies Act and in view of the fact that the Synod had unanimously accorded permission for the merger, the High Court was not justified in striking down the impugned resolution of the ground that it was beyond the authority of the District Church Council to pass such a resolution. In our opinion, the impugned resolution is legal and valid. In the result, the appeal is allowed. The judgment and decree of the learned Judge of the High Court are set aside and the judgment and decree of the first appellate court affirming those of the trial court are restored. In the facts and circumstances of the case, we direct the parties to (J hear their own costs in this Court. S.L. Appeal allowed.

% The respondents, members of the United Basel Mission Church (U.B.M.C.) of South Kanara and Coorg, instituted a suit in the Court of Munsif, Mangalore, praying for a declaration that the resolution dated May 9, 1961, passed in the extraordinary meeting of the District Church Council of UBMC of South Kanara and Coorg, proposing the merger of UBMC of South Kanara and Coorg with the Church of South India (C.S.I.). was void, illegal and ultra vires the constitution of the UBMC and also the provisions of the Religious Societies Act, 1880, and not binding on the respondents/plaintiffs or other members of the UBMC of South Kanara and Coorg. The suit was contested by the appellants defendants. The trial Court dismissed the suit, holding that (i) the suit was maintainable but the respondents were not entitled to file the suit in a representative character, representing the UBMC of South Kanara & Coorg, (ii) there was no fundamental difference between the UBMC and CSI, and (iii) the impugned resolution was legal and valid. The respondents filed appeal against the judgment of the trial court. which was dismissed by the Additional Civil Judge, who, however, held that the respondents were entitled to file the suit in a representative character. The respondents preferred a second appeal to the High Court against the judgment and decree of the Additional Civil Judge. The High Court (Single Judge) took a contrary view and allowed the appeal, holding that there were fundamental differences in doctrine. faith, tradition, heritage and practices between UBMC and CSI. and the resolution impugned was illegal and void. Aggrieved by the decision of the High Court, the appellants moved this Court for relief by special leave. Allowing the appeal, the Court 738 ^ HELD: It was well established that the dispute as to the right of worship was one of a civil nature within the meaning of section 9 of the Code of Civil Procedure and a suit was maintainable for the vindication or determination of such a right. It must be made clear that maintainability of the suit would not permit a Court to consider the soundness or propriety of any religious doctrine, faith or rituals. The scope of enquiry in such a suit was limited to those aspects only that had a direct bearing on the question of right of worship, and with a view to considering such a question, the Court might examine the doctrines. faith. rituals and practices for the purpose of ascertaining whether the same interfered with the right of worship of the aggrieved parties. In view of section 9 of the Code of Civil Procedure, the enquiry should be confined to the disputes of a civil nature. Any dispute, which was not of a civil nature should be excluded from consideration. [745B,D F] Both the churches were Protestant Churches. The fundamental doctrines, faith and belief appeared to be the same. Both UBMC and CSI believed in Jesus Christ, the Incarnate Son of God the Redeamer of the World. Both also believed that man was saved from sin through grace in Jesus Christ. Both believed in the Holy Spirit and in the Supreme Power of Holy Spirit and that there should be free access of man to God. [745G H;746A] U.B.M.C. was a Presbyterian Church and the respondents did not believe in the concept of Episcopacy or apostolic succession, associated with historic Episcopacy. UBMC was opposed to Episcopacy, but Episcopacy, adopted by the CSI was not that historic Episcopacy, but historic Episcopacy in a constitutional form. The CSI believed that in all ordinations and consecrations the true ordainer and consecrater was God. From all this, the irresistible conclusion was that there was neither apostolic succession nor historical Episcopacy in CSI as contended on behalf of the respondents. [746B C,E F] The respondents placed much reliance on the universal priesthood. That was said to be prevalent in UBMC. The submission in this regard, however, did not find support from the constitution of UBMC. The universal priesthood, which was said to be prevalent in UBMC, did not permit lay preachers and Evangelists to administer the sacraments. [747C,G] In the CSI, Presbyters had the authority to administer the sacraments and in the UBMC, the Pastors, who were ordained ministers, were authorised to administer the sacraments. There was, therefore, no 739 distinction between a pastor in the UBMC and a Presbyter in the CSI. As the functions and duties of Presbyters and Pastors were the same and as both of them were ordained ministers, no exception could be taken by the respondents if the sacraments were administered by Pastors instead of the Presbyters. No objection could also be taken to the Bishops administering the sacraments, for they did not emerge from the apostolic succession which was the main characteristic of historical episcopacy. If the respondents or any members of the UBMC had any Objection to the administering of sacraments by the Bishops, the sacraments could be administered by the Presbyters. The Malabar and Bombay Karnataka Units of UBMC had already joined the CSI. The CSI had accepted already the form of worship followed in the UBMC before the Union of the two units with the CSI, and such acceptance was indicated in Rule 12 of Chapter II of the Constitution of the CSI, and in view of this it was difficult to accept the contention of the respondents that in case of merger or implementation of the impugned resolution, the right of worship of the impugned resolution, the right of worship of the members of the UBMC would be affected. [748A F] After a person was appointed a Bishop or a Presbyter in the CSI or a Pastor in UBMC, he had to be ordained in almost the same manner. The Court did not think it was within the purview of the enquiry in this litigation whether such ordination in the CSI had a spiritual significance of a transfer of grace or whether it was only a symbol of conferment of authority, so far as UBMC was concerned. The mode or manner of ordination or the underlying object of such ordination had, in the Court 's opinion, nothing to do with the right of worship of the respondents. [749B C] Both UBMC and CSI believed in Apostles Creed and Nicene Creed. If shorter Catechism, as stated by D.W. t consisted of the Creeds in the form of questions and answers, the Court did not think that merely because there was no mention about Shorter Catechism in the Constitution of the CSI, it could be said that there was a difference in the faith and doctrine of the two Churches, as held by the High rt [749F G] There was no cause for apprehension of the respondents that in case of merger, the Apocrypha would be imposed upon them which was repugnant to their religious faith, in the liturgy of the CSI, the prayer from Apocrypha had been made optional which showed that there was no scope for the imposition of Apocrypha on the respondents in the case of Union of UBMC and CSI. [751A B] 740 As regards the properties of the UBMC, even though there was merger, the properties or the income thereof would be utilised only for the benefit of the members of the UBMC of the South Kanara and Coorg. It was difficult to accept the contention of the respondents that in the case of merger, there would be diversion of the properties in the hands of the UBMC Trust Association to the CSI in breach of trust. [752B C] There was little or no difference between the doctrines, faith and religious views of UBMC and the CSI. The objection of the respondents to historical Episcopacy had no solid foundation inasmuch as historical Episcopacy was not in existence in the true sense of the term in the CSI, and it was none in a constitutional form. In other words, the Bishops were elected and Apostolic succession which was associated with historical Episcopacy, was totally absent. The observations made in General Assembly of Free Church of Scotland vs Lord overtoun, , could not in any event be applicable to the facts of this case, which are different from the said Free Church Case. [753F H] As regards the question whether the District Church Council had the authority to pass the impugned resolution, it was true that the District Church Council had only the power of amendment of the Constitution and no power had been conferred on it to pass a resolution relating to the union of the UBMC of South Kanara and Coorg with the CSI, but the Synod was the highest authority and the Synod of UBMC had the power to sanction merger of any unit of UBMC in the CSI, and the Synod passed a resolution, permitting the District Church Council of South Kanara and Coorg to join the Church of South India CSI. As the Synod was a representative body of the units, it stood dissolved after passing the said resolution, but until such a resolution was passed, it existed as the highest authoritative and administrative body of the UBMC. [757A B, E F] The challenge to the validity of the resolution impugned on the ground of violation of the provisions of section 6 of the Religious Societies Act, 1880, was misconceived and without any substance. The section dealt with the dissolution of societies and adjustment of their affairs. There was no question of dissolution of UBMC of South Kanara and Coorg and disposal of settlement of its property, claims and liabilities, etc., and as such the provision of section 6 was not at all applicable to this case. [758C D] The Court disagreed with the High Court that the impugned 741 resolution violated the provision of section 6 of the Religious Societies Act, and in view of the fact that the Synod had unanimously accorded permission for the merger, the High Court was not justified in striking down the said resolution. On the ground that it was beyond the authority of the District Church Council to pass such a resolution. The impugned resolution was legal and valid. [758E F] Ugamsingh and Mishrimal vs Kesrimal, [197l] 2 S.C.R. 836; Thiru venkata Ramanuja Pedda Jiyyangarlu Valu vs Prathivathi Bhayan Karam Venkatacharlu, ; General Assembly of Free Church of Scotland vs Lord overtoun, and N.P. Barwell vs John Jackson, A.I.R. 1943 All. 146.

Civil Appeal No. 1068 of 1987. From the Judgment and Order dated 16.5.86 of the Patna High Court in Civil Writ Jurisdiction Case No. 2523 of 1981. A.K. Sil and S.K. Sinha for the Appellants. D.N. Goburdhan for the Respondents. The following Order of the Court was delivered: O R D E R The 1st respondent Subodh Chandra is working as an operator grade III under the Hindustan Fertilizer Corporation Ltd. at Sindhri. The date of birth recorded in the register maintained by the Hindustan Fertilizer Corporation Ltd. was 1.6.1931 and in the usual course he has to retire from service on 1.6.1989 on completion of 58 years of age. He, however, filed a writ petition in the High Court of Patna claiming that his date of birth should be altered to 20th October, 1938. In support of his case he relied on a certificate issued by the Chief Medical Officer, Sindhri. The petition was contested by the Hindustan Fertilizer Corporation of India Ltd. After hearing the learned counsel for the parties, the learned Judge who heard the petition held that it was not possible to accept the case of the 1st respondent that he was born in the year 1938 and he further found that the date of birth as recorded in the register of the Corporation should not be interfered with. The learned Judge, however, passed the following order: "section Shamsul Hasan, J.: After the matter had been heard at great length and legal and factual pros and cons had been examined it appeared that the year of the birth of the petitioner being 1931 cannot be assailed nor interfered with. Consequently, Mr. Ojha felt that since the petitioner has his problem domestic or otherwise and he in 1971 was in fact given to understand that his year of birth would be 1938, some compassionate endowment may be made in his favour. I am entirely in agreement with Mr. Ojha. I, therefore, dispose of this application with an expression of my desire, which may be treated as a mandate, that the petitioner may be given three more years of service as a 864 special case after his due date of retirement, which could be done by reappointing him for that period. It is made clear that this may not be treated as a precedent for any other employee of the Institution or in any other case. " We are of opinion that the learned Single Judge having found that the date of birth of the 1st respondent as recorded in the register of the appellant Corporation should not be interfered with, committed a serious error in making an order directing the appellant Corporation 'as a special case ' to reappoint the 1st respondent for a period of three more years after his 'due date of retirement ', which is 1.6.1989. There was hardly any justification for passing such an order under Article 226 of the Constitution. The reason given by the High Court is wholly untenable. This appeal filed by the Corporation against the order passed by the learned Single Judge before this Court has, therefore, to be allowed. We set aside the judgment of the High Court and dismiss the writ petition filed by the 1st respondent. The appeal is disposed of accordingly. No order as to costs. N.P.V. Appeal allowed.

% The first respondent, an employee of the appellant Corporation, who was to retire from his service on 1.6.89 on completion of 58 years of age as per the date of birth recorded in the register maintained by the employer, the appellant Corporation, filed a writ petition in the High Court claiming that his date of birth should be altered to 20th October, 1938, relying on a certificate issued by the Chief Medical Officer. The petition was contested by the appellant Corporation. A Single Judge of the High Court held that it was not possible to accept the case of the first respondent that he was born in the year 1938, and that the date of birth as recorded in the register of the appellant Corporation should not be interfered with. However, taking into consideration the problems of the respondent, domestic or otherwise he made an order to the effect that the first respondent may be given three more years service after his due date of retirement by reappointing him for that period, as a special case. Allowing the appeal, ^ HELD: The Single Judge of the High Court having found that the date of birth of the first respondent as recorded in the register of the appellant Corporation should not be interfered with, committed a serious error in making an order directing the appellant Corporation, as a special case, to reappoint the first respondent for a period of three more years after his due date of retirement, on 1.6.89, on the ground that he had his problems, domestic or otherwise. There was hardly any justification for passing such an order under Article 226 of the Constitution. [864B C] 863

N: Criminal Appeal No . 54 of 1988 . From the Judgment and order dated 9.10.1987 of the Delhi High Court in Crl. W.P. No. 262 of 1987. Soli J. Sorabjee Hukam Chand, Mrs. Nisha Bachi and Vijay K. Verma for the Appellant. B. Datta, Additional Solicitor General, P. Parmeswaran Ashok K. Srivastava, A. Subha Rao and C.V. Subba Rao for the Respondents. 803 The Judgment of the Court was delivered by RAY, J. Special leave granted. Arguments heard. This appeal by special leave is directed against the judgment and order dated 9th October, 1987 passed by the High Court of Delhi in Criminal Writ Petition No. 262 of 1987 discharging the rule and rejecting the writ petition. The appellant was arrested and detained on 21st March, 1987 from his residence at Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur by an order of detention made under Section 3(1) of with a view to prevent him from acting in any manner prejudicial to the augmentation of foreign currency and also with a view to prevent him from engaging and keeping smuggled gold. The appellant was served with the grounds of detention by the Detaining Authority, Shri Tarun Roy, Joint Secretary to the Government of India. It had been stated therein that the appellant may make any representation to the Advisory Board against his detention. In the grounds of detention it was inter alia stated that on the basis of the secret information received in the office of the Assistant Director, Enforcement Directorate, Agra, the appellant had been indulging in illegal sale and purchase of foreign currency and also in the sale and purchase of gold of foreign origin on a large scale and that search of the following premises connected with the appellant was carried out on 10th December, 1986 under Section 37 of the Foreign Exchange Regulation Act, 1973: (i) Premises situated in Purana Laxman Mandir, opposite Dr. Ram Kumar, Bharatpur. (ii) Premises situated in Daniwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur, and (iii)Business premises of M/s Madanlal, Mohanlal and Baldev Singh, Karola, Laxman Mandir Crossing, Near Bata Shop, Bharatpur. On 6th April, 1987, the appellant made two representations; one to the Detaining Authority, 2nd respondent and another to the Central Government, the Ist respondent. In the representation to the Detain 804 ing Authority, the appellant stated that he had no concern whatsoever as regards the residential premises situated at Purana Laxman Mandir, opp. Dr. Ram Kumar, Bharatpur where the search was conducted and on such search US $ and primary gold were recovered, as the said premises does not belong to him but belongs to his sister in law. The appellant 's residential premises is situated in Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur. It had also been stated therein that the relevant documents on the basis of which the detaining authority came to the subjective satisfaction were not supplied to him and unless the said documents are given to him it will not be possible for him to make any effective representation against the grounds of detention. In the second representation to the Secretary, Government of India dated 6th April, 1987 also the appellant while reiterating the same facts stated that even the house from where the alleged recovery of foreign currency and gold was made is not his residential premises but is the residence of his sister in law. The appellant also stated that he was innocent and he should be released forthwith by revoking the order of detention. The appellant also stated that the Detaining Authority supplied him the relevant documents and also the information asked for in his letter dated 6th April, 1987 only on 24th April, 1987. The appellant also made a representation before the Advisory Board on 27th April, 1987. The appellant was produced before the Advisory Board on 29th April, 1987 and the Advisory Board heard the appellant in respect of his representation. The appellant received a communication dated 7th May, 1987 from the respondent No. 1 stating therein that his detention had been confirmed with effect from 21st March, 1987 for a period of one year. The appellant thereafter challenged the order of detention by a writ petition and also prayed for quashing of the said order of detention on the ground inter alia that the documents relied upon by the Detaining Authority in coming to his subjective satisfaction for making the order of detention in question which were required to be supplied to him along with the grounds of detention, were not supplied to him. The grounds of detention were supplied to him on 21st March, 1987 whereas the vital documents were supplied to him as late as on 24th April, 1987 in infringement of the provisions of Section 3(3) of the to be hereinafter called as the said Act. This vitiated the entire detention order in as much as the appellant could not make an effective representation against his order of detention in accordance 805 with the mandatory provisions of Article 22(S) of the Constitution of India. The order of detention was also challenged on the ground that the order of confirmation of detention did not give any indication as to why the Government had specified or determined the maximum period of detention of one year. The detention order is, therefore, illegal. It had also been stated in the writ petition that there had been inordinate delay in considering the representation sent on 6th April, 1987 through the Superintendent of Jail to the Detaining Authority and the Central Government. The said representation was disposed of by the Central Government on 29th April, 1987 and as such there was delay of 23 days which had not been explained. This unusual delay in the disposal of the detenu 's representation renders the order of detention bad. A counter affidavit was filed on behalf of respondent Nos. 1 and 2 affirmed by one Shri S.K. Chaudhary, Under Secretary, Ministry of Finance, Department of Revenue. In para 4 of the said affidavit it was stated that "it is also pertinent to submit that at the time of search several personal documents of the petitioner like copy of driving licence, his and his wife 's bank passbooks including a HUF passbook, account books were seized from the said premises. " It was also stated in para 7 of the said affidavit that the information sought in the representation of 6th April, 1987 received in the office of the Detaining Authority on 15th April, 1987 was totally irrelevant for the purpose of making any representation. In para 10 of the said affidavit it had been stated that the detenu was supplied with more documents numbering 150 pages on 24th April, 1987 in pursuance of his representation dated 6th April, 1987, although the same were not relied upon in forming the subjective satisfaction of the Detaining Authority. The Detaining Authority, Shri Tarun Roy, Joint Secretary to the Government of India, Department of Revenue, Ministry of Finance, New Delhi in paras 3 and 4 of his affidavit stated as under: "3 . That I was aware that no separate statement had been recorded by the Custom authorities and as such there was no question of suppressing the same. The result of the seizure was also placed before me as given in the panchanama which were placed before me. That although all the documents seized from the premises of the petitioner were before me but, I had not relied on all of those documents in forming my subjective satisfaction. I have relied only on those documents which 806 are mentioned to be relied in the list of documents annexed with the grounds of detention. " The learned Judge of the Delhi High Court while dismissing the writ petition observed that in view of the affidavit filed by the Detaining Authority, the respondent No. 2, that all the documents seized though placed before him, he did not rely on all of them in forming his subjective satisfaction in making the order of detention and as such the non supply of those documents to the petitioner along with the grounds of detention, cannot be said to amount to infringement of the provisions of Article 22(5) of the Constitution rendering the order of detention illegal and bad. Mr. Soli J. Sorabji, learned counsel appearing on behalf of the detenu has submitted with much vehemence that non supply of the vital documents which were considered by the Detaining Authority in forming his subjective satisfaction violates the provisions of Article 22(5) of the Constitution as the appellant was prevented from making effective representation to the grounds of detention. It has been submitted by the learned counsel that those documents which comprised of the 3 bank passbooks of the appellant and his wife and one driving licence of the appellant which had been seized and taken possession of by the Customs Department will clearly show that the residential address of the appellant mentioned therein is the house in Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur and not in Purana Laxman Mandir, opp. Dr. Ram Kumar, Bharatpur which house does not belong to the appellant but to his sister in law. The foreign currency i.e. US $ as well as the primary gold which were found out on search from the house in Purana Laxman Mandir cannot be connected with the appellant as he had specifically stated in his representation that he is not the owner of the said house. It has also been submitted in this connection that in spite of the specific objection taken by the appellant in his representation, no attempt was made on behalf of the Detaining Authority to ascertain who is the owner of the said house. The non supply of the said documents had greatly handicapped the appellant in making an effective representation against the rounds of detention served on him. This submission of the learned counsel was tried to be repelled by the Additional Solicitor General by contending that in view of the affidavit filed by the Detaining Authority, Shri Tarun Roy, Joint Secretary to the Government of India, Department of Revenue, Ministry of Finance, that he did not consider those documents though the same 807 were placed before him in forming his subjective satisfaction in making the order of detention and so non supply of those documents along with the grounds of detention to the appellant did not vitiate the order of detention. It was also submitted that the appellant and his relation, Manoj Kumar were present at the time of the search and the appelLant subsequently fled away go to show that the house in Purana Laxman Mandir from where the foreign currency and primary gold were recovered belonged to the appellant. After considering the submission, it is crystal clear that the aforesaid documents though placed before the detaining Authority for his consideration were not supplied to the appellant within 15 days from the date of the order of detention as provided under Section 3(3) of the said Act. It is also evident from the affidavit of Shri S.K. Chaudhary, Under Secretary, Ministry of Finance, Department of Revenue, New Delhi that on the request of the appellant by his representation dated 6th April, 1987, the documents were supplied to him on 24th April, 1987. The representation of the appellant was disposed of by the Advisory Board on 29th April, 1987. In these circumstances, it cannot be denied that the failure on the part of the Detaining Authority to supply the aforesaid material documents prevented the appellant from making an effective representation against the grounds of detention and as such the mandatory provisions of Article 22(5) have not been complied with. The order of detention in our considered opinion, is therefore, illegal and bad and the same is liable to be quashed. As the appeal succeeds on this ground alone we do not deem it necessary to consider the other objections raised against the order of detention. It is pertinent to refer here to the decision of this Court in Smt. Icchu Devi Choraria vs Union of India and ors. ; , wherein it has been held that the right to be supplied the copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the latter cannot be meaningfully exercised. It has been further held that it is necessary for the valid continuance of detention that subject to Article 22(6) copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to he recorded in writing, 808 not later than fifteen days from the date of detention. There are no exceptions or qualifications provided to this rule and if this requirement of Article 22(S) read with Section 3(3) of COFEPOSA Act is not satisfied, the continued detention of the detenu would be illegal and void. Similar observations have been made in the case of Kamla Kanahiyalal Khushalani vs State of Maharashtra and Another, ; For the reasons aforesaid, we allow the appeal and set aside the judgment and order of the High Court and quash the order of detention. We direct the Government to release the appellant from jail forthwith. There will be no order as to costs. N.V.K. Appeal allowed.

% The appellant was arrested and detained on 21st March, 1987 pursuant to an order of detention made under section 3(1) of the . He was served with the grounds of detention by the Detaining Authority. In the grounds it was stated that the appellant had been indulging in illegal sale and purchase of foreign currency, and also in the sale and purchase of gold of foreign origin on a large scale, and that in three premises connected with the appellant search was carried out on 10th December, 1986 under section 33 of the Foreign Exchange Regulation Act, 1973. On 6th April, 1987 the appellant made two representations; one to the Detaining Authority the second respondent, and another to the Central Government the first respondent. In these representations the appellant stated that he had no concern whatsoever as regards the premises where search was carried out, and US $ and primary gold were recovered as the said premises did not belong to him but belonged to his sister in law, and that if the relevant documents on the basis of which the detaining authority came to its subjective satisfaction are not given it would not be possible to make any effective representation. On 2nd April, 1987 the appellant also made a representation before the Advisory Board. The appellant was produced before the Advisory Board on 29th April, 1987 and the Board heard the appellant in respect of his representation. Me received a communication dated 7th May, 1987 from 801 respondent No. l stating that his detention had been confirmed with effect from 21st March, 1987 for a period of one year. The appellant challenged the order of detention in a writ petition and also prayed for quashing of the said order. It was contended on his behalf: (1) that the grounds of detention were supplied on 21st March, 1987 whereas the vital documents were supplied as late as on 24th April, 1987 and that this was a clear infringement of the provisions of section 3(3) of the COFEPOSA Act. (2) That the appellant could not make an effective representation against the order of detention in accordance with the mandatory provisions of Article 22(5) of the Constitution of India. The order of detention was also challenged on the ground: that the order of confirmation of detention did not give any indication as to why the Government had specified or determined the maximum period of detention of one year, that there had been an inordinate delay in considering the representation dated 6th April, 1987, that it was disposed of by the Central Government on 29th April, 1987, and that this delay of 23 days had not been satisfactorily explained. This unusual delay in the disposal of the representation also rendered the order of detention bad. The writ was contested by the first and second respondents by submitting in their counter affidavits that at the time of the search of the premises several personal documents of the detenu like driving licence, his and his wife 's bank passbooks, HUF passbooks, account books were seized from the searched premises, and that in pursuance of his representation dated 6th April, 1987 the detenu was supplied with more documents numbering 150 pages on 24th April, 1987 although the same had not been relied upon in forming the subjective satisfaction of the Detaining Authority. The High Court dismissed the writ petition in view of the affidavit filed by the Detaining Authority Respondent No. 2 that all the documents seized though placed before the detaining authority he did not rely on them in forming his subjective satisfaction in making the order of detention, and as such the non supply of certain documents seized from the premises after search to the detenu along with the grounds of detention cannot be said to amount to an infringement of the provisions of article 22(5) of the Constitution rendering the order of detention illegal and bad. Allowing the Appeal, the Court, 802 ^ HELD: l. It is crystal clear that certain documents though placed before the Detaining Authority for consideration were not sup plied to the appellant within 15 days from the date of the order of detention as provided under section 3(3) of the COFEPOSA Act. It is also evident that on the request of the appellant by his representation made on 6th April, 1987 the documents were supplied to him on 24th April, 1987. The representation of the appellant was disposed of by the Advisory Board on 29th April, 1987. In these circumstances, it cannot be denied that the failure on the part of the Detaining Authority to supply the aforesaid material documents prevented the appellant from making an effective representation against the grounds of his detention, and as such the mandatory provision of article 22(5) had not been complied with. The order of detention is, therefore, illegal and bad and the same is liable to be quashed. [807C E] 2. It is necessary for the valid continuance of the detention that subject to article 22(6) copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention. There are no exceptions or qualifications provided to this rule and if this requirement of article 22(5) read with section 3(3) COFEPOSA Act is not satisfied the continued detention order of detenu would be illegal and void. Appellant directed to be released forthwith. [807G H; 808A B, C] Smt. Icchu Devi Choraria vs Union of India and Ors., ; and Kamla Kanahiyalal Khushalani vs State of Maharashtra and Another, ; referred to.

AL APPELLATE JURISDICTION: Criminal Appeal No. 450 of 1987 From the Judgment and order dated 26.3.1987 of the Allahabad High Court in Habeas Corpus Petition No. 17849 of 1986. D.K. Garg for the Appellant. Dalveer Bhandari for the Respondents. The Judgment of the Court was delivered by B.C. RAY, J. Special leave granted. Arguments heard. This appeal by special leave is directed against the judgment and order of the High Court of Allahabad dated 26th March, 1987 in Habeas Corpus Petition No. 17849 of 1986 dismissing the writ petition and confirming the order of detention passed against the appellant by the District Magistrate, Allahabad. The respondent No. 2, District Magistrate, Allahabad clamped upon the appellant an order of detention under section 3(2) of the and the appellant was detained at Central Jail, Naini on October 10, 1986. On the same day the grounds of detention were served on the appellant. Two grounds of detention mentioned in the grounds of detention are stated hereinbelow: (1) That the appellant on 2.10.1986 threatened the shopkeepers of Khalasi Line locality in order to extort money anc} was saying that appellant could not come for the last auction because the police were present on that occasion and that the shopkeepers bad not given the appellant the money received in the above auction. Further that the shopkeepers should collect money and give it to the appellant or else the appellant would shoot all of them. As a result of this the place was terror stricken and the shops and houses closed down. A report of this incident was made by the picket employed at police station Kydganj, i.e. report No. 38 time 20. 10 dated 2. 10.86. This was investigated by Dev Shankar, S.I. Of police station Kydganj and the details written in report No. 2 time 00.30 dated 3. 10.86 in the general diary as Case crime No. 248/86, Section 307 I.P.C. and case crime No.249/86, Section 4/5 Explosives Act, Police Station, Kydganj, Allahabad. 131 (2) On 3. 10. 1986, the appellant armed with illegal bombs went towards Uttam Talkies. Kydganj, Allahabad with the intention of committing serious offence. On information being received, the police went to arrest the appellant. That the appellant with the intention to kill lobbed a bomb but the police party escaped it by a hair 's breadth and the bomb exploded. As a result of this there was a stampede in the public, the doors and windows of the houses and shops closed down, the traffic stopped and the people were terror stricken. The police arrested appellant on the spot and recovered 3 illegal bombs from the appellant. The appellant has also been supplied with a copy of a confidential letter written by the Superintendent of Police, Allahabad to District Magistrate, Allahabad dated 9.10.1986. The said letter was written by the Superintendent of Police on the recommendation of the Station officer, Kydganj, Allahabad on 5. The appellant has also been supplied with the copy of the report No. 38 in which it is alleged that the appellant threatened the shopkeepers of Khalasi Line in an attempt to extort money. He was also supplied with the copy of the report which was registered as case crime No. 248 of 1986 under section 307 I.P.C. and case crime No. 249 of 1986 under section 4/5 of the Explosives Act. The appellant made representation against the grounds of detention before the authorities concerned but his representation was rejected and the order of detention was confirmed. E The appellant challenged the order of detention by a writ of Habeas Corpus before the High Court of Allahabad on the ground inter alia that the grounds of detention are absolutely vague and there is complete non application of mind by the detaining authority in coming to the subjective satisfaction, that the order of detention passed on the appelant while he was in custody is wholly arbitrary and unwarranted and the two cases disclosed in the grounds of detention relate to law and order problem and not to the disturbance of public order. The criminal proceedings pending in respect of the case should not have been by passed by taking recourse to the order of detention of the appellant who is already in custody and there was no likelihood nor any possibility of his indulging in activities prejudicial to the maintenance of public order as the appellant has not made any application for bail in the said case. The detention order has, therefore, been assailed as illegal and bad and so the same is invalid in law. The High Court after hearing the appellant, by its judgment and H 132 order dated 26th March, 1987 dismissed the writ petition No. 17849 of 1986 holding that the order of detention passed by the detaining authority while the appellant was in jail could not be held to be illegal in the facts and circumstances of the case. Aggrieved by the said order the instant appeal by special leave was filed in this court. An affidavit in counter verified by one O.P. Ojha, Station officer, Police Station, Kydganj, Allahabad has been filed. It has been stated in paragraph 4(iii) of the counter affidavit that the appellant 's history starts from 1955 and he involved himself in a large number of criminal cases. His name in the history sheet was included by the police. It has been further stated that out of fear the shopkeepers of the village dare not disclose their names and the people of Khalasi Line dare not depose against the appellant since he is a goonda of the locality and people are afraid of him. It has been further stated that this is the reason for non appearance of the shopkeepers and others as witnesses. The first incident dated October 2, 1986 was registered in G.D. No. 38 of the said date and the second incident which occurred on October 3, 1986 was registered as case crime No. 368 of 1986 under section 302/307/120 B, I.P.C. It has been further stated that these two incidents created terror to the shopkeepers and the people of the locality. This resulted in a great problem of public order. It has been stated further that after being convinced of the gravity of the situation created by the appellant and his accomplice, the District Magistrate after fully satisfying himself about the state of affairs, passed the order of detention of the appellant. It has also been stated that the detention order was passed mainly on the basis of two criminal acts committed by the appellant on October 2 and 3, 1986. Before passing the detention order the District Magistrate fully satisfied himself of all the conditions for passing a detention order under the . It has also been stated that it is wrong that the allegations made in the reports dated October 2 and 3, 1986 are false. The District Magistrate fully satisfied himself after perusing all the records before he passed the order of detention against the appellant. The cases which have been reported on October 2 and 3, 1986 are pending trial before the Court. It has also been stated that the order of detention was passed by the District Magistrate on the basis of the information gathered by him from the reports submitted by the police. It has also been stated that the appellant has already applied for bail in crime case No. 248/86 under section 307 I.P.C. and crime case No. 249/86 under section 4/5 of Explosives Act. Notices of bail applications in connection with these 133 two cases were served on the State Government prior to the passing of the detention order by the District Magistrate. The District Magistrate passed the detention order dated October 10, 1986 when the appellant was already in jail on the apprehension that the appellant is likely to be released on bail in the near future and that if the appellant is bailed out, the public order problem will become worse. The detention order was passed with the object of preventing the appellant from acting in a manner prejudicial to the maintenance of public order. Hence the detention order is legal in all respects. The history sheet of crime cases against the appellant has been annexed to the said affidavit. Before proceeding to consider the case on merits it is relevant to quote the provisions of Section 3 sub section (2) of National security Act, 1980. 3(2):The Central Government or 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 from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. On a plain reading of Section 3(2) of the said Act it becomes clear that the Central Government or the State Government or the District Magistrate authorised by the State Government in writing may pass an order of detention against a person on being satisfied that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order directing that such person be detained. In the instant case the order of detention has been made by respondent No. 2, District Magistrate, on the basis of two criminal cases in respect of two incidents which occurred on October 2 and 3, 1986. So far as the case being G.D. No. 38 is concerned, allegation was that the appellant was threatening the traders of Khalasi Line who participated in the auction at the fort and he was saying that he could not collect money from them on the last occasion because the police were posted there but in case they did not collect money and give it to him he would shoot all of them. Because of this terror the shopkeeprs closed the doors and windows of their shops and houses. The report of 134 this incident was made by the picket employed at police station, Kydganj. It appears from this report that there are no particulars about the shopkeepers who have been terrorised and threatened for payment of money nor the names of any of the witnesses in whose presence the threat or terror was given and money was demanded, are mentioned at all. The report is absolutely vague and it is not possible for the detenu to give an effective representation against the aforesaid ground which is one of the constitutional requirement enjoined in Article 22(5) of the Constitution of India. The second ground which leads to crime case No. 248/86 under section 307 I.P.C. and case crime No. 249 under section 4/5 of Explosives Act and which occurred on October 3, 1986 at about 10 A.M. On the complaint of Sub Inspector Yatendra Singh through special court, Allahabad also does not disclose any particulars as to the shopkeepers in whose presence the alleged bombs were thrown by the appellant and his associate and who were terrified and panic stricken and put down their shutters, nor the names of any of the witnesses have been mentiond in respect of the said incident. The meaning of the word 'public order ' has been determined by this Court in the case of Kanu Biswas vs State of West Bengal. [1972] 3 SSC 83 1. In this case it has been held that the question whether a man has only committed 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. Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. In the case of Haradhan Saha vs The State of West Bengal and others, [19751 3 SCC 198 this Court has observed that the following principles emerge from the judicial decisions: First: merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second: the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. 135 Third: where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth: the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth: the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his part conduct in the light of the surrounding circumstances. This has been followed in Kanchanlal Meneklal Chokshi vs State of Gujarat and others, [ ; wherein it has been observed that: "The ordinary criminal process is not to be circumvented or short circuited by ready resort to preventive detention. But, the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that question too was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu. " 136 In the case of Dr. Ram Manohar Lohia vs State of Bihar and others, [1966] l SCR 709 it has been observed by this Court that: "The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. There are three concepts according to the learned Judge (Hidayatullah, J) i.e. ' 'law and order ' ', "public order" and "security of the State ' . It has been observed that to appreciate the scope and extent of each of them, one should imagine three concentric circles. The largest of them represented law and order, next represented public order and the smallest represented the security of the State. An act might affect law and order but not public order just as an act might affect public order but not the security of the State. ' ' As observed in the case of Arun Ghosh vs State of West Bengal, "Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community 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 community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. " This has been followed in the case of Nagendra Nath Mondal vs 137 State of West Bengal; , and Nand Lal Roy alias Nonda Dulal Roy vs State of West Bengal, [ Thus from these observations it is evident that an act whether amounts to a breach of law and order or a breach of public order solely depends on its extent and reach to the society. If the act is restricted to particular individuals or a group of individuals it breaches the law and order problem but if the effect and reach and potentiality of the act is so deep as to affect the community at large and or the even tempo of the community that it becomes a breach of the public order. In the case of S.K. Kedar vs State of West Bengal, this Court has observed that : "The question whether a person has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is one of degree and the extent of the reach of the act upon the society. An act by itself is not determinative of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. It is the degree of disturbance upon the life of the community which determines whether the disturbance amounts only to a breach of the law and order." This Court has further observed in the case of Ashok Kumar vs Delhi Administration, [ while dealing with the distinction between 'public order ' and 'law and order ' to which one of us is a party that: "The true distinction between the areas of 'public order and 'law and order ' lies not in the nature of quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order ' and 'public order ' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the 138 act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. " On a conspectus of all these decisions it has been observed by this Court in the case of State of U.P. vs Hari Shankar Tewari, [ ; that conceptually there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order. One has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or the smaller circle. An act which may not at all be objected to in certain situations is capable of totally disturbing the public tranquility. When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community. An order of detention made in such a situation has to take note of the potentiality of the act objected to. Thus whether an act relates to law and order or to public order depends upon the impact of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect public order. In the present case so far as the first incident which occurred on 2. 10.1986 is concerned, the ground is vague in as much as neither the names of the witnesses in whose presence the threat was given and the incident occurred, have been mentioned. As regards the second incident which occurred on 3. 10.1986, case crime No. 248 86 under Section 307 I.P.C. and No. 249/86 under Section 4/5 Explosives Act respectively are pending trial. It is also pertinent to remember in this connection that a case crime No. 200 of 1986 under section 323/504/506/426 I.P.C. read with section 2 3 of the U.P. Gangsters and Anti Social Activities Act No. 4 of 1986 by the police of the police station, Naini, a copy of which was annexed as annexure I to this appeal, was registered against the appellant. The said case was challenged by an application under section 482 Cr. P.C. in the High Court. The said application was admitted on 2.6.1986 and it is pending as Criminal Misc. Application No. 6638 of 1986. The High Court while admitting the case had granted stay of arrest of the appellant. Furthermore, the appellant was taken in custody and he was in jail as an under trial prisoner on October 10. 1986 when the impugned order of detention was clamped upon him by the detaining authority, the respondent No. 2. The appellant has 139 stated in his appeal before this Court that till date he had not applied for bail in case crime No. 248 1986 under section 307 I.P.C. and case crime No. 249 1986 under section 4/5 of the Explosives Act as well as the case registered in report No. 38 dated October 2, 1986 at police station, Kydganj. The question is whether there is possibility of the detaining authority to be satisfied that the appellant is likely to indulge in activities prejudicial to the maintenance of public order as there is no likelihood of his being released from jail custody immediately. This specific question arose in the case of Masood Alam vs Union of India, AIR 1973 (SC) 897 wherein it has been observed that: "The order of detention served upon the detenu while he was in jail is not invalid rendering the petitioner 's detention as void. There is no legal bar in serving an order of detention on a person who is in jail custody if he is likely to be released soon thereafter and there is relevant material on which the detaining authority is satisfied that if freed, the person concerned is likely to indulge in activities prejudicial to the security of the state or maintenance of public order. " In the case of Rameshwar Shaw vs District Magistrate, Burdwan & Anr., [ 1 it has been observed that: "The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention order can be properly made. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, h would act in a prejudicial manner? At the point of time when an order of detention is going to be 140 served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under section 3(1)(a), and this basis is clearly absent in the case of the petitioner. " In the instant case there is nothing to show that in consideration of his previous conduct and acts there. is a likelihood of the appellant indulging in activities prejudicial] to the maintenance of public order if he is set free and/or released from custody. It has been observed in the case of Merugu Satyanarayana etc. vs State of Andhra Pradesh and others, [ ; by this Court that before making an order of detention in respect of a person already confined to jail "it must be present to the mind of the detaining authority that keeping in view the fact the person is already indetention a preventive detention order is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated. But as stated by this Court it will depend on the facts and circumstances of each case. It has further been observed as follows: "We are completely at a loss to understand how a Sub Inspector of Police can arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act. If the power of preventive detention is to be conferred on an officer of the level and standing of a Sub Inspector of Police, we would not be far from a Police State. Parliament has conferred power primarily on the Central Government and the State Government and in some specific cases if the conditions set out in sub section (3) of section 3 are satisfied and the notification is issued by the State Government to that effect, this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as 141 District Magistrate or Commissioner of Police. In this case the District Magistrate, the detaining authority has not chosen to file his affidavit. The affidavit in opposition is filed by a Sub Inspector of Police. Would this imply that Sub Inspector of Police had access to the file of the District Magistrate or was the Sub Inspector the person who influenced the decision of the District Magistrate for making the detention order? From the very fact that the respondents sought to sustain the order by filing an affidavit of Sub Inspector of Police, we have serious apprehension as to whether the District Magistrate completely abdicated his functions in favour of the Sub Inspector of Police. " In a recent case of Ramesh Yadav vs District Magistrate, Etah and others, AIR 1986 (SC) 3 15 it has been observed that: "It is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to preventive detention. The impugned order, therefore, has to be quashed. In the instant case the detaining authority, respondent No. 2 has not come forward to file an affidavit stating whether he has taken into consideration the fact that the appellant was already in judicial custody and on considering his past activities he was subjectively satisfied that if set free or released from jail custody on bail, there was likelihood of the appellant indulging in criminal activities endangering public order. On the other hand, the Station officer of the Police Station, Kydganj, Shri O.P. Ojha has filed a counter stating that the District Magistrate passed the impugned detention order when the appellant was already in jail on the apprehension that the appellant is likely to be released on 142 bail in the near future and if the appellant is bailed out, the public order problem will become worse. This clearly goes to show that the Sub Inspector has arrogated to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act. The District Magistrate, the detaining authority in this case has not chosen to file his affidavit. The affidavit in opposition filed by the Station officer of Police implies that he has access to the file of the District Magistrate or he influenced the decision of the District Magistrate for making the detention order. This is also clear from the confidential report submitted by the Senior Superintendent of Police, Allahabad to the District Magistrate, Allahabad as well as from the report of the Sub Inspector of Police annexed with the said report wherein it has been specifically stated that it was apprehended that the appellant, Gulab Mehra who is at present in Naini jail and who has applied for bail, if enlarged on bail, public order will be disturbed. There is nothing to show that there was awareness in the mind of the District Magistrate, the detaining authority of the fact that the appellant was in jail at the time of clamping of the order of detention, and the detaining authority was satisfied in considering his antecedents and previous criminal acts, that there is likelihood of his indulging in criminal activities jeopardizing public order if he is enlarged on bail and that there is every likelihood that the appellant will be released on bail within a short time. On this ground alone, the order of detention is invalid. It may also be stated in this connection that the respondents can very well oppose the bail application when it comes for hearing and if at all the appellant is released on bail the respondents are not without any remedy. They can also file application in revision for cancellation of the bail application. In such circumstances, we cannot but hold that the passing of the order of detention of the appellant who is already in custody is fully bad and as such the same is invalid in law. We have already said hereinbefore that the respondents can very well proceed with the criminal case under section 307 of I.P.C., execute it against the appellant and can get him punished if the case is approved beyond doubt against the appellant. It is pertinent to mention in this connection the case of Abdul Gaffer vs State of West Bengal, AIR 1975 (SC) 1496 wherein the order of detention was passed in respect of three cases registered against the petitioner. These are as follows: (1) The petitioner along with his associates on 18.7.1971 being armed with deadly weapons like daggers etc. committed thefts in respect of D.O. plates from the railway yard and on being challenged, pelted stones causing injury to the R.P.F. party. The R.P.F. party had 143 to open fire but the petitioner and his associates fled away. A (2) On 25.11.1971 the petitioner along with his associates being armed with deadly weapons committed theft in respect of batteries from empty rakes standing on the railway track. Being challenged by the R.P.F. party the petitioner and his associates pelted stones. The R.P.F. party fired two rounds whereby one of his associates was injured and arrested at the spot. (3) On 20.2. 1972, at Howrah Goods Yard near Oriapara Quarters, the petitioner along with his associates being armed with deadly weapons viz. bombs, iron rods etc. committed theft of wheat bags from a wagon and on being challenged by the R.P.F. party the petitioner and his associates pelted stones and hurled bombs. As a result of this act train services on Howrah Burdwan line was suspended for a considerable period. Three cases were registered in respect of these offences and order of detention was made by the District Magistrate. The detaining authority, however, did not file an affidavit but his successor in office in response to Rule Nisi issued by the High Court filed the counter. It has been observed firstly that the detaining authority has not filed the counter affidavit and the return filed in his place by his successor in office does not satisfactorily explain why the prosecution of the petitioner for the substantive offence in respect of which he was arrested and named in the F.I.R. was not proceeded with. According to the counsel the so called explanation given in the counter that the witnesses being afraid were not coming forward to give evidence was too ridiculous to be believed by any reasonable person. The Sub Inspector of Police who made the panchnama could certainly not be afraid of giving evidence. The other material witnesses who could give evidence were the members of the R.P.F. party. It is a para police organisation. The bald but sweeping allegation in the counter that these witnesses were also afraid of giving evidence in court against the petitioner is a version which is too incredulous to be swallowed even by an ultra credulous person without straining his credulity to the utmost. The order of detention was therefore held invalid. In the instant case the police officers who withnessed the hurling of bombs and the Sub Inspector of Police who recorded the F.I.R. can come forward to give the evidence. Therefore, in such circumstances, the open statement made in the affidavit of the Sub Inspector of Police that the witnesses are afraid of disclosing their names and coming H 144 forward to give evidence is wholly incredulous and it cannot be accepted. The prosecution of the appellant for the substantive offences can be properly proceeded with in this case In the case of Sudhir Kumar Saha vs Commissioner of Police, Calcutta & Anr., ; the petitioner along with his associates committed various acts of crime on three occasions. On the first occasion he attacked the people of a locality with a knife and by hurling bottles at them. On the other two occasions he attacked the people of another locality, by hurling bomes at them. It was held that the incidents were not interlinked and could not have prejudiced the maintenance of public order. On considering these decisions, we are constrained to hold that the clamping of the order of detention is not in accordance with the provision of the Act. Furthermore, the history sheet does not at all link to the proximity of the two incidents on the basis of which the o order of detention was made. It has been vehemently urged before us by the learned counsel appearing for the appellant that in none of the cases mentioned in the history sheet the appellant has been convicted and moreover these cases related to a period much earlier than the period in which the two cases have occurred. It has also been submitted in this connection by the learned counsel for the appellant that the appellant had not been convicted in any of the cases and the submission of the Sub Inspector of Police that the witnesses are afraid of disclosing their names and coming forward to give evidence is wholly incorrect and false in as much as witnesses in fact gave the evidence in a criminal case which ended in acquittal. It has also been submitted by the learned counsel that the shopkeepers of the locality where the alleged hurling of bombs took place have made an application in this case that no such incident occurred on the said dates. In the premises, aforesaid, we hold that the impugned order of detention is illegal and invalid and we allow the appeal setting aside the judgment and order of the High Court without any order as to costs. S.L. Appeal allowed.

HELD: The order of detention was passed by the respondent No. 2. District Magistrate, on the basis of two Criminal Cases in respect of two incidents which had occurred on October 2 and 3, 1986. So far as the case being G.D. No. 38 was concerned, the report of this incident was made by the picket employed at police station, Kydganj. It appeared from this report that there were no particulars about the shopkeepers who had been terrorised and threatened for payment of money, as alleged in the grounds of detention, nor were mentioned at all the names of any of the witnesses in whose presence the threat or terror was used and money was demanded. The report was absolutely vague and it was not possible for the detenu to give an effective representation 127 against the ground, which is one of the Constitutional requirements enjoined in Article 22(5) of the Constitution of India. The second ground, which led to crime case No. 248/86 under section 307, I.P.C., and crime case No. 249/86 under section 4/5 of the Explosives Act and which occurred on October 3, 1986, registered on the complaint of Sub/Inspector Yatendra Singh through special court, Allahabad, also did not disclose any particulars as to the shop keepers in whose presence the bombs alleged were thrown by the appellant, and who were terrified and panic stricken, etc., nor were mentioned the names of any witnesses in respect of the said incident. [133F, 134A D] The question whether a man has only committed 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, as held by this Court in Kanu Biswos vs State of West Bengal, ; , while determining the meaning of 'public order '. Public order is what the French Call "order Publique" and is something more than ordinary maintenance of law and order. From the observations of this Court made in many cases, it is evident that whether an act amounts to a breach of law and order or a breach of public order, solely depends upon its extent and reach to the society. If the act is restricted to particular individuals or a group of individuals, it breaches the law and order problem, but if the effect and reach and potentiality of the act are so deep as to affect the community at large and/or the even tempo of the community, then, it becomes a breach of the public order. An act, which may not at all be objected to in certain situations is capable of totally disturbing the public tranquillity. When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community. An order of detention made in such a situation has to take note of the potentiality of the act objected to. Thus, whether an act relates to law and order or the public order depends upon the impact of the act on the life of the community, or, in other words, the reach and effect and potentiality of the act, if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect the public order . [134D E,137A B. 138B D] In this case, so far as the first incident which occurred on 2.10.1986 was concerned, the ground was vague inasmuch as the names of the witnesses in whose presence the threat was given and the incident occurred, had not been mentioned. As regards the second incident which occurred on 3. 10.1986, the Crime Case No. 248/86 under section 307, I.P.C. and the Crime Case No. 249/86 under section 4/5 of the Explosive Act, were pending trial. [138E F] 128 A case crime No. 200 of 1985 under sections 323/504/506/426, l. P.C., read with section 2/3 of the U.P. Gangsters and Anti Social Activities Act No. 4 of 1986 was registered against the appellant by the police. That case was challenged by an application under section 482 Cr. P.C. in the High Court. The said application was admitted on 2.6.1986 and had been pending. The High Court had, while admitting the case, granted stay of arrest of the appellant. The appellant had been taken into custody and was in jail as an undertrial prisoner on October 10, 1986, when the impugned order of detention was clamped upon him. The appellant stated in this Appeal that till date he had not applied for bail in case crime No. 248/86 and case crime No. 249/86 as well as the case registered in report No. 38 dated October 2, 1986 at the police station Kydganj. The question was whether there was a possibility of the detaining authority to be satisfied that the appellant was likely to indulge in activities prejudicial to the maintenance of public order as there was no likelihood of his being released from the jail custody immediately. There was nothing in the case to show that in consideration of his previous conduct and acts, there was a likelihood of the appellant 's indulging in activities prejudicial to the maintenance of public order if he was set free and/or released from custody. [138F H, 139A B, 140B C] The detaining authority District Magistrate respondent No. 2, had not filed an affidavit stating whether he had taken into consideration the fact that the appellant had already been in the judicial custody and on considering his past activities he had been subjectively satisfied that if set free or released from jail custody on bail, there was a likelihood of his indulging in criminal activities endangering public order. On the other hand, the Station officer of Kydganj police station, had filed a counter stating that the District Magistrate had passed the impugned detention order when the appellant was already in jail, on the p apprehension that the appellant was likely to be released on bail in the near future and if he was bailed out, the public order would become worse. This clearly showed that the police officer had arrogated to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act. The affidavit filed by the station officer of police implied that he had access to the file of the District Magistrate or he influenced the decision of the District Magistrate for making the detention order. There was nothing to show that there was awareness in the mind of the District Magistrate, the detaining authority, of the fact that the appellant was in jail at the time of the clamping of the order of detention, and the detaining authority was satisfied, in considering his antecedents, that there was a likelihood of his indulging in criminal activities, jeopardising public order if he 129 was released on bail and that there was every likelihood of his being A enlarged on bail within a short time. On this ground alone, the detention order was invalid. It might be said in this connection that the respondents could very well oppose the bail application when it came up for hearing, and if at all the appellant was released on bail, the respondents were not without a remedy. They could file an application for cancellation of the bail. In the circumstances, it could not but be held that the passing of the order of detention of the appellant who was already in custody was fully bad and invalid in law. The respondents could very well proceed with the criminal case under section 307, I.P.C., and get the appellant punished if the case was proved beyond doubt against him. The police officers, who witnessed the hurling of the bombs and the Sub Inspector of police who recorded the F.I.R., could come forward to give evidence. In the circumstances, the open statement in the affidavit of the Sub Inspector that the witnesses were afraid of disclosing their names and giving evidence, was wholly incredulous and could not be accepted. [141G H, 142A G, 143G 144A] The clamping of the order of detention was not in accordance with the provisions of the Act. The history sheet did not at all link to the proximity of the two incidents on the basis of which the detention order had been passed. [144C D] The impugned order of detention was illegal and invalid. [144G] E Kanu Biswas vs State of West Bengal, [1972] 3 S.C.C. 831; Haradhan Saha vs The State of West Bengal and Anr. ; ; Kanchanlal Maneklal Chokshi vs State of Gujarat & ors. ; , ; Dr. Ram Manohar Lohia vs State of Bihar & ors.; , ; Arun Ghosh vs State of West Bengal, ; Nagendra Nath Mondal vs State of West Bengal, 11972] 1 S.C.C. 498; Nand Lal Roy alias Nonda Dulal Roy vs State of West Bengal, ; S.K. Kedar vs State of West Bengal, ; Ashok Kumar vs Delhi Administration, ; State of U.P. vs Hari Shankar Tewari, ; ; Masood Alam vs Union of India, A.I.R. 1973 S.C. 897; Rameshwar Shaw vs District Magistrate Burdwan State of Andhra Pradesh & ors. ; , ; Ramesh Yadav vs District Magistrate, Etah and others, A.I.R. 1986 S.C. 315; Abdul Gaffer vs State of West Bengal, A.I.R. 1975 S.C. 1496 and Sudhir Kumar Saha vs Commissioner of Police, Calcutta, ;

N: Criminal Appeal No . 579 of 1986 From the Judgment and order dated 15.4.1986 of the Bombay High Court in Crl. R. Appln. No. 160 of 1985. Rakesh Upadhyay, M.M. Kashyap and N.A. Siddiqui for the Appellants. V.N. Ganpule, S.K. Agnihotri and A.S. Bhasme for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The appellant No. 1 Bakulabai filed an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) before the Judicial Magistrate, Degloor, alleging that she was lawfully married to the respondent No. 1 Ganga Ram and that the appellant No. 2 Maroti was born out of this wedlock. She claimed maintenance both for herself and for her son. Ganga Ram denied the marriage as well as the paternity of the appellant No. 2. He also averred that he was already married twice before the wedding 790 pleaded by Bakulabai and that both his wives were living. The Judicial Magistrate accepted Bakulabai 's case and granted maintenance at the rate of Rs. 100 per month in her favour and additional Rs.50 per month for the minor boy. Ganga Ram moved the Sessions Judge in revision. Bakulabai also filed a revision application for enhancement of the rate of maintenance. The two applications were registered respectively as Criminal Revision No. 83 of 1984 and Criminal Revision No. 110 of 1984, and were heard together. The Sessions Judge accepted the defence case, reversed the findings of the Judicial Magistrate and dismissed the application for maintenance. Revision case No. 83 of 1984 was thus allowed and the wife 's application was dismissed. Bakulabai challenged the order before the Bombay High Court by a revision application. By the impugned Judgment the High Court rejected the same holding that since it was the second revision application by the wife it was not maintainable, being barred by the provisions of section 397(3) of the Code. The Court further proceeded to examine the merits of the case and concurred with the view of the Sessions Judge. The appellants have now come to this Court by special leave. On the maintainability of the revision application before it, the High Court took an erroneous view. The provisions of sub section (3) of section 397 relied upon, are in the following terms: "(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. " The main judgment of the Judicial Magistrate upholding the appellants ' claim for maintenance was in her favour and there was no question of her challenging the same. Her challenge before the Sessions Judge was confined to the part of the order assessing the amount of maintenance, and this issue could not have been raised again by her. Subject to this limitation she was, certainly entitled to invoke the revisional jurisdiction of the High Court. The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court. She could not, therefore, be said to be making a second attempt when she challenged this order before the High Court. The fact that she had moved before the Sessions Judge against the quantum of maintenance 791 could not be used against her in respect of her right of revision against the Sessions Judge 's order. Accordingly, the decision of the High Court on this question is set aside and it is held that the revision petition of the appellant before the High Court, except the prayer for enhancing the amount was maintainable. Now, coming to the other aspect, the Judicial Magistrate on a consideration of the evidence led on behalf of the parties accepted the appellants ' case. He held that Bakulabai and Ganga Ram had lived together in the same house as husband and wife for a considerable period, and the boy Maroti was born of this union. On the question as to whether Ganga Ram was already married and his wife or wives were living on the date the marriage with the appellant Bakulabai is alleged, the Magistrate did not record a categorical finding. According to the case of Ganga Ram, he was first married with Rajabai, and again with Kusumbai in 1969. It was, therefore, argued on his behalf that as he had two living spouses in 1972, he could not have lawfully married a third time in view of the provisions of the . The Judicial Magistrate rejected the plea by saying that the second marriage of the respondent with Kusumbai was on his own showing null and void as his first wife was then alive. Dealing with the effect of the first marriage he held that it was not as fact proved. Thus he got rid of the effect of both the marriages by adopting a queer logic. If the story of the first marriage was to be rejected, the second marriage could not have been held to be void on that ground. The finding of the Judicial Magistrate on the validity of the marriage of the appellant was, therefore, illegal. We have by our judgment in Criminal Appeal No. 475 of 1983 (Smt. Yamunabai vs Anantrao Shivram Adhav and another) delivered today held that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the coming in force of the , is null and void and the woman is not entitled to maintenance under section 125 of the Code. Coming to the facts of the present case, it appears that the respondent has satisfactorily proved his case about his earlier marriage with Kusumbai by production of good evidence including a certificate issued by the Arya Samaj in this regard. It is not suggested that Rajabai was living when Kusumbai was married and was dead by the time the appellant 's marriage took place. The position which emerges, therefore, is that either the respondent 's first marriage with Rajabai was subsisting so as to nullify his second marriage with Kusumbai, in which case the appellant 's marriage also was rendered null and void on that very ground; or if, on the other 792 hand, the respondent 's case of his marriage with Rajabai is disbelieved A the marriage of Kusumbai will have to be held to be legal and effective so as to lead to the same conclusion of the appellant 's marriage being void on either hypothesis the appellant 's claim is not covered by section 125 of the Code. She cannot, therefore, be granted any relief in the present preceedings. The decision to that effect of the High Court is, R therefore, confirmed. The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision. No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate. (See Pathumma and another vs Mahammad; , Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child. If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of section 16(1) of the , which reads as follows: "16(1). Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. " Even if the factum of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of Clauses (b) and (c) of section 125(1) of the Code specifically referring to an illegitimate child. We, therefore, hold that the order of the Judicial Magistrate allowing the maintenance to the appellant No. 2 was correctly passed. The amount of Rs.50 per month was allowed as the mainte 793 nance of the child in 1984. The revision application filed before the Sessions Judge was rejected. A second application before the High Court was, therefore, not maintainable. We will, therefore, assume that the decision assessing the amount of maintenance as Rs.50 per month in 1984 became final. However, on account of change of circumstances, this amount can be revised after efflux of time. During the last four years the value of money has gone down due to inflation. The child has also grown in age. In the circumstances, we direct the respondent Ganga Ram to pay the appellant No. 1 the maintenance amount for appellant No. 2 at the rate of Rs.150 per month with effect from February, 1988. The arrears up to January, 1988, if not paid, should also be paid promptly. The appeal is allowed in the terms mentioned above. G.N. Appeal allowed. G.N. Appeal allowed.

% The appellant filed an application under Section 125 Cr. P.C. before the Judicial Magistrate, claiming maintenance for herself and her son, alleging lawful marriage with the respondent, and that the son was born out of the wedlock. Respondent, however, denied the marriage and paternity of her son. He claimed that he was already married twice and both his wives were alive. The Judicial Magistrate accepted the appellant 's case and granted maintenance at the rate of 100 per month in her favour and Rs.50 per month for her minor son. The Judicial Magistrate held that appellant No. t and respondent lived together in the same house as husband and wife for a considerable period, and appellant No. 2 was born out of this union. He did not record a categorical finding as to whether the respondent was already married and his wife or wives were alive on the date of his marriage with appellant No. t. A revision application was filed by the appellant for enhancement of the rate of maintenance. The respondent also moved the Sessions Judge in revision. The Sessions Judge reversed the findings of the judicial Magistrate. The appellant challenged the order by way of a revision application before the Bombay High Court which rejected the same holding that since it was the second revision application, it was not maintainable, being barred by the provisions of section 397(3) Cr. The High Court also examined the merits of the case and concurred with the view of the Sessions Judge. This appeal is by Special Leave. 788 Allowing the appeal, this Court, ^ HELD: t. The plea that respondent could not have lawfully married a third time in view of the provisions of the was rejected by the Judicial Magistrate by saying that even according to the respondent, his second marriage was null and void as his first wife was then alive. As regards the first marriage he held that it was not as a fact proved. He got rid of the effect of both the marriages by adopting a queer logic. If the story of the first marriage was to be rejected, the second marriage could not have been held to be void on that ground. It appears that the respondent has satisfactorily provide his case about his earlier marriage by production of good evidence. Either the respondent 's first marriage was subsisting so as to nullify his second marriage, in which case the appellant 's marriage also was rendered null and void on that ground; or if the respondent 's case of his first marriage is disbelieved the second marriage will have to be held to be legal and effective so as to lead to the same conclusion of the appellant 's marriage being void. On either hypothesis the appellant 's claim is not covered by Section 125 Cr. The appellant cannot, therefore, be granted any relief in the present proceedings. [791D H; 792A B] Smt. Yamunabhai v Anantrao Shivram Adhav and another; , followed. Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and that appellant No. 2 was their child. If, as a matter of fact, a marriage, although ineffective in the eye of law, took place between the appellant and the respondent, the status of the boy must be held to be that of a legitimate son on account of Section 16(1) of the . Even if the factum of marriage of his mother is ignored, he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of clauses (b) and (c) of Section 125(t) Cr. P.C. specifically referring to an illegitimate child. The order of the Judicial Magistrate allowing the maintenance to appellant No. 2 was correctly passed. But the amount of Rs.50 per month was allowed as the maintenance of the child four years back. In view of the fact that money value has gone down due to inflation and the child has grown in age, the rate of maintenance is increased to Rs.150.[791B C: 793B] 3. Since the claim for maintenance was granted in favour of the 789 appellant, by the Judicial Magistrate, there was no question of her challenging the same. Her challenge before the Sessions Judge was confined to that part of the order assessing the amount of maintenance. and this issue could not have been raised again by her. Subject to this limitation, she was certainly entitled to invoke the revisional jurisdiction of the High Court. The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court. She could not, therefore, be said to be making a second attempt when she challenged the order before the High Court. The fact that she had moved the Sessions Court against the quantum of maintenance could not be used against her in respect of her right of revision against the Sessions Judge 's order. [790F H;791A] 4. No error of law appears to have been discovered in the judgment of the Magistrate and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate. [792C] Pathumma vs Mohammad, ; , followed.

: Criminal Appeal No. 98 of 1987. From the Judgment and Order dated 9.10.1986 of the Punjab and Haryana High Court in Crl. A. No. 437 of 1986. A.N. Mulla and S.K. Sabharwal for the Appellants. M.R. Sharma, R.S. Suri, H.S. Phoolta, Meera Agarwal and R.C. Mishra for the Respondent. 846 The Judgment of the Court was delivered by OZA, J. This is an appeal on grant of special leave against the judgment of the High Court of Punjab and Haryana in Criminal Appeal No. 437/86 and Reference No. 4/86 wherein the learned Judgess of the High Court maintained the conviction and sentence passed against the appellants by the learned Additional Sessions Judge, Faridkot. The conviction and sentences passed against the appellants are: CHARGES & SENTENCES: Darshan Singh u/s 302 IPC (for Sentenced to death and to the murder of pay a fine of Rs.200/ or Mukand Singh in default R.I. for three months. Pala Singh, u/ss 302/34 IPC Sentenced to undergo Buggar Singh (for the murder) imprisonment for life and alias Bagga (of Mukand Singh) to pay a fine of Rs.200/ Singh and or in default R.I. for Roop Singh three months each. Darshan Singh u/s 302 IPC Sentenced to death and to (for the murder) pay a fine of Rs.200/ or of Harbans Kaur) in default to undergo R.I. for three months. Pala Singh, u/ss 302/34 IPC Sentenced to undergo Buggar Singh (for the murder) imprisonment for life alias Bagga of Harbans Kaur) and to pay a fine of Singh and Rs.200/ or in default Roop Singh R.I. for three months each Buggar Singh u/s 302 IPC Sentenced to death and to Bagga Singh (for the murder) pay a fine of Rs.200/ or of Pritam Kaur) in default to undergo for R.I. three months. Darshan Singh, u/ss 302/34 IPC Sentenced to undergo Pala Singh and (for the murder) imprisonment for life and Roop Singh of Pritam Kaur) to pay a fine of Rs.200/ or in default to undergo R.I. for three months each. 847 Accused Pala Singh and Roop Singh are also convicted as mentioned above but they have not come up before this Court. This appeal has been filed by Darshan Singh and Buggar Singh @ Bagga Singh, therefore we are concerned with their cases only. The prosecution case at the trial was that on 24th June, 1985 at about 7.30 p.m. Dalip Singh, brother of Pritam Kaur, and his son Sarbjit Singh were present outside the house of Mukand Singh alongwith Gurnam Singh son of Babu Singh. Mukand Singh was returning to his house. At that time, Darshan Singh and Roop Singh accused armed with a Gandasa each, Pala Singh and Buggar Singh accused armed with Kapa each came on a tractor from the village side. They stopped the tractor near Mukand Singh. All the four accused got down from the tractor. Pala Singh and Roop Singh accused caught hold of Mukand Singh deceased and threw him on the ground. A blow on the neck of Mukand Singh was inflicted by Darshan Singh as a result of which the neck was chopped off except that it remained suspended with the body by skin. Then Harbans Kaur, the daughter of Mukand Singh came out of the house and she was given three gandasa blows on her head by Darshan Singh. It is thereafter that Pritam Kaur, the wife of Mukand Singh came out of the house and Bugger Singh gave kapa blows on her person. As a result, all the three victims died on the spot. Dalip Singh, Sarbjit Singh and Gurnam Singh who had witnessed the incident raised an alarm and also threw brick bats towards the assailants. Thereupon all the appellants made good their escape. It is significant that Mukand Singh had only one daughter Harbans Kaur and had no male issue. The appellant Darshan Singh is the son of Pala Singh whereas Bugger Singh is said to be an agricultural labourer working with Pala Singh and Roop Singh also belonging to the group of appellant. It is alleged by the prosecution that the two brothers had inherited some land from their father and there were disputes about it. Apparently, Pala Singh and Darshan Singh by eradicating the family of his brother Mukand Singh removed one of the successors claiming half share in the property. It was also alleged that as Mukand Singh had no male issue and Harbans Kaur was of marriageable age, it appears from evidence that negotiations for marriage were in the offing, Pala Singh apprehended the entrance of some stranger in the family as son in law of Mukand Singh to succeed to the property falling in the share of Mukand Singh. 848 Dalip Singh accompained with Gurnam Singh son of Babu Singh went immediately to the Police Station, Baghapurana and lodged the First Information Report exhibit PH which was recorded by Inspector Darshan Singh. This report was recorded at 8.30 p.m. and it was alleged that the incident had taken place sometimes in the evening about 7.30 p.m. Inspector Darshan Singh went on the spot, prepared the visual plan. He also held inquest of the three dead bodies of Mukand Singh, Harbans Kaur and Pritam Kaur respectively and sent the dead bodies for autopsy. He also took blood stained earth from the place where the bodies were found and recovered 20 brick bats from the spot. The accused persons were searched and it is alleged that they were not traceable. They, however, were arrested subsequently on 27th June, 1985 and 1st July, 1985. After arrest, the Investigation officer interrogated Darshan Singh accused in the presence of Gurnam Singh son of Kartar Singh and Kalkiat Singh PW and he disclosed in his statement giving information where the gandasa is and on his information from the specified place, the gandasa was recovered. After investigaton, a charge sheet was filed and on trial the appellants have been convicted and sentenced as mentioned above. As it involved a sentence of death to the two appellants, apart from the appeal preferred by the appellants there was also a reference to the High Court and by the impugned judgment the High Court dismissed the appeal filed by the appellants and confirmed the sentence of death awarded by the learned trial court and it is against this judgment that the present appeal by Darshan Singh and Bugger Singh is before us. Learned counsel appearing for the appellants mainly contended that the motive alleged that the appellants did not like the idea of a stranger inheriting the property and coming into the family after the marriage of Harbans Kaur appears to be not a very plaussible reason. It was also contended that there is a will executed by Mukand Singh in favour of Sarbjit Singh son of Dalip Singh and therefore if the motive was to eliminate all possible successors to the half share of Mukand Singh the accused appellants would not have spared Sarbjit Singh. So far as this contention of the learned counsel is concerned when he referred to the relevant evidence it is discovered that this will was filed by Sarbjit Singh after this incident in some civil proceedings when he claimed to be brought on record in place of Mukand Singh on the basis of the will. This apparently could not indicate that this will in favour of Sarbjit Singh was in the knowledge of the appellants on the date of incident. Learned counsel could not point out to any other material to 849 suggest that this will was known to the appellants on the date of incident and therefore this contention raised by the learned counsel for the appellant is without any substance. Learned counsel also attempted to contend that Dalip Singh who is the brother of Pritam Kaur the wife of Mukand Singh has given an explanation for having come to the house of Mukand Singh but it does not appear to be justified. As according to the witness, he is the maternal uncle of Harbans Kaur and there was some negotiations about her marriage and for that purpose he alongwith his son had come to the house of Mukand Singh. It is apparent that a maternal uncle of the daughter (bride) is generally consulted when negotiations for marriage of the daughter are in progress and apart from it both the courts below had accepted the testimony of this witness which also is fully corroborated by the First Information Report lodged immediately after the incident. In fact, in this case as the report is lodged immediately the contention advanced by the learned counsel for the appellants is not that there is delay but it was seriously contended that if the incident has taken place at 7.30 p.m. as mentioned in the First Information Report the report could not have been lodged at 8.30 p.m. within one hour as in the First Information Report itself the distance of the police station from the scene of occurrence is recorded as 121/2 kilometres and on this basis an argument was raised by learned counsel for the appellants that the report appears to have been prepared later on and a false time has been mentioned in the report. Instances of this filed that no relevant evidence was brought on record and not a single question was put to any witness or to Dalip Singh who made the First Information Report that he had noted the time of incident after seeing the watch and this was recorded in the first information report as 7.30 p.m. It is also clear that there is nothing in his evidence to indicate that he and Gurnam Singh who went to the police station walked on foot and covered a distance of 121/2 kilometres because it is not in their testimony as to whether they went through the normal route or they went across the fields by short cut nor there is anything in the evidence that they did not take a lift in any vehicles. Learned counsel when confronted with this situation contended that the burden lay on the prosecution but it could not be disputed that if this was the contention of the defence that the report could not have been recorded at 8.30 p.m. if the incident was at 7.30 p.m. question to establish this should have been put in corss examination. It is apparent that there is no material to indicate that the time of incident when noted was 7.30 p.m. it is precise time nor it is there in 850 evidence as to whether the persons who lodged the first information report walked through 12 1/2 kilometres. In abssence of any material the only thing that appears is that immediately after the incident the report is recorded and this report contains a clear description of the incident corroborating the testimony of the eye witnesses. The courts below therefore on consideration of the testimony of the eye witnesses accepted their version and convicted the appellants as mentioned above. Learned counsel could not from the evidence of the eye witnesses refer to any part of their evidence to indicate that the evidence is such on which reliance could not be placed except for the fact, according to the learned counsel, that there were disputes between the two parties i.e. the groups of the two brothers and all the prosecution witnesses apparently were belonging to the group of the deceased. It was also contended that in the locality independent witnesses could be available but they have not been examined. The Courts below have considered this aspect of the matter. It appears from the evidence that the nearby area was not so inhabitated and by that time in the evening no one else was available. Those who were present have been examined and in this view of the matter the contention that independent witnesses were not examined is of no consequence. It is also significant that the testimony of the eye witnesses has been fully corroborated by the medical evidence and the injuries on the particular parts of the body of the three deceased persons. In this view of the matter therefore learned counsel for the appellants mainly emphasised on the aspect of motive and the first information report. It was also contended that appellant Bugger Singh had submitted an application somtimes before this incident in which he had made allegations against the police officers of the police station and in view of that the police officers must have been prejudiced against him. The application for contempt against the police moved by Bugger Singh was also relied upon in support of the contention. We do not find any substance in this contention too. In the complaint made, it is apparent that none of the police officers in charge of the investigations of the present case has been referred to therein. It was however, contended that the brotherhood of the uniform created a prejudice against the appellant Buggar Singh, and it is why he has been falsely implicated. This appears to be too tall a proposition. There is no material to indicate that there was any prejudice in the mind of the investigating officer. The report of the incident was lodged immediately and in the 851 report the part played by the accused has been clearly stated. Under these circumstances, therefore, merely because Buggar Singh chose to make some application and also mentioned the names of some police officers in it, it could not be held that all police officers will be interested in falsely implicating this appellant in a murder case. There is no other material on the basis of which it could be contended that there was any prejudice against him. The evidence of the eye witnesses have been considered by both the courts in detail and especially the Sessions Court before whom the witnesses were examined accepted their testimony and we have no reason to discard their testimony. The names of the eye witnesses have been mentioned in the first information report, which was lodged immediately after the incident and the statements of eye witnesses have been fully corroborated by medical evidence. No doubt could therefore be raised about the reliability of such evidence. Learned counsel realising the situation ultimately contended that so far as Darshan Singh is concerned he could not make submissions about the sentence as he has done away with first Mukand Singh his uncle and then Harbans Kaur, Mukand Singh ' daughter i.e. her own cousin. But he contended that so far as Buggar Singh is concerned he is a stranger and he is not in any way connected with the family and so there could be no motive attributed to him. Pala Singh and Darshan Singh may have the interest of getting the property falling into the share of Mukand Singh but Buggar Singh has no such motive and therefore the sentence of death awarded to him does not appear to be justified. The learned counsel appearing for the respondent State contended that the courts below have considered the question of sentence in a reasonable manner and those who are personally responsible for killing in such a brutal manner three persons one after another, have been sentenced to death and those who have been convicted with the aid of Section 34 have been treated leniently and sentence of life imprisonment alone is awarded. In the light of the discussions above therefore so far as merits are concerned, there is no substance in the contention advanced by learned counsel for the appellants. The conviction of the appellants could not be assailed on any ground. The only question that remains to be considered is the question of sentence. Learned counsel referred to the decision of this Court in Dalbir Singh & Ors. vs State of Punjab, 852 ; wherein the plausible reasons which may weigh with a court while awarding a sentence of death have been enunciated. So far as the present case is concerned we must consider the facts of the case. It is clear and not disputed also that father of Mukand Singh and Pala Singh left behind some agricultural land. It is not in dispute that the two brothers Pala Singh and Mukand Singh were the only heirs entitled to the share in the property of their father. It is also not disputed that so far as Mukand Singh is concerned he had only one daughter Harbans Kaur and had no male issue. It is also disputed that the property disputes have been going on. There have been cases and complaints against each other. It appears that Pala Singh and his son Darshan Singh were keen to grab that property and it is in pursuit of this motive that they attacked Mukand Singh and his family and killed all the members of the family, Mukand Singh, his wife Pritam Kaur and his only daughter Harbans Kaur and thereby eliminated everyone who could claim any share in the property. The attack was brutal. The medical evidence indicates that Mukand Singh 's neck was chopped off, repeated blows by Gandasa were inflicted on the body of Harbans Kaur. Therefore it is clear that Darshan Singh first chopped off the neck of Mukand Singh and even after doing this he inflicted number of blows on Harbans Kaur a young girl, his own Uncle 's daughter and the repeated blows go to show that he inflicted injuries with determination that she may not escape. In this view of the matter and the manner in which brutally these two were done to death, we see no reason to alter the sentence awarded to Darshan Singh. So far as Buggar Singh is concerned it is no doubt true that he inflicted three blows on Pritam Kaur by Kapa which he was carrying. So far as infliction of injuries are concerned it could be described as nothing but cruel but it is true that he had no motive. He appears to have been dragged into the killing. In our opinion, so far as he is concerned both the courts below were not right in awarding sentence of death. Consequently the appeal is partly allowed. The conviction of all the appellants is maintained. The sentences of all the appellants except Buggar Singh are maintained and so far as Buggar Singh is concerned, sentence of death awarded to him is altered to a sentence of imprisonment for life. G.N. Appeal allowed.

% Appellants Nos. 1 and 2 along with two other accused were convicted for the murder of the first Appellant 's paternal uncle, his wife and daughter. First the brother, and then his daughter and wife were done to death with gandassa and kapa blows just outside their house. The motive alleged was that the first appellant 's father and his deceased brother had inherited some land from their father and there were disputes about it, and by eliminating the family, one of the successors entitled to half share in the property had been removed. It was also alleged that the deceased man had no male issue and had only one daughter for whom negotiations for marriage were in the offing and appellant No. 1 and his father apprehended the entry of a stranger in the family as the son in law to succeed to the property falling to the share of the deceased man. The Trial Court convicted the appellants and sentenced them to death, while the other two accused were sentenced to life imprisonment. Against the conviction and sentence, an appeal was filed. There was also a reference to the High Court, as death sentence was involved in respect of the two appellants. The High Court dismissed the appeal and confirmed the death sentence. The appeal before this Court is filed by the two appellants who have been sentenced to death. The motive alleged has been disputed on behalf of the appellants, as a will had been executed by the deceased man in favour of the son of his wife 's brother, and that if at all there was a motive he should have also been eliminated. 844 It was also contended that in the locality independent witnesses could be available and they have not been examined. Another submission was that one of the witnesses had complained against the Police Officer and so the Police Officers were prejudiced against him. The time at which the FIR had been registered has also been questioned. In the absence of motive on the part of the second appellant, it was contended, that the death sentence awarded to him is not justified. Allowing the appeal partly, this Court, ^ HELD: 1. The will was filed after the murders, in some civil proceedings when the legatee claimed to be brought on record in place of the deceased man. This apparently could not indicate that this will was in the knowledge of the appellants on the date of incident. Therefore the motive cannot be doubted. [848G H] 2. One of the witnesses is the maternal uncle of the deceased girl and there were some negotiations for her marriage and for that purpose he along with his son had come to the house of the deceased. It is apparent that a maternal uncle is generally consulted when negotiations for marriage of a girl are in progress and apart from it both the courts below had accepted the testimony of this witness which is fully corroborated by the First Information Report lodged immediately after the incident. It appears from the evidence that the nearby area was not so inhabitated and by that time in the evening no one else was available. Those who were present have been examined and in this view of the matter the contention that independent witnesses were not examined is of no consequence. The names of the eye witnesses have been mentioned in the First Information Report, which was lodged immediately after the incident and the statements of eye witnesses have been fully corroborated by medical evidence. No doubt could therefore be raised about the reliability of such evidence. [849B C; 851C] 3. No relevant evidence was brought on record and not a single question was put to any witness or to the person who made the First Information Report as to whether he had noted the correct time of the incident. There is no material on record to show as to whether the persons who lodged the First Information Report, walked through 12 1/2 kilometres or took a lift in any vehicle. In the absence of any material, the only thing that appears is that immediately after the incident the report was recorded and this report contains a clear description of the incident corroborating the testimony of the eye witnesses. [849F; 850A B] 845 4. Merely because the second appellant chose to make some application and also mentioned the names of some police officers in it, it could not be said that all police officers would be interested in falsely implicating him in a murder case. In the complaint made by appellant No. 2, none of the police officers in charge of the investigation of the present case has been referred to therein. It was, however, contended that the brotherhood of the uniform created a prejudice against the second appellant and that is why he has been falsely implicated. This appears to be too tall a proposition. There is no material to indicate that there was any prejudice in the mind of the investigating officer. The report of the incident was lodged immediately and in the report the part played by the accused has been clearly stated. [851A B; 850G H] 5.1 It appears that first appellant and his father were keen to grab the property and it is in pursuit of this motive that they committed the triple murder. The attack was brutal. The medical evidence indicates that the deceased man 's neck was chopped off and repeated blows by Gandasa were inflicted on the body of his daughter. Therefore, it is clear that the first appellant first chopped off the neck of his uncle and even after doing this he inflicted number of blows on the young girl, who was his own uncle 's daughter, and the repeated blows go to show that he inflicted the injuries with determination that she may not escape. In this view of the matter and the brutal manner in which these two were done to death, there is no reason to alter the sentence awarded to the first appellant. [852C E] 5.2 So far as the second appellant is concerned he is a stranger and he is not in any way connected with the family and so there could be no motive attributed to him. He appears to have been dragged into the killing. Therefore, the sentence of death awarded to the second appellant is altered to a sentence of imprisonment for life. [852E F]

Civil Appeal No. 1115 of 1979. 856 From the Judgment and Order dated 26.10.1978 of the Jammu & Kashmir High Court in W.P.No.41 of 1978. A.K. Sen, Harish Salve, K.J. John and C.S.S. Rao for the Appellants. Altaf Ahmed, Advocate General and S.K. Bhattacharya for the Respondents. The Judgment of the Court was delivered by RAY, J. This is an appeal by special leave against the judgment and order passed in Writ Petition No. 41 of 1978 dismissing the writ petition and upholding the order of the District Judge, Srinagar dated 26th July, 1978 as well as the order of the Estate Officer dated 20th March, 1978. The petitioners purchased the premises in dispute which were originally leased out to Dewan Bishen Dass, exhibit Prime Minister of the Jammu and Kashmir, from his successor in interest Purnesh Chandra and others by two sale deeds dated 12.7.1967 and 8.12.1967. Dewan Bishen Dass who took lease of the said property was in possession of the same for more than 75 years. The suit property consists of residential houses, buildings, shed and open lands. The appellants purchased the land under Khasra Nos. 885(min) 890 and 891 measuring about 10 Kanals. In 1957 the respondents State Government tried to resume the lands for setting up a Tonga and Lorry stand; but thereafter no action was taken in this regard. In 1961 another order was made by which the land in question was sought to be resumed under the previous order and the said land was sought to be transferred to the Roads and Building Department. Under this order compensation was fixed at Rs.1,39,260 in respect of building and structures standing on the said lands; however no compensation was paid nor any action was taken subsequently in this regard. In 1963 another Government order was issued under sec. 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 seeking to resume the land for purpose of the development of the city. An appeal preferred by the lessee was rejected. But no further action was taken thereafter. On 5th of June 1968 an order of eviction under the provisions of Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 was issued seeking to evict the petitioners as being unauthorised occupants. On January 11, 1978 a large number of police personnel and municipal employees came upon the land and 857 demolished the buildings of the petitioners on the said land. The Administrator took illegal possession of the suit property whereon the appellants filed a writ petition before the High Court of Jammu and Kashmir praying for a writ or direction prohibiting the Administrator of the Municipality from interfering with the physical possession of the Petitioners and directing him to forbear from taking possession of the property without the authority of law. The High Court by judgment and order of 19th of July 1979 allowed the writ petition and directed the respondents to restore possession of the premises immediately to the petitioners. By allowing the writ petition High Court held: (1) Section 6 of the Land Grants Act, shows that the provisions of the Act would apply to the lease created after the passing of the Act. (2) Possession of the Lessees can be taken only on payment of compensation. Since no compensation was paid, the lessee is validly in possession and cannot be evicted. (3) Petitioners not being unauthorised occupants the Act is not applicable and therefore any notice under section 4 or 5.5 of the Act is without jurisdiction. (4) Section 5 of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act is ultra vires Article 14 of the Constitution since discretion is on State Officer to evict one occupant and refuse to evict another. Amendment of 1962 does not revive section 5 of the 1959 Act. (5) Action of the State was held malafide. Against the said judgment and order the respondents filed appeals before this Court being Civil Appeal Nos. 144 147 of 1979. On August 8, 1972 this Court dismissed those appeals and confirmed the judgment and order made by the High Court holding that as the Administrator of the Municipality had not complied with the provisions of sections 238 and 239 of the Municipal Act the action taken by the Municipality in the matter of demolition must be held to be entirely illegal and contrary to law. It was further held "that the conclusions and observations of the High Court on all the points which have not 858 been decided by us become unnecessary in the view we have taken with regard to the illegality and invalidity of the demolition carried out pursuant to the notices issued under section 129 of the Municipal Act . " This decision was reported in State of Jammu and Kashmir & Ors. vs Haji Wali Mohammed and Ors.v. ; Thereafter the Estate Officer issued a notice under section 4(1) of the Amended Jammu and Kashmir Public Premises (Unauthorised Occupants) Act intimating the appellants that they were in unauthorised occupation of the public premises mentioned in the schedule below by encroaching upon Government land measuring 10 Kanals 8 Marlas and 208 fts. comprising Khasra No. 890 situated at Bagh Magermal, Srinagar, and calling upon the appellants to show cause why the order of eviction should not be made. The appellants filed an objection to the said notice stating inter alia that they are not in unauthorised occupation of the said land nor they have encroached upon the same. The notice is wholly misconceived and it is illegal. The land in question in fact was taken lease of by late Dewan Bishen Dass who has been in continuance possession of the same for about 75 years and thereafter the appellants purchased the said land in 1967 from the legal heirs of the lessee Dewan Bishen Dass. The appellants made various improvements on the land and built houses thereon at a cost of about Rs.50,000. The appellants are not unauthorised occupiers but are fulfledged owners of the said land. These facts are wholly confirmed by the judgment of the High Court of Jammu and Kashmir while accepting the Writ Petition of the appellants. The appellants had stepped into the shoes of the original owner who was lawfully inducted in the lawful possession of the land as lessee. It has been stated that the Estate Officer cannot declare the person in possession as unauthorised occupants after lapse of more than 80 years. Their objection however was rejected by the Estate Officer and the appellants were directed to hand over possession of the premises including structures to the Administrator of the Municipality within 14 days. Against the said order the appellants preferred an appeal before the District Judge, Srinagar. The appellants also challenged the said order by a writ petition before the High Court of Jammu and Kashmir and this was registered as writ petition No. 49 of 1978. The appeal was however dismissed and the order of the Estate Officer was confirmed holding inter alia that the appellants purchased the land from the legal heirs of Dewan Bishen Dass who was the lessee of the land, that all the sale deeds were executed without obtaining requisite prior permission from the Government and as such the Sub Registrar was not em 859 powered to accept those documents for registration under proviso to section 4 of the Jammu and Kashmir Lands Grants Act, 1960, that the lease shall be deemed to have been determined because of contravention of the provisions of section 12(A) of the Jammu and Kashmir Lands Grants Act, 1960, that the possession of the appellant was not regular and as such they were in authorised occupation, within the meaning of the said Act, that the Government had a right to re enter on the land and the notice in question was rightly issued against the appellants directing them to vacate the land. The writ petition was amended and this judgment was also challenged. The writ petition was, however, dismissed by the High Court by Order dated 26th October, 1978 holding that the land being transferred by the legal heirs of the Dewan Bishen Dass without obtaining previous permission of the Government or by the competent authority in that behalf the lease stood determined and the impugned notice under the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 was quite in accordance with law. Against this judgment and order the instant appeal on special leave has been filed by the appellants. It has been urged on behalf of the appellants that the lands taken lease of by Dewan Bishen Dass who was the exhibit Prime Minister of the State cannot be deemed to have been taken under the provisions of Ailan No. 10 dated 7 Bhadon 1976 and as such Section 12(A) and Section 6 of the Land Grants Act 1960 are not applicable. The lease cannot be determined on the ground that the transfer was made in favour of the appellants by the legal heirs of the original lessee without previous permission in writing from the Government or any competent authority. It has been submitted in this connection that the provisions of the said ailan refers to the lease of land to a "Wasidar", but as the lease was granted free of rent it does not come under the said ailan as the said ailan provides for payment of ground rent for the land used. Under rule 6 of the said ailan the land belongs to the Government and permission is granted for building purposes only in respect of an area of land not exceeding 3 acres. In the present case the lease granted in favour of Dewan Bishen Dass is in respect of 20 Kanals of land free of rent whereas under the proviso of the said rule no lease could be granted for a period exceeding 40 years. It has also been submitted that even if for argument 's sake without admitting it is accepted that the appellant 's predecessor in interest was a Wasidar and lease was granted under the aforesaid Ailan No. 10 yet the lands could not be acquired without providing for adequate compensation to be paid to the Wasidar for the buildings and appurte 860 nances and other improvements effected by him on the land and the amount of compensation shall have to be determined by the State Engineer. No compensation was either awarded in respect of valuable buildings, structures and other improvements made by the appellant on the land nor any valuation has been made of the buildings and structures existing on the land as well as all the improvements made in respect of such land. It was, therefore, submitted that the impugned notice under section 4(1) of the said Act was liable to be cancelled and quashed being not in accordance with law. The learned counsel appearing on behalf of the State has on the other hand submitted that the petitioner 's predecessor, that is, the original lessee was a Wasidar and the lease was granted under Ailan No. 10 dated 7 Bhadon 1976. It was also contended that section 12(A) of the Jammu and Kashmir Lands Grants Act is applicable to this case. The transfer of the land by sale in favour of the appellants have been made by the legal heirs of the original lessee Dewan Bishen Dass without the prior permission of the Government or any authority empowered in that behalf. The lease stood determined from the date of the transfer and the Government has the right of re entry on the land in accordance with the provision 6 of the said Act. The appellants are unauthorised occupants and as such notice under section 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act 1959 is not illegal but is in accordance with the provisions of the said Act. After considering the submissions advanced by learned counsels for the parties we are constrained to hold that Dewan Bishen Dass predecessor of the appellants was a Wasidar and the lands in question were wasidari land leased out to him for the purpose of constructing buildings. This lease is governed by Ailan No. 10 as well as by the Lands Grants Act 1960. We affirm the findings of the High Court which held the land as Wasidari land. The land was transferred by Purnesh Chandra and others, legal representatives of the original lessee Dewan Bishen Dass, in favour of the appellants in contravention of the provisions of section 12(A) of the Jammu and Kashmir Land Grants Act, 1960. The impugned notice under section 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act is in accordance with law and as such it is valid. Under the said Act as well as the rule the appellants are entitled to get compensation of the buildings and structures as well as of the improvements made on the land even though they are not entitled to get compensation in respect of value of the land. The compensation in the 861 instant case has not been determined nor the same has been paid. We, therefore, allow the appeal and set aside the judgment and order of the High Court and remit the matter to the District Judge, Srinagar who will either himself or by any Additional District Judge allotted by him hear the parties and determine the market value of the buildings, structures and all other improvements effected on the land in question after hearing the parties and also considering the papers that will be filed in Court and to make an award accordingly. Since the matter is pending for a long time the District Judge or Additional District Judge allotted by him will expedite the determination of the compensation as directed hereinbefore. The order of Stay granted by this Court will continue till the compensation is determined and paid to the appellants. In the facts and circumstances of the case there will be no order as to costs. N.V.K. Appeal allowed.

% The suit premises consisting of lands and buildings were originally owned by Dewan Bishen Dass a former Prime Minister of the State of Jammu and Kashmir. The appellants purchased the same from his successor in interest, Purnish Chandra by two sale deeds dated 12.7.1967 and 8.12.1967. The State Government tried to resume the land for setting up a tonga and lorry stand, and for the purpose of development of the city, and eviction of the appellants was ordered by the Estate Officer under the provision of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 on January 5, 1968. The Municipality took forcible possession of the land and demolished the buildings thereon on January 11, 1968. The appellants filed a Writ Petition in the High Court assailing the action of the Municipality. The High Court on 19.7.1969 allowed the writ petition and held that the appellants were not unauthorised occupants, possession can be taken only on payment of compensation and that Section 5 of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act was ultra vires. The State appealed to this Court and the judgment of the High Court was confirmed on the sole ground that as the Administrator of the Municipality had not complied with the provisions of section 238 and 239 of the Municipal Act the action taken by the Municipality in the matter of demolishing must be held to be entirely illegal and contrary to law, [State of Jammu and Kashmir vs 854 Haji Wali Mohammad & Ors., ; The Estate Officer thereafter issued a fresh notice under section 4(1) of the amended Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 intimating that the appellants were in unauthorised occupation of the public premises mentioned in the Schedule to the notice. The appellants filed objections stating that they were not in unauthorised occupation of the said land nor have they encroached upon the same, and that the notice was wholly misconceived and illegal. It was further contended that the land was purchased by the appellants from the legal heirs of Dewan Bishen Dass, that they had been in continuous possession, made various improvements on the land and built houses, and that the Estate Officer could not declare the person in possession as an unauthorised occupants after lapse of more than 80 years. The Estate Officer rejected the objections and directed the appellants to handover possession of the premises including structures to the Administrator of the Minicipality. The appellants preferred an appeal to the District Judge but the same was dismissed. The order of the Estate Officer was also challenged in a writ petition by the appellants, but the same was dismissed by the High Court holding that the land being transferred by the legal heirs of Dewan Bishen Dass without obtaining prior permission of the Government or the competent authority in that behalf, the lease stood determined and that the notice under the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 was in accordance with law. In the appeal to this Court by Special Leave it was contended on behalf of the appellants: that the lands taken on lease by Dewan Bishen Dass cannot be deemed to have been taken under the provisions of Ailan No. 10 dated 7 Bhadon 1976 and as such section 12(A) and section 6 of the Land Grants Act 1960 are not applicable, that the lands could not be acquired without providing for adequate compensation to be paid to the Wasidar for the buildings, appurtenances and other improvements effected by him, that no compensation in fact was awarded and that the notice under section 4 of the Act was liable to be cancelled and quashed as being not in accordance with law. 855 The appeal was resisted by the State respondents, contending: that the appellants predecessor that is the original lessee was a Wasidar and that the lease was granted under Ailan No. 10 dated 7 Bhadon 1976, that section 12 A of the Jammu and Kashmir Lands Grants Act is applicable, that the transfer of the land had been made by the legal heirs of the original lessee Dewan Bishen Dass without the prior permission of the Government or any authority in that behalf, that the lease stood determined from the date of the transfer, the Government had the right of re entry on the land in accordance with the provisions of section 6 of the Land Grants Act, that the appellants are unauthorised occupants and consequently the notice under section 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act, 1959 is not illegal but is in accordance with the provisions of the said Act. Allowing the Appeal, ^ HELD: 1. Dewan Bishen Dass predecessor of the appellants was a Wasidar and the lands were wasidari lands leased out to him for the purpose of constructing buildings. This lease was governed by Ailan No. 10 as well as by the Lands Grants Act, 1960. [860F] 2. The land was transferred by Purnish Chandra and others, legal representatives of the original lessee Dewan Bishen Dass, in favour of the appellants in contravention of the provisions of Section 12(A) of the Jammu and Kashmir Land Grants Act, 1960. [860G] 3. The notice under section 4(1) of the Jammu and Kashmir (Public Premises Eviction of Unauthorised Occupants) Act is in accordance with law and as such it is valid. Under the Act as well as the rule the appellants are entitled to get compensation for the buildings and structures as well as of the improvements made on the land even though they are not entitled to get compensation in respect of the value of the land. [860G H] 4. The compensation in the instant case, has not been determined nor the same has been paid. Appeal allowed. Judgment and Order of High Court, set aside. Matter remitted to the District Judge, who would expedite the determination of the compensation after determining the market value of the buildings, structures and all the improvements effected on the land. [861A B]

S.L.P. (CIVIL) No. 14968 of 1987. From the Judgment and Order dated 2.11.1987 of the High Court of Allahabad in Civil Misc. Petition No.492 of 1987. S.N. Kacker and Pramod Swarup for the Petitioner. Soli J. Sorabjee and R.B. Mehrotra for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This petition under Article 136 of the Constitution for leave to appeal is against the decision of the High Court of Allahabad dated 2nd of November, 1987. The question involved here is regarding the levy and realisation of octroi duty by the Nagar Mahapalika, Bareilly in Uttar Pradesh. Kasturi Lal Satantra Kumar and his partner, respondents herein, by a bid in the auction held for retail vend of country liquor for excise year 1987 88 ending on March 31, 1988 obtained the necessary licence under the U.P. Excise Act for a group of shops known as Faridpur Group in the district of Bareilly. The auction was held in the month of March, 1987. One of the conditions of the auction which also formed part of the licence, was that the licensee would obtain supply of country liquor for retail vend from the bonded warehouse in respect of Bareilly district situated within the limits of Nagar Mahapalika Bareilly. Indubitably the said Kasturi petitioner in the original writ petition brought into the territory country spirit, the question was at what rate the municipality was to impose octroi duty on the rectified spirit which was brought. It appears that there was a notification dated 30th of April, 1986, published in the U.P. Gazette in exercise of powers under section 172(2)(b) of the U.P. Nagar Mahapalika Adhiniyam, 1959. In the Schedule forming part of that notification are mentioned the articles on which the octroi duty is payable and the rates thereof. The articles have been grouped together in different classes from Class I to Class X. Class III which bears the heading "Articles of lighting, Fuel, Washing and Lubricants" contains the following entry as item No. 7: "7. Methelated denatured and rectified spirit . .Rs.0.05 per litre" 868 Class VI with the heading "Tobacco and other intoxicating goods" contains the following entry at item No. 6: "6. Foreign imported liquor and all kinds of wines made in India. . .Re.1 per litre" It is asserted on behalf of the respondents that the point of entry within the Nagar Mahapalika limits, the plain spirit is nothing but rectified spirit and that octroi duty could not be charged upon it in excess of Rs.0.05 per litre under Item No. 7 of Class III of the aforesaid Gazette Notification. The Municipality contends otherwise that it is foreign imported liquor of all kinds of wines made in India. The base for this contention is that for foreign liquor or wine rectified spirit is used. Reliance was placed on a decision of this Court in the State of U.P. and others vs Synthetics and Chemical Ltd. etc. , A.I.R. 1980 S.C. 614, where this Court observed that the term 'liquor ' in the various Abkari Acts in the provinces of India would not only cover those alcoholic liquids which are generally used for beverage purposes and produce intoxication but also all liquids containing alcohol. It is, therefore, submitted that the payment of octroi duty could not be avoided by the respondents saying that the plain country spirit was not liquor in the sense that it was not fit for human consumption at the stage when it was brought within the limits of the Nagar Mahapalika. The normal meaning of the expression "foreign imported liquor or all kinds of wine made in India" would not fit in the description of the rectified spirit. Ordinary people would not consider rectified spirit to be foreign imported liquor or all kinds of wines made in India. That is not the natural meaning as understood by common people. That is the yardstick by which this should be judged. The dictionary meaning also corresponds to the same view. "Wine" according to Collins Dictionary of the English language means an alcoholic drink produced by the fermenting of grapes with water and sugar and an alcoholic drink produced in this way from other fruits, flowers etc. By any common notion it could not be considered that the respondents having regard to the nature of the goods, brought into the territory liquor or wine. The High Court has come to that conclusion after taking into consideration the ordinary notion. While giving a meaning to an item contained in the Schedule of articles, the Court should normally give it a meaning intended by the framers of the Schedule by looking at the various articles mentioned in a particular 869 group. All the items in one group should be considered in a generic sense. It appears that Class III of the Schedule in the instant case was intended to deal with the subjects of Methelated denatured and rectified spirit which was brought within the limits of the Nagar Mahapalika for use as articles for lighting, fuel, washing and lubricants at the low rate of Rs.0.05 per litre while liquor brought within its limits for use as an article of intoxication was intended to be subjected to levy of octroi duty at the higher rate of Re.1 per litre. Class VI contains the following items: "Class VI Tobacco and other intoxicating goods: 1. Field dried tobacco, its chura and roots ordinary tobacco for eating and Hugga. 2. Scented tobacco for eating and smoking, Qimam, Surti, Sugni. 3. Leaves of bidi. Bidi tobacco, finished bidi, prepared khamira tobacco. Cigarette cigar, foreign type manufactured tobacco which is smoked through cigarette and pipe, cigarette paper, pipe and other such articles 6. Foreign imported liquor and all kinds of wines made in India. " The scheme is found in respect of the articles mentioned in the various other classes also. The High Court has noted Class I which deals with articles of food and drinks for men and animals. Item No. 1 of the said class mentions wheat and paddy; item No. 6 mentions chemical fodder meant for animals and birds; item No. 16 mentions ice made of water and item No. 17 mentions all cold drinks like Double Seven, Thumps up, Limca, Gold spot, etc. Likewise, in Class III, articles for lighting, fuel, washing and lubricants, one finds at item 1 fuel and wood etc. We must reiterate that we are concerned with a duty which is imposed at the time of entry and not how it is used thereafter. The 870 taxable event for the imposition of octroi is the entry and the nature and type of the goods at the point of entry is the relevant factor. We may note that this view was taken by the Rajasthan High Court in Heeralal and others vs State, A.I.R. Having regard to the nature of the duty and the type of the goods with which we are concerned, we are of the opinion that the rectified spirit is dutiable at the rate of Rs.0.05 per litre and not on the basis that it was foreign wine or liquor. In the premises, the view taken by the High Court is right. This petition therefore, fails and is accordingly dismissed. N.V.K. Petition dismissed.

% The Nagar Mahapalika, Bareilly petitioner imposed octroi duty on goods brought within its limits for 'consumption, use or sale therein ' through a Notification dated April 30, 1986 in exercise of powers under section 172(2)(b) of the U.P. Nagar Mahapalika Adhiniyam, 1959. In the Schedule forming part of this notification are mentioned the articles on which octroi duty is payable and the rates thereof. The articles have been grouped together in different classes from Class I to Class X. Class III which bears the Heading "Articles of lighting, fuel, washing and lubricants contains the entry Item No. 7 as "7. Methalated denatured and rectified spirit Rs.0.05 per litre. " Class VI with the heading "Tobacco and other intoxicating goods" contains the entry at Item No. 6: as "6. Foreign imported liquor and all kinds of wines made in India Re.1 per litre. " Kasturi Lal Satantra Kumar and his partner respondents 3 and 4 by a bid in the auction held for retail vend of country liquor for the excise year 1987 88 ending on March 31, 1988 obtained the necessary licence under the U.P. Excise Act for a group of shops in the district of Bareilly. One of the conditions of the auction which also formed part of the licence was that the licensee would obtain supply of country liquor for retail vend from the bonded warehouse in respect of Bareilly district. The Nagar Mahapalika sought to realise octroi duty on the 866 country spirit supplied by the bonded warehouse at the rate of Re.1 per litre treating it to be 'liquor fit for human consumption ' under Entry 6 of Class VI of the Notification. The respondents filed a writ petition for a direction to restrain the Nagar Mahapalika from collecting octroi at the rate of Re.1 per litre contending that country spirit is nothing but rectified spirit and that octroi duty could not be charged in excess of Rs.0.05 per litre under Item No. 7 of Class III of the Notification. The High Court allowed the writ petition and restrained the Nagar Mahapalika from requiring payment of octroi duty at Re.1 per litre upon the country spirit brought within its limit under Item No. 6 of Class VI of the Schedule to the Notification. Dismissing the SLP of the Nagar Mahapalika, this Court, ^ HELD: 1. The taxable event for the imposition of octroi is the entry, and the nature and type of the goods at the point of entry on the relevant factors. [870A] 2. The normal meaning of the expressions "foreign imported liquor or all kinds of wine made in India" would not fit in the description of the rectified spirit. Ordinary people would not consider rectified spirit to be 'foreign imported liquor or all kinds of wines made in India '. That is not the natural meaning as understood by common people. That is the yardstick by which this should be judged. The dictionary meaning also corresponds to the same view. [868E F] 3. While giving a meaning to an Item contained in the Schedule of articles, the Court should normally give it a meaning intended by the framers of the Schedule by looking at the various articles mentioned in a particular group. All the items in one group should be considered in a generic sense. [868H; 869A] In the instant case, having regard to the nature of the duty and the type of the goods, rectified spirit is dutiable at the rate of Rs.0.05 per litre and not on the basis that it was 'foreign wine or liquor. ' [870B] State of U.P. and others vs Synthetics and Chemical Ltd. etc. ; , , referred to. Heeralal and others vs State, A.I.R. , approved.

Civil Appeal No. 2206 of 1987. From the Judgment and order dated 4.2.1987 of the High Court of Punjab and Haryana in Civil Revisions No. 2371 of 1986. A.S. Sohal, R.K. Talwar and P.N. Puri for the Appellant. S.M. Sarin and R.C. Misra for the Respondent. The Judgment of the Court was delivered by RAY, J. This is an appeal by special leave against the judgment and order passed in Civil Revision No. 2371 of 1986 dismissing the revision petition and upholding the order of eviction of the tenant appellant from the house in question. The landlord, Kartar Singh filed an application in the court of Rent Controller, Kapurthala under Section 13 A of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, stating inter alia that Dr. D.N. Malhotra is a tenant in respect of his house No. 694 A within Kapurthala Municipality; that he was in arrears of rent since 22nd December, 1984; that the landlord retired from the service of Government of India, Ministry of Defence on 20th May, 1949 'and his service was thereafter transferred to the Ministry of Rehabilitation from where he was discharged on 30th November, 1965 on the abolition of the Ministry; that he had no other house within the Municipality and that he wanted the house in question to reside and prayed for ejectment of the tenant appellant. The tenant appellant on receiving the summons filed an affidavit seeking leave of the Court to contest the application stating inter alia that he was inducted as a tenant in the premises in question in the year 1968; that the petitioner had been letting out the premises in question 836 at different intervals to other tenants; that the present application filed by the petitioner landlord is mala fide and the defendant is entitled to the leave to contest the application on the ground that Section 13 A of the said Act does not entitle the petitioner to maintain the present petition. The Rent Controller granted leave to the tenant to contest R the petition on the following ground: Whether the petitioner is a specified landlord as defined in Section 2(hh) of the East Punjab Urban Rent Restriction (Amendment) Act, 1985. The petitioner landlord examined himself and he also filed a certificate issued to him by Regional Settlement Commissioner who was his appointing authority. This certificate was marked as Exhibit A 1 in the case. The tenant respondent examined himself and stated that the petitioner could not get the benefit of Section 13 A of the said Act as he was not the landlord of the said house either before or on the date of his retirement from service or the Union i.e. in 1965, the house being let out to him in 1968. The Rent Controller negatived the contentions of the tenant respondent and allowed the application directing the tenant respondent to vacate the premises within one month from the date of the order. The tenant appellant preferred an application being Civil Revision No. 2371 of 1986 under Section 18A of the said Act. The revision case was dismissed by the High Court of Punjab and Haryana holding inter alia that the respondent being a specified landlord at the relevant time i.e. within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 (to be hereinafter referred to in short as the said Act) was entitled to get an order of eviction of the tenant from his house. The order of the Rent Controller was upheld. It was further held that the decisions cited at the bar in support of the contention that the respondent was not the landlord qua the tenant appellant on or before his retirement from service, were not applicable to this case as the provisions of the Acts dealt with in those decisions were different from provisions of Section 13 A of the said Act. It is against this judgment and order the instant appeal on special leave has been filed. It is convenient to quote the relevant provisions of the said Act 837 before proceeding to determine the questions in controversy between A the parties. Sec.2(hh): 'Specified landlord means a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of a State. 13 A Where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later, applies to the Controller along with a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends D to reside to recover possession of his residential building or scheduled building as the case may be, for his own occupation there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any con tract (whether expressed or implied) custom or usage to the contrary, a right to recover immediately the possession of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts . " Sec.18 A "(1) Every application under Section 13 A shall be dealt with in accordance with the procedure specified in this section. . . . . . . . (8) No appeal or second appeal shall lie against an order for the recovery of possession of any residential building or scheduled building made by the Controller in accordance with the procedure specified in this Section. 838 Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this Section is according to law, call for the re cords of the case and pass such order in respect thereto as it thinks fit. " In Sohan Singh vs Dhan Raj Sharma, [1983] 2 R.L.R. 465, the question was whether the ex servicemen landlord, Sohan Singh fell within the category of landlord as envisaged in Section 13(3A) of Haryana Urban (Control of Rent and Eviction) Act, 1973 in order to have an order of eviction of the tenant in a summary way. Landlord, Sohan Singh retired from Air Force on 3rd March, 1976 and on 17th November, 1978 he purchased the shop bearing No. 2454 in Block No. II, Patel Road, Ambala. On 2nd February, 1979 an application was made by him for ejectment of the respondent tenant from the said shop on the ground that he required the same for his personal use of setting up his own business therein, under Section 13(3A) of the Act. Section 13(3A) provides that "in the case of a non residential building, a landlord who stands retired or discharged from the armed force of the Union of India" may apply within a period of three years from the date of his retirement or discharge from service for an order directing the tenant to put the landlord in possession. It was held that the expression landlord would mean a landlord who was a landlord as such qua the tenant and the premises on the date of his retirement. Sohan Singh who pruchased the disputed shop after his retirement was not landlord of the shop on the date of his retirement. The application for ejectment of tenant was, therefore, dismissed. In Bhanu Aththayya vs Comdr. Kaushal & Ors., , respondent No. 1 who was in Navy retired from service in February, 1968. Respondent Nos. 1 and 2 who are husband and wife owned the flat in question in a building of the Shankar Mahal Cooperative Housing Society Ltd. Bombay. On 17th July, 1972 respondent No. 2, wife of respondent No. 1 both on her behalf as well as on behalf of her husband gave the flat on leave and licence basis to the petitioner. On 19th November, 1975, the respondent No. 1 secured a certificate from Vice Admiral Flag officer, Commanding in Chief, Western Naval Command, under the provisions of Section 13 Al. On 24th November, 1975, respondent Nos. 1 and 2 served a notice on the petitioner to quit and vacate. As the petitioner did not vacate, the respondent No. 1 made an application under Section 13 Al of Bombay Rents, Hotel and Lodging House Rates Control Act, (57 of 1947) as amended for an order of his ejectment and for giving him possession of 839 the said flat. The application was ultimately dismissed by the High Court of Bombay on the ground that petitioner was not a landlord qua the tenant and the premises at the time of his retirement from Navy and as such he could not get an order of eviction of the petitioner tenant from the suit premises under Section 13 Al. The question whether a retired army officer who acquired a building after his retirement can be deemed to be a landlord within the meaning Section 13 Al of Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) came up for consideration before this Court in the case of Mrs. Winifred Ross and Anr. vs Mrs. Ivy Fonseca and ors., A.I.R. In this case one Lt. Col. T.E. Ross who was a member of the Indian Army retired from Military service in 1967. The property of which the suit building forms a part originally belongs to his mother in law, Mrs. Arcene Parera. She gifted the said property in favour of her daughter Mrs. Winifred Ross, the wife of the plaintiff, on November 9, 1976. The property consisted of some outhouses and the defendant is a tenant in one of those out houses for a number of years. The said premises consisted of two rooms and a verandah. On June 6, 1977, Mrs. Winifred Ross made a gift of the portion occupied by the defendant as a tenant in favour of the plaintiff. The plaintiff thereafter, made an application for eviction of the defendant and for possession of the said premises under section 13 Al of the said Act, which was introduced by an amendment made in 1975. It was held by this Court that the plaintiff could not avail of the provisions of Section 13 Al to recover from the tenant possession of the building which he acquired after his retirement. The word landlord used in Section 13 Al refers to an officer of the armed forces of the Union, who was a landlord either before or on the date of his retirement from the defence service of the Union. It has been further held that Section 13 Al can not be liberally interpreted to cover all retired members of the armed forces irrespective of the fact whether they were landlords while they were in service or not. Such a liberal interpretation of Section 13 Al is likely to expose it to a successful challenge on the basis of Article 14 of the Constitution In the instant case Section 13 of the East Punjab Urban Rent Restriction (Amendment) Act No. 2 of 1985 which was published in the Pubjab Gazette Extra ordinary dated 16th November, 1985 conferred right on the specified landlord to make application at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) , whichever is later. to the Controller along with a Certificate from the Authority competent to remove him from service for directing the tenant to give him possession of the premises. This Section thus confers right on the ex serviceman who is a specified landlord under Section 2(hh) of the said Act to apply after retirement within one year of the commencement of the said Act under Section 13 A of the said Act for eviction of the tenant. The respondent landlord who retired from the service of the Union is the owner of the house and he is the landlord at the relevant time i.e. after his retirement within one year of the date of commencement of the said Act i.e. 16th November, 1985 qua the tenant and the premises and the application to the Rent Con troller was made for an order directing the tenant appellant to give possession of the suit house to him to reside therein as he had no other house within the Municipality. The respondent in order to come within the definition of specified landlord has to satisfy two things: (a) he shall be a person who is entitled to receive rent in respect of the house in question from the tenant appellant at his own account. and (b) he is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of State. The petitioner retired from the post of S.D.O. which post he held in the Rehabilitation Department, Government of India. The petitioner as appears from the statements made in the affidavit of the appellant and also from the certificate Exhibit lA filed by the landlord that he retired from service in 1963 and the appellant has been inducted as a tenant in respect of the said house in 1968. This clearly evinces that the respondent was not a specified landlord within the meaning of Section 2(hh) of the said Act as the appellant was inducted as a tenant after his retirement from the service of the Union. Section 13 A of East Punjab Urban Rent Restriction (Amendment) Act, 1985 in clear terms enjoins that "Where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the said Act makes an application to recover possession of the building or scheduled building, the Controller will direct the tenant to deliver possession of the house to him". Therefore to be entitled to have the benefit of Section 13 A of the Act the landlord respondent will have to fulfil the first qualification i.e. he must be a specified landlord in respect of the house in question on the date of his retirement from the service of the Union i.e. in 1963. The landlord, as it appears, has not 841 fulfilled this requirement in as after his retirement from service of the Union he has let out the premises to the tenant appellant. It has been urged before us on behalf of the respondent that at the relevant time i.e. after retirement of the respondent from service within one year of the date of commencement of the said Act he is the landlord of the appellant and as such he falls within the definition of Section 2(hh) of the said Act and he becomes a specified landlord. This submission, in our view, cannot be sustained in as much as the words "specified landlord" as used in section 2(hh) refer to the person in service of the Union who is a landlord at the time of his retirement from the public service or post in connection with the affairs of the Union or of State. It cannot in any manner include an ex serviceman who was not a specified landlord qua the tenant and the premises on or before the date of his retirement from the service of the Union. This has been very succinctly held by this Court in the case of Mrs. Winifred Ross and Anr. vs Mrs. Ivy Fonseca and Ors. (supra) which has been referred to hereinbefore. On a conspectus of the decisions referred to hereinbefore more particularly the decision rendered by this Court in the case of Mrs. Winifred Ross & Anr. vs Mrs. Ivy Fonseca and ors. (supra) it is well settled that in order to get the benefit of eviction of the tenant in a summary way the ex serviceman must be a landlord qua the premises as well as the tenant at the time of his retirement from service. The ex serviceman is not competent to make an application to the Rent Controller to get possession of his house by evicting the tenant in a summary way unless and until he satisfies the test that he is a landlord qua the premises and the tenant at the time of his retirement or discharge from service. In the instant case the Rent Controller has not at all considered this question but he simply held that the petitioner was discharged from service on the abolition of the Department of Rehabilitation and so he was covered under the definition of specified landlord as given under section 2(hh) of the Act. The learned Single Judge of the Punjab and Haryana High Court though noticed the decision in the case of Bhanu Aththayya vs Comdr. Kaushal and ors. and also in Sohan Singh vs Dhan Raj but without properly considering the provisions of Section 2(hh) of the Act held that the application under section 13 A of the Act by a specified landlord seeking ejectment of a tenant was competent within one year of the commencement of the amended Act even if there existed no relationship of landlord and tenant on the date of retirement of the specified landlord. The learned Single Judge also 842 observed that as there was no provision for a specified landlord after his retirement to make an application for ejectment of his tenant within one year after commencement of the amended Act as occurs in the Punjab Act the ratio of the decision in those cases cited before the Court would not apply. This view of the learned Single Judge in our considered opinion is on the face of it erroneous. We have stated hereinbefore that to get the benefit of the summary procedure provided in Section 13 A of the said Act, the ex serviceman must be a specified landlord at the time of his retirement from service of the Union as provided in Section 2(hh) of the said Act. The respondent did not satisfy this basic requirement of Section 2(hh) of the Act and so he was not competent to maintain an application under Section 13 A of the said Act. It is obvious that the respondent landlord retired from the service of the Union in 1965 and the house in question was let out to the tenant appellant in 1968. The respondent was not a landlord qua the premises and the tenant on the date of his discharge from service entitling him to avail of the benefit of the provisions of Section 13 A of the Punjab Act. For the reasons aforesaid we allow the appeal and set aside the judgment and orders of the courts below. In the facts and circumstances of the case, there will be no order as to costs. N.V.K. Appeal allowed.

% The respondent landlord filed an application in the Court of the Rent Controller under Section 13 A of the East Punjab Rent Restriction (Amendment) Act, 1985, seeking eviction of the appellant tenant on the ground of arrears of rent and for his own use and occupation. It was contended that the respondent retired from the service of the Government of India, Ministry of Defence on 20th May, 1949 and that his service was thereafter transferred to the Ministry of Rehabilitation from where he was discharged on 30th November, 1965 on the abolition of the Ministry, and that as he had no other house within the municipality he wanted the house in question for residence. On receiving the summons of the eviction petition the appellant tenant sought leave to contest the application on the ground that he was inducted as a tenant in the premises in the year 1968, and that Section 13 A of the Act did not entitle the landlord to maintain the eviction petition. The Rent Controller after recording the evidence of the parties negatived the contention of the tenant, allowed the application, and directed the tenant to vacate the premises within one month from the date of the order. The appellant preferred a revision application under Section 18 A of the Act, but the High Court holding that the respondent being a 'specified landlord ' at the relevant time i.e. within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 was entitled to get an order of eviction of the tenant from his house, upheld the eviction order of the Rent Controller and dismissed the revision petition. The tenant appealed to this Court by special leave. 834 Allowing the appeal, ^ HELD: 1. The respondent landlord did not satisfy the basic requirement of section 2(hh) of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 and so he was not competent to maintain the application under section 13 A of the said Act. [842C] 2. Section 13 A of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 in clear terms enjoins that: "Where a specified landlord at any time within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the said Act makes an application to recover the possession of the building or scheduled building, the Controller will direct the tenant to deliver possession of the said house to him". Therefore to be entitled to have the benefit of Section 13 A of the Act the landlord respondent will have to fulfil the first qualification i.e. he must be a specified landlord in respect of the house in question on the date of his retirement from the service of the Union i.e. in 1963. [840F H] 3. To get the benefit of the summary procedure provided in Section 13 A the ex servicemen must be a specified landlord at the time of his retirement from service of the Union as provided in Section 2(hh). [842B] 4. The respondent landlord in the instant case, retired from the service of the Union in 1965, and the house in question was let out to the appellant tenant in 1968. The respondent was thus not a landlord qua the premises and the tenant, on the date of his discharge from service entitling him to avail of the benefit of the provisions of Section 13 A of the East Punjab Act. [842C D] 5. The Rent Controller has not at all considered the question whether the landlord is a specified landlord, but simply held that the landlord was discharged from service on the abolition of the Department of Rehabilitation and so he was covered under the definition of specified landlord as given under section 2(hh) of the Act. The Single Judge of the High Court without considering the provisions of Section 2(hh) of the Act held that the application under Section 13 A by a specified landlord seeking ejectment of a tenant was competent within one year of the commencement of the amended Act even if there existed no relationship of the landlord and tenant on the date of the retirement of the specified landlord. This view is on the face of it erroneous. The 835 judgments and orders of the Courts below are set aside. [841F H; 842A B, D] A Sohan Singh vs Dhan Raj Sharma, [l983] 2 R.L.R. 465 and Bhanu Aththayya vs Comdr. Kaushal & Ors., [1979] 2 R.C.J. 338, approved. Mrs. Winifred Ross and Anr. vs Mrs. Ivy Fonseca and Ors., A.I.R. 1984 SC 458, distinguished.

Civil Appeal No. 453 of 1988. 897 From the Judgment and Order dated 5.3.1984 of the Punjab and Haryana High Court in Civil Revision No. 3411 of 1983. E.C. Agarwala for the Appellants. G.K. Bansal for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. The two short questions involved in this case are (i) whether the right of pre emption conferred on a tenant by a customary law is heritable or not and (ii) whether on the death of such a tenant, who had filed a suit for pre emption his legal representatives can continue the suit. The property in dispute which is a double storied building situated in the town of Jagadhri, District Ambala, Haryana originally belonged to one Om Prakash. Kishan Chand was in possession of a part of the said property as a tenant. Om Prakash sold the entire property including the portion occupied by Kishan Chand to the respondent for a sum of Rs.23,000 under a registered sale deed dated 11.7.1980. It is alleged that in the town of Jagadhri there was in force a customary law under which a tenant in occupation or a building had a right of pre emption. Aggrieved by the sale of the property in his occupation as a tenant, Kishan Chand filed a suit for pre emption in the Court of the Sub Judge, II Class, Jagadhri in Civil Suit No. 131 of 1980 on 26.8.1980 stating that the value of the portion of the property occupied by him was Rs. 10.000. The respondent denied that there was such a customary law conferring a right of pre emption on a tenant in force in the town of Jagadhri and that in the event of a decree being passed in the suit the plaintiff should be asked to pay a sum of Rs.20,000 by way of consideration. During the pendency of the suit, Kishan Chand died on 8.8.1983. An application was filed under Order 22, Rule 3, Civil Procedure Code by the appellants, who were the legal representatives of Kishan Chand to bring them on record in the place of the original plaintiff, Kishan Chand and to permit them to prosecute the suit further. The respondent opposed the said application contending that the right of pre emption, even if it existed, was only a personal right of Kishan Chand and was not heritable and, therefore, the appellants were not entitled to be brought on record as the legal representatives of Kishan Chand. It was further contended by the respondent that the suit was liable to be dismissed on the death of Kishan Chand as the right to sue did not survive. The trial court 898 allowed the application made under Order 22, Rule 3, Civil Procedure Code holding that the right of pre emption was heritable and the right to sue survived on the death of the plaintiff in favour of his legal representatives. Aggrieved by the order passed by the trial court, the respondent filed a revision petition under section 115, Civil Procedure Code before the High Court of Punjab & Haryana in Civil Revision No. 3411 of 1983. Before the High Court, the respondent relied on a Full Bench decision of the High Court of Punjab & Haryana in Chandrup Singh and Another vs Data Ram and Another, [1982] Punjab Law Reporter 771 in which it had been held that a statutory right of pre emption resting only on blood relationship created by section 15(1) of the Punjab Pre emption Act, 1913 (1 of 1913) (hereinafter referred to as 'the Act ') (as it was in force in Haryana) was not a heritable right and did not devolve on the heirs on the death of the plaintiff pre emptor before the grant of the decree in the suit. Though the learned Judge, who heard the revision petition, was of the view that the above Full Bench decision ran counter to the decision of the Supreme Court in Hazari & Ors. vs Neki & Ors. , ; he allowed the petition following the Full Bench decision on the ground that the said decision was bindig on him and declared that the suit instituted by Kishan Chand had abated on his death. We have gone through the decision of this Court in Hazari 's case (supra) and also the Full Bench decision of the High Court of Punjab & Haryana in Chandrup 's case (supra). The facts in Hazari 's case (supra) were these. The plaintiff, who was the father 's brother of one Dhara Singh instituted three suits for pre emption of the lands sold by Dhara Singh under three sale deeds on the ground that he had a superior right of pre emption on the basis of his relationship with the vendor as against the purchasers under section 15(1)(a) of the Act. The suits were decreed by the trial court. The purchasers took the matter in appeal before the 1st Appellate Court and those appeals were dismissed, but in one of the appeals there was a slight modification in the amount which the plaintiff had to pay to the purchasers. The purchasers filed three second appeals before the High Court against the judgments and the decrees of the 1st Appellate Court and the plaintiff also preferred a second appeal before the High Court in one of the cases against the increase made in the price of the land by the 1st Appellate Court. While the second appeals were pending in the High Court, the plaintiff died. After his death application were moved under Order 22, Rule 11 of the Civil Procedure Code to bring the legal representatives of the deceased plaintiff on record. All the four second appeals were heard and dismissed by the High Court. The purchasers 899 having failed in the Letters Patent Appeals filed before the Punjab & Haryana High Court against the decrees passed in the second appeals, filed three appeals before this Court by special leave. It was contended before this Court by the purchasers that on the death of the plaintiff, the right to sue came to an end and his legal representatives were not entitled to claim any benefit under the decrees in question. Rejecting the above contention this Court observed at page 836 of the Report thus: "In support of these appeals, learned counsel put forward the argument that the right of pre emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for preemption. The argument was that the statutory right of preemption under the Punjab Act was not a heritable right and no decree for pre emption should have been passed by the lower court in favour of the legal representatives as representing the estate of Neki. We are unable to accept the argument put forward by the appellants. It is not correct to say that the right of pre emption is a personal right on the part of the pre emptor to get the re transfer of the property from the vendee who has already become the owner of the same. It is true that the right of pre emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. The correct legal position is that the statutory law of pre emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner 's right of sale and compels him to sell the property to the person entitled to pre emption under the statute. In other words, the statutory right of preemption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to preempt. " In reaching the above conclusion this Court while accepting the contention that the right of pre emption under section 15(1)(a) of the Act did not create an interest in the land was, however, of the view that the right did not abate on the death of the plaintiff during course of the 900 proceedings in court. This Court referred to the decision of the Punjab & Haryana High Court in Faqir Ali Shah vs Ram Kishan & Ors., 133 P.R. 1907 and the decision of the Allahabad High Court in Wajid Ali & Anr. vs Shaban & Ors. , I.L.R. 31 Allahabad 623. In the latter decision, namely, the Wajid Ali 's case (supra) the High Court of Allahabad had held that where a right of pre emption existed by custom as recorded in the village Wajib ul arz, the right having once accrued did not of necessity lapse by the death of the pre emptor before making a claim, but descended along with the property in virtue of which it subsisted to the heir of the pre emptor. It is significant that in that case the High Court of Allahabad had taken the view that the right of pre emption which had accrued in favour of the pre emptor would descend along with the property in virtue of which it subsisted to the heir of the pre emptor, even when the death of the pre emptor had taken place before he made a claim for pre emption. The Full Bench of the High Court of Punjab & Haryana which heard Chandrup 's case (supra) after noticing the decision of this Court in Hazari 's case (supra) distinguished the said decision observing thus: "21. To conclude, on the particular language of the statute, on principle, and on the weight of precedent, it is held that the purely statutory right of pre emption, resting wholly on blood relationship alone under section 15(1) of the Punjab Pre emption Act, is not a heritable right and does not devolve on the heirs on the death of the plaintiff pre emptor before the grant of the decree in the suit. The answer to the question posed at the very outset is thus rendered in the negative. " We find it difficult to agree with the decision of the Full Bench of the High Court of Punjab & Haryana in the above case. While it may not be disputed that a right of pre emption does not give rise to an interest in immovable property, in the instant case the plaintiff had acquired the said right of pre emption under the customary law by virtue of the right of tenancy which he had in the portion of the property in his possession. It cannot be disputed that the right of tenancy itself was heritable and, therefore, every right attached to the said right of tenancy or incidental to it should ordinarily be heritable. There can be no distinction between a right of pre emption arising under the statute law or such a right arising under customary law. The other reason given by the Full Bench in order to distinguish the decision of this Court in Hazari 's case (supra) namely that the pre emptor 901 had died at the stage of second appeal in the said case while the pre emptor had died in the case before the Full Bench at the stage of trial also does not appeal to us. The view expressed in Muhammad Husain vs Niamet un nissa and Ors., I.L.R. 20 Allahabad 38 that under Mohammadan law applicable to the Sunni sect if a plaintiff in a suit for pre emption had not obtained his decree for pre emption in his life time the right to sue did not survive to his heirs is not relevant for purposes of this case. It is true that the said decision was noticed by this Court in Hazari 's case (supra) but this Court did not express any opinion on the correctness of the above position. In the case before us the right of pre emption is claimed not on the basis of Mohammadan law but under customary law by the heirs of a tenant who was in possession of the property in question and who had instituted a suit for enforcing the said right of pre emption. It is appropriate to refer to the following passage in Faqir Ali 's case (supra) which is extracted in Hazari 's case (supra) at page 837: "While, therefore, there is good reason why voluntary transfers should not pass a right of pre emption as regards properties previously sold, those reasons do not apply to transfers by inheritance. As regards transfers by inheritance, the general principle should apply that the right of pre emption passes with the land. Mr. Grey laid great stress on sections 13 and 16 of the Punjab Laws Act urging that the father was the person on whom the notice had to be served, and that it was he who had the right to sue and that the right was thus a personal one that could not be inherited by the son. The right was no doubt a personal one in the father based on his land, but I can see no reason why such right cannot be inherited by the son. If the father had waived or otherwise disposed of his right this would no doubt be binding on the son, as the father was representing the whole estate. Where, however, the father has done nothing of the kind, but has simply taken no steps in the matters, there seems to me no reason why the son should not step into the shoes of his father and take the same action as the father could have done. The son inherits the other causes of action belonging to his father and why not this one? Nor do I see why the son cannot come in under section 16, simply alleging that no notice as required by section 13 was served on his father. " 902 Hence the fact that the pre emptor had died in the present case at the trial stage cannot make any difference. We are, therefore, of the view that the decision of the Punjab & Haryana High Court in Chandrup 's case (supra) is inconsistent with the decision of this Court in Hazari 's case (supra) and has to be overruled. We accordingly overrule it. We hold that the right to sue in the present case survived on the death of Kishan Chand in favour of the appellants who were his legal representatives and they were entitled to be brought on record in substitution of the original plaintiff Kishan Chand under Order 22 Rule 3 of the Civil Procedure Code. The appeal is accordingly allowed, the order of the High Court is set aside and the order of the trial court is restored. The trial court is directed to bring the appellants on record as the legal representatives of the deceased plaintiff and to proceed to dispose of the suit on merits.

% The property in dispute was sold by its original owner to the respondent. Claiming that there was a local custom under which the tenant in occupation of a building had a right of pre emption, the tenant of a portion of the property filed a suit for pre emption and valued the portion at Rs.10,000. The suit was opposed by the respondent contending that there was no such customary law and that in case the decree was passed, the plaintiff should be asked to pay Rs.20,000, as consideration. During the pendency of the suit, the plaintiff tenant died and the appellants, his legal representatives filed an application under Order 22, Rule 3 of Civil Procedure Code, for being brought on record in place of the original plaintiff and for permission to prosecute the suit further. The respondent, opposed the application contending that the right of pre emption, even if it existed, was only a personal right of the tenant and was not heritable, and consequent on his death the right to sue did not survive, and therefore the suit was liable to be dismissed. Aggrieved by the aforesaid order, the respondent filed a revision petition before the High Court, which allowed the same following a Full Bench decision of that Court in Chandrup Singh and Anr. vs Data Ram and Anr., [1985] Punjab Law Reporter 771, that a statutory right of pre emption resting only on blood relationship created by section 15(1) of the Punjab Pre emption Act, 1913 was not a heritable one and did not devolve on the heirs on the death of the pre emptor before the grant of 896 the decree in the suit, and declared that the suit instituted by the tenant had abated on his death. Allowing the appeal, ^ HELD: While a right of pre emption does not give right to an interest in immovable property, the right of tenancy itself was heritable and, therefore, every right attached to the said right of tenancy or incidental to it should ordinarily be heritable. There can be no distinction between the right of pre emption arising under the statutory law and the customary law. [900F, H] In the instant case, the plaintiff had acquired the said right of pre emption under customary law by virtue of right of tenancy which he had in the portion of the property in his possession and had instituted a suit for enforcing that right. The fact that the pre emptor had died at the trial stage cannot make any difference. [900G] The right to sue therefore survived on the death of the plaintifftenant in favour of the appellants, who were his legal representatives, and they were entitled to be brought on record in substitution of the original plaintiff tenant under Order 22, Rule 3 of the Civil Procedure Code. [902B C] The trial court was directed to bring the appellants on record as legal representatives of the deceased plaintiff and to dispose of the suit on merits. [902C] Chandrup Singh and Another vs Data Ram and Another, [1982] Punjab Law Reporter 771, over ruled. Hazari & Ors. vs Neki & Ors. , ; , followed. Wajid Ali & Anr. vs Shaban & Ors. , I.L.R. 31 Allahabad 623, approved. Muhammad Husain vs Niamet un nissa and Ors., I.L.R. 20 Allahabad 88, distinguished. Faqir Ali Shah vs Ram Kishan & Ors., 133 P.R. 1907, referred to.

N: Criminal Appeal Nos. 657 58 of 1986. From the Judgment and Order dated 13.2.1986 of the High Court of Bombay in Criminal Application No. 120 of 1984. Dr. L.M. Singhvi, Ram Jethmalani, Dalveer Bhandari, Mrs. Madhu Bhandari, S.S. Khanduja, A.M. Khanwilkar and A.S. Bhasme for the Appearing parties. The Judgment of the Court was delivered by RANGANATH MISRA, J. Both the appeals are by special leave and are directed against the same judgment of the Bombay High Court on an application under section 482 of the Code of Criminal Procedure. The High Court by the impugned decision quashed the prosecution against two of the four accused persons. The two accused persons whose prosecution has not been quashed are appellants in Criminal Appeal No. 657 of 1986 while the complainant assails the decision of the High Court quashing the prosecution of the two accused persons in Criminal Appeal No. 658 of 1986. Rajamata Smt. Vijaya Raje Scindia of Gwalior created a trust on 23rd of February, 1966, known as "Srikrishna Madhava Trust" with four trustees in all including the settler, the other three trustees being Mr. Madhavrao Jiwajirao Scindia, Col. Eknath Trimbak Patil and Kumar Shanbhajirao Chandrojirao Angre. Madhavrao is the son of the settler while the other two, though residents of Gwalior, are not members of the family. 'Vijay Vilas ' a large house located in the Bombay city constituted a part of the trust property. Russi Homi Awary and Damodar Rangrppa Shenoy, respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager respectively of the Trust between 1976 and 1982. Flat No. 15 of 'Vijay Vilas ' was in the occupation of the Sushiladevi Kathait on tenancy basis. In June, 1981, the said tenant surrendered the tenancy and on 9th of June, 1981, the 933 Secretary issued a certificate to the effect that the tenancy had terminated. On 31st of March, 1982, the said Secretary issued another certificate to the effect that the aforesaid tenancy terminated with effect from 1st April, 1980, after the entire rental liability had been liquidated. On the allegation that the two officers of the Trust in conspiracy with trustee Madhavrao and his wife Smt. Madhavi had created documents showing tenancy in respect of that flat in favour of Smt. Madhavi, a complaint was filed by trustee Angre in the Court of the Metropolitan Magistrate, 28th Court, Esplanade, Bombay on 27th July, 1983. Summons were directed to be issued against the four persons referred to above for offences punishable under sections 406, 467 read with sections 34 and 120 B of the Indian Penal Code. The accused persons challenged the proceedings before the High Court by filing an application under section 482 of the Code and prayed for quashing of the criminal case. By the impugned order dated 13th February, 1986 the High Court quashed the proceedings so far as accused Nos. 2 and 4 were concerned but sustained the order of the Metropolitan Magistrate in regard to the remaining two accused persons. Hence these appeals have been filed as already stated. The settler and the accused being mother and son, an attempt was made to bring about a settlement but that having failed the appeals have been heard on merit and are being disposed of by this common judgment. Dr. Singhvi,, learned counsel appearing for the accused appellants has contended that the criminal proceedings are without any basis and if at all, a civil wrong may be said to have been caused. According to him, the trust deed authorised trustee Madhavrao to look after the affairs of the Trust. The flat had been tenanted at a particular rent when the tenant vacated; and a new tenant had to be inducted it being the common case that the flat was intended for tenancy Madhavi wanted to be the tenant and at the rate of rent which the outgoing tenant was paying, a new tenancy was created. Under the law applicable to tenancies in Bombay, a higher rent is not chargeable and as such no higher amount of rent could be claimed by the Trust in regard to the flat. The wife of the trustee is an independent person having her own income and the tenancy in favour of Madhavi cannot be considered to be creating an interest in favour of the trustee. Dr. Singhvi further relied upon a lawyer 's notice issued on behalf of the trust calling upon Madhavi to surrender the tenancy in favour of the Trust failing which action was threatened. Madhavi volunteered to surrender the tenancy and thus there was really no 934 justification, according to Dr. Singhvi, for initiating criminal proceedings. In the facts and circumstances of the case narrated above, the appellants ' counsel contended that there was no mens rea for the offences as alleged and at the most it amounted to a civil wrong. He argued that the mother and the son had fallen out and on that score the machinery of the Court should not be permitted to be utilised for private vengeance. Mr. Jethmalani, appearing for the complainant, on the other hand, maintained that it was a clear case of breach of trust and according to him every breach of trust would simultaneously be a civil wrong and a criminal offence and if summons have been issued by the Metropolitan Magistrate on the basis of the complainant 's allegations, no objection could be taken at the preliminary stage. It is appropriate that the complainant should be given an opportunity to establish his case by leading evidence. He relied upon the provisions of section 53 of the Indian Trust Act which provides: "No trustee, and no person who has recently ceased to be a trustee, may, without the permission of a principal Civil Court of original jurisdiction, buy or become mortgagee or lessee of the trust property or any part thereof; and such permission shall not be given unless the proposed purchase, mortgage or lease is manifestly for the advantage of the beneficiary. " We have considered the relevant documents including the Trust deed as also the correspondence following the creation of the tenancy. We have also kept in view the submissions advanced on behalf of the parties by their respective counsel. We have further taken into consideration the natural relationship between the settler and the son and his wife and the fall out. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to 935 continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. Mr. Jethmalani has submitted, as we have already noted, that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. We are of the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. Several decisions were cited before us in support of the respective stands taken by counsel for the parties. It is unnecessary to refer to them. In course of hearing of the appeals, Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter we are inclined to hold that the criminal case should not be continued. Criminal Appeal No. 657 of 1986 is allowed and the criminal prosecution against the two appellants being Madhavrao and Russi Homi Avari is quashed. In view of what we have stated above, Criminal Appeal No. 658 of 1986 has to fail and is dismissed. N.P.V. Appeal dismissed.

% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the , it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]

Civil Appeal No. 707 of 1988. From the Judgment and Order dated 13.10.87 of the Bombay High Court in A. No. 969 of 1984. S.B. Bhasme and A.S. Bhasme for the Appellant. Dr. Y.S. Chitale and R.S. Nariman for the Respondent No. 16. Mrs. Karanjawala and Ms. Meenakshi Arora for the Caveator. The following order of the Court was delivered: O R D E R Special leave granted against Respondent No. 16 in so far as relief claimed against Respondent No. 16. The Charity Commissioner of State of Maharashtra has approached this Court by way of Special leave in order to seek redress in respect of the observations made by the Division Bench of the High Court casting reflections on the conduct of the officials of the organization and in regard to their competence to decide matters in their quasi judicial capacity. He has also sought a direction against Respondent No. 16 who is present by caveat. We are constrained to observe that the High Court might well have avoided casting reflections against the Deputy Charity Commissioner who was merely discharging his quasi judicial functions under the Bombay Public Trusts Act. He should have been permitted to discharge his functions in regard to the issues arising before him in the light of his own independent perspective. The 951 observations made by learned Single Judge, by the very nature of things, were of a tentative nature as the learned Single Judge was deciding the matter arising out of an interlocutary proceeding. In fact, the observations made by the learned Single Judge on merits in regard to the interpretation of the clauses of the Will could not have influenced even the trial court. Besides, an appeal to the Division Bench was pending. Under the circumstances, taking a view which was different from the view reflected in the judgment of the learned Single Judge on the part of the Deputy Charity Commissioner could by no stretch of imagination be said to have been made in scant regard of the judgment of the High Court. Nor could it ever have been construed as exhibiting disrespect for the High Court. The Division Bench went far too far in observing to the effect that what the Deputy Charity Commissioner had done in discharging his quasi judicial functions would constitute contempt of Court. Learned Deputy Charity Commissioner was entitled to take his own view subject to his decision being questioned in accordance with law before the High Court. The observations made against the Deputy Charity Commissioner were therefore altogether uncalled for and unfair. We, therefore, direct that these observations be treated as non existent. We wish to make it clear that the Deputy Charity Commissioner has not been amiss or at fault in the smallest respect in taking the view which commended itself to him and which he was at full liberty to take under the law. We wish to place on record that nothing said in the judgment of the Division Bench in Appeal No. 969 of 1974 should be construed as a reflection on the learned Deputy Charity Commissioner. We are also of the view that the observations made in regard to the mode of recruitment to the office in question were also uncalled for and should be treated as non existent. In the facts and circumstances of the case the Division Bench might will have permitted the Charity Commissioner to be substituted for the appellant before the Court for he was merely making sincere endeavour in the discharge of his official duties to protect the interest of the charity as he was duty bound to do, so as to be true to his office. We have heard the learned counsel for the Respondent No. 16 in regard to the relief claimed against him. Both counsel are agreeable to the directions which follow. The status quo in regard to the property in question shall be maintained and Respondent No. 16 shall not get executed or obtain a sale deed in respect of the property in his favour or in favour of his nominees or assignees till the question is finally disposed of by the 952 Assistant Charity Commissioner or by the Appellate Authority, if any appeal is carried. The Assistant Charity Commissioner before whom the matter is pending will have full liberty to decide the matter in accordance with law in the light of his own perception of the matter without being influenced one way or the other by any observation made in the judgment of the learned Single Judge or in the judgment of the Division Bench of the High Court which have given rise to the present Special Leave Petition. We express no opinion on merits in regard to the effect of the relevant clauses of the Will as indeed we cannot do. The Assistant Charity Commissioner will dispose of the matter pending before him with expedition preferably within the outside limit of six months. The matter shall stand disposed of accordingly. G.N. Appeal disposed of.

% A Division Bench of a High Court made certain observations casting reflections on the conduct of certain officials and their competence to decide matters in the quasi judicial capacity. In the appeal by special leave the Charity Commissioner sought redressal in respect of such observations. A direction against Respondent No. 16 was also sought. Disposing of the appeal this Court, ^ HELD: 1. The High Court might well have avoided casting reflections on the Deputy Charity Commissioner who was merely discharging his judicial functions under the Act. He should have been permitted to discharge his function in regard to the issues arising before him, in the light of his own independent perspective. The observations made by the Single Judge on merits in regard to the interpretation of the clauses of the Will could not have influenced even the trial court. Besides, an appeal was pending before the Division Bench. Taking a view different from the one reflected in the judgment of the Single Judge could not be said to have been made in scant regard of the judgment; nor can it be construed as exhibiting disrespect for the High Court. The Division Bench went too far in observing to the effect that what the officer had done in discharging his quasi judicial functions would constitute contempt of Court. The official was entitled to take his own view subject to his decision being questioned in accordance with law. He had not been amiss or at fault in taking the view which commended itself to him and which he was at full liberty to take under the law. The observations made against the Deputy Charity Commissioner should be treated as non existent. So also the observations made in regard to the mode of recruitment to the office in question. [950G H; 951A E] 2. The status quo in regard to the property in question shall be maintained. Respondent No. 16 shall not get executed or obtain a sale 950 deed in respect of the property in his favour or in favour of his nominees or assignees till the question is finally disposed of. The Assistant Charity Commissioner before whom the matter is pending will have full liberty to decide the matter in accordance with law in the light of his own perception of the matter without being influenced one way or the other by any observation made in the judgment of the learned Single Judge or in the judgment of the Division Bench of the High Court. [951H; 952A B] [The Court directed the Assistant Charity Commissioner to dispose of the matter with expedition preferably within the outside limit of six months.] [952C]

Civil Appeal No. 2537 of 1985 etc. From the Judgment and Order dated 27.4.1984 of the Bombay High Court in O.S.W.P. No. 704 of 1984. G.G. Kalsekar, K.M.M. Khan, N. Nettar and S.N. Bhat for the Appellants. S.K. Dholakia, Ashok H. Desai, A.M. Khanwilkar, A.S.Bhasme, D.N. Mishra, section Sukumaran, G.E. Vahanvati, V.B. Agarwala, B.B. Agarwala, R.B. Hathi Khanawala for the Respondents. Vinod A. Bobde, Mrs. J. Wad and Mrs. Aruna Mathur for the Intervener. 922 The Judgment of the Court was delivered by DUTT, J. The subject matter of this appeal by special leave is the permission for development of the land granted in favour of respondent No. 5 who proposed to construct a five star hotel on a tract of land measuring 44,820.49 square yards at Bandra, Bombay, bearing R.S. Nos. 416 (Part) and 417. The land in question had been purchased by the respondent No. 5, Enjay Estates Pvt. Ltd., from its erstwhile owner, Byramji Jeejeebhoy Pvt. Ltd. In the 1966 sanctioned Development Plan of Greater Bombay, the said land was shown in the residential zone and a contiguous parcel of land measuring 18,000 sq. was shown as a green belt. With a view to developing the disputed land, the respondent No. 5 submitted a plan to the Municipal Corporation of Greater Bombay for the construction of a five star hotel. The Commissioner of the Municipal Corporation, however, rejected the plan on the sole ground that it was proposed to earmark the said land under reference as a recreational ground with suitable internal network of roads during the revision of the development plan which was in the offing. Being aggrieved by the said rejection of the plan, the respondent No. 5 pref erred an appeal to the Government of Maharashtra under section 47 of the Maharashtra Regional and Town Planning Act, 1966, hereinafter referred to as 'the Act '. The appellants, who are rate payers of the Municipal Corporation of Greater Bombay and claim to be members of various ecological action groups, appeared in the appeal and opposed the same contending, inter alia, that the whole of the said land should be kept reserved for a green belt or recreational ground in the interest of the general public. The appeal was heard by the Minister of State for Urban Development, the respondent No. 2 herein. The respondent No. 2 set aside the order of the Commissioner of the Municipal Corporation rejecting the plan submitted by the respondent No. 5 after hearing the petitioners as also the Municipal Commissioner and directed sanctioning of the plan on certain conditions which will be referred to later in this judgment. The Municipal Corporation accepted the appellate order and did not challenge the order of the respondent No. 2. But the appellants filed a writ petition challenging the legality of the order of the respon 923 dent No. 2 granting sanction of the plan submitted by the respondent No. 5 for the construction of a hotel on the said land. The writ petition was, however, dismissed by the Division Bench of the High Court by the judgment under appeal. At this stage, we may refer to some of the provisions of the Act. It is an Act to make provision for planning the development and use of land in Regions established for that purpose and for the constitution of Regional Planning Boards therefor; to make better provisions for the preparation of Development Plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective; to provide for the creation of new towns by means of Development Authorities; to make provisions for the compulsory acquisition of land required for public purposes in respect of the plans; and for purposes connected with the matters aforesaid. Section 2(9) defines "Development Plan" to mean a plan for the development or re development of the area within the jurisdiction of a Planning Authority and includes revision of a development plan and proposals of a Special Planning Authority for development of land within its jurisdiction. Under section 2(19), "Planning Authority" means a local authority; and includes a Special Planning Authority constituted or appointed under section 40. Chapter III of the Act contains provisions for the Development plan. Section 23 provides for the declaration of intention by the Planning Authority to prepare a Development plan. Section 26 provides for the preparation and the publication of notice of draft Development plan. Under section 30, the Planning Authority has to submit the draft Development Plan to the State Government for sanction. Section 31 provides for the sanction to the draft Development plan by the State Government. Section 43 provides, inter Ala, that after the date on which the declaration of intention to prepare a Development plan for any area is published in the Official Gazette, no person shall carry out any development of land without the permission in writing of the Planning Authority. Section 45 deals with grant or refusal of sanction for development by the Planning Authority. Section 45 enjoins that the Planning Authority in considering an application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under the Act. Section 47 provides for an appeal to the State Government or to an officer appointed by the State Government by any applicant aggrieved by an order granting permission on conditions or refusing permission under section 45. In allowing the appeal of the respondent No. 5 and directing 924 sanction of the development plan, the respondent No. 2 observed that in view of the clear provisions of sections 46 and 31(6) of the Act and having regard to the position that in the sanctioned plan of 1966, the said land was included in the residential zone and no proposal to exclude it therefrom in the draft revised development plan had been published, the Municipal Commissioner was not justified in rejecting the application for approval of the plan submitted by the respondent No. 5 on the ground that the Bombay Municipal Corporation had decided to revise the 1966 Development Plan. We have already referred to section 46 of the Act which provides that the Planning Authority in considering the application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under the Act. It seems that the respondent No. 2 was of the view that the Planning Authority could only take into its consideration any draft or final plan or proposal which had been published by means of notice or sanctioned under the Act as provided in section 46. There is, in our opinion, some force in the contention made by Mr. Kalsekar, learned Counsel appearing on behalf of the appellants, that the respondent No. 2 has misunderstood the provisions of section 46. It is submitted by the learned Counsel that the Municipal Corporation was entitled to take into consideration other relevant facts including the contemplated revision of the plan, apart from those mentioned in section 46. In support of his contention, the learned Counsel has placed reliance on an unreported decision of a learned Single Judge of the Bombay High Court in Life Insurance Corporation of India and Another vs Municipal Corporation of Greater Bombay and Others, Writ Petition No. 2944 of 1932 disposed of on 6.3.1984. In that case, a development application was rejected by the Municipal Corporation on the ground that the property was proposed to be reserved for public purposes or for recreational ground in the draft revised development plan, and the High Court repelled the challenge to the decision taking the view that even the proposed revision could be taken into account as one of the relevant factors. There can be no doubt that if there be any other material or relevant fact, section 46 does not stand in the way of such material or fact being considered by the Municipal Corporation for the grant or refusal to grant sanction of any development plan. In the unreported decision of the High Court, the relevant fact that was taken into consideration was the draft revised development plan, even though the plan was not published. In the instant case, however, at the time the Municipal Commissioner rejected the plan submitted by the respondent No. 5, there was no draft revised development plan in existence. 925 It was in contemplation. If there had been such a plan, the Municipal Commissioner would be entitled to rely upon the same in rejecting the plan submitted by the respondent No. 5. But, as there was no such draft revised plan as has been stated before this Court even by the Counsel for the Municipal Corporation, the Municipal Commissioner was not justified in merely relying upon a proposal for the preparation of a draft revised plan. An order rejecting a development plan submitted by the owner of the land should be supported by some concrete material. In the absence of any such material, it will be improper to reject the plan on the ground that there is a proposal for revision of the draft plan or that such a revision is under contemplation. We are, therefore, of the view that the ground for rejecting the plan submitted by the respondent No. 5 was not tenable and the appellate authority was justified in allowing the appeal. It is urged by Mr. Kalsekar that in any event no appeal lay under section 47 when the Municipal Corporation had decided to revise the development plan. We are afraid, we are unable to accept the contention. The same contention was advanced before the respondent No. 2 and it was rightly rejected. Section 47 of the Act does not warrant the contention urged by the learned Counsel. In our opinion, to hold that after the Municipal Corporation had decided to revise the development plan, no appeal would be competent to the State Government under section 47, would amount to legislating and rewriting the provision. Such a contention is without any substance and is rejected. The respondent No. 2 directed sanction of the plan out of 44,820.49 sq. yds. belonging to the respondent No. 5, on the following conditions: (i) 15% Recreation space to be left in Block 'A ' shall be kept on the southern side of the plot abutting the green space left from Block 'B ' after merging the Road area in the Green space. (ii) The Development shall be allowed IOD and C.C. shall be issued as per the Development Control Rules. (iii)The F.S.I. of the road area would be admissible on plot 'A ' as per Development Control Rule 10(2). (iv) The Municipal Commissioner, Municipal Corporation of Greater Bombay, Bombay, shall take over the possession of 926 the land proposed to be kept as Green on southern side, abutting the sea after getting the plots properly demarcated. The Municipal Commissioner, M.C., G.E., Bombay, may consider the proposal of allowing the development and maintenance of the park and garden space by the applicant party at their own cost after obtaining the possession of the lands now proposed to be kept green. The permission for development of plots as per plans submitted by appellants be granted by the M.C.B. M.C. subject to the conditions mentioned above. We are told that after the above conditions are worked out, the area that will be available to the respondent No. 5 for the construction of the hotel is only 19,951.10 sq. It is, therefore, apparent that in granting sanction to the plan, the respondent No. 2 was quite alive to public interest. At this stage, we may notice a very significant development that has taken place during the pendency of this appeal, namely, that the Municipal Corporation has, subsequent to the judgment of the High Court, prepared and published on April 30, 1984 a draft revised development plan. The plan of the respondent No. 5 is not inconsistent with the draft revised development plan. This fact demolishes all the contentions of the appellants against the plan submitted by the respondent No. 5. Realising this difficulty, Mr. Kalsekar assailed the draft revised plan on the ground that it was prepared in accordance with the direction of the respondent No. 2. This contention of the learned Counsel has no foundation whatsoever. There is no material on record to show that the Municipal Corporation which is the Planning Authority, had prepared the draft revised plan in accordance with the direction of the respondent No. 2. The respondent No. 2, in our opinion, has acted in public interest by imposing the conditions mentioned above. The conditions would show that considerable area out of the disputed land has been reserved for recreational ground or green belt. The plan, as sanctioned by the respondent No. 2 with the conditions imposed, has been shown in the draft revised plan. It was open to the Municipal Corporation to accept the verdict of the appellate authority and it has done so by not challenging it in the High Court or before this Court. In the circumstances, there is no merit in this appeal challenging the order of the respondent No. 2 sanctioning the development plan of the respondent No. 5. 927 Now we may take up the two Special Leave Petitions being Special Leave Petition (Civil) No. 173776 of 1985 and Special Leave Petition (Civil) No. 17377 of 1985. A few facts may be stated. The Municipal Corporation passed a resolution on 3.12.1973, inter Ala, extending the park reservation by including the remaining area of the land comprised in R.S. No. 416 and R.S. No. 417 (part) at Bandra. By another resolution dated 14.3.1974, the first resolution was modified limiting the reservation for the park to 7,000 sq. out of the disputed land. The petitioners, who are the appellants in the above appeal, filed two Misc. Petitions, namely, Misc. Petition No. 463 of 1974 challenging the legality and validity of the resolution dated 14.3.1974 and Misc. Petition No. 1406 of 1978 challenging the order of the Government of Maharashtra dated 25.7.1978 exempting the disputed land under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the 'Urban Land Ceiling Act '. Both the Misc. Petitions were dismissed by a learned Single Judge of the Bombay High Court. Two appeals were preferred by the petitioners against the judgment of the learned Single Judge to the Division Bench. On July 30, 1984 when the appeals were taken up for hearing, a prayer was made by the learned Counsel for the petitioners for an adjournment for two weeks on the ground that Shri Bhore, the Advocate on Record, had met with an accident and the learned Counsel was unable to proceed with the appeals without the Advocate on Record. The learned Judges of the Division Bench did not accede to the prayer of the learned Counsel for an adjournment for two weeks on the ground that the appeals were old appeals of 1979, and that the learned Counsel who prayed for adjournment himself appeared throughout the proceedings as an Advocate. The learned Judges, however, adjourned the appeals to the next day, that is, July 31, 1984 to enable the learned Counsel to be ready with the matter. On the next day, the learned Counsel did not appear and the learned Judges of the Division Bench disposed of the appeals ex parte by a judgment dealing with the contentions of the petitioners. The result was that both the appeals were dismissed. We do not think that we are called upon to consider whether the learned Judges should have granted an adjournment for two weeks as was prayed for by the learned Counsel. Suffice it to say that if an adjournment had been granted, multiplicity of proceedings could have been avoided. Be that as it may, the petitioners filed two applications for review. Both the said applications for review were dismissed by the 928 Division Bench after considering all the points including certain additional grounds to the effect that certain contentions had not been dealt with earlier by the judgment dated October 9/10, 1985. The petitioners have not challenged the judgment of the High Court passed on the review applications. They have, however, filed before this Court the above two Special Leave Petitions. Special Leave Petition (Civil) No. 17376 of 1985 arises out of Misc. Petition No. 463 of 1974 whereby the petitioners challenged the legality and validity of the said resolution dated 14.3.1974. We are of the view that the contention of the petitioners against the validity of the resolution is no longer tenable, regard being had to the fact that the draft revised development plan has since been published and the plan submitted by the respondent No. 5 and conditioned by the respondent No. 2 is not inconsistent with the draft revised plan. In that view of the matter, Mr. Kalsekar also has not seriously pressed the validity of the said resolution. Accordingly, Special Leave Petition (Civil) No. 17376 of 1985 is liable to be dismissed. So far as Special Leave Petition (Civil) No.17377 of 1985 is concerned, it has been strenuously urged by Mr. Kalsekar that in granting exemption to the respondent No. 5, the authority concerned has violated the relevant guidelines and also the provision of section 20 of the Urban Land Ceiling Act. Learned Counsel points out that one of the grounds for exemption is that 75,000 sq. of vacant land is available for the development of gardens. As a matter of fact, Counsel submits, it is not a vacant land, but contains 350 houses. It is submitted that granting exemption on the ground of availability of 75,000 sq. of open site for the purpose of gardens is a fraud on the Urban Land Ceiling Act. It is, accordingly, urged by the learned Counsel that the order granting exemption should be quashed. The above grounds of challenge to the order of exemption granted to the respondent No. 5 have all been considered by the High Court in its judgment disposing of the review applications. The petitioners have not challenged the judgment on review applications. The petitioners are only interested in seeing that sufficient area is kept reserved for a park or recreation ground for the benefit of the members of the public. They are not, in our opinion, concerned with the question as to the legality or otherwise of the exemption granted by the Government to the respondent No. 5 under the Urban Land Ceiling Act. A copy of the draft revised development plan has been produced before us by Mr. Desai, learned Counsel appearing on behalf of 929 the respondent No. 5. We are satisfied that the question whether or not sufficient quantity of land has been kept reserved for park and recreation ground has been adequately considered and taken into account by the High Court. In the circumstances, we do not think that we are called upon to decide the legality or otherwise of the order granting exemption to the respondent No. 5 under the Urban Land Ceiling Act. There is, therefore no substance also in Special Leave Petition (Civil) No. 17377 of 1985. In the result, the appeal and both the special leave petitions are dismissed. There will, however, be no order as to costs. G.N. Appeal and Petitions dismissed.

% A piece of land had been purchased for the construction of a five star hotel. In the sanctioned development plan the said land was shown in the residential zone and a contiguous parcel of land was shown as green belt. When the plan was submitted to the Municipal Corporation for the construction of a five star hotel, the Commissioner rejected the plan on the ground that it was proposed to earmark the said land as a recreational ground with suitable internal network of roads during the revision of the development plan which was in the offing. Aggrieved by the rejection, an appeal was preferred to the State Government under sec. 47 of the Maharashtra Regional and Town Planning Act, 1966. The appeal was heard by the Minister of State for Urban Development. The appellants herein, members of various ecological groups and rate payers of the Municipal Corporation, appeared and opposed saying that the land should be kept reserved for a green belt or recreational ground in the interest of the general public. However, the Minister set aside the order of the Municipal Commissioner and directed the sanctioning of the plan on certain conditions. The Municipal Corporation accepted the appellate order and did not challenge it. But the appellants filed a Writ Petition challenging the legality of the order. The writ petition was dismissed by the High Court. The present appeal by special leave is against this dismissal. Meanwhile the Municipal Corporation passed a resolution extending the park reservation by including the remaining area of the land in question. By another resolution the first resolution was modified limiting the reservation for the park to 7,000 sq. yards out of the dis 920 puted land. Thereafter the State Government exempted the disputed land under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. The resolutions and the order were challenged in the High Court. The petitions were dismissed by a Single Judge of the High Court and later by the Division Bench on appeal. The Review Petitions also met the same fate. The petitioners have not challenged the judgment of the High Court passed on the review applications, but filed before this Court the two special leave petitions challenging the legality and validity of the two resolutions and the order of Government giving exemption under section 20 of the Urban Land (Ceiling and Regulation) Act. Dismissing the appeal, and the special leave petitions, this Court, ^ HELD: 1.1 In allowing the appeal and directing sanction of the development plan, the Minister observed that in view of the clear provisions of sections 46 and 31(6) of the Act and having regard to the position that in the sanctioned plan of 1966, the said land was included in the residential zone and no proposal to exclude it therefrom in the draft revised development plan had been published, the Municipal Commissioner was not justified in rejecting the application for approval of the plan on the ground that the Bombay Municipal Corporation had decided to revise the 1966 Development Plan. The Minister was of the view that the Planning Authority could only take into consideration any draft or final plan or proposal which had been published by means of notice, or sanctioned under the Act. When Municipal Commissioner rejected the plan, there was no draft revised development plan in existence. It was in contemplation. If there had been such a plan, the Municipal Commissioner would be entitled to rely upon the same in rejecting the plan. The Commissioner was not justified in merely relying upon a proposal for the preparation of a draft revised plan. An order rejecting a development plan submitted by the owner of the land should be supported by some concrete material. In the absence of any such material, it will be improper to reject the plan on the ground that there is a proposal for revision of the draft plan or that such a revision is under contemplation. Therefore, the ground for rejecting the plan was not tenable and the appellate authority was justified in allowing the appeal. [923H; 924A B, H; 925A C] 1.2 The Municipal Corporation has, subsequent to the judgment of the High Court, prepared and published a draft revised development plan. The plan is not inconsistent with the draft revised development plan. There is no material on record to show that the Municipal Corporation which is the Planning Authority, had prepared the draft revised 921 plan in accordance with the direction of the Minister. The Minister has acted in public interest by imposing the conditions. The conditions would show that considerable area out of the disputed land has been reserved for recreational ground or green belt. The plan, as sanctioned with the conditions imposed, has been shown in the draft revised plan. It was open to the Municipal Corporation to accept the verdict of the appellate authority and it has done so by not challenging it in the High Court or before this Court. [926E H] 2. The contention of the petitioners against the validity of the resolution is no longer tenable, regard being had to the fact that the draft revised development plan has since been published and the plan submitted and conditioned by the Minister is not inconsistent with the draft revised plan. The petitioners have also not seriously pressed the validity of the said resolution. [928C D] 3. This Court is not called upon to decide the legality or otherwise of the order granting exemption. These have been considered by the High Court in its judgment disposing of the review applications. The petitioners have not challenged the judgment on review applications. The petitioners are only interested in seeing that sufficient area is kept reserved for a park or recreation ground for the benefit of the members of the public, and are not concerned with the question as to the legality or otherwise of the exemption granted by the Government. The question whether or not sufficient quantity of land has been kept reserved for park and recreation ground has been adequately considered and taken into account by the High Court. [928G H; 929A]

Civil Appeal No. 2107 of 1987. From the Judgment and Order dated 3.3.1986 of the Delhi High Court in Writ Petition No. 2503 of 1985. R.K. Garg and D.K. Garg for the Appellant. M.S. Rao and C.V. Subba Rao for the Respondents. The Judgment of the Court was delivered by RAY, J. Special leave granted. Heard arguments of learned counsel for the parties. This appeal by special leave is against the judgment and order dated 3rd March, 1986 passed by the High Court at Delhi dismissing the writ petition No. 2503 of 1985. The facts of the case in brief are that the appellant was appointed to the post of Craftsman (Jawan) on November 23, 1973. We was sent to 3 E.M.E. Centre, Bhopal for training. After completion of his two years ' training he was posted to 80 EME Battalion C/o 56. A.P.O. on July 25, 1975. The appellant in view of his good service was promoted to the post of Naik and subsequently he was confirmed in that post. During his service as Jawan and as a Naik, the appellant served at various places in the country including the field area at Punj Sector in 956 Jammu & Kashmir. The appellant was reverted from the post of Naik to the post of Jawan (Craftsman) by Lt. Col. G.S. Srivastava and he was, thereafter, directed to report to NEFA. The appellant joined his post in NEFA. However, the appellant was subsequently transferred and posted in Panagarh. One Major N.K. Tiwari who was the Commanding Officer of the said regiment became very much displeased with the appellant as he did not comply with his directions to go to Kanpur to bring his personal goods from Kanpur to Panagarh. The appellant was harassed and maltreated in various ways. The appellant being unable to bear the torture caused to him approached Col. R.K. Mehta, Commanding Officer, EME Depot Battalion, Sikandrabad and surrendered to the mercy of the said Colonel. The Colonel advised the appellant to go back to Panagarh and report to his Unit. The appellant was sent with the certificate of surrender. On his return, the appellant was not permitted to join his duty; but he was taken into the custody immediately and thereafter he was directed by Major Tiwari to be treated without leave for three days and should be court martialled for the same. The appellant was charge sheeted for the purpose and he was convicted to 42 days imprisonment in military custody. During the period of his remaining in military custody, he was given only a small sum of Rs.60 and as such his family had to suffer much harassment. The appellant, however, on 12th September, 1984 left Panagarh with his wife and children for Kanpur without taking any leave. It is stated that he became unwell and he was under the treatment of a doctor. After coming round he reported to Panagarh and reported in his Unit with the fitness certificate. The appellant was called by the Officer Commanding and he was served with a charge sheet on November 2, 1984 wherein it was ordered by Major P.S. Mahant that the appellant be tried by a Summary Court Martial. It has been alleged that Major Mahant appointed his close associate Captain K.J. Singh to record summary of evidence. The appellant was not given proper opportunity to defend himself. In the proceedings the appellant was not allowed to raise any objections. On 9th November, 1984, the order of dismissal from service of the appellant was made by Major P.S. Mahant, Commanding Officer, in the summary court martial. The appellant challenged this order by a writ petition being Civil Writ Petition No. 2503 of 1985 on the ground that the Commanding Officer was not legally competent to preside a summary court martial. It was also stated in the petition that the punishment of dismissal from service was disproportionate to the charge; he was denied a fair 957 opportunity to defend himself and was in fact not permitted to ask questions to the witnesses. The appellant so prayed for issuance of an appropriate writ for quashing the impugned order of dismissal from service and also for a direction to the respondents to pay the entire arrears of salary and allowances which are legally due to him. The writ petition was heard by a Division Bench of the High Court at Delhi and it was dismissed on March 3, 1986 holding inter alia that no objection was taken before the Summary Court Martial that the appellant was not allowed to be represented by his counsel. It was also held that in the writ petition no objection was taken as to the competence of Major P.S. Mahant to act as a Judge in the Summary Court Martial nor objection was made to the effect that Captain K.J. Singh ordered him to keep his mouth shut. It was also observed that besides Major P.S. Mahant who was presiding Summary Court Martial there were two other members. The appellant, it was held, had earlier been convicted four times and entries were made in the red ink. The appellant was absent from duty without any leave and he pleaded guilty before the court martial proceedings and as such there was no illegality in the order of dismissal made in the court martial proceedings. It is against this judgment and order, the impugned appeal on special leave has been preferred before this Court. An affidavit in counter sworn by one Capt. D.K. Ghosh on behalf of the respondents has been filed. In paragraph 4 of the said affidavit, it has been submitted that Rule 39(2) of the Army Rules deals with the disqualification of officers for General and District Courts Martial. The said rule says that an officer is disqualified for serving on a general or district court martial if he is the Commanding Officer of the accused. The appellant has assailed the court martial proceedings on the ground that the Commanding Officer served on the Court Martial and as such the court martial proceedings are in breach of Rule 39(2) of the Army Rules, 1954. It has been further stated that the appellant was tried by a Summary Court Martial and not by a General or District Court Martial and Army Rule 39(2) does not apply to Summary Court Martial constituted under Section 116 of the . It has been further stated that a Summary Court Martial may be held by a Commanding Officer of any Corps, Department or Detachment of the regular army, as stipulated by Section 116(c) of the . It has been submitted that the appellant has been tried by a Summary Court Martial and he was sentenced to dismissal from 958 service on November 9, 1984. It has also been stated that the proceedings have been attended throughout by two other persons in accordance with the provisions of Section 116(1) of the said Act. It has been averred that in a case of Summary Court Martial as per Section 116 of the said Act, the Commanding Officer shall alone constitute the Court. The proceedings of the Court shall be attended by two officers/JCOs or one of either. It has been further stated that the appellant incurred the following red ink entries while serving with various units prior to the summary court martial: (i) 14 days R.I. in military custody under AA (Army Act) Sec. 39(a) on September 3, 1975 by 80 EME Bn. (ii) 3 days R.I. in military custody under A.A. Sec. 39(a) on 22nd June, 1979 by 1 EME Centre. (iii) Reduced to the rank under AA Sec. 63 on 24 January, 1983 by 174 Fd. (iv) 28 days R.I. and 14 days detention in mil. custody under AA Sec. 39(a) on 10th July, 1984 by 986 AD. Regt WKSP. The appellant was issued a show cause notice for discharge being unsuitable inefficient soldier on 30th August, 1984 to which he replied on 2nd September, 1984. The appellant again became absent without leave on 13th September, 1984. The appellant did not inform the Unit authority again of taking his family to Kanpur. While leaving for Kanpur he locked his quarter securely to keep possession of the family accommodation. The proceedings of the summary court martial were in accordance with the provisions of the and the order of dismissal from service of the appellant is a valid order. A rejoinder was filed by the appellant wherein he reiterated that the order of dismissal passed by the Commanding Officer, Major P.S. Mahant was illegal and contrary to the provisions of natural justice. The charge sheet was given to the appellant by the aforesaid Major alleging that the appellant remained absent from 13th September, 1984 to 30.10.1984 without leave from the Unit 's line and the said officer himself made an order that the appellant shall be tried by a summary court martial on that day. The said officer constituted the court of summary court martial and himself presided over the same. The order of dismissal was passed in violation of the rules of natural justice. It has also been submitted that the conviction of the appellant 959 was in utter breach of Articles 14 and 21 of the Constitution of India and as such the said order was liable to be set aside. The first submission on behalf of the appellant is that the constitution of the Summary Court Martial by the Commanding Officer Major P.S. Mahant is in contravention of Rule 39(2) of the Army Rules, 1954. the relevant provisions of Rules 39 are in the following terms: "Rule 39 . . (2) An officer is disqualified for serving on a general or district court martial if he: (a) is an officer who convened the court; or (b) is the prosecutor or a witness for the prosecution; or (c) investigated the charges before trial, or took down the summary of evidence, or was a member of a court of inquiry respecting the matters on which the charges against the accused are founded, or was the squadron, battery, company, or other commander, who made preliminary inquiry into the case, or was a member of a previous court martial which tried the accused in respect of the same offence; or (d) is the commanding officer of the accused, or of the corps to which the accused belongs; or (e) has a personal interest in the case." Rule 39(2) provides that an officer who is the Commanding Officer of the accused or of the corps to which the accused belongs or who is an officer who convened the court or who is the prosecutor or a witness for the prosecution and who has a personal interest in the case, is not eligible for serving on a general or district Court Martial. There are four kinds of court martials specified in Section 108 of the Army Act, 1959. These are: (a) General Courts Martial; (b) District Courts Martial 960 (c) Summary General Courts Martial; (d) Summary Courts Martial Section 116 of the said Act says that a summary court martial may be held by the commanding officer of any corps or department or detachment of the regular Army, and he shall alone constitute the court. It further provides that the proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed. In the instant case a summary court martial was held by the Commanding Officer, Major P.S. Mahant in accordance with the provisions of Section 116 of the Army Act. The Commanding Officer of the Corps, Department of Detachment of the Regular Army to which the appellant belongs, is quite competent in accordance with the provisions of Section 116 of the said Act and as such the constitution of the summary court martial by the Commanding Officer of the Corps cannot be questioned as illegal or incompetent. It is neither a general court martial nor a district court martial where the appellant 's case was tried and decided. In case of general court martial or district court martial Rule 39(2) of the Army Rules, 1954 is applicable and the Commanding Officer is not competent to convene general or district court martial. The summary court martial was held by the Commanding Officer of the corps, Major P.S. Mahant and there are two other officers including Capt. K.J. Singh and another officer to attend the proceedings. In such circumstances, the summary court martial having been convened by the Commanding Officer of the corps according to the provisions of the , the first submission made on behalf of the appellant fails. Chapter 6 of the specifies the offences and also the punishments for such offences. Section 39(a) specifies that to be absent without leave constitutes an offence and Section 71(e) of the said Act provides dismissal from service as one of the punishments for such an offence. The appellant undoubtedly absented himself from duty without taking any leave from the lines as required under the . The appellant was charge sheeted for the said offence and he was tried by a summary court martial convened by the Commanding Officer and after giving him due opportunity it was held that the appellant was previously punished also for the offence of absence from duty on four occasions and there was a red ink entry. Considering all this in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service. The submission 961 that the punishment is disproportionate to charge is wholly unsustainable. The summary court martial constituted by Major P.S. Mahant after considering the evidences has found the appellant guilty of the alleged charge and awarded the said punishment in accordance with the provisions of the . As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality. It has been urged on behalf of the appellant that he raised an objection to Major P.S. Mahant to preside over the summary court martial. It has also been urged that at the time of taking evidence of the witnesses, the appellant was asked to keep his mouth shut and as such the appellant could not cross examine the witnesses examined on behalf of the prosecution, thereby the principles of natural justice have been violated. It appears that the appellant has not filed any objection before the summary court martial objecting to the presiding of the court martial proceedings by Major P.S. Mahant nor any such objection had been taken in the writ petition moved before the High Court. It is for the first time in the appeal which the appellant filed before the Chief of the Army Staff (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S. Mahant as Judge of the court martial proceedings. It has been rightly held by the High Court that this is an after thought and as such this submission cannot be permitted to be made by the appellant after the court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was directed by Capt. K.J. Singh to keep his mouth shut, it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross examined the prosecution witnesses. It is also evident from the judgment of the Delhi High Court that the appellant admitted his guilt of absenting from duty without taking any leave. Considering all these facts and circumstances, the judgment and order passed by the High Court of Delhi appears to us as unassailable. We, therefore, dismiss the appeal and affirm the judgment and order of the High Court. There will be no order as to costs. N.V.K. Appeal dismissed.

% The appellant was appointed to the post of Craftsman (Jawan) on November 23, 1973. He was later promoted to the post of Naik in view of his good services and subsequently confirmed in that post. He served at various places in the country, including field areas. He was, however, reverted from the post of Naik to the post of Craftsman (Jawan). While he was in service he incurred the displeasure of the Commanding Officer of his regiment (Major) as he did not comply with his directions. He was consequently harassed and maltreated in various ways. Unable to bear the torture he surrendered to the mercy of the Commanding Officer of the Battalion (Colonel). He, however, directed him to surrender to the Commanding Officer of his regiment and gave him a certificate of surrender. The Commanding Officer took him into custody. He was charge sheeted for the purpose and sentenced to 42 days imprisonment in military custody. During the period of his remaining in military custody, his family suffered harassment. The appellant on 12th September, 1984 left station with his wife and children without taking any leave. He stated that he became unwell and was under the treatment of a doctor. When he reported back to his unit with the fitness certificate the Commanding Officer of his regiment served him with a charge sheet on November 2, 1984 and directed that he be tried by a summary court martial. On November 9, 1984, the order of dismissal of the appellant from service was made by the Commanding Officer in the Summary Court Martial. The appellant challenged the aforesaid order in a writ petition to the High Court, and sought quashing of the same contending: that the Commanding Officer was not legally competent to preside a summary 954 court martial, that the punishment of dismissal from service was disproportionate to the charge, that he was denied a fair opportunity to defend himself, and was in fact not permitted to question the witnesses. A Division Bench of the High Court however, dismissed the writ petition holding that no objection was taken before the Summary Court Martial that the appellant was not allowed to be represented by his counsel, that no objection was taken as to the competence of the Commanding Officer to act as a Judge in the Summary Court Martial, that the appellant had earlier been convicted four times and entries were made in red ink in his service record, and that as the appellant was absent from duty without leave and pleaded guilty before the court martial proceedings, there was as such no illegality in the order of dismissal made in the court martial proceedings. Dismissing the Appeal, ^ HELD: 1. Four kinds of courts martial are specified in Section 108 of the . These are:(a) General Courts Martial; (b) District Courts Martial; (c) Summary General Courts Martial and (d) Summary Courts Martial. [959G H; 960A] 2. Section 116 of the Act says that a summary court martial may be held by the Commanding Officer of any corps or department or detachment of the regular Army, and he shall alone constitute the court, and that the proceedings shall be attended throughout by two other persons who shall be Officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed. It is only in the case if general court martial or district court martial that Rule 39(2) of the Army Rules 1954 is applicable and the Commanding Officer is not competent to convene general or district court martial. [960B,D] 3. In the instant case, the summary court martial was held by the Commanding Officer of the Corps, Major P.S. Mahant and there were two other officers Captain K.J. Singh and another officer to attend the proceedings. In such circumstances, the summary court martial had been convened by the Commanding Officer according to the provisions of the . [960C, E F] 4. Section 39(a) of the Act specifies that to be absent without leave constitutes an offence, while Section 71(e) provides dismissal from service as one of the punishments for such an offence. [960F] 955 5. The appellant in the instant case, undoubtedly absented himself from duty without taking any leave from the lines as required under the , was charge sheeted for the said offence and tried by a summary court martial convened by the Commanding Officer. After giving him due opportunity it was held that the appellant was previously punished also for the offence of absence from duty on four occasions and there was a red ink entry. Considering all this, in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service. The submission on behalf of the appellant that punishment is disproportionate to the charge is wholly unsustainable. As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality. It is also evident from the judgment of the High Court that the appellant admitted his guilt of absenting from duty without any leave. [960G H; 961A B,F]

Civil Appeal No. 626 of 1981 Etc. From the Judgment and Order dated 12.12.1980 of the Kerala High Court in Civil Revision Petition No. 2939 of 1978. P.S. Poti, G. Viswanatha Iyer, A.K. Ganguli, T.S. Krishnamoorthy Iyer, E.M.S. Anam. R. Sathish, M.A. Firoz, N. Sudhakar, Miss Nalini Poduval and section Balakrishnan for the appearing parties. The following Judgments of the Court were delivered: NATARAJAN, J. These appeals by special leave and the special leave petition have been clubbed together and listed for consideration of a common question of law involved in them, viz. whether against an order of a District Court in revision under Section 20 of the Kerala Building (Lease & Rent) Control Act 2 of 1965 (for short the Kerala Act), a further revision would lie to the High Court under Section 115 of the Code of Civil Procedure. 877 Though the question is not res integra in view of the decision of this Court in Aundal Ammal vs Sadasivan Pillai, ; [1987] 1 SCC 133: , the appeals have been listed for consideration by a Bench of three Judges of the very same question in order to see whether there is any conflict between the views taken in Aundal Ammal 's case (supra) and a later decision of this Court in Shyamaraju Hedge vs G. Venkatesha Bhat & Ors., ; and whether the view taken in the earlier case requires reconsideration. Even at the threshold of the judgment it has to be mentioned that Aundal Ammal 's case arose under the Kerala Act whereas Shyamaraju Hedge 's case (supra) pertained to the Karnataka Rent Control Act. Since there are essential differences between the two Acts, it is necessary to set out the relevant provisions of the two Acts and the circumstances in which the decision pertaining to each Act came to be rendered by this Court. As per section 20(5) of the Kerala Act "a Rent Control Court" means a Court constituted under Section 3. Under Section 3(1) "the Government may, by Notification in the Gazette appoint a person who is or is qualified to be appointed, a Munsif to be the Rent Control Court for such local areas as may be specified therein. " Section 11 of the Act provides that a landlord can seek eviction of his tenant only by making an application to the Rent Control Court and it also sets out the grounds on which a landlord can seek eviction of his tenant. Section 18 of the Act provides for an Appeal being preferred by an aggrieved person to the Appellate Authority. The relevant portions of Section 18 are as under: "18. Appeal:(1)(a) The Government may, by general or special order notified in the Gazette, confer on such officers and authorities not below the rank of a Subordinate Judge the powers of appellate authorities for the purposes of this Act in such areas or in such classes of cases as may be specified in the order. (b) . . (2) . . (3) . . Explanation . . 878 (4) The appellate authority shall have all the powers of the Rent Control Court including the fixing of arrears or rent. (5) The decision of the appellate authority, and subject to such decision, an order of the Rent Control Court shall be final and shall not be liable to be called in question in any Court of law, except as provided in section 20." (Emphasis supplied). Then comes Section 20 which provides for Revisions and it reads as follows: "20. Revision:(1) In cases where the appellate authority empowered under section 18 is a subordinate Judge, the District Court, and in other cases the High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and may pass such order in reference thereto as it thinks fit. (2) The costs of and incident to all proceedings before the High Court or District Court under sub section (1) shall be in it discretion. 20A. Power to remand: In disposing of an appeal or application for revision under this Act, the appellate authority, or the revising authority, as the case may be, may remand the case for fresh disposal according to such directions as it may give. " The scope and effect of Section 20(1) read with Section 18(5) of the Kerala Act came to be examined by a Full Bench of the Kerala High Court in Vareed vs Mary, AIR 1969 Kerala 103. The Full Bench held that since the District Court exercising revisional powers under Section 20(1) of the Kerala Act functions as a Court and not as a persona designata, the ordinary incidence of the procedure of that Court including any right of appeal or revision will be inhered to the decision rendered by the District Court. In that view of the matter the Full Bench held that a decision of a District Court under Section 20 of the Kerala Act is undoubtedly amenable to the revisional jurisdiction 879 of the High Court especially when there is no provision in the Act providing for an appeal against an order of the District Court under Section 20 or in the alternative any express provision declaring the finality of the said order. The decision of the Full Bench held the field for a number of years in the State of Kerala and in all subsequent cases where the competence of the High Court to entertain a revision under Section 115 C.P.C. against an order of a District Court passed under Section 20(1) of the Kerala Act was challenged the contention was repelled by reference to the judgment of the Full Bench. One such case in point is Balagangadhara Menon vs T.V. Peter, [1984]KLT 845. The question decided by the Full Bench, however, came to be raised before this Court, in Aundal Ammal 's case (supra). A Bench consisting of E.S. Venkataramiah, J. and one of us (Sabyasachi Mukharji, J.) held that the ratio laid down by the Kerala High Court in Vareed 's case (supra) cannot be approved because the High Court had not properly construed Sections 18(5) and 20 of the Kerala Act. The relevant passage in the judgment is in the following terms: "In our opinion, the Full Bench misconstrued the provisions of sub section (5) of Section 18 of the Act. Sub section (5) of Section 18 clearly states that such decision of the appellate authority as mentioned in Section 18 of the Act shall not be liable to be questioned except in the manner under Section 20 of the Act. There was thereby an implied prohibition or exclusion of a second revision under Section 115 of the Code of Civil Procedure to the High Court when a revision has been provided under Section 20 of the Act in question. When Section 18(5) of the Act specifically states that "shall not be liable to be called in question in any court of law" except in the manner provided under Section 20, it cannot be said that the High Court which is a court of law and which is a civil court under the Code of Civil Procedure under Section 115 of the Code of Civil Produce could revise an order once again after revision under Section 20 of the Act. That would mean there would be a trial by four courts, that would be repugnant to the scheme manifest in the different sections of the Act in question. Public policy or public interest demands curtailment of law 's delay and justice demands finality with quick disposal of case. The language of the provisions of Section 18(5) read with Section 20 inhibits further revision. The courts must so construe. " 880 The Bench drew support for its conclusion from an earlier decision of this Court in Veshesh Kumar vs Shanti Prasad, ; 1980(2) SCC 378: ; In that case the two questions that case the two questions that fell for consideration were: "(1) Whether the High Court possesses revisional jurisdiction under section 115, Code of Civil Procedure in respect of an order of the District Court under section 115 disposing of a revision petition? (2) Whether the High Court possesses revisional jurisdiction under section 115 against an order of the District Court under section 25, Provisional Small Cause Courts Act disposing of a revision petition?" Answering both the questions in the negative, it was held in so far as question No. 1 is concerned, as follows: ". . In determining whether the Legislature intended a further revision petition to the High Court, regard must be had to the principle that the construction given to a statute should be such as would advance the object of the legislation and suppress the mischief sought to be cured by it. It seems to us that to recognise a revisional power in the High Court over a revisional order passed by the District Judge would plainly defeat the object of the legislative scheme. The intent behind the bifurcation of jurisdiction to reduce the number of revision petitions filed in the High Court would be frustrated. The scheme would, in large measure, lose its meaning. If a revision petition is permitted to the High Court against the revisional order of the District Court arising out of a suit of a value less than Rs.20,000, a fundamental contradiction would be allowed to invade and destroy the division of revisional power between the High Court and the District Court, for the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation below Rs.20,000. That was never intended at all. " The second question was answered as under: "The question before us arises in those cases only where the District Judge has exercised revisional power under section 881 25. Is an order so made open to revision by the High Court under section 115. Code of Civil Procedure? An examination of the several provisions of the Provincial Small Cause Courts Act indicates that it is a self sufficient code so far as the present enquiry is concerned. For the purpose of correcting decrees or orders made by a Court of Small Causes the Act provides for an appeal and a revision in cases falling under section 24 and section 25 respectively. Cases in which the District Judge and High Court respectively exercise revisional power, revisional powers are specifically mentioned. A complete set of superior remedies has been incorporated in the Act. Moreover, section 27 of the Act provides: "27. Finality of decrees and orders. Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final. " The Legislature clearly intended that a decree or order made by a Court of Small Causes should be final subject only to correction by the remedies provided under the Provincial Small Cause Courts Act. It is a point for consideration that had section 25, in its application to the State of Uttar Pradesh continued in its original form the High Court would have exercised the revisional power under section 25, and no question could have arisen of invoking the revisional power of the High Court under section 115 of the Code. All the indications point to the conclusion that a case falling within the Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by the Code of Civil Procedure. By way of abundant caution section 7 of the Code made express provision barring the application of sections 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act. Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause Courts Act. Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect. No change in the principle was brought about merely because revisional power under section 25, before the proviso was added, was now entrusted to the District Judge. It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the 882 burden of exercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act. We are of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in section 25, that the hierarchy of remedies enacted in the Provincial Small Cause Court Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute. " Taking the same view of the Kerala Act, which is also a selfcontained Act it was held in Aundal Ammal 's case (supra) that "the Full Bench of the Kerala High Court was in error and the High Court in the instant case had no jurisdiction to interfere in this matter under Section 115 CPC. " Coming now to the Karnataka Act and the decisions of the High Court and of this Court pertaining to Section 50 read with Section 48(6) of the said Act, it is first necessary to refer to the relevant provisions of the Act as they stood before and after the amendments effected by the Amendment Act 31 of 1975. The relevant portions of Section 48 and 50, as they stood before the amendment and after the amendment are as under: Before the Amendment After the Amendment 48. Appeals: (1)Notwithstanding Appeals: (1) omitted. anything contained in any law for the time being in force, every person aggrieved by an order under section 14, Section 16, Section 17 or section 21, passed by the Controller or the Court may within thirty days from the date of the order, prefer an appeal in writing to the District Judge having jurisd iction over the area in which the premises are situate. 2. . 2. . . 3. . 3. . . 4. . 4. . . 5. The appellate authority 5. The appllate authority shall send for the records shall send for the records of 883 of the case from the Courtthe case from the Controller and or the Controller, as the caseafter giving the parties an oppor may be, and after giving thetunity of being heard and if parties an opportunity of beingnecessary after making such further heard and if necessary afterenquiry as it thinks fit either itself making such further enquiry asor through the Controller shall it thinks fit, either itself ordecide the appeal. through the Court or the Contro ller, as the case may be, shall decide the appeal. Explanation . . . 6. Subject to any decision of the6. An order of the court or the High Court under section 50 theController shall, subject to the decision of the District Judge shalldecision of the District Judge or th e be final, and an order of the CourtHigh Court under section 50 or of or the Controller shall, subject tothe relevant appellate authority the decision of the relevant appel under this Act be final and shall late authority under this Act or ofnot be liable to be called in questio n the High Court under section 50,in any court of law whether in a be final and shall not be liable tosuit or other proceeding or by way be called in question in any courtof appeal or revision. of law whether in a suit or other proceedings or by way of appeal or revision. Revision by the High Court50. Revision. The High Court may, at any(1).The High Court may,at any time, call for and examine time,call for examine any order passed or proceeding taken by the (i) the records relating to anycourt of Civil Judge under this Act decision given or proceedingsor any order passed by the Con taken by the District Judge.troller under sections 14,15 16,or 17 for the purpose of satisfying itself (ii) any order passed or proceed as to the legality or correctness of ing taken by the Court under thissuch order or proceeding and may Act or any order passed by thepass such order in reference Controller under section 14,thereto as it thinks fit. section 15 or section 16. for the purpose of satisfying itself as to the legality or correctness of such decision, order or proceeding and may pass such order in reference thereto as it think fit; 2. The costs of, and incidental2. The District Judge may, at any all proceedings before the Hightime, call for and examine any order Court shall be in its distretion.passed or proceeding taken by the 884 Court of Munsiff referred to in sub clause(iii)of clause (d) of section(3)for the purpose of satisfying himself as to the legality or correctness of such order in reference thereto as he thinks fit. the order of the District Judge shall be final. The costs of and incidental to all proceedings before the High Court or the District Judge shall be in the discretion of the High Court or the District Judge, as the case may be. " On a reading of the provisions it may be seen that under Section 48 as it stood prior to the amendment, an appeal lay to the District Judge against an order passed under Sections 14, 16, 17 or 21 by the Rent Controller or the Court and thereafter a revision lay to the High Court under Section 50 of the Act. Sub section (6) of Section 48 further provided that the decision of the District Judge shall, subject to the decision of the High Court under Section 50, be final and the order of the Court or the Controller shall subject to the decision of the relevant Appellate Authoirty under the Act or of the High Court under Section 50 be final and shall not be liable to be called in question in any court of law, whether in a suit or other proceedings or by way of appeal or revision. One of the changes effected by the Amending Act was to confer jurisdiction on Civil Judges in the place of District Munsifs in respect of house rent control cases arising in the city of Mangalore. Another change effected was to take away the right of appeal to the District Judge against a decision of a Rent Control Court by deleting sub section (1) of Section 48. The third change effected is of a two fold nature. The first is to restrict the High Court 's powers of revision under Section 50 to only those cases decided by the city Civil Judges and the second is to confer revisional powers on District Judges in respect of cases decided by the Munsifs exercising jurisdiction in areas outside the city of Bangalore. Thus what the legislature had done was to do away with the remedy of an appeal so as to save the litigants from "a large segment of time and much expenses". The resultant position is that as against the orders of District Munsifs acting as Rent Controllers a right of appeal to the District Judge and a further revision to the High Court has been taken away and instead only a right of revision to the District Court is provided. In so far as the cases disposed of by the Civil Judges in the city of Bangalore are concerned, a right of revision is provided to the High Court. Notwithstanding the changes effected, 885 Section 48(6) inter alia provided that an order of the Court or the Controller shall, subject to the decision of the District Judge or the High Court under Section 50 be final and shall not be liable to be called in question in any court of law, whether in a suit or other proceeding or by way of appeal or revision. In the background of the changes made by the legislature, a Full Bench of the Karnataka High Court went into the question in Krishnaji Venkatesh Shirodkar vs Gurupad Shivram Kavalekar & Others, ILR 1978 Karnataka 1585 whether by reason of Section 48(6) a further revision against a revisional order passed by the District Judge under Section 50(2) of the Karnataka Act would lie or not to the High Court under Section 115 of C.P.C. Venkataramiah, J. (as he then was), who spoke for the Full Bench held that in the light of the decisions of the Supreme Court in Chhaganlal vs The Municipal Corporation, Indore, ; and Krishnadass Bhatija vs A.S. Venkatachala Shetty, SLP (Civil) No. 913 of 1978 decided on 13th February 1978 the jurisdiction of the High Court under Section 115 C.P.C. to revise an order of the District Judge passed under Section 50(2) will stand unaffected. The correctness of this view was questioned before another Full Bench of the Karnataka High Court in M.M. Yaragatti vs Vasant & Others, AIR 1987 Karnataka 186. The Full Bench took the view that in the light of the decisions of the Supreme Court in two subsequent cases, viz. Aundal Ammal 's case (supra) and Vishesh Kumar 's case (supra), the law laid down in Krishnaji 's case (supra) cannot be considered good law any longer and as such a further revision to the High Court under Section 115 C.P.C. will not lie against an order passed by a District Judge in exercise of his revisional powers under Section 50(2) of the Karnataka Act. The correctness of the view taken by the Full Bench in Yaragatti 's case (supra) fell for consideration by this Court in Shyamaraju 's case (supra). A Bench of this Court held that in so far as the Karnataka Act is concerned, the relevant provisions warranted invoking the ratio in Chhaganlal 's case (supra) and Krishna Das Bahtija (supra) and therefore the view taken by the earlier Full Bench in Krishnaji 's case (supra) is the correct one and not the view taken in Yaragatti 's case (supra). The position, therefore, is that so far as the Karnataka Act is concerned an order of a District Judge under Section 50(2), though conferred finality under the Act is nevertheless open to challenge before the High Court by means of a further revision under Section 115 C.P.C. by the aggrieved party. 886 What now falls for consideration is whether there is any conflict between the decision in Aundal Ammal 's case (supra) and Shyamaraju Hegde 's case (supra) and whether the ratio in the former case requires reconsideration. Even without any discussion it may be seen from the narrative given above that there is really no conflict between the two decisions because the provisions in the two Acts are materially different. However, to clarify matters further we may point out the differences between the two Acts in greater detail and clarity. Under the Kerala Act, against an order passed by a Rent Control Court presided over by a District Munsif, the aggrieved party is conferred a right of appeal under Section 18. The Appellate Authority has to be a judicial officer not below the rank of a Subordinate Judge. The Appellate Authority has been conferred powers co extensive with those of the Rent Control Court but having over riding effect. Having these factors in mind, the Legislature has declared that in so far as an order of a Rent Control Court is concerned it shall be final subject only to any modification or revision by an Appellate Authority; and in so far as an Appellate Authority is concerned, its decision shall be final and shall not be liable to be called in question in any Court of law except as provided in section 20. As regards Section 20, a division of the powers of revision exercisable thereunder has been made between the High Court and the District Court. In all those cases where a revision is preferred against a decision of an Appellate Authority of the rank of a Subordinate Judge under Section 18, the District Judge has been constituted the revisional authority. It is only in other cases i.e. where the decision sought to be revised is that of a judicial officer of a higher rank than a Subordinate Judge, the High Court has been constituted the Revisional authority. The revisional powers conferred under Section 20, whether it be on the District Judge or the High Court as the case may be are of greater amplitude than the powers of revision exercisable by a High Court under Section 115 C.P.C. Under Section 20 the Revisional Authority is entitled to satisfy itself about the legality, regularity or propriety of the orders sought to be revised. Not only that, the Appellate Authority and the Revisional Authority have been expressly conferred powers of remand under Section 20A of the Act. Therefore, a party is afforded an opportunity to put forth his case before the Rent Control Court and then before the Appellate Authority and thereafter if need be before the Court of Revision viz. the District Court if the Appellate Authority is of the rank of a Subordinate Judge. The Legislature in its wisdom has thought that on account of the ample opportunity given to a party to put forth his case before 887 three courts, viz. the Trial Court, the Appellate Court and the Revisional Court, there was no need to make the revisional order of the District Court subject to further scrutiny by the High Court by means of a second revision either under the Act or under the Civil Procedure Code. It has been pointed out in Aundal Ammal 's case (supra) that the Full Bench of the Kerala High Court had failed to construe the terms of Section 20 read with Section 18(5) in their proper perspective and this failing had affected its conclusion. According to the Full Bench, a revisional order of a District Court under Section 20 laid itself open for further challenge to the High Court under Section 115 C.P.C. because of two factors viz. (1) there was no mention in the Act that the order would be final and (2) there was no provision in the Act for an appeal being filed against a revisional order under Section 20. The Full Bench failed to notice certain crucial factors. In the first place, Section 20 is a composite section and refers to the powers of revision exercisable under that Section by a District Judge as well as by the High Court. Such being the case if it is to be taken that an order passed by a District Court under Section 20 will not have finality because the Section does not specifically say so, then it will follow that a revisional order passed by the High Court under Section 20(1) also will not have finality. Surely it cannot be contended by anyone that an order passed by a High Court in exercise of its powers of revision under Section 20(1) can be subjected to further revision because Section 20(1) has not expressly conferred finality to an order passed under that Section. Secondly, the terms of Section 20(1) have to be read in conjunction with Section 18(5). Section 18(5), as already seen, declares that an order of a Rent Control Court shall be final subject to the decision of the Appellate Authority and an order of an Appellate Authority shall be final and shall not be liable to be called in question in any court of law except as provided for in Section 20. When the Legislature has declared that even an order of the Rent Control Court and the decision of the Appellate Authority shall be final at their respective states unless the order is modified by the Appellate Authority or the Revisional Authority as the case may be, there is no necessity for the legislature to declare once over again that an order passed in revision under Section 20(1) by the District Judge or the High Court as the case may be will also have the seal of finality. The third aspect is that the Legislature has not merely conferred finality to the decision of an Appellate Authority but has further laid down that the decision shall not be liable to be called in question in any court of law except as provided for in Section 20. These additional words clearly spell out the prohibition or exclusion of a second revision under Section 115 C.P.C. to the High Court against a revisional order passed by a District Court 888 under Section 20 of the Act. This position has been succinctly set out in para 20 of the judgment in Aundal Ammal 's case (supra). As was noticed in Vishesh Kumar 's case, the intent behind the bifurcation of the jurisdiction is to reduce the number of revision petitions filed in the High Court and for determining the legislative intent, the Court must as far as possible construe a statute in such a manner as would advance the object of the legislation and suppress the mischief sought to be cured by it. A thought may occur to some whether by a rigid construction of Section 20(1) read with Section 18(5), the High Court 's power of superintendence over the District Court, even when it functions as a revisional court under Section 20(1) of the Kerala Act, will not stand forfeited. We may only state that legislative history would indicate that the superintending and visitorial powers exercisable by a High Court under Section 115 C.P.C. appear to have been conferred and vested "because the supervisory jurisdiction to issue writs of certiorari and prohibition over Subordinate Courts in the mofussil could not be exercised, (and hence) it would be reasonable to hold that it was intended . . to be analogous with the jurisdiction to issue the high prerogative writs and the power of supervision under the Charter Act and its successor provisions in the Constitution Acts." vide para 10 S.S. Khanna vs Dillon, ; Incidentally, we may also point out that the Legislature has not taken away and indeed it cannot take away the power of superintendence of the High Court under Article 227 of the Constitution over all courts and tribunals which are within the territories in relation to which the High Court exercise its jurisdiction. Having said so much it is really not necessary for us to dwell at length about the decision in Shyamaraju 's case restoring the ratio in Krishnaji 's case and disapproving the decision in Yaragatti 's case. Even so we cannot but refer to the fact that in the Karnataka Act the right of appeal has been completely taken away and the entire proceedings are sought to be limited to a two tier system viz. the Rent Control Court and the Revisional Court, whereas under the Kerala Act there is a three tier system viz. the Rent Control Court, the Appellate Court and the Revisional Court. Though Section 48(6) of the Karnataka Act (as amended) also speaks of the finality of the order of the Rent Control Court, subject to the decision of the Revisional Court under Section 50 in more or less the same terms as in Section 18(5) of the Kerala Act, the force underlying the words "shall be final 889 and shall not be liable to be called in question" etc. has to be reckoned at a lesser degree than the terms in the Kerala Act because the words of finality in the two Acts under the relevant provisions present distinctly different perspections. It is in that situation it was found in Shyamaraju 's case that the relevant provisions of the Karnataka Act warranted the application of the ratio in Chhaganlal 's case and Krishnadas Bhatija 's case rather than the ratio in Vishesh Kumar 's case and Aundal Ammal 's case. In fact, it is worthy of notice that Venkataramiah, J. who spoke for the Full Bench in Krishnaji 's case was a party to the judgment in Aundal Ammal 's case and the learned judge, while concurring with Sabyasachi Mukharji, J., who spoke for the Bench, has not deemed it necessary to make any reference to the Full Bench decision in Krishnaji 's case. There is, therefore, no conflict between the decision rendered in Aundal Ammal 's case (supra) and Shyamaraju 's case (supra). As to the question whether a fresh thinking is called for on the scope of Section 20 read with Section 18(5) of the Kerala Act, we do not find any grounds for reconsidering the view taken in Aundal Ammal 's case and on the contrary our renewed discussion of the matter only calls for a reiteration of the view expressed in Aundal Ammal 's case. An argument was advanced that since the decision in Vareed vs Mary had been good law for a number of years in Kerala State and since the High Court had been entertaining revision petitions under Section 115 C.P.C. against the revisional orders of District Courts under Section 20(1) of the Kerala Act, the decision should have been allowed to stand even though the reasoning therein was not commendable for acceptance by this Court. We are unable to countenance this argument in the circumstances of the case and the reason therefore can be set out by refering to certain English decisions and the reasoning adopted therein. In West Ham Union vs Edmonton Union, 13 at page 4 Lord Loreburn, L.C. spoke as under: "Great importance is to be attached to old authorities, on the strength of which many transactions may have been adjusted and rights determined. But where they are plainly wrong, and especially where the subsequent course of judicial decisions has disclosed weakness in the reasoning on which they were based, and practical injustice in the consequences that must flow from them, I consider it is the duty of this House to overrule them, if it has not lost the right to do so by itself expressly affirming them." 890 In Robinson Brothers (Brewers) Ltd. vs Houghton & Chesteric Street Assessment Committee, 12 1937 2 All E.R. 298, affirmed in , the members of the Court, having concluded that a decision on a question of rating pronounced some forty years previously by a Divisional Court was plainly wrong, overruled it accordingly, although the earlier decision had, without doubt, been frequently acted on in rating matters in the meantime, and although no judicial doubt had previously been cast on its correctness. These decisions have been referred to and followed in Brownsee Haven Properties Ltd. vs Poole Corporation, All E.R. 1958 1205. On similar lines this Court deemed it necessary to overrule the ratio in Vareed vs Mary, (supra) as the decision suffered from misconstruction of the relevant Sections in the Act and the weakness in the reasoning became manifest in the light of the subsequent decision of this Court such as in Vishesh Kumar (supra). In the light of our conclusion all the appeals must succeed in so far as the challenge to the right of the High Court to entertain revision petitions under Section 115 C.P.C. is concerned. In Civil Appeal Nos. 626 of 1981 and 624 of 1985, the High Court allowed the revision petition under Section 115 C.P.C. and ordered the eviction of the tenant. In Civil Appeal No. 2079 of 1981 the District Judge set aside the order of eviction but the High Court restored the order of eviction. In Civil Appeal No. 1619 of 1986 the District Court allowed the Revision and restored the order of eviction passed by the Rent Controller and the High Court has confirmed the said order in the revision preferred to it. In Civil Appeal No. 7505 of 1983 the District Court reversed the decisions of the Rent Controller and the Appellate Authority and ordered eviction and order of the District Court has been confirmed by the High Court. In Special Leave Petition No. 4311 of 1985 the Appellate Authority sustained the claim of the landlord for eviction under Section 11(3) of the Act but remanded the case to the Rent Control Court for deciding the question whether the tenant is entitled to resist the claim for eviction on the basis of the second proviso to Section 11(3) of the Act. The order of remand was confirmed by the District Court and the High Court. In accordance with our pronouncement it follows that the order of the High Court under Section 115 C.P.C. in each of the appeals concerned, viz., Civil Appeal Nos. 626 of 1981, 624 of 1985, 2079 of 1981, 1619 of 1986 and 7505 of 1983 will stand set aside and the revisional order of the District Judge in each case will stand restored and become operative. As the appeals are directed only against the order 891 of the High Court passed in revision the appeals will stand disposed of with the said pronouncement on the above lines. In Special Leave Petition (Civil) No. 4311 of 1985 also the order of the High Court under Section 115 C.P.C. is not sustainable but even so we do not find any merit in the petition because the finding of the Appellate Authority and the order of remand passed by it have been confirmed by the District Court and as such, there are no merits in the petition, accordingly it is dismissed. Interim orders, if any, passed in the appeals and the special leave petition will stand vacated. The parties in all the cases are directed to bear their respective costs. section RANGANATHAN, J. 1. I find on a cursory perusal of various State enactments on rent control that, while a number of them do confer s . cific jurisdiction on the State High Court, some others are broadly on the same pattern as the Kerala and Karnataka enactments. Thus, though we are concerned only with Kerala and Karnataka enactments in these cases, a similar question might well arise under the corresponding enactments of some other States as well. It is in view of this importance of the question raised that I have considered it necessary to state my views in a separate order. The Kerala and Karnataka Rent Control Acts vest a power of revision in the District Judge against certain orders. The question in these matters is whether the jurisdiction of the High Court under section 115 of the Code of Civil Procedure (C.P.C.) can be invoked to seek a further revision of the revisional order passed by the District Judge. This question has been answered in the negative in Aundal Ammal vs Sadasivan Pillai, (a decision under the Kerala Act) but in the affirmative in Shyamaraju Hegde vs Venkatesha Bhat, ; (a decision under the Karnataka Act) and hence this reference to a larger Bench. My learned brothers are of the view that there is no conflict between the above two decisions as the two enactments are not in pari materia and that, so far as the Kerala Act is concerned, Aundal Ammal should be followed. With respect, I am unable to agree. Normally, a revision lies to the High Court under section 115 of the C.P.C. against any order of the District Judge/Court. The fact that the order may have been passed under a special statute or that the statute contains expressions purporting to confer finality on the order of the District Judge/Court or a subordinate authority or Court have been held insufficient to take away this jurisdiction. This is the effect 892 of the decisions in Chhaganlal vs The Municipal Corporation, Indore, ; , a case under the Madhya Pradesh Municipal Corporation Act and in Krishandas Bhatija vs Venkatachala Shetty, SLP No. 913 of 1978 decided on 13.2.1978 and Shyamaraju 's case (supra), which are direct decisions under the Karnataka Act. In my opinion, there is no vital or material difference between the two enactments in this respect and that the same result should follow under the Kerala Act also. The relevant provisions of the two enactments have been extracted in the order of Natarajan J. and need not be set out again, Under the Karnataka Act, after its amendment in 1975, rent control matters are decided, in the first instance, by the District Munsiff or the Civil Judge/Rent Controller, according as the case arises outside or inside the city of Bangalore. There is no provision for an appeal from this order but there is one for revision. This revisional power is bifurcated under section 50 between the High Court and the District Judge. The High Court is empowered to revise the order of the Civil Judge/Rent Controller and the District Judge that of the District Munsiff. Section 50(2) specifically declares that the order of the District Judge under this provision is final. The Kerala pattern is the same except that an appeal intervenes before the revision. Section 18 provides for an appeal from the Rent Controller to an officer or an authority of the rank of a Subordinate Judge or of a superior rank. Section 20 provides for revision. The revisional power is to be exercised by the District Court where the appellate authority is the Subordinate Judge and the High Court in other cases. Section 20 does not provide, as does Section 50 of the Karnataka Act, that the decision of the District Judge shall be final. It is true that section 18(5) of the Kerala Act lays down that the order of the Rent Control court or, where there is an appeal, the decision of the appellate authority shall be final and shall not be called into question in any court of law except as provided in section 20 but the language of section 48(5) of the Karnataka Act is even stronger. It provides that the order of the Court or the Rent Controller shall (subject to the decision in appeal or of the District Judge or the High Court in revision under section 50) be final and "shall not be liable to be called into question in any court of law whether in a suit or other proceeding or by way of appeal or revision. " If the much wider and more emphatic language of the Karnataka Act does not exclude the jurisdiction of the High Court under section 115, as has been held in the two cases referred to above, it is difficult to see the justification for reading any such exclusion into the Kerala Act. 893 5. This poses then the question of a choice between the two views of this court: the one in Shyamaraju and the one in Aundal Ammal. As has already been pointed out, Shyamaraju follows the earlier decisions of this Court in Chhagan Lal and Krishnadas Bhatija. The only other decision of this Court, which has relevance in the present context, is Vihesh Kumar vs Shanti Prasad, ; which has been relied upon in Aundal Ammal. I am in agreement with the view expressed in Shyamaraju that Vishesh Kumar was rendered in a totally different statutory context. That decision turned largely on the legislative history of section 115 of the C.P.C. and section 25 of the Provincial Small Causes Courts Act in their application to the State of Uttar Pradesh. I am therefore inclined to lean in favour of the view that has commended itself to this Court as to the interpretation of the Karnataka Act and to hold that the High Court has a power of revision over the order of the the District Judge under the Kerala Act as well. Aundal Ammal has pointed out that such an interpretation would enable parties to have recourse to four courts under the Kerala Rent Control Act viz: the court of the first instance, the appellate court, the district court and then the High Court whereas under the Karnataka Act there are only three courts, viz: the court of the first instance, the district court by way of revision and the High Court by way of further revision. This is no doubt true but can this alone be a reason why identical statutory language should be given different interpretation under the two enactments? I think not. That apart, the result of applying Aundal Ammal would be to completely exclude the High Court in rent control matters and this, if I am right in thinking that the two Acts are pari materia, will leave the litigant in Karnataka with only a right of revision to the District Court. I venture to doubt whether in the absence of clear language the Legislature can be held to have intended to completely exclude the jurisdiction of the High Court in such an important branch of the law. Moreover to exclude the revisional jurisdiction of the High Court under section 115 would only encourage the recourse, by aggrieved parties, to articles 136, 226 and 227 of the Constitution and the conclusion may not even result in reducing the spate of litigation under the Rent Control Acts in the High Courts and Supreme Court. I am, therefore, not inclined to attach muct importance to this circumstance as a guide to the interpretation of the relevant provisions of the statute. The above interpretation will not render the language and scheme of section 18(5) read with section 20 totally redundant as was suggested in arguments before us. Section 20 is necessary because 894 though, at present, Subordinate Judges have been constituted as the appellate authorities under the Act, the appellate authority need not necessarily be a regular civil court and, but for such a specific statutory provision, there would be no remedy to a party aggrieved by an order of the appellate authority. Section 18(5) is a provision of a general nature intended to prevent the orders of the Rent Controller from being challenged in the courts. These provisions, in my opinion, do not and cannot preclude the applicability of section 115 of the C.P.C. to an order passed by the District Court, not as a persona designata, but as a civil court of the land. In this view of the matter, sections 18 and 20 have a vital part to play but their effect is not to eliminate the revisional jurisdiction of the High Court under section 115. One more circumstance which I think has a bearing on the interpretation to be placed on this procedural problem is this. In the State of Kerala, as early as in Vareed vs Mary, AIR 1969 Ker. 101, a view was taken that the High Court can entertain a second revision and, though Shri Potti suggested that this view has been often challenged, the above Full Bench decision hold the field till Aundal Ammal was decided. In Karnataka, the maintainability of a second revision appears to have been taken for granted untill a doubt was raised in view of certain observations made in a decision under the Cooperative Societies Act. This doubt was dispelled and it was held in Krishnaji 's case (ILR 1978 Kar. 1585) that the High Court could maintain a second revision. This view was sought to be reversed by the subsequent Full Bench in Yaragatti 's case, in the light of the decision in Aundal Ammal, but that attempt was overruled in Shyamaraju 's case. In the result, the position has been that, right through in the State of Karnataka and for atleast for a period of almost twenty years in the State of Kerala, the prevalent view has been in favour, of the maintainability of a second revision by the High Court. I think that in a matter of procedure such a long standing practice should not be disturbed unless the statutory indication is quite clear to the contrary. I would, therefore, hold that the revision petitions before the High Court were maintainable and that the matters before us should be disposed of accordingly. However, the petitions and appeals will stand disposed of in accordance with the majority view of my learned brothers. S.L. Appeals and petitions disposed of.

% These appeals together with a petition for special leave raised a common question of law whether against an order of a District Court in revision under section 20 of the Kerala Buildings (Lease & Rent) Control Act 2 of 1965, a further revision would lie to the High Court under section 115 of the Code of Civil Procedure. Though the question was not res integra in view of the decision of this Court in Aundal Ammal vs Sadasivan Pillai, , the matters were listed for consideration, by a Bench of three Judges, of the very same question in order to see whether there was any conflict between the views taken in Aundal Ammal 's case above said and a later decision of this Court in Shyamaraju Hegde vs G. Venkatesha Bhatt & Ors., ; , and whether the view taken in the earlier case required reconsideration. Aundal Ammal 's case arose under the Kerala Act afore mentioned, and the Shyamaraju Hegde 's case was under the karnataka Rent Control Act, and there were essential differences between the two Acts. The scope and effect of section 20(1) read with section 18(5) of the Kerala Act came to be examined by a full Bench of the Kerala High Court in Vareed vs Mary, A.I.R. 1969 Kerala 103, which held that a decision of a District Court under section 20 of the Kerala Act was undoubtedly amenable to the revisional jurisdiction of the High Court under section 115 of the Code of Civil Procedure. The question decided by the full Bench of the Kerala High Court as above mentioned, came to be considered by this Court (a Bench of two Hon. Judges) in Aundal Ammal 's case (supra), and the Court held that the ratio laid down by the Kerala High Court in Vareed 's case (supra) could not be approved because the High Court had not properly construed the sections 18(5) 872 and 20 of the Kerala Act, and was in error. So far as the Karnataka Act was concerned, this Court held in Shyamaraju Hegde 's case (supra) that an order of a District Judge under section 50(2), though it conferred finality under the Act, was nevertheless open to challenge before the High Court by revision under section 115 C.P.C. by the aggrieved party. What fell for consideration in the present cases was whether there was any conflict between the decisions in Aundal Ammal 's case (supra) and Shyamaraju Hegde 's case (supra) and whether the ratio in the former case required reconsideration. Disposing of the Appeals and the Petition for Special Leave, the Court, ^ HELD: Per Sabyasachi Mukharji & section Natarajan, JJ. After examining the differences between the two Acts in detail, the Court concluded that there was really no conflict between the two decisions of this Court in Aundal Ammal 's case (supra) and Shyamaraju Hegde 's case (supra), because the provisions in the two Acts were materially different. As to the question whether a fresh thinking was called for on the scope of section 20 read with section 18(5) of the Kerala Act, the Court did not find any grounds for reconsidering the view taken in the Aundal Ammal 's case; on the contrary, the renewed discussion by the Court of the matter called for a reiteration of the view expressed in Aundal Ammal 's case. [889C D] The Court was unable to conntenance in the circumstances of the case, the argument advanced that since the decision of the Kerala High Court in Vareed vs Mary aforementioned had been a good law for a number of years in the Kerala State and since the High Court had been entertaining revision petitions under section 115 C.P.C. against the revisional orders of the District Courts under sections 20(1) of the Kerala Act, the decision should have been allowed to stand even though the reasoning therein was not commendable for acceptance by this Court, and the reason therefore, the Court observed, could be set out by referring to certain English decisions and the reasoning adopted therein, in West Ham Union vs Edmonten Union, 13 at 4; Robinson Brothers (Brewers) Ltd. vs Hongton V. Chester i.e. Street Assessment Committee, 12 , affirmed in These decisions had been followed in Brownsee Haven Proper 873 ties Ltd. vs Poole Corporation, On similar lines, this Court deemed it necessary to overrule the ratio in Vareed vs Mary (supra), as the decision suffered from miscontruction of the relevant sections in the Act, and the weakness in the reasoning became manifest in the light of the subsequent decision of this Court such as in Vishesh Kumar vs Shanti Prasad, ; = ; = ; ; 890A C] In the light of the conclusion of the Court, all the appeals succeeded in so far as the challenge to the right of the High Court to entertain revision petitions under section 115, C.P.C., was concerned. In Civil Appeals Nos. 626 of 1981 and 624 of 1985, the High Court allowed the revision petitions under section 115 C.P.C., and ordered the eviction of the tenants. In Civil Appeal No. 2079 of 1981, the District Judge set aside the order of eviction but the High Court restored the order of eviction. In the Civil Appeal No. 1619 of 1986, the District Judge allowed the Revision and restored the order of eviction passed by the Rent Controller and the High Court confirmed the said order in revisions. In the Civil Appeal No. 7505 of 1983, the District Judge reversed the decisions of the Rent Controller and the Appellant Authority and ordered eviction and the High Court confirmed the order of the District Judge. In the petition for special leave listed with the appeals, the Appellate Authority sustained the claim of the landlord for eviction under section 11(3) of the Act but remanded the case to the Rent Controller for deciding the question whether the tenant was entitled to resist the claim for eviction. The District Court and the High Court confirmed the order of remand.[890D G] In accordance with the pronouncement of the Court, the order of the High Court under section 115 C.P.C., in each of the appeals above mentioned was set aside and the revisional order of the District Judge in each case, restored to become operative. The appeals were directed only against the orders of the High Court passed in revision, and they were disposed of with the pronouncement of the Court on the above lines. [890G H; 891A] In the petition for special leave also, the order of the High Court under section 115 C.P.C., was not sustainable, but even so, the Court did not find any merit in the petition, because the finding of the Appellate Authority and the order of remand passed by it had been confirmed by the District Court 'and as such, there were no merits in the petition. [891B] 874 Per section Ranganathan, J. (dissenting) While a number of enactments of various States on rent control confer specific jurisdiction on the State High Courts, some others are broadly on the same pattern as the Kerala and Karnataka enactments. Though the Court was concerned only with Kerala and Karnataka enactments in these matters, a similar question might well arise under the corresponding enactments of some other States as well.[891C D] The Kerala and Karnataka Rent Control Acts vest power of revision in the District Judge against certain orders. The question in these matters was whether the jurisdiction of the High Court under section 115 C.P.C., could be invoked to seek a further revision of the revisional order passed by the District Judge. This question was answered in the negative in Aundal Ammal vs Sadasivan Pillai, [1987] 1 SCC 133 (a decision under the Kerala Act) but in the affirmative in Shyamaraju Hegde vs Venkatesha Bhat, ; (a decision under the Karnataka Act), and hence this reference to a larger Bench.[891E F] Normally, a revision lies to the High Court under section 115 of the C.P.C. against any order of the District Judge/Court. The fact that the order might have been passed under a special statute or that the statute contained expressions purporting to confer finality on the order of the District Judge/Court or a subordinate authority or Court, had been held insufficient to take away this jurisdiction. This was the effect of the decisions in Chhagan Lal vs The Municipal Corporation, Indore, ; and Krishandas Bhatija vs Venkatachala Shetty, S.L.P. No. 913 of 1978 decided on 13.2.1978 and Shyamaraju 's case (supra), which were direct decisions under the Karnataka Act. In the opinion of his Lordship, there was no vital or material difference between the two enactments in this respect and that the same result should follow under the Kerala Act also. [891G H; 892A B] Under the Karnataka Act, after its amendments in 1975, the rent control matters are decided, in the first instance, by the District Munsiff or the Civil Judge/Rent Controller. There is no provision for an appeal from this order but there is one for revision. This revisional power is bifurcated under section 50 between the High Court and the District Court. The High Court is empowered to revise the order of the Civil Judge/Rent Controller and the District Judge that of the District Munsiff. Section 50(2) specifically declares that the order of the District Judge under this provision is final. The Kerala pattern is the same except that section 18 provides for an appeal from the Rent Controller 875 to an officer or an authority of the rank of a Subordinate Judge or of a superior rank. Section 20 provides for revision. The revisional power is to be exercised by the District Court where the appellate authority is the subordinate Judge, and the High Court, in other cases. Section 20 does not provide, as does section 50 of the Karnataka Act, that the decision of the District Judge would be final. The much wider and more emphatic language of the Karnataka Act does not exclude the jurisdiction of the High Court under section 115 of the C.P.C., as had been held in the two cases referred to above, and it was difficult to see the justification for reading any such exclusion into the Kerala Act. [892C H] This led to the question of a choice between the two views of this Court one in Shyamaraju and the other, in Aundal Ammal. Shyamaraju followed the earlier decisions of this Court in Chhagan Lal vs The Municipal Corporation, Indore, AIR 1977 SC 1955 and Krishnadas Bhatija vs A.S. Venkatachala Shetty, SLP (Civil) No. 913 of 1978, decided on February 13, 1978. The only other decision of this Court, having relevance in the present context, was Vishesh Kumar vs Shanti Prasad, ; , relied upon in Aundal Ammal. His Lordship was in agreement with the view in Shyamaraju that Vishesh Kumar was rendered in a totally statutory context. That decision turned largely on legislative history of section 115 of the C.P.C. and section 25 of the Provincial Small Causes Courts Act, in their application to the State of Uttar Pradesh. His Lordship was, therefore, inclined to lean in favour of the view that had commended itself to this Court as to the interpretation of the Karnataka Act, and to hold that the High Court had a power of revision over the order of the District Judge under the Kerala Act as well. The result of applying Aundal Ammal would be to completely exclude the High Court in the Rent Control matters, and, this, as the two Acts were in pari materia according to his Lordship 's view, would leave the litigant in Karnataka only a right of revision to the District Court. It was doubtful whether, in the absence of clear language, the Legislature could be held to have intended to completely exclude the jurisdiction of the High Court in such an important Branch of law. The provisions did not and could not, in his Lordship 's view, preclude the applicability of section 115 of the C.P.C. to an order passed by the District Court, not as a persona designata, but as a civil court of the land. Section 18 and 20 had a vital role to pay but their effect was not to eliminate the revisional jurisdiction of the High Court under section 115. [893A F; 894B C] As a result of the various decisions of the Courts, the position had been that right through in the State of Karnataka and for at least a 876 period of 20 years in the State of Kerala, the prevalent view had been in favour of the maintainability of a second revision by the High Court. In a matter of procedure, such a long standing practice should not be disturbed unless the statutory indication was quite clear to the contrary. [894F] The revision petitions before the High Court were maintainable.[894G] Aundal Ammal vs Sadasivan Pillai, [1987] 1 S.C.C. 133; Shyamaraju Hegde vs G. Venkatesha Bhatt & Ors. , ; ; Balagangadhara Menon vs T.V. Peter, [1984] K.L.T. 845; Vareed vs Mary, AIR 1969 103; Vishesh Kumar vs Shanti Prasad, ; Krishnaji Venkatesh Shirodkar vs Gurupad Shivram Kavalekar & Ors., ILR 1978 Karnataka 1585; Chhaganlal vs The Municipal Corporation, Indore, ; ; Krishnadas Bhatija vs A.S. Venkatachala Shetty, SLP (Civil) No. 913 of 1978, decided on February 13, 1978; M.M. Yaragatti vs Vasant & Ors., AIR 1987 Karnataka 186; S.S. Khanna vs F.J. Dillon, AIR 1954 S.C. 497; West Ham Union vs Domonton Union, 13 at 4; Robinson Brothers (Brewers) Ltd. vs Honghton & Chester_ie_Street Assessment Committee, 12 and and Brownsee Haven Properties Ltd. vs Poole Corporation, referred to.

Civil Appeal No. 3677 of 1984. From the Judgment and Order dated 17.5.1982 of the Delhi High Court in F.A. No. 30 of 1975. P.P. Malhotra and N.K. Sharma for the Appellant. O.P. Goyal, Ms. Sunita Vasudeva and R.C. Verma for the Respondents. The Judgment of the Court was delivered by OJHA, J. This appeal by special leave has been filed by the National Insurance Company Ltd., New Delhi, against a judgment of the Delhi High Court in an appeal under Section 110 D of the (hereinafter referred to as the 'Act '). Necessary facts may be stated herein in a nutshell. Shri Jugal Kishore, Respondent No. 1 was, on 15th June, 1969, driving a threewheeler scooter when he met with an accident with bus No. DLP 913 3699, driven by Shri Rai Singh, Respondent No. 2 and owned by M/s. Delhi Janata Co operative Transport Society Limited, Respondent No. 3, He sustained injuries consequent upon which he made a claim for compensation before the Motor Accident Claims Tribunal, Delhi against Respondent Nos. 2 and 3 and the appellant which was the insurer of the bus aforesaid. The claim of Respondent No. 1 was contested by the appellant and also by Respondent No. 3 but proceeded ex parte against Respondent No. 2. The Tribunal awarded compensation in the sum of Rs.10.000 recoverable jointly and severally from the appellant and Respondent No. 3. Aggrieved by the award of the Tribunal Respondent No. 1 preferred an appeal before the High Court of Delhi and asserted that the amount of compensation awarded by the Tribunal was inadequate. His appeal was allowed by the High Court and the award was modified. The High Court awarded a sum of Rs. 1,00,000 as compensation to Respondent No. 1 with interest at 9 per cent per annum from the date of institution of the claim till realisation with costs against the driver as well as the owner of the bus as also against the appellant, Insurance Company. Before granting special leave this Court required the appellant to deposit Rs. 1,00,000 namely the amount of compensation awarded by the High Court and permitted Respondent No. 1 to withdraw the same. Special leave was granted on 14th September, 1984 by the following order of this Court. "Under the orders of this Court the appellant has deposited Rs. One lac, which is the amount of compensation awarded to the claimants. The claimants have withdrawn the amount without furnishing security. Special leave granted on condition that in the event of reversal of the decision of the High Court, the said amount shall not be refunded by the claimants. Stay of further execution of the award confirmed. " It has been urged by the learned counsel for the appellant that in view of the statutory provision contained in this behalf in clause (b) of sub section (2) of Section 95 of the Act as it stood on the date of accident namely 15th June, 1969 which happens to be prior to 2nd March, 1970, the date of commencement of Amending Act 56 of 1969, no award in excess of Rs.20,000 could have been made against the appellant. Before dealing with the submission we may point out that the policy under which the bus aforesaid was insured had not been 914 filed either before the Tribunal or before the High Court. A photostat copy of the policy has, however, been filed in this Court and learned counsel for the respondents did not have objection in the same being admitted in evidence. Clause (b) of sub section (2) of Section 95 of the Act as it stood at the relevant time reads as under: "95. (1) . . . (2) Subject to the proviso to sub section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely: (a) . . . . (b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees; and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver; (c) . . . On the plain language of the aforesaid clause (b) which applies to the instant case it is apparent that the liability of the appellant could not be in excess of Rs.20,000. Learned counsel for the respondents, however, urged that notwithstanding the provision contained in this behalf in clause (b) aforesaid it was open to the insurer to take a policy covering a higher risk than contemplated by the aforesaid clause (b) and consequently the said clause had to be read subject to the terms of the policy which was taken in the instant case. We find substance in this submission in view of the decision of this Court in Pushpabai Purshottam Udeshi and others vs M/s Ranjit Ginning and Pressing Co. and another, where it was held that the insurer can always take policies covering risks which are not covered by the re 915 quirements of Section 95 of the Act. We have accordingly perused the photostat copy of the policy to ascertain whether risk for any amount higher than the amount of Rs.20,000 contemplated by clause (b) aforesaid was covered. Our attention was invited by learned counsel for the respondents to the circumstance that at the right hand corner on the top of page 1 of the policy the words "COMMERCIAL VEHICLE COMPREHENSIVE" were printed. On this basis and on the basis that the premium paid was higher than the premium of an "act only" policy it was urged by the learned counsel for the respondents that the liability of the appellant was unlimited and not confined to Rs.20,000 only. We find it difficult to accept this submission. Even though it is not permissible to use a vehicle unless it is covered at least under an "act only" policy it is not obligatory for the owner of a vehicle to get it comprehensively insured. In case, however, it is got comprehensively insured a higher premium than for an "act only" policy is payable depending on the estimated value of the vehicle. Such insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf. Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under sub section (2) of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. Likewise, if risk of any other nature for instance, with regard to the driver or passengers etc. in excess of statutory liability, if any, is sought to be covered it has to be clearly specified in the policy and separate premium paid therefor. This is the requirement of the tariff regulations framed for the purpose. Coming to the photostat copy of the policy in the instant case it would be seen that Section II thereof deals with liability to third parties. Sub section (1) minus the proviso thereto reads as hereunder: "1. Subject to the Limits of Liability the Company will indemnify the insured against all sums including claimant 's cost and expenses which the insured shall become legally liable to pay in respect of (i) death or bodily injury to any person caused by or 916 arising out of the use (including the loading and/or unloading) of the Motor Vehicle. (ii) damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle)". The Schedule to the policy indicates the limits of liability and the amount of premium paid. The limits of liability are indicated as hereinbelow: "Limits of Liability: Limit of the amount of the Company 's Such amount as is necessary liability under Section II 1(1) in to meet the requirements of respect of any one accidentthe Motor Vehicle Act, 1939 Limit of the amount of the Company 's liability under Section II 1(11) in respect of any one claim or series of claims arising out of one event Rs.20,000/ The premium paid on the other hand is shown as below: "Premium Rs.415.00 Add 1/2% on I.E.V. Rs.200.00 Add for 53 Pass, 9 of Rs.2.50 Rs.132.50 Add for Driver & Conductor Rs.10.00 757.50" A perusal of the policy, therefore, indicates that the liability undertaken with regard to the death or bodily injury to any person caused by or arising out of the use (including the loading and or un loading) of the motor vehicle falling under Section II(1)(i) has been confined to "such amount as is necessary to meet the requirements of the Motor Vehicle Act, 1939. " This liability, as is apparent from clause (b) of sub section (2) of Section 95 of the Act, was at the relevant time Rs.20,000 only. The details of the premium also indicate that no additional premium with regard to a case falling under Section II(1)(i) was paid by the owner of the vehicle to the insurance company. It is only the vehicle which was comprehensively insured, the insured 's estimate of value including accessories (I.E.V.) thereof having been shown as Rs.40,000. In this view of the matter the submission made by learned 917 counsel for the respondents that the appellant had in the instant case undertaken an unlimited liability does not obviously have any substance. The liability under the policy in the instant case was the same as the statutory liability contemplated by clause (b) of sub section (2) of Section 95 of the Act namely Rs.20,000. An award against the appellant could not, therefore, have been made in excess of the said statutory liability. Learned counsel for the appellant then urged relying on the decision of this Court in British India General Insurance Co. Ltd. vs Captain Itbar Singh and Others, AIR 1959 Supreme Court 1331 that in view of the sub section (6) of Section 96 of the Act no insurer to whom the notice referred to in sub section (2) thereof has been given, is entitled "to avoid his liability" to any person entitled to the benefit of any such judgment as is referred to in sub section (1) thereof otherwise than in the manner provided for in sub section (2). On this basis it was urged that the appellant was not entitled to assert that its liability was confined to Rs.20,000 only inasmuch as this is not one of the defences specified in sub section (2) of Section 96 of the Act. We find it difficult to agree with this submission either. Firstly, in paragraph 12 of the report of this very case it has been held that sub section (2) of Section 96 in fact deals with defences other than those based on the conditions of a policy. Secondly, from the words "to avoid his liability" used in sub section (6) of Section 96 it is apparent that the restrictions placed with regard to defences available to the insurer specified in sub section (2) of Section 96 are applicable to a case where the insurer wants to avoid his liability. In the instant case the appellant is not seeking to avoid its liability but wants a determination of the extent of its liability which is to be determined, in the absence of any contract to the contrary, in accordance with the statutory provisions contained in this bahalf in clause (b) of sub section (2) of Section 95 of the Act. In the instant case since as seen above the appellant did not undertake in the policy any liability in excess of the statutory liability the award against it could be only in accordance with the said statutory liability. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party 918 which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in Civil Appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the Court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over emphasised. In the result, this appeal succeeds and is allowed to this extent that the liability of the appellant is fixed at Rs.20,000 together with interest as allowed by the High Court. In view of the order of this Court dated 14th September, 1984 quoted above, however, it is held that even if the total liability of the appellant falls short of Rs.1,00,000, it shall not be entitled to any refund out of the sum of Rs.1,00,000 which was deposited by it and withdrawn by the claimant respondent in pursuance of the said order. The decree of the High Court as against the driver and the owner of the vehicle namely Respondents 2 and 3 is, however, maintained and all sums in excess of Rs.1,00,000 which has already been withdrawn by the claimant respondent as aforesaid shall be recoverable by him from Respondents 2 and 3 only. There shall be no order as to costs. R.S.S. Appeal allowed.

% Respondent No. 1, Jugal Kishore, while driving a three wheeler scooter, met with an accident with bus No. DLP 3699, driven by Rai Singh, respondent No. 2, owned by M/s. Delhi Janata Co operative Transport Policy Limited, respondent No. 3, and insured with the appellant. The Motor Accident Claims Tribunal, Delhi awarded compensation in the sum of Rs.10,000 to respondent No.1. On appeal, the High Court enhanced the Compensation to Rs.1,00,000. This Court, while granting special leave required the appellant to deposit the amount of compensation awarded by the High Court and permitted the respondent to withdraw the same, making it clear that it shall not be refunded by him in the event of reversal of the decision of the High Court. The appellant contends that in view of the statutory provision contained in this behalf in clause (b) of sub section (2) of section 95 of the Act, as it stood on the date of accident, no award in excess of the statutory liability of Rs.20,000 could have been made against the appellant. The respondent, on the other hand, contends (1) Notwithstanding the provision contained in this behalf in clause (b) aforesaid, it was open to the insurer to take a policy covering a higher risk than contemplated by clause (b) and consequently the said clause had to be read subject to the terms of the policy. In this connection, the respondent relies on the words "Commercial Vehicle comprehensive" printed on the policy, 911 and on the circumstance that the premium paid was higher than the premium of an "Act only" policy, and urges that the liability of the appellant was unlimited. (2) In view of sub section (6) of section 96 of the Act no Insurer to whom the notice referred to in sub section (2) thereof has been given, is entitled "to avoid his liability" to any person entitled to the benefit of any such judgment as is referred to in sub section (1) thereof otherwise than in the manner provided for in sub section (2). On this basis it is urged that the appellant was not entitled to assert that its liability was confined to Rs.20,000 only inasmuch as this is not one of the defences specified in sub section (2) of section 96 of the Act. Allowing the appeal, this Court, ^ HELD: (1) It is not obligatory for the owner of a vehicle to get it comprehensively insured for which a higher premium than for an "act only" policy is payable. Such comprehensive insurance entitles the owner to claim reimbursement of the entire amount of loss or damage suffered up to the estimated value of the vehicle insured. Comprehensive insurance of the vehicle and payment of higher premium on this score, as was done in the instant case do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under sub section (2) of section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and additional premium paid. [915C E] (2) A perusal of the policy indicates that the liability undertaken with regard to the death or bodily injury to any person caused by or arising out of the use of the vehicle has been confined to "such amount as is necessary to meet the requirements of the Motor Vehicle Act, 1939", which was at the relevant time Rs.20,000 only. An award against the appellant could not, therefore, have been made in excess of the said statutory liability. [916F G] (3) It is apparent from the words "to avoid his liability" used in sub section (6) of section 96 that the restrictions placed with regard to defences available to the insurer specified in sub section (2) of section 96 are applicable to a case where the insurer wants to avoid his liability. In the instant case the appellant is not seeking to avoid its liability but wants a determination of the extent of its liability in accordance with the statutory provisions contained in this behalf in clause (b) of sub section (2) of section 95 of the Act. [917E F] 912 (4) This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State, such as the appellant, who are under an obligation to act fairly. The obligation on the part of the State or its instrumentalities to act fairly can never be over emphasized. [918C D] (5) The attitude often adopted by the Insurance Companies, as was adopted in this case, is not to file a copy of the policy before the Tribunal and before the High Court in appeal. The claimants for compensation are invariably not possessed of either the policy or a copy thereof. In all cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy alongwith its defence. [917G H; 918B C] Pushpabai Purshottam Udeshi vs Ranjit Ginning and Pressing Co., and British India General Insurance Co. vs Captain Itbar Singh, AIR 1959 Supreme Court 1331, referred to.

: Criminal Appeal No. 80 of 1988. From the Judgment and Order dated 20.11.1986 of the Gujarat High Court in Spl. A. No. 886 of 1986. T.U. Mehta and M.N. Shroff for the Appellant. V.A. Bobde, Mrs. H. Wahi and Mrs. Kamini Jaiswal for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The order of detention of the respondent No. 2, 906 Mahendra V. Shah, passed under the , was challenged by his nephew, respondent No. 1, before the Gujarat High Court under Article 226 of the Constitution. By the impugned judgment the detention order was quashed. The State of Gujarat has impugned the High Court 's decision by the present Special Appeal Application. Special leave is granted. The detention order was passed on the 20th of October, 1984, but could not be served on the detenu earlier than 4.7.1986 as he was absconding. The grounds of detention served on him as mentioned in Annexure B state that information was received by the Customs staff of Ahmedabad on 26.9.1984 that a notorious smuggler, Juwansinh Jadeja, had shifted his smuggling activites to the coast of Chorwad in Saurashtra, and was working on behalf of two citizens of Pakistan. Information about Jadeja 's main associates was also received. The authorities were informed that the gang was likely to land about 180 packages of contraband goods within a couple of days and vigilance activities were therefore stepped up. The officers further learnt that the modus operandi of the smugglers ' gang would be to remove the goods to trucks and to cover them with cargo of vegetables and grains and then to drive away. An Ambassador car bearing registered No. MRH 6595 which was earlier in the service of the respondent detenu a resident of Bombay was spotted in the late night of 28.9.1984 and they suspected it to be on the road in that connection. They proceeded in the same direction and found a truck loaded with bags of vegetables. The truck was intercepted but the driver ran away. The Ambassador car was also passing by, but on being signalled to stop, it took a sharp turn and got away. The officers unsuccessfully chased it for some time. The suspicion of the officers was thus confirmed and they searched the truck and discovered the contraband goods. Two other vehicles, a Jeep and another car also arrived and were stopped by the officers and several persons travelling therein including Jadeja were taken to the Excise Office for interrogation. Incriminating documents were recovered, inter alia, indicating that several other trucks were also involved. All available Customs and police officers thereafter became active and two other trucks were seized. They also found the Ambassador car MRH 6595 abandoned. The goods found in the first truck were all of foreign origin and were valued at over Rs.68 lakhs. Similar contraband goods were discovered in the other trucks also. Later a fourth truck was also intercepted. The arrested persons 907 gave vital clues about the clandestine business of smuggling and named respondent Mahendra V. Shah as being directly involved in the business. It was inter alia stated that Mahendra V. Shah had gone to the coast where the goods were received. The grounds have mentioned the various activities of the detenu including the fact that he was travelling in the Ambassador car MRH 6595. We do not consider it necessary to mention here all the details of his activities. As stated earlier, although the order of detention was made in October 1984, it could not be served on the detenu before July 1986 as he was absconding. On his arrest the writ application was filed by his nephew the respondent No. 1. The other persons involved in the affair were also detained. These co conspirators made an application for bail on 2.10.1984 and on the next day, that is, on 3.10.1984, they filed an application before the Chief Judicial Magistrate, Junagadh retracting some of their earlier statements. One of the points urged on behalf of the detenu was that the retraction by the aforesaid other persons (co conspirators) was not placed before the detaining authority and was, therefore, not considered by him. The High Court held that this point by itself vitiated the detention order. The other grounds urged were not considered on merits. It has been contended on behalf of the State that the second application dated 3.10.1984 whereby the other accused persons retracted their earlier statements was also placed before the detaining authority and he had applied his mind thereto. It was pointed out that the said document was mentioned in the grounds Annexure B, served on the detenu although it was not accurately described as a petition containing the retraction. The mis description was in the following words: "While arriving at the above satisfaction the Detaining Authority has taken into consideration the bail applications dated 2.10.1984 and 3.10.1984 filed jointly by Jayantilal Damji Thakker and nine others before the Chief Judicial Magistrate, Junagadh. " In paragraph 6 of the State 's counter affidavit this fact was pointedly mentioned and it was stated that the mistake in the description was of drafting, and the detaining authority had considered the same while passing the order of their detention and that there was no substance in 908 the point taken on behalf of the detenu. The stand of the State that the petition dated 3.10.1984 was considered by the detaining authority appears to be right. The original file dealing with the detenu 's case was produced in Court for our perusal, and we found that the Home Minister, State of Gujarat, while passing the order for detention made a detailed note running in several paragraphs and in paragraph 2 he pointedly mentioned both the bail application dated 2.10.1984 and the petition dated 3.10.1984. The notes also show that he (detaining authority) correctly appreciated the nature and purport of the 3rd October document but was of the view that not much credence could be in the circumstances given to it. The first point urged on behalf of the respondent must, therefore, be rejected. The error in the description of the document in the grounds cannot in the situation be said to have vitiated the order. Mr. Bobde, the learned counsel for the respondent, contended that the plea of the State should be rejected in absence of an affidavit by the detaining authority. Although it is not an essential requirement of law, the learned counsel proceeded, but the Court in every detention case must insist on such an affidavit to be filed. It is true that in a case where a point as mentioned above arises the detaining authority should personally affirm on oath the stand taken on his behalf, but it cannot be suggested as an inflexible rule applicable to all detention cases irrespective of the circumstances. In the present case a further affidavit by Sri Pavitra Narayan Roy Chaudhary, Deputy Secretary, Home Department (Special) of the State of Gujarat was filed stating that the Home Minister Sri Prabodh Raval who was authorised under the Rules of Business framed under Article 166 of the Constitution to pass orders on behalf of the Government in detention matters had ceased to be a Minister before the filing of the affidavit in the High Court, and he was, therefore, not available. Sri M.T. Parmar, the then Deputy Secretary, Home Department was fully conversant with the case and had filed his affidavit. The original file was produced before us to dispel any suspicion about the detaining authority having considered the document dated 3.10.1984 and having felt satisfied that it was a proper case for detention of the respondent. In this background we do not attach much importance to the fact that the affidavit was not filed by the detaining authority personally. The next point urged by Mr. Bobde was that it was necessary to have mentioned in the grounds (Annexure B) served on the detenu the fact that the detaining authority was of the view that "not much 909 credence could be given to the" statements in the petition dated 3.10.1984. The state of the mind of the detaining authority while holding that much credence could not be given to the document should be treated to be a ground essential to be served on the detenu. Reliance was placed on the observations in P.C. Mehta vs Commissioner and Secretary, Government of Kerala and others, [1985] (Supp.) SCC 144. The contention is that factual inference is included in the expression "grounds" and has to be expressly and specifically stated. We are afraid, the assumption on which the argument is founded is not correct. So far as the inference drawn by the detaining authority from the materials on the records and his subjective satisfaction in this regard are concerned, they are expressly stated in the grounds and there cannot be any grievance on that score. The objection of the respondent, properly analysed, comes to this, that the reason why the detaining authority is not impressed by a particular piece of evidence or on the other hand the reason why he prefers to rely on any other evidence should be detailed in the grounds. Mr. Bobde urged that if the respondent had known that the detaining authority did not attach much credence to the statements in the petition dated 3.10.1984 he would have attempted to impress upon the relevant authorities to take a contrary view. We do not find any merit in this contention and hold that it is not necessary to mention in the grounds the reaction of the detaining authority in relation to every piece of evidence separately. Besides, the recital in Annexure B that the detaining authority formed his opinion after consideration of the aforesaid document by itself clearly implied that he was not impressed by the statement therein. The detenu cannot, therefore, be heard to say that he was prejudiced in any manner. As mentioned above, the points pressed on behalf of the respondents before us have been rejected. Mr. Bobde has contended that several other questions also arise in this case which have not been dealt with by the High Court. He appears to be right. The impugned judgment states that several other questions were also raised which were not necessary to be considered as the writ application was succeeding on the first point. Now in view of our finding mentioned above, it becomes necessary to decide the other questions also. In the circumstances, we think that the case should go back to the High Court for further hearing. Accordingly, the impugned judgment is set aside, and the matter is remanded for further hearing and disposal of the case in accordance with law. N.V.K. Appeal allowed.

% The second respondent in the appeal was detained under subsection (1) of section 3 of the . The grounds of detention Annexure 'B ' served on the detenu stated that information was received by the custom staff that a notorious smuggler and his gang was likely to land packages of contraband goods on the Saurashtra Coast and that the modus operandi of the smugglers ' gang would be to remove the goods to trucks, cover them with cargo of vegetables and grain, and then to drive away. Vigilance was stepped up by the authorities. A Truck, an Ambassador Car in the service of the respondent detenu, and a jeep were stopped by the Officers and several persons travelling therein were detained and interrogated. Incriminating documents were recovered indicating involvment of other vehicles. Goods of foreign origin valued at over Rs.68 lakhs were also recovered. The arrested persons gave vital clues about the clandestine business of smuggling that was being carried on and named the 2nd respondent detenu as being directly involved in the business. The co conspirators made an application for bail on 2.10.1984 and on the following day i.e. 3.10.1984 they filed an application before the Chief Judicial Magistrate retracting some of their earlier statements. Though the detention order was passed on October 20, 1984, it could not be served on the detenu earlier than July 4, 1986 as he was absconding. On his arrest the first respondent his nephew, challenged the detention order in the High Court on several grounds, but the High 904 Court allowed the writ petition and quashed the order of detention only on one ground viz. non application of mind by the detaining authority to a vital document i.e. the second application dated 3.10.1984 whereby the other accused persons retracted their earlier statements, and held that this had vitiated the subjective satisfaction of the detaining authority. In the appeal to this Court it was contended on behalf of the State appellant that the second application dated 3.10.1984 was also placed before the detaining authority and that he had applied his mind thereto. The document was mentioned in the grounds Annexure 'B ', served on the detenu although it was not actually described as a petition containing the retraction. The original file dealing with the detenu 's case was also produced for the Court 's perusal. The appeal was contested on behalf of the respondents by stating that the plea of the State that the second application dated 3.10.1984 had been considered by the detaining authority should be rejected in the absence of an affidavit by the detaining authority, and that it was necessary to have mentioned in the grounds Annexure 'B ', served on the detenu that the detaining authority was of the view "that not much credence could be given to the statements made in the petition dated 3.10.1984". Allowing the Appeal, ^ HELD: 1. It is true that in a given case the detaining authority should personally affirm on oath the stand taken on its behalf, but this cannot be suggested as an inflexible rule applicable to all detention cases irrespective of the circumstances. [908D E] In the instant case, a further affidavit by the Deputy Secretary, Home Department of the State of Gujarat was filed stating that the Home Minister who was authorised under the Rules of Business to pass orders on behalf of the Government in detention matters, had ceased to be a Minister before the filing of the affidavit in the High Court, and he was, therefore not available. The then Deputy Secretary, Home Department who was fully conversant with the case had to file the affidavit. [908E F] 2. The original file dealing with the detenu 's case produced in Court shows that the Home Minister, State of Gujarat, while passing the order for detention made a detailed note running in several para 905 graphs and in paragraph 2 he pointedly mentioned both the bail application dated 2.10.1984 and the petition dated 3.10.1984. The notes also show that the detaining authority correctly appreciated the nature and purport of the 3rd October document but was of the view that not much credence could in the circumstances be given to it. [908B C] 3. So far as the inference drawn by the detaining authority from the materials on the records and his subjective satisfaction were concerned, they are expressly stated in the grounds and there cannot be any grievance on that score. [909B C] 4. It is not necessary to mention in the ground of detention the reaction of the detaining authority in relation to every piece of evidence separately. [909D E] In the instant case, the recital in Annexure 'B ' that the detaining authority formed his opinion after consideration of the document dated 3.10.1984 by itself clearly implied that he was not impressed by the statement therein. [909E] 5. Several other questions were raised in the writ petition which were not considered by the High Court, and since the order of the High Court by which it allowed the writ petition has been set aside, it becomes necessary to decide the other questions. The matter is remanded for further hearing and disposal to the High Court. [909G] P.C. Mehta vs Commissioner and Secretary, Govt. of Kerala and others, [1985] Supp SCC 144, referred to.

N: Criminal Appeal No. 580 of 1976. From the Judgment and Order dated 10.10.1975 of the High Court of Punjab and Haryana in Criminal Miscellaneous No. 772 M of 1974. R.S. Sodhi for the Appellant. Gopal Subramaniam, Amicus Curiae for the Respondent. The Judgment of the Court was delivered by NATARAJAN, J. This appeal by certificate granted under Article 134(1)(c) of the Constitution is directed against the judgment of a Full Bench of the High Court of Punjab and Haryana in Raj Kumar, A.S.I. vs The State of Punjab, [1976] IV C.L.R. (Pb. & Har.) page 39 allowing a petition under Section 561(A) of the Code of Criminal Procedure 1898 filed by the respondent. The objective in filing the appeal, it was conceded by Mr. R.S. Sodhi, learned counsel for the State is the determination of a larger issue transcending the narrow confines of the quashing of the criminal proceedings against the respondent viz. the construction of Rule 16.38 of the Punjab Police Rules and its applicability to criminal prosecutions launched against the members of the Punjab Police Service for offences under the Indian Penal Code and other Acts. The controversy regarding the ambit of Rule 16.38 of the Punjab Police Rules has arisen in the following circumstances. One Jamuna Devi Mukhtiar Kaur gave a report against the respondent, who was an Assistant Sub Inspector in the Punjab Police Service, to the Deputy Superintendent of Police, Patiala alleging command of illegal gratification of Rs.200 by him for releasing her husband and brother on bail bonds in a case pertaining to a land dispute. A first information report was registered and a trap was laid for the respondent and he was apprehended as soon as the marked currency notes treated with phenolophthalene were handed over to him and the marked currency 939 notes were recovered from him. After completion of investigation, the respondent was chargesheeted before the Special Judge, Sangrur. The respondent appeared before the Special Judge and raised an objection to the framing of charges against him on the ground the investigation of the case was in contravention of Rule 16.38. The Special Judge over ruled the objection and framed charges and posted the case for trial. The respondent filed a petition before the High Court under Section 561(A) of the Criminal Procedure Code 1898, for quashing the proceedings against him before the Special Judge. As there were conflicting decisions of the High Court in the interpretation of Rule 16.38, a learned Single Judge referred the matter to a Division Bench and in turn the Division Bench referred the matter to a Full Bench. A Full Bench of the High Court reviewed the earlier decisions and held that Rule 16.38 is mandatory and not directory in character and secondly the mandate would govern criminal prosecutions as well as departmental enquiries in equal measure and as such any prosecution launched or departmental enquiry held in violation of the terms of the Rule would vitiate the proceedings concerned. Having interpreted Rule 16.38 thus, the Full Bench noticed that the investigation against the respondent had not been done in accordance with Rule 16.38 and therefore the bench allowed the petition and quashed the charges framed against the respondent. The High Court, however, granted a certificate under Article 134(1)(c) to the State to file an appeal to this Court and that is how the appeal is before us. What, therefore, calls for consideration is whether the procedure prescribed in Rule 16.38 calls for observance in the case of departmental enquiries alone or whether it would govern criminal prosecutions also for offences under the Indian Penal Code and other Acts, and secondly whether the Rule is mandatory in character or only directory. Our task has been considerably lightened by a pronouncement on the first question, with which we are primarily concerned, by another Bench of this Court in the State of Punjab vs Charan Singh, ; declaring that Rule 16.38 cannot govern criminal prosecutions against the members of the Police Force as it cannot over ride the provisions of the Criminal Procedure Code. In spite of the said pronouncement, with which we are in respectful agreement, we feel it necessary to deal with the matter at some length because of certain misconceptions contained in the judgment of the High Court under appeal. 940 Before we advert to the decisions pertaining to Rule 16.38, we may refer to certain provisions of the and the Punjab Police Rules framed thereunder. Section 3 of the , confers the right of superintendence of the Police Force throughout the general police district on the State Government and vests in such Government the right to exercise such powers in that behalf. Section 7 deals with the appointment, dismissal, etc. of inferior officers. The Section lays down that the "Subject to the provisions of Article 311 of the Constitution, and to such Rules as the State Government may from time to time make under this Act, the Inspector General, Deputy Inspector General, Asstt. Inspector General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty or unfit for the same" or to award any of the lesser punishments prescribed under clauses (a) (b) (c) (d) for discharge of duty in a careless or negligent manner etc. Besides the power conferred on the State Government to make Rules under Section 7, there is also provision under Section 12 for the Inspector General of Police, subject to the approval of the State Government, to frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of police force, the places at which the members of the police force shall reside, the services to be performed by them etc. for ensuring the efficiency of the police force in the discharge of its duties. It is in exercise of the powers conferred by Sections 7 and 12 of the that the Punjab Police Rules 1934 have been framed. The Rules have been categorised under 28 Chapters for dealing with various matters such as organisational setup, uniforms, arms and ammunition, leave, pension, promotions, rewards, punishments, training, supervision, investigation, prosecution etc. The matters covered by the Rules make it clear that the Rules have been framed for regulating the set up and the service conditions of the police force as well as for awarding them rewards and departmental punishments and other matters of internal administration for keeping efficient and disciplined one. It is in that perspective Rule 38 of Chapter 16 has to be viewed. The very first Rule in Chapter 16 sets out the scope and purpose of the Rule comprised in that chapter. Rules 16.1 reads as follows: "(1) No police officer shall be departmentally punished otherwise than as provided in these rules; (2) The departmental punishments mentioned in the second 941 column of the subjoined table may be inflicted on officers of the various ranks shown in the heading Nos. 3 to 9, by the officers named below each heading in each case, or by any officer of higher ranks". (Emphasis supplied) Rule 16.38 with which we are concerned, contains 7 sub clauses. For our purpose it is enough if we extract sub clauses. 1 to 4 and refer in general terms to the contents of Clauses 5 to 7. "16.38(1) Immediate information shall be given to the District Magistrate or any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connection with his official relations with the public. The District Magistrate will decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected magistrate having 1st class powers. (2) When investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in rule 16.38 shall be followed. An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed. (3) Ordinarily a magistrate before whom a complaint against a police officer if laid proceeds at once to judicial enquiry. He is, however, required to report details of the case to the District Magistrate, who will forward a copy of this report to the Superintendent of Police. The District Magistrate himself will similarly send a report to the Superintendent of Police in cases of which he himself takes cognizance. (4) The Local Government has prescribed the following supplimentary procedure to be adopted in the case of complaints against police officers in those districts where abuses of the law with the object of victimising such officers or hampering investigation is rife. The District Magistrate will order that all petitions against police officers shall be 942 presented to him personally. If he considers that these petitions are of a frivolous or factious nature, it is within his discretion to take no action on them. When he considers an enquiry to be necessary he will use his discretion whether to send the papers to the Superintendent of Police or to a magistrate for judicial enquiry. In the case of formal criminal complaints, the District Magistrate will arrange for all cases to be transferred from other courts to his own. Clauses 5 to 7 relate to strictures passed by the High Court and other courts against police officers and the manner of communication of the strictures to the District Magistrate and the Government. Different interpretations were given by different Benches of the High Court of Punjab and Haryana regarding the scope and force of rule 16.38. In Criminal Revision No. 1100 of 1972 (Amarjit Singh vs State of Punjab) H.R. Sharma, J. held that Rule 16.38 debarred criminal proceedings if the same had been instituted without a prior sanction of the District Magistrate. In Ram Prakash, Asstt. Sub Inspector vs The State, [1974] Chandigarh Law Reporter 205 Gurnam Singh, J. took a diametrically opposite view. In Hoshiar Singh vs The State, a Division Bench of the High Court held that Rule 16.38 was attrected in the case of departmental enquiries only and the departmental enquiry would be vitiated if the papers had not been produced before the District Magistrate for getting his sanction at the initial stage. In Nand Singh vs The Superintendent of Police and another, Current Law Journal(Pb)146 it was held that the Rule was mandatory. The said view was affirmed by a Full Bench in Nand Mandan Sarup vs The District Magistrate and others, [1966] Current Law Journal (Pb) 608. It was in that backdrop of conflicting decisions, the petition filed by the respondent herein under Section 561(A) for quashing of the proceedings against him before the Special Judge came to be referred to a Full Bench. The reasoning of the Full Bench for allowing the respondent 's petition can be summarised thus: "The vests the right of superintendence of the police force in a State on the State Government. Section 7 of the empowers the State Government to frame rules regarding disciplinary matters and Section 12 em 943 powers the Inspector General of Police, subject to the approval of the State Government, to frame orders and rules relating to the organisation, classification and distribution of the police force, the services to be performed by them etc. " Hence the rules framed in exercise of powers conferred under section 7 and 12 have the force of law and they constitute a special legislation which takes precedence over the provisions of the Criminal Procedure Code. Section 4 of the inter alia lays down that the administration of the police, within the jurisdiction of a District Magistrate, shall under his general control and direction, be vested in a District Superintendent and Assistant District Superintendents as the Government may appoint. Consequently, the District Magistrate has statutory authority to exercise control over the administration of the police force in his District including the launching of criminal prosecutions or holding of Departmental enquiries against a member of the police force. Rule 16.38 contains a mandatory provision regarding the procedure to be followed when any complaint is received by the Superintendent of Police against a member of the police force regarding the commission of an offence by him in connection with his official relations with the public. The said rule will apply with equal force to investigations relating to criminal offences for which a prosecution is to be launched as it would to enquiries for taking departmental action through disciplinary proceedings. On the basis of such reasoning, the Full Bench over ruled the decision in Hoshiar Singh vs State of Punjab (supra). We will now refer to the decision in Hoshiar Singh (supra), since it has been approved by this Court in State of Punjab vs Charan Singh (supra), and then advert to some decisions of this Court relevant for consideration. In that case a Sub Inspector of Police was challaned under Section 5(2) of the Prevention of Corruption Act and Section 161, Indian Penal Code and was suspended from service and chargesheeted and thereafter a departmental enquiry followed. When a show cause notice was served on him on the conclusion of the enquiry intimating him the proposed punishment, he objected to the legality of the enquiry on the ground that no permission of the District Magistrate in accordance with Rule 16.38 of the Punjab Police Rules had been obtained. The objection was sustained and the departmental enquiry was quashed. Thereafter, the challan was put into Court and 944 once again an objection was raised that in the absence of a reference to the District Magistrate and his orders thereon directing prosecution, the Special Judge could not take cognizance of the case. The Special Judge over ruled the objection holding that his powers under the Criminal Law (Amendment) Act were not trammelled by the Punjab Police Rules. A criminal revision was filed before the High Court against the order of the Special Judge and the High Court dismissed the criminal revision holding thus: "I do not think Rule 16.38 was intended or could have the effect of imposing as a condition precedent to the trial of a police officer in a Court of Law, a sanction or an order by the District Magistrate, as contemplated therein. The language appears to me to be confined only to departmental enquiries. The investigation for establishing a prima facie case is merely meant to guide the District Magistrate, uncontrolled by the opinion of the Superintendent of Police, whether or not a departmental proceeding should be initiated against the guilty party, and it is the procedure and the punishment controlling the departmental proceedings alone, which appear to have been prescribed by this rule. " In Delhi Administration vs Chanan Shah, [1969] 3 S.C.R. 653 an Asstt. Sub Inspector was censured, after summary enquiry for having received illegal gratification in a case he was investigating. The Deputy Inspector General of Police revoked the order of censure and directed departmental action being taken. The departmental enquiry culminated in an order of dismissal against Chanan Shah. An appeal and revision to the higher authorities having failed, Chanan Shah filed a writ petition which was dismissed by a Single Judge but allowed in writ appeal by a Division Bench and the order of dismissal was quashed. The Delhi Administration came in appeal to this Court and this Court held that irrespective of whether Rule 16.38 is mandatory or directory, the authorities had failed to substantially comply with the provisions of the Rule and, therefore, the laches vitiated the departmental enquiry. The same view was taken in a later case Union of India vs Ram Kishan, ; which related to the dismissal of a constable from service pursuant to a disciplinary enquiry being set aside in a civil suit filed by the dismissed constable. The decree of the Trial Court was affirmed by the Appellate Court and the High Court and in further appeal to this Court, it was held that as no immediate information was given to the District Magistrate in respect of the complaint received 945 against the plaintiff (constable) and secondly since the District Magistrate has also not decided whether the investigating agency should be a police officer or a magistrate, as prescribed by Rule 16.38, the departmental enquiry was vitiated and, therefore, the plaintiff 's suit had been rightly decreed. In State of Uttar Pradesh vs Babu Ram Upadhya, ; the view taken by the majority of the Bench was that paragraph 486 Rule 1 of U.P. Police Rules was mandatory in character and hence the departmental action taken against the respondent police officer in disregard of the rule was invalid. It may be noticed that the three decisions of this Court which have been referred to above related to departmental enquiries and not criminal prosecutions for offences committed by the delinquent police officers. The pronouncements in these cases will therefore govern only cases where departmental enquiries are held in contravention of the procedure prescribed by the Police Rules. The reason for a special procedure being prescribed in the Rules for investigations before departmental enquiries are held against delinquent police officers is not far off to see. In the very nature of their duties, the members of the police force would often stand exposed to criticism and complaints by not only the members of the public but also by the members of the force themselves and consequently they stand placed more vulnerable than members of other Government services, of being implicated in false or exaggerated charges. In order to protect them from false implications and resultant proceedings, the Government had thought it necessary to have an initial screening of the complaints received against members of the police force by the District Magistrate. Such screening would however extend only to matters which fall within the zone of departmental action and it could never extend to cases where the offences alleged to have been committed would attract investigation under the Criminal Procedure Code in the same manner the investigation would be attracted if the offences complained of had been committed by any member of the public. That the procedure prescribed in Rule 16.38 has only a limited field of operation i.e. applicable only to departmental enquiries and punishments could be seen from the fact that clause 3 of the Rule enjoins every Magistrate to whom a complaint against a police officer is referred by the District Magistrate for judicial enquiry to report the details of the case to the District Magistrate in order to enable the District Magistrate to forward the report to the Superintendent of Police. The clause further says that if the District Magistrate himself takes congnizance of a case, he should of his own accord send a report to the Superintendent of Police. Clause IV of Rule 16.38 also throws light on the matter and brings out the 946 objective in greater clarity. This clause sets out that in order to protect the interests of police officers serving in districts where petition mongering activities are notorious, the District Magistrate can direct that all petitions complaining about police officers shall be presented to him personally so that he can scrutinize them to find out whether the petitions are of a frivolous nature or they have been engineered by factious groups in the districts etc. In fact, the words used in the clause are of a tell tale nature viz. "complaints against police officers in those districts were abuses of law with the object of victimising such officers or hampering investigation is rife. " All these features make it clear that the purpose underlying the rule is to enable the District Magistrate and the District Superintendent of Police to exercise personal control and supervision over the complaints received against members of the police force in the performance of their duties and enable the District Magistrate to ensure that the complaint is not a baseless or mala fide one and secondly to determine whether the complaint requires investigation by a police officer or by a selected magistrate. The procedure envisaged by the Rule is for effective check being exercised against victimisation of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other. These rules were not intended to replace and certainly cannot over ride the provisions of the Criminal Procedure Code. The Full Bench was therefore in error in taking the view that the Rules lay down a special procedure for investigation of all offences committed by the members of the police force and, that they have over riding effect over the provisions of the Criminal Procedure Code in terms of Sections 4 and 5 of the Code. We may now refer to some other decisions where it has been laid down that the provisions of the cannot prevail over the provisions of the Indian Penal Code. In Maulud Ahmad vs State of U.P., [1963] (Supp) 2 S.C.R. 38, the appellant who was a head constable contended that the prosecution launched against him was barred by limitation under Section 42 of the because the prosecution had been launched beyond the period of three months prescribed by Section 42. The contention was rejected and it was pointed out that the period of three months prescribed under Section 42 for commencing a prosecution would govern only prosecutions of a police officer for something done or intended to be done by him under the provisions of the or under general police powers given by the Act and Section 42 would not apply to prosecutions against a police officer for anything done under the provisions of any other Act or under 947 Police powers conferred under any other Act. It was also brought to focus that Section 36 of the explicitely provides that nothing contained in the said Act shall be construed to prevent any person from being prosecuted under any Regulation or Act for any offence made punishable by the Act or for being liable under any other Regulation or Act or any other or higher penalty or punishment that is provided for such offence by the . The above ratio was followed in Ajaid Singh vs Joginder Singh, ; In yet another case viz. S.N. Sharma vs Bipen Kumar Tiwari & Ors., it was held that the power of the police to investigate a cognizable offence is uncontrolled by the Magistrate and it is only in cases where the police decided not to investigate the case that the Magistrate can intervene and either direct an investigation, or in the alternative himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case and that the powers of the police to investigate have been made independent of any control by the Magistrate. Lastly, we come to the decision in the State of Punjab vs Charan Singh (supra) where the identical question under consideration had come up for determination by this Court. The respondent therein was convicted by the Special Judge, Ludhiana of an offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and sentence to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 100. On appeal, a Single Judge of the High Court acquitted the respondent on the ground the prosecution was vitiated by reason of non compliance with the provisions of Rule 16.38 of the Punjab Police Rules, 1934. In the appeal preferred by the State, this Court allowed the appeal and held as follows: "A perusal of Chapter XVI of the Punjab Police Rules shows that the provisions of the Chapter deal with departmental punishments and the procedure to be followed in imposing such punishments. Guidance is given as to how police officers guilty of misconduct and criminal offences may be dealt with . . .It is clear that Rule 16.38 is not designed to be a condition precedent to the launching of a prosecution in a criminal court; it is in the nature of instructions of the department and is not meant to be of the nature of a sanction or permission for a prosecution nor can it over ride the provisions of the Cr. P.C. and the Prevention of Corruption Act. We agree with the observations of Dua and Mahajan, JJ in Hoshiar Singh vs State (supra). " 948 Though the decision of the Full Bench of the Punjab High Court which is now under consideration had not been brought to the notice of the Learned Judges when they rendered judgment in State of Punjab vs Charan Singh, we are in full agreement with the pronouncement of the Bench as the conclusion therein accords with our own conclusion and the reasons therefore. We therefore hold that the Full Bench was in error in taking the view that the Punjab Police Rules read in conjunction with the prescribe a different procedure for the investigation and prosecution of offences committed by Police officers under the I.P.C. or other Acts in connection with their relations with the public and that the rules constitute a special statute and take precedence over the provisions of the Cr. The Full Bench has failed to note that Rule 16.38 only mandates the investigation of cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder. We therefore hold that the decision of the Full Bench under appeal in Raj Kumar, A.S.I. vs The State of Punjab (supra) is not in accordance with law and has to be set aside. However, as mentioned at the outset, the State is not interested in reviving the charges against the respondent and pursuing the trial because of the long lapse of time. Therefore, while allowing the appeal and setting aside the judgment of the High Court, we leave undisturbed the quashing of the charges framed against the respondent. Since the respondent did not enter appearance or engage a counsel to contest the appeal in spite of the notice served on him, we requested Mr. Gopal Subramaniam, Advocate, to act as amicus curiae and render assistance to the Court on behalf of the respondent. Mr. Gopal Subramaniam readily complied with our request and placed all the authorities for our consideration and we thank him for his assistance and place on record our appreciation of the services rendered by him. H.S.K. Appeal allowed.

% The respondent was apprehended while taking bribe. Investigation was held and the respondent was chargesheeted before the Special Judge. The respondent raised an objection to the framing of charges against him on the ground that the investigation of the case was in contravention of rule 16.38 of the Punjab Police Rules. The Special Judge overruled the objection and framed charges and posted the case for trial. The respondent filed a petition before the High Court under section 561(A) of the Code of Criminal Procedure, 1898, for quashing the proceedings against him before the Special Judge. A full bench of the High Court held that rule 16.38 is mandatory and not directory in character and that the mandate would govern criminal prosecution as well as departmental inquiries in equal measure. The full bench having noticed that the investigation against the respondent had not been done in accordance with rule 16.38 allowed the petition and quashed the charges framed against the respondent. Hence this appeal filed by certificate issued by the High Court. Allowing the appeal and setting aside the High Court 's judgment this Court, ^ HELD: The procedure prescribed in rule 16.38 has only a limited field of operation that is applicable only to departmental inquiries and punishments. This could be seen from the fact that clause 3 of the rule enjoins every Magistrate to whom a complaint against a police officer is referred by the District Magistrate for judicial enquiry to report the details of the case to the District Magistrate in order to enable the District Magistrate to forward the report to the Superintendent of Police. The clause further says that if the District Magistrate himself takes cognizance of a case he should of his own accord send a report to 937 the Superintendent of Police. Clause IV of rule 16.38 also throws light on the matter and brings out the objective in greater clarity. This clause sets out that in order to protect the interest of police officers serving in districts where petition mongering activities are notorious, the District Magistrate can direct that all petitions complaining about police officers shall be presented to him personally so that he can scrutinize them to find out whether the petitions are of a frivolous nature or they have been engineered by factious groups in the districts etc. In fact, the words used in the clause are of a tell tale nature viz. "complaints against police officers in those districts where abuses of law with the object of victimising such officers or hampering investigation is rife. " [945F H; 946A B] The purpose underlying the rule is to enable the District Magistrate and the District Superintendent of Police to exercise personal control and supervision over the complaints received against members of the police force in the performance of their duties and enable the District Magistrate to ensure that the complaint is not a baseless or mala fide one and secondly to determine whether the complaint requires investigation by a police officer or by a selected Magistrate. The procedure envisaged by the rule is for effective check being exercised against victimisation of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other. These rules were not intended to replace and certainly cannot over ride the provisions of the Criminal Procedure Code. [946C E] In the instant case the Full Bench was in error in taking the view that the Punjab Police Rules read in conjunction with the Police Act prescribe a different procedure for the investigation and prosecution of offences committed by Police Officer under the I.P.C. or other Acts in connection with their relations with the public and that the rules constitute a special statute and take precedence over the provisions of the Cr. The Full Bench has failed to note that Rule 16.38 only mandates the investigation of cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder.[948B C] Raj Kumar, A. section I. vs The State of Punjab, [1976] IV CLR (Pb. & Har.) page 39, overruled. State of Punjab vs Charan Singh, ; , referred to/agreed to. Delhi Administration vs Chanan Shah, [1969] 3 S.C.R. 653; 938 Union of India vs Ram Kishan, ; ; State of Uttar Pradesh vs Babu Ram Upadhya, ; ; Maulud Ahmad vs State of U.P., [1963] (Supp.) 2 S.C.R. 38; Ajaib Singh vs Joginder Singh, ; and S.N. Sharma vs Bipan Kumar Tiwari & Ors. ,[1970] 1 S.C.C. 653, referred to.